Keywords

Summary



Keywords

1. Transport — Inland waterway transport — Structural improvements — Regulation No 718/1999 — Scope — Dredgers not used for carrying goods — Exemption — Restrictive interpretation — Burden of proof — (Council Regulation No 718/1999, Arts 1 and 2(2)(g))

2. Transport — Inland waterway transport — Structural improvements — Contribution to inland waterways fund — Exemption for specialised vessels — Restrictive interpretation — Burden of proof — (Council Regulation No 718/1999, Art. 4(6))

3. Transport — Inland waterway transport — Structural improvements — Contribution to inland waterways fund — Commission decision rejecting an application for exemption in favour of specialised vessels — Absence of reasoning in relation to a non-binding opinion given by a group of experts — No bearing on the lawfulness of the decision — (Council Regulation No 718/1999, Art. 4(6))

4. Community law — Principles — Rights of the defence — Observance thereof during administrative proceedings — Obligation on the party concerned to show due diligence

Summary

1. Since Article 2(2)(g) of Regulation No 718/1999 on a Community-fleet capacity policy to promote inland waterway transport provides for a derogation from the general scheme established by that regulation it must be narrowly construed, having regard to the purpose of that regulation stated in its first recital, namely the reduction of overcapacity in inland waterway fleets. That provision states that Regulation No 718/1999 does not apply to " dredging equipment, such as hopper vessels and pontoons and floating construction plant, provided that such equipment is not used for the carriage of goods within the meaning of Article 1" . " Carriage of goods" is defined in Article 1 of that regulation as covering transport " between two or more points by inland waterway in the Member States" .

It follows that the onus is on the applicants for the exclusion of a newly-constructed vessel from the scope of Regulation No 718/1999 to demonstrate that all the conditions laid down for the application of that derogation are met, particularly the condition that, in addition to its dredging work, that vessel for which the application for exemption is made is not used for the carriage of goods within the meaning of Article 1 of the regulation.

see paras 31, 33, 41

2. Bearing in mind the derogatory nature of Article 4(6) of Regulation No 718/1999 on a Community-fleet capacity policy to promote inland waterway transport, which provides that the Commission may exclude certain vessels from the scope of the regulation and consequently exempt their owners from payment of the special contribution prescribed by the regulation if the vessels in question are " specialised vessels" , and which also provides that such vessels must be " specially and technically designed to carry a single type of goods" and technically unsuitable for carrying other goods, that it must be impossible to carry that single type of goods in vessels without special technical installations, and that their owners must give a written undertaking that no other goods will be carried in their vessels as long as the " old for new" rule applies, Article 4(6) must be interpreted restrictively having regard to the purpose of the regulation stated in its first recital, namely the reduction of overcapacity in inland waterway fleets.

It follows that the onus is on the applicants for the exemption of a newly-constructed vessel from payment of that special contribution to demonstrate that all the conditions laid down by Article 4(6) for the exemption of specialised vessels are satisfied.

see paras 47, 49, 54

3. A failure to state reasons affecting an opinion which is not an act adversely affecting a person ' s interests but only a non-binding act, given by the Group of Experts referred to in Article 4(6) of Regulation No 718/1999 on a Community-fleet capacity policy to promote inland waterway transport, cannot render the Commission ' s final decision rejecting an application for the exemption of a newly-constructed vessel from payment of the contribution to the inland waterways fund unlawful. It is only if that decision referred to an expert opinion which did not state reasons and if it did not itself include an independent and sufficient statement of reasons that it would be vitiated by a lack of reasoning.

Moreover, since the Group ' s opinion does not bind the Commission and there is no difference of opinion between the Group and the Commission, the latter cannot be blamed for not giving the addressees of its final decision detailed particulars of the Group ' s viewpoint.

see paras 62-63

4. Observance of the rights of defence in any procedure initiated against a person and liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle requires that any person who may be adversely affected by a decision be placed in a position in which he may effectively make his views known, at least as regards the evidence on which the Commission has based its decision.

Whilst that principle of respect for rights of the defence imposes a number of procedural obligations on the national and Community authorities, it also implies a certain amount of diligence on the part of the party concerned. Accordingly, if the party concerned considers that its rights of defence have not been respected, or have not been adequately respected, in the administrative procedure, it is for that party to take the measures necessary to ensure that they are respected or, at the very least, to inform the competent administrative authority of that situation in good time.

see paras 77, 81