C-354/89
ECLI:EU:C:1991:106
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0354
- Zdroj
- eur-lex.europa.eu ↗
SCHIOCCHET v COMMISSION
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 7 March 1991 *
My Lords, agreement, the dispute may be resolved by the Commission (Article 14).
3. The criteria governing a decision to 1. In this case a French bus operator grant or refuse authorization are laid down (S. à r. 1., Schiocchet hereafter 'Schiocchet') in Article 8 of Regulation No 517/72, seeks the annulment of a Commission which provides as follows: decision addressed to France and Luxembourg settling a dispute between them over the establishment of an interna tional bus service. The decision required the competent Luxembourg authority to '1 . Examination of an application to authorize a Luxembourg bus operator introduce a regular service or a special (Autocars Emile Frisch S. à r. 1., hereafter regular service shall be for the purpose of 'Frisch') to introduce a 'special regular establishing that the traffic to which the service' to convey workers living in Thil and application relates is not already catered for various other villages in Lorraine to a in a satisfactory manner, both as to quality porcelain factory in Luxembourg city and as to quantity, by existing passenger operated by a firm trading under the name transport services. 'Villeroy et Boch'.
2. The following, in particular, shall be taken into consideration during the exam 2. The contested decision was adopted ination referred to in paragraph 1 : under Anicie 14 of Council Regulation No 517/72 of 28 February 1972 on the introduction of common rules for regular and special regular services by coach and bus between Member States (Official (a) the current and foreseeable transport Journal, English Special Edition 1972 (I), needs which the applicant is planning to p. 143). Under that regulation a bus service meet; of the type in question cannot be operated without an authorization. The decision to grant or refuse an authorization is to be taken by agreement between the Member States in whose territories passengers are to (b) in the case of regular services, the state be taken up or set down (Article 13). Where of the passenger transpon market in the those Member States cannot reach areas in question.
* Original language English.
I- 1785
OPINION OF MR JACOBS —CASE C-354/89
3. During the examination referred to in The timetable for the service proposed by paragraph 1, consideration may be given to Frisch was more convenient than that of the whether an equivalent transport service service envisaged by Schiocchet for the 6.00 could be organized by undertakings already a.m. shift; operating in the areas concerned.'
4. In the present case Frisch applied for Schiocchet did not envisage any service to authorization to the Luxembourg authorities cater for the 2.00 p.m. shift. on 9 January 1986. The Luxembourg auth orities were in favour of granting author ization, but the French authorities were opposed to the service in question, on the ground that it would be detrimental to the 6. Schiocchet lodged its application interests of Schiocchet and would upset the contesting that decision on 20 November balance hitherto obtaining between 1989. The Commission makes no challenge Schiocchet and Frisch (see Annex III to the to admissibility under Article 173 of the application). Luxembourg referred the Treaty and I accept that Schiocchet is dispute to the Commission, which adopted directly and individually concerned by the the contested decision on 7 September 1989 contested decision. It may be noted in (Decision 89/524/EEC, Official Journal addition that, since the contested decision 1989 L 272, p. 18). was published on 21 September 1989, the application was lodged within the limitation period of two months prescribed by Article 173.
5. The Commission based its decision on the grounds inter alia that:
7. Schiocchet makes three submissions:
The proposed service met the requirements laid down in Article 8 of Regulation No 517/72; First, the Commission should have taken a negative decision on Frisch's application because that company has a 'long tradition of illegality', whereas Schiocchet has always It fulfilled a proven need, since it would complied scrupulously with the applicable provide a service at convenient times for legislation. Frisch operated a service for the some 50 workers who did not at present Villeroy et Boch workers without the auth have public transport to the Villeroy et Boch orization required by Regulation factory to arrive for and return from the No 517/72 between 1970 and 1976. Frisch 6.00 a.m. and 2.00 p.m. shifts; has continued its 'tradition of illegality' by altering the timetable and itinerary of the service which was the subject of the contested decision without prior author It would call at certain places that lacked ization, contrary to Article 4(2) of Regu public transport at those times; lation No 517/72. In particular, the
I- 1786
SCHIOCCHET v COMMISSION
morning bus now departs at 4.30 a.m. rather the Commission committed a manifest error than 4.20 a.m. and three of the villages or misuse of power or manifestly exceeded mentioned in the authorization are not in the limits of its power of appraisal: see, for fact served. example, Case 29/77 Roquette v France [1977] ECR 1835. Even if the contested decision did not involve the evaluation of a complex economic situation, there must still be limits to the scope of the judicial review to be exercised by the Court. The Court Secondly, the Commission should have should not substitute its own appraisal for taken a negative decision because the that of the Commission. requirements of Article 8 of Regulation No 517/72 were not satisfied. Article 8(2)(a) requires an examination of 'the current and foreseeable transport needs which the applicant is planning to meet'. The Commission should have realised that 9. I cannot see how Schiocchet can be said the transport needs which Frisch was to have established that the Commission planning to meet were already satisfied, at exceeded the imits of its power of appraisal least in part, by Schiocchet. Part of the in deciding that the service proposed by route to be operated by Frisch is already Frisch should be authorized. served by Schiocchet, which also takes Villeroy et Boch employees to work. The rest of the route is the subject of applications from Schiocchet for author ization to extend its services. Those 10. As regards the first submission, applications antedate Frisch's application for concerning Frisch's 'long tradition of permission to set up the contested service. illegality', the Commission rightly points out that the illega ity referred to came to an end on 10 August 1982, when the Commission adopted Decision 82/595/EEC (Official Journal 1982 L 244, p. 32). Since that date the services operated by Frisch have been Thirdly, the contested decision has the duly authorized. Alleged illegalities effect of ousting Schiocchet from the route occurring before that date could not be in question and places Frisch in a monopoly taken into account in the context of a situation. decision taken in 1989. As regards the unauthorized alterations to the service subsequent to the contested decision, the Commission points out that it could not take into account an alleged illegality that had not yet occurred. 8. The parties do not go into the question what margin of appraisal the Commission has when taking a decision under Article 14 of Regulation No 517/72 or to what extent the Court should be willing to review the merits of such a decision. If the decision 11. In any event, the alterations were rela could be said to involve the evaluation of a tively unimportant and it is questionable complex economic situation, judicial review whether they needed authorization. Since would be confined to the question whether the service in question is intended specific-
I- 1787
OPINION OF MR JACOBS — CASE C-354/89
ally for the Villeroy et Boch workers and did not fit in with the working hours of not for the general public, there would Villeroy et Boch (in particular, Schiocchet clearly be no point in stopping to pick up provided no service for the afternoon shift). passengers in villages where no such workers at present reside. That could well explain why Frisch has decided to exclude three villages from the route. The elim ination of three stops perhaps explains why the bus can depart ten minutes later than 13. Schiocchet's final submission is that the originally planned. But the service now decision ousts it from the route in question being provided by Frisch is essentially the and confers a monopoly on Frisch. The gist same service as that which was authorized of the argument appears to be that the by Decision 89/524; its purpose is to ensure service authorized by the contested decision that Villeroy et Boch workers who live in a duplicates, in part, the service operated by number of specified villages in Lorraine get Schiocchet and that the competition from to work on time in Luxembourg. In the Frisch will harm Schiocchet so severely that circumstances I question whether minor it will be forced to terminate its service, thus variations in the timetable and route, such leaving Frisch in a monopoly situation. I do as those that appear to have been made, not find that argument convincing for a required prior authorization under number of reasons. Article 4(2) of Regulation No 517/72, which must in any case be construed flexibly and with common sense.
14. First, as the Commission points out, it was not required, when examining an application to introduce a special regular service, to have regard to the 'state of the passenger transport market' under Article 8(2)(b) of Regulation No 517/72; it merely had to consider whether the traffic to which the application related was catered for in a 12. The submission based on the terms of satisfactory manner by existing passenger Article 8 of Regulation No 517/72 is transport services. As I have already stated equally unconvincing. Under Article 8(1) of in connection with the second submission, the regulation the Commission was required the Commission gave valid reasons for to examine whether the traffic to which concluding that that question was to be Frisch's application related was already answered in the negative. catered for satisfactorily by existing services. Article 8(2) required particular consideration to be given to the 'current and foreseeable transport needs which the applicant is planning to meet'. As the Commission has pointed out, the services 15. Secondly, the service operated by offered by Schiocchet did not cater for the Schiocchet is different from the service to be needs of the Villeroy et Boch workers as set up by Frisch inasmuch as (a) it is not satisfactorily as those proposed by Frisch restricted to workers at the Villeroy et Boch because (a) certain villages were not served factory but is intended for the general by Schiocchet and (b) Schiocchet's timetable public and (b) it picks up passengers
I- 1788
SCHIOCCHET v COMMISSION
somewhat later and is therefore more likely for concluding that the Villeroy et Boch to be of interest to persons who work workers manning the 6.00 a.m. and 2.00 orthodox hours, rather than shift-workers p.m. shifts would be best served by a special starting at 6.00 a.m. In the defence the service that catered for their specific needs Commission points out that the service by delivering them directly to their place of operated by Schiocchet arrives in work at the appropriate time. Luxembourg at 6.45 a.m. and is therefore unsuitable for workers whose shift begins at 6.00 a.m. In its reply Schiocchet does not attempt to answer that point directly, but simply refers to attestations annexed to the application from Villeroy et Boch workers 16. Even if the effect of the Commission's who express their satisfaction with decision on competition were a factor that Schiocchet's services. It is not clear whether should be taken into account, and even if those persons work the 6.00 a.m. shift or the decision was liable to have the effect of not. But if they do, it is difficult to see how depriving Schiocchet of some of its business, they can be satisfied with a service that gets I do not see how so limited a potential them to work at 6.45 a.m. In the circum effect could suffice to render the decision stances the Commission cannot be criticized unlawful.
17. Accordingly, I am of the opinion that the Court should dismiss the application and order the applicant to pay the costs.
I- 1789