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1. Pinaud Wieger GmbH Spedition (hereinafter referred to as 'Pinaud Wieger'), 4. Pinaud Wieger thereupon brought an whose registered office is in Cologne action for a declaration that it was entitled (Federal Republic of Germany), is a carrier to arrange for Transvenlo to carry out the operating national road haulage services in transport of goods and to agree for that Germany for which it possesses an author- purpose on rates lower than those ization issued by the national authorities. determined in accordance with the legis- lation in force in Germany. The action was dismissed at first instance and on appeal on the basis of the GiiKG, which reserved the carriage of goods in the Federal Republic of Germany to carriers having a place of 2. Pinaud Wieger wished to enter into an business in the Federal Republic of agreement with Transvenlo BV (hereinafter Germany and in possession of the necessary referred to as 'Transvenlo'), a Netherlands authorization under the maximum quota carrier, under which that carrier would laid down by binding order of the Federal undertake to carry out the long-distance Government, and even then only at the rates transport of goods within the Federal laid down pursuant to Paragraph 22 of the Republic of Germany at rates lower than GiiKG. those laid down for that type of transport by the German authorities. Transvenlo is not established in Germany and is not au- thorized to operate long-distance road haulage services there. 5. In the decisions in question it was also held that those statutory conditions were not affected by the EEC Treaty. More particularly, the fact that since 1970 the Council had not, in breach of its obliga- 3. According to the order of the Bundesver- tions, adopted provisions based on Article waltungsgericht which has referred the 75 of the EEC Treaty in respect of interna- matter to the Court by way of a request for tional transport and the authorization of a preliminary ruling, the Federal Office for non-resident carriers to operate transport the Long-Distance Carriage of Goods, the services within a Member State (hereinafter defendant in the main proceedings, referred to as 'cabotage'), even following considered such a scheme to be unlawful the judgment of the Court of Justice of the and, should it proceed, the Federal Office European Communities in Parliament v threatened to institute proceedings pursuant Council· by which that failure to act was to the German Law on the Carriage of 1 — Case 13/83 Parliament v Council [1985] ECR 1513, * Original language: French. Opinion of Advócale General Lenz.

8. The national court, although also 6. Since its action had thus been dismissed, appearing inclined to a negative reply from Pinaud Wieger brought an appeal on a that point of view, then expressed doubts point of law before the Bundesverwaltungs- with regard to the question whether carriers gericht. In substance, it there put forward established in another Member State and an argument to the effect that the authorized only within that Member State restrictions imposed by German legislation to operate transport services could operate, in the field of cabotage operated by an by virtue of Articles 59 and 60, services undertaking established in another Member within Germany under the conditions State had been rendered invalid by the applicable in that State. In any event, the direct effect of Articles 59 and 60. Pinaud national court refers the following question Wieger pointed out that it was primarily to the Court of Justice for a preliminary interested in arranging for Transvenlo to ruling: operate transport services on its behalf at rates below those laid down in accordance with Paragraph 22 of the GiiKG. But it nevertheless stated that even if, contrary to its argument, it were obliged to respect the 'In the light of the continuing failure by the rates in force under that legislation, it Council of the European Communities to would continue to be interested in having ensure freedom to provide services in the Transvenlo operate transport services in the sphere of international transport and to lay Federal Republic of Germany on its behalf. down the conditions under which carriers may be permitted to engage in transport operations within a Member State in which they are not established, are Articles 59 and 60 of the EEC Treaty at least directly 7. In its decision, the Bundesverwaltungs- applicable in so far as an undertaking estab- gericht clearly expressed its opinion with lished in the Federal Republic of Germany regard to Pinaud Wieger's principal claim may not be prohibited from appointing a for a declaration that it was entitled to Netherlands carrier to undertake on its arrange for Transvenlo to provide transport behalf the internal carriage of goods within services at rates lower than that in force in the Federal Republic of Germany, using that State. In that respect, the national court vehicles which are licensed in the considered, first of all, that the four years Netherlands for the carriage of goods and following the judgment in Parliament v at rates generally in force in the Federal Council constituted a reasonable period of Republic of Germany?'

12. The Court inferred from that that, on the precise point of the freedom to provide services, the Council does not have the 10. The legal aspects of this case are well discretion on which it may rely in other known to the Court, since it has had to areas of the common transport policy, since consider on many occasions the difficulties the result to be attained is determined by concerning the implementation of the the combined effect of Articles 59, 60, 61 common transport policy. I shall thus and 75(l)(a) and (b), and that the exercise restrict myself in that respect to an overview of a certain measure of discretion is allowed of the basic stages in that area. only as regards the means employed to obtain that result, bearing in mind, as required by Article 75, those features which are special to transport. 7 11. First of all, the judgment in Parliament v Council.1 In that decision, it should be recalled, the Court declared that the Council had failed to act, in breach of the Treaty, in order to ensure freedom to provide services in the area of international 13. The Court also declared that the transport and to lay down the conditions Council had failed to act inasmuch as it had not extended freedom to provide services to the transport sector before the expiry of 2 — The Commission, for its part, referred to international transport in its observations, stating that, by adopting the transitional period, in conformity with Regulation (EEC) N o 1841/88 of 21 June 1988, the Article 75(l)(a) and (b), an obligation Council had remedied its failure to a c t . It should be recalled that that regulation provides for the abolition of relating to international transport to or from Community quotas, bilateral quotas and quotas for transit traffic to and from non-member countries on 1 January 1993, and that from that date access to the market for 4 — Paragraph 64. transfrontier carriage of goods will be governed by a 5 — Judgment in Case 279/80 Webb [1981] ECR 3305. system of Community licences issued on the basis of quali- tative criteria. 6 — Cited above, footnote 4. 3 — Cited above, see footnote 1. 7 — Paragraph 65.

the territory of a Member State or across Government had then referred to the legal the territory of one or more Member States situation which would result from the (international transport regime) and the Council's persistent failure to act, following conditions under which non-resident the judgment declaring that it had failed to carriers may operate transport services act. More particularly, the Commission had within a Member State (cabotage). 8 considered that, in the event of persistent failure by the Council, in breach of the Treaty, to adopt the provisions needed to apply the principle of freedom to provide services in the transport sector, that 14. However at this point I must refer to principle should be considered applicable at two other aspects of the judgment in the expiry of an 'appropriate period' 1 0 Parliament v Council, which are particularly following a declaration by the Court that relevant in the context of the question at the Council had persistently refused to fulfil present before the Court. its obligations. According to the Commission, evidence of such a negative attitude may, for example, be provided by a failure by the Council to adopt the measures 15. First of all, the Netherlands needed under Article 176 to comply with a Government, intervening in support of the judgment declaring its failure to act. Council, had argued to the effect that on the expiry of the transitional period the provisions of Articles 59 and 60 were directly applicable in the field of transport, a legal situation which rendered pointless any other action by the Council, which was 17. The Court did not rule on the relevance therefore not in the position of having failed of that interpretation and pointed to the to act. The Court rejected that argument, hypothetical nature of the problem. The pointing out that Article 61(1) of the Treaty Court noted that Article 176, which imposes provides that freedom to provide services in on the Council the obligation to comply the field of transport is governed by the with the Court's declaration of failure to provisions of the title relating to transport act, does not prescribe a time-limit and that and that, consequently, the application of therefore it must be inferred that the the principles governing freedom to provide Council is allowed a 'reasonable period of services must therefore be achieved by time' for that purpose. Nor did the Court implementing the common transport policy think it necessary to consider in its decision and, more particularly, by laying down the consequences which might result from a common rules applicable to international prolonged failure to act by the Council. transport and the conditions under which non-resident carriers may operate transport services, the rules and conditions of which are referred to in Article 75(l)(a) and (b). 9

As to the expiry of a reasonable period he considered that: 20. The Court replied clearly that at the material time the rules in force did not authorize freedom to provide services in the 'it is plainly likely, in my view, now that transport sector and that Articles 59 and 60 more than four years have passed since the did not come to have direct effect as a result date of that judgment (and nearly 20 years of the expiry of the transitional period. I since the end of the transitional period) that should point out that, on that last point, the the point will very soon be reached when judgment of the Court limited itself in my that period will expire, if indeed it has not view to confirming the solution in already expired'. ' 3 Parliament v Council, since it had already established that Articles 59 and 60 had no direct effect on 1 January 1970 in the field of transport. As regards a situation falling It should be pointed out that Mr Jacobs between that date and delivery of the delivered his Opinion on 15 June 1989. judgment in Parliament v Council, it was therefore the inferences from that decision which were drawn by the Court in its 22. On 9 November 1989 the Bundesver- judgment in Lambregts. waltungsgericht referred a question to the Court for a preliminary ruling.

23. On 21 December 1989 the Council 21. However Advocate General Jacobs, adopted Regulation (EEC) No 4059/89 who had proposed that conclusion, had, on laying down the conditions under which the other hand, referred subsidiarily to the non-resident carriers may operate national 'continuing failure' to act on the part of the road haulage services within a Member Council and its possible legal consequences. State. M Commenting, with regard to this point, on the observations which the Netherlands 12 — Paragraph 20. Government had submitted in that case 13 — Paragraph 21. inviting the Court to define when the 14 — OJ 1989 L 390, p. 3; the European Parliament brought an reasonable period to which it had alluded to action, which is stili pending, for the annulment of that regulation (OJ 1990 C 110, p. 5) judgment of 16th July in its judgment in Parliament v Council had 1992 (Case C-65/90, [1992] ECR 1-4593).

27. Nevertheless, the Court's reply cannot be confined to a mere reference to Regu- lation N o 4059/89, taking it as settled that, 30. The first stage in my examination is at the date on which the regulation was therefore as follows: was Regulation N o adopted, the reasonable period of time had 4059/89 adopted when the reasonable not expired and that certain legal conse- period for compliance by the Council with quences had therefore not arisen. In that the judgment of the Court in Case 13/83 in respect, the Court must consider the merits the field of cabotage had already expired? of the arguments of Pinaud Wieger, as put forward at the hearing.

31. I have no doubt whatsoever that the 28. According to the plaintiff in the main judgments of the Court, whether they proceedings, since 22 May 1987, 15 that is, declare that a State has failed to fulfil its obligations or that an institution has failed 15 — The plaintiff in lhe main proceedings had referred to 1 July 1987 in its written observations. to act, must be complied with immediately.

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32. As regards judgments of the Court of the Court declaring that they have failed declaring that a Member State has failed to to act. The Court stated that: fulfil its obligations, it follows from the case-law that

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only permissible result is one arrived at by created a climate of uncertainty for under- an analysis carried out in concreto. takings, employees and users in the transport sector and was thus a serious obstacle to the rapid adoption of the proposals for Community legislation submitted by the Commission. As regards 39. In the present case, the Commission cabotage, the Parliament stressed the need submitted on 5 December 1985 18 a proposal to take gradual steps towards liberalization, for a regulation laying down the conditions together with the parallel harmonization of under which non -resident carriers may competition, in particular in the field of operate national road haulage services taxation. within a Member State. That proposal laid down, first, the principle of allowing non-resident carriers to operate national road haulage services from 1 January 1987 and, secondly, from the same date, the operation on the return journey of two 41. However, the Parliament remained consecutive cabotage services in a Member convinced that compliance with the State other than that of establishment judgment of the Court in Parliament v (transport service on the return journey to Council must 'break the deadlock which has the country of registration or origin). held up the establishment of a common According to Article 8, that provision was to policy for more than 25 years'. enter into force on 1 July 1986.

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44. There is no doubt that cabotage traffic encountered by the work of the Council constitutes an 'extremely delicate aspect of would reintroduce at this juncture a common transport policy' 24 and it is consideration of the degree of difficulty considered that allowing non-resident entailed by the obligation imposed on the carriers to operate national road haulage in institution, a factor which the Court has a Member State is 'the most sensitive' of the expressly held to be incapable of having any measures which the Council must adopt bearing on the question whether there has under Article 75 of the Treaty. 2 5 been a failure to act. 28

24 — La Politique Commune des Transports de la CEE dans la 48. The temptation that might exist to Perspective du Marché Unique de 1992, Prométhée, p. 7. accept that the reasonable period had not 25 — Ibid. 26 — Resolution of the European Parliament, cited above (p. expired in 1989 would contain under- 228). currents inimical to the authority of the 27 — It should be recalled that the Court considered that the judgments of the Court, the rigour with Council was obliged to ensure freedom to provide services. The Court did not, however, make a finding of which they must be implemented and, failure to act with respect to other aspects of the common transport policy, considering that the nature of the failure to act on that point was not sufficiently well-defined t o be 28 — 'In that respect it must first of all be observed that the subject of an action under Article 175; the Economic objective difficulties which, according to the Council, and Social Committee comments on that judgment as stand in the way of the necessary progress towards a follows: 'the European Court of Justice stated that the common transport policy are irrelevant for the purposes introduction of the freedom to provide transport services of the present action. Under Article 175 the Court must could not legally be made subject to the prior harmon- find that there has been an infringement of the Treaty if ization of conditions of competition' (Opinion on the the Council or the Commission fails to act when under an 'proposal for the Council Regulation laying down the obligation to do so. Article 175 takes no account of how conditions under which non-resident carriers may operate difficult it may be for the institution in question to comply national road haulage services within a Member State' (OJ with the obligation', paragraph 48 of the judgment in 1987 C 180, p. 37)). Parliaments Council.

'Application of the principles governing freedom to provide services, as established 54. That obligation does not, in my view, in particular by Articles 59 and 60 of the involve any uncertainty as to the objective Treaty, must therefore be achieved, which the Council is required to attain as according to the Treaty, by introducing a regards cabotage: to ensure finally for common transport policy and, more non-resident carriers the possibility of particularly, by laying down common rules having access to national road haulage in applicable to international transport and the other Member States under the same conditions under which non-resident conditions as carriers of that Member State carriers may operate transport services, the without discrimination. No doubt that is a rules and conditions of which are referred requirement laid down for the freedom to to in Article 5(l)(a) and (b) and necessarily provide services by Article 60, which affect freedom to provide services'. 29 provides that 'the person providing a service may . . . temporarily pursue his activity in 29 — Paragraph 62. the State where the service is provided,

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Nevertheless the Community legislature is clearly under an obligation as to the result 57. And it is precisely the question whether to be achieved, which must, in any event, individuals may rely on that result which lead to the realization of the freedom to arises should the Court consider that the provide services, that is to say, to the elim- reasonable time had expired. ination of all discrimination.

60. There is therefore no conflict between 58. There are very serious considerations the obligation to bring about the freedom to which militate in favour of such a possi- provide services in that area and a discretion bility. If there is no legal consequence as regards the methods to be employed for attached to the Council's failure to act after the purpose. In that respect, the power to the expiry of a specific reasonable period lay down conditions includes in particular running from the declaration by the Court the possibility of adopting measures of a failure to act, individuals would have gradually, in other words, of providing for no guarantee of being able to invoke the the realization of the freedom to provide freedom to provide services (as regards in this case cabotage), a freedom which never- 30 — Paragraph 65.

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63. Without placing too much strain on the terms used by my colleague, I cannot dismiss the possibility that he might have 67. It should however be noted that the been hinting at a solution similar to the one case-law of the Court contains at least one which I propose here. case which displays certain similarities to that situation. In the case of Regina v Kirk12 the Court held that, on the expiry of the period of 10 years provided for by Articles 64. However the Court will next have to 100 and 101 of the 1972 Act of Accession explain how such a result may be brought authorizing a derogation from the principle

31 — Paragraph 20 of the Opinion, my emphasis. 32 — Case 63/83 Reginai Kirk [1984] ECR 2689.

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69. None the less, the Council cannot, if it emerges from its inaction, be deprived of its 71. If one now goes on to consider the discretion in prescribing the methods for legislative provisions of the regulation, it achieving the result which it is called upon will be noted in the first place that Article 1 to obtain. However, it is still necessary that provides that, with effect from 1 July 1990, the measure then adopted by it should be any road haulage carrier for hire and such that it may properly be considered that reward who is established in a Member it has in fact carried out its obligations in State and is authorized, in that State, to the matter, thereby putting an end to the operate international road services, is to be legal consequences which its failure to act entitled, under the conditions laid down in had entailed for individuals. The operative the regulation, to operate on a temporary part of Regulation No 4059/89 should be basis national road haulage services for hire examined in order to determine whether this and reward in another Member State measure alone should be regarded as (cabotage), without having a registered governing cabotage. office or other establishment therein.

70. Let us, first of all, recall to mind the recitals, which make it possible to 72. In that respect, Article 2 provides that a summarize the approach adopted by the Community cabotage quota is to consist of legislature in that regulation. The first 15 000 cabotage authorizations, each valid recital points out that, pursuant to Article for two months, and that the quota is to be

77. Those are the essential provisions of the regulation in question.

74. Article 5 lays down the principle according to which the performance of cabotage transport operations are to be 78. During the hearing, the applicant in the subject, save as otherwise provided in main proceedings, who states that this is at Community regulations, to the laws, regu- most a first, if very modest, step towards the lations and administrative provisions in establishment of Community cabotage, force in the host Member State in the areas considers that two fundamental criticisms of rates and conditions governing the may be made of the regulation. First of all, transport contract, weights and dimensions the system for authorizing cabotage reduces of road vehicles, requirements relating to its effectiveness, resulting in a 'rudimentary' the carriage of certain categories of goods form of cabotage. Secondly, Regulation N o (dangerous goods, perishable foodstuffs, live 4059/89 expires in December 1992 without animals), driving and rest time and VAT anyone being certain that at that date a on transport services. Furthermore, the 'cabotage' regulation will be adopted. technical standards which vehicles used to Pinaud Wieger considers, moreover, that, if

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The regulation Dijon' case. In the present case, the therefore establishes an effective, if limited, Netherlands transport system and the initial cabotage system which, within its German Law would then be in competition own limits, respects the fundamental with each other. principle of non-discrimination. For the rest, the progressive nature of that system is ensured by the minimum threshold of the annual increase of the quota provided for in 79. It seems to me that this view should be Article 2. rejected for the following reasons.

transport. Although the Council must as regards the requirements which the definitively achieve that result, it retains, definitive system must satisfy: it must nevertheless, a measure of discretion as to remove all restrictions against the person the methods to be employed for that providing the services in question on the purpose. As I have already said, the gradual grounds of his nationality or the fact that he or progressive nature of the measure which is established in a different Member State it adopts in the area is due precisely to the from the one in which the service is to be exercise of a measure of discretion as provided. Today, as I deliver this Opinion, regards the means employed to obtain that it seems to me that the Court could take result, bearing in mind 'those features which note of those indications without having to are special to transport'. rule on the consequences which would attach to failure to adopt the definitive system which must enter into force on the day following 31 December 1992.

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services. The judgment of the Court in Case possibility of having access to national 13/83 declared that the Council had failed transport without discrimination in relation to act with respect only to the obligations to the conditions which the host State under Article 75(l)(a) and (b), but, on the imposes on resident carriers. other hand, considered that the lack of a common policy 'as such' did not constitute failure to act of a sufficiently well-defined nature to be the subject of an action under 86. Examination of Regulation No 4059/89

84. In that regard I share the opinion of the Commission to the effect that national non-discriminatory conditions in the matter of transport rates — the application of 87. Consequently, I consider that the Court which is provided for in Article 5 of Regu- may hold that, by adopting the regulation in lation No 4059 — are compatible with the question, the Council has set in motion the requirements of the freedom to provide process of complying with the judgment in services in that sphere, provided that they Parliament v Council in the sphere of are in conformity with the provisions of the cabotage. However, the system in force and Treaty and in particular with its rules on the fact that the definitive system, in competition. accordance with the Treaty requirements in the matter, remains to be adopted make it impossible to consider that the failure to act has been completely remedied.

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carriers to national road haulage is with the law as it stands at the time of its governed exclusively by the transitional decision. system provided for in the regulation until 31 December 1992, when the regulation will 89. Consequently, even though I am of the cease to be applicable and will be replaced opinion that a reasonable period had by the definitive cabotage system. I •will expired on the date of the adoption of refrain from discussing here the legal Regulation No 4059/89, it is not necessary situation which would arise from the to determine as well the exact date on absence of a definitive cabotage system on which that period had expired, since the 31 December 1992. legal situation arising from it — the poss- ibility for individuals to invoke the rule of treatment on the same basis as 88. One final observation. The national nationals — no longer constitutes the court is seised of an action for a declaration present state of the law, which alone is of on a point of law which, as has been seen, interest to the Bundesverwaltungsgericht in requires it to give judgment in accordance this case.

90. Concluding these observations, I propose that the Court rule as follows:

'(1) By adopting Regulation (EEC) N o 4059 of 21 December 1989, the Council has taken a first step in performing its obligations under Article 75(l)(b) of the EEC Treaty as regards road transport.

(2) The transitional system introduced by Regulation (EEC) N o 4059/89 of 21 December 1989 governs, until 31 December 1992, the conditions under which non-resident carriers may operate national road haulage services in a Member State other than that in which they are established and will cease to be applicable from that date.