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COMMISSION RECOMMENDATION

of 25 April 1986

addressed to the Government of the Grand Duchy of Luxembourg on a draft law on the division of goods transport between rail and road

(86/242/EEC)

In accordance with 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 Decision 73/402/EEC (2), the Luxembourg Government sent the Commission, under cover of a letter of 23 October 1985 from the office of its permanent representative to the European Communities, the text of a draft law on the division of goods transport between rail and road.

The letter from the office of the Luxembourg permanent representative reached the Commission on 28 October 1985.

Pursuant to Article 2 (3) of the said Decision the Commission organized a meeting in Brussels on 19 December 1985 to consult the Member States on the law in question.

The period of two months within which the Commission must give its opinion as laid down in Article 2 (1) of the said Decision was extended to 28 March 1986 in accordance with Article 2 (4) of that Decision.

Under Article 2 of the said Decision the Commission hereby delivers the following opinion:

1. The Commission notes that, according to the Luxembourg Government, the aim of the draft law is to enable the public authorities to influence the division of goods transport between modes of transport. A Grand Ducal decree would be adopted to prohibit the carriage of certain goods (ECSC products, petroleum products and chemicals) by road and require their transfer to the railways.

The Commission has noted the explanatory memorandum to the draft law and the statements made by the representative of the Luxembourg Government at the consultative meeting on 19 December 1985, according to which:

- the law would apply to national and international transport operations and transit operations through Luxembourg, operations for hire or reward and for own account and operations by non-resident and Luxembourg carriers,

- the draft law forms part of Government action in Luxembourg to promote the use of the railways for the carriage of heavy goods (3) which is necessitated by the fact that the Luxembourg railways' deficit accounts for 10 % of Luxembourg's annual State budget,

- this transfer from road to rail could only be required for reasons of road traffic and road safety (public policy and security), environmental protection (quality of life) and optimum use of available rail equipment,

- the measures in question would be applied only where there are branch lines permitting the transport operations concerned to be carried out by the railways,

- a prohibition on the carriage of certain types of goods by road would be decreed primarily for regular supply or forwarding operations involving obvious nuisances for the public such as the regular carriage of scrap metal or coal dust by road through inhabited areas.

2. It should be noted that, at the meeting on 19 December 1985, the Member States which were represented or had notified their opinions in writing gave a negative opinion on the draft law proposed by the Luxembourg Government.

3. The Commission would draw Luxembourg's attention to the fact that the measures proposed would widen the present disparities between national policies of the Member States. As far as the Commission is aware, no other Member State has introduced provisions as wide in scope as those which Luxembourg proposes to adopt. Any increase in such disparities would run counter to the creation of a unified internal market advocated by the Commission in its White Paper on completing the internal market (4).

The Commission takes the view that capacity regulation resulting in an allocation of traffic by the public authorities would be incompatible with the basic principles of the common transport policy formulated in:

- the Commission Memorandum entitled 'Progress Towards a Common Transport Policy - Inland Transport' (1), which rejected the idea of support for the railways through measures imposing greater restrictions on other modes of transport,

- the conclusions of the European Council of Heads of State and Government meeting in Milan in June 1985, which welcomed the Commission's White Paper and decided that the creation of a free transport market was a priority to be pursued by the Community,

- the policy guidelines adopted by the Council on 14 November 1985, which call for the creation by 1992 of a free transport market without any quantitative restrictions.

4. Compulsory transfer of certain goods from road to rail would have deleterious consequences in the road sector for both Luxembourg and foreign carriers. Such mandatory transfer would lead to a reduction in carriers' turnover and productivity and to an appreciable rise in transport costs, primarily because goods would have to be trans-shipped.

The proposed measures could therefore have harmful economic and social effects on the industries whose products are covered by the draft law, without helping to achieve one of the law's objectives, namely to reduce the Luxembourg railways' deficit.

5. The Commission entirely approves of the other objectives pursued by the Luxembourg Government, in particular road safety and protection of the environment. It considers the achievement of these objectives to be a major task of paramount importance to be assumed by the authorities in the public interest. However, the Commission believes that these objectives can be satisfactorily attained by other means better befitting the aims pursued. The legal basis of such measures should be the highway code and road traffic laws.

6. In the light of the foregoing the Commission considers it necessary to recommend to the Grand Duchy of Luxembourg that it withdraw its draft law in its present form.

If current legislation in Luxembourg, in particular the highway code, does not provide sufficient scope to ensure effective protection of the environment, road traffic or road safety, the Commission recommends that the Grand Duchy of Luxembourg supplement these laws by other provisions on the lines of those which already exist in other Member States.

7. The Commission is informing the other Member States of this recommendation.

Done at Brussels, 25 April 1986.

For the Commission

Stanley CLINTON DAVIS

Member of the Commission

(1) OJ No 23, 3. 4. 1962, p. 720/62.

(2) OJ No L 347, 17. 12. 1973, p. 48.

(3) See 'Government Programme' submitted to the Chamber of Deputies on 23 July 1984.

(4) COM(85) 310 final, 14 June 1985.

(1) COM(83) 58 final, 9 February 1983.