Background
'Cabotage' is defined as the national transport services carried out by non-resident hauliers for hire or reward. Hauliers from other EU or European Economic Area states can carry out cabotage, which is governed by EU Regulation 1072/2009 on common rules for access to the international road haulage market.
Finland implemented early the cabotage regulations set out in the EU legislative package on road transport. However, the Finnish cabotage restrictions were stricter than those of the regulation, and the European Commission asked Finland to amend its legislation to comply with EU law. In December 2015, in order to avoid infringement proceedings before the European Court of Justice (ECJ), the Finnish government proposed a bill amending the Act on Commercial Transport of Goods on the Road (93/2006).
According to Article 8 of the regulation, hauliers can carry out with the same vehicle or, in the case of a coupled combination, the motor vehicle of the same vehicle up to three cabotage operations within a seven-day period starting the day after the unloading of the international transport. All or some of these three cabotage operations can be performed in different member states, not just the member state where the international transport was delivered; however, this is on condition that they are limited to one cabotage operation per member state within three days of entering the member state without cargo.
On the grounds of legal security, the Finnish legislature considered that all of the parties involved (eg, the parties to the transport contract and the authorities) must know clearly in advance the requirements for performing cabotage services in Finland. It also considered that a member state is entitled to add further definitions to the regulation.
Section 6a of the Act on Commercial Transport of Goods on the Road, which came into force on August 14 2009, defines clearly the meaning and temporary nature of cabotage operations. According to Section 6a, three national cabotage transport operations are calculated so that the first cabotage operation starts from the first loading, succeeded by the unloading of the international carriage. The first cabotage operation is finished when the cargo is unloaded the first time and so on, meaning that each unloading is regarded as one cabotage operation. The seven-day period starts from the day when the international load is unloaded in Finland. In April 2013 the section was amended to state that, on its own, the disconnecting of the loaded trailer is regarded as an unloading of the cargo.
The temporary nature of a cabotage operation is also defined in Section 6a. Cabotage operations based on non-fixed term contracts or fixed-term contracts of longer than one week, or which have been carried out by a truck having more than 10 cabotage operations within last three months, are not regarded as temporary.
In April 2015 the European Commission asked Finland to implement the regulation fully in order to ensure the uniform application of the criteria according to which hauliers have access to the national transport markets. According to the commission, EU rules allow hauliers to carry out up to three national cabotage operations in another member state following international carriage from another member state or a third country, and that no further restrictions are laid down in EU law. The commission stated that Finnish law imposes a further limitation of cabotage to 10 operations in a three-month period and considers that each unloading corresponds to one cabotage operation. In the commission's view, these restrictions are contrary to EU law.
Although the Finnish legislature believed that the wording of the regulation justified the stricter cabotage regulations imposed by Finnish law, the government decided to overrule the national restrictions and follow the regulation. This decision was supported by the understanding that the commission is moving towards even greater liberalisation of road transport regulation.
At present, the government bill is before the Transport and Communications Committee of Parliament. If approved, the amendment of Section 6a of the Act on Commercial Transport of Goods on the Road will overrule national Finnish restrictions and instead refer solely to Article 8 of the regulation. Section 6a will include also reference to the Act on Certain Types of International Combined Transport (440/2000), by which Finland implemented EU Directive 92/106/EEC on the establishment of common rules for certain types of combined transport of goods between member states. National road carriage, which is not part of a combined transport operation under the directive, falls within the definition of 'cabotage', and accordingly should be governed by the regulation.
According to the goverment bill, the amendment would increase cabotage operations but not necessarily substantially, considering Finland's remote position compared to mainstream European road transport. The bill also predicts that the grey economy will increase in the transport sector. The bill has raised some concerns, particularly in the Finnish road transport industry; it has been argued that Finnish law is not in conflict with EU law and that, if necessary, Finland should defend its legislation before the ECJ.
For further information on this topic please contact Matti Komonen at Hammarström Puhakka Partners, Attorneys Ltd by telephone (+358 9 474 2207) or email ([email protected]). The Hammarström Puhakka Partners, Attorneys Ltd website can be accessed at www.hpplaw.fi.
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