Opinion of Mr Advocate General Mischo delivered on 4 June 1987. - Bovo Tours BV and Van Nood Touringcars BV v Minister for Transport, Water Control and Construction and others. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Interpretation of Articles 8, 13 (1) and 16 (2) of Regulation Nº 517/72 - Coach and bus transport. - Case 88/86.



European Court reports 1987 Page 05429



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The College van Beroep voor het Bedrijfsleven has referred to the Court four questions on the interpretation of Regulation ( EEC ) No 517/72 of the Council of 28 February 1972 on the introduction of common rules for regular and special regular services by coach and bus between Member States ( Official Journal, English Special Edition 1972 ( I ), p . 143 ) as amended by Council Regulation ( EEC ) No 1301/78 of 12 June 1978 ( Official Journal 1978, L 158, p . 1 ).

2 . Before analysing those questions it is worth comparing certain characteristics of Regulation No 517/72 with the proposal which the Commission submitted to the Council on 17 July 1969 ( Doc . COM(69 ) 485 final ).

3 . Under that proposal decisions regarding applications for the granting and renewing of a licence and for the introduction, variation and cancellation of a bus service, were to be taken by agreement between the Member States over whose territory the services concerned were to pass ( Article 16 ). The Commission' s proposal did not provide for any appeal against those decisions .

4 . In contrast, if more than one applicant submitted applications to introduce the same regular or special regular service the Member State on whose territory the service was to have its departure point was to choose between them .

5 . The reasons on which the decision was based had to be given and Member States were to ensure that legal and natural persons would have "the opportunity to make representations concerning their interests, by appropriate means" with regard to the latter type of decision . In the preamble it was specified that opportunities were to be afforded to transporters to appeal in respect of decisions taken by the Member States concerning the choice of the applicant to whom the licence was to be granted .

6 . Finally it was specified in Article 18 that "pursuant to the decisions taken ( by agreement between the Member States ) and those taken by the Commission ( if the Member States fail to agree ) the Member State shall grant, renew, vary or withdraw the licence ".

7 . Regulation No 517/72 in its final form also provides for decisions to be taken either by agreement between the Member States ( Article 13 ( 1 ) ), or by the Commission ( Article 14 ( 1 ) ) or, additionally, by the Council ( Article 14 ( 2 ) ) but under Article 16 that initial decision is followed by a decision taken by the competent authority of the Member State in whose territory the headquarters of the undertaking is situated . In fact Article 16 uses the expression "decision" on three occasions in paragraphs 2 and 3 .

8 . By that decision the competent authority, acting pursuant to the agreement between the Member States concerned or the decisions taken by the Commission or the Council, either :

( i ) grants an authorization for the introduction of a service;

( ii ) authorizes a variation of the conditions subject to which a service is operated, or notifies the holder of the authorization of that variation;

( iii ) renews the authorization or

( iv ) formally refuses the application .

9 . Under Article 16 ( 2 ) the decisions of the competent authority must state the reasons on which they are based and Member States are to "ensure that transport undertakings in their capacity as such are given the opportunity to make representations concerning their interests, by appropriate means, in respect of such decisions ". However in the preamble to the regulation as finally adopted that opportunity is no longer described as an "appeal ".

10 . It must be concluded therefore, that, acting unanimously under Article 149 of the EEC Treaty, the Council wished to amend the Commission' s proposal by expressly qualifying as "decisions" the acts of the competent authority of the Member State in whose territory the headquarters of the undertaking is situated which are adopted at the end of the procedure; furthermore it extended the right of the applicant undertaking to "make representations concerning its interests" to the four types of decision capable of being taken by that authority .

11 . The system thereby instituted by the Council is somewhat complex and the reference to a competent authority may be understood in different ways .

12 . One possible interpretation is that every Member State exercises its powers under Regulation No 517/72 through a "competent authority" which it designates for that purpose .

That competent authority first analyses whether the application submitted by a transport undertaking must be granted, taking into account transport services already existing in the national territory of that Member State .

The authority then sends the application, with a favourable or unfavourable opinion, to the other Member States concerned .

If the authority' s opinion is favourable it requests the agreement of those States . Finally, if there is agreement by all the Member States concerned, the authority grants the authorization or, if either the authority itself or the competent authority of one or more of the other Member States concerned is opposed to the granting of the authorization, it refuses the application . The final decision must be deferred if one of the Member States concerned brings the matter before the Commission .

This system makes no distinction between the "Member State" within the meaning of Article 13 and the competent authority within the meaning of "Article 16" of the regulation .

13 . Another approach is that followed in the Netherlands ( see on this point the judgment making the reference ) where the regulation is implemented by two different authorities :

( a ) The Minister for Transport

14 . The Minister for Transport has the real decision-making power since he decides whether it is appropriate to introduce the service from the point of view of the existing situation in the national territory ( see the letter from the Netherlands Minister to the Commissie Vervoervergunningen ( Committee for the Authorization of Transport Services ) cited in paragraph 3 of the judgment making the reference ). The Minister also requests the agreement of the other Member States concerned .

( b ) The competent authority

15 . In the instant case this is the Committee for the Authorization of Transport Services . That Committee informs the Minister of its position ( see paragraph 7 of Article 13 ( b ) of the Uitvoeringsbesluit Autovervoer Personen ( Implementing Order on Passenger Transport ), hereinafter referred to as "the Order "). Thereupon, "once the decision concerning the application has been adopted, the Minister shall inform the Committee thereof" ( paragraph 8 of Article 13 ( b ) of the Order ). The Committee then adopts its own decision and transmits copies thereof to the Minister .

16 . Under the Netherlands system the "competent authority" and the "Member State" ( that is to say the Minister ) are two distinct entities and, to a certain extent rivals since in this case the Committee expressly published an opinion different from that of the Minister although it was ultimately obliged to bow to the Minister' s will ( see the last part of section 3 of the judgment making the reference ).

17 . I thought it appropriate to draw the Court' s attention to those two possible interpretations in order to stress that certain of the problems raised before the College van Beroep voor het Bedrijfsleven are attributable to the way the regulation has been implemented in the Netherlands .

18 . To my mind we should not let ourselves be influenced by those particular aspects but should concentrate on the wording of the regulation itself . I would now like to examine the first question asked by the College van Beroep voor het Bedrijfsleven .

I - The first question

The first question is worded as follows :

"Must Article 16 ( 2 ) of Regulation ( EEC ) No 517/72 of the Council be interpreted to the effect that it is sufficient if a Member State provides, in its national legislation implementing that regulation, for a procedure which allows interested parties, before a decision concerning any application is taken, to submit written objections against that application within 30 days of its being deposited for public inspection?"

19 . The plaintiffs in the main proceedings ( Bovo Tours BV and Van Nood Touringcars BV ) and the Commission suggest that the first question should be answered in the negative, whereas the United Kingdom, the French and the Netherlands Governments and the third party joined to the main proceedings are in favour of an affirmative response .

20 . In essence, the question is whether the second subparagraph of Article 16 ( 2 ) of Regulation No 517/72 requires Member States to give transport undertakings the opportunity to call in question decisions taken under Article 16 ( 1 ) after they have been adopted .

21 . It is plain that those Member States which grant the interested parties the opportunity to present written objections with regard to an application to introduce a coach service before the decision on the application is taken thereby give those parties a certain power to influence the decision .

22 . But is that enough in the light of the wording of Article 16 ( 2 )? To my mind it is not . Article 16 ( 2 ) provides : "Decisions taken by the competent authorities of the Member States pursuant to paragraph 1 must state the reasons on which they are based . Member States shall ensure that transport undertakings in their capacity as such are given the opportunity to make representations concerning their interests, by appropriate means, in respect of such decisions ".

23 . It is clear that the decisions in question are those whereby the "competent authorities" grant or refuse the applications for authorization .

24 . The Community legislature wished to ensure that the transport undertakings could, by reading the reasons on which the decision was based, apprise themselves of the justification for the reasons and the conditions under which the authorization was granted, refused or varied . It is only once they are able to ascertain what those reasons are that the undertakings are really in a position to judge whether or not their interests have been adversely affected .

25 . The obligation to give reasons would be devoid of all significance if the person to whom the decision was addressed or any other transport undertaking concerned had no opportunity to challenge the validity of the reasons given .

26 . It is indeed possible that the authorization in its final form differs from that actually applied for, for example as regards the route chosen, especially if there has been arbitration by the Commission or Council .

27 . It is also conceivable that the application might be refused solely because of the opposition of the Member State in whose territory the undertaking has its headquarters because that State considered that there was no transport need to be catered for on the proposed route ( assuming that the other Member State refrained from bringing the matter before the Commission ). Is it to be assumed in such cases that the applicant has already "made representations concerning its interests" when submitting its application, and that it should not be given any opportunity to challenge the validity of the decision? The answer is clearly no .

28 . The decision might also concern only the identity of the transport undertaking allowed to operate the service ( for example when an authorization is being renewed ). Again, it does not seem to me that the expression "make an application" and the expression "make representations concerning one' s interests" are exactly one and the same .

29 . Finally, it is interesting to note that Article 16 of Regulation ( EEC ) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway ( Official Journal, English Special Edition 1969 ( I ), p . 276 ), reads as follows :

"Member States shall ensure that transport undertakings, in their capacity as transport undertakings, are given the opportunity to make representations concerning their interests, by appropriate means, with regard to decisions taken pursuant to this regulation ."

30 . Article 12 of Regulation ( EEC ) No 1192/69 of the Council of 26 June 1969 on common rules for the normalization of the accounts of railway undertakings ( Official Journal, English Special Edition 1969 ( I ), p . 283 ) is identical except that the words "transport undertakings" are replaced by the words "railway undertakings ".

31 . The Council therefore based itself on two regulations in which the relevant provision indubitably provided for subsequent challenge of all decisions taken under those regulations .

32 . None the less, the United Kingdom, the Government of the Netherlands and the third party in the case take the view that ex post facto review would be "inappropriate","largely devoid of purpose", or even "marginal" and that therefore the second subparagraph of Article 16 ( 2 ) must be interpreted as requiring only a procedure of the type which exists in the Netherlands .

33 . In any event it is clear that when the refusal is attributable only to the attitude of the Member State where the undertaking has its registered office or when the decision concerns simply the identity of the undertaking authorized to operate a route the introduction of which is not in dispute or which already exists, the appeal would be directed towards the real maker of the decision ( subject to what is said below concerning the situation in the Netherlands ).

34 . What is the situation if the authorization to introduce a particular regular service was granted following agreement by two or more Member States and an interested party wishes to have that authorization withdrawn or cancelled, as in the case pending before the College van Beroep voor het Bedrijfsleven?

35 . As I shall explain later when examining the reply to the second question, I consider that in that situation also the authorization will constitute a national decision . The courts or any other national body having jurisdiction will be able to examine the agreement given by the authority of the country where the undertaking has its headquarters in so far as its own territory is concerned in order to check in particular whether the relevant criteria set out in Articles 8, 9 and 11, of the regulation which are directly applicable have been correctly applied . If they have not been, the court or other body can, if necessary, cancel the authorization in so far as its own territory is concerned .

36 . Before Regulation No 517/72 was adopted a transport undertaking had to obtain several authorizations, each valid for the territory of one of the Member States involved . The innovation brought about by the regulation consists in the fact that it is no longer necessary for the transport operator itself to seek the agreement of the other Member States and it possesses a single authorization which is valid for the whole route . Nevertheless, even under the new system each Member State gives its agreement only for its own territory . It must therefore be possible to challenge that partial agreement separately .

37 . If the route was to be operated by a consortium which included an undertaking from the other Member State involved the authorization granted to that undertaking would automatically lapse if the agreement of the competent authority of the first Member State for the operation of the route on its territory were vitiated . ( That would obviously not be the case if the decision did not concern whether or not the route is to be operated but concerned simply the identity of the operator ).

38 . When the Minister, and not the "competent authority" under Article 16, enjoys the real decision-making power, as is the case in the Netherlands, it appears to me that the decisions of those bodies must be considered as one, that is to say the decision of the public authorities of the Member State in question . The Member State acts through the competent authority . Any action against a decision of the competent authority is in fact directed against the decision of the Member State .

39 . A Member State may not render a provision of a regulation wholly ineffective by means of its detailed rules for implementing that regulation .

40 . But that is what would happen if an appeal against the decision of the competent authority was dismissed or declared inadmissible because of the limited power of that authority and if no appeal lay against the decision of the Minister for Transport on the grounds that it was not a decision of the competent authority within the meaning of Article 16 .

41 . If the decision adopted under Article 16 is merely the transposition of a favourable or unfavourable decision of the Council or Commission the tribunal or court before which the case is brought can refer a question to the Court of Justice of the European Communities concerning the validity of that decision . There too, ex post facto review would not be devoid of practical significance .

42 . By contrast, it must be acknowledged that, if the authorization was refused following opposition from a Member State other than that where the undertaking has its headquarters, an appeal by the applicant to the courts of the Member State where the undertaking has its headquarters would not serve any practical purpose . On the other hand, the applicant or its partner in the other Member State whose application will ex hypothesi also have been refused, may bring an appeal before the competent bodies of that State .

43 . In all the above hypotheses it is certainly possible that the submissions upon which an applicant could rely would be limited, for example, to manifest error or misuse of powers, in view of the wide discretion which the Member States, the Council and the Commission undoubtedly enjoy with regard to this type of decision . But the same is true of many decisions of an economic nature and that is not a reason to attribute to Article 16 ( 2 ) a meaning it does not have .

44 . Finally, subsequent review would also make it possible to check whether formal requirements were observed, whether the adoption procedure was properly carried out, whether there was in fact agreement with the other Member State and whether that decision was in conformity with the decision of the Council or the Commission . Such review is therefore not devoid of any practical significance .

45 . Another objection to subsequent review has been derived from Article 16a which was inserted in Regulation No 517/72 by Council Regulation ( EEC ) No 1301/78 of 12 June 1978 ( Official Journal 1978, L 158, p . 1 ). That provision allows the issuing of a provisional authorization, inter alia when the decision on renewal of an authorization cannot be taken before the authorization expires, in particular because of objections made by other interested carriers .

46 . The United Kingdom takes the view that if the Council had intended to oblige Member States to provide for a system of appeals against decisions taken under Article 13 ( 1 ), it would have expressly provided for such an obligation which would be mentioned in Article 16a ( 1 ).

47 . That argument is not convincing . Admittedly, Article 16a addresses itself to the situation where objections have been raised before an authorization has been renewed because a Member State has given interested parties the opportunity to make representations regarding their rights before a new decision was adopted, which it is perfectly free to do . That does not in any way prejudge the question at issue here of whether or not Article 16 requires subsequent review . If it does so require, there is no need to mention it again in Article 16a .

48 . Article 16a makes no mention thereof . This is therefore further evidence that Article 16 must indeed be interpreted as having the meaning indicated above .

49 . Furthermore, Article 16a deals mainly with the case where several undertakings from the same Member State are competing for an authorization . That is mainly, and probably even exclusively, a matter for the competent authority of the country where those undertakings have their headquarters .

50 . Before concluding my observations on this question, I must also allude to a problem which the Netherlands court has not raised in its questions, that is to say the nature of the "appropriate means" whereby the undertakings must have the opportunity to "make representations concerning their interests ".

51 . It suffices to point out that the provision in question clearly leaves Member States wide discretion when deciding on the nature and details of those appropriate means, in particular on the basis of the characteristics of their legal system . Whereas the expression "opportunities for appeal" was used in the preamble to the Commission' s proposal, that expression does not appear in the preamble to the Council regulation . The appropriate means need not, therefore, be reviewed by the courts . On the other hand, the Member States in which there is in any event provision for an appeal to the administrative courts or ordinary courts against that type of decision do not need to adopt new provisions to implement Article 16 ( 2 ) if they do not wish to .

52 . It may therefore be concluded that Article 16 ( 2 ) leaves Member States a wide discretion in deciding the manner in which undertakings must be allowed to make representations according to their interests but not in deciding at what stage that opportunity must be available . The first question must therefore be answered in the negative .

II - The second question

53 . The second question is worded as follows :

"Must 'decisions on applications to introduce a regular service taken by agreement between the Member States in whose territories passengers are to be taken up or set down' , as referred to in Article 13 ( 1 ) of Regulation No 517/72, be regarded as :

( a ) decisions of the Member State in which the undertaking applying for authorization has its headquarters taken by that Member State only after the other Member States concerned have given their assent;

or

( b ) multilateral decisions adopted jointly by several Member States following international negotiations;

or

( c ) sui generis decisions which, in view of their character and the existence of an alternative procedure for adopting a decision in the absence of agreement, may be equated with an act or decision of a Community institution?"

54 . The Court has ruled that "The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures . In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, the direct applicability of the measure empowering the Member State to take the national measures in question will mean that the national courts may ascertain whether such national measures are in accordance with the content of the Community

regulation" ( 1 )

55 . In my view the principles established by that judgment rule out the possibility of alternative ( c ) being the correct interpretation .

56 . The characteristic of the Community system is that administration is indirect or decentralized . Merely because a national measure may be necessary to implement a Community regulation, that measure is not thereby transformed into an act which may be equated with a decision of an institution .

57 . I do not understand why the same cannot also be true when the regulation concerned provides for the cooperation of two or more Member States and only then for an act of the Commission or Council if the States are not in agreement .

58 . Alternative ( b ) must also be ruled out .

59 . If a decision taken by a single Member State in the implementation of a Community regulation is subject to review by the national courts as to whether it is in conformity with Community law, it would not be logical for such a review to become impossible when two Member States have cooperated in the implementation of such a regulation .

60 . It would be wholly inconceivable for the implementation of a Community regulation to be governed by public international law once it involved agreement between two Member States . Within the separate legal order created by the Treaty there is no scope for the application of public international law to matters falling within the ambit of the Treaty . ( 2 )

61 . Secondly, if the interpretation of Article 16 ( 2 ) which I suggested when considering the first question is accepted, that is to say that Member States are thereby obliged to guarantee transport undertakings the opportunity to make representations concerning their interests after the competent authority has adopted a decision, the conclusion necessarily follows that the Council, precisely did not take the view that those decisions were international agreements exempt from review by national courts . In this way it wanted to preclude reliance on concepts similar to the act of State doctrine being used to defeat such appeals .

62 . Being well aware that the decisions of the "competent authority" are in many ( although not all ) cases based on an agreement between two or more Member States or are sometimes merely the transcription of an arbitration decision given by the Commission or Council, the Council designated as the measure capable of adversely affecting interests not the decisions referred to in Article 13 ( 1 ) or Article 14 ( 1 ) and ( 2 ) but the decisions taken by the "competent authority" of the Member State where the undertaking has its headquarters under Article 16 ( 1 ), which in formal terms are always national decisions .

63 . It is those decisions which must state the reasons on which they are based . There is no obligation to state the reasons on which an agreement between Member States under Article 13 ( 1 ) is based . That is no doubt because the agreement cannot be relied on against the applicant who is affected solely by the decision of the competent authority . The agreement is only a mandatory step in the procedure for adopting the decision provided for in Article 16 ( 1 ) which alone must be communicated to the applicant undertaking . The undertaking will perhaps never see the text of the agreement ( probably merely a letter replying to notification of the application ) or of the decision of the Council or the Commission .

64 . Other arguments also indicate that no technical meaning under the law of treaties should be attributed to the expressions "decisions by agreement" ( Article 13 ( 1 ) ), "negotiations" ( Article 14 ( 1 ) ) or "agreement" ( Article 14 ( 1 ) and ( 3 ) ).

65 . Thus, under Regulation ( EEC ) No 516/72 of the Council on the introduction of common rules for shuttle services by coach and bus between Member States, ( 3 ) adopted on the same day as Regulation No 517/72, the expressions "agreement" and "opinion" are used alternatively to describe one and the same thing ( see Articles 14 and 15 ).

66 . It is also worthy of note that Council Directive 83/416/EEC of 25 July 1983 concerning the authorization of scheduled interregional air services for the transport of passengers, mail and cargo between Member States ( 4 ) deals with the same type of problem without even using expressions such as "negotiations" or "agreement ". If an air carrier established in State A wishes to operate an air service to a regional airport in State B it applies to State A . If State A approves the application it forwards it to State B . Thereafter, State B authorizes the air carrier concerned to operate the interregional air service if it complies with the provisions of the directive ( Article 3 ). Once such a service has been authorized, State A may not raise any objection to an application for the introduction of an interregional service on the same route by an air carrier from State B ( Article 6 ( 2 ) ). Although the problem is posed in simpler terms in the case of air carriers than in the field of road transport, it none the less seems to me that this example also proves that all those transport authorizations involve not "multilateral decisions adopted jointly by several Member States following international negotiations" within the meaning of point ( b ) of the second question but decisions taken by a Member State after the other Member States concerned have given their assent, within the meaning of point ( a ) of the same question .

67 . I find support for that interpretation in a recent judgment of the Court which, contrary to the Commission' s argument, refused to regard a decision taken by the French Finance Minister "upon the request of the Greek authorities and having been enabled by them to gather all the necessary information" to recognize as being of equivalent status, as provided for by the law, quality wines produced in particular regions of Greece and enjoying the designation "sweet natural Samos wine grand cru", as an agreement ( Judgment of 7 April 1987 in Case 196/85 Commission v French Republic (( 1987 )) ECR 1597, Section IV.1 of the Report for the Hearing and paragraphs 16 and 17 of the decision ).

68 . To return to this case I also find the letter of 17 November 1983, whereby the Netherlands Minister for Transport informed the Committee of his position, very instructive ( on several occasions the College van Beroep voor het Bedrijfsleven described that letter as the decision of the first defendant ). On a careful reading of that letter, whose text is reproduced in the judgment making the reference, it is quite plain that in paragraphs 1 to 3 set out the grounds on which the Minister considers that the authorization must be granted . It is not until paragraph 4 that the Minister states that "over one year ago the United Kingdom authorities declared that they were prepared to grant the relevant authorization ". That tends to suggest that the decision is a national decision which is adopted following the assent of the other Member State concerned .

69 . Finally, the following considerations drawn from the text of Regulation No 517/72 also indicate that the measure in question is not an agreement subject to the classic rules of international law .

70 . ( a ) The agreement mentioned in Article 13 ( 1 ) may be reached only within the limits set out by the Community rules . In particular it must comply with the substantive conditions set out in Articles 8, 9 and 11 of Regulation No 517/72 . The discretion of the Member States involved is fettered by the criteria set out in those provisions .

71 . ( b ) The application to introduce a service and the authorization must comply with a model drawn up by the Commission . In their agreement the Member States may only determine the eight factors set out in Article 3 ( 3 ). Their power as to the form of the decision is limited by the model drawn up by the Commission in Regulation ( EEC ) No 1172/72 of the Commission of 26 May 1972 prescribing the form of the documents referred to in Council Regulation ( EEC ) No 517/72 and Council Regulation ( EEC ) No 516/72 . ( 5 )

72 . ( c ) The power of the Member States involved is also limited by the fact that the service must be operated in conformity with the model operating rules adopted by the Council acting under Article 5 ( 1 ) of Regulation No 517/72 .

73 . ( d ) The procedure for drawing up the decision is not blocked if one of the Member States involved uses its right of veto, for the matter may be brought before the Commission . The decision-making power passes either to the Commission or to the Council . Either the Commission' s or the Council' s decision could be contrary to the position of the Member State on whose territory passengers are taken up or set down because under the second subparagraph of Article 14 ( 2 ) Council decisions are adopted by a qualified majority . Under classic international law there is scarcely any possibility of overcoming a State' s veto .

74 . ( e ) The holder of an authorization may allow it to lapse by giving notice of his intention to withdraw the service . That possibility is perfectly comprehensible in the case of a national decision but not if the decision were an agreement in the international law sense .

75 . ( f ) Even if, as the United Kingdom argues, an undertaking could operate a regular coach service between Member States other than that where its headquarters is located, it must, under Article 12 ( 2 ), none the less submit its application to that Member State . In that case, by virtue of Regulation No 517/72, the Member State concerned must implement an agreement in which it has not participated . The agreement is therefore only joint implementation of an administrative task which the Community has assigned to its Member States and which is not a classic international law agreement, since there can be no obligation under public international law for a State to implement an agreement concluded between two other countries .

76 . The system thus set up by the Council in Regulation No 517/72 is perhaps strange and complex, but we must, in my view, take the system as it is and ensure that it is effective, even if that requires a particularly broad interpretation and even if the provisions in question do not appear in the proposal for the recasting and consolidation of Regulations Nos 117/66, 516/72 and 517/72 which the Commission has recently put before the Council ( Official Journal, C 120, 6.5.1987, p . 9 ). Article 20 of that proposal however confirms very clearly that the decisions concerned are national decisions adopted after agreement by the competent authorities of the other Member States concerned .

77 . On the basis of all the foregoing considerations I propose that the second question should be answered as follows :

"The decisions taken by the competent authority referred to in Article 16 ( 1 ) are decisions of the Member State on whose territory the undertaking has its headquarters even when those decisions are based on the agreement of the Member States in whose territories passengers are to be taken up or set down, referred to in Article 13 ( 1 )."

III - The third question

78 . The third question of the College van Beroep voor het Bedrijfsleven is as follows :

" In the event of the Court' s considering that the interpretation set out in part ( c ) of Question 2 is correct, is the decision which the Netherlands Minister for Transport, Water Control and Construction announced - and for which he stated the reasons - in his letter of 17 November 1983 invalid on the ground that, for the reasons given in the body of this judgment, it conflicts with Article 190 of the EEC Treaty and/or Regulation No 517/72 in particular Article 8 thereof?"

79 . In my view this question is devoid of purpose since I consider that the decision in question cannot be equated with an act or decision of a Community institution .

IV - The fourth question

80 . The last question is worded as follows :

" If the Court does not consider the interpretation set out in part ( c ) of Question 2 to be correct, must Article 8 ( 1 ) of Regulation No 517/72 be interpreted to the effect that the expression 'existing passenger transport services' covers solely regular passenger services by coach operated on the same route and using the same method of crossing the Channel as the service which is the subject of the application, or does it extend to other types of passenger service by coach ( operated partly on a different route; using another method of crossing the Channel ) and to passenger services by rail?"

81 . It is appropriate first of all to analyse the wording of the provision to be interpreted in its entirety .

82 . Article 8 ( 1 ) reads as follows : "Examination of an application ... shall be for the purpose of establishing that the traffic to which the application relates is not already catered for in a satisfactory manner, both as to quality and as to quantity, by existing passenger transport services ".

83 . The Council could easily have added the words "by coach or bus" or "by road ". However it did not do so .

84 . Article 8 ( 2 ) provides "The following, in particular, shall be taken into consideration during the examination referred to in paragraph 1 :

( a ) the current and foreseeable transport needs which the applicant is planning to meet,

( b ) in the case of regular services, the state of the passenger transport market in the areas in question ".

85 . The use of the expressions "passenger transport" and "transport market" indicates to my mind that railways must not be excluded from the analysis . That is borne out by the fifth recital, which states that "in order to ensure the proper functioning of services at minimum cost to the community in general, it is necessary on the one hand to adapt the supply of transport to the demand therefor on the routes to be served and, on the other, to coordinate passenger transport services in the areas concerned in an effective manner ".

86 . The reference to the "minimum cost to the community" and "the coordination of services in an effective manner" could not be other than an allusion to the deficits of the railway companies .

87 . The reference to the concept of "areas concerned" indicates that the analysis must not be limited to the services already in operation on the precise route to which the applicant' s application relates but may also include other routes in the same area or region and other means of crossing the Channel which start from a point in that same region .

88 . Certainly, it is the task of the national court to assess whether a means of crossing the Channel which cannot accommodate coaches and which therefore necessitates baggage being transhipped several times is of equivalent quality to a mode of transport which avoids that and whether a night service can be regarded in exactly the same way as a daytime service .

89 . While it is true to say that a choice between several transport services in itself constitutes a qualitative improvement and is also likely to prompt the transport operators to make the journey as pleasant and as cheap as possible, the wording of the regulation and its preamble does not make it possible to conclude that every application for authorization of a new service must on that basis alone be granted because "it is necessary to adapt the supply of transport to the demand therefor on the routes to be served ".

90 . Let me add for the sake of completeness that the comparison must relate to services linking the same points of arrival and departure and should not take into consideration shuttle services or occasional services .

91 . For all the reasons set out above I consider that the alternative suggested in the second branch of the fourth question is the correct one .

Conclusion

In summary I suggest that the questions asked by the College van Beroep voor het Bedrijfsleven should be answered as follows :

"( 1 ) On a true interpretation of Article 16 ( 2 ) of Regulation No 517/72 each Member State is required to ensure that transport undertakings have the opportunity to make representations concerning their interests in respect of decisions referred to in Article 16 ( 1 ) after those decisions have actually been taken by the competent authority of the Member State concerned and not merely at the stage preceding the adoption of those decisions .

( 2 ) The decisions taken by the competent authority referred to in Article 16 ( 1 ) must be regarded as the decisions of the Member State on whose territory the undertaking has its headquarters even when they are based on agreement within the maning of Article 13 ( 1 ), between that State and the State in whose territory passengers are set down .

( 3 ) In view of the answer given to the second question, the third question is devoid of purpose .

( 4 ) The expression 'existing passenger transport services' in Article 8 ( 1 ) of Regulation No 517/72 includes regular passenger transport services by coach or by bus or rail which follow a partly different route and which use another means of crossing the English Channel than the service in respect of which authorization has been applied for .

(*) Translated from the French .

( 1 ) Judgment of 27 September 1979 in Case 230/78 Eridania v Minister for Agriculture and Forestry (( 1979 )) ECR 2749, at p . 2771 paragraph 34 .

( 2 ) On this issue, see in particular : Joergen Schwarze:"Das allgemeine Voelkerrecht in den innergemeinschaftlichen Rechtsbeziehungen", in Europarecht, 1983 Volume 1, p . 1 .

( 3 ) Official Journal, English Special Edition 1972 ( I ), p . 137 .

( 4 ) Official Journal 1983, L 237, p . 19 .

( 5 ) Official Journal, English Special Edition 1972 ( II ), p . 527 .