Opinion on the legal basis of the Proposal for a decision of the European Parliament and of the Council empowering Austria to amend its existing… bilateral road transport agreement with Switzerland with a view to authorising cabotage operations in the course of the provision of international road passenger transport services by coach and bus in the border regions between the two countries

12.6.2026

Ms Elissavet VozembergVrionidi

Chair

Committee on Transport and Tourism

BRUSSELS

Subject: Opinion on the legal basis of the Proposal for a decision of the European Parliament and of the Council empowering Austria to amend its existing bilateral road transport agreement with Switzerland with a view to authorising cabotage operations in the course of the provision of international road passenger transport services by coach and bus in the border regions between the two countries (COM(2025)0773 – C100367/2025 – 2025/0407(COD))

Dear Madam Chair,

By letter of 16 March 2026, you requested the Committee on Legal Affairs, pursuant to Rule 41(2) of the Rules of Procedure, to provide an opinion on the appropriateness of the legal basis of the proposal for a Decision of the European Parliament and of the Council empowering Austria to amend its existing bilateral road transport agreement with Switzerland with a view to authorising cabotage operations in the course of the provision of international road passenger transport services by coach and bus in the border regions between the two countries 2025/0407 (COD) (the “proposal”).

JURI considered the above question at its meeting of 4-5 May 2026.

I - Background

The proposal is based on Article 2(1) and 91 TFEU. It is intended to authorise Austria to extend its bilateral road transport agreement with Switzerland to authorise cabotage operations of road passenger transport services by coach and bus in the border regions of both countries. These operations are not possible under the existing agreement of 1958.

TRAN is now in the stage of preparing its first reading position on the Commission proposal. The Chair, and the Rapporteur at the same time, intends to align changes to the Commission proposal with the changes made by the Council, to facilitate an early first reading agreement. The Council, in its general approach, modified the legal basis of the proposal by removing the reference to Article 2(1) TFEU.

II - The relevant Treaty Articles

Title I of Part One of the Treaty on the Functioning of the European Union, on “Categories and Areas of Union Competence” reads:

Article 2

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

[…]

Article 3

[…]

2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

Title VI of Part Three of the Treaty on the Functioning of the European Union, on “Transport” reads (emphasis added):

Article 90

(ex Article 70 TEC)

The objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy.

Article 91

(ex Article 71 TEC)

1. For the purpose of implementing Article 90, and taking into account the distinctive features of transport, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:

(a) 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;

(b) the conditions under which non-resident carriers may operate transport services within a Member State;

(c) measures to improve transport safety;

(d) any other appropriate provisions.

2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.

III – CJEU case law on the choice of legal basis

The Court of Justice has traditionally viewed the question of the appropriate legal basis as an issue of constitutional significance, guaranteeing compliance with the principle of conferred powers (Article 5 TEU) and determining the nature and scope of the Union’s competence.

According to well-established case law, the legal basis of a Union act does not depend on an institution's conviction as to the objective pursued, but must be determined according to objective criteria amenable to judicial review, including in particular the aim and the content of the measure.

If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component. Only exceptionally, if it is established that the act simultaneously pursues a number of objectives, inextricably linked, without one being secondary and indirect in relation to the other, may such an act be founded on the various corresponding legal bases. This would however only be possible if the procedures laid down for the respective legal bases are not incompatible with and do not undermine the right of the European Parliament.

IV – Aim and content of the proposed Decision

Concerning the background, under the Agreement between the European Community and the Swiss Confederation on the Carriage of Goods and Passengers by Rail and by Road (hereinafter 'the EU Agreement'), cabotage in the form of transport of passengers by bus is not authorised.

Austria requested an empowerment by the Union to amend its road transport agreement with Switzerland with a view to authorising cabotage operations during the provision of passenger transport services by coach and bus in the respective border regions of the two countries.

As to its aim and content, the proposal empowers Austria to amend its existing bilateral road transport agreement with Switzerland of 22 October 1958 with a view to authorising cabotage operations in the respective border regions of Austria and Switzerland in the course of the provision of international road passenger transport services by coach and bus between the two countries, provided that there is no discrimination between carriers established in the Union and no distortion of competition.

V – Analysis

Concerning the choice of the legal basis, the Commission’s explanatory memorandum indicates that:

“Article 3(2) of the [TFEU] establishes that "[t]he Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope".

Under Regulation (EC) No 1073/2009, cabotage operations within the Union may be conducted, under certain conditions, exclusively by carriers holding a Community licence. International commitments permitting other carriers, in particular carriers from third countries, to conduct such operations affect the above mentioned Regulation, within the meaning of Article 3(2) TFEU.

Furthermore, such international commitments also affect the Land Transport Agreement, in particular its Article 20. They are not authorised by paragraph 1 of that Article, except as set out in its paragraph 2.

Consequently, commitments such as those intended by Austria fall within the scope of the Union's exclusive competence. However, in accordance with Article 2(1) TFEU, the Union may empower Member States to act in areas where it has exclusive competence.”

On that ground, the Commission concluded that “the legal basis for this proposal is Articles 2(1) TFEU and 91 TFEU”.

Article 91 provides for legal bases in the transport policy field for transport by rail, road and inland waterway. In the light of the aim and content of the proposal, it is manifest that the proposal is linked to the functioning of the internal market in the transport sector. Thus, Article 91 TFEU appears to be an appropriate a legal basis for the proposal.

However, in the assessment of the Legal Service, Article 2(1) TFEU is not a legal basis. In fact, that provision does not confer any competence to the institutions for the adoption of a Union act. Therefore, it cannot be used as a legal basis.

To strengthen these arguments one could also recall Decision (EU) 2020/853 which allowed Germany to negotiate the identical extension of its road transport agreement with Switzerland. The Commission proposal was also based on Articles 2(1) and 91 TFEU, however the final agreed text limited the legal basis only to Article 91 TFEU.

VI – Conclusion and recommendation

At its meeting of 5 May 2026 the Committee on Legal Affairs decided unanimously, by twenty-two votes in favour, to recommend to the Committee on Transport and Tourism to remove Article 2(1) TFEU from the legal basis and to retain only Article 91 TFEU as the appropriate legal basis of the proposal.

Yours sincerely,

Ilhan Kyuchyuk