61973CJ0036_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 36/73
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SECTION FOR ADMINISTRATIVE LITIGATION OF THE RAAD VAN STATE ( NETHERLANDS COUNCIL OF STATE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
NV NEDERLANDSE SPOORWEGEN ( NETHERLANDS RAILWAY COMPANY ) OF UTRECHT, APPELLANT,
AND
NETHERLANDS MINISTER OF TRANSPORT AND WATERWAYS, RESPONDENT,
Subject of the case
ON THE INTERPRETATION OF ARTICLES 2, 4, 5 AND 10 OF REGULATION NO 1191/69 OF THE COUNCIL OF 26 JUNE 1969 ON ACTION BY MEMBER STATES CONCERNING THE OBLIGATIONS INHERENT IN THE CONCEPT OF A PUBLIC SERVICE IN TRANSPORT BY RAIL, ROAD, AND INLAND WATERWAY,
Grounds
1 BY DECISION OF 28 FEBRUARY 1973, WHICH FOLLOWED A ROYAL DECREE OF 26 JANUARY 1973 AND WAS LODGED AT THE REGISTRY ON 2 MARCH 1973, THE SECTION FOR ADMINISTRATIVE LITIGATION OF THE RAAD VAN STATE, ACTING UNDER ARTICLE 177 OF THE EEC TREATY, REFERRED VARIOUS QUESTIONS OF INTERPRETATION RELATING TO REGULATION ( EEC ) NO 1191/69 OF THE COUNCIL OF 26 JUNE 1969 ON ACTION BY MEMBER STATES CONCERNING THE OBLIGATIONS INHERENT IN THE CONCEPT OF A PUBLIC SERVICE IN TRANSPORT BY RAIL, ROAD AND INLAND WATERWAY ( OJ L 156, 1969, P . 1 ).
2 IT IS CLEAR FROM THE DECISION REFERRING THEM THAT THESE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS CONCERNING THE DECISIONS TAKEN BY THE MINISTER OF TRANSPORT FOLLOWING APPLICATIONS MADE BY THE NETHERLANDS RAILWAY COMPANY, APPELLANT IN THE MAIN ACTION, IN WHICH, IN REGARD TO BOTH PASSENGER TRAFFIC AND THE VARIOUS FORMS OF GOODS TRAFFIC, THE COMPANY ASKED TO BE RELIEVED OF THE WHOLE OF THE PUBLIC SERVICE OBLIGATIONS AS DEFINED IN THE REGULATION .
ON THE FIRST QUESTION
3 THE FIRST QUESTION ASKS WHETHER THE VIEW ADOPTED BY THE MINISTER OF TRANSPORT THAT THE APPELLANT HAS NO TARIFF OBLIGATION WITHIN THE MEANING OF REGULATION NO 1191/69 IS BASED ON AN INCORRECT INTERPRETATION OF ARTICLE 2, AND ESPECIALLY ARTICLE 2 ( 5 ), OF THAT REGULATION .
4 AN ANSWER TO THIS QUESTION APPEARS TO BE NECESSARY TO ENABLE THE NATIONAL COURT TO DETERMINE THE RESPECTIVE LEGAL RIGHTS OF THE PARTIES IN THE ADMINISTRATIVE PROCEDURE INSTITUTED UNDER SECTION II AND, PARTICULARLY, ARTICLES 4 AND 6 OF REGULATION NO 1191/69 .
5 IN THIS CONNECTION, THE APPELLANT IN THE MAIN ACTION REGARDS ITSELF AS BOUND BY A " TARIFF OBLIGATION " WITHIN THE MEANING OF REGULATION NO 1191/69 ON ACCOUNT OF ARTICLE 28 OF THE NETHERLANDS RAILWAYS LAW, WHICH PROVIDES IN GENERAL TERMS THAT TARIFFS FOR PASSENGER AND GOODS TRANSPORT SHALL BE SUBMITTED FOR APPROVAL BY THE MINISTER OF TRANSPORT .
6 IN THE APPLICATION WHICH GAVE RISE TO THE DISPUTED DECISIONS, THE APPELLANT IN THE MAIN ACTION ASKED TO BE RELIEVED OF THE SAID OBLIGATION .
7 AS THE MINISTER FOR TRANSPORT HAS NOT RULED ON THE APPLICATION, THE APPELLANT REGARDS ITSELF AS HAVING BEEN RELIEVED OF THE OBLIGATION INVOLVED BECAUSE THE COMPETENT AUTHORITIES FAILED, WITHIN THE PRESCRIBED TIME LIMITS, TO TAKE A DECISION AS REQUIRED BY ARTICLE 6 ( 5 ) OF THE REGULATION .
8 THE MINISTER OF TRANSPORT, ON THE OTHER HAND, BELIEVES THAT THE PROVISIONS OF ARTICLE 28 OF THE RAILWAYS LAW DO NOT CONSTITUTE A " TARIFF OBLIGATION " WITHIN THE MEANING OF REGULATION NO 1191/69 AND THAT THEREFORE THERE WAS NO NEED FOR HIM TO RULE ON THE APPLICATION SUBMITTED BY THE APPELLANT INSOFAR AS IT PURPORTED TO RELATE TO A TARIFF OBLIGATION .
9 FROM THE FOREGOING IT IS CLEAR THAT THE QUESTION OF INTERPRETATION RAISED BY THE NATIONAL COURT IS WHETHER THE GENERAL OBLIGATION IMPOSED BY LAW ON TRANSPORT UNDERTAKINGS TO SUBMIT THEIR TARIFFS FOR APPROVAL BY PUBLIC AUTHORITY COMES WITHIN THE MEANING OF THE WORDS " TARIFF OBLIGATION " IN ARTICLE 2 ( 5 ) OF REGULATION NO 1191/69 .
10 ARTICLE 2 ( 5 ) OF THE REGULATION DEFINES A TARIFF OBLIGATION AS BEING " ANY OBLIGATION IMPOSED UPON TRANSPORT UNDERTAKINGS TO APPLY, IN PARTICULAR FOR CERTAIN CATEGORIES OF PASSENGER, FOR CERTAIN CATEGORIES OF GOODS, OR ON CERTAIN ROUTES, RATES FIXED OR APPROVED BY ANY PUBLIC AUTHORITY WHICH ARE CONTRARY TO THE COMMERCIAL INTERESTS OF THE UNDERTAKING AND WHICH RESULT FROM THE IMPOSITION OF, OR REFUSAL TO MODIFY, SPECIAL TARIFF PROVISIONS ".
11 UNDER THIS PROVISION, THE DISTINGUISHING FEATURES OF A TARIFF OBLIGATION ARE NOT ONLY THAT RATES ARE FIXED OR APPROVED BY PUBLIC AUTHORITY BUT ALSO THAT IT SATISFIES THE DOUBLE CONDITION THAT " SPECIAL " TARIFF OBLIGATIONS FOR CERTAIN SPECIFIED CATEGORIES OF PASSENGER OR GOODS, OR ON CERTAIN ROUTES, SHOULD BE INVOLVED, AND THAT, IN ADDITION, THEY SHOULD BE CONTRARY TO THE COMMERCIAL INTERESTS OF THE UNDERTAKING .
12 THIS INTERPRETATION IS CONFIRMED BY THE SIXTH PARAGRAPH OF ARTICLE 2, WHICH EXCLUDES FROM THE DEFINITION OF TARIFF OBLIGATIONS " GENERAL MEASURES OF PRICE POLICY " AND " MEASURES TAKEN WITH RESPECT TO TRANSPORT RATES AND CONDITIONS IN GENERAL WITH A VIEW TO THE ORGANIZATION OF THE TRANSPORT MARKET OR OF PART THEREOF ".
13 A LEGAL OBLIGATION OF GENERAL APPLICATION WHEREBY TRANSPORT RATES ARE SUBMITTED FOR APPROVAL BY PUBLIC AUTHORITY CANNOT, THEREFORE, OF ITSELF, BE REGARDED AS CONSTITUTING A " TARIFF OBLIGATION " WITHIN THE MEANING OF THE PROVISION CITED .
ON THE SECOND QUESTION
14 THE SECOND QUESTION ASKS WHETHER ARTICLES 4 AND 5 OF REGULATION NO 1191/69 MUST BE INTERPRETED AS MEANING THAT " ECONOMIC DISADVANTAGES " WITHIN THE MEANING OF THE REGULATION CAN ARISE ONLY WHEN THEY MAKE THEMSELVES FELT OVER A LONG TERM, OR, AT THE VERY LEAST, OVER MORE THAN A YEAR .
15 THIS QUESTION AROSE OVER AN APPLICATION MADE BY THE APPELLANT IN THE MAIN ACTION UNDER REGULATION NO 1191/69 WITH A VIEW TO OBTAINING COMPENSATION IN RESPECT OF ONE YEAR - 1972 - FOR THE ECONOMIC DISADVANTAGES IT CLAIMS TO HAVE INCURRED AS A RESULT OF PUBLIC SERVICE OBLIGATIONS IN HANDLING PARCELS TRAFFIC, NOTWITHSTANDING THAT, IN THE FOLLOWING YEAR, THIS TYPE OF TRANSPORT WAS PROVIDED BY ANOTHER UNDERTAKING .
16 IN THE APPELLANT' S VIEW, THE REGULATION DOES NOT RULE OUT THE POSSIBILITY OF ECONOMIC DISADVANTAGES EXTENDING OVER A PERIOD OF ONLY A YEAR AND ACCORDINGLY GIVING RISE TO COMPENSATION UNDER THE REGULATION .
17 ON THE OTHER HAND, WITHOUT RULING OUT THE POSSIBILITY THAT ECONOMIC DISADVANTAGES COULD BE ESTABLISHED ON THE BASIS OF RESULTS IN A SINGLE FINANCIAL YEAR, THE MINISTER OF TRANSPORT NORMALLY REQUIRES THESE DISADVANTAGES TO BE SHOWN AS EXISTING OVER A LONGER PERIOD OF ACCOUNT .
18 COMPENSATION FOR ECONOMIC DISADVANTAGES WORKED OUT FOR A SINGLE YEAR COULD ONLY BE GIVEN IN ASSOCIATION WITH DISADVANTAGES OF A FUNDAMENTAL NATURE AND NOT WITH PURELY TEMPORARY LOSSES, AND WITHOUT PREJUDICE TO EXPLORATION BY THE COMPETENT PUBLIC AUTHORITY OF IMPROVEMENTS IN OPERATIONAL PROCEDURES WHICH COULD AVOID THE LOSSES INCURRED .
19 ARTICLES 4 AND 5 OF REGULATION NO 1191/69, WHOSE OBJECT IS TO DEFINE THE MEANING OF " ECONOMIC DISADVANTAGES " AND TO PRESCRIBE THE METHODS WHEREBY THEIR EXISTENCE MAY BE ESTABLISHED, DOES NOT, IN PRINCIPLE, EXCLUDE THE POSSIBILITY THAT SUCH DISADVANTAGES CAN EXTEND OVER THE PERIOD OF A SINGLE YEAR .
20 THESE PROVISIONS DO NOT, HOWEVER, EXCLUDE THE RIGHT OF THE COMPETENT AUTHORITIES OF MEMBER STATES TO TAKE INTO ACCOUNT THE WHOLE OF A TRANSPORT UNDERTAKING' S ECONOMIC SITUATION AND ITS METHODS OF OPERATION .
21 THESE AUTHORITIES CANNOT, THEREFORE, BE DENIED THE POWER TO LOOK INTO THE CAUSES OF THE ECONOMIC DISADVANTAGES CLAIMED BY TRANSPORT UNDERTAKINGS OR THE RIGHT TO WITHHOLD COMPENSATION IN CASES WHERE THE DISADVANTAGES APPEAR TO BE PURELY TEMPORARY OR ACCIDENTAL AND, ON A LONGER-TERM ASSESSMENT, CAPABLE OF BEING OFFSET IN DUE COURSE, OR NEUTRALIZED BY A CHANGE OF OPERATING METHODS .
22 MOREOVER, THE EXISTENCE OF SUCH POWERS IS EXPRESSLY RECOGNIZED IN CERTAIN PROVISIONS OF THE REGULATION, ESPECIALLY THE FIFTH PARAGRAPH OF ARTICLE 5 ( 1 ) UNDER WHICH ECONOMIC DISADVANTAGES ARE TO BE DETERMINED TAKING DUE ACCOUNT OF THE EFFECTS OF THE OBLIGATION " ON THE UNDERTAKING' S ACTIVITIES AS A WHOLE ", AND ARTICLE 7, UNDER WHICH ANY DECISION TO MAINTAIN A PUBLIC SERVICE OBLIGATION MAY BE ACCOMPANIED BY " CONDITIONS DESIGNED TO IMPROVE THE YIELD OF THE OPERATIONS AFFECTED BY THE OBLIGATION IN QUESTION ".
ON THE THIRD QUESTION
23 THE THIRD QUESTION IS WHETHER, INSOFAR AS COMPENSATION IS CALCULATED ON THE BASIS THAT EQUAL ACCOUNT MUST BE TAKEN OF PASSENGER AND GOODS TRAFFIC IN A SITUATION WHERE THE OBLIGATIONS TO OPERATE AND TO CARRY ARE MAINTAINED IN RESPECT OF PASSENGER SERVICES OPERATED BY THE APPELLANT BUT TERMINATED IN RELATION TO GOODS, THE DECISION OF THE MINISTER TO MAINTAIN THE OBLIGATIONS TO OPERATE AND TO CARRY IN RELATION TO PASSENGER TRAFFIC IS CONSISTENT WITH ARTICLE 10 OF REGULATION NO 1191/69 .
24 IT IS CLEAR FROM THE EVIDENCE THAT THE MAIN ACTION IS CONCERNED WITH THE ALLOCATION, IN CALCULATING COMPENSATION FOR MAINTENANCE OF CERTAIN PUBLIC SERVICE OBLIGATIONS, OF THE " TOTAL COSTS " WITHIN THE MEANING OF THE REGULATION BORNE BY THE UNDERTAKING IN A SITUATION IN WHICH THE PUBLIC SERVICE OBLIGATIONS ARE MAINTAINED FOR PASSENGER TRAFFIC BUT TERMINATED FOR GOODS TRAFFIC .
25 IN THIS CONNEXION, THE APPELLANT IN THE MAIN ACTION BELIEVES THAT, IN SUCH A SITUATION THE COSTS SHOULD IN PRINCIPLE BE ALLOCATED TO THE BRANCH OF OPERATIONS FOR WHICH THE PUBLIC SERVICE OBLIGATIONS HAVE BEEN MAINTAINED .
26 THE MINISTER OF TRANSPORT, ON THE OTHER HAND, CONSIDERS THAT THE COSTS IN QUESTION MUST BE DISTRIBUTED AMONG THE VARIOUS CATEGORIES OF TRANSPORT, EACH OF THEM RECEIVING ITS PROPORTIONATE ALLOCATION .
27 IN A SITUATION WHERE THERE HAS BEEN PARTIAL TERMINATION OF OBLIGATIONS TO OPERATE AND TO CARRY, THE ASSESSMENT OF THE FINANCIAL BURDENS WHICH TERMINATION OF THE OBLIGATION MIGHT ELIMINATE MUST, UNDER THE THIRD PARAGRAPH OF ARTICLE 5 ( 1 ) OF REGULATION NO 1191/69, BE CARRIED OUT " BY ALLOCATING AMONG THE VARIOUS CATEGORIES OF TRAFFIC THE TOTAL COSTS BORNE BY THE UNDERTAKING BY REASON OF ITS TRANSPORT ACTIVITIES ".
28 FURTHERMORE, IN ORDER TO DETERMINE THE COSTS ALLOCABLE TO THAT PART OF THE UNDERTAKING' S ACTIVITIES AFFECTED BY THE PUBLIC SERVICE OBLIGATION, THE SECOND PARAGRAPH OF ARTICLE 10 ( 1 ) PROVIDES FOR ALLOCATION OF THE TOTAL COSTS BORNE BY THE UNDERTAKING AMONG THE VARIOUS PARTS OF ITS TRANSPORT ACTIVITIES .
29 FROM THESE PROVISIONS IT IS APPARENT THAT, IN A SITUATION WHERE PUBLIC SERVICE OBLIGATIONS ARE MAINTAINED ONLY IN REGARD TO ONE PART OF THE OPERATION, THE REGULATION PROVIDES FOR A DISTRIBUTION OF THE " TOTAL COSTS " OF THE UNDERTAKING OVER THE VARIOUS TRANSPORT ACTIVITIES INVOLVED .
30 THE MERE PROSPECT FOR A TRANSPORT UNDERTAKING OF DISCONTINUING CERTAIN ACTIVITIES FOLLOWING TERMINATION OF PUBLIC SERVICE OBLIGATIONS IS INSUFFICIENT TO JUSTIFY ALLOCATING THE WHOLE OF THE " TOTAL COSTS " TO THE ACTIVITIES IT HAS BEEN COMPELLED TO MAINTAIN, AS THIS COULD TAKE PLACE ONLY WHERE THOSE ACTIVITIES ARE IN FACT DISCONTINUED .
31 APART, HOWEVER, FROM LAYING DOWN THE PRINCIPLE OF " APPORTIONMENT " IN THIS WAY OF THE TOTAL COSTS, THE REGULATION DOES NOT SPECIFY HOW THE GENERAL EXPENDITURE SHOULD BE ALLOCATED BETWEEN THE VARIOUS TRANSPORT ACTIVITIES .
32 CONSEQUENTLY, ANY METHOD OF ALLOCATION BASED ON THE CHARACTERISTICS AND VOLUME OF THE ACTIVITIES IN QUESTION, INCLUDING ALLOCATION ON A " LUMP SUM " BASIS, MUST BE REGARDED AS CONSISTENT WITH THE REGULATION .
Decision on costs
33 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
34 AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE SECTION FOR ADMINISTRATIVE LITIGATION OF THE RAAD VAN STATE, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES IN THE MAIN ACTION AND THE COMMISSION OF THE EUROPEAN COMMUNITIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 177;
HAVING REGARD TO REGULATION ( EEC ) NO 1191/69 OF THE COUNCIL OF 26 JUNE 1969 ON ACTION BY MEMBER STATES CONCERNING THE OBLIGATIONS INHERENT IN THE CONCEPT OF A PUBLIC SERVICE IN TRANSPORT BY RAIL, ROAD AND INLAND WATERWAY;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 20;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SECTION FOR ADMINISTRATIVE LITIGATION OF THE RAAD VAN STATE BY ORDER OF 28 FEBRUARY 1973, HEREBY RULES :
1 . ARTICLE 2 ( 5 ) OF REGULATION NO 1191/69 MUST BE INTERPRETED AS MEANING THAT A LEGAL OBLIGATION IN GENERAL TERMS REQUIRING TRANSPORT RATES TO BE APPROVED BY PUBLIC AUTHORITY CANNOT IN ITSELF BE DEEMED TO CONSTITUTE A " TARIFF OBLIGATION " WITHIN THE MEANING OF THE REGULATION .
2 . WITHOUT EXCLUDING THE POSSIBILITY THAT " ECONOMIC DISADVANTAGES " WITHIN THE MEANING OF THE REGULATION CAN SUBSIST OVER A PERIOD OF ONLY A YEAR, ARTICLES 4 AND 5 OF REGULATION NO 1191/69 EQUALLY DO NOT EXCLUDE THE RIGHT OF MEMBER STATES, IN ASSESSING THESE DISADVANTAGES, TO TAKE INTO ACCOUNT THE WHOLE OF THE TRANSPORT UNDERTAKING' S ECONOMIC SITUATION OVER A LONGER PERIOD, AND TO WITHHOLD COMPENSATION FOR DISADVANTAGES WHICH APPEAR TO BE TEMPORARY OR ACCIDENTAL .
3 . IN A CASE WHERE PUBLIC SERVICE OBLIGATIONS HAVE BEEN PARTIALLY TERMINATED, ARTICLE 10 OF REGULATION NO 1191/69 MUST BE INTERPRETED AS MEANING THAT, HAVING REGARD TO THE CHARACTERISTICS AND VOLUME OF THE ACTIVITIES INVOLVED, THERE SHALL BE AN APPORTIONMENT OF THE " TOTAL COSTS " WITHIN THE MEANING OF THE REGULATION BETWEEN THE TRANSPORT ACTIVITIES IN RESPECT OF WHICH THESE OBLIGATIONS ARE MAINTAINED AND THOSE IN WHICH THEY ARE TERMINATED . THE REGULATION DOES NOT EXCLUDE THE USE FOR THIS PURPOSE OF LUMP-SUM ALLOCATIONS .