C-178/95

WILJO ν BELGIAN STATE

OPINION OF ADVOCATE GENERAL JACOBS delivered on 19 September 1996 *

1. In this case the Rechtbank van Koophan­ waterway in the Member States shall be sub­ del (Commercial Court), Antwerp, has asked ject to measures for structural improvements the Court to give a preliminary ruling on the in inland waterway transport under the con­ interpretation of Council Regulation (EEC) ditions laid down in this Regulation. N o 1101/89 of 27 April 1989 on structural improvements in inland waterway transport ('the Regulation'). 1

The relevant Community provisions

2. The Regulation was adopted in response 2. The measures referred to in paragraph 1 to the structural overcapacity in the fleets shall comprise: operating on the linked inland waterway net­ works of Belgium, France, Germany, Luxembourg and the Netherlands. It intro­ duces a scheme for the scrapping of vessels coordinated at Community level but financed by the transport undertakings themselves.

— the reduction of structural overcapacity by means of scrapping schemes coordi­ nated at Community level, 3. Article 1 of the Regulation provides:

5. Article 3 of the Regulation requires the Member States concerned to set up a Scrap- ping Fund to be administered by the compe- tent national authorities. The Fund is to have separate accounts for dry cargo carriers and (b) vessels which, owing to their dimen- pusher craft, on the one hand, and tanker sions, cannot leave the national water- vessels on the other. ways on which they operate and cannot enter the other waterways of the Com- munity ("prisoner vessels"), provided that such vessels are not likely to com- pete with vessels covered by this Regu- lation; 6. Article 4 requires owners of vessels cov- ered by the Regulation to pay an annual con- tribution to the relevant Fund. Under Article 6 the rates of the contributions are to be fixed by the Commission, which must ensure that the Funds have sufficient finan- cial resources to make an effective contribu- tion to reducing the structural imbalance (c) — pusher craft with a motive power between supply and demand in the inland not exceeding 300 kilowatts, waterway transport sector. Article 5 provides that any owner scrapping a vessel is to receive a scrapping premium from the Fund to which his vessel belongs in so far as the financial means are available.

— sea-going inland waterway vessels and ship-borne barges used exclus- ively for international or national transport operations during voyages 7. Article 8(1) of the Regulation introduces which include a sea crossing, what is known as the 'old-for-new' rule,

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WILJO ν BELGIAN STATE

which is designed to ensure that the entry of to be brought into service, he pays new vessels on to the market does not jeop­ into the Fund in question a special ardize the scheme. It provides as follows: contribution equivalent to the scrap­ ping premium corresponding at the time to the difference between the tonnage of the new vessel and the tonnage scrapped.

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OPINION OF MR JACOBS — CASE C-178/95

the transport of a particular category of and did not differ greatly from conventional goods and whether it is technically suitable, tanker ships. It therefore contributed to the without modification of its construction, for capacity of the fleet subject to the Regu­ the transport of other goods on inland lation. Wiljo did not challenge that letter by waterways. way of proceedings under Article 173 of the Treaty.

The facts and the national court's questions

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WILJO ν BELGIAN STATE

on inland waterways is the only workable not increase the cargo capacity or the criterion for the purposes of applying tonnage of inland waterway transport Article 8(3)(c) of the Regulation. It is not in and are therefore not of such a nature as a position to monitor the actual use of a ves­ to affect the structural over-capacity of sel. It disputes Wiljo's statements concerning carriage of goods on the linked inland the Smaragd's suitability for navigating waterway networks of the Member inland waterways. Noting that the vessel is States? authorized to navigate the Rhine as far as Basle, it claims that the river is sufficiently deep and its bridges sufficiently high for the vessel, provided that the hydraulic mast is collapsed. The Commission refers to alleged sightings of the vessel on inland waterways. Finally, the Commission denies Wiljo's claim that the treatment of the Smaragd is out of 2. Regard being had to the principle of line with the practice followed with respect proportionality, does not the criterion to other bunkering vessels. of "technical suitability for carriage of goods by inland waterway" applied by the Commission of the European Com­ munities in its decision of 6 May 1993, which makes even vessels which are not actually used for transport on the linked inland waterway networks of the Mem­ ber States subject to the obligation to 13. In the proceedings before the national make a contribution in the framework court Wiljo challenges a letter of 1 October of the "old-for-new" rule, conflict with 1993 from the Belgian State demanding the the objective and purport of Council single contribution to the Scrapping Fund Regulation N o 1101/89 of 27 April 1989 pursuant to Article 8(1 )(a) of the Regulation on structural improvements in inland and to the Commission decision of 6 May waterway transport? 1993. The national court seeks a ruling from the Court on the following questions:

inland waterway transport would be in accordance with the criterion used by wholly unprofitable because the vessel the Commission for vessels operating in is not designed or equipped for inland Belgium, the Netherlands, Luxembourg, transport, sufficient for it to be subject Germany and France, the single contri- to the obligation to make a contribution bution is due in certain cases although in the framework of the "old-for-new" the vessel is not actually used for inland rule? waterway transport and does not there- fore contribute to increasing the ton- nage of inland waterway transport whereas the single contribution on the putting into service of a vessel in the other Member States is due only if that is justified by its actual use (on the net- work of linked Community water- 4. Regard being had to the aim, the general ways)?' objective and the specific purport of Council Regulation N o 1101/89 of 27 April 1989 on structural improve- ments in inland waterway transport, can the decision of the Commission of the European Communities of 6 May 1993 be regarded as applicable to the mts. Smaragd since it subjects to the obli- gation to pay the single contribution in the framework of the "old-for-new" rule a vessel which is especially 14. In order to understand the purpose of designed, constructed and equipped as a those questions, it is necessary to examine bunkering vessel with the exclusive pur- Wiljo's claims before the national court. pose of supplying sea-going ships with According to the order for reference, Wiljo fuel and is not particularly suitable or claims that it is not obliged to pay the con- intended for carriage for a third party, tribution because the Smaragd is a bunkering or even on its own account, of fuel vessel used exclusively for the bunkering of products on inland waterways and sea-going ships and cannot be compared to hence does not increase the cargo capac- an ordinary tanker vessel. Wiljo considers ity of shipping or tonnage of inland that the Commission decision is in conflict transport? with the general purport of the Regulation and contains no proper technical analysis of the characteristics and equipment of the ves- sel. Thus the terms of the order for reference suggest that Wiljo's case before the national court is that the Commission decision is invalid because it is contrary to the Regu- lation. That is confirmed by a reading of 5. Does not the application by the Com- Wiljo's application to the national court, in mission of the criterion of technical which it refers expressly to Article 8(3)(c) of suitability instead of the actual use of the Regulation and concludes with the words the vessel constitute an infringement of 'for those reasons the Commission decision the prohibition of discrimination since, cannot be considered valid'.

16. In that regard it must be remembered that the Court has held that where the valid­ ity of a Community act is challenged before a national court, the power to declare the act 18. Wiljo argued at the hearing that the invalid is reserved to the Court of Justice. 3 judgment in TWD should not be applied in If the Court wished to reply to the national this case. The judgment was given after the court's questions, it would be necessary for expiry of the time-limit for challenging the it to reformulate them and treat them as a Commission decision of 6 May 1993 had request for a ruling on validity. expired. Moreover, it is the national authori­ ties which have primary responsibility for administering the Fund, and it was reason­ able for Wiljo to assume that the Commis­ sion decision could be challenged in pro­ ceedings against those authorities before the national courts, particularly in view of the Commission's statement in the decision that a copy would be sent to those authorities. 17. However, the Commission objects that Wiljo is precluded from challenging the validity of its decision in the national pro­ ceedings by the principle laid down in TWD Textilwerke Deggendorf. 4 There the Court held that T W D could not plead the invalid­ ity of a Commission decision addressed to

19. I am not persuaded by those arguments. 3 — Case 314/85 Foto-Frost ν Hauptzollamt Lübeck-Ost [1987] ECR 4199, paragraph 17 of the judgment. The Court did not see fit to place any limita­ 4 — Case C-188/92 [1994] ECR I-833. tion on the temporal effect of its ruling in

22. I do not think it is necessary for the Court to consider that question. That argu- ment appears nowhere in the order for refer- 20. The Court based its judgment in TWD ence. N o r indeed does it appear in Wiljo's on the principle of legal certainty. The same application to the national court contained in applies here. However, the present case also the national case file transmitted to the illustrates the importance of ensuring that Court. Accordingly, the national court's cases are heard in appropriate proceedings questions are framed in terms not of and in the proper court. Preliminary rulings Articles 1 and 2 of the Regulation but of proceedings are simply inapt where the Article 8(3)(c) of the Regulation and the issues of law to be resolved are interwoven Commission decision; they concern in par- with complex factual issues. Furthermore, in ticular the use by the Commission of the the case of decisions such as that in issue it is the Court of First Instance which should make the necessary findings of fact and 5 — See on the same point paragraph 20 of my Opinion in TWD.

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criterion of technical suitability for carriage the Court under Article 20 of the EC Statute of goods on inland waterways for the pur­ are respected. 6 pose of deciding whether a vessel is a special­ ized vessel qualifying for exemption under Article 8(3)(c). To go beyond the terms of the national court's reference would be irrec­ oncilable with the Court's function under Article 177 of the Treaty, and also with the 23. For the foregoing reasons I do not think need to ensure that the rights of those it is necessary for the Court to reply to the entitled to submit written observations to national court's questions.