Judgment of the Court of 25 January 1983. - D. J. Smit Transport BV v Commissie Grensoverschrijdend Beroepsgoederenvervoer. - Reference for a preliminary ruling: Raad van State - Netherlands. - Common transport policy - Restrictions on load capacity in international carriage of goods by road. - Case 126/82.



European Court reports 1983 Page 00073



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - EFFECT

( EEC TREATY , ART . 189 , THIRD PARAGRAPH )

2 . TRANSPORT - ROAD TRANSPORT - INTERNATIONAL CARRIAGE OF GOODS FOR HIRE OR REWARD - LIBERALIZATION - DIRECTIVE - EFFECT - NATIONAL LEGISLATION - CONFORMITY WITH THE DIRECTIVE - SUPERVISION - POWERS OF THE NATIONAL AUTHORITIES

( COUNCIL DIRECTIVE OF 23 JULY 1962 , ARTS 1 ( 3 ) AND 3 )

3 . TRANSPORT - ROAD TRANSPORT - INTERNATIONAL CARRIAGE OF GOODS FOR HIRE OR REWARD - LIBERALIZATION - LIMITS

( COUNCIL DIRECTIVE OF 23 JULY 1962 , ARTS 1 ( 3 ) AND 3 ; ANNEX II )

4 . COMMUNITY LAW - PRINCIPLES - EQUALITY OF TREATMENT - DISCRIMINATION ON THE GROUND OF NATIONALITY - CONCEPT

( EEC TREATY , ART . 7 ; COUNCIL DIRECTIVE OF 23 JULY 1962 , ARTS 1 ( 3 ) AND 3 )

Summary

1 . IF THE PROVISIONS OF A DIRECTIVE ARE UNCONDITIONAL AND SUFFICIENTLY PRECISE , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , THEY MAY BE RELIED ON IN LEGAL PROCEEDINGS BY INDIVIDUALS WHERE THE MEMBER STATE IN QUESTION HAS NOT CORRECTLY IMPLEMENTED THE DIRECTIVE WITHIN THE FRAMEWORK OF ITS DOMESTIC LEGISLATION .

2 . ARTICLE 1 ( 3 ) OF THE FIRST COUNCIL DIRECTIVE OF 23 JULY 1962 ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD CONTAINS AN UNCONDITIONAL AND PRECISE PROHIBITION OF ANY QUOTA OR QUANTITATIVE RESTRICTION ; ARTICLE 3 OF THAT DIRECTIVE LEAVES TO THE MEMBER STATES CERTAIN POWERS REGARDING THE CONDITIONS FOR AUTHORIZING UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY . THOSE PROVISIONS , BY THEIR VERY NATURE , MAY BE RELIED UPON IN LEGAL PROCEEDINGS ; IT IS THEREFORE FOR THE NATIONAL COURT OR TRIBUNAL TO CHECK WHETHER THE RELEVANT NATIONAL LEGISLATION CONFORMS TO THOSE PROVISIONS IF A PARTY RELIES UPON THEM IN PROCEEDINGS BEFORE THAT COURT .

3 . BY VIRTUE OF THE PROVISIONS OF THE FIRST COUNCIL DIRECTIVE ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD THE COMPETENT AUTHORITIES OF A MEMBER STATE ARE ENTITLED TO CONTINUE TO APPLY TO UNDERTAKINGS ESTABLISHED IN ITS TERRITORY A SYSTEM OF AUTHORIZATIONS FOR THE TYPES OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD LISTED IN ANNEX II TO THE DIRECTIVE IF THE AIM OF SUCH A SYSTEM IS TO RESTRICT THE LOAD CAPACITY TO BE USED BY THOSE UNDERTAKINGS FOR THE INTERNATIONAL CARRIAGE OF GOODS , EVEN IF THEY SATISFY ALL THE OTHER REQUIREMENTS LAID DOWN BY THE NATIONAL LEGISLATION FOR AUTHORIZATION TO ENGAGE IN NATIONAL AND INTERNATIONAL CARRIAGE OF GOODS .

4.THE AIM OF ARTICLE 7 OF THE TREATY IS TO ELIMINATE ANY DISCRIMINATION ON THE GROUND OF NATIONALITY RESULTING FROM THE LEGISLATION OR ADMINISTRATIVE PRACTICES OF A GIVEN MEMBER STATE RATHER THAN ANY DISPARITY IN THE WAY IN WHICH UNDERTAKINGS OF DIFFERENT MEMBER STATES ARE TREATED AS A RESULT OF DIFFERENCES BETWEEN THE LEGISLATION OF THE MEMBER STATES , IN THE ABSENCE OF A COMMON TRANSPORT POLICY .

THUS , BY VIRTUE OF THE FIRST COUNCIL DIRECTIVE ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD , THE FACT THAT A MEMBER STATE IMPOSES ON TRANSPORT UNDERTAKINGS ESTABLISHED IN ITS TERRITORY QUANTITATIVE RESTRICTIONS REGARDING THE LOAD CAPACITY TO BE EMPLOYED IN INTERNATIONAL CARRIAGE OF GOODS BETWEEN MEMBER STATES DOES NOT AMOUNT TO DISCRIMINATION CONTRARY TO ARTICLE 7 OF THE EEC TREATY EVEN THOUGH IT IS UNDER AN OBLIGATION , BY VIRTUE OF ARTICLE 1(3 ) OF THAT DIRECTIVE , TO ALLOW WITHIN ITS TERRITORY WITHOUT ANY RESTRICTION TRANSPORT OPERATIONS ORIGINATING IN OTHER MEMBER STATES EVEN IN CASES WHERE THOSE MEMBER STATES IMPOSE LESS SEVERE CONDITIONS REGARDING LOAD CAPACITY ON THE UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY .

Parties

IN CASE 126/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN STATE , AFDELING VOOR DE GESCHILLEN VAN BESTUUR ( ADMINISTRATIVE APPEALS DIVISION OF THE STATE COUNCIL ), OF THE NETHERLANDS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

D . J . SMIT TRANSPORT BV , A TRANSPORT UNDERTAKING HAVING ITS REGISTERED OFFICE IN THE HAGUE ,

AND

COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER VAN DE STICHTING NEDERLANDSCHE INTERNATIONALE WEGVERVOER ORGANISATIE ( COMMITTEE OF THE NETHERLANDS INTERNATIONAL ROAD HAULAGE ORGANIZATION ON THE COMMERCIAL CARRIAGE OF GOODS ABROAD ),

Subject of the case

ON THE EFFECT IN NATIONAL LAW AND ON THE INTERPRETATION OF ARTICLES 1 ( 3 ) AND 3 OF THE FIRST COUNCIL DIRECTIVE OF 23 JULY 1962 ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR INTERNATIONAL TRANSPORT ( CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD ), AND ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY ,

Grounds

1 BY JUDGMENT OF 6 APRIL 1982 , WHICH WAS RECEIVED AT THE COURT ON 7 APRIL 1982 , THE ADMINISTRATIVE APPEALS DIVISION OF THE RAAD VAN STATE ( STATE COUNCIL ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS CONCERNING THE EFFECT IN NATIONAL LAW AND THE INTERPRETATION OF ARTICLES 1 ( 3 ) AND 3 OF THE FIRST COUNCIL DIRECTIVE OF 23 JUNE 1963 ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR INTERNATIONAL TRANSPORT ( CARRIAGE OF GOODS , BY ROAD FOR HIRE OR REWARD ) ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1959-1962 , P . 267 ) AND ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY .

2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF AN ACTION BROUGHT BY A TRANSPORT UNDERTAKING ESTABLISHED IN THE NETHERLANDS WHICH SPECIALIZES IN INTERNATIONAL REMOVALS AGAINST A DECISION OF THE COMMISSIE GRENSOVER SCHRIJDEND BEROEPSGOEDERENVERVOER VAN DE STICHTING NEDERLANDSCHE INTERNATIONALE WEGVERVOER ORGANISATIE ( COMMITTEE OF THE NETHERLANDS INTERNATIONAL ROAD HAULAGE ORGANIZATION ON THE COMMERCIAL CARRIAGE OF GOODS ABROAD ), REJECTING ITS APPLICATION FOR AN INCREASE IN ITS TRANSPORT CAPACITY FOR INTERNATIONAL TRANSPORT OPERATIONS .

3 IT APPEARS FROM THE FILE ON THE CASE THAT BY VIRTUE OF PRIOR DECISIONS ADOPTED BY THE SAME AUTHORITY THE PLAINTIFF ' S AUTHORIZED CAPACITY IS 50.1 TONNES FOR NATIONAL TRANSPORT AND IT IS AUTHORIZED TO USE 18 TONNES OF THAT TOTAL CAPACITY FOR INTERNATIONAL TRANSPORT . THE PLAINTIFF APPLIED FOR THE LATTER CAPACITY TO BE INCREASED TO 36.29 TONNES , WHICH CORRESPONDED TO ITS EFFECTIVE TRANSPORT CAPACITY AT THAT TIME , IN ORDER TO ENABLE IT TO USE ALL ITS VEHICLES FOR INTERNATIONAL TRANSPORT .

4 THAT REQUEST WAS REJECTED BY THE COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER BY VIRTUE OF THE NATIONAL LEGISLATION ON CARRIAGE OF GOODS BY ROAD , NAMELY THE WET AUTOVERVOER GOEDEREN ( LAW GOVERNING THE CARRIAGE OF GOODS BY MOTOR VEHICLE ) OF 4 AUGUST 1951 AND THE UITVOERINGSBESLUIT AUTOVERVOER GOEDEREN ( DECREE ADOPTING ADMINISTRATIVE REGULATIONS FOR IMPLEMENTING THE LAW GOVERNING THE CARRIAGE OF GOODS BY MOTOR VEHICLE ) OF 16 JANAURY 1954 . THE REASON GIVEN FOR THAT REJECTION WAS THAT IT WAS NOT IN THE GENERAL INTERESTS OF TRANSPORT TO INCREASE THE AUTHORIZED CAPACITY IN THE ABSENCE OF AN EXISTING DEMAND FOR INTERNATIONAL TRANSPORT , AS AN INVESTIGATION HAD SHOWN THAT SMIT WAS NOT USING ( TO THE FULL ) THE TRANSPORT CAPACITY FOR WHICH IT ALREADY HAD AUTHORIZATION .

5 IN THE PROCEEDINGS BEFORE THE RAAD VAN STATE , SMIT RELIED ON THE PROVISIONS OF THE DIRECTIVE OF 23 JULY 1962 PURSUANT TO WHICH CERTAIN TYPES OF CARRIAGE , INCLUDING REMOVALS BY UNDERTAKING HAVING SPECIAL STAFF AND EQUIPMENT FOR THAT PURPOSE , ARE NO LONGER TO BE SUBJECT TO A QUOTA SYSTEM . IT ARGUED THAT , BY PERMITTING RESTRICTIONS ON INTRA-COMMUNITY TRANSPORT CAPACITY , THE NETHERLANDS LEGISLATION IS CONTRARY TO THAT DIRECTIVE AND THAT ITS EFFECT IS TO PUT UNDERTAKINGS ESTABLISHED IN THE NETHERLANDS AT A COMPETITIVE DISADVANTAGE IN RELATION TO THE REMOVAL UNDERTAKINGS OF OTHER MEMBER STATES .

6 THE COMMISSIE GRENSOVERSCHRIJDEND BEROEPSGOEDERENVERVOER , FOR ITS PART , DREW ATTENTION TO ARTICLE 3 OF THE SAME DIRECTIVE , ACCORDING TO WHICH THE DIRECTIVE IS NOT TO AFFECT THE CONDITIONS UNDER WHICH ANY MEMBER STATE AUTHORIZES ITS OWN NATIONALS TO ENGAGE IN THE ACTIVITIES MENTIONED THEREIN .

7 THE RAAD VAN STATE CONSIDERED THAT A QUESTION OF INTERPRETATION OF COMMUNITY LAW HAD BEEN RAISED AND SUBMITTED THE QUESTIONS REFERRED TO ABOVE TO THE COURT .

THE FIRST QUESTION

8 THE FIRST QUESTION SUBMITTED BY THE RAAD VAN STATE IS AS FOLLOWS :

' ' IS IT THE RESPONSIBILITY OF A NATIONAL COURT OR TRIBUNAL TO EXAMINE NATIONAL LEGISLATION IN THE LIGHT OF ARTICLES 1 ( 3)AND 3 OF THE FIRST COUNCIL DIRECTIVE OF 23 JULY 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-62 , P . 267 ), ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR CERTAIN TYPES OF INTERNATIONAL CARRIAGE OF GOODS ( AS LAST AMENDED BY COUNCIL DIRECTIVE 78/175/EEC OF 20 FEBRUARY 1978 ( OFFICIAL JOURNAL L 54 , P . 18 )) IF AN APPELLANT RELIES ON THOSE PROVISIONS TO SUPPORT HIS CASE?

' '

9 IN ORDER TO ANSWER THIS QUESTION IT IS SUFFICIENT TO REFER TO THE COURT ' S WELL-ESTABLISHED CASE-LAW CONCERNING THE EFFECT OF DIRECTIVES , MOST RECENTLY MENTIONED IN ITS JUDGMENT OF 19 JANUARY 1982 IN CASE 8/81 URSULA BECKER V FINANZAMT MUNSTER-INNENSTADT ( 1982 ) ECR 53 .

10 IT IS APPARENT FROM THAT CASE-LAW THAT IF THE PROVISIONS OF THE DIRECTIVES ARE UNCONDITIONAL AND SUFFICIENTLY PRECISE , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , THEY MAY BE RELIED ON IN LEGAL PROCEEDINGS BY INDIVIDUALS WHERE THE MEMBER STATE IN QUESTION HAS NOT CORRECTLY IMPLEMENTED THE DIRECTIVE WITHIN THE FRAMEWORK OF ITS DOMESTIC LEGISLATION .

11 THE PROVISIONS REFERRED TO BY THE PLAINTIFF IN THE MAIN PROCEEDINGS COMPLY WITH THAT REQUIREMENT . IN FACT ARTICLE 1 ( 3 ) CONTAINS A PRECISE AND UNCONDITIONAL PROHIBITION IN SO FAR AS IT FORBIDS THE APPLICATION OF ANY QUOTA OR QUANTITATIVE RESTRICTION TO THE TYPES OF CARRIAGE LISTED IN ANNEX II TO THE DIRECTIVE . ARTICLE 3 RESERVES CERTAIN POWERS TO THE MEMBER STATES REGARDING THE CONDITIONS WHICH THEY MAY IMPOSE FOR AUTHORIZATION OF TRANSPORT UNDERTAKINGS SUBJECT TO THEIR AUTHORITY TO ENGAGE IN THE ACTIVITIES MENTIONED IN THE DIRECTIVE . BY ITS VERY NATURE , IN SO FAR AS IT DEFINES THE POWERS OF THE MEMBER STATES IN THAT AREA , THAT PROVISION MAY ALSO BE RELIED UPON IN LEGAL PROCEEDINGS WHERE IT APPEARS THAT THE NATIONAL AUTHORITIES HAVE EXCEEDED THEIR POWERS AS DEFINED BY THE DIRECTIVE .

12 THUS IT MUST BE STATED IN REPLY TO THE FIRST QUESTION THAT IT IS THE RESPONSIBILITY OF THE NATIONAL COURT OR TRIBUNAL TO EXAMINE THE RELEVANT NATIONAL LEGISLATION IN THE LIGHT OF ARTICLES 1 ( 3 ) AND 3 OF THE FIRST COUNCIL DIRECTIVE ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR INTERNATIONAL TRANSPORT IF A PARTY RELIES ON THOSE PROVISIONS IN PROCEEDINGS BEFORE THAT COURT .

THE SECOND QUESTION

13 THE SECOND QUESTION SUBMITTED BY THE RAAD VAN STATE IS AS FOLLOWS :

' ' IF SO , MAY THOSE PROVISIONS BE CONSTRUED AS ALLOWING THE COMPETENT AUTHORITIES OF A MEMBER STATE THE FREEDOM TO APPLY A SYSTEM OF AUTHORIZATIONS FOR THE TYPES OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD MENTIONED IN ANNEX II TO THE DIRECTIVE TO UNDERTAKINGS ESTABLISHED IN THAT MEMBER STATE IF THE AIM OF SUCH A SYSTEM IS TO RESTRICT THE LOAD CAPACITY TO BE USED BY THEM IN THE CARRIAGE OF GOODS ABROAD , EVEN IF THOSE UNDERTAKINGS SATISFY THE RELEVANT REQUIREMENTS OF CREDITWORTHINESS AND TECHNICAL APTITUDE LAID DOWN BY NATIONAL LEGISLATION AS REGARDS THE CARRIAGE OF GOODS ABROAD AND INLAND AND IF , PURSUANT TO THE NATIONAL LICENSING SYSTEM FOR THE CARRIAGE OF GOODS INLAND , THEY POSSESS LOAD CAPACITY WHICH HAS BEEN APPROVED AS BEING PERFECTLY SATISFACTORY?

' '

14 THE ANSWER TO THIS QUESTION MUST BE OBTAINED BY REFERENCE TO THE PURPOSE AND STRUCTURE OF THE DIRECTIVE OF 23 JULY 1962 .

15 BY VIRTUE OF ARTICLE 1 OF THE DIRECTIVE THE MEMBER STATES ARE REQUIRED TO LIBERALIZE THE TYPES OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD INVOLVING OTHER MEMBER STATES LISTED IN ANNEXES I AND II TO THE DIRECTIVE , BY THE END OF 1962 AT THE LATEST . ACCORDING TO PARAGRAPH ( 3 ) THEREOF ' ' THE TYPES OF CARRIAGE LISTED IN ANNEX II SHALL NO LONGER BE SUBJECT TO A QUOTA SYSTEM . THEY MAY , HOWEVER , REMAIN SUBJECT TO AUTHORIZATION PROVIDED NO QUANTITATIVE RESTRICTION IS INVOLVED ; IN SUCH CASE MEMBER STATES SHALL ENSURE THAT DECISIONS ON APPLICATIONS FOR AUTHORIZATIONS ARE GIVEN WITHIN FIVE DAYS OF RECEIPT ' ' .

16 ARTICLE 3 PROVIDES AS FOLLOWS . ' ' THIS DIRECTIVE SHALL NOT AFFECT THE CONDITIONS UNDER WHICH ANY MEMBER STATE AUTHORIZES ITS OWN NATIONALS TO ENGAGE IN THE ACTIVITIES MENTIONED IN THIS DIRECTIVE . ' ' AS THE COMMISSION HAS RIGHTLY STATED IN THE COURSE OF THE PROCEEDINGS , THAT PROVISION MUST BE TAKEN TO RELATE TO THE AUTHORIZATION ACCORDED BY EACH MEMBER STATE TO UNDERTAKINGS ESTABLISHED IN ITS TERRITORY TO ENGAGE IN THE ACTIVITIES MENTIONED IN THE DIRECTIVE , REGARDLESS OF THE NATIONALITY OF THE PERSONS CONCERNED .

17 THE COMMISSION SUPPORTS THE VIEW TAKEN BY THE PLAINTIFF IN THE MAIN PROCEEDINGS AND CONSIDERS THAT THE REQUIREMENT LAID DOWN IN ARTICLE 1 ( 3 ) THAT ALL QUOTAS MUST BE ABOLISHED MAY BE RELIED UPON BY ALL TRANSPORT UNDERTAKINGS IN THE COMMUNITY WITHOUT DISTINCTION AND THAT , CONSEQUENTLY , THE ' ' CONDITIONS ' ' REFERRED TO IN ARTICLE 3 OF THE DIRECTIVE RELATE SOLELY TO CONDITIONS OF QUALITY AND NOT TO CONDITIONS OF QUANTITY OF THE TYPE EXISTING IN THE NETHERLANDS LEGISLATION .

18 THE GOVERNMENTS OF THE FEDERAL REPUBLIC OF GERMANY , THE FRENCH REPUBLIC AND THE KINGDOM OF THE NETHERLANDS , ON THE OTHER HAND CONSIDER THAT THE WORD ' ' CONDITIONS ' ' IN ARTICLE 3 IS USED IN A GENERAL SENSE AND THEREFORE INCLUDES CONDITIONS RELATING TO RESTRICTIONS ON TRANSPORT CAPACITY , SUCH AS ARE FOUND NOT ONLY IN THE NETHERLANDS LEGISLATION BUT ALSO IN THE LEGISLATION OF THE OTHER MEMBER STATES .

19 IN VIEW OF THOSE DIFFERENT INTERPRETATIONS IT IS APPROPRIATE TO STATE IN THE FIRST PLACE THAT THE DIRECTIVE OF 23 JULY 1962 IS A FIRST MEASURE DESIGNED TO ESTABLISH CERTAIN COMMON RULES FOR INTERNATIONAL TRANSPORT AND THAT , ACCORDING TO THE SECOND RECITAL IN THE PREAMBLE THERETO , IT WAS ADOPTED WITH A VIEW TO THE ' ' PROGRESSIVE EXPANSION ' ' OF THE INTERNATIONAL CARRIAGE IF GOODS BY ROAD , ACCOUNT BEING TAKEN OF DEVELOPMENTS IN TRADE AND THE MOVEMENT OF GOODS WITHIN THE COMMUNITY .

20 IT THEREFORE SEEMS , AS IS CONFIRMED BY THE CONTENTS OF ANNEXES I AND II TO THE DIRECTIVE , THAT THE DIRECTIVE IS INTENDED TO LIBERALIZE CERTAIN TYPES OF CARRIAGE BY ROAD WITHIN THE COMMUNITY WITHOUT YET LAYING DOWN UNIFORM CONDITIONS FOR AUTHORIZATION TO ENGAGE IN THE ACTIVITIES IN QUESTION .

21 IN THOSE CIRCUMSTANCES , ALTHOUGH ARTICLE 1 ( 3 ) OF THE DIRECTIVE PROVIDES THAT THE TYPES OF CARRIAGE LISTED IN ANNEX II THERETO ARE NO LONGER TO BE SUBJECT TO A QUOTA SYSTEM BUT MAY REMAIN SUBJECT TO AUTHORIZATION PROVIDED THAT NO QUANTITATIVE RESTRICTION IS INVOLVED , THE TERMS ' ' QUOTA ' ' AND ' ' QUANTITATIVE RESTRICTION ' ' CAN ONLY RELATE TO THE MEASURES WHICH A MEMBER STATE APPLIES TO TRANSPORT CARRIED OUT BY UNDERTAKINGS ESTABLISHED IN ANOTHER MEMBER STATE .

22 FURTHERMORE , THE REQUIREMENT CONTAINED IN ARTICLE 1 ( 3 ) THAT EACH MEMBER STATE IS TO ENSURE THAT DECISIONS ON APPLICATIONS FOR AUTHORIZATION ARE GIVEN WITHIN FIVE DAYS OF RECEIPT CAN ONLY BE EXPLAINED , WITHIN THE FRAMEWORK OF THE DIRECTIVE IN QUESTION , IF IT IS TAKEN TO RELATE TO AN APPLICATION FOR AUTHORIZATION COMING FROM ANOTHER MEMBER STATE .

23 THAT INTERPRETATION IS IN CONFORMITY WITH THE CONTENT OF ARTICLE 3 OF THE DIRECTIVE WHICH LEAVES THE MEMBER STATES THE POWER TO FIX THE CONDITIONS FOR AUTHORIZING UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY TO ENGAGE IN THE ACTIVITIES MENTIONED IN THE DIRECTIVE AND WHICH THEREFORE IMPLIES , IN THE ABSENCE OF OTHER RULES OF COMMUNITY LAW APPLICABLE TO THIS FIELD , THAT ANOTHER MEMBER STATE MAY IMPOSE ON SUCH UNDERTAKINGS CONDITIONS WHICH RESTRICT THEIR TRANSPORT CAPACITY .

24 CONSEQUENTLY , AS COMMUNITY LAW STANDS AT PRESENT , LEGISLATION OF A MEMBER STATE WHICH IS INTENDED TO RESTRICT CAPACITY IN RELATION TO THE TYPES OF INTERNATIONAL TRANSPORT LISTED IN ANNEX II TO THE DIRECTIVE IN ORDER TO MAINTAIN A BALANCE BETWEEN TRANSPORT NEEDS AND AVAILABLE CAPACITY CANNOT BE CONSIDERED TO BE CONTRARY TO THE DIRECTIVE .

25 THUS , IT MUST BE STATED IN REPLY TO THE SECOND QUESTION THAT THE PROVISIONS AT ISSUE MUST BE INTERPRETED AS MEANING THAT THE COMPETENT AUTHORITIES OF A MEMBER STATE ARE ENTITLED TO CONTINUE TO APPLY TO UNDERTAKINGS ESTABLISHED IN ITS TERRITORY A SYSTEM OF AUTHORIZATIONS FOR THE TYPES OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD LISTED IN ANNEX II TO THE DIRECTIVE IF THE AIM OF SUCH A SYSTEM IS TO RESTRICT THE LOAD CAPACITY TO BE USED BY THOSE UNDERTAKINGS FOR THE INTERNATIONAL CARRIAGE OF GOODS , EVEN IF THEY SATISFY ALL THE OTHER REQUIREMENTS LAID DOWN BY THE NATIONAL LEGISLATION FOR AUTHORIZATION TO ENGAGE IN NATIONAL AND INTERNATIONAL CARRIAGE OF GOODS .

THE THIRD QUESTION

26 THE THIRD QUESTION SUBMITTED BY THE RAAD VAN STATE IS AS FOLLOWS :

' ' IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE , DOES THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY LAID DOWN IN ARTICLE 7 OF THE EEC TREATY , PROPERLY CONSTRUED , MEAN THAT A STATUTORY LICENSING SYSTEM WHEREBY TRANSPORT UNDERTAKINGS ESTABLISHED IN ONE MEMBER STATE ARE SUBJECT TO QUANTITATIVE RESTRICTIONS AS REGARDS THE LOAD CAPACITY TO BE EMPLOYED IN THE CARRIAGE OF GOODS BETWEEN MEMBER STATES MAY BE OPERATED IF TRANSPORT UNDERTAKINGS ESTABLISHED IN OTHER MEMBER STATES ARE NOT OR MAY NOT BE SUBJECT TO SUCH RESTRICTIONS BY THAT MEMBER STATE UNDER COMMUNITY LAW?

' '

27 IT FOLLOWS FROM THE REPLY GIVEN TO THE SECOND QUESTION THAT , IN THE ABSENCE OF A COMMON POLICY IN THIS AREA , THE COUNCIL DIRECTIVE RECOGNIZES THAT RESPONSIBILITY IS TO BE DIVIDED AMONG THE MEMBER STATES , SO THAT EACH MEMBER STATE MAY DETERMINE THE CONDITIONS SUBJECT TO WHICH UNDERTAKINGS ESTABLISHED IN ITS OWN TERRITORY MAY BE AUTHORIZED TO ENGAGE IN THE TYPES OF TRANSPORT REFERRED TO IN THE DIRECTIVE IN ORDER TO MAINTAIN , AS FAR AS IS NECESSARY , A BALANCE BETWEEN SUPPLY AND DEMAND IN THE SECTOR IN QUESTION . THE APPLICATION OF NATIONAL LEGISLATION CANNOT BE REGARDED AS DISCRIMINATION CONTRARY TO THE TREATY ON THE GROUND THAT OTHER MEMBER STATES MAY APPLY LESS SEVERE RESTRICTIONS TO THE TRANSPORT UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY . THE AIM OF ARTICLE 7 OF THE TREATY IS TO ELIMINATE ANY DISCRIMINATION ON THE GROUND OF NATIONALITY RESULTING FROM THE LEGISLATION OR ADMINISTRATIVE PRACTICES OF A GIVEN MEMBER STATE RATHER THAN ANY DISPARITY IN THE WAY IN WHICH UNDERTAKINGS OF DIFFERENT MEMBER STATES ARE TREATED AS A RESULT OF DIFFERENCES BETWEEN THE LEGISLATION OF THE MEMBER STATES , IN THE ABSENCE OF A COMMON TRANSPORT POLICY .

28 THUS , IT MUST BE STATED IN REPLY TO THE THIRD QUESTION THAT THE FACT THAT , BY VIRTUE OF THE DIRECTIVE OF 23 JULY 1962 , A MEMBER STATE IMPOSES ON TRANSPORT UNDERTAKINGS ESTABLISHED IN ITS TERRITORY QUANTITATIVE RESTRICTIONS REGARDING THE LOAD CAPACITY TO BE EMPLOYED IN INTERNATIONAL CARRIAGE OF GOODS BETWEEN MEMBER STATES DOES NOT AMOUNT TO DISCRIMINATION CONTRARY TO ARTICLE 7 OF THE EEC TREATY EVEN THOUGH IT IS UNDER AN OBLIGATION , BY VIRTUE OF OF ARTICLE 1 ( 3 ) OF THAT DIRECTIVE , TO ALLOW WITHIN ITS TERRITORY WITHOUT ANY RESTRICTION TRANSPORT OPERATIONS ORIGINATING IN OTHER MEMBER STATES EVEN IN CASES WHERE THOSE MEMBER STATES IMPOSE LESS SEVERE CONDITIONS REGARDING LOAD CAPACITY ON THE UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY .

Decision on costs

COSTS

29 THE COSTS INCURRED BY THE GOVERNMENTS OF THE KINGDOM OF THE NETHERLANDS , THE FEDERAL REPUBLIC OF GERMANY AND THE FRENCH REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE ADMINISTRATIVE APPEALS DIVISION OF THE RAAD VAN STATE , BY ORDER OF 6 APRIL 1982 , HEREBY RULES AS FOLLOWS :

1 . IT IS THE RESPONSIBILITY OF THE NATIONAL COURT TO EXAMINE THE RELEVANT NATIONAL LEGISLATION IN THE LIGHT OF ARTICLES 1 ( 3 ) AND 3 OF THE FIRST COUNCIL DIRECTIVE OF 23 JULY 1962 , ON THE ESTABLISHMENT OF CERTAIN COMMON RULES FOR THE INTERNATIONAL CARRIAGE OF GOODS BY ROAD IF A PARTY RELIES ON THOSE PROVISIONS IN PROCEEDINGS BEFORE THAT COURT .

2 . THE PROVISIONS IN QUESTION MUST BE INTERPRETED AS MEANING THAT THE COMPETENT AUTHORITIES OF A MEMBER STATE ARE ENTITLED TO CONTINUE TO APPLY TO UNDERTAKINGS ESTABLISHED IN ITS TERRITORY A SYSTEM OF AUTHORIZATIONS FOR THE TYPES OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD LISTED IN ANNEX II TO THE DIRECTIVE , IF THE AIM OF SUCH A SYSTEM IS TO RESTRICT THE LOAD CAPACITY TO BE USED BY THOSE UNDERTAKINGS FOR THE INTERNATIONAL CARRIAGE OF GOODS , EVEN IF THEY SATISFY ALL THE OTHER REQUIREMENTS LAID DOWN BY THE NATIONAL LEGISLATION FOR AUTHORIZATION TO ENGAGE IN NATIONAL AND INTERNATIONAL CARRIAGE OF GOODS .

3 . THE FACT THAT , BY VIRTUE OF THE DIRECTIVE OF 23 JULY 1962 , A MEMBER STATE IMPOSES ON UNDERTAKINGS ESTABLISHED IN ITS TERRITORY QUANTITATIVE RESTRICTIONS REGARDING THE LOAD CAPACITY TO BE EMPLOYED IN THE INTERNATIONAL CARRIAGE OF GOODS BETWEEN MEMBER STATES DOES NOT AMOUNT TO DISCRIMINATION CONTRARY TO ARTICLE 7 OF THE EEC TREATY EVEN THOUGH IT IS UNDER AN OBLIGATION , BY VIRTUE OF ARTICLE 1 ( 3 ) OF THAT DIRECTIVE , TO ALLOW WITHIN ITS TERRITORY WITHOUT ANY RESTRICTION TRANSPORT OPERATIONS ORIGINATING IN OTHER MEMBER STATES EVEN IN CASES WHERE THOSE MEMBER STATES IMPOSE LESS SEVERE CONDITIONS REGARDING LOAD CAPACITY ON THE UNDERTAKINGS ESTABLISHED IN THEIR TERRITORY .