JUDGMENT OF 11. 12. 1984 — CASE 113/83 COMMISSION / ITALY

In Case 113/83

THE COURT composed of: Lord Mackenzie Stuart, President, G. Bosco and C. Kakouris (Presidents of Chambers), A. O'Keeffe, U. Everling, Y. Galmot and R. Joliét, Judges, Advocate General: C. O. Lenz Registrar: D. Lou terman, Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

1. The Commission found that the Italian authorities required two transport authorizations when a coupled combination of vehicles, consisting of parts registered in two different Member States, effected international carriage by road, commencing in, with its destination in or in transit through Italy. It took the view that that requirement was incompatible with the Community provisions on the subject and, by letter dated 4 November 1981, invited the Italian Government to submit its observations.

2. In its letter the Commission explained that pursuant to Article 2 (1) of Council Regulation (EEC) No 3164/76 of 16 December 1976 (Official Journal L 357, 29. 12. 1976, p. 1) Community authorizations entitled their holders to effect the carriage of goods by road as specified therein and that Article 2 (3) of that regulation stated that Community authorizations were to be made out in the name of a carrier, they could not be transferred by the carrier to third parties, each authorization could be used for only one vehicle at a time, it was to be carried on the vehicle and vehicle meant a single vehicle or a coupled combination of vehicles. Since the regulation made no distinction in relation to the State where the vehicles or the parts of a coupled combination of vehicles were registered, the Commission took the view that Council Regulation No 3164/76 provided no basis for requiring two transport authorizations when a coupled combination of vehicles, consisting of parts registered in different Member States effected international carriage by road.

3. In its answer of 27 January 1982 the Italian Government challenged the Commission's view. It explained that the national provision which the Commission was contesting constituted a derogation from a much stricter rule applying to Italian domestic traffic to the effect that a towing vehicle registered in the name of one undertaking could not be coupled to a trailer or semi-trailer belonging to another undertaking and that the provision had been adopted to facilitate international traffic. Finally the Italian Government maintained that Regulation No 3164/76 and Directive 65/269, in providing for the use of a single transport authorization even for carriage effected by a coupled combination of vehicles were obviously based on the assumption that the parts making up the combination all belonged to the undertaking holding the authorization.

4. The Commission considered that those observations were not capable of affecting its view for the following reasons :

5. On 27 October 1982 the Commission therefore delivered a reasoned opinion which left aside the question of the compatibility of the Italian practice with Directive 65/629 and restricted the failure with which the Italian Republic was charged to the incompatibility of the national practice with Regulation No 3164/76 and in particular Article 2 (1) and (3) thereof and requested the Italian Government to take the measures necessary to comply with the opinion within a period of two months.

6. Since the Italian Government did not adopt the appropriate measures within the period so prescribed, the Commission brought the present action registered at the Court Registry on 17 June 1983.

II —. Conclusions of the parties

1. The Government of the Italian Republic contends that the Court should dismiss the action and make all consequent ancillary orders since the Italian Republic has not failed to fulfil its obligations under Regulation. No 3164/76.

2. The Commission of the European Communities claims that the Court should:

III —. Submissions and arguments of the parties

1. The Commission in its application puts forward the following arguments and submissions:

2. In its defence the Italian Government puts forward the following arguments and submissions.

3. In its reply the Commission observes that the Italian Government's argument is in effect as follows :

4. The Italian Government, in its rejoinder, maintains that the basic and essentially the only problem that must be resolved for the purposes of the present case is whether the Commission's view is correct that the road transport authorization on behalf of a third party issued by a Member State as part of the Community quota puts the carrier holding the authorization in a legal position which is not dependent in any way on the nature, identity and nationality of the vehicle or whether on the contrary what the Italian Government alleges about the identity and nationality of the vehicle is correct because of the inseparable connection between the three factors: authorization, vehicle and journey.

IV —. Oral procedure

1. By application lodged at the Court Registry on 17 June 1983, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic has failed to fulfil its obligations under Council Regulation (EEC) No 3164/76 of 16 December 1976 on the Community quota for the carriage of goods by road between Member States (Official Journal 1976, L 357, p. 1).

2. Regulation No 3164/76 provides that the Community quota of authorizations, fixed each year by the Council, is to be allocated between the Member States. Each Member State is to issue the authorizations forming part of its share to the carriers established in its territory. Article 2 (1) of the regulation provides that the Community authorizations entitle their holders to effect, over all transport links between the Member States, the carriage of goods by road for hire or reward, with the exception of internal transport operations within the territory of a Member State, and to effect journeys unladen throughout the Community.

3. Article 2 (3) provides that Community authorizations are to be made out in the name of a carrier, they may not be transferred by the carrier to third parties, each authorization may be used for only one vehicle at a time, it must be carried on the vehicle and produced at the request of any authorized inspecting officer and vehicle means a single vehicle or a coupled combination of vehicles.

4. Article 5 provides that the Member States are to assist one another with a view to applying the regulation and supervising its implementation.

5. In the exercise of those powers given to each Member State for the purpose of applying and supervising the regulation, when two parts of a coupled combination of vehicles effecting international carriage of goods by road to, from, or passing through Italy are registered in different Member States, the Italian authorities require two authorizations, one for the towing vehicle and one for the trailer.

6. The Commission considered that requirement incompatible with the provisions of Regulation No 3164/76. It maintained that Article 2 entitled holders of Community authorizations to effect the carriage of goods subject to certain conditions and no provision of the regulation made a distinction as to the State of registration of a single vehicle or the parts of a coupled combination of vehicles.

7. The Italian Government advocated a different interpretation of Regulation No 3164/76, arguing that, in providing for a single authorization even in respect of carriage effected by a coupled combination of vehicles, the regulation covered only cases where the two parts making up the combination belonged to the same undertaking holding the authorization and consequently were registered in one Member State and that it thus did not cover cases where each part of the coupled combination of vehicles was registered in a different Member State. It maintained that Regulation No 3164/76 implicitly recognized a connection between each transport authorization and the State of registration of the vehicles used under that authorization. It basically contended that although the regulation did not expressly refer to registration, it did establish a connection between the authorization and, on the one hand, the identity of the vehicle and, on the other, its owner from which it was to be inferred that it established a connection with the State of registration.

8. The Italian Government admitted that the regulation did not expressly refer either to the identity of the vehicle or its owner. It nevertheless maintained that the importance of those two factors was to be inferred inter alia from the interpretation of certain provisions of the regulation in question and its annexes.

9. Thus, according to the Italian Government, the identity of the vehicle, as a condition for the grant of the authorization, was to be inferred from the second subparagraph of Article 2 (3) of Regulation No 3164/76 which provided that Each authorization may be used for only one vehicle at a time and that it must be carried on the vehicle. The same condition was also to be inferred from point 4 of the General Provisions of Annex II referred to in Article 4 of the regulation which required a record sheet for each journey travelled by each vehicle which starts and finishes at the place where the vehicle is usually based and for that purpose referred precisely to the place where the vehicle is usually based.

10. As regards the importance of the owner of the vehicle, the Italian Government maintained that authorizations were issued by each Member State to its nationals even if the wording of Article 2 (6) of the regulation in question referred only to carriers established in their territory and consequently concerned vehicles which they owned and which were naturally registered in that Member State. It also maintained that point (c) of Commission Recommendation No 69/191/EEC of 9 June 1969 (Journal Officiel 1969, L 165, p. 7) providing that the holder of the authorization could use it for vehicles of which he was the owner, or for vehicles on hire, showed the importance of ownership and consequently of the State of registration of the vehicle. It put forward an argument based on Council Directive 65/269/EEC of 13 May 1965 concerning the standardization of certain rules relating to authorizations for the carriage of goods by road between Member States (Official Journal, English Special Edition 1965-1966, p. 64), Article 1 of which provided that authorizations were to be issued by the Member State in which the vehicle was registered. It added that Council Directive 82/50/EEC of 19 January 1982 amending the first Council Directive, of 23 July 1962, on the establishment of common rules for certain types of carriage of goods by road between Member States (Official Journal 1982, L 27, p. 22) concerned cases of the replacement of a vehicle which had become unserviceable in a Member State other than that in which it is registered.

11. Finally, the Italian Government maintained that the Commission, in its proposal of 15 December 1980 for a regulation amending Regulation No 3164/76, provided that the authorization should in future be issued in respect of the tractor and that it could also be used to cover haulage of a trailer or semi-trailer... registered in a different Member State, which would not have been necessary if that rule had already followed from Regulation No 3164/76.

12. The Commission refuted all those arguments. It stated that under the system established by Regulation No 3164/76 the grant of authorizations was not linked to the identity of the owner of a vehicle or the nationality of the holder. More particularly it observed that neither the second subparagraph of Article 2 (3) of the regulation nor point 4 of the General Provisions of Annex II (repealed by Regulation No 3024/77 of 21 December 1977 (Official Journal 1977, L 358, p. 4) imposed conditions for the issue of authorizations but only for their use and that the place where the vehicle is usually based was not necessarily the place of registration of the vehicle.

13. It further observed that according to Article 2 (6) of Regulation No 3164/76 authorizations were to be issued by each Member State not to its nationals but to carriers established in its territory. According to the Commission, Recommendation No 69/191 of 9 June 1969, apart from the fact that it concerned not the grant but the use of authorizations, showed that they could also be used for hired vehicles. It stated that Directive 65/269 of 13 May 1965 did not relate to the Community quota but to bilateral quotas between Member States and that Council Directive 82/50 of 19 January 1982 confirmed its view.

14. Finally the Commission stated that its proposal of 15 December 1980 was intended to resolve the problem which had appeared because in the case of coupled vehicles certain Member States required an authorization issued in the name of the undertaking operating the towing vehicle, whereas others required an authorization in the name of the undertaking operating the trailer and that at the same time as resolving that problem an ancillary clause concerning the problem in the present case was added, the object of which was to clarify Regulation No 3164/76 rather than to amend it.

15. The Commission's view must be accepted. None of the arguments of the Italian Government can be upheld. As the Commission rightly observed, in the system established by Regulation No 3164/76, as is apparent from its provisions, each authorization is issued in the name of a carrier and not for a particular vehicle, so that the holder of the authorization may choose which vehicle to use to effect the carriage and is not bound by any condition as to ownership or the State of registration.

16. It should further be noted that although the second subparagraph of Article 2 (3) of Regulation No 3164/76 provides that Each authorization may be used for only one vehicle at a time, the third subparagraph of Article 2 (3) expressly provides, without any exception or distinction on the basis of registration, that Vehicle means a single vehicle or a coupled combination of vehicles, which precludes the requirement of two authorizations for coupled vehicles. Consequently, the argument of the Italian Government based on the Commission's submission of a proposal for a regulation of 15 December 1980 cannot affect that interpretation.

17. It is true that the regulation leaves open the question for which of the two coupled parts the one authorization must be issued. However, that lacuna cannot justify the requirement by a Member State of two authorizations for a coupled combination of vehicles.

18. It is therefore necessary to declare that in requiring two transport authorizations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in two different Member States, effects international carriage by road, the Italian Republic has failed to fulfil its obligations under Council Regulation No 3164/76 of 16 December 1976.

19. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that in requiring two transport authorizations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in two different Member States, effects international carriage by road, the Italian Republic has failed to fulfil its obligations under Council Regulation No 3164/76 of 16 December 1976;

2 Orders the defendant to pay the costs.