C-171/98

COMMISSION V BELGIUM AND LUXEMBOURG

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 20 April 1999 *

1. The present case relates to the cargo- Legislative background sharing arrangements in certain agreements concluded by the Kingdom of Belgium and the Grand Duchy of Luxembourg, in the context of the Belgo-Luxembourg Eco- nomic Union (hereinafter 'the BLEU'), with Togo, Mali, Senegal and Côte d'Ivoire. The 2. Regulation No 4055/86 is intended to Commission maintains that conclusion of implement Council Regulation (EEC) the agreements with Mali and Togo is No 954/79 of 15 May 1979 concerning contrary to Article 5 of Council Regulation the ratification by Member States of, or (EEC) No 4055/86 of 22 December 1986 their accession to, the United Nations applying the principle of freedom to pro- Convention on a Code of Conduct for vide services to maritime transport between Liner Conferences.2 In particular, it is Member States and between Member intended to 'apply the principle of freedom States and third countries. 1 It also alleges to provide services... to maritime transport that the Member States in question between Member States and between infringed Articles 3 and 4(1) of that reg- Member States and third countries, so as ulation by failing either to adjust the progressively to abolish existing restrictions agreements with Senegal and Côte d'Ivoire and prevent the introduction of new restric- in such a way as to provide for fair, free and tions'. 3 Article 1(1) of the regulation pro- non-discriminatory access by Community vides that 'freedom to provide maritime nationals to the cargo shares due to Bel- transport services between Member States gium and Luxembourg or to denounce and between Member States and third those agreements. countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended'.

4 — My italics. The procedure provided in Article 6 for autho- risation of new arrangements is as follows: '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. National action in pursuance of para- 2. The Council, acting by qualified majority on a proposal of the Commission, shall decide on the necessary action. graph 1 shall be notified immediately to the Such action may include, in the circumstances envisaged in Article 5(1), the negotiation and conclusion of cargo- Member States and the Commission. The sharing arrangements. consultation procedure established by 3. If the Council has not decided on the necessary action within six months of a Member State providing informa- Council Decision 77/587/EEC shall apply. tion under paragraph 1, the Member State concerned may take such action as may for the time being be necessary to preserve an effective opportunity to ply for trade in accordance with Article 5(1). 4. Any action taken under paragraph 3 shall be in accordance with Community law and provide for fair, free and non-discriminatory access to the relevant cargo snares by nationals or Community shipping companies, as defined in Article 1(1) and (2). 5. National action in pursuance of paragraph 3 shall be notified immediately to the Member States and the 3. Member States shall report to the Com- Commission. The consultation procedure established by Council Decision 77/587/EEC shall apply.' mission on progress made on the adjust-

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OPINION OF MR LA PERGOLA — JOINED CASES C-171/98, C-201/98 AND C-202/98

to third countries is not transported by The pre-litigation procedure them, the remainder shall be divided equally by freight and by volume between the national shipping lines of the Republic of Mali and the national shipping lines of the BLEU.' 6

8. The Commission formed the view that the cargo-sharing arrangements provided 7. Lastly, I turn to the agreement concluded for in the agreements concluded by Belgium and Luxembourg, in the context of the on 19 October 1984 between the Republic BLEU, with — respectively — Senegal, of Togo and the BLEU. Article 4(2) thereof Côte d'Ivoire, Mali and Togo reserved provides: shares of maritime traffic for vessels flying the flags of the contracting parties. These arrangements were therefore discrimina- tory and contrary to the provisions of Regulation No 4055/86. In letters of for- mal notice of 10 April 1991 and 9 Novem- ber 1995, sent to the Kingdom of Belgium and the Grand Duchy of Luxembourg 'As regards maritime freight traffic (liner respectively, the Commission initiated the traffic) between the countries of the two pre-litigation procedure provided for in Parties, whatever the port of loading or Article 169 of the Treaty. The Commission unloading, the Contracting Parties agree to stated that the agreements concluded with apply the principle of sharing cargoes on Senegal and Côte d'Ivoire were contrary to the basis of strict equality of rights and Articles 3 and 4(1) of Regulation according to criteria of tonnage of paying No 4055/86, and that those concluded unit and value of the freight, the latter with Mali and Togo were in breach of criterion taking precedence. Article 5 thereof.

11. Luxembourg does not dispute the The agreements with Mali and Togo, on the Commission's complaints but — stran- other hand, are 'future agreements', since gely — contends that the action should be they came into force after Regulation dismissed. On the substance, Luxembourg No 4055/86. These agreements could, simply refers to the defence lodged by therefore, under Article 5 of the regulation, Belgium in Case C-201/98. However, in be permitted only in exceptional circum- those proceedings, the Belgian Government stances, but such circumstances do not exist neither disputed the failure to fulfil obliga- in this case. tions, nor contended that the application should be rejected. I therefore consider that Luxembourg's failure to fulfil obligations is being contested merely formally, but not in substance. Consequently, I am of the opi- 10. The Kingdom of Belgium does not nion that the actions brought by the dispute that it has failed to fulfil its Commission should be upheld.

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OPINION OF MR LA PERGOLA — JOINED CASES C-171/98, C-201/98 AND C-202/98

Conclusion

12. In the light of the foregoing considerations, I propose that the Court should:

— uphold the actions brought by the Commission in Cases C-171/98, C-201/98 and C-202/98;