The ordering of a road transport made by one of the largest freight forwarders in Sweden has been considered in accordance with the conditions for legal cabotage transports through a decision from the Court of Appeal over Skåne and Blekinge. The Court of Appeal, thus, changes the District Court’s judgment and acquits the freight forwarder. The central issue in the case was how the number of cabotage transports should be calculated.
A cabotage transport is a freight transport that may be performed on a temporary basis by a foreign carrier with a Community license within Sweden’s borders without a Swedish commercial traffic license. Regulations on cabotage transport are contained in Articles 2 and 8 of Regulation (EC) No 1072/2009 (hereinafter referred to as the Cabotage Regulation). The penal provision on liability for anyone who orders a cabotage transport carried out in violation of the Cabotage Regulation is found in Section 6 a § of the Ordinance (1998: 786) on international road transports in the European Economic Area (EEA).
The prosecutor’s action against the freight forwarder was based on the allegation that the foreign carrier had carried out freight transport in breach of the terms of the Cabotage Regulation, which state that the maximum number of cabotage operations allowed is three. In the case, it was a question of transport with one loading point and eight unloading points, according to eight consignment notes with as many senders as recipients. According to the prosecutor, this would mean eight cabotage transports.
The Court of Appeal addressed the important question of whether the transport, if it had been performed, would be assessed as one legal cabotage transport or exceed the permitted number of three transports. A key issue in this regard was how many loading and unloading locations one and the same cabotage transport can include.
The Court initially states that the Cabotage Regulation does not contain any guidance as to how many loading and unloading points one and the same cabotage transport may cover, nor what significance the number of senders or receivers of the goods has in that respect. The Court also notes that Sweden has also not adopted any implementing measures to clarify the meaning of the concept of cabotage transport in such a respect.
The Court further finds that the examination of whether the foreign carrier has infringed Article 8 (2) of the Cabotage Regulation by carrying out more than three cabotage operations, thus, falls entirely back on the meaning of that article as to what constitutes a cabotage operation. The Court then concludes that, in a case such as the one with one loading point and several unloading points, the wording of the article provides support that the procedure is to be judged as one cabotage transport.
The Court also concludes by pointing out that, in the absence of implementing rules, it would be contrary to the requirement that criminal provisions must be clear in order to be able to be used as a basis for criminal liability, if Swedish courts were to interpret the article in a way that states a limit on the number of unloading points that can be accepted within the framework of one single cabotage transport. According to the Court, it would therefore be contrary to the principle of legality to consider that more than three cabotage transports were about to be carried out in this case.
It was also part of the matter that the transport in the current situation had started but did not reach its destination when the road inspection was carried out. Since the criminal liability according to the wording of the provision presupposes that the transport in question has "been carried out" in violation of Article 8 of the Cabotage Regulation, the question therefore also arose as to whether this requisite was fulfilled in the current situation.
The Court of Appeal states that in the interpretation of criminal provisions, the principle of legality in criminal law justifies a cautious approach, with the meaning that a clear restrictiveness must be observed in extensive interpretations. The court further notes, that it is clear from the penal provision that the time for completion of the offense is when the cabotage transport has been performed. Therefore, according to the court, it must be considered contrary to the wording of the penal provision to interpret it so that ongoing transport is also included. According to the court, a transport must be considered to cover the entire procedure from loading to unloading of the goods. Since unloading had not taken place in this case, the prosecutor’s action was also dismissed because no cabotage transport had been carried out.
The conclusion was that the court considered that the transport had, in any case, been compatible with the conditions for legal cabotage transport under the Cabotage Regulation. There was therefore no unlawful act and the action against the freight forwarder was dismissed.
The freight forwarder was represented in the Court of Appeal by Jerker Kjellander and Ninos Aho at the law firm Vinge.
