Progress of Mobility Package case in favour of Lithuania: insights of representing lawyers

Ellex Valiunas law firm together with the Ministry of Justice are representing Lithuania’s interests in the Mobility Package case before the Court of Justice of the European Union (CJEU), in which a favourable to Lithuania opinion of the Advocate General has been published this week. This is an unprecedented case so far, which gives Lithuania’s representatives an opportunity to defend the national interests of hauliers in unison with other Member States of the European Union (EU). Whatever the final outcome of the case will be (as the Advocate General’s opinion only gives a reasonable expectation of a favourable judgement of the court), this case will go down in the history of EU law as unique.

Unique precedent

The contested Mobility Package is a set of EU rules for undertakings that organise commercial road transport activities and for their employed staff. This set of rules, which was substantially amended in July 2020, laid down updated rules on the return of vehicles to the place of establishment of the undertaking at fixed periods, on cabotage operations, and on the organisation of the work of employees. The introduced new set of rules had a direct discriminatory impact on the activity of hauliers of the Member States on the periphery of the European Union (including islands such as Malta).

The Mobility Package case was initiated back in autumn 2020 when Lithuania brought actions against some provisions of the Mobility Package that may be contrary to EU law. This is the first time that Lithuania is challenging regulations and directives adopted under the ordinary legislative procedure by the European Parliament and the Council before the CJEU. Apart from Lithuania, actions for annulment of certain provisions of the Mobility Package have been brought Malta, Cyprus, Poland, Romania, Bulgaria, and Hungary. Other countries, such as Latvia and Estonia, also support Lithuania’s actions.

In April this year, the CJEU examined the Member States’ actions at a two-day oral hearing, with the participation of 13 Member States. During the hearing, Lithuania’s representatives from the Ministry of Justice and Ellex Valiunas also presented Lithuania’s position regarding the contradiction of the provisions of the Mobility Package to the EU law. The representatives were supported by a team of experts from the relevant ministries, including the Ministry of Transport and Communications and the Ministry of Social Security and Labour.

According to Agnė Kisieliauskaitė and Gintarė Taluntytė, EU law experts at Ellex Valiunas representing Lithuania in the case, this is one of the biggest proceedings for the annulment of adopted EU legislative acts examined by the CJEU to date. The importance of the case is confirmed not only by an unusually large number of the Member States challenging the Mobility Package, but also by the fact that a Grand Chamber consisting of fifteen judges of the CJEU was formed to hear the case. Due to the complexity of the case, it has been pending for more than three years now.

Lithuania’s arguments have already been heard

On Tuesday, the opinion of an Advocate General of the CJEU was published in the case of the Mobility Package, suggesting that the CJEU should annul the Mobility Package’s requirement for the mandatory return of a truck to its country of origin every eight weeks.

Lithuania’s position in the Mobility Package case is that the aforementioned requirement was adopted by the European Parliament and the Council without making an analysis of the economic, social and environmental impact of this obligation and, consequently, without assessing its incompatibility with the EU environmental protection requirements and implications for the standard of living and level of employment in the peripheral Member States of the European Union. The Advocate General agreed with Lithuania’s arguments that without carrying out an assessment of the impact, the EU legislator could not assess the proportionality of the contested provision. For this reason, the Advocate General in his opinion proposes that the CJEU should annul the obligation for the mandatory regular return of a truck.

Besides, the opinion of the Advocate General also brings clarity to other issues related to the interpretation of the Mobility Package. One of the regulations of the Mobility Package sets forth an obligation for transport undertakings to return the driver to his place of residence or the undertaking’s operational centre every four weeks. Although this provision, according to its wording, should be understood as setting forth an obligation for an undertaking only to provide such an opportunity, the authorities of some EU Member States have interpreted it as imposing an obligation on the employee to return, without allowing him to choose where he wants to spend his rest time.

In other words, if a truck driver from an undertaking registered in Lithuania after four weeks of working abroad wants to go straight to Italy on a holiday with his family, he cannot do so – the driver must first return to Lithuania in order for an undertaking not to be fined. According to Ellex Valiunas’ experts, this provision was interpreted in such a way (quite unreasonably) by, for example, the French authorities.

The Advocate General has explained that the obligation imposed on the haulier by the said provision does not affect the freedom of the driver to choose the place where he wants to begin and spend his rest time. According to the wording of this provision, the driver must have the possibility to begin his rest time at one of two places (either at the driver’s place of residence or at the undertaking’s operational centre), but he is certainly not obliged to do so. Thus, a driver is free to begin and spend his regular weekly rest time wherever he wants.

Only the opinion is favourable. What comes next?

After the publication of the Advocate General’s opinion, all that remains is to wait for the judgement of the Grand Chamber of the CJEU, which, according to Ellex Valiunas’ experts, can realistically be expected in the second half of 2024. Although the opinion of the Advocate General provides only an independent expert’s suggested resolution of the case and it is not binding on the CJEU, the arguments and reasoning of the Advocate General in the opinion give a reasonable expectation of a favourable decision for Lithuania. If the CJEU agrees with the Advocate General, the requirement to return a truck every eight weeks would be annulled by the CJEU judgement, would cease to be valid and could no longer be applied from the date of the judgement.