Deutsche Post and Leymann (Judgment) [2019] EUECJ C-203/18 (21 November 2019)

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(Reference for a preliminary ruling - Regulation (EC) No 561/2006 - Road transport - Social legislation - Vehicles used to deliver items as part of the universal postal service - Exceptions - Vehicles partly used for such delivery - Directive 97/67/EC - Article 3(1) - ‘Universal service’ - Concept)

REQUESTS for a preliminary ruling under Article 267 TFEU from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany) (C-203/18), made by decision of 21 February 2018, received at the Court on 20 March 2018, and from the Landgericht Köln (Regional Court, Cologne, Germany) (C-374/18), made by decision of 22 May 2018, received at the Court on 7 June 2018, in the proceedings

composed of A. Prechal, President of the Chamber, L.S. Rossi (Rapporteur) and J. Malenovský, Judges,

having regard to the written procedure and further to the hearing on 28 March 2019,

- UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG and Bundesverband Paket & Expresslogistik eV, by S. Maaßen and P. Pommerening, Rechtsanwälte,

after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,

1 These requests for a preliminary ruling concern the interpretation of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1), as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 (OJ 2014 L 60, p. 1) (‘Regulation No 561/2006’).

2 The requests have been made in proceedings between (1) postal operator Deutsche Post AG and the transport manager of its Bonn branch (Germany), Mr Leymann (together ‘Deutsche Post and another’), and (2) Land Nordrhein-Westfalen (Case C-203/18); and between (1) UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG and Bundesverband Paket & Expresslogistik eV, (together ‘UPS Deutschland and others’) and (2) postal operator Deutsche Post (Case C-374/18), concerning the application, to carriage by Deutsche Post vehicles, of rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road.

‘(4) Effective and uniform enforcement of [the provisions of Regulation (EEC) No 3820/85 relating to driving time, break and rest period rules for drivers engaged in national and international road transport within the Community] is desirable if their objectives are to be achieved and the application of the rules is not to be brought into disrepute. Therefore, a clearer and simpler set of rules is needed, which will be more easily understood, interpreted and applied by the road transport industry and the enforcement authorities.

(17) This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. It does so mainly by means of the provisions pertaining to maximum driving times per day, per week and per period of two consecutive weeks, the provision which obliges drivers to take a regular weekly rest period at least once per two consecutive weeks and the provisions which prescribe that under no circumstances should a daily rest period be less than an uninterrupted period of nine hours. Since those provisions guarantee adequate rest, and also taking into account experience with enforcement practices during the past years, a system of compensation for reduced daily rest periods is no longer necessary.

(22) In order to promote social progress and improve road safety, each Member State should retain the right to adopt certain appropriate measures.

(23) National derogations should reflect changes in the road transport sector and be restricted to those elements not now subject to competitive pressures.’

‘This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.’

(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes, …’

6 Articles 5 to 9 of Regulation No 561/2006 set out the rules applicable to transport vehicle crews, driving time, breaks and rest periods.

7 Chapter IV of that regulation, headed ‘Exceptions’, includes Article 13, according to which:

‘1. Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory or, with the agreement of the States concerned, on the territory of another Member State, applicable to carriage by the following:

(d) vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used by universal service providers as defined in Article 2(13) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service [(OJ 1998 L 15, p. 14)] to deliver items as part of the universal service.

These vehicles shall be used only within a 100 km radius from the base of the undertaking, and on condition that driving the vehicles does not constitute the driver’s main activity;

(e) vehicles operating exclusively on islands not exceeding 2 300 square kilometres in area which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles;

(i) vehicles with between 10 and 17 seats used exclusively for the non-commercial carriage of passengers;

(o) vehicles used exclusively on roads inside hub facilities such as ports, interports and railway terminals;

8 According to recital 18 of Directive 97/67, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3) (‘Directive 97/67’):

‘Whereas, in view of the fact that the essential difference between express mail and universal postal services lies in the value added (whatever form it takes) provided by express services and perceived by customers, the most effective way of determining the extra value perceived is to consider the extra price that customers are prepared to pay, without prejudice, however, to the price limit of the reserved area which must be respected.’

(13) universal service provider: the public or private postal service provider providing a universal postal service or parts thereof within a Member State, the identity of which has been notified to the Commission in accordance with Article 4.’

‘1. Member States shall ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users.

4. Each Member State shall adopt the measures necessary to ensure that the universal service includes the following minimum facilities:

- the clearance, sorting, transport and distribution of postal packages up to 10 kilograms,

5. The national regulatory authorities may increase the weight limit of universal service coverage for postal parcels to any weight not exceeding 20 kilograms and may lay down special arrangements for the door-to-door delivery of such parcels.

11 The Verordnung zur Durchführung des Fahrpersonalgesetzes (Regulation implementing the Law on driving crews) of 27 June 2005 (BGBl. 2005 I, p. 1882), as last amended by the Regulation of 8 August 2017 (BGBl. 2017 I, p. 3158) (‘the FPersV’), was adopted by the Bundesministerium für Verkehr, Bau- und Stadtentwicklung (Federal Ministry of Transport, Building and Urban Development, Germany) for the purpose of implementing, in the German legal order, Regulation No 561/2006.

12 Paragraph 1 of the FPersV, headed ‘Driving time and rest periods in the field of road transport’, provides:

1. of vehicles used for the carriage of goods and where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 2.8 tonnes but does not exceed 3.5 tonnes, …

shall observe the rules relating to driving times, breaks and rest periods provided for by Articles 4, 6 to 9 and 12 of [Regulation No 561/2006].

1. issue the driver with sufficient copies of the appropriate forms, based on the specimen set out in Annex 1, for the production of records;

2. examine the records immediately upon their submission by the driver and take any immediate steps necessary to ensure compliance with the first to fifth sentences;

3. keep the records in chronological order and in legible form outside the vehicle for one year following their submission by the driver and present them to the competent persons on request;

4. destroy the records by 31 March of the calendar year following the expiry of the retention period …

13 Paragraph 18 of the FPersV, headed ‘Exceptions under Regulations (EC) No 561/2006 and (EU) No 165/2014’, provides:

‘(1) In accordance with Article 13(1) of Regulation (EC) No 561/2006 and Article 3(2) of Regulation (EU) No 165/2014, the following categories of vehicle shall, within the scope of application of [the Fahrpersonalgesetz (Law on driving crews)], be excluded from the application of Articles 5 to 9 of Regulation (EC) No 561/2006 and from the application of Regulation (EU) No 165/2014:

4. Vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes which are used, by postal service providers providing universal services as defined in Paragraph 1(1) of the Post-Universaldienstleistungsverordnung [(Federal Regulation on the universal postal service)] of 15 December 1999 (BGBl. 1999 I, p. 2418), as last amended by Paragraph 3(26) of the Law of 7 July 2005 (BGBl. I, p. 1970), within a 100 km radius from the base of the undertaking to deliver items as part of the universal service, in so far as driving the vehicle does not constitute the driver’s main activity;

14 Paragraph 4(1)(b) of the Postgesetz (Law on postal services) of 22 December 1997 (BGBl. 1997 I, p. 3294), as last amended by Paragraph 169 of the Law of 29 March 2017 (BGBl. 2017 I, p. 626) (‘the PostG’), provides:

‘1. For the purposes of this Law, postal services shall mean the following commercial services:

(b) the carriage of addressed parcels the individual weight of which does not exceed 20 kilograms, or

‘(1) The universal service is a minimum range of postal services referred to in Paragraph 4(1) which are provided to a specified quality at all points in the national territory at an affordable price. The universal service shall be restricted to postal services which are subject to licence and postal services at least parts of which are capable, from the point of view of conveyance, of being provided by way of postal services subject to licence. It shall include only those services that are generally regarded as essential.

(2) The Federal Government is empowered to determine by regulation requiring the consent of the Bundestag [(Federal Parliament, Germany)] and the Bundesrat [(Federal Council, Germany)] the content and scope of the universal service, in accordance with the provisions of subparagraph (1). …’

16 On the basis of Paragraph 11(2) of the PostG, the Federal Government clarified the scope of the universal service with regard to the delivery of parcels provided for in Paragraph 1(1)(2) of the Post-Universaldienstleistungsverordnung (Regulation on the universal postal service) of 15 December 1999 (BGBl. I, p. 2418), as last amended by Paragraph 3(26) of the Law of 7 July 2005 (BGBl. 2005 I, p. 1970), which is worded as follows:

2. The conveyance of addressed parcels the individual weight of which does not exceed 20 kilograms and the dimensions of which do not exceed those laid down in the Universal Postal Convention and the implementing regulations relating thereto,

The dispute in the main proceedings and the questions referred for a preliminary ruling

17 It is apparent from the order for reference that Deutsche Post is designated as provider of the universal postal service, within the meaning of Paragraph 11(1) of the PostG, and thus undertakes the carriage of parcels with a maximum weight of 20 kilograms, in accordance with Paragraph 1(1)(2) of the Regulation on the universal postal service, as amended by the Law of 7 July 2005. It provides that service using vehicles or combinations of vehicles with a maximum permissible mass of between 2.8 tonnes and 3.5 tonnes, and vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes. At the same time and using those same vehicles, Deutsche Post also delivers parcels weighing more than 20 kilograms - that is to say, parcels not covered by the universal postal service - but which, according to the information provided by Deutsche Post, represent no more than 5% of the total load of the vehicles, even during periods of intensive distribution.

18 According to Deutsche Post, as universal service provider, it falls within the exception provided for in Paragraph 18(1)(4) of the FPersV, which reproduces Article 13(1)(d) of Regulation No 561/2006. As a result, it claims, in particular, not to be subject to the obligations to apply the rules relating to undertakings concerning driving time, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road pursuant to that regulation.

19 According to the competent German authorities and the authorities of the Länder, however, that exception is not applicable to Deutsche Post since it also conveys parcels weighing more than the 20 kilogram limit applicable to items covered by the universal postal service. In that context, Deutsche Post business premises have already been subject to inspections, and procedures that could lead to administrative penalties have been initiated against that operator.

20 On 21 January 2015, Deutsche Post and another brought an action before the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) for a declaratory judgment, seeking clarification of the scope of the exception provided for in Paragraph 18(1)(4) of the FPersV and recognition that that exception also applies to the provision of the services at issue. By a judgment of 2 February 2016, the application was dismissed as unfounded by the Verwaltungsgericht Köln (Administrative Court, Cologne), which, inter alia, upheld the interpretation of Land Nordrhein-Westfalen ( the Land of North Rhine-Westphalia, Germany) that the exception at issue applies only if the vehicles are used ‘exclusively’ for the purpose of delivering items falling within the universal postal service.

21 On 7 March 2016, Deutsche Post and another lodged an appeal against that judgment before the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany). That court notes that, in adopting Paragraph 18(1)(4) of the FPersV, the German legislature reproduced in full the content of the exception provided for in Article 13(1)(d) of Regulation No 561/2006, with the result that the interpretation of the national provision at issue depends, essentially, on the interpretation to be given to the exception provided for in EU law.

22 In particular, the referring court observes that, since the Court of Justice has not yet clarified the scope and content of that exception, it is not possible, at this stage, to rule out either the interpretation put forward by Deutsche Post and another or that defended by Land Nordrhein-Westfalen (the Land of North Rhine-Westphalia). It notes in that regard that the interpretation advanced by the latter would, in Germany, prevent an undertaking that also provides the universal postal service from enjoying a competitive advantage over an undertaking that does not provide that service and which is therefore subject to the rules on driving times, breaks and rest periods. However, according to the referring court, it is also conceivable that that competitive advantage is designed to compensate for the competitive disadvantage to undertakings providing the universal postal service that arises from State regulation of pricing and quality of service in respect of the universal postal service.

23 In addition, should the exception provided for in Article 13(1)(d) of Regulation No 561/2006 not require vehicles or combinations of vehicles to be used ‘exclusively’ to deliver items as part of the universal service, it would be necessary to clarify whether that provision requires at least a certain proportion of items to come under the universal service in order for vehicles and combinations of vehicles to be exempt from the obligations imposed by that regulation.

24 In those circumstances, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the exception set out in Article 13(1)(d) of [Regulation No 561/2006] to be interpreted as covering only vehicles or combinations of vehicles that are used exclusively for the purpose of delivering packages in the context of the universal service, or can it additionally be applied where the vehicles or combinations of vehicles are used, predominantly or to a degree determined in some other way, also for the purpose of delivering packages in the context of the universal service?

(2) In the context of the exception referred to in the first question, for the purposes of assessing whether vehicles or combinations of vehicles are used exclusively or, as the case may be, predominantly or to a degree determined in some other way, also for the purpose of delivering packages in the context of the universal service, is the general use of a vehicle or combination of vehicles to be used as a basis for that assessment, or the specific use of a vehicle or combination of vehicles for a single journey?’

25 As in Case C-203/18, the dispute in the main proceedings concerns compliance by Deutsche Post with the obligations laid down by the FPersV, which reproduces certain provisions of Regulation No 561/2006. Nevertheless, in Case C-374/18, the facts differ in that the case concerns only vehicles or combinations of vehicles with a maximum permissible mass of between 2.8 tonnes and 3.5 tonnes.

26 UPS Deutschland and others take the view that Deutsche Post’s failure to comply with those obligations constitutes an infringement of Paragraphs 3 and 3a of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition, BGBl. 2010 I, p. 254), and brought an action before the Landgericht Köln (Regional Court, Cologne, Germany) seeking the cessation of those practices and a declaration of the obligation to make good the damage suffered as a result.

27 The Landgericht Köln (Regional Court, Cologne) inclines to the view that Deutsche Post cannot rely on the exception provided for in Paragraph 18(1)(4) of the FPersV since, as is apparent from the meaning and purpose of that provision, the exception at issue can apply only where delivery is exclusively of items falling within the universal postal service. The aim of the FPersV of improving drivers’ working conditions and road safety, which faithfully reproduces Regulation No 561/2006 in the German legal order, can be achieved only if, in a sector such as the postal sector, which is characterised by strong competition, exceptions are strictly interpreted.

28 Furthermore, given that the FPersV also reproduced the provisions of Regulation No 561/2006 in respect of vehicles with a maximum permissible mass of more than 2.8 tonnes and not exceeding 3.5 tonnes, the question arises whether, and to what extent, provisions of EU law should be relied on for the purposes of interpreting a provision of national law, such as Paragraph 18(1)(4) of the FPersV.

29 In addition, the referring court is uncertain whether the provision of certain add-on services in connection with a postal item precludes its classification as an item delivered ‘as part of the universal service’. In the view of that court, that question must be answered in the affirmative. Nevertheless, it considers that the result of the case depends, in particular, on the interpretation to be given to the provisions of Regulation No 561/2006.

30 In those circumstances, the Landgericht Köln (Regional Court, Cologne) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 13(1) of Regulation No 561/2006 to be interpreted as meaning that that provision permits exceptions from Articles 5 to 9 of [that regulation] only in the event that a vehicle of a universal service provider within the meaning of Article 2(13) of Directive 97/67 transports solely and exclusively items forming part of the universal service, in accordance with Article 13(1)(d) of [that regulation], or are exceptions from Articles 5 to 9 of [that regulation] also permissible under that provision in the case where the vehicles concerned, in addition to transporting items forming part of the universal service, also carry items that do not come under the universal service?

(2) If the answer to Question 1 is that exceptions from Articles 5 to 9 of Regulation No 561/2006 are also permissible in the case where the vehicles concerned, in addition to transporting items forming part of the universal service, also carry other items that do not come under the universal service:

(a) In that event, what proportion must the share of items which a vehicle carries as part of the universal service represent as a minimum?

(b) In that event, what proportion may the share of items which do not come under the universal service and which the vehicle carries at the same time as those forming part of the universal service represent as a maximum?

(d) Must such a proportion, as described in points (a) and (b), be defined for each individual journey performed by the vehicle concerned or is an average proportion, based on all the journeys performed by the vehicle in question, sufficient?

(3) (a) Is a national provision of an EU State on driving times and rest periods for vehicles and combinations of vehicles for the carriage of goods with a maximum permissible mass in excess of 2.8 [tonnes] and not exceeding 3.5 [tonnes], which reproduces verbatim the provisions of Article 13(1) of Regulation No 561/2006, to be interpreted exclusively on the basis of EU law?

(b) Can a national court, notwithstanding the verbatim reproduction of EU law, apply different criteria to interpret the provisions reproduced from EU law?

(4) Is an item’s classification as an item forming part of the universal service in accordance with Directive 97/67 precluded where, in connection with that item, add-on services such as:

31 The questions in Case C-203/18 and the first, second and fourth questions in Case C-374/18 concern, in essence, the interpretation of provisions of Regulation No 561/2006 and Directive 97/67.

32 By contrast, in the case of the third question in Case C-374/18, the doubts expressed by the Landgericht Köln (Regional Court, Cologne) arise from the fact that the dispute in the main proceedings concerns vehicles or combinations of vehicles with a maximum permissible mass of between 2.8 tonnes and 3.5 tonnes, that is to say, vehicles that do not fall within the scope of Regulation No 561/2006. In accordance with Article 2(1)(a) of Regulation No 561/2006, the regulation is to apply only to the carriage of goods where the maximum permissible mass of the vehicle exceeds 3.5 tonnes.

33 However, the German legislature, which made use of the power provided for in Article 13(1)(d) of Regulation No 561/2006 and adhered closely to the wording of that provision, through Paragraph 18(1)(4) of the FPersV, also applies the exceptions provided for in Article 13 of Regulation No 561/2006 to vehicles with a mass of less than 3.5 tonnes.

34 In those circumstances, as the Advocate General notes in points 39 and 40 of his Opinion, the answer to the third question referred for a preliminary ruling in Case C-374/18 is likely to have an effect on the jurisdiction of the Court to answer the first, second and fourth questions in that case, concerning the interpretation of the provisions of Regulation No 561/2006. Accordingly, the third question must be dealt with first.

35 By its third question in Case C-374/18, the Landgericht Köln (Regional Court, Cologne) asks, in essence, whether a provision of national law, such as that at issue in the main proceedings, which reproduces verbatim the provisions of Article 13(1)(d) of Regulation No 561/2006, must - in so far as it applies to vehicles with a maximum mass of more than 2.8 tonnes but not exceeding 3.5 tonnes and which, as a result, do not fall within the scope of Regulation No 561/2006 - be interpreted exclusively on the basis of EU law or whether a national court may apply criteria that differ from those of EU law in order to interpret that provision of domestic law.

36 In order to answer that question, it should be noted that the Court has repeatedly declared that it has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a reference made by that law to the content of those provisions. In such a situation, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (see, to that effect, judgments of 18 October 1990, Dzodzi, C-297/88 and C-197/89, EU:C:1990:360, paragraph 37, and of 13 March 2019, E., C-635/17, EU:C:2019:192, paragraphs 35 and 36 and the case-law cited).

37 Thus, an interpretation by the Court of provisions of EU law in situations not falling within the scope of EU law is warranted where such provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way (judgment of 13 March 2019, E., C-635/17, EU:C:2019:192, paragraph 37 and the case-law cited).

38 In the present case, the Court must ascertain whether the reference to Article 13(1)(d) of Regulation No 561/2006 in Paragraph 18(1)(4) of the FPersV must be classified as ‘direct and unconditional’ within the meaning of the case-law cited in the preceding paragraph and, therefore, whether that provision of EU law has been rendered applicable to vehicles which, owing to a maximum permissible mass below the minimum threshold of 3.5 tonnes laid down by that regulation, do not fall within its scope.

39 As the Advocate General notes in point 53 of his Opinion, the wording of Paragraph 18 of the FPersV, having expressly referred, both in its title and in its first sentence, to Regulations No 561/2006 and No 165/2014, replicates word for word, without any variation, in subparagraph (1)(4), the content of the exception provided for in Article 13(1)(d) of Regulation No 561/2006, as amended by Article 45 of Regulation No 165/2014.

40 In addition, the referring court, with exclusive jurisdiction to interpret national law under the framework of the system of judicial cooperation enshrined in Article 267 TFEU (see, by analogy, judgment of 7 November 2018, K and B, C-380/17, EU:C:2018:877, paragraph 37 and the case-law cited), made clear in its order for reference that the FPersV reproduces the provisions of that regulation in order to extend them to vehicles with a maximum permissible mass of between 2.8 and 3.5 tonnes, referring expressly to the requirements of EU law. Moreover, as is apparent from the order for reference in Case C-203/18, it is clear from the documents relating to the origin of Paragraph 18(1)(4) of the FPersV that the German legislature ‘wanted to make full use of the exception in Article 13(1)(d) of Regulation No 561/2006’, and thus harmonised the treatment of domestic situations with that of situations covered by Regulation No 561/2006.

41 It follows from this, as the Advocate General emphasised in point 57 of his Opinion, that Paragraph 18(1)(4) of the FPersV forms part of a comprehensive system of national rules extending the application of the EU rules governing driving times, breaks and rest periods, established by Regulation No 561/2006, to carriage by vehicles with a maximum permissible mass below that of vehicles falling within the scope of Regulation No 561/2006.

42 In those circumstances, the reference to Article 13(1)(d) of Regulation No 561/2006 in Paragraph 18(1)(4) of the FPersV must be classified as ‘direct and unconditional’ within the meaning of the case-law cited in paragraph 37 of the present judgment, so that the Court does have jurisdiction, under Article 267 TFEU, to answer the questions put by the referring court and thus to interpret the provisions of Regulation No 561/2006 in a situation such as that of the main proceedings.

43 Furthermore, given that there is clearly an interest in such a provision of EU law, rendered applicable in domestic law, being interpreted uniformly, as is apparent from the case-law cited in paragraph 36 of the present judgment, the referring court is bound by the Court’s interpretation of the provisions of EU law at issue in the main proceedings and cannot rely on other criteria.

44 Consequently, the answer to the third question is that a provision of national law, such as that at issue in the main proceedings, which reproduces verbatim the provisions of Article 13(1)(d) of Regulation No 561/2006, must - in so far as it applies to vehicles with a maximum permissible mass of more than 2.8 tonnes but not exceeding 3.5 tonnes and which, as a result, do not fall within the scope of Regulation No 561/2006 - be interpreted exclusively on the basis of EU law, as interpreted by the Court, where those provisions have, directly and unconditionally, been rendered applicable to such vehicles by national law.

The questions in Case C-203/18 and the first and second questions in Case C-374/18

45 By the questions in Case C-203/18 and by the first and second questions in Case C-374/18, which it is appropriate to examine together, the referring courts ask, in essence, whether Article 13(1)(d) of Regulation No 561/2006 must be interpreted as meaning that the exception which it lays down covers only vehicles or combinations of vehicles that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service, or whether that exception is applicable also when the vehicles or combinations of vehicles concerned are used predominantly or to a defined degree for the purpose of delivering items covered by the universal postal service.

46 In order to answer those questions, it must be recalled that, in accordance with recital 17 and Article 1 of Regulation No 561/2006, the aims of that regulation are to harmonise the conditions of competition with regard to the road sector and to improve working conditions and road safety (judgment of 7 February 2019, NK, C-231/18, EU:C:2019:103, paragraph 18 and the case-law cited).

47 To that end, Articles 5 to 9 of Regulation No 561/2006 lay down a series of rules governing driving times, breaks and rest periods for drivers of vehicles that fall within the scope of that regulation.

48 Under, in particular, Article 13(1)(d) of Regulation No 561/2006, Member States are nevertheless permitted to grant exceptions from those rules laid down in Articles 5 to 9 of that regulation, which are applicable notably to carriage by vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used by universal service providers, as defined in Article 2(13) of Directive 97/67, to deliver items as part of the universal service.

49 Since the Federal Republic of Germany has exercised the power granted by Article 13(1)(d) of Regulation No 561/2006, it is necessary to determine the scope of the exception laid down by that provision.

50 It must be pointed out in that regard that, as an exception from Articles 5 to 9 of Regulation No 561/2006, the conditions for applying the first subparagraph of Article 13(1)(d) of that regulation are to be interpreted strictly (see, by analogy, in relation to the second subparagraph of Article 13(1)(d) of that regulation, judgment of 28 July 2011, Seeger, C-554/09, EU:C:2011:523, paragraph 33, and, in relation to Article 13(1)(p) of Regulation No 561/2006, judgment of 7 February 2019, NK, C-231/18, EU:C:2019:103, paragraph 21). Furthermore, the scope of that exception must be determined taking into account the wording, context and aims of the legislation at issue in the main proceedings.

51 As regards the wording of Article 13(1)(d) of Regulation No 561/2006, it must be observed that that provision expressly covers vehicles used to deliver ‘items as part of the universal service’. Thus, the exception set out in that provision is circumscribed by the type of item delivered using the vehicles concerned, which suggests that the EU legislature wished not to include within the scope of that exception all vehicles of universal postal service providers, but only those carrying items covered by the universal postal service.

52 Consequently, the exception at issue in the main proceedings cannot be interpreted as covering vehicles used to deliver, in addition to items attributable to the universal postal service, other items that do not come under that service.

53 That interpretation cannot be invalidated by the arguments relating to the context of that exception, put forward by Deutsche Post and by the Polish Government, to the effect that the EU legislature’s choice of the term ‘exclusively’ in relation to the exceptions in Article 13(1)(e), (i) and (o) of Regulation No 561/2006 proves that the EU legislature’s intention, as regards the exception in Article 13(1)(d) of that regulation, was not to restrict the scope of that exception to carriage by means of vehicles used exclusively for the delivery of items as part of the universal service, but to include within it also those cases in which the vehicles are used only partly for the delivery of such items.

54 As the Commission in essence submits, in its written observations, the absence of the term ‘exclusively’ in the wording of one of the exceptions listed in Article 13(1) of Regulation No 561/2006 does not necessarily have to lead to the contrary inference that it should be interpreted broadly. It is sufficient, in that regard, to recall that the Court has already held, in the case of the use, albeit only partial, of vehicles for purposes other than those expressly referred to in Article 13(1) of Regulation No 561/2006, that the exceptions laid down by that provision are not applicable (see, to that effect, judgment of 13 March 2014, A. Karuse, C-222/12, EU:C:2014:142, paragraphs 31 and 35).

55 In addition, the interpretation of the exception set out in Article 13(1)(d) of Regulation No 561/2006 upheld by the Court in paragraph 52 of the present judgment is borne out by the aims of that regulation, which must be taken into account for the purposes of determining the scope of that exception (see, to that effect, judgment of 13 March 2014, A. Karuse, C-222/12, EU:C:2014:142, paragraph 28 and the case-law cited).

56 In that regard, it should be recalled that, as has been noted in paragraph 46 of the present judgment, in accordance with recital 17 and Article 1 of Regulation No 561/2006, the aims of that regulation are to harmonise the conditions of competition with regard to the road sector and to improve social conditions for employees and road safety by imposing, inter alia, rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road.

57 A broad interpretation of the exception set out in Article 13(1)(d) of Regulation No 561/2006 could result in Deutsche Post drivers - that is to say, a large number of drivers - no longer benefiting from the protection of their working conditions as laid down by Regulation No 561/2006, which would run counter to the objective of improving social conditions for those employees. Moreover, the effect of such an extension of the exception provided for in Article 13(1)(d) of Regulation No 561/2006 is likely to be that all Deutsche Post vehicles - that is to say, a large number of vehicles - might legally be driven by such drivers for long hours without a rest, which would be likely seriously to undermine the objective of road safety (see, by analogy, judgment of 28 July 2011, Seeger, C-554/09, EU:C:2011:523, paragraphs 35 and 36).

58 In addition, such a broad interpretation of the exception at issue in the main proceedings would be likely also to undermine the objective of eliminating disparities capable of distorting competition in the road transport sector. An undertaking such as Deutsche Post carrying out its activities in the field of the universal postal service, but which also supplies ordinary postal services, while exempted from the requirements laid down in Articles 5 to 9 of Regulation No 561/2006, would thus enjoy a competitive advantage over competing undertakings, such as UPS Deutschland and others, which only supply ordinary postal services (see, to that effect, in particular, judgment of 13 March 2014, A. Karuse, C-222/12, EU:C:2014:142, paragraph 32).

59 In particular, as regards vehicles within the scope of Regulation No 561/2006, an undertaking such as Deutsche Post could save the cost of installing and maintaining tachographs in the vehicles it uses, as against other competing undertakings.

60 It follows that the answer to the first question, in Cases C-203/18 and C-374/18, respectively, is that Article 13(1)(d) of Regulation No 561/2006 must be interpreted as meaning that the exception which it lays down covers only vehicles or combinations of vehicles that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service.

61 In the light of the answer given to those questions, it is not necessary to answer the second question referred for a preliminary ruling in Cases C-203/18 and C-374/18, respectively.

62 By its fourth question in Case C-374/18, the referring court asks, in essence, whether Article 3(1) of Directive 97/67 must be interpreted as meaning that the fact that add-on services - such as collection with or without a time slot, a minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery and a preferred delivery day and time - are provided in connection with an item precludes that item from being regarded as being delivered within the scope of the ‘universal service’ under that provision and, therefore, as being an item delivered ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006.

63 In that regard, it is clear from Article 3(4) and (5) of Directive 97/67 that the universal postal service, which the Member States are required to guarantee to users, includes minimum facilities of clearance, sorting, transport and distribution of packages up to 10 kilograms, a limit which may be increased to 20 kilograms.

64 In addition, it must be borne in mind with regard to express mail services specifically that, in accordance with recital 18 of Directive 97/67, the essential difference between those services and the universal postal service lies in the added value, whatever form it takes, provided by the express service and perceived by customers. Consequently, the most effective way of determining the extra value perceived by customers is to consider the extra price that customers are prepared to pay.

65 In that regard, the Court has recently ruled that delivery of an item with added value, that is an item with an add-on service, must be distinguished from the universal service as a basic service. What distinguishes express mail services from the universal postal service is the added value which they bring to customers, for which the customers agree to pay more. These are specific services, dissociable from the service of general interest, which meet the special needs of economic operators and call for certain additional services not offered by the traditional postal service (judgment of 31 May 2018, Confetra and Others, C-259/16 and C-260/16, EU:C:2018:370, paragraph 38 and the case-law cited).

66 In the present case, as the Advocate General notes in point 125 of his Opinion, it is common ground that basic services accompanied by add-on services, such as those listed by the referring court, are likely to provide added value to customers, who are thus willing to pay a higher price to benefit from those add-on services.

67 It follows that such services, which are more akin to express mail services, cannot be considered to be covered by the ‘universal service’ within the meaning of Article 3(1) of Directive 97/67.

68 In the light of the foregoing considerations, the answer to the fourth question is that Article 3(1) of Directive 97/67 must be interpreted as meaning that the fact that add-on services - such as collection with or without a time slot, a minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery and a preferred delivery day and time - are provided in connection with an item precludes that item from being regarded as being delivered within the scope of the ‘universal service’ under that provision and, therefore, as being an item delivered ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006.

69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. A provision of national law, such as that at issue in the main proceedings, which reproduces verbatim the provisions of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, must - in so far as it applies to vehicles with a maximum permissible mass of more than 2.8 tonnes but not exceeding 3.5 tonnes and which, as a result, do not fall within the scope of Regulation No 561/2006, as amended by Regulation No 165/2014 - be interpreted exclusively on the basis of EU law, as interpreted by the Court of Justice, where those provisions have, directly and unconditionally, been rendered applicable to such vehicles by national law.

2. Article 13(1)(d) of Regulation No 561/2006, as amended by Regulation No 165/2014, must be interpreted as meaning that the exception which it lays down covers only vehicles or combinations of vehicles that are used exclusively, during a particular transport operation, for the purpose of delivering items as part of the universal postal service.

3. Article 3(1) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, must be interpreted as meaning that the fact that add-on services - such as collection with or without a time slot, a minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery and a preferred delivery day and time - are provided in connection with an item precludes that item from being regarded as being delivered within the scope of the ‘universal service’ under that provision and, therefore, as being an item delivered ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006, as amended by Regulation No 165/2014.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Deutsche Post and Leymann (Judgment) [2019] EUECJ C-203/18 (21 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C20318.html Cite as: EU:C:2019:999, ECLI:EU:C:2019:999, [2019] EUECJ C-203/18

Court of Justice of the European Communities (including Court of First Instance Decisions)