C-153/93
ECLI:EU:C:1994:157
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DELTA SCHIFFAHRTS- UND SPEDITIONSGESELLSCHAFT
OPINION OF ADVOCATE GENERAL DARMON delivered on 19 April 1994 *
Mr President, 3. The Court ruled that Members of the Court,
'Article 3(f), the second paragraph of Art 1. Whilst the tariff-fixing procedure which icle 5 and Article 85(1) of the EEC Treaty do applies in the Federal Republic of Germany not preclude State rules which provide that to the carriage of goods by road, and which tariffs for the long distance carriage of goods is laid down in the German Law on the car by road are to be fixed by tariff boards and riage of goods by road (Güterkraftverkehrs are to be made compulsory for all economic gesetz, hereinafter 'the GüKG'), was at the operators, after approval by the public origin of the Reiff case, 1it is the compulsory authorities, if the members of those boards, procedure for the approval of tariffs laid although chosen by the public authorities down in the German Law concerning inland acting on a proposal from the professional waterways transport (Binnenschiffsverkehrs circles concerned, are not representatives of 2 gesetz, hereinafter 'the BSchVG') which is those circles, called on to negotiate and con at the centre of the dispute in the present clude an agreement on prices, but are inde case. pendent experts called on to fix the tariffs on the basis of considerations relating to the public interest and if the public authorities do not abandon their prerogatives, by ensur ing in particular that the boards fix the tariffs by reference to considerations relating to the public interest and, if need be, substituting 2. In its judgment in Reiff the Court consid their decision for that of the boards, do not 5 ered that it could not be inferred from rules relinquish their powers'. of the GüKG type that there was an agree ment, decision or concerted practices within the meaning of Article 85 of the EEC 3 Treaty and that such rules did not constitute delegation by the public authorities of their powers in the matter of 4 fixing tariffs to private economic operators. 4. Let me say at once that the few details which distinguish the procedure for the determination of tariffs for the carriage of goods overland from the procedure concern- * Original language: French. 1 — Judgment in Case C-185/91 [1993] ECR I-5801. 2 — As published on 8 January 1969, BGBl I, p. 65. 3 — Paragraphs 15 and 19 of the judgment. 4 — Paragraphs 20 and 23. 5 — Operative part of the judgment.
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ing the carriage of goods by inland waterway ment of the Court, and will then examine the do not, in my opinion, prevent that decision few features which are peculiar to the from being applied in this case. present case and which cannot, as I have said, result in the Court's diverging from that judgment.
5. However, when asked whether, following the judgment of the Court, it would with draw its question, the national court main tained it, not by reason of the differences 9. I pointed out that the composition of the which might exist between the problems tariff boards on the one hand, and, on the raised by those two procedures, but because, other hand, the fact that an agreement since it disagreed with the solution adopted between undertakings which is not of itself by the Court, it concluded, for its part, that enforceable but is subject to approval may 6 there was a cartel. constitute a cartel could have led to the belief 8 that there was an real 'risk of a cartel'. However, I considered that such a risk could be neutralized where (1) only the State deter mines the criteria for defining the content of the decisions of the tariff boards and ensures 6. The tariff-fixing procedure laid down in the observance of those criteria by means of Paragraph 21 of the Bschvg leads, according administrative and judicial review and (2) it to the national court, to a '... renunciation by 9 controls every step of the procedure. the State of its regulatory powers', 'the pow ers of the Minister for Transport to fix the tariffs himself for reasons relating to the public interest (being reduced) to an alto 7 gether theoretical competence'. Further more, the tariffs are not fixed by indepen dent authorities. 10. I concluded that the tariff-fixing proce dure in question had never lost the character 10 of legislation.
7. These are all points to which the Court has already replied.
11. In its judgment the Court held, first, that the tariff boards, composed of experts in tariff matters who are not bound by orders or instructions, cannot be regarded as meet 8. I will first recall the position I adopted in ings of representatives of undertakings in the the Reiff case and the content of the judg
8 — See paragraphs 82 and 84 to 104 of the Opinion. 6 — Letter of 30 December 1993. 9 — See paragraphs 105 to 129 of the Opinion. 7 — Ibid. 10 — Paragraph 129.
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relevant sector 11and that they do not deter mined by freight commissions for inland mine tariffs on the basis of the interests of waterways (Paragraph 21), composed of rep the undertakings or of the associations of resentatives of the barge owners and shippers undertakings in that sector but have to take who vote by groups. They are appointed by account of other interests specified by stat the Federal Minister for Transport on a pro ute. Thus, the members of those boards are posal from the professional associations not representatives of undertakings who are (Paragraph 25(1)) . The expanded commis called upon to conclude an agreement on sions, which are competent if the freight prices. 12 commissions fail to agree, are composed of the shippers' group, the shipping group, and an independent chairman appointed by the Minister and two independent assessors, each appointed by one of the two groups (Para graph 25(5)) . Members of the freights com 12. Secondly, the Court considered that the missions and of the expanded commissions public authorities had not delegated their hold honorary office and are not subject to powers in the matter of fixing tariffs to pri orders or instructions (Paragraph 25(6)). vate economic operators. By laying down rules for the tariff-fixing procedure, the leg islature is pursuing an objective in the public interest: '... to bring about an optimum transport service and [confer] on the Federal Government the task of harmonizing the 15. The commissions are subject to supervi conditions of competition between modes of sion by the Federal Minister of Transport. transport and to ensure an economically 13 The tariffs are subject to his approval (Para judicious division of tasks between them'. graph 28(1)) and made of general and com Furthermore, the Federal Minister for Trans pulsory application by ministerial order port retains control of the procedure before (Paragraph 29(1)). the tariff boards, for which he may substitute if the tariff adopted is not in accordance with 1 the public interest. 4
16. Where transport prices do not corre spond with the approved tariff, the compe 13. I will now consider the national rules tent waterways and inland navigation board applicable in the present case. may recover the difference on behalf of the Federal Government (Paragraph 31(3)).
14. Under the BSchVG the rates for the car riage of goods by inland waterway are deter 17. The slight differences which distinguish the BSchVG from the GüKG could lead to the belief that the risk of there being a cartel 11 — Paragraph 17. is increased in this case. I am thinking prin 12 — Paragraphs 18 and 19. cipally of the status of the members of the 13 — Paragraph 21. 14 — Paragraph 22. commissions.
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18. I nevertheless consider that, just as in the latter remunerations, unjustified discrimina field of the carriage of goods by road,that tion against agriculture or medium-sized risk is neutralized by the role which the rules businesses and against areas which are eco in question reserve to the State. nomically weak or have poor transport ser vices must be avoided'.
19. Let me consider those two points in turn.
23. Moreover,
20. It is true that the members of the com missions, appointed on the authority of the Minister acting on a proposal from the pro fessional associations concerned, are not 'tar iff experts' as in the case of the GüKG. Nev 'In order to bring about an optimum trans ertheless, they are bound neither by mandate port service the Federal Government shall nor by instructions (Paragraph 25(6) of the endeavour to harmonize the conditions of BSchVG). competition between modes of transport and to ensure an economically judicious division of tasks between them' (Paragraph 33(1)). 'The Federal Minister for Transport shall harmonize services and prices of the various modes of transport in order to avoid unfair 21. It is true that the Minister of Transport competition' (Paragraph 33(2)). cannot himself take part in the meetings or be represented at them.
22. Nevertheless, the commissions do not 24. The inland waterway freight commis have a free hand in fixing tariffs but must sions must take their decisions in accordance base themselves on the criteria imposed by with statutory requirements (Paragraph 21). the Law: Paragraph 21(2) of the BSchVG Any fixing of tariffs by the commissions provides as follows: which does not meet those criteria and those objectives is not to be approved.
'Remunerations must take account of market conditions and of the economic situation of navigation undertakings and undertakings engaging in transportation by raft; they are 25. Finally, and most importantly, the Fed fixed remunerations or minimum or maxi eral Minister for Transport may substitute mum remunerations. In determining the himself for the commissions 'where reasons
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relating to the public interest (Gründe des giving rise to the judgment of the Court in allgemeinen Wohls) so require' (Paragraph BNIC v Clair. 15 30).
28. As I pointed out in my Opinion in Reiff,
'Such rules do not confirm a pre-existing 26. As may be seen, the tariffs adopted may agreement between undertakings. They do not reflect private interests and must take not make enforceable an agreement con into account criteria based on the public cluded outside the administrative authorities. interest. By administrative and judicial con They organize, regulate and impose tariffs trol the State ensures that those criteria are within the framework of a state procedure. taken into account by the commissions. There is, therefore, undoubtedly, an active Moreover, it is in control of all the stages of policy of the State underlying the procedure, the procedure for the adoption of the tariffs. and not merely a private initiative'. 17
29. I conclude that under a system for fixing tariffs for the carriage of goods, such as that set up by the BSchVG, the public authorities 27. There is, therefore, in this case no cartel have not delegated their powers in the matter freely formed by the operators concerned on of fixing tariffs to private economic opera the basis of their own interests, as in the case tors.
30. I therefore propose that the Court rule as follows:
Articles 3(f), 5 and 85 of the EEC Treaty do not preclude national rules from empowering commissions composed of members appointed by the public authori-
15 — My emphasis. The German Government cites in this 16 — Case 123/83 BNIC v Clair [1985] ECR 391. respect the remuneration for transport of gravel from the 17 — Paragraph 126 of the Opinion. Upper Rhine fixed directly by Ministerial Order following an inappropriate decision of the inland waterway freight commission. The Federal Minister has in the past been able to address directives to the commissions. A letter of 26 April 1991 thus encouraged them to show greater flexibility (observations of the German Government, paragraphs 21 and 23).
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ties acting on a proposal from the professional associations in the sector concerned to fix tariffs for the carriage of goods by inland waterway, provided that the deci sions of those commissions have to comply with criteria laid down by a public authority and, if those criteria are not observed, should not be approved by that authority, can be replaced by an administrative decision and, in any event, can be reviewed by the courts by means of an action brought against the decision granting approval.
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