C-88/86

1. The College van Beroep voor het Bedrijfsleven has referred to the Court four questions on the interpretation of Regu- 5. The reasons on which the decision was lation (EEC) N o 517/72 of the Council of based had to be given and Member States 28 February 1972 on the introduction of were to ensure that legal and natural common rules for regular and special persons would have 'the opportunity to regular services by coach and bus between make representations concerning their Member States (Official Journal, English interests, by appropriate means' with regard Special Edition 1972 (I), p. 143) as amended to the latter type of decision. In the by Council Regulation (EEC) No 1301/78 preamble it was specified that opportunities of 12 June 1978 (Official Journal 1978, were to be afforded to transporters to L 158, p. 1). appeal in respect of decisions taken by the Member States concerning the choice of the applicant to whom the licence was to be granted. 2. Before analysing those questions it is worth comparing certain characteristics of Regulation N o 517/72 with the proposal which the Commission submitted to the Council on 17 July 1969 (Doc. COM(69) 6. Finally it was specified in Article 18 that 485 final). 'pursuant to the decisions taken (by agreement between the Member States) and those taken by the Commission (if the Member States fail to agree) the Member 3. Under that proposal decisions regarding State shall grant, renew, vary or withdraw applications for the granting and renewing the licence'. of a licence and for the introduction, variation and cancellation of a bus service, were to be taken by agreement between the Member States over whose territory the 7. Regulation N o 517/72 in its final form services concerned were to pass (Article 16). also provides for decisions to be taken either The Commission's proposal did not provide by agreement between the Member States for any appeal against those decisions. (Article 13 (1)), or by the Commission (Article 14 (1)) or, additionally, by the Council (Article 14 (2)) but under Article 16 that initial decision is followed by a decision 4. In contrast, if more than one applicant taken by the competent authority of the submitted applications to introduce the same Member State in whose territory the head-

(i) grants an authorization for the intro- That competent authority first analyses duction of a service; whether the application submitted by a transport undertaking must be granted, (ii) authorizes a variation of the conditions taking into account transport services subject to which a service is operated, already existing in the national territory or notifies the holder of the authori- of that Member State. zation of that variation; The authority then sends the application, with a favourable or unfavourable (iii) renews the authorization, or opinion, to the other Member States concerned. (iv) formally refuses the application. If the authority's opinion is favourable it requests the agreement of those States. 9. Under Article 16 (2) the decisions of the Finally, if there is agreement by all the competent authority must state the reasons Member States concerned, the authority on which they are based and Member States grants the authorization or, if either the are to 'ensure that transport undertakings in authority itself or the competent their capacity as such are given the oppor- authority of one or more of the other tunity to make representations concerning Member States concerned is opposed to their interests, by appropriate means, in the granting of the authorization, it respect of such decisions'. However in the refuses the application. The final preamble to the regulation as finally decision must be deferred if one of the adopted that opportunity is no longer Member States concerned brings the described as an 'appeal'. matter before the Commission.

(b) The competent authority 'Must Article 16 (2) of Regulation (EEC) N o 517/72 of the Council be interpreted to 15. In the instant case this is the Committee the effect that it is sufficient if a Member for the Authorization of Transport Services. State provides, in its national legislation That Committee informs the Minister of its implementing that regulation, for a position (see paragraph 7 of Article 13 (b) procedure which allows interested parties, of the Uitvoeringsbesluit Autovervoer before a decision concerning any application Personen (Implementing Order on is taken, to submit written objections against Passenger Transport), hereinafter referred that application within 30 days of its being to as 'the Order'). Thereupon, 'once the deposited for public inspection?' decision concerning the application has been adopted, the Minister shall inform the Committee thereoP (paragraph 8 of Article 19. The plaintiffs in the main proceedings 13 (b) of the Order). The Committee then (Bovo Tours BV and Van Nood Tour- adopts its own decision and transmits copies ingcars BV) and the Commission suggest thereof to the Minister. that the first question should be answered in the negative, whereas the United Kingdom, the French and the Netherlands 16. Under the Netherlands system the Governments and the third party joined to 'competent authority' and the 'Member the main proceedings are in favour of an State' (that is to say the Minister) are two affirmative response. distinct entities and, to a certain extent rivals since in this case the Committee expressly published an opinion different 20. In essence, the question is whether the from that of the Minister although it was second subparagraph of Article 16 (2) of ultimately obliged to bow to the Minister's Regulation N o 517/72 requires Member will (see the last part of section 3 of the States to give transport undertakings the judgment making the reference). opportunity to call in question decisions taken under Article 16 (1) after they have been adopted. 17. I thought it appropriate to draw the Court's attention to those two possible interpretations in order to stress that certain 21. It is plain that those Member States of the problems raised before the College which grant the interested parties the oppor- van Beroep voor het Bedrijfsleven are attrib- tunity to present written objections with utable to the way the regulation has been regard to an application to introduce a implemented in the Netherlands. coach service before the decision on the

application is taken thereby give those 27. It is also conceivable that the parties a certain power to influence the application might be refused solely because decision. of the opposition of the Member State in whose territory the undertaking has its headquarters because that S u t e considered 22. But is that enough in the light of the that there was no transport need to be wording of Article 16 (2)? T o my mind it is catered for on the proposed route (assuming not. Article 16 (2) provides: 'Decisions that the other Member State refrained from taken by the competent authorities of the bringing the matter before the Commission). Member States pursuant to paragraph 1 Is it to be assumed in such cases that the must state the reasons on which they are applicant has already 'made representations based. Member States shall ensure that concerning its interests' when submitting its transport undertakings in their capacity as application, and that it should not be given such are given the opportunity to make any opportunity to challenge the validity of representations concerning their interests, by the decision? The answer is clearly no. appropriate means, in respect of such decisions'. 28. The decision might also concern only the identity of the transport undertaking 23. It is clear that the decisions in question allowed to operate the service (for example are those whereby the 'competent auth- when an authorization is being renewed). orities' grant or refuse the applications for Again, it does not seem to me that the authorization. expression 'make an application' and the expression 'make representations concerning one's interests' are exactly one and the 24. The Community legislature wished to same. ensure that the transport undertakings could, by reading the reasons on which the decision was based, apprise themselves of 29. Finally, it is interesting to note that the justification for the reasons and the Article 16 of Regulation (EEC) No 1191/69 conditions under which the authorization of the Council of 26 June 1969 on action by was granted, refused or varied. It is only Member States concerning the obligations once they are able to ascertain what those inherent in the concept of a public service in reasons are that the undertakings are really transport by rail, road and inland waterway in a position to judge whether or not their (Official Journal, English Special Edition interests have been adversely affected. 1969 (I), p. 276), reads as follows:

Journal, English Special Edition 1969 (I), p. 35. As I shall explain later when examining 283) is identical except that the words the reply to the second question, I consider 'transport undertakings' are replaced by the that in that situation also the authorization words 'railway undertakings'. will constitute a national decision. The courts or any other national body having jurisdiction will be able to examine the agreement given by the authority of the 31. The Council therefore based itself on country where the undertaking has its head- two regulations in which the relevant quarters in so far as its own territory is provision indubitably provided for concerned in order to check in particular subsequent challenge of all decisions taken whether the relevant criteria set out in under those regulations. Articles 8, 9 and 11, of the regulation which are directly applicable have been correctly applied. If they have not been, the court or other body can, if necessary, cancel the authorization in so far as its own territory is 32. None the less, the United Kingdom, the concerned. Government of the Netherlands and the third party in the case take the view that ex post facto review would be 'inappropriate', 'largely devoid of purpose', or even 'marginal' and that therefore the second 36. Before Regulation No 517/72 was subparagraph of Article 16 (2) must be adopted a transport undertaking had to interpreted as requiring only a procedure of , obtain several authorizations, each valid for the type which exists in the Netherlands. the territory of one of the Member States involved. The innovation brought about by the regulation consists in the fact that it is no longer necessary for the transport 33. In any event it is clear that when the operator itself to seek the agreement of the refusal is attributable only to the attitude of other Member States and it possesses a the Member State where the undertaking single authorization which is valid for the has its registered office or when the decision whole route. Nevertheless, even under the concerns simply the identity of the under- new system each Member State gives its taking authorized to operate a route the agreement only for its own territory. It must introduction of which is not in dispute or therefore be possible to challenge that which already exists, the appeal would be partial agreement separately. directed towards the real maker of the decision (subject to what is said below concerning the situation in the Netherlands). 37. If the route was to be operated by a consortium which included an undertaking from the other Member State involved the authorization granted to that undertaking 34. What is the situation if the authori- would automatically lapse if the agreement zation to introduce a particular regular of the competent authority of the first service was granted following agreement by Member State for the operation of the route two or more Member States and an on its territory were vitiated. (That would interested party wishes to have that authori- obviously not be the case if the decision did zation withdrawn or cancelled, as in the not concern whether or not the route is to case pending before the College van Beroep be operated but concerned simply the voor het Bedrijfsleven? identity of the operator).

38. When the Minister, and not the undertaking has its headquarters would not 'competent authority' under Article 16, serve any practical purpose. On the other enjoys the real decision-making power, as is hand, the applicant or its partner in the the case in the Netherlands, it appears to me other Member State whose application will that the decisions of those bodies must be ex hypotbesi also have been refused, may considered as one, that is to say the decision bring an appeal before the competent bodies of the public authorities of the Member of that State. State in question. The Member State acts through the competent authority. Any action against a decision of the competent 43. In all the above hypotheses it is authority is in fact directed against the certainly possible that the submissions upon decision of the Member State. which an applicant could rely would be limited, for example, to manifest error or misuse of powers, in view of the wide 39. A Member State may not render a discretion which the Member States, the provision of a regulation wholly ineffective Council and the Commission undoubtedly by means of its detailed rules for enjoy with regard to this type of decision. implementing that regulation. But the same is true of many decisions of an economic nature and that is not a reason to attribute to Article 16 (2) a meaning it does not have. 40. But that is what would happen if an appeal against the decision of the competent authority was dismissed or declared inad- missible because of the limited power of that 44. Finally, subsequent review would also authority and if no appeal lay against the make it possible to check whether formal decision of the Minister for Transport on requirements were observed, whether the the grounds that it was not a decision of the adoption procedure was properly carried competent authority within the meaning of out, whether there was in fact agreement Article 16. with the other Member State and whether that decision was in conformity with the decision of the Council or the Commission. Such review is therefore not devoid of any 41. If the decision adopted under Article 16 practical significance. is merely the transposition of a favourable or unfavourable decision of the Council or Commission the tribunal or court before 45. Another objection to subsequent review which the case is brought can refer a has been derived from Article 16a which question to the Court of Justice of the was inserted in Regulation No 517/72 by European Communities concerning the Council Regulation (EEC) No 1301/78 of validity of that decision. There too, ex post 12 June 1978 (Official Journal 1978, L 158, facto review would not be devoid of p. 1). That provision allows the issuing of a practical significance. provisional authorization, inter alia when the decision on renewal of an authorization cannot be taken before the authorization 42. By contrast, it must be acknowledged expires, in particular because of objections that, if the authorization was refused made by other interested carriers. following opposition from a Member State other than that where the undertaking has its headquarters, an appeal by the applicant 46. The United Kingdom takes the view to the courts of the Member State where the that if the Council had intended to oblige

II — The second question 49. Furthermore, Anicie 16a deals mainly with the case where several undertakings from the same Member State are competing 53. The second question is worded as for an authorization. That is mainly, and follows : probably even exclusively, a matter for the competent authority of the country where those undertakings have their headquarters. 'Must "decisions on applications to introduce a regular service taken by agreement between the Member States in whose territories passengers are to be taken 50. Before concluding my observations on up or set down", as referred to in Article 13 this question, I must also allude to a (1) of Regulation No 517/72, be regarded problem which the Netherlands court has as: not raised in its questions, that is to say the nature of the 'appropriate mean/ whereby the undertakings must have the opportunity to (a) decisions of the Member State in which 'make representations concerning their the undertaking applying for authori- interests'. zation has its headquarters taken by that

OPINION OF MR MISCHO —CASE 88/86

Member State only after the other measure may be necessary to implement a Member States concerned have given Community regulation, that measure is not their assent; thereby transformed into an act which may be equated with a decision of an institution.

or 57. I do not understand why the same (b) multilateral decisions adopted jointly by cannot also be true when the regulation several Member States following inter- concerned provides for the cooperation of national negotiations; two or more Member States and only then for an act of the Commission or Council if the States are not in agreement. or

55. In my view the principles established by 61. Secondly, if the interpretation of Article that judgment rule out the possibility of 16 (2) which I suggested when considering alternative (c) being the correct interpre- the first question is accepted, that is to say tation. that Member States are thereby obliged to guarantee transport undertakings the oppor- 56. The characteristic of the Community tunity to make representations concerning system is that administration is indirect or their interests after the competent authority decentralized. Merely because a national has adopted a decision, the conclusion

1 — Judgment of 27 September 1979 in Case 230/78 Eridania v 2 — On this issue, see in particular: Jürgen Schwarze: 'Das Minian jar Agriculture and Forestry [1979] ECR 2749, at allgemeine Völkerrecht in den innergemeinschaftlichen- p. 2771, paragraph 34. Rechtsbeziehungen', in Europarecht, 1983, Volume 1, p. 1.

BOVO TOURS v MINISTER VAN VERKEER EN WATERSTAAT

necessarily follows that the Council precisely 64. Other arguments also indicate that no did not take the view that those decisions technical meaning under the law of treaties were international agreements exempt from should be attributed to the expressions review by national courts. In this way it 'decisions by agreement' (Article 13 (1)), wanted to preclude reliance on concepts 'negotiations' (Article 14 (1)) or 'agreement' similar to the act of State doctrine being (Article 14 (1) and (3)). used to defeat such appeals.

OPINION OF MR MISCHO —CASE 88/86

Although the problem is posed in simpler Minister states that 'over one year ago the terms in the case of air carriers than in the United Kingdom authorities declared that field of road transport, it none the less they were prepared to grant the relevant seems to me that this example also proves authorization'. That tends to suggest that that all those transport authorizations the decision is a national decision which is involve not 'multilateral decisions adopted adopted following the assent of the other jointly by several Member States following Member State concerned. international negotiations' within the meaning of point (b) of the second question but decisions taken by a Member State after the other Member States concerned have given 69. Finally, the following considerations their assent, within the meaning of point (a) drawn from the text of Regulation No of the same question. 517/72 also indicate that the measure in question is not an agreement subject to the classic rules of international law.

BOVO TOURS v MINISTER VAN VERKEER EN WATERSTAAT

the model operating rules adopted by the under public international law for a State to Council acting under Article 5 (1) of Regu- implement an agreement concluded between lation No 517/72. two other countries.

73. (d) The procedure for drawing up the 76. The system thus set up by the Council decision is not blocked if one of the in Regulation N o 517/72 is perhaps strange Member States involved uses its right of and complex, but we must, in my view, take veto, for the matter may be brought before the system as it is and ensure that it is the Commission. The decision-making effective, even if that requires a particularly power passes either to the Commission or to broad interpretation and even if the the Council. Either the Commission's or the provisions in question do not appear in the Council's decision could be contrary to the proposal for the recasting and consolidation position of the Member State on whose of Regulations Nos 117/66, 516/72 and territory passengers are taken up or set 517/72 which the Commission has recently down because under the second put before the Council (Official Journal, subparagraph of Article 14 (2) Council C 120, 6.5.1987, p. 9). Article 20 of that decisions are adopted by a qualified proposal however confirms very clearly that majority. Under classic international law the decisions concerned are national there is scarcely any possibility of over- decisions adopted after agreement by the coming a State's veto. competent authorities of the other Member States concerned.

'In the event of the Court's considering that 82. Article 8 (1) reads as follows: 'Exam- the interpretation set out in part (c) of ination of an application . . . shall be for the Question 2 is correct, is the decision which purpose of establishing that the traffic to the Netherlands Minister for Transport, which the application relates is not already Water Control and Construction catered for in a satisfactory manner, both as announced — and for which he stated the to quality and as to quantity, by existing reasons — in his letter of 17 November passenger transport services'. 1983 invalid on the ground that, for the reasons given in the body of this judgment, it conflicts with Article 190 of the EEC 83. The Council could easily have added Treaty and/or Regulation N o 517/72 in the words 'by coach or bus' or 'by road'. particular Article 8 thereof?' However it did not do so.

84. Article 8 (2) provides 'The following, in 79. In my view this question is devoid of particular, shall be taken into consideration purpose since I consider that the decision in during the examination referred to in question cannot be equated with an act or paragraph 1: decision of a Community institution.

(a) the current and foreseeable transport needs which the applicant is planning to IV — The fourth question meet,

(b) in the case of regular services, the state 80. The last question is worded as follows: of the passenger transport market in the areas in question'.

88. Certainly, it is the task of the national court to assess whether a means of crossing 90. Let me add for the sake of completeness the Channel which cannot accommodate that the comparison must relate to services coaches and which therefore necessitates linking the same points of arrival and baggage being transhipped several times is departure and should not take into of equivalent quality to a mode of transport consideration shuttle services or occasional which avoids that and whether a night service can be regarded in exactly the same services. way as a daytime service.

91. For all the reasons set out above I 89. While it is true to say that a choice consider that the alternative suggested in the between several transport services in itself second branch of the fourth question is the constitutes a qualitative improvement and is correct one.

Conclusion

In s u m m a r y I suggest t h a t t h e questions asked by t h e College van B e r o e p v o o r het Bedrijfsleven should be a n s w e r e d as follows:

'(1) O n a t r u e i n t e r p r e t a t i o n of Article 16 (2) of R e g u l a t i o n N o 5 1 7 / 7 2 each M e m b e r State is required t o e n s u r e t h a t t r a n s p o r t u n d e r t a k i n g s have the o p p o r t u n i t y t o m a k e r e p r e s e n t a t i o n s c o n c e r n i n g their interests in respect of decisions referred t o in Article 16 (1) after t h o s e decisions have actually been t a k e n by t h e c o m p e t e n t a u t h o r i t y of t h e M e m b e r State c o n c e r n e d a n d n o t merely at t h e stage p r e c e d i n g t h e a d o p t i o n of those decisions.