C-176/97
ECLI:EU:C:1998:90
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COMMISSION v BELGIUM AND LUXEMBOURG
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 5 March 1998 *
1 I — Introduction ber States and third countries (hereinafter 'the Regulation').
II — The legislation
1. In these proceedings the Court of Justice is asked to give judgment in actions for fail ure to fulfil obligations brought by the A — The Community provisions Commission against the Kingdom of Bel gium (Case C-176/97) and against the Grand Duchy of Luxembourg (Case C-177/97).
2. The Regulation entered into force on 1 January 1987 (Article 12).
In these actions the Commission claims that Article 5(1) of the Regulation provides: the two defendant Member States, by enter ing into and maintaining in force agreements concerning shipping cargoes — namely the agreement between the Belgo-Luxembourg Economic Union and Malaysia (hereinafter 'Cargo-sharing arrangements in any future 'the Agreement') which was approved by agreements with third countries are prohib Belgium in its own name and on behalf of ited other than in those exceptional circum the Belgo-Luxembourg Economic Union stances where Community liner shipping and entered into force on 17 August 1987 — companies would not otherwise have an have infringed Article 5 of Council Regu effective opportunity to ply for trade to and lation (EEC) No 4055/86 of 22 December from the third country concerned. In these 1986 applying the principle of freedom to circumstances such arrangements may be provide services to maritime transport permitted in accordance with the provisions between Member States and between Mem of Article 6.'
* Original language: Italian. 1 — OJ 1986 L 378, p. 1.
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OPINION OF MR LA PERGOLA — JOINED CASES C-176/97 AND C-177/97
Article 6 of the Regulation provides inter III — The facts of the case alia that if a Member State's nationals or shipping companies do not have an effective opportunity to ply for trade to and from a particular third country, the Council, acting by qualified majority on a proposal of the Commission, is to decide on the necessary action. Such action may include the negotia tion and conclusion of cargo-sharing 5. The events which led to the bringing of arrangements. these actions can be summarised as follows.
On 23 June 1992 the Commission proposed to the Belgian Government that the Agree B — The provisions of the Agreement ment should be brought into line with Com munity law. The Commission's proposal expresses the view that Articles 2, 3 and 16 of the Agreement are contrary to Articles 5 and 6 of the Regulation.
3. Articles 2, 3 and 16 (in particular, Article 16(2)) of the Agreement contain a series of provisions to the effect that only the national However, the Agreement remained unal shipping companies of the contracting par tered, although the Belgian Government ties may participate in the freight and vol stated on several occasions that it was pre ume of maritime trade between the contract pared to bring it into line with Community ing parties. Ships flying the flag of other law in collaboration with the Luxembourg Member States are excluded from the system Government. set up by the Agreement.
6. The Commission therefore set in train the pre-litigation procedure alleging that the two 4. It is clear from the documents before the defendant Member States were in breach of Court that the Agreement entered into force the provisions of the Regulation as detailed for the contracting states on 17 August 1987. above. As that procedure did not achieve any
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COMMISSION v BELGIUM AND LUXEMBOURG
result, on 5 May 1997 the Commission held that Member States cannot rely on jus brought these two direct actions seeking a tifications of the kind outlined above to deny declaration by the Court that the Member the breach of obligations with which they States in question had failed to fulfil their are charged. The pleadings in this case show obligations. unequivocally that the Agreement was entered into by Belgium and Luxembourg after the entry into force of the Regulation. It is therefore irrelevant that the attempts made by the defendant Member States to assert their right to amend that agreement have not yet achieved any practical result IV — The dispute and that, accordingly, the denunciation of the Agreement appears to be the only means available to them to put an end to the infringement with which they are charged.
V — Costs 7. The defendant Member States acknowl edge that the Agreement is contrary to the abovementioned Community provisions. However, in defence of their conduct, they point to the fact that their attempts to bring about an amendment of the Agreement that 9. Under Article 69 of the Rules of Pro would render it compatible with the Regu cedure, the unsuccessful party is to be lation, notwithstanding the effort they made, ordered to pay the costs if they have been did not achieve any tangible result. More applied for in the successful party's plead over, the defendant Member States consider ings. The Commission has applied for costs. that the outright denunciation of the Agree I therefore propose that the two Member ment as the only means at their disposal, in States in question be ordered to pay the the present circumstances, of putting an end costs. to the infringement with which they are charged, is disproportionate to the objective pursued by the Commission in bringing these actions. 2 — In a number of cases (Case 100/77 Commission v Italy [1978] ECR 879; Case 93/79 Commission v Italy [1979] ECR 3837; Case 137/80 Commission v Belgium [1981] ECR 2393; Joined Cases 30/81 to 34/81 Commission v Italy [1981] ECR 3379; Case 46/88 Commission v Belgium [1989] ECR 1133; Case C-287/87 Commission v Greece [1990] ECR I-125; Case C-240/89 Commission v Italy [1990] ECR I-4853), the Court has held that domestic provisions or administrative practices cannot be relied on to justify a failure to fulfil obli- gations. This case concerns certain provisions of an interna- tional treaty the amendment of which also requires the coop- eration of a third country. However, the case does not differ substantially from those considered in the past in the deci- sions of the Court precisely because the treaty, which con- flicts with Community law, was concluded after entry into force of the Regulation and, given the length of time which has now elapsed, it cannot be argued that this is still a case of 8. In that connection, I would point force majeure (Case 101/84 Commission v Italy [1985] ECR out that the Court has consistently 2629).
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OPINION OF MR LA PERGOLA — JOINED CASES C-176/97 AND C-177/97
VI — Conclusion
In the light of the foregoing observations, I therefore propose that the Court should:
— declare that, by introducing and maintaining in force cargo-sharing arrange ments, in the Agreement between the Belgo-Luxembourg Economic Union and Malaysia which entered into force on 17 August 1987, the Kingdom of Belgium has failed to fulfil its obligations under Article 5 of Council Regu lation (EEC) No 4055/86 of 22 December 1986 applying the principle of free dom to provide services to maritime transport between Member States and between Member States and third countries;
— declare that, by introducing and maintaining in force cargo-sharing arrange ments, in the Agreement between the Belgo-Luxembourg Economic Union and Malaysia which entered into force on 17 August 1987, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 5 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries;
— order the Kingdom of Belgium and the Grand Duchy of Luxembourg to pay the costs.
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