Opinion of the Advocate General — ECLI:EU:C:1997:92
Date: 1997-02-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Transport — Inland waterway transport — Structural improvements — Scrapping system —
Whether appropriate within the meaning of the relevant Treaty provisions — Principles of
equal treatment and proportionality — Rights to property and to pursue a trade or business
— Infringement — None
(EEC Treaty, Art. 75(1)(c); Council Regulation No 1101/89)
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SUMMARY — JOINED CASES C-248/95 AND C-249/95
2. Preliminary rulings — Assessment of validity of a measure — Situation to be taken into
account as it existed at the time the measure was adopted
(EC Treaty, Art. 177)
1. In giving the Council the task of adopting
a common transport policy, the Treaty
has conferred wide legislative powers
upon it as regards the adoption of appro­
priate common rules. In reviewing the
exercise of such powers, the Community
judicature cannot substitute its own
assessment for that of the Community
legislature, but must confine itself to
examining whether that latter assessment
contains a manifest error or constitutes a
misuse of powers, or whether the auth­
ority in question did not clearly exceed
the bounds of its discretion. Where
implementation by the Council of a com­
mon policy requires it to assess a complex
economic situation, its discretion is exer­
cisable not only in relation to the nature
and scope of the provisions which are to
be adopted but also, to a certain extent, to
the findings as to the basic facts, espe­
cially in the sense that it is free to base its
assessment on findings of a general
nature.
In the light of those principles, it does not
appear that, by adopting Regulation No
1101/89 on structural improvements in
inland waterway transport, the Council
clearly exceeded the bounds of its discre­
tion. The method it chose to deal with the
undeniably serious economic and social
situation in the sector, which aims at
reducing structural overcapacity by intro­
ducing a scrapping scheme coordinated at
Community level but financed by the
sector itself, would appear to be an
appropriate contribution to the structural
improvement of the sector, and thus to
alleviating its problems. The line of argu­
ment that the scrapping programme was
not 'appropriate' within the meaning of
Article 75(1)(c) of the Treaty, as it stood
at the time the programme was adopted,
must therefore be rejected.
Nor are the rules in question vitiated by
defects capable of rendering them invalid.
More particularly, the obligation on ves­
sel owners to pay contributions to a
scrapping fund does not infringe the prin­
ciples of equal treatment or proportional­
ity, the fundamental right to property or
the freedom to pursue a trade or business.
2. The assessment of the validity of a meas­
ure which the Court is called upon to
undertake on a reference for a prelimi­
nary ruling must normally be based on
the situation which existed at the time
that measure was adopted. Even if the
validity of a measure might, in certain
cases, be assessed by reference to new fac­
tors which arose subsequently to its
adoption, the documents before the
Court do not permit the conclusion that
any such factors exist in this case.
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