On 14 September 2023, the Court of Justice handed down its judgment in Case C‑246/22, BW, on the interpretation of Directive 92/106/EEC and of Regulation (EC) No 1072/2009. The request has been made in proceedings between BW, the manager of TIM-Trans Impex SRL, and the Bundesamt für Güterverkehr (German Federal Office for the Carriage of Goods) concerning the imposition of an administrative fine for infringement of provisions relating to cabotage operations.
During on-the-spot checks carried out at Contargo Rhein-Neckar GmbH, the Federal Office objected to 60 transport operations carried out on behalf of that company by TIM-Trans Impex SRL, accusing BW of having transported, on at least 57 occasions, empty containers which did not come within the privileged treatment afforded to combined transport, thereby constituting cabotage operations, and issuing her with an administrative fine of EUR 8 625.
BW, therefore, brought an action against that decision before the Amtsgericht Köln (Local Court of Cologne; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask the Court of Justice whether Article 1 of Directive 92/106 must be interpreted as meaning that the road transport of empty containers between a container terminal and a point where the goods are loaded or unloaded falls within the concept of “combined transport” within the meaning of that article, such that it benefits from the liberalised scheme laid down for initial and/or final road transport legs which form an integral part of a combined transport operation, within the meaning of Article 4 of that directive, and which are exempt from the application of the provisions relating to cabotage laid down by Regulation No 1072/2009.
According to the Court, despite it is apparent from the wording of Article 1 of Directive 92/106 that the combined transport operations referred to in that article are transport of goods operations, that does not rule out the possibility that some of those operations take place with the empty container, provided that the unladen journey is carried out in immediate connection with the transport of goods. Where the initial or final road leg of a combined transport operation, within the meaning of that directive, is provided, within a Member State, by a haulier established in another Member State, therefore, the only interpretation that facilitates the objective of promoting recourse to such an operation is that the transport of the empty container before or after that of the goods themselves forms part of that combined transport.