COMMISSION OPINION of 23 October 1992 addressed to the French Government concerning a draft law on the commercial operation of inland waterways (Only the French text is authentic) (92/513/EEC)

Pursuant to Article 1 of the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States (1), as amended by Council Decision 73/402/EEC (2), the French Government notified the Commission by letter of 27 July 1992 of a draft law on the commercial operation of inland waterways.

The letter from the French Government reached the Commission on 29 July 1992; as required by Article 1 of the abovementioned Decision the French Government has also informed the other Member States.

Pursuant to Article 2 of the Council Decision the Commission hereby delivers the following opinion:

1. The Commission finds that the draft law submitted to it relates chiefly to procedures for chartering in the field of the domestic carriage of goods by inland waterway. The proposed draft law is intended to amend the Law of 22 March 1941 on the regulated operation of inland waterways and coordination of rail transport and transport by inland waterway.

France's stated aim is to win back traffic for the inland waterways, and to enhance the competitiveness of this mode of transport against a background of the opening-up of regulated inland-waterway markets. The draft law therefore forms part of a set of transitional arrangements designed to adapt those regulated markets, over a period limited to six years, from the existing system to a free market system in which the 'tour de rôle' would cease to be binding.

The draft law would transform the general organization of inland-waterway transport; this would be entrusted to members of the trade through an inland-waterway joint-trades committee which would administer the allocation of cargo between contracts dealt with under the 'tour de rôle' system and those falling outside it. Chartering in this sector would be under tonnage contracts, time contracts and voyage contracts. These would be freely negotiated between the parties, i.e. between consignor and carrier, except in the case of voyage contracts which would continue to be subject to the 'tour de rôle' system.

The draft law also gives the Minister of Transport the power to issue decrees making certain tonnage contracts subject to the 'tour de rôle' system.

2. The Commission finds that the draft law does contain an element of opening-up of the market for the carriage of goods by inland waterway, notably as regards tonnage contracts, and considers that the draft law is liable to promote this mode of transport. This opening-up must not be compromised.

3. In general terms the Commission is of the opinion that a 'tour de rôle' system organized by members of the trades would be in breach of the competition rules set out in Article 85 of the EEC Treaty. Furthermore, a Member State is not allowed to entrust an interprofessional committee with the right to define the general conditions of freight allocation and the means to undertake inland waterway contracts (first line of the third paragraph of Article 2) and to fix the operating rules for freight markets (third paragraph of Article 4) without infringing the provisions of Articles 3 (f) and 5 (2) of the EEC Treaty read in conjunction with the provisions of Article 85.

4. Moreover, and independently of the observations made in points 2 and 3, the Commission is of the opinion that a modification of the 'tour de rôle' system is necessary in order to produce a free market regime. Taking the special nature of the sector into account, notably the presence of many small companies, and the large variations in demand whilst supply is inflexible, the Commission understands that such a modification cannot be undertaken other than on a progressive basis.

5. The Commission calls on the French Government in any event to notify it in advance of the implementing texts referred to in Articles 2, 5 and 9, on which it reserves the right to express its opinion.

6. The Commission is sending this opinion to the other Member States.

Done at Brussels, 23 October 1992.

For the Commission

Karel VAN MIERT

Member of the Commission

(1) OJ No 23, 3. 4. 1962, p. 720/62. (2) OJ No L 347, 17. 12. 1973, p. 48.