Transport, Article 91 TFEU

According to Article 90 TFEU the EU shall have a common transport policy. For that purpose the EP and the Council shall, according to Article 91 TFEU and acting in accordance with the ordinary legislative procedure, inter alia lay down common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States, measures to improve transport safety, and any other appropriate provisions. Whereas the whole Title VI (Arts 90—100) applies to transport by rail, road, and inland waterways, the EP and the Council may also lay down appropriate provisions for sea and air transport (Arts 91 and 100).

Examples of legal acts partly concerned with environmental and health protection using this legal basis are Directive 2008/68/EC on the inland transport of dangerous goods[1] and Directive 2005/35/EC on ship-source pollution,[2] [3] [4] [5] the latter of which is discussed in section 10.5.

Title VI on transport does not include any general provisions authorising the Member States to introduce or maintain rules that deviate from the EU measures adopted based on Articles 91 or 100. Recourse must therefore be had to the specific legal acts adopted to establish the extent of their harmonising effect. Whereas Directive 2008/68/EC explicitly states that each Member State should retain the right to regulate or prohibit the transport of dangerous goods within its territory, on grounds other than safety, such as environmental protection, Directive 2005/35/EC refers to the need to harmonise the implementation of MARPOL 73/7872 at EU level/3

  • [1] Directive 2008/68/EC of the European Parliament and of the Council on the inland transport of dangerous goods [2008] OJ L 260/13.
  • [2] Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollutionand on the introduction of penalties for infringements [2005] OJ L 255/11.
  • [3] 72 International Convention for the Prevention of Pollution from Ships as amended by its 1978protocol (MARPOL 73/78) 1340 UNTS 184.
  • [4] Preambular paras 3 and 11, respectively.
  • [5] Measures primarily of a fiscal nature are subject to a special legislative procedure and requireunanimity in the Council.
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