Opinion of Advocate General Bot delivered on 19 September 2018

1. Directive 96/53

4. Recitals 1, 2, 3, 5, 7 and 12 of Directive 96/53 state that:

‘(1) … Council Directive 85/3/EEC of 19 December 1984 on the weights, dimensions and certain other technical characteristics of certain road vehicles [⁽⁵⁾] established, in the framework of the common transport policy, common standards permitting improved use of road vehicles in traffic between Member States;

(2) … Directive [85/3] has been significantly amended on many occasions; … on the occasion of its further amendment it should for reasons of clarity and rationality be recast in a single text together with Council Directive 86/364/EEC of 24 July 1986 relating to proof of compliance of vehicles with Directive [85/3] [⁽⁶⁾];

(3) … differences between standards in force in the Member States with regard to the weights and dimensions of commercial road vehicles could have an adverse effect on the conditions of competition and constitute an obstacle to traffic between Member States;

…

(5) … the abovementioned standards reflect a balance between the rational and economical use of commercial road vehicles and the requirements of infrastructure maintenance, road safety and the protection of the environment and the fabric of [life];

…

(7) … additional technical requirements related to the weights and dimensions of vehicles may apply to commercial vehicles registered or put into circulation in a Member State; … these requirements must not constitute an obstacle to the circulation of commercial vehicles between Member States;

…

(12) … for the other vehicle characteristics, Member States are authorised to apply in their territory different values from those laid down in this Directive only to vehicles used in national traffic’.

5. Under Article 1(1) of that directive:

‘This Directive applies to:

1. the dimensions of motor vehicles in categories M2 and M3 and their trailers in category 0 and motor vehicles in categories N2 and N3 and their trailers in categories 03 and 04, as defined in Annex II to Directive 2007/46/EC of the European Parliament and of the Council [of5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive)⁽⁷⁾];

2. the weights and certain other characteristics of the vehicles defined in (a) and specified in Annex I (2) [⁽⁸⁾] to this Directive.’

6. Article 2 of that directive provides that:

‘For the purposes of this Directive:

• …

• “vehicle combination” shall mean either:

  • a road train consisting of a motor vehicle coupled to a trailer; or

  • an articulated vehicle consisting of a motor vehicle coupled to a semi-trailer,

• …

• “maximum authorised weight” shall mean the maximum weight for use of a laden vehicle in international traffic,

• “maximum authorised axle weight” shall mean the maximum weight for use in international traffic of a laden axle or group of axles,

• “indivisible load” shall mean a load that cannot, for the purpose of carriage by road, be divided into two or more loads without undue expense or risk of damage and which owing to its dimensions or mass cannot be carried by a motor vehicle, trailer, road train or articulated vehicle complying with this Directive in all respects,

…’

7. Article 3(1) of the same directive provides that:

‘A Member State may not reject or prohibit the use in its territory:

• in international traffic, of vehicles registered or put into circulation in any other Member State for reasons relating to their weights and dimensions,

• in national traffic, of vehicles registered or put into circulation in any other Member State for reasons relating to their dimensions,

provided that such vehicles comply with the limit values specified in Annex I.

This provision shall apply notwithstanding the fact that:

1. the said vehicles are not in conformity with the requirements of that Member State with regard to certain weight and dimension characteristics not covered by Annex I;

2. the competent authority of the Member State in which the vehicles are registered or put into circulation has authorised limits not referred to in Article 4(1) exceeding those laid down in Annex I.’

8. Article 7 of Directive 96/53 is worded as follows:

‘This Directive shall not preclude the application of road traffic provisions in force in each Member State which permit the weight and/or dimensions of vehicles on certain roads or civil engineering structures to be limited, irrespective of the State of registration of such vehicles or the State where such vehicles were put into circulation.

This includes the possibility to impose local restrictions on maximum authorised dimensions and/or weights of vehicles that may be used in specified areas or on specified roads, where the infrastructure is not suitable for long and heavy vehicles, such as city centres, small villages or places of special natural interest.’

9. Annex I to that directive is entitled ‘Maximum weights and dimensions and related characteristics of vehicles’.⁽⁹⁾

10. Point 3 of that annex is entitled ‘Maximum authorised axle weight of the vehicles referred to in Article [1(1)(b)] (in tonnes)’. Points 3.1 and 3.4 indicate as follows:

‘3.1

Single axles Single non-driving axle

10 tonnes

…

3.4	Driving axle [(10)]
3.4.1	Driving axle of the vehicles referred to in 2.2.1 [(11)] and 2.2.2 [(12)]	11.5 tonnes
3.4.2	Driving axle of the vehicles referred to in points 2.2.3 [(13)], 2.2.4 [(14)], 2.3 [(15)] and 2.4 [(16)]	11.5 tonnes

…’.

2. Decision No 1692/96/EC

11. Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996 on Community guidelines for the development of the trans-European transport network,⁽¹⁷⁾ which was replaced by Decision No 661/2010/EU,⁽¹⁸⁾ the latter being replaced in turn by Regulation (EU) No 1315/2013,⁽¹⁹⁾ in Article 2, entitled ‘Objectives’, provided as follows:

‘1.

The trans-European transport network shall be established gradually by 2010 [⁽²⁰⁾] by integrating land, sea and air transport infrastructure networks throughout the Community in accordance with the outline plans indicated on the maps in Annex I and/or the specifications in Annex II.

2.

The network must:

1. ensure the sustainable mobility of persons and goods within an area without internal frontiers under the best possible social and safety conditions, while helping to achieve the Community’s objectives, particularly in regard to the environment and competition, and contribute to strengthening economic and social cohesion;

…’

3. 2003 Act of Accession

12. Article 24 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded⁽²¹⁾ provides as follows:

‘The measures listed in Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV to this Act shall apply in respect of the new Member States under the conditions laid down in those Annexes.’

13. Annex XII to the 2003 Act of Accession is entitled ‘List referred to in Article 24 of the Act of Accession: Poland’. Point 8 of that annex, headed ‘Transport policy’, declares, in paragraph 3, that Directive 96/53 is applicable on the following terms:

‘31996 L 0053: … Directive 96/53 … as last amended by:

• 32002 L 0007: Directive 2002/7/EC of the European Parliament and of the Council of [18 February 2002⁽²²⁾].

By way of derogation from Article 3(1) of Directive [96/53], vehicles complying with the limit values of category 3.4 of Annex I to that Directive may only use non-upgraded parts of the Polish road network until 31 December 2010 if they comply with Polish axle-weight limits. As from the date of accession, no restrictions may be imposed on the use, by vehicles complying with the requirements of Directive [96/53], of the main transit routes set out in Annex I to Decision [No 1692/96].

Poland shall adhere to the timetable set out in the tables below for the upgrading of its main road network, as contained in Annex I to Decision [No 1692/96]. Any infrastructure investments involving the use of funds from the [EU] budget shall ensure that the arteries are constructed or upgraded to a load bearing capacity of 11.5 tonnes per axle.

In line with the completion of the upgrading, there shall be a progressive opening of the Polish road network, including the network as contained in Annex I of Decision [No 1692/96], for vehicles in international traffic complying with the limit values of the Directive. For the purpose of loading and unloading, where technically possible, the use of non-upgraded parts of the secondary road network shall be allowed during the entire transitional period.

…’

14. The timetable for upgrading the main Polish road network to which the third subparagraph of Annex XII, point 8.3 of the 2003 Act of Accession refers is laid down in eight tables, and spanning the period from 1 January 2004 to 1 January 2011.

1. Restriction of international traffic to only the roads in the trans-European transport network and certain national roads

37. The Commission argues, in the first place, that the restriction under the Polish legislation conflicts with Article 3(1) of Directive 96/53, which lays down a regime for the free movement of vehicles with a maximum driving axle weight of 11.5 tonnes.

38. In that respect it submits, first, that, although Article 41(1) of the Law on Public Roads establishes the principle that vehicles with a maximum driving axle weight of 11.5 tonnes may use all public roads, Article 41(2) and (3) includes derogations that render Article 41(1) meaningless inasmuch as they have the effect of excluding those vehicles from nearly 97% of the road network.

39. It states, secondly, that it is apparent from the information supplied by the Republic of Poland on 29 June 2015 that less than 40% of the network of motorways and national roads is open, without restriction, to use by vehicles with a maximum driving axle weight of 11.5 tonnes, which represents less than 4% of the road network comprising motorways, national roads and the most important regional roads in Polish territory.

40. Thirdly, the Commission disputes the Republic of Poland’s argument that only the roads with the most international traffic, that is to say cross-border traffic on the trans-European road network, are subject to the requirements of Directive 96/53. The Commission asserts, giving several examples, that sections of roads affording access to large towns and cities involved in international transport and particularly in loading and unloading⁽³⁶⁾ cannot be used freely.

41. Furthermore, it emphasises that, contrary to the assertions of the Republic of Poland, Directive 96/53 does not include any restrictions, in accordance with the objectives of the directive since it came into force, and that the scope of application of the directive remained unaltered after the creation of the trans-European transport network by Decision No 1692/96, which has the same objective of facilitating the movement of goods. The Commission states that, although Article 2 of Directive 96/53 does not contain a definition of international traffic, recitals 3 and 7 of that directive, which refer to the circulation of traffic between Member States, read in the light of recital 12, indicate that that concept should be interpreted as relating to all cross-border traffic irrespective of road type. Any other interpretation would render Article 7 of Directive 96/53 ineffective.

42. Fourthly, addressing the Republic of Poland’s arguments based on the condition of the road infrastructure, the Commission notes that, although there is no obligation under Directive 96/53 to build all public roads in order to ensure that the criteria in points 3.1 and 3.4 of Annex I can be met, the Member States must nevertheless comply with those criteria. Furthermore, roads which can bear a weight of 10 tonnes can, according to the Commission, bear limited traffic consisting of vehicles with a driving axle weight of 11.5 tonnes.

43. It adds that the Republic of Poland may not justify its failure to comply with the rules laid down in Directive 96/53 concerning the maximum authorised axle weight by claiming that it is seeking the balance referred to in recital 5, when those rules arise from the need for such balance.

44. As regards the category and the location of the public roads, many of them unmetalled, to which the Republic of Poland refers, the Commission does not consider this argument to be relevant since the debate is not about the roads on which there are no important loading and unloading points the condition of which could justify their falling within Article 7 of Directive 96/53, but about the majority of the metalled roads which may be used.

45. Fifthly, the Commission disputes the Republic of Poland’s argument based on point 8.3 of Annex XII of the 2003 Act of Accession, on the ground that the first subparagraph of point 8.3 clearly required roads other than those in the trans-European road transport network to be adapted for international traffic after 31 December 2010, without waiting further for the progressive upgrading of the national road network as was permitted during the transitional period.

46. In addition, it states that, from 2004, several thousand kilometres of roads other than national roads or those in the trans-European transport network were upgraded as part of the national programme for the reconstruction of local roads, financed by European funds. However, according to the Polish regulations, those municipal or district roads are, in principle, subject to the 8-tonne single axle weight limitation, with no distinction between upgraded roads and other roads. The situation has remained the same since entry into force of the rozporządzenie Ministra Infrastruktury i Budownictwa w sprawie wykazu dróg krajowych oraz dróg wojewódzkich, po których mogą poruszać się pojazdy o dopuszczalnym nacisku pojedynczej osi do 10 t, oraz wykazu dróg krajowych, po których mogą poruszać się pojazdy o dopuszczalnym nacisku pojedynczej osi do 8 t (Regulation of the Minister for Infrastructure and Construction on the list of national and regional roads that can be used by vehicles with an authorised single axle weight of 10 tonnes and the list of national roads that can be used by vehicles with an authorised single axle weight of 8 tonnes)⁽³⁷⁾ of 21 April 2017, to which the Republic of Poland refers, which came into force after the action for failure to fulfil obligations was brought, and has meant that vehicles with a maximum axle weight compliant with the requirements of Directive 96/53 still cannot use nearly 45% of the national roads without a permit. The Commission is also of the view that inasmuch as vehicles may use the roads after obtaining a permit, the Republic of Poland’s plea in defence, invoking the ongoing upgrading of the road network, is unfounded.

47. The Commission argues, in the second place, that the restrictions under Article 41(2) and (3) of the Law on Public Roads are based on a misinterpretation of Article 7 of Directive 96/53 according to which there can be an exception to the principle of free movement for vehicles with a maximum driving axle weight of 11.5 tonnes. The Commission recalls, first, that the Republic of Poland cannot claim that the restriction relates to roads that do not carry international traffic, principally on the ground that no EU act makes such a distinction.

48. The Commission states, secondly, that the sole possible derogation from the principle of free movement on all roads may be based only on the roads being unsuitable for use by vehicles with a maximum driving axle weight of 11.5 tonnes. It argues that the criteria to be taken into consideration are the safety of that traffic, the load-bearing capacity of the engineering structures and the volume of road traffic. It notes, in that respect, that Article 7 of Directive 96/53, which establishes a right to derogate from the principle of free movement ‘on certain roads or civil engineering structures’, must be interpreted restrictively. That being so, the Commission claims that there is no basis for derogations to be applied to 97% of the Polish road network or, more specifically, to all local roads.

49. Lastly, the Commission observes that the restrictions on access to certain Polish public roads are not founded on considerations relating to the condition of those roads or sections of them, as is apparent from the system for issuing unlimited road use permits.

2. The requirement to be in possession of a special permit to use other roads

50. The Commission claims that the regime prohibiting road use unless a permit is obtained is contrary to Directive 96/53 in so far as it limits and hinders the free movement of vehicles.

51. It observes that, under the restrictive regime covering regional, district and municipal roads, permits must be applied for, for each of those roads, from various authorities for a single journey. It considers that, in the absence of a one-stop shop, and given the time it takes to obtain the permit, and the fees, the system in place is costly, time-consuming and such as to discriminate indirectly against non-resident hauliers and hauliers from the Member States. It states that, under Article 64(2) of the Law on Road Traffic, category IV permits, which allow vehicles with a driving axle weight of 11.5 tonnes to circulate on national roads, may not be used when transporting divisible loads, whereas such loads comprise the majority of loads carried by road. The work of transport companies is therefore complicated by the need to use a larger number of lorries. The Commission emphasises that all those disadvantages motivated the filing of complaints that gave rise to its action for failure to fulfil obligations. It also claims that there is a serious restriction on the freedom to provide road services.

52. According to the Commission, the Republic of Poland’s argument that the permit regime at issue does not contravene Directive 96/53, given that it is applied benevolently and without restriction or discrimination, is not only irrelevant in view of the principle of free movement laid down in that directive, but also reveals that protecting the road infrastructure and controlling the number of vehicles using it cannot serve to justify the system put in place by the Polish legislature.

53. The Commission adds that the Republic of Poland cannot maintain that the obligation to obtain a permit is intended to encourage hauliers to use parallel roads more suitable for lorry traffic, since that explanation is contrary to Article 3 of that directive.

54. Moreover, the Commission observes, by way of example, that, in respect of national road DK 92 between Berlin (Germany) and Warsaw (Poland), that objective has been achieved by other means, namely by levying a fee on lorries, which, unlike the permit regime, is a reasonable traffic management method. It also notes that on some roads, in order to access areas for the loading and unloading of goods, there is no option but to obtain a permit.

1. Infringement of Article 3 of Directive 96/53

2. Infringement of Article 7 of Directive 96/53

70. The Republic of Poland sets out its arguments, also in the alternative, on the ground that it considers that its rules comply with Article 3 of Directive 96/53.

71. It submits that the plea in law alleging infringement of Article 7 of Directive 96/53 is based on an overly restrictive interpretation of that provision which conflicts with its wording since, first, the scope of application of the first paragraph of Article 7 does not limit the restrictions to situations where roads are unsuitable for the vehicles in question and to ‘certain sections of road’, and, secondly, the situations to which the second paragraph refers are merely examples.

72. It infers from this that it is entitled to restrict circulation not only on roads unsuitable for use by heavy vehicles, but also on the parts of the road network on which, on account of their structure, it would be dangerous for such vehicles to pass through, or on account of there being a large number of bridges whose low weight-bearing capacity, with load ratings of between 20 and 30 tonnes, the Commission has overlooked.

73. The Republic of Poland is also of the view that, in relation to a small number of local roads, which have already been adapted for use by vehicles with an authorised single driving axle weight of 11.5 tonnes, the right to impose restrictions arises from the first paragraph of Article 7 of Directive 96/53, on the ground that there is no practical benefit in allowing such vehicles to use those roads because they are generally sections that are not connected to the rest of the road system and cannot ensure smooth traffic flow.

74. As regards the examples the Commission gives of restrictions on heavy vehicle traffic in Polish territory, the Republic of Poland indicates that heavy vehicles are now authorised to circulate in most of those situations and that, where that was not the case on the date on which it filed its observations,⁽⁴¹⁾ appropriate modifications are planned.

75. Furthermore, it notes that international traffic, within the meaning of Article 3 of Directive 96/53, is not concentrated on those sections and notes that the transitional provisions in the 2003 Act of Accession require only a progressive opening to heavy vehicle traffic of roads that do not form part of the trans-European transport network.