C-4/88

My Lords, 3. One of the conditions under Belgian law for holding such authorizations for oper­ ations in and from Belgium is that the operator should have a place of business ('siège ďopération/zetel van het bedrijf') in Belgium; under Belgian law that place of business need not be the sole establishment of the relevant undertaking but it must be a 1. In this case the Court is asked by the genuine 'centre of operations'. For that Belgian Council of State (Raad van State) purpose Lambregts had given an address at to rule on the direct effect of Article Baarle-Hertog in Belgium. In late August 75(l)(a) and (b) of the EEC Treaty in so far and early September 1981, the Belgian as it requires the Council to implement transport authorities, having become freedom to provide services in the transport suspicious about the genuine nature of this sector. The issue is one of considerable address as a 'centre of operations', paid importance, as is apparent from the vital unannounced visits to it and discovered it to economic importance of the transport sector be a locked-up caravan with no outward and from the prominent place accorded by sign of identification and that all post was the Treaty both to the freedom to provide redirected to an address in Breda in the services and to the introduction of a Netherlands. As a result of these visits the common transport policy. Belgian transport authorities wrote to Lambregts stating that they considered its authorizations should be withdrawn since it possessed no genuine centre of operations in Belgium. Despite Lambregts' protests, the authorizations were withdrawn on 24 February 1982. 2. The case arises in the following way. The plaintiff in the national proceedings, Lambregts Transportbedrijf ('Lambregts'), a company having its main establishment in the Netherlands, carried out transport oper­ ations in and from Belgium and held a number of Belgian authorizations for domestic and international transport: 10 general authorizations for domestic transport, 11 general authorizations for international transport and a number of authorizations for frontier-zone and short- distance transport. General authorizations 4. Lambregts contested the withdrawal in for domestic and international transport are an application made on 4 March 1982 to issued by a Member State to a transport the Council of State, and obtained interim undertaking in respect of particular vehicles suspension of the withdrawal from the registered in the name of the undertaking. Court of Appeal of Brussels pending deter-

(2) If the answer to the first question is in the affirmative: under those provisions, 6. Article 75 of the EEC Treaty provides can the retention of licences for as follows: national or international transport issued by the authorities of a Member State to a transport undertaking estab­ lished in another Member State be made subject to the condition that the undertaking concerned have a "centre '(1) For the purpose of implementing of activities" in the first State, or in Article 74, and taking into account the other words that the undertaking distinctive features of transport, the regularly enter into transactions in that Council shall, acting unanimously until State which form part of its business the end of the second stage and by a activities and that it be represented qualified majority thereafter, lay down, there by an agent who is authorised to on a proposal from the Commission deal with third parties on its behalf?' and after consulting the Economic and

LAMBREGTS TRANSPORTBEDRIJF v BELGIAN STATE

(2) The provisions referred to in (a) and (b) of paragraph 1 shall be laid down during the transitional period. 8. Council Directive 65/269/EEC provided for standard types of form authorizing intra-Community carriage of goods by road on a vehicle-by-vehicle basis, either for single journeys or over a period of time. (3) ... '. Article 1 of the Directive provided that the Member States should take the necessary measures to ensure 'that from 1 January 1966, authorizations required for the inter­ national carriage of goods by road to or 7. Before the establishment of the EEC the from the territory of a Member State or Member States had bilateral agreements passing across the territory of one or more with each other providing for the reciprocal Member States shall be issued by the admission of predetermined numbers of competent authorities of the Member State commercial vehicles to carry out transport in which the vehicle to be used for such services in and over each other's territories. carriage is registered'. The State where the It was envisaged that the liberalization of vehicle is registered is in general the State road transpon services would be where the carrier using the vehicles is estab­ progressively achieved by the replacement of lished.

OPINION OF MR JACOBS — CASE 4/88

2. As from the date referred to in paragraph 1, access to the market for trans­ frontier carriage of goods by road within 10. Following the judgment in Case 13/83 the Community will be governed by a Parliament v Council, the Commission system of Community licences issued on the produced a comprehensive proposal for a basis of qualitative criteria. Council Regulation on access to the market for the carriage of goods by road between Member States (Official Journal 1987, C 65, p. 4) providing for substantial increases in the Community quota system Article 4b until 1992, and thereafter a complete abolition of quotas (both Community and bilateral) and the issue of Community auth­ orizations, provided that certain standards are met, which would permit carriers to The Council, acting on the basis of have access to the transport markets without Commission proposals, shall no later than quantitative restrictions. Such authorizations 30 June 1991 adopt pursuant to the would be issued by the authorities of the provisions laid down in Article 75 of the Member State where the carrier is estab­ Treaty, necessary measures to implement lished. Acting on that proposal, the Council Article 4a. adopted Regulation (EEC) No 1841/88 of 21 June 1988 amending Regulation No 3164/76 (Official Journal 1988, L 163, p. 1), which refers in its preamble to the judgment in Parliament v Council and to the Article 4c Council's agreement to the creation of a single market in the international carriage of goods by road without quantitative restrictions by 1992 at the latest. It is necessary to refer only to Article 1(4) of the The volume of those bilateral quotas which remain applicable during the transitional

period must, from 1 July 1988 until their 12. However, in the same judgment, at scheduled abolition, be adapted to the paragraphs 62 and 63, the Court expressly requirements of trade and traffic, including rejected the argument to the effect that on transit.' the expiry of the transitional period under Article 8 of the Treaty the provisions of Articles 59 and 60 were of direct application in the transport sector. The Court pointed out that application of the principles governing freedom to provide services must be achieved, according to the Treaty, by introducing a common transport policy and, more particularly, by laying down common 11. The starting-point for consideration of rules applicable to international transport the first question referred by the Council of and the conditions under which State is the judgment of the Court in non-resident carriers may operate transport Parliament v Council, which examined the services, the rules and conditions of which scope and effects of the obligations of the are referred to in Article 75(1 )(a) and (b) Council under Article 75 of the Treaty, and and necessarily affect freedom to provide in particular the role of freedom to provide services. services in the transport sector. The Court found (paragraph 46 of the judgment) that there was not yet in existence a coherent set of rules which might be regarded as a common transport policy for the purposes of Articles 74 and 75 of the Treaty. As regards, in particular, the freedom to provide services, the Court held that the obligations imposed on the Council by Article 75(l)(a) and (b) included the intro­ duction of the freedom to provide services in relation to transport. The Council was required, pursuant to Article 75(l)(a) and (b), to extend freedom to provide services to 13. The Council of State recognizes that, the transport sector before the expiry of the in the light of that judgment, the Treaty transitional period, as regards international provisions on services could not be relied transport to or from the territory of a upon before the national courts in the Member State or across the territory of one transport sector. The Council of State or more Member States and, within the considers, however, that it is possible that framework of freedom to provide services Article 75(l)(a) and (b) could be relied within the transport sector, to lay down, upon, in so far as it requires the Council to pursuant to Article 75(l)(b) and (2), the implement freedom to provide services in conditions under which non-resident the transport sector, because the Court carriers may operate transport services accepted that those provisions included a within a Member State (paragraph 67 of the specific obligation to extend freedom to judgment). The Court accordingly declared provide services to the transport sector, that in breach of the Treaty the Council had ruled that that obligation was sufficiently failed to ensure freedom to provide services clearly defined to enable the Court to find in the sphere of international transport and the Council in breach of the Treaty to that to lay down the conditions under which extent, and held that the obligation ought to non-resident carriers might operate have been discharged before the expiry of transport services in a Member State. the transitional period.

14. The reasoning of the Council of State (b), taken alone, had direct effect on the has considerable force, since the judgment expiry of the transitional period would be of the Court does indeed show that the inconsistent with the terms of that provisions of the Transport Title do more judgment. than merely confer a general legislative power on the Council but impose specific and precise obligations upon it. In my view, however, it cannot be accepted that the failure of the Council to carry out its obli gations under Article 75(1 )(a) and (b) had the result that those provisions, in so far as

To hold that Article 75(l)(a) and (b), taken alone, had direct effect would be tantamount to giving direct 16. It follows in my opinion from that effect to Article 59 in relation to transport judgment that, in relation to transport, services, notwithstanding the express reser neither the Treaty provisions on services, vation contained in Article 61(1) and the nor the Treaty provisions on transport, nor express ruling in the judgment that Article those provisions in combination, can be 59 did not have direct effect in the transport relied on with regard to events which took sector on the expiry of the transitional place on 24 February 1982 as creating rights

It follows also that the second analysis of the judgment in Parliament v question, which is referred only in the event Council, to hold that Article 75(l)(a) and that the first question is answered in the affirmative, does not require an answer.

18. Before concluding, I should mention a by a final date at which liberalization of point which has been emphasized in services would be achieved. particular by the Netherlands Government. In Parliament v Council, the Court found that it was unnecessary to consider what the consequence would be if, after judgment against it, the Council still failed to act. That issue had been raised in the proceedings, but the Court considered that 20. I agree with the view of the the problem was hypothetical, and would Netherlands Government to the extent that, arise only if the Council failed to comply in my opinion, the judgment in Parliament v with the judgment within a reasonable Council can properly be regarded as leaving period. The Netherlands Government open the possibility that, in the event of a considers that the effect of the judgment in continuing failure by the Council to act that respect is to give the Council a after the expiry of a reasonable period from time-limit to fulfil its obligations to the date of that judgment, the Treaty implement freedom to provide services in provisions might be regarded as, within relation to transport, and it contends that, certain limits, creating rights on which indi on the expiry of that time-limit, the viduals would be able to rely in the national provisions of Article 75(l)(a) and (b), courts. combined with Articles 59, 60 and 61 of the Treaty, must be recognized as having direct effect because the scope and nature of the freedom to provide services in the transport sector have been accepted by the Court as being defined with sufficient precision.

Consequently, as regards the present case, the issue remains a hypo thetical one, and it would not in my view be appropriate for the Court to rule on it. If the question did fall to be decided, it would be necessary in my view to consider whether 19. In response to questions put at the oral the Council had acted with sufficient hearing, the Government did not advance expedition to liberalize transport services, any criteria for determining at what stage inter alia by taking the necessary measures the reasonable period would expire, but the under Article 4a(2) of Regulation agent of the Commission pointed out that, No 3164/76 to implement Article 4a(l) of where the Commission had made a proposal that Regulation, to liberalize also transport to the Council, the Council must be given a services in respect of the conditions under reasonable period to discuss that proposal. which non-resident carriers may operate He also raised the question, referring to transport services within a Member State, Regulation No 1841/88, whether the and, if the question were to arise in relation Council might comply with the requirement to forms of transport other than road of acting within a reasonable time by intro transport, whether the Council had acted ducing a transitional system, accompanied with sufficient expedition to ensure freedom