Is the obligation requiring vehicles to return every eight weeks to the operational centre of the transport undertaking still good EEA law?
Authors: Halvard Haukeland Fredriksen and Tollef Otterdal Heggen, both University of Bergen
On 4 October of this year, the ECJ annulled a provision requiring road transport operators to return vehicles to their Member State of establishment every eight weeks. As the annulled provision is incorporated into the EEA Agreement, its annulment as a matter of EU law raises complex questions of EEA law.
The ECJ’s ruling on the Mobility Package and consequences in EU law
In a much-anticipated Grand Chamber judgment of 4 October 2024, the ECJ confirmed the validity of most of the amendments to the EU legislation applicable to the road transport sector introduced by the so-called Mobility Package of 2020 (Joined Cases C-541/20 to C-555/20 Lithuania and Others v Parliament and Council). However, one important provision of one of the Regulations in the package was annulled: an obligation on transport undertakings to return vehicles used in international carriage to the operational centre in the Member State of establishment at least every eight weeks. As that provision was not part of the Commission’s original proposal, it was not included in the impact assessment. Whilst not in itself decisive, as the EU legislature is neither required to have at its disposal an impact assessment nor bound by any such, Parliament and Council failed to convince the ECJ that they had sufficient information through other means to enable them to assess properly the proportionality of the return obligation.
As the ECJ did not suspend the effects of the ruling to enable the EU legislature to remedy the lack of a proper proportionality assessment, the legal situation under EU law is clear: there is no basis in EU law for Member States to oblige providers of road transport services to return their vehicles to the operational centre in the home state every eight weeks. It remains to be seen whether the EU legislature will reintroduce such an obligation, based on a proper assessment of its proportionality.
But what about the EEA?
The Regulation containing the now annulled return obligation was incorporated into the EEA Agreement without any adaptations on 18 March 2022 by EEA Joint Committee Decision No 77/2022. That decision entered into force on 1 August 2023, upon the notification from Iceland and Norway that all constitutional requirements had been fulfilled.
In Norway, the package was implemented into Norwegian law by a regulation of 12 October 2022, which entered into force on 1 November 2022 (9 months before it became part of EEA law!). The legal basis for the Norwegian implementing regulation is the Road Transport Act of 21 June 2002 No 45. Section 41 of this act states that wilful or negligent violations of provisions in the act, or provisions in regulations adopted on the basis of the act, are punishable by fines. Thus, the black letter of Norwegian law obliges transport undertakings engaged in international carriage of goods to return their vehicles to their operational centre every eight weeks and threatens such undertakings with a fine if they fail to do so.
Decisions of the EEA Joint Committee to amend the annexes of the EEA Agreement are, as noted by the EFTA Court in Case E-6/01 CIBA, a simplified form of an international agreement between the EU and its Member States on the one hand, and the EFTA States party to the Agreement on the other. From this perspective, the starting point must be that a properly taken decision by the EEA Joint Committee cannot be affected by a subsequent ECJ ruling on the validity of the underlying EU legal act. Put simply and applied to the mobility package, the EU and the EEA EFTA States have agreed that providers of road transport services in the EEA have to return their vehicles to the operational centre of the transport undertaking every eight weeks. Or, if seen from the perspective of an EEA EFTA State which considers it desirable to limit the possibility of transport undertakings established in other EEA States to provide transport services on their territory, the EU has not only accepted that the EEA EFTA States may introduce an obligation on transport undertakings to return their vehicles to their operational centre every eight weeks, but even agreed to a decision requiring the EEA EFTA States to do so.
Furthermore, the Contracting Parties to the EEA Agreement have not vested any court (neither the ECJ nor the EFTA Court) with jurisdiction to review the decisions taken by the Joint Committee (cf. Art. 108 EEA).
As is well known to all EEA lawyers, however, the EEA Agreement is anything but an ordinary international agreement. The object and purpose of the Agreement is not simply to grant the parties reciprocal access to each other’s markets, but to integrate the EEA EFTA States of Iceland, Liechtenstein and Norway into the EU internal market. In order to achieve this, a very substantial part of the internal market acquis is incorporated into the Agreement and as such subjected to specific rules of interpretation intended to secure uniform application of EU and EEA law in a homogeneous European Economic Area with equal conditions of competition, and the respect of the same rules (Art. 1 EEA). If an EU legal act, or a provision therein, is allowed to remain applicable as a matter of EEA law despite being annulled as a matter of EU law, the objective of homogeneity is frustrated.
The easy way out: Getting the EEA Joint Committee to reinstate homogeneity
As EEA law currently stands, the obvious way to reinstate homogeneity in the wake of the ECJ’s ruling on the return obligation in the mobility package is for the EEA Joint Committee to remove the provision in question from the EEA Agreement. This approach was adopted in 2015 following the famous ruling in case C-362/14 Schrems I, in which the ECJ invalidated a Commission Decision allowing for transfer of personal data to the US. Just a little more than two months later, the Joint Committee deleted the Commission Decision in question from the EEA Agreement.
Even if the EEA Joint Committee reacts quickly, however, its decision will only have effect for the future (ex nunc), whereas a ruling from the ECJ declaring an EU legal act invalid usually has retroactive effect (ex tunc).
What is more, this approach will only work if all of the EEA EFTA States (as well as the EU) agree to it, which cannot be taken for granted. Indeed, it took to the date 11 years (!) from the ECJ annulled a provision of Directive 2004/113/EC on equal treatment between men and women in the access to and supply of goods and services, which allowed for sex as a factor in the assessment of insurance risks (C-236/09 Test-Achats), until the EEA Joint Committee Decision No 308/2021 deleting that provision from the EEA Agreement was ratified in Liechtenstein and thus finally entered into force on 1 March 2022.
How quickly the EEA Joint Committee will be able to react to the ECJ’s ruling on the return obligation in the mobility package remains to be seen.
Securing homogeneity by way of interpretation in light of other parts of EEA law?
What is the legal situation in the EEA pending a Joint Committee Decision removing the return obligation from the Agreement? Or to be more concrete: What if, for example, Norwegian authorities continue to enforce this obligation against Norwegian transport undertakings operating in Sweden under EEA law? Or call on Swedish authorities to enforce the return obligation against a Swedish transport undertaking exercising its EEA-based right to provide services in Norway?
Based on the EFTA Court’s strong defence of the homogeneity of the EEA throughout the Agreement’s 30 years of existence, a key question is to what extent the obligation on transport undertakings to return their vehicles to their operational centre every eight weeks can be ‘interpreted away’ in light of other parts of EEA law.
In cases where the legal basis upon which the ECJ has annulled an EU legal act is itself part of EEA law, the matter can arguably be construed as an internal conflict between two EEA norms in which the object and purpose of the EEA Agreement (a homogeneous EEA) calls for the norm annulled by the ECJ as a matter of EU law to yield also as a matter of EEA law. The obvious example is a case where the ECJ has considered an EU legal act to violate a fundamental right, which also has to be considered part of EEA law. As highlighted by the EFTA Court in numerous cases, provisions of EEA law are to be interpreted in light of fundamental rights which form part of the general principles of EEA law. More recently, the EFTA Court has held that the EEA States, in particular their courts, are under an obligation to ensure that the interpretation and application of acts incorporated into the EEA Agreement do not result in a conflict with fundamental rights protected by EEA law (Case E-1/20 Kerim, para. 43, later confirmed in e.g. Case E-10/23 X, para. 72).
As both the Schrems I and Test-Achats judgments mentioned above concerned fundamental rights (data protection and equality of men and women, respectively), it might be argued that the subsequent decisions by the EEA Joint Committee were not really necessary in order to maintain homogeneity (although clearly desirable for reasons of legal clarity). This argument is based an interpretation of the principle of homogeneity which entails that once it was clear that the Commission Decision allowing the transfer of personal data to the US (Schrems I) and the provision of Directive 2004/113/EC which allowed for sex as a factor in the assessment of insurance risks (Test-Achats), violated fundamental rights that form part not only of EU law but also of EEA law, both norms had to be ‘interpreted away’ as a matter of EEA law. However, considering the fuzzy nature of interpretation, and the limitations inherent in this exercise, this approach leaves much to be desired in terms of legal certainty.
Securing homogeneity by way of interpretation becomes even more difficult when the ground for annulment relied on by the ECJ is a procedural error. This is the case in the ruling on the mobility package, where the ECJ relied on the EU legislature’s insufficient substantiation of having performed a proper proportionality assessment. True enough, the applicant Member States also argued that the return obligation as such violated the principle of proportionality as well as numerous other principles of primary EU law (para. 687), but the annulment of the obligation on procedural grounds allowed the ECJ to hold that there was no need to consider these alternative grounds for annulment (paras. 739 and 740).
The validity of EU legal acts as a precondition for an EEA Joint Committee Decision?
The ECJ’s annulment of the return obligation on procedural grounds complicates the possible ‘transfer’ of the judgment to the EEA considerably. In theory, the EFTA Court might ‘go first’ and examine on its own whether the return obligation violates any EEA parallel to the many principles of substantive EU law brought forward by the applicant Member States before the ECJ, but this would be a truly delicate matter. Even if the EFTA Court adopts such an approach, acting as a sort of shadow EU constitutional court, homogeneity will only be secured if the contested provision is indeed found to breach one or more such substantive principles of EEA law.
An alternative is to consider – as a matter of principle – the validity of an EU legal act as a precondition for the application of an EEA Joint Committee Decision incorporating that act into the EEA Agreement. Given the fact that neither the EFTA Court nor the ECJ has been given jurisdiction to review the validity of decisions from the Joint Committee, this might admittedly come across as a fairly daring proposition. It is, however, the only alternative to maintain full homogeneity between EU and EEA law in cases where an EU legal act incorporated into the EEA Agreement has been struck down by the ECJ on grounds which cannot reasonably be transferred to the EEA setting.
Some might object that problems to homogeneity caused by delays in the Joint Committee is an unavoidable consequence of the institutional set-up of the EEA and thus nothing that the courts should try to remedy. This argument is supported by a comparison with divergencies created by delayed incorporation of EEA relevant EU legislation into the EEA Agreement – a problem which cannot be remedied by courts. In our view, however, delays in the deletion of legal acts annulled by the ECJ differ from delays in the updating of the Agreement with novel EEA relevant EU legislation. In the former cases, the EEA Joint Committee has indeed acted to secure homogeneity, and it has rather obviously done so based on the assumption that the EU legal act in question is valid as a matter of EU law. The subsequent annulment of the legal act by the ECJ frustrates this assumption.
Furthermore, considering the validity of the underlying EU act as a precondition for the applicability of the EEA Joint Committee Decision incorporating that act into the EEA Agreement is a suitable way to achieve homogeneity in a legally certain and practicable manner, which also alleviates the above-mentioned problems related to ex nunc and ex tunc applicability. This approach therefore seems preferable as EEA law currently stands, especially in view of the problems associated with achieving homogeneity by way of interpretation mentioned above.
Amending Protocol 1 EEA to solve the problem?
Even if one were to accept that the object and purpose of the EEA justifies considering the validity of an EU legal act as a precondition for the application of an EEA Joint Committee Decision incorporating that act into the EEA Agreement, a more solid legal basis would clearly be preferable for the future. In our view, the Contracting Parties should introduce into Protocol 1 EEA a provision to the effect that the annulment by the ECJ (or the General Court) of an EU act incorporated into the EEA Agreement renders that act null and void under EEA law as well.
Although this will help in cases where the ECJ has already annulled the act in question, it will not help when the question of the validity of the underlying EU act arises in proceedings before the EFTA Court before the ECJ has had a chance to address the matter. This is something we hope to be able to address on a later occasion.
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