C-126/82

JUDGMENT OF 25. 1. 1983 — CASE 126/82

powers regarding the conditions for 4. The aim of Article 7 of the Treaty is authorizing undertakings established to eliminate any discrimination on in their territory. Those provisions, by the ground of nationality resulting their very nature, may be relied upon from the legislation or administrative in legal proceedings; it is therefore for practices of a given Member State the national court or tribunal to check rather than any disparity in the way whether the relevant national legis- in which undertakings of different lation conforms to those provisions if Member States are treated as a result a party relies upon them in of differences between the legislation proceedings before that court. of the Member States, in the absence of a common transport policy.

SMIT v COMMISSI!-: GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER

D. J. SMIT TRANSPORT BV, a transport undertaking having its registered office in T h e H a g u e ,

and

COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER van de Stichting Nederlandsche Internationale Wegvervoer Organisatie [Committee of the Netherlands International Road H a u l a g e Organization on the Commercial Carriage of G o o d s A b r o a d ] ,

on the effect in national law and on the interpretation of Articles 1 (3) and 3 of the First Council Directive of 23 July 1962 on the establishment of certain c o m m o n rules for international transport (carriage of goods by road for hire or reward), and on the interpretation of Article 7 of the E E C Treaty,

THE COURT

JUDGMENT OF 25. 1. 1983 — CASE 126/82

reward: Article 56 lays down criteria of a to 36.29 tonnes so as to be able to use all "qualitative" nature (technical aptitude its vehicles at the same time for such and creditworthiness), whilst pursuant to carriage. Article ' 44 the authorization must indicate the maximum payload allowed for the operation. Its request was rejected by a decision of 13 September 1979 of the Commissie Grensoverschrijdend Beroepsgoederen- The decree also provides, in Article 23, vervoer of the Stichting Nederlandsche that individual authorizations to effect Internationale Wegvervoer Organisatie. the international carriage of goods for The reason given for the refusal was the hire or reward is subject to the fixing of fact that it was not in the "general a maximum load capacity. interests of transport" to increase the authorized capacity, which was not justified by existing demand in the field Article 36 of the law provides that an of transport, as an investigation had authorization may be refused and that "a revealed that the Smit undertaking was departure may be made from the terms using only part of the transport capacity of the application" in the "general which it had already been authorized to interests of transport", an expression use. which is stated by Article 1 of the law to embrace "the need for fair and balanced On 10 December 1979 Smit challenged management of the various interests the decision by application to the Crown

In support of its action it relied in The directive of 23 July 1962 was particular on the argument that restrict- amended by the following Council ing load capacity was incompatible with Directives: 72/426/EEC of 19 December the First Council Directive of 23 July 1972 (Official Journal, English Special 1962 on the establishment of certain Edition 1972 (28-30 December), p. 71; common rules for international transport 74/149/EEC of 4 March 1974 (Official (carriage of goods by road for hire or Journal L 84, p. 8); 77/158/EEC of 14 reward (Official Journal, English Special February 1977 (Official Journal L 48, p. Edition 1959-1962, p. 267), especially 30); 78/175/EEC of 20 February 1978 Articles 1 (3) and 3 thereof. (Official Journal L 54, p. 18); and 80/49 of 20 December 1979 (Official Journal Article 1 (1) of the directive provides as 1980, L 18, p. 23). Those amendments follows: do not affect the provisions which were relied upon before the Administrative Appeals Division of the Raad van State. "Each Member State shall, by the end of 1962 at the latest and in the manner laid down in paragraphs (2) and (3) of this On 6 April 1982, after obtaining an article, liberalize the types of inter- authorization by Royal Decree dated 26 national carriage of goods by road for March 1982, the Administrative Appeals hire or reward involving other Member Division of the Raad van State decided States listed in Annexes I and II to this to refer to the Court of Justice for a directive, where such carriage is preliminary ruling pursuant to Article performed to or from the territory of 177 of the EEC Treaty the following that Member State or passing in transit questions, which were raised before it in across the territory of that Member the course of a full administrative appeal State." based on the Law governing the carnage of goods by motor vehicle: Pursuant to Article 1 (3) the types of carriage listed in Annex II, which include 1. Is it the responsibility of a national "removals by undertakings having special court or tribunal to examine national staff and equipment for this purpose", legislation in the light of Articles 1 (3) and 3 of the First Council Directive of 23 July 1962 on the establishment "shall no longer be subject to a quota of certain common rules for certain system. They may, however, remain types of carriage of goods by road subject to authorization provided no between Member States (as last quantitative restriction is involved; in such case Member States shall ensure amended by Council Directive that decisions on applications for auth- 78/175/EEC of 20 February 1978 orization are given within five days of (Official Journal L 54, p. 18) if an receipt." appellant relies on those provisions to support his case?

izations for the types of international member of its Legal Department; on 16 carriage of goods by road for hire or July by the Government of the Kingdom reward mentioned in Annex II to the of the Netherlands, represented by directive to undertakings established C. H. A. Plug, Secretary General of the in that Member State if the aim of Ministry of Foreign Affairs; and on 20 such a system is to restrict the load July 1982 by the Government of the capacity to be used by them in the Federal Republic of Germany, rep- carriage of goods abroad, even if resented by Martin Seidel, Ministerialrat, those undertakings satisfy the relevant and Ernst Röder, Regierungsdirektor at requirements of creditworthiness and the Federal Ministry of Economic technical aptitude laid down by Affairs. national legislation as regards the carriage of goods abroad and inland and if, pursuant to the national Upon hearing the report of the Judge- licensing system for the carriage of Rapporteur and the views of the goods inland, they possess load Advocate General the Court decided to capacity which has been approved as open the oral procedure without any being perfectly satisfactory? preparatory inquiry. However, the Smit undertaking, the Government of the Kingdom of the Netherlands and the 3. If the answer to Question 2 is in the Commission were each asked to answer affirmative, does the prohibition of a question before the hearing. discrimination on grounds of national- ity laid down in Article 7 of the EEC Treaty, properly construed, mean that a statutory licensing system whereby transport undertakings established in II — W r i t t e n o b s e r v a t i o n s sub- one Member State are subject to m i t t e d to t h e C o u r t quantitative restrictions as regards the load capacity to be employed in the carriage of goods between Member 1. The observations submitted by the States may be operated if transport Government of the Kingdom of the undertakings established in other Netherlands may be summarized as Member States are not or may not he follows. subject to such restrictions by that Member State under Community law? First question

In adapting Netherlands legislation to Article 3 of the directive of 23 July 1962 the requirements of the directive and of provides for the continuance of national the subsequent amendments thereto, the systems of authorization inasmuch as Government of the Netherlands, without they apply to a countiy's own nationals. any objection on the part of the The expression "conditions under which Commission, has always followed that any Member State authorizes its own view, which appears to be shared by the nationals to engage in the activities" other Member States. mentioned in the directive must be given a broad interpretation so as to include authorization schemes which may entail a restriction of load capacity. Article 3 is Moreover, in the first recital in the not restricted to conditions for access preamble to the directive, which states to the occupation (technical aptitude, that "the adoption of a common solvency and creditworthiness); in other transport policy involves, inter alia, provisions, such as the Commission's laying down common rules for the inter­ proposal of 15 June 1967 for a Council national carriage of goods by road to or regulation concerning access to the from the territory of a Member State or occupation of transport operator and passing across the territory of one or rules governing capacity (Journal Officiel more Member States" there is no L 254, p. 3), access to the occupation indication that the rule applies equally to and rules controlling capacity are national systems of authorization discussed separately. governing access by a country's own nationals to the occupation of inter­ national carrier of goods. Community rules to that effect have yet to emerge, The liberalization which the directive despite the Commission's proposal in requires can only refer to systems of 1967 and the fact that Article 75 (1) of authorization governing access by the Treaty provides for the establishment foreign undertakings to the territory of a of common rules applicable to inter­ (different) Member State in order to national transport; the question arises effect the types of carriage referred to in whether once the transitional period has Annex I or Annex II from or to that expired the present situation, where in territory or in transit across it. The many cases types of carriage not covered wording of Article 1 of the directive by the directive of 1962 are still subject implies that little significance is attached to quota restrictions, is still compatible to whether the foreign undertaking with the Treaty.

The second question may therefore be complying with the provisions of the answered in the affirmative. directive if it prescribes for the types of carriage referred to in Annex II a Third question maximum payload, in particular when the latter is lower than the ceiling which The directive does not affect national is fixed within the territory of the systems of authorization inasmuch as Member State in question. they apply to a country's own nationals; as Community legislation on transport The reply to the question must be in the stands at present, nationals of a Member affirmative, subject to certain restrictions. State may therefore still be subjected by that State to certain restrictions which do not apply to transport undertakings Merely restricting the authorized established in other Member States. payload for the international carriage of goods does not amount to a That cannot amount to a breach of the "quantitative restriction" within the prohibition of discrimination contained meaning of Article 1 (3) of the directive : in Article 7 of the EEC Treaty: the payload is fixed for a single vehicle application of national systems of auth- and the restriction can only affect the orization does not give rise to any way in which loads are distributed for inequality in the treatment of EEC transport between different vehicles. citizens on grounds of nationality of the Restricting the payload does not in itself kind prohibited by Article 7. According prevent the transport undertaking to the case-law of the Court of Justice concerned from obtaining as many there is no breach of the prohibition of authorizations as it wishes for an discrimination contained in Article 7 unlimited number of vehicles. where rules apply, not on the basis of the nationality of the undertaking, but on the basis of the place where the under- The restrictions on the authorized taking is established. Only differences in payload which are permitted by the rules the treatment of undertakings not of the Member State within which the established in the Member State carriage is to be effected are equally concerned would amount to a breach of compatible with other provisions of the prohibition of discrimination; that Community law, in particular those question does not arise in this case. concerning the freedom to provide services.

on national substantive rules. The model A restriction of the maximum payload authorizations annexed to the directive for the international carriage of goods is provide expressly for "restrictions, if therefore compatible with the first any", which may include, in particular, directive in so far as it is within the limits restrictions on the payload. The carrier is fixed by the Member States through required to comply, in the territory of whose territory the carriage is to be each Member State, with the laws, regu- effected. lations and administrative provisions of that State, and in particular with those concerning transport and traffic. The application of such a restriction by a Member State might, in certain cases, be aimed solely at restricting access to the Community law does not compel transport market for undertakings; in the Member States to allow vehicles German legislation that is not the case. registered in other Member States to travel within their territory with a payload which meets the restriction Third question applicable in the countiy of origin when that is higher than in the country visited. It is in the general interest to retain the national restrictions on payload. The Authorizations issued in compliance with different maxima fixed at national level the requirements of the first directive and for payloads for vehicles are attributable with those of Directive 65/269 do not to significant differences in the topo- offend against Article 7 of the EEC graphical and technical characteristics of Treaty. the road networks in the various Member States. National restrictions of that sort are only at variance with Community law if, as the Court of It would be contrary to the directive if Justice has held, they are not in due when granting authorizations for the proportion to the requirements of road international carriage of goods Member safety. States fixed different restrictions on payload for one and the same journey: for international carriage between several Member States the authorization must take account of the restrictions which The maximum payload adopted by the Member State which issues the auth- apply to the payload in the various States orization depends on the scope of the concerned and therefore refer expressly authorization. The models annexed to to the lowest of the various ceilings in Directive 65/269 show that the author- question. If the directive is applied ization defines its geographical scope; correctly it is immaterial to know which the authorization may be issued only if it Member State has issued the authoriz- takes account of the legislative ation. requirements of all the Member States in question, and applies the most stringent provisions if there is a discrepancy The nationality of the carrier is wholly between the various national provisons; irrelevant in that respect; according to as far as the payload is concerned, the Article 1 of Directive 65/269 the authorization must therefore mention the authorization is to be issued by the maximum payload of whichever Member Member State in which the vehicle to be State prescribes the lowest. used for such carriage is registered.

As to the lawfulness of the various izations to undertakings established in a national restrictions on payload in the Member State other than that which light of Article 7 of the EEC Treaty, it issues the authorization; if so, it does not must be emphasized that the restrictions affect the power of each Member State apply regardless of the nationality of the to issue authorizations to its own carrier or the driver of the vehicle. nationals. The question whether the Netherlands system of restricting load capacity for its own nationals in the carriage of goods between Member However the third question is to be States is compatible with the first interpreted, it shows no infringement of directive does not arise; the reply to Article 7 of the EEC Treaty, provided the second question must be in the that the authorization is issued in affirmative. conformity with the requirements of the two directives in question. That hypothesis is supported by the fact that the aim of the directive is to 3. The Commission observes with eliminate "obstacles in the transport regard to the first question raised by the sector"; such obstacles existed when the Administrative Appeals Division of the directive was adopted and continue to Raad van State of the Netherlands that exist in the case of types of carriage whatever the direct effect, if any, of the which do not appear in the annexes to first directive or the provisions thereof the directive, especially where it is a the result can only be that Member question of obtaining international auth- States are prohibited after the expiry of orizations in Member States other than the period allowed for implementing that in which the undertaking concerned the directive from relying, as against is established. individuals, on national provisions which are incompatible with the directive. Before any decision as to whether However, it might also be considered Articles 1 (3) and 3 of the directive are that where there are obstacles to author- directly applicable, therefore, it must first izations' being issued by a Member State be determined whether or not the to its own nationals, the directive might Netherlands legislation determining the have been intended to eliminate those, maximum authorized load capacity for too. That view finds support in the first the international carriage of goods is recital in the preamble to the directive, compatible with the directive. according to which "the adoption of a common transport policy involves, inter alia, laying down common rules"; if they are to be truly common, such rules must Second question apply without distinction to all individuals regardless of the Member State of which they are nationals. The way in which Articles 1 (3) and 3 are to be interpreted depends generally on the view which is taken of various (b) The directive may be interpreted as aspects of the directive. relating to all authorizations for the international carriage of goods issued by a Member State whether to its own (a) The directive may be regarded as nationals or to those of other Member applying solely to the grant of author- States.

In that case the authorizations issued by orization" within the meaning of Article a Member State to its own nationals 1 (3) of the directive. would also, in principle, be subject to the requirements of the directive. Arguments which may be advanced in favour of a negative reply are that the authorization in question concerns access In the case of Article 3, in particular, it to the occupation of international carrier may be noted that it is not worded as a of goods, that the conditions governing provision which derogates from the other access to the occupation may include articles of the directive, but that its aim is both qualitative criteria and criteria to define the scope thereof; this view is based on supply and demand and that borne out by the history of the article. the authorization does not, therefore, according to Article 3, fall within the

supply and demand. Howsoever that authorizations remain outside the scope may be, even if a restriction on capacity of the directive. such as that provided for in the Netherlands rules falls outside the scope of Article 3 that would not necessarily These two interpretations have one bring it within the ambit of the directive feature in common: they are based on itself: Article 3 is designed solely to the principle that Article 1 (3) is define the scope of the directive by concerned solely with specific author- indicating what it clearly does not cover, izations to effect one or a number the scope of the directive must be of well-defined journeys; under both positively established in the light of the interpretations more general systems of other provisions it contains, in particular authorization would not fall within the Article 1 (3). terms of the directive regardless of

refers. The issue is therefore whether an that case the authorization, inasmuch as authorization to effect the international it concerns criteria based on supply and carriage of goods of the kind in question demand, falls within the terms of Article in the main action constitutes an "auth- 1(3).

The reply to the second question put by unequal treatment based on the place of the Raad van State must indicate establishment, but unequal treatment whether the first directive concerns solely based on discrimination on grounds of authorizations issued by a Member State nationality. to undertakings of other Member States, or includes authorizations issued to its own nationals and, in that case, whether Article 1 (3) concerns only specific auth- Nevertheless, a distinction must be made orizations or also more general authori- according to which answer is given to zations. the second question. Should the Court decide that the first directive concerns only authorizations issued by a Member State to undertakings established in First question another Member State, it would be possible to claim that there is unequal treatment between nationals of Member States, but, in that case, Article 7 would If the Court considers that the legislation not apply. If, by contrast, the first at present in force in the Netherlands is directive is considered applicable without incompatible with the first directive, it distinction to authorizations issued by a will be necessary to determine whether Member State to nationals of other individuals may rely on the provisions of Member States and to its own nationals, the directive before the Raad Van State it would be possible to claim that there is of the Netherlands. unequal treatment only if the Court adopts the theory that the system of authorization in question and the restriction on capacity which it entails According to the case-law of the Court are not covered by the directive or, as a individuals must, in such a case, be in a result, by Article 1 (3); in that case the position to invoke Articles 1 (3) and 3 of conclusion must be that in the absence of the first directive in order to obtain a harmonization Member States retain the review as to whether the national power to determine the conditions on implementing measures are compatible which authorizations are to be issued. with those provisions. Each Member State would thus determine for itself the conditions on which carriers established on its territory may obtain authorizations to engage in the activities in question; that too would Third question amount not to discrimination based on nationality, but to discrimination based on the place of establishment. Since an affirmative reply to the second question cannot be ruled out consideration must be given to whether Article 7 prohibits the imposition on The reply to the third question should be carriers established in a given Member that the continuance of a legal system State of restrictions which are not of authorization whereby carriers imposed on carriers established in established in a Member State are another Member State. If thus worded, subject to quantitative restrictions on the question must be answered in the load capacity which do not apply to negative: Article 7 clearly concerns not carriers established in other Member

If in answer to the second question the Court should take the view that systems of authorization such as that which is the III — O r a l p r o c e d u r e subject-matter of the main action do not fall within the ambit of the first directive, it would be advisable to determine whether or not such systems are compatible with other provisions of At the sitting on 19 October 1982 oral Community law, in particular Council argument was presented and replies were Directive 74/561 of 12 November 1974 given to the questions put by the Court on admission to the occupation of road- by D. J. Smit Transport BV, the plaintiff haulage operator in national and inter- in the main proceedings, represented by national transport operations (Official D B. J. Siemensinä, an expert on the Journal L 308, p. 18). That directive lays issue of authorizations under the Wet down only qualitative conditions (credit- Autovervoer Goederen, the Government worthiness, financial standing and of the Kingdom of the Netherlands competence of the carrier); the question represented by Adriaan Bos, Assistant is therefore whether its provisions are Legal Adviser, Ministry of Foreign exhaustive on that point and exclude any Affairs, assisted by Wouter van Zijst, consideration of other conditions, in Head of Department, Ministry of particular conditions related to the Transport, as technical adviser, the concept of supply and demand, or Government of the French Republic, whether it merely harmonizes three represented by Alexandre Carnclutti, conditions without preventing Member Secretaiy for Foreign Affairs, Ministry of States from applying others. There is Foreign Relations, and the Commission, nothing to indicate that the directive is represented by A. Haagsma. aimed at an exhaustive harmonization of conditions for access to that occupation; its purpose is to harmonize objective qualitative criteria. Criteria which take account of supply and demand would be Smit argued in particular that it had the far more difficult to harmonize because right, using the whole of its fleet of they depend entirely on the actual vehicles, to carry goods not only within situation on a particular market. The fact the borders of the State where it was that the directive does not refer to such established but also beyond them; that criteria does not justify the conclusion removals constituted a very special sector that they may not be applied but, on the of the transport business; that it had used contrary, implies that the directive does the authorization it had received in not affect them and that they have not respect of removals in a wholly profitable yet been harmonized. manner and that excessively restrictive

Decision

1 By j u d g m e n t of 6 April 1982, which was received at the C o u r t o n 7 April 1982, the Administrative Appeals Division of the R a a d van State [State Council] referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y three questions concerning the effect in national law and the interpretation of Articles 1 (3) and 3 of the First Council Directive of 23 J u n e 1963 o n the establishment of certain c o m m o n rules for international transport (carriage of g o o d s , by r o a d for hire or reward) (Official· J o u r n a l , English Special Edition, 1959-1962, p. 267) and on the interpretation of Article 7 of the E E C T r e a t y .

2 T h o s e questions w e r e raised in the course of an action b r o u g h t by a transport u n d e r t a k i n g established in the N e t h e r l a n d s which specializes in international removals against a decision of the Commissie Grensover-

SMIT v COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER

schrijdend Beroepsgoederenvervoer van de Stichting Nederlandsche Inter- nationale Wegvervoer Organisatie [Committee of the Netherlands Inter- national Road Haulage Organization on the Commercial Carriage of Goods Abroad], rejecting its application for an increase in its transport capacity for international transport operations.

3 It appears from the file on the case that by virtue of prior decisions adopted by the same authority the plaintiff's authorized capacity is 50.1 tonnes for national transport and it is authorized to use 18 tonnes of that total capacity for international transport. The plaintiff applied for the latter capacity to be increased to 36.29 tonnes, which corresponded to its effective transport capacity at that time, in order to enable it to use all its vehicles for inter- national transport.

7 The Raad van State considered that a question of interpretation of Community law had been raised and submitted the questions referred to above to the Court.

T h e first q u e s t i o n

8 The first question submitted by the Raad van State is as follows :

"Is it the responsibility of a national court or tribunal to examine national legislation in the light of Articles 1 (3) and 3 of the First Council Directive of 23 July 1962 (Official Journal, English Special Edition 1959-62, p. 267), on the establishment of certain common rules for certain types of international carriage of goods (as last amended by Council Directive 78/175/EEC of 20 February 1978 (Official Journal L 54, p. 18)) if an appellant relies on those provisions to support his case?"

9 In order to answer this question it is sufficient to refer to the Court's well- established case-law concerning the effect of directives, most recently mentioned in its judgment of 19 January 1982 in Case 8/81 Ursula Becker v Finanzamt Münster-Innenstadt [1982] ECR 53.

10 It is apparent from that case-law that if the provisions of the directives are unconditional and sufficiently precise, as far as their subject-matter is concerned, they may be relied on in legal proceedings by individuals where the Member State in question has not correctly implemented the directive within the framework of its domestic legislation.

"If so, may those provisions be construed as allowing the competent auth­ orities of a Member State the freedom to apply a system of authorizations for the types of international carriage of goods by road for hire or reward mentioned in Annex II to the directive to undertakings established in that Member State if the aim of such a system is to restrict the load capacity to be used by them in the carriage of goods abroad, even if those undertakings satisfy the relevant requirements of creditworthiness and technical aptitude laid down by national legislation as regards the carnage of goods abroad and inland and if, pursuant to the national licensing system for the carnage of goods inland, they possess load capacity which has been approved as being perfectly satisfactory?"

1 4 The answer to this question must be obtained by reference to the purpose and structure of the directive of 23 July 1962.

is By virtue of Article 1 of the directive the Member States are required to liberalize the types of international carriage of goods by road for hire or

JUDGMENT OF 25. 1. 1983 — CASE 126/82

reward involving other Member States listed in Annexes I and II to the directive, by the end of 1962 at the latest. According to paragraph (3) thereof "the types of carriage listed in Annex II shall no longer be subject to a quota system. They may, however, remain subject to authorization provided no quantitative restriction is involved; in such case Member States shall ensure that decisions on applications for authorizations are given within five days of receipt".

SMIT v COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERĽNVĽRVOER

20 It therefore seems, as is confirmed by the contents of Annexes I and II to the directive, that the directive is intended to liberalize certain types of carriage by road within the Community without yet laying down uniform conditions for authorization to engage in the activities in question.

2i In those circumstances, although Article 1 (3) of the directive provides that the types of carriage listed in Annex II thereto are no longer to be subject to a quota system but may remain subject to authorization provided that no quantitative restriction is involved, the terms "quota" and "quantitative restriction" can only relate to the measures which a Member State applies to transport carried out by undertakings established in another Member State.

22 Furthermore, the requirement contained in Article 1 (3) that each Member State is to ensure that decisions on applications for authorization are given within five days of receipt can only be explained, within the framework of the directive in question, if it is taken to relate to an application for authorization coming from another Member State.

23 That interpretation is in conformity with the content of Article 3 of the directive which leaves the Member States the power to fix the conditions for authorizing undertakings established in their territory to engage in the activities mentioned in the directive and which therefore implies, in the absence of other rules of Community law applicable to this field, that another Member State may impose on such undertakings conditions which restrict their transport capacity.

"If the answer to Question 2 is in the affirmative, does the prohibition of discrimination on grounds of nationality laid down in Article 7 of the EEC Treaty, properly construed, mean that a statutory licensing system whereby transport undertakings established in one Member State are subject to quantitative restrictions as regards the load capacity to be employed in the carriage of goods between Member States may be operated if transport undertakings established in other Member States are not or may not be subject to such restrictions by that Member State under Community law?"

Costs

29 The costs incurred by the Governments of the Kingdom of the Netherlands, the Federal Republic of Germany and the French Republic and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E COURT,

in answer to the questions submitted to it by the Administrative Appeals Division of the Raad van State, by order of 6 April 1982, hereby rules as follows :

1. It is the responsibility of the national court to examine the relevant national legislation in the light of Articles 1 (3) and 3 of the First Council Directive of 23 July 1962, on the establishment of certain common rules for the international carriage of goods by road if a party relies on those provisions in proceedings before that court.

P. Heim J. Mertens de Wilmars Registrar President