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COMMISSION OPINION

of 6 July 1990

addressed to the Government of Portugal concerning a draft basic law on inland transport

(Only the Portuguese text is authentic)

(90/375/EEC)

1. In accordance with the provisions of 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 (1), as amended by Decision 73/402/EEC (2), the Portuguese Government has sent the Commission the text of a draft basic law on inland transport. A meeting was held on 9 October 1989 between the officials concerned from the Portuguese Government and the Commission services to obtain further information on the provisions of the draft basic law.

2. The Commission notes that the draft law lays down a new framework for transport policy in Portugal to meet present needs and circumstances, in particular following the accession of Portugal to the European Community.

The principles in this draft basic law appear to be in conformity with the Community's transport policy.

The Commission notes that the law aims to decentralize and deregulate the transport system within Portugal in order to meet the quantitative and qualitative requirements of users and to reduce the social and economic costs of transport. It envisages equality of treatment between transport users and between the suppliers of transport; as well as a tax system based on the cost of the infrastructure.

3. The Commission notes that the precedence of Community law is confirmed in Articles 7 (1) and 18 of the draft law.

4. Article 9 of the proposed law refers to the Government taking certain measures with regard to transport services where this proves necessary for various reasons. In order to ensure that any such measures are motivated by reasons compatible with the Treaty, the phrase 'that are in accordance with the provisions of the Treaty establishing the European Economic Community' should be added after the words 'other serious reasons of public interest'.

5. With regard to the provisions of Articles 19, 20 and 22 concerning admission to the occupation of road transport operator, the Council Directives 74/561/EEC (3), as last amended by Directive 89/438/EEC (4), and 74/562/EEC (5), as last amended by Directive 89/438/EEC, on admission to the occupations of road haulage and road passenger transport operator in national and international operations respectively came into force in Portugal on 1 January 1986. The Commission understands that no specific measures have yet been enacted to implement the provisions of Directive 74/562/EEC. In view of the fact that the date for implementing these two Directives in their entirety has passed, the necessary legislation to bring them into force in Portugal should be enacted as quickly as possible.

6. Article 21 of the draft law provides for the possibility of refusing a company an authorization to exercise its activities on a route if this operation would lead to unfair competition vis-à-vis operators already running such a service.

The Commission would like to draw the attention of the Portuguese authorities to the fact that this provision must not be used to refuse a company the right to run on a route simply because an operator is already in this market. All requests for authorization must be examined on the basis of their merits.

Therefore, it would be useful to specify the definition that the Portuguese authorities intend giving to the concept of 'unfair competition'.

7. As for Article 24 the provisions contained therein on tariffs and prices appear to refer partly to the carriage of goods. Your Government will be aware that the Council adopted on 21 December 1989 Regulation (EEC) No 4058/89 (6) on the fixing of rates for the carriage of goods by road between Member States. Article 2 of this Regulation provides that from 1 January 1990 transport prices included in Article 1 are freely agreed upon between the parties of the transport contract. It is imperative that the provisions of Article 24 were redrafted to make it clear that international road haulage is excluded from its scope.

8. Since this draft basic law is a legal framework for subsequent detailed legislation, the Commission reserves to itself the right to give an opinion on the measures implementing the general provisions of this law as they are enacted. The Portuguese Government should therefore submit any such measures to the Commission, in sufficient time, where the Government considers that they have a bearing on Community law.

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

Done at Brussels, 6 July 1990.

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.

(3) OJ No L 308, 19. 11. 1974, p. 18.

(4) OJ No L 212, 22. 7. 1989, p. 101.

(5) OJ No L 308, 19. 11. 1974, p. 23.

(6) OJ No L 390, 30. 12. 1989, p. 1.