COMMISSION OPINION of 17 February 1976 addressed to the Government of the Kingdom of Belgium on two ministerial decrees of 29 October 1975, one governing cross-frontier transport to France and the Netherlands by inland waterway, the other amending the conditions under which vessels engaged in the carriage of goods for own account are freed from the control of the freighting rota offices of the Office régulateur de la Navigation intérieure (Central Office for Inland Waterway Transport) (76/257/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 the Council Decision of 22 November 1973 (2), the Belgian Government sent the Commission, under cover of a letter of 21 November 1975 from the office of its Permanent Representative to the European Communities, the text of two ministerial decrees, one governing cross-frontier transport to France and the Netherlands by inland waterway, the other amending the conditions under which vessels engaged in the carriage of goods for own account are freed from the control of the freighting rota offices of the Office régulateur de la Navigation intérieure.

The letter from the office of the Belgian Permanent Representative reached the Commission on 24 November 1975 and, in accordance with the said Article 1, was also sent to the other Member States.

In view of the difficulties confronting the Belgian inland waterways and the need for immediate action, the Belgian Government without previously consulting the Commission, brought these ministerial decrees into force on 29 October 1975, the date of their publication in the "Moniteur belge". Pursuant to Article 2 (5) of the Council Decision the Belgian Government informed the Commission of the steps it had taken.

On the Commission's initiative an information meeting with representatives of the Belgian Government was held in Brussels on 22 January 1976. In accordance with Article 2 (4) of the Council Decision, and with the agreement of the Belgian Government, the period of two months within which the Commission had to address its opinion or recommendation was extended until 24 February 1976.

Pursuant to Article 2 (1) of the said Decision, the Commission hereby delivers the following opinion: 1. The Commission notes that the measures taken by Belgium govern inland waterway transport from Belgium to France and the Netherlands and provide that transport operations to France shall be subject to the same chartering arrangements as internal transport operations - arrangements which include not only compulsory minimum prices fixed by the Ministry of Communications but also a freighting rota system - and introduces arrangements for the publication of information relating to inland waterway transport operations from Belgium to the Netherlands.

The Commission notes that the Belgian Government has unilaterally introduced a compulsory tariff for transport to France, while the rates for transport from France to Belgium are free market prices.

(1) OJ No 23, 3.4.1962, p. 720/62. (2) OJ No L 347, 17.12.1973, p. 48. The Commission reaffirms its position on the issue of compulsory tariffs : experience has shown that such a system is not likely to solve structural problems faced by inland waterway transport ; it is difficult to check whether compulsory tariffs are being observed ; it has never been possible to use compulsory tariffs as an instrument of short-term market policy because they cannot be adapted to the actual situation of the markets. In its communication to the Council of 1 October 1975 (1) the Commission chose a transport market based on the market economy and free price formation.

The Commission also notes that the unilateral measures taken by the Belgian Government constitute a break with the uniform chartering system for inland waterway transport between Member States which it considers to be of prime importance. It recalls that it recently presented to the Council a proposal for a Regulation introducing a system of non-obligatory reference tariffs for the carriage of goods by inland waterway between Member States. This Regulation, if it is adopted, will re-establish a uniform system in this sector.

The Commission considers that a freighting rota system has serious economic drawbacks. Its effect is not only to deprive the user of his freedom of choice but also to create situations, such as that faced by Belgian inland waterway transport, by artificially keeping alive marginal undertakings whose operations, equipment and quality of service no longer correspond in any way to the level of demand.

The Commission notes that the publication of certain information relating to transport operations to the Netherlands will ensure a better transparency of the market.

2. The Commission takes the view that restrictions on the hiring or acquisition of vessels by undertakings effecting the carriage of goods for their own account are not economically justified. They introduce a rota of vessels capable of being hired or purchased by shippers and exclude, at least for the immediate future, vessels being hired for own account as was possible under the former regulations. They thus create discrimination between transport undertakings and deprive the user of his freedom of choice ; they are therefore likely to encourage shippers to turn to other forms of transport or to build their own carrying capacity, which could lead to excess structural capacity or to an increase in existing capacity.

3. The Commission notes that the measures set out in the decrees in question will impede the gradual and balanced harmonization of a Community transport system as defined by the Commission in its communication of October 1973. The measures in question will not offer any solution of the structural problems currently facing the Belgian inland waterway transport system.

However, the Commission is aware of the fact that the Belgian Government, faced by the critical situation in the Belgian inland waterway transport system, has had to take emergency measures.

Irrespective of its opinion on the effectiveness and the value of these measures from the economic point of view, it finds nevertheless that the majority of steps undertaken by the Belgian Government are not along the lines envisaged by the Commission for the operation of the transport market and should therefore be maintained only for the shortest possible period. The Commission draws the attention of the Belgian Government to the need gradually to adapt an owner-operator inland waterway transport system to a modern economy. The Commission would point out in this connection it has recommended certain concrete measures to help improve the structure of the inland waterway transport market. They include, in particular, the recommendation to the Member States to take national action to scrap obsolete equipment (2) and the proposal for a Directive on the conditions of access to the profession (3). The inclusion of Belgian waterways in the laying-up scheme which is now being worked out will also encourage the restructuring of the trade. Mention might also be made of the Commission's proposal concerning social harmonization in inland waterway transport which, if adopted, could be of assistance (4).

Until a Community structural policy in the field of inland navigation has been introduced, national initiatives should be taken to promote the formation of companies of technically and economically viable proportions by encouraging undertakings to conclude agreements, ranging from cooperation and the pooling of operations to mergers, while respecting the competition provisions of the EEC Treaty.

(1) Doc. COM(75) 490 fin. (2) OJ No L 218, 4.9.1968, p. 10. (3) Doc. R/2531/75 (TRANS 89), 14.10.1975. (4) OJ No C 259, 12.11.1975, p. 2. 4. The Commission did not consider it necessary to consult the other Member States under Article 2 (3) of the Council Decision.

5. The Commission is informing the other Member States of this opinion.

Done at Brussels, 17 February 1976.

For the Commission

Carlo SCARASCIA MUGNOZZA

Vice-President