C-170/98

3. The provisions of the regulation which 2. Regulation No 4055/86 is intended to are significant in the present case are those implement Council Regulation (EEC) on cargo-sharing arrangements. In this No 954/79 of 15 May 1979 concerning context, a distinction must be made the ratification by Member States of, or between arrangements contained in exist- their accession to, the United Nations ing agreements and those contained in Convention on a Code of Conduct for future agreements. With respect to the Liner Conferences. 2 In particular, it is latter, Article 5(1) of the regulation pro- intended to 'apply the principle of freedom vides that they 'are prohibited other than in to provide services... to maritime transport those exceptional circumstances where between Member States and between Community liner shipping companies Member States and third countries so as would not otherwise have an effective opportunity to ply for trade to and from the third country concerned. In these cir- * Original language: Italian. 1 — Council Regulation (EEC) No 4055/86 of 22 December cumstances such arrangements may be 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1). 2 — OJ 1979 L 121, p. 1. 3 — See 11th recital.

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permitted in accordance with the provi- (b) where trades not governed by the sions of Article 6'. 4 With respect to exist- United Nations Code of Conduct for ing arrangements, Article 3 provides that Liner Conferences are concerned, these 'shall be phased out or adjusted in agreements shall be adjusted as soon accordance with the provisions of Arti- as possible and in any event before cle 4'. Article 4 provides: 1 January 1993 so as to provide for fair, free and non-discriminatory access by all Community nationals, as defined in Article 1, to the cargo-shares due to the Member States concerned.

(a) where trades governed by the United Nations Code of Conduct for Liner Conferences are concerned, they shall comply with this Code and with the obligations of Member States under Regulation (EEC) No 954/79; 3. Member States shall report to the Com- mission on progress made on the adjust- ments referred to in paragraph 1(b), initi- 4 — My italics. The procedure provided in Article 6 for autho- ally every six months and subsequently risation of new arrangements is as follows: every year. '1. If a Member State's nationals or shipping companies, as defined in Article 1, paragraphs 1 and 2, are experiencing, or are threatened by, a situation where they do not have an effective opportunity to ply for trade to and from a particular third country, the Member State concerned shall inform the other Member States and the Commission as soon as possible. 2. The Council, acting by qualified majority on a proposal of the Commission, shall decide on the necessary action. Such action may include, in the circumstances envisaged in Article 5(1), the negotiation and conclusion of cargo- sharing arrangements. 4. When difficulties arise in the process of 3. If the Council has not decided on the necessary action within six months of a Member State providing informa- adjusting agreements to bring them into tion under paragraph 1, the Member State concerned may conformity with paragraph 1(b), the Mem- take such action as may for the time being be necessary to preserve an effective opportunity to ply for trade in ber State concerned shall inform the Coun- accordance with Article 5(1). 4. Any action taken under paragraph 3 shall be in cil and the Commission. In cases where accordance with Community law and provide for fair, free agreements are incompatible with para- and non-discriminatory access to the relevant cargo shares by nationals or Community shipping companies, as defined graph 1(b) and where the Member State in Article 1(1) and (2). 5. National action in pursuance of paragraph 3 shall be concerned so asks, the Council shall, acting notified immediately to the Member States and the on a proposal from the Commission, take Commission. The consultation procedure established by Council Decision 77/587/EEC shall apply.' appropriate action.'

Ratification of the Agreement was notified by the Kingdom of Belgium on 13 June 1983 and by the Republic of Zaire on 6. The Commission was not satisfied with this reply and, on 11 October 1993, sent 5 — Free translation. the Belgian Government a reasoned opi- 6 — Art. 18(2). Free translation. nion in which it stated that the Agreement,

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in so far as it reserved 40% of maritime Substance traffic to Belgian companies to the exclu- sion of those of other Member States, was contrary to Regulation No 4055/86. This arrangement was in fact considered discri- minatory and contrary, therefore, to Arti- cle 1 of the regulation. Since the Agreement 8. In its submissions, the Commission post-dated the entry into force of the repeats the arguments put forward during regulation, it was prohibited by Article 5 the pre-litigation procedure. The Agree- thereof. The Belgian Government was ment between Belgium and Zaire is therefore called upon to adopt the measures described as an 'existing agreement': Arti- necessary to remedy the position within a cle 18(1) thereof provides that the parties period of two months. are to be bound only after 'the formalities required by their respective legislations have been completed'; those formalities were completed by Belgium upon enact- ment of the Law of 21 April 1983 approv- ing the Agreement, which was notified to Zaire on 13 June 1983, that is to say, 7. However, after a more detailed study of before the entry into force of Regulation the case, the Commission reached the No 4055/86. conclusion that the Agreement could be regarded as an 'existing agreement' and therefore governed by Articles 3 and 4 of the regulation. Consequently, on 11 April 1996 a supplementary letter of formal notice was sent to the defendant govern- ment; in this the Commission noted that it The Commission goes on to argue that the had not received any communication Agreement is governed by Articles 3 and 4 regarding adjustment of the Agreement. of the regulation. It should therefore have been adjusted, under Article 4(l)(a), as from the time that Belgium ratified the United Nations Code of Conduct for Liner Conferences, that is to say, with effect from 30 March 1988.

desired by the Commission. This amend- Regulation allows the Member States until ment has not yet been completed because of 1 January 1993 to make the adjustment. the difficult political situation in the On the other hand, no period of time is Republic of Zaire, which has now become allowed for the other category of maritime the Democratic Republic of the Congo. transport, that relevant to the present case. And the failure to allow a period for adjustment of that category of trades means that they must be adjusted immediately, as soon as the State concerned has ratified the However, the Belgian Government does not Code of Conduct. In the case of the King- share the Commission's view that the dom of Belgium, such ratification took Agreement should have been adjusted as place on 30 March 1988. from the time that Belgium ratified the United Nations Code of Conduct for Liner Conferences, that is to say, with effect from 30 March 1988. It contends, furthermore, that to denounce the Agreement would be Next, as regards the contention that to disproportionate, as it also contains provi- denounce the Agreement is disproportion- sions which do not conflict with Regulation ate, I accept the Commission's reply that no No 4055/86. such denunciation was sought; the Com- mission merely requested that the Agree- ment be adjusted to make it compatible with the provisions of the regulation. Denunciation of the Agreement in its 10. However, I cannot agree with the entirety would have been necessary only if arguments put forward by the Belgian the other Contracting Party had not Government — which in any case do not accepted the amendments needed. lead it to contend that the application be rejected. As regards determination of the date from which the Agreement must be adjusted, the Commission properly observes that Article 4(1) makes a distinc- I therefore consider that the Commission's tion between trades which are governed by action is well founded and that Belgium has the Code of Conduct and trades which are failed to fulfil its obligations under Regula- not. It is only in respect of the latter that the tion No 4055/86.

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