C-272/85
ECLI:EU:C:1987:54
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OPINION OF SIR GORDON SLYNN —CASE 272/85
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 3 February 1987
My Lords, There is no obligation to notify such agreements but by Article 5 the prohibition may be declared inapplicable with retro active effect to such an agreement as Article 2 of Council Regulation (EEC) No contributes e. g. to improving the quality of 1017/68 (Official Journal 1968, L 175, p. 1) transport services, or their continuity or applying rules of competition to transport stability if otherwise subject to temporal by rail, road and inland waterway, fluctuation, and which at the same time prohibited as being incompatible with the takes fair account of the interest of common market, inter alia, agreements transport users without imposing between undertakings liable to affect trade unnecessary restrictions or eliminating between Member States which have as their competition. object or effect the prevention, restriction or distortion of competition within the commmon market, and in particular those which: By Decision 85/383 of 10 July 1985 (Official Journal 1985, L 219, p. 35) the Commission declared that an agreement made between the Association nationale des '(a) directly or indirectly fix transport rates travailleurs indépendants de la batellerie and conditions or any other trading ('Antib') and the Chambre syndicale conditions; nationale des courtiers en frêts fluviaux and dated 13 June 1983 infringed Article 2 of the regulation in so far as it impaired the normal operation of competition; the Commission refused to grant an exemption (b) limit or control the supply of transport, under Article 5. markets,
Antib asks the Court to annul that decision.
The background to the dispute is in (d) apply dissimilar conditions to equi summary this. Goods are carried on French valent transactions with other trading inland waterways either by owner-boatmen parties, thereby placing them at a (usually having one vessel each) or by competitive disadvantage; operators of a large or small fleet of boats. General cargo is more usually carried under a voyage charter though owner-boatmen can, though do not commonly, carry ...' pursuant to a time charter of their vessels.
ANTIB v COMMISSION
For larger cargoes tonnage charters are The establishment of this national chamber arranged by the fleets or by groups formed (known as the Chambre nationale de la by owner-boatmen. Voyage charters (other batellerie artisanale ('CNBA') was provided than for voyages beginning in France and for in Act 82-1153 of 30 December 1982, passing along the Rhine and the Moselle) although the idea of forming it had been are arranged at official government mooted for some years previously. Its exchanges through the intervention of method of operation was laid down in forwarding agents, where cargoes and Decree 84-365 of 14 May 1984. It seems vessels available are listed, and where a that despite the original intention to wind queue system operates, the first vessel on up Antib once the CNBA existed, this has the list having the first choice of cargo. not yet been done. Vessels not registered in France can join the queue when they complete an outward trip into France but only to carry goods by inland waterways out of France or to the French border. A government report proposed that in addition a boatmen's cooperative be set up. This was provided for by Act 83-657 of 20 July 1983 which laid down that cooperatives in inland waterway transport be formed of inland waterway carriers registered with CNBA—a provision which the Com Prior to the events at issue in this case it mission took to mean that owners of vessels seems that inland waterway carriers had not registered in France could not be been losing business to carriers by road and members of the cooperative, to be known as rail. the Entreprise artisanale de transport par eau ('EATE'). That limitation to French- registered vessels was expressly enacted in the aforementioned Decree 84-365 of 14 May 1984, which provided in Article 3 that enterprises carrying goods by inland waterway where the vessels were registered Antib is a trade association, set up in 1978 in France must be included on the CNBA pending the establishment of a national register, but which made no provision for chamber of waterway carriers, whose non-French carriers to be registered. members pay a subscription and a levy of 0.5% on freight earned.
The agreement of 13 June 1983 between Antib and the forwarding agents' syndicate, which is at issue in these proceedings, provided that a new organization of Non-incorporated firms and individuals 'transport fluvial artisanal' was to be applied having at their disposal one or more vessels from that date. Separate rates were fixed for registered in France and engaged in inland transport internally and for export by inland waterway carriage of goods can become waterway. Those for export included a members, as can non-incorporated carriers 'cotisation EATE', fixed at 10% on freight of non-French nationality if they fulfil the resulting from the operation of the queue definition laid down, but they do not have system. The subscription to EATE was to be the right to vote. taken as a preferred sum from the gross
OPINION OF SIR GORDON SLYNN — CASE 272/85
freight. After deduction of statutory and carriers on purely inland routes, who did customary dues, a commission on the not pay the levy, received benefits from new charter of 7.5%, a del credere commission of contracts and an improved operating 0.5% and a subscription in favour of Antib system, whereas foreign carriers who paid it (eventually to go to the CNBA) of 0.5% on got no comparable benefits on internal such freight, such part of the EATE levy as routes. Such benefits as they did receive by was not repaid to the members of EATE way of increased trade on external routes was to be used for EATE"s administration did not match or outweigh the disad expenses and for commercial purposes for vantages resulting from the discriminatory the benefit of the profession, as decided by manner in which the levy was collected a committee composed of representatives of and refunded. Nor was such benefit EATE and the forwarding agents' syndicate. proportionate to the amount of their contri 5% out of the forwarding agents' bution. Moreover, the conditions required commission also went into the regulation to be fulfilled to justify an exemption were fund. In addition the French Government not satisfied. made a substantial contribution. Since EATE was not yet in existence, the levy was to be dealt with by BASC, the commercial arm of Antib.
The levy was collected for some four months from June to October 1983 and had ceased to be collected before the decision was taken. Antib does not take any point on this. It is right not to do so. In Case 7/82 Belgian and Netherlands carriers quickly GVL v Commission [1983] ECR 483 the protested about this new scheme which they Court recognized that the Commission may considered to be unfair and adversely to have a legitimate interest in issuing a affect their ability to compete. Following an decision that conduct which has already investigation, the Commission concluded been terminated was unlawful. A fine may that this agreement between associations still be appropriate. Of wider significance, it was discriminatory, was liable to affect may be right to issue such a decision so that trade between Member States and did the legal position can be clarified or to distort competition. In the first place the prevent further infringements. charges were levied only on export cargoes which in respect of trade from France to Belgium and the Netherlands (called north-south traffic) was said to be shared almost equally between French carriers and Belgian or Dutch carriers (paragraph 19 of It is also clear that in those four months the decision) and in respect of all interna substantial sums were involved and some tional traffic was said to be accounted for 5 million FF were received by way of the as to 'almost half' by foreign carriers levy, of which 2.21 million FF came from (paragraph 48). Only French carriers non-French carriers. received the refund so that foreign carriers were at a competitive disadvantage. Moreover, the major new business obtained by EATE with the funds collected was largely for the benefit of French carriers in inland traffic from which non-French It seems to me that this levy was beyond carriers were largely excluded. French doubt discriminatory, in favour of those
ANTIB v COMMISSION
French carriers who signified their intention participation in the internal traffic — more to join EATE (in particular those who cargoes, payment for empty trips and operated inland carriage) and to the waiting time, an improved commercial detriment of those who did not or could position — from which the non-French not, in particular those carriers whose owners were largely excluded. In both these vessels were not registered in France and respects — refunds and collateral advan who substantially were limited to export or tages— the French owners' competitive frontier carriage and who paid the levy but position on the external market was or was received no refund. capable of being strengthened. Not only did they get a refund but the more they received by way of earnings on the internal market the better were they able to offer competitive rates and services on the external market. Accordingly, in these two respects, in my opinion competition on the external market was distorted and additionally, within the meaning of Article 2 (d) of the regulation, the agreement did Antib contends that even though the levy 'apply dissimilar conditions to equivalent was discriminatory it did not have as its transactions'. object or effect the prevention, restriction or distortion of competition within the common market. In the first place it is said that the real benefit alleged is the increase in, and improved conditions relating to, internal traffic. Here there was no compe tition since non-French owners were largely excluded. Therefore, there could be no competitive disadvantage for non-French Antib says, however, that this is a miscon owners. This argument seems to me ception. Any benefits enjoyed by French somewhat unrealistic. It is true that the owners were not due to the effect or object foreign owners did not compete on the of the agreement but to French legislation inland market. The Commission's decision, which made it largely impossible for however, is clearly directed to the external non-French owners to participate in the market. The fact is that the non-French internal market. On the basis of the Court's owners paid the levy and did not get it decision in Joined Cases 40 to 48, 50, 54 to back. French owners on that market paid 56, 111, 113 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663 the levy and, subject to deductions, got part there can accordingly be no breach of the of it back. Since for external trade there was competition rules. Therefore, the Com no fixed floor rate for freight, even though mission erred in law. rates may have been influenced by the internal traffic floor rates, there was a possi bility of competition in regard to rates. For one group of traders to get 90% of the freight agreed and for the other to get that amount plus a refund (which Antib has not suggested is insignificant in amount) cannot but make the competitive position of the former disadvantageous. Moreover, those This argument, in my view, is fallacious. French carriers who paid the levy got The French legislation relates primarily to collateral advantages resulting from their internal traffic and, in the absence of appro-
OPINION OF SIR GORDON SLYNN — CASE 272/85
priate measures from the Council The applicant points out that EATE's liberalizing the provision of transport articles of association, which were in services between Member States, it has not existence during the relevant period, laid been suggested that it is incompatible with down no restrictions based on nationality. Community law. The decision, on the other Rather, they provided (so far as relevant) hand, looks at the competitive position on that any 'artisan batelier' could become a the external inland waterway market. member pending the creation of the Nothing in the French legislation required Chambre nationale de la batellerie artisanale the refund of the levy to be limited to (CNBA) after which time EATE members French carriers, nor did it require that a must also be members of the CNBA. While levy on external trade be used predomi it is true that French law restricted nantly to procure improvements in the membership in the CNBA to French- commercial position of French owners on registered boatmen, the relevant decree was the internal market. It did nothing to not passed until 14 May 1984 or over seven require that non-French carriers who had months after the levy ceased to be charged paid the levy should receive, relatively, on 17 October 1983. The applicant accuses disproportionately small benefits from their the Commission of attributing an 'amazing contributions. This resulted from the prescience' to Antib in saying that it was agreement and only from the agreement. aware of the contents of legislation so long The parties were perfectly free, under before it became law. Antib therefore French law, to devise a scheme which did maintains that the levy refund scheme was not produce these distorted effects — and it not discriminatory since the only reason for is not without interest that legislation foreign boatmen not to have become eligible subsequent to the termination of the levy for levy refunds during the relevant period under the agreement imposed a parafiscal was their own failure to indicate an charge on all carriage both internal and intention to join. international with, it seems, no refund limited to French carriers (Decree 84-282 of 9 April 1984 and Finance Law of 1985).
The Commission contends that, on the date The applicant's second argument is that the it entered into the inter-association Commission's criticism of the way in which agreement, Antib must have been aware that the levy was refunded is misguided. While a only French-registered boatmen would be prerequisite of eligibility for refund of the eligible for the refunds. The terms of the EATE levy was a demonstration of intent law restricting EATE membership to CNBA to become a member of EATE, the members were known on the date the Commission's reasoning is based on the agreement was signed, even though the assumption that no foreign carriers could actual law was not passed until the join EATE. This, according to the following month. Since the CNBA was to applicant, was not the case during the be an organization for promoting the period in which the levy was charged. interests of French boatmen, Antib must
ANTIB v COMMISSION
have known or expected that only French- their complaints set out in a telex of 13 June registered carriers would be able to 1983, Antib in its telex of 14 June 1983 (i. e. join — an expectation borne out when the the day after the agreement was signed) did relevant decree was passed on 14 May 1984. not for one moment suggest that the Belgian Moreover, if there had been a realistic prob and Dutch carriers could qualify for the ability that foreign boatmen would be refund by indicating their intention to join eligible for the levy refunds then Dutch and EATE. Moreover, it seems clear that if Belgian carriers would not have complained foreign boatmen had been eligible for so strongly. In any event the Commission, refund of the EATE levy, as Antib claims, as the decision states, would have objected the entire regulation fund would have been to the inter-association agreement's effect repaid, leaving little or nothing for use in on competition even if foreign boatmen had promoting the interests of Antib's or been eligible for EATE membership: the EATE's members. The plain fact is that no benefits they derived bore no reasonable refund of any amount was at any time made relationship to the contribution they made. to any non-French boatman. It seems to me on all the material before the Court that the Commission was fully entitled to conclude that the levy scheme was discriminatory. That would be its effect: that was its effect.
I find Antib's argument somewhat surprising. Despite its assertions of incre dulity, all indications are that Antib must have known that foreign boatmen would be ineligible for the refunds. The inter-asso Antib's next two arguments are intertwined. ciation agreement, and indeed Antib itself, It is said that the Commission failed to were designed to last only until EATE and appreciate the benefit to non-French owners the CNBA were established. It is difficult to from the agreement, alternatively that the believe that Antib was not informed of the reasons given are insufficient to justify the legislative measures being contemplated by refusal of an exemption under Article 5 of the French authorities, particularly as the the regulation. restructuring of the sector had been under consideration for years.
The Commission has not denied that non-French owners got some benefits. Its This view is confirmed circumstantially by case is that they were not proportionate to the complaints of the Dutch and Belgian the level of their contributions and in any boatmen. It is striking that when replying to event that Article 5 is not satisfied when
OPINION OF SIR GORDON SLYNN — CASE 272/85
refunds are made only to some carriers, foreign boatmen just over 58%, the when those who do not receive refunds get Dutch and Belgians taking 42%. no proportionate collateral benefits.
The total increase of tonnage for export by inland waterways from 1982 to 1983 was So far as the internal traffic is concerned it 104 000 tonnes, which is less than 2% of seems from figures put in evidence by the the 1983 total export tonnage. The foreign applicant and prepared by the Office boatmen's tonnage increased by 242 228 national de la navigation, a division of the tonnes, though the combined Belgian and Ministry of Transport, that internal traffic Dutch tonnage fell and was in both years in fact declined from 40 377 842 tonnes in percentage-wise less than the French total. 1982 to 36 535 238 tonnes in 1983 and The increase in 1983 was taken substantially 33 619 153 tonnes in 1984. These figures do by German and Swiss carriers. not, however, distinguish between traffic subject to the queue system and other traffic. On any view it seems, as is agreed by the parties, that even if the volume fell in 1983, substantial contracts were obtained as It is thus right to say, as the Commission a result of the new organization and that did, that the French carriers and the the decline in waterway traffic in relation to combined Belgian and Dutch carriers had road and rail transport was arrested. broadly comparable proportions of the traffic in both 1982 and 1983 (though the latter had marginally less) but overall the totality of foreign carriers took more in each year than the French carriers alone. As to export traffic by inland waterways, the figures prepared by the ONN show that that the export traffic was (rounded to the nearest 100 000 tonnes): The scheme operated for such a short period that it is obviously not possible to know precisely what effect the agreement had on these figures. Other factors may (1) in 1982, 5.6 million tonnes, of which have been at play. The figures have thus to French boatmen carried 45%, all be regarded with some caution, not least foreign boatmen 55%, the Dutch and since it is not known during which part of Belgians taking 42% ; the year the increase took place.
Even, however, assuming that it was the (2) in 1983, 5.7 million tonnes, of which effect of the agreement in the second half of the French carried 42%, all foreign 1983 which produced this increase, it does boatmen 58%, the Dutch and Belgians not seem to me that the figures support the taking 41%; claim made at the hearing that, as a result of the agreement, the non-French carriers increased their share of the available traffic 'considerably', 'spectacularly'or so as to (3) in 1984, 5.7 million tonnes, of which give them an 'infinitely superior share of the the French carried almost 42% and the available export market'.
ANTIB v COMMISSION
Thus, even accepting, as the Commission that, particularly in paragraphs 14, 47 to 50 does, that the non-French carriers gained and 56, the basis of the Commission's some benefit, it seems to me that the approach and its calculation has been suffi Commission was well entitled to accept that ciently set out for Antib to know how it the increase was insufficient to offset the approached the question and for the Court 10% levy paid by the non-French carriers to review its legality. It is always possible and not refunded. This is largely a question with hindsight to pick holes in drafting, of economic appraisal and I do not consider but, accepting as I do, contrary to the that any error of law, misdirection or unrea Commission's contention, that the allegation sonableness has been shown in the of lack of adequate reasoning is raised in Commission's decision. Moreover, although the application, and not merely in the reply, the arguments in the case have developed it seems to me that the allegation has not certain details behind the Commission's been made out in this case. reasoning in the decision, it seems to me
Accordingly, I consider that this application should be dismissed and that the applicant should pay the Commission's costs.