C-12/82

JUDGMENT OF 30. 11. 1982 — CASE 12/82

penalties designed to ensure that their of free competition which applies in carriers observe the tariff brackets Community law only within the fixed in pursuance of those regu- compulsory limits established by the lations. The applicability of such application of the system of bracket penalties cannot therefore be tariffs provided for by those regu- contested on the basis of a principle lations.

In Case 12/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Police [Police Court] of the First Canton of Verviers (Belgium) for a preliminary ruling in the proceedings pending before that court between

MINISTÈRE PUBLIC [Public Prosecutor's Office]

and

MINISTERE PUBLIC v TRINON

JUDGMENT

Facts and Issues

JUDGMENT OF 30. U. 1982 — CASE 12/82

Commission and to the other Member force; only the maximum rate for each States (Article 4 (2) (a)). bracket need be published (Article 6).

If no agreement is reached, the dispute Rates for any given transport operation may be referred to the Commission at may be freely determined within the the request of any of the Member States upper and lower limits of the relevant concerned. After consulting a Committee bracket tariff (first subparagraph of of Experts, composed of government Article 2 (3)). experts and having a representative of the Commission as Chairman (Article 11), the Commission, acting as soon as The conclusion of contracts at transpon possible, is to adopt a decision which is rates falling outside the upper or lower to be notified to the Member States limits of the relevant tariff brackets is, as concerned and at the same time a rule, prohibited (second subparagraph communicated to the other Member of Article 2(3)). Nevertheless, special States. That decision is to take effect contracts may be concluded in writing after a period of twenty days, unless between a carrier and another party at before the expiry of that period the transport rates outside the upper or matter is referred to the Council by a lower limits of the tariff brackets subject Member State. In such cases, the Council to the following conditions: is to give its decision by a qualified majority within twenty days. The decisions so adopted by the Council or the Commission are to remain in force Circumstances must exist which were not until such time as an agreement is taken into account at the time when the concluded between the Member Sutes tariffs were fixed, as, in particular, where concerned or until any further decision is a special contract relates to transport made by the Council or the Commission operations having special technical in accordance with the same procedure features or where the contraa is made in (Article 4 (2) (b)). response to the requirements of competition or where it is entered into for a certain period.

particularly rapid delivery of the goods; 31 December 1971. It was provided, where the goods are of a dangerous or however, that it should remain in force offensive nature or where the goods are for a period of one year in the event of such that they must be delivered in a the Council's not having decided before single large load or are of abnormal that date on the system to be applied dimensions. thereafter (Articles 17 and 18). In fact the period of validity of the regulation was repeatedly extended, on the last Where the special contract provides for occasion until 31 December 1977 by transport rates below the lower limit of Council Regulation No 3181/76 of 21 the relevant tariff bracket, the tonnage to December 1976 (Official Journal, L 359, be carried under any such contract p. 13). within any three month period must be not less than 500 metric tons (second subparagraph of Article 5 (1) of Regu- Regulation No 1174/68 was replaced lation No 1174/68, as amended by from 1 January 1978 by Council Regu- Regulation No 293/70). lation No 2831/77 of 12 December 1977 on the fixing of rates for the carriage of goods by road between Member States (Official Journal, L 334, p. 22). Special contracts must be such as to maintain or increase the carrier's trading returns. On the ground that a single system for the fixing of rates and conditions for the carriage of goods by road between On concluding any special contract the Member States could be achieved only carrier must forthwith communicate the progressively and in parallel to the terms thereof to the competent auth- development of the markets concerned orities of the Member State where his the regulation, as an experiment, offered vehicles are registered, or of the Member Member States the choice, on the basis State where the goods are to be loaded. of a common principle, between a non- When communicating the terms of the binding reference tariff and compulsory contract the carrier must attach all parti- bracket tariffs (second and third recitals culars supporting the conclusion of the in the preamble). contract and the rates agreed (first subparagraph of Article 5 (2)). It is left to the Member States concerned to decide by mutual agreement on the Member States must, after consulting the application of one or other of the tariff Committee, adopt such laws, regulations systems, taking particular account of the or administrative provisions as may be economic and technical conditions of the necessary for the implementation of the transport market concerned (first sub- regulation. Such measures must cover, paragraph of Article 2(3)). Subject to inter alia, the organization of, procedure compliance with that principle, the for and means of carrying out checks on Member States may mainuin compulsory compliance and the penalties applicable tariffs where such uriffs have been in case of breach (Article 12 (1)). applied in pursuance of a Community regulation and may introduce reference uriffs where no Community uriff rules Regulation No 1174/68 came into force have been applied (second subparagraph on 1 September 1968 and was valid until of Article 2 (3)).

Moreover, the compulsory tariffs applied The transport rate which results from the at the time of the entry into force of Royal Decree establishes the hire or Regulation No 2831/77 are to remain in reward for the transport of the force until they are replaced by other consignment from the place where it is tariffs (Article 20 (2)) and any laws, loaded to the place where it is to be regulations or administrative provisions unloaded for delivery, together with the introduced by the Member States loading and unloading time (Article pursuant to Regulation No 1174/68 are 6 (1)). The rate is determined separately to remain in force for the compulsory for each consignment on the basis of the tariffs established pursuant to the new tariff distance, the nature of the goods regulation until they are replaced by and the weight of the consignment provisions adopted on the basis of the (Article 6 (2)). Carriers and their clients latter (Article 20 (3)). are free to fix transport rates at their discretion between the maximum and minimum rates of the bracket; the maximum rate is determined with The following general implementing reference to the scales set out in the measures were adopted in Belgium: the decree (Article 6 (3)). The transport rate Royal Decree of 25 October 1971 which is expressed in Deutschmarks and brought into effect Regulation No pfennigs and in Belgian francs (Article 1174/68 (Moniteur Belge [Belgian 6 (4)). Official Gazette], 4 November 1971) and the Royal Decree of 17 October 1979 which brought into effect Regulation No 2831/77 (Moniteur Belge, 9 November The Royal Decree of 24 September 1971 1979). was amended by Royal Decrees of 8 September 1978 (Moniteur Belge, 4 October 1978) and of 18 July 1979 (Moniteur Belge, 11 August 1979). Pursuant to Regulation No 1174/68, the Kingdom of Belgium negotiated and concluded several tariff agreements with the Member States concerned. Thus the Checks carried out by an inspector from Royal Decree of 24 September 1971 the Ministry of Transport revealed that (Moniteur Belge, 6 October 1971), on 4, 14 and 18 November 1980 Joseph adopted in accordance with the Law of 1 Trinon, a company director residing in August 1960 on the carriage of goods by Verviers, had transported goods for hire

When summoned to appear before the On appeal by the Procureur du Roi Tribunal de Police of the First Canton of [Public Prosecutor] of Verviers, the Verviers, Mr Trinon did not dispute the Tribunal Correctionnel [Criminal Appeal facts. However, he questioned the Court], Verviers, in its judgment of 27 validity of the national laws and regu- November 1981 upheld the decision of lations which he was charged with the Tribunal de Police and refered the infringing. He submitted that they were case back to the latter. contrary to "both the spirit and the wording of the EEC Treaty"; in particular, he submitted that Article 8 of the Law of 1 August 1960 permitted a The judgment of 22 April 1981 of the national authority to fix prices uni- Tribunal de Police of the First Canton of laterally and the Royal Decree of 24 Verviers was lodged at the Court September 1971 made rates fixed bi- Registry on 14 January 1982. laterally between two Member States binding. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the In its judgment of 22 April 1981, the EEC, written observations were lodged Tribunal de Police observed that as far on 11 March by the accused in the main as the spirit of the EEC Treaty was proceedings, Joseph Trinon, represented concerned, its aim was to establish a by Philippe de Bournonville, advocate, of competitive economy between Member St-Vith; on 19 March by the Com- States and that it might therefore seem mission of the European Communities, contradictory to the declared aims of the represented by its Legal Adviser, Etienne Treaty to fix prices in the absence of a Lasnet; and on 23 March 1982 by the joint decision by all the Member Sutes; Government of the Kingdom of Belgium, as regards the wording of the Treaty, the represented by the Minister of Tribunal de Police expressed doubts as Transport, assisted by Robert Wijffels, to the compatibility of the national advocate, of Antwerp. provisions with Article 3(e) which institutes a common policy in the sphere of transport, and with Article 75 which empowers the Council to lay down Upon hearing the report of the Judge- common rules applicable to international Rapporteur and the views of the transpon. Advocate General, the Court decided to open the oral procedure without any preliminary inquiry. However, it called upon the representative of the accused in Haying found that there was a pre- the main proceedings at the hearing on liminary question as to the compatibility the observations contained in the of the relevant Belgian legislation with Commission's statement.

Article 14 of Regulation No 2831/77 (Article 5 of Regulation No 1174/68) requires a broad and dynamic approach; The Government of the Kingdom of in that light it should be noted that it is Belgium considers that the reference for current practice for a carrier who applies a preliminary ruling is inadmissible the bilateral tariffs to give his customer a inasmuch as it raises the question of the rebate at the end of the financial year in compatibility of national laws with the form of a credit note; the normal Community law: in proceedings for tariff is not the general rule. obtaining a preliminary ruling the jurisdiction of the Court of Justice is, according to its own case-law, restricted to the interpretation of the EEC Treaty; In the circumstances which gave rise to it is not authorized to give a ruling on a the prosecution, strict adherence to the question concerning the compatibility of system of tariff brackets might impede national laws with the EEC Treaty and

MINISTÈRE PUBLIC v TRINON

Moreover, the Royal Decree of 24 September 1971 was issued in accord- Article 8 of the Law of 1 August 1960 ance with the Law of 18 February 1969 does no more than authorize the and did not fix rates unilaterally. Thus executive to lay down rules governing the objection on the grounds that a the rates and conditions of transport for unilateral price was fixed, misukenly hire or reward, having regard to, and in based on Article 8 of the Law of compliance with, the Community regu- 1 August 1960, must fail. lations in force; in the context of the

JUDGMENT OF 30. 11. 1982 — CASE 12/82

Community, this provision no longer case-law, the Court should hold the allows a national authority to fix such question to be admissible, that he could rates unilaterally. not be indicted under the Belgian Law of 1 August 1960 because Article 8 of that Law could not be regarded as a provision authorizing the executive to implement Community regulations which The Law of 18 February 1969 and the relate to the negotiation of bilateral Royal Decree of 17 October 1979 are tariffs, and that return freight might be within the terms of the Community regu- the subject of a "special contract" within lations and serve only to implement the meaning of Article 14 of Regulation them. No 2831/77 (Article 5 of Regulation No 1174/68).

The Royal Decrees of 24 September 1971, 8 September 1978 and 18 July The Government of the Kingdom of 1979 fix compulsory rates, thereby Belgium re-affirmed its view that the implementing the Community regu- Court was not required to answer the lations in force; the fixing and adap- question in the form in which it was tation of transport tariffs between referred to it, and that the contested Belgium and Germany derive directly Belgian Royal Decrees merely and exclusively from those regulations, implemented the Community regulations, which are binding. in particular Regulation No 2831/71. The transport rate for an outward and return journey was calculated separately for each consignment; in addition, the tariff was based on a cost price which took into account the fact that some III — Oral procedure return journeys are unladen.

1 By a judgment of 22 April 1981 which was received at the Court on 14 January 1982 the Tribunal de Police [Police Court]of the First Canton of Verviers referred to the Court for a preliminary ruling under Anicie 177 of the EEC Treaty a question as to the interpretation of Anieles 3 (e) and 75 of the EEC Treaty in order to enable it to assess the compatibility with those provisions of the Belgian legislation on rates for the transpon of goods by road between the Kingdom of Belgium and the Federal Republic of Germany. The legislation in question is the Royal Decree of 24 September 1971 (Moniteur Belge [Belgian Official Gazette], p. 11667) as amended by the Royal Decrees of 8 September 1978 and 18 July 1979 (Moniteur Belge, p. 11472 and p. 8871 respectively), which fixes the road transportrates between Belgium and the Federal Republic of Germany, based on the Law of 1 August 1960 on the carriage of goods by road for hire or reward (Moniteur Belge, p. 6101) and the Law of 18 February 1969 on measures for the implementation of international treaties and instruments relating to transpon by road (Moniteur Belge, p. 2988), hereinafter referred to as "the Belgian legislation".

2 It may be seen from the file of the case that the question was raised in the course of criminal proceedings against a Belgian carrier who is charged with having transponed goods, during the month of November 1982, between the Federal Republic of Germany and Belgium at rates substantially lower than the minimum rate of the bracket authorized by the Royal Decrees cited above.

6 According to Article 3 (e) of the Treaty, the activities of the Community are to include inter alia "the adoption of a common policy in the sphere of transport". Within the framework of the common transport policy provided for in Article 74, Article 75 requires the Council to lay down, on a proposal from the Commision and after consulting the Economic and Social Committee and the Assembly, inter alia common rules applicable to inter- national transport to or from the territory of a Member State or passing across the territory of one or more Member States.

7 As was stated by the national court, application of those provisions is designed to liberalize trade and to establish a competitive economy within the Community. However, both the fourth paragraph of the preamble to the Treaty and the fundamental principle of a common transport policy require that the Community also guarantee balanced trade and fair competition, and to achieve those aims duties and restrictions may be imposed on transport undertakings in the Community.

MINISTÈRE PUBLIC v TRINON

8 Certain rules concerning the transport of goods by road between Member States were laid down by Regulation No 1174/68 of the Council on the adoption of a system of compulsory bracket tariffs, the main purport of which is repeated in Regulation No 2831/77.

9 Under those two regulations the Member States directly concerned with any transpon routes must fix by agreement the tariffs applicable in their relations with each other (Article 4 of Regulation No 1174/68 and Article 11 of Regu- lation No 2831/77).

1 4 The accused points out that the transport rates which he charged on the invoices and which are the subject of the prosecution brought before the Tribunal were fixed at a rate below the minimum of the bracket provided for under the Belgian legislation because they were the rates for return journeys which would otherwise have had to be made unladen. The accused appears to be of the opinion that the limits which apply under the system of bracket tariffs are not applicable to such journeys, or at least that such journeys may be the subject of a special contract within the meaning of Article 5 of Regu- lation No 1174/68 re-enacted in Article 14 of Regulation No 2831/77.

15 In this context it should be noted that according to both Article 3 of Regu- lation No 1174/68 and Article 10 of Regulation No 2831/77 the base-rate from which the brackets are calculated takes into account the "average cost of the transport operation" calculated for undertakings "average cost of the transport operation" calculated for undertakings "enjoying normal conditions of use of [their] carrying capacity". It appears from the evidence provided on this subject by the Commission that the tariffs established under the Community regulations take into consideration the fact that some return journeys are unladen, a factor which is taken into account in determining the bracket and, more especially, the minimum rate thereof.

16 In any event, it may be noted that the exclusion of return journeys on the different transport routes would negate the purpose of the bracket tariffs inasmuch as on any one route carriers in one of the Member States concerned would be competing in respect of the outward journey of under- takings in the other Member State concerned and vice versa.

THE COURT

in answer to the question referred to it by the Tribunal de Police of the First Canton of Verviers by a judgment of 22 April 1981, hereby rules:

The provisions adopted for the implementation of Articles 3 (e) and 75 of the EEC Treaty within the framework of Regulation (EEC) No 1174/68 of the Council of 30 July 1968 on the introduction of a system of bracket tariffs for the carriage of goods by road between Member States and Council Regulation (EEC) No 2831/77 on the fixing of rates for the carriage of goods by road between Member States require

OPINION OF MRS ROZÈS — CASE 12/82

transport operators to comply with the tariffs fixed and applied by the Member States in accordance with the provisions of those regulations and failure so to comply renders them liable to the prescribed penalties.

Mertens de Wilmars Pescatore O'Keeffe