Restriction in Denmark’s on a maximum parking time of 25 hours for lorries limits the freedom to provide road transport services?
The European Commission request the Court of Justice of the European Union (CJEU) to declare that the Kingdom of Denmark has failed to fulfil its obligations under the provisions of EU law relating to the freedom to provide road transport services set out in Articles 1, 8 and 9 of Regulation (EC) No 1072/2009, (2) by imposing a maximum parking time of 25 hours for lorries at rest areas on the public motorway network (‘the 25-hour rule’).
According to information received by associations in the road transport sector, the European Commission has initiated infringement proceedings against the Kingdom of Denmark regarding the maximum parking time of 25 hours for lorries, considering it as a restriction on the freedom to provide transport services.
In its action for failure to fulfil obligations, the European Commission, supported by the Republic of Poland, criticises the Kingdom of Denmark for the fact that the maximum parking time of 25 hours for lorries constitutes a restriction on the freedom to provide road transport services which is not justified by any of the overriding reasons of public interest cited by that Member State.
The argument put forth is that the maximum parking time of 25 hours for lorries creates obstacles for drivers in complying with the regular weekly rest period, which should be a minimum of 45 hours, or the reduced weekly rest period ranging from 24 to 45 consecutive hours, as specified in Article 8 of Regulation (EC) No 561/2006.
It applies to the transportation of goods for payment by road within the European Union, including temporary transport within another EU country, known as “cabotage.”, namely, national carriage for hire or reward carried out on a temporary basis in a host Member State. The primary aim of this regulation is to get rid of any restrictions that might hinder the provision of road transport services.
In plus, this case deals with services governed by a Regulation No 1072/2009. This Regulation was established based on Article 71 of the European Community Treaty, now Article 91 of the Treaty on the Functioning of the European Union.
As a result, this is viewed as a constraint on the freedom to engage in road transport services, and there are doubts about whether such a constraint can be justified by compelling public interest reasons, as asserted by the Kingdom of Denmark.
In fact, it argued the measure limited the EU’s freedom to provide services because it made it more difficult for foreign hauliers without an operating centre in Denmark to comply with EU rules on driving and rest times.
The main issues raised in this case revolve around whether the maximum parking time of 25 hours for lorries indeed hampers the freedom to provide road transport services, and if it does, whether there are compelling public interest grounds that could justify this rule.
An advisor to the CJEU supports Denmark's on a maximum parking time of 25 hours for lorries.
In the opinion expressed by Advocate-General Athanasios Rantos on September 7, 2023, he stated that he was not persuaded that the restrictions on parking in public rest areas, which go beyond the 25-hour limit set by the challenged national law, can be considered a real obstacle to the freedom of providing services according to EU law.
Advocate-General Athanasios Rantos said he was “not convinced that the limits on parking in public rest areas beyond the 25-hour limit imposed by the contested national legislation constitutes a genuine restriction on the freedom to provide services under EU law.”
However, in the same opinion issued last week, Rantos also mentioned that if the court were to have a different perspective and view these restrictions as a hindrance, he still doesn’t believe there are compelling public interest reasons — which Denmark has put forth as a backup defense for the measure — to justify these limitations.[i]
The CJEU is not obligated to adhere to Advocate-General Rantos’ recommendations in its ultimate ruling, although it frequently does so.