There are currently a number of cases pending at the European Court of Justice against Mobility Package. On 25th of April ECJ held hearings on the annulment of certain provisions of the package and the opinions by the Advocate General are expected after summer break.
Mobility Package has split the European Union in two blocks. Romania, Bulgaria, Estonia, Latvia, Lithuania, Poland, Hungary, Malta and Cyprus have joined forces and filed numerous complaints supporting each other. On the other side Italy, France, the Netherlands, Denmark, Germany, Luxembourg, Sweden, Greece, and Austria have registered as supporters of the Mobility Package. Legislative files have been also defended by the European Parliament and Council of the EU.
Which provisions are being challenged
Mobility Package was published in the Official Journal of the EU in July 2020. This was followed by a number of lawsuits brought to the European Court of Justice. They cover three main elements: rules on the posting of drivers, sleep in the cabin and resting time as well as return of the vehicle each 8 weeks to the Member State of establishment.
- Lex specialis: Parties bringing the complaints call for partial or complete annulment of the Directive 2020/1057 on the posting of drivers. They argue that these legal provisions present infringement of the principle of proportionality and that the criteria for the application of posting rules to drivers are inadequate. According to the applicants, impact of these measures on employment level in certain regions as well as on the functioning of transport sector itself has not been properly assessed.
- Sleep in the cabin and return of the driver: Applicants believe, that the provision banning 45 hours rests in the cabin cannot be applied in practice as there are not sufficient suitable rest facilities available. That requirement imposes a disproportionate burden on drivers and transport undertakings. The availability, amount or location of accommodation that meets the requirements was not sufficiently examined. The return of the driver “home” has been also challenged as it is too burdensome and does not offer improvement of drivers’ protection.
- Return of the truck: The obligation to return the vehicle every eight weeks has been also challenged as according to the applicants it infringes the principle of proportionality. No impact assessment has been carried out to evaluate social, economic and environmental consequences of this provision. Applicants believe, that this requirement infringes the prohibition of discrimination, since it has different effects on carriers established in the centre of the European Union and those established in the periphery.
Even the European Commission was not happy with the provision on the obligatory return of the vehicle. The Commission issued a statement, in which it expresses that: “These measures were not part of the Commission’s proposals adopted on 31 May 2017 and have not been the subject of an impact assessment. The obligation of return of the truck will lead to inefficiencies in the transport system and an increase in unnecessary emissions, pollution and congestion, while the restrictions on combined transport diminish its effectiveness to support multimodal freight operations.”
What’s next
Proceedings against Mobility Package are in the second stage of the ruling process. Hearings were held on 25th of April and opinions by the Advocate General are expected after summer recesses. The European Court of Justice shall communicate concrete date in September. This means, that we still have to wait a few more months until we see final rulings.
It is being argued, that out of all challenged provisions return of the vehicle has the highest chances to be annulled. During the hearings neither the European Parliament nor the Council seemed not being able to present strong arguments, that this provision has been assessed before being adopted. On the other site it seems, that rules on posting of drivers and the ban on sleeping in the cabin will remain unchanged.
ECJ procedure
The Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.
The Court gives rulings on cases brought before it. There is possibility to bring actions for annulment of EU law. This is indeed the case of Mobility Package. If an EU act is believed to violate EU treaties or fundamental rights any EU government, the Council of EU, the European Commission or the European Parliament can ask ECJ to annul it.
Cases are processed in 2 stages. There is a written stage, where the parties give written statements to the Court and observations can also be submitted by national authorities, EU institutions and sometimes private individuals. All of this is summarised by the judge-rapporteur and then discussed at the Court’s general meeting. The second stage includes a public hearing, during which lawyers from both sides can put their case to the judges and Advocate General, who can question them. If the Court has decided an opinion of the Advocate General is necessary, this is given some weeks after the hearing. The judges then deliberate and give their verdict.
