(a)

As the Netherlands Government has stated, a distinction must be made in this context between the three different types of restrictions on load capacity (laadvermogen) laid down in the Netherlands legislation. The first tvpe is a restriction imposed for technical construction reasons whereby a maximum load capacity is prescribed for the vehicle in question. This must be distinguished from the maximum payload of a vehicle to which the Federal German Government in particular refers to in its observations and which must primarily take account of varying road conditions. Finally, those restrictions, which relate to individual vehicles, must be distinguished from the total capacity granted to individual undertakings whereby they are empowered to decide for themselves which vehicles are to be used according to their specific requirements. A rule regarding capacity, of the type at issue in this case, on the one hand serves the purpose of facilitating control of the market, which is necessary for various reasons, and on the other hand gives the public authorities the instruments needed to ensure stable market conditions and to enable Netherlands undertakings in the transport sector to operate profitably. The Governments of France and the Netherlands express the view, in essence, that such a rule is expressly exempted from the operation of the directive by virtue of Article 3 thereof. On the other hand in the view of the plaintiff in the main proceedings and in that of the Commission the Netherlands rule is to be regarded as constituting a quota system prohibited by Article 1 (3). Accordingly, the essential question is whether such a rule falls within the “conditions under which any Member State authorizes its own nationals to engage in the activities mentioned in [the] directive” which, according to Article 3 thereof, are not to be affected or whether, as the Commission in particular believes, the directive excludes from its operation only matters connected with the character of the entrepreneur such as personal reliability, solvency and technical aptitude. In my opinion however neither the wording of this provision nor its place in the general scheme of the directive provides any convincing support for one view or the other. In any event the binding wording of this provision in all the official languages does not exclude the possibility that the scope of application of the directive was to be restricted, in so far as it was to be left to the Member States to establish criteria, both qualitative and quantitative, to be applied to their own nationals for authorization to engage in international carriage of goods. An indication of the fact that Article 3 is not intended to exclude from the scope of the directive only the question of admission to the occupation of road-haulage operator for a State's own nationals is however given by the Dutch version of the directive which states that the directive is not to affect the conditions under which any Member State may permit (“toelaat”) its own nationals to engage in the activities mentioned in the directive. The narrow interpretation of Article 3 suggested by the Commission does not seem convincing from the systematic point of view. Of great importance in this connection is the fact that the directive only abolishes quota systems for the types of carriage listed and precisely defined in Annexes I and II; therefore, by implication, the directive allows such quantitative restrictions to be maintained in relation to other types of international carriage. If, as the Commission suggests, Article 3 of the directive were intended merely to make it clear that Member States are still entitled to regulate the admission of their own nationals to the occupation of road-haulage operator, then it would not have been necessaiy to make express reference in the directive to the various types of activity. Finally it is also apparent from the history of the formulation of this provision that Article 3 was intended to exempt from the operation of the directive all existing restrictions imposed by the Member States regarding authorization to engage in the types of carriage listed in the directive. It was included in the directive on the initiative of the Economic and Social Committee which, as Document No CES 104/62 shows, took the view that the Commission ought to state clearly in the directive that existing provisions in the Member States on the admission of their own nationals to the occupation of international road-haulage operator were not affected by that directive. Furthermore, it would appear to be clear that until now the Commission too has adopted the position that the conditions which regulate admission to certain activities are to be understood as referring generally to admission to the market and not only to admission to the occupation of road-haulage operator. This is apparent from the draft regulation submitted to the Council by the Commission on 15 June 1967 concerning the introduction of common rules for admission to the occupation of road-haulage operator in national and international traffic and load capacity rules for domestic traffic (ABI. L 254 of 20. 10. 1967, p. 3). In the second recital in the preamble to the draft regulation it is stated, inter alia, that, in order to avoid disturbances arising from an imbalance between supply and demand in the transport sector, the market organization must, above all else, contain a rule on admission to the market. In the third recital it is further stated that the object of such a rule is to promote healthy competition and to ensure that capacity increases in accordance with the requirements of the market. As a logical consequence, Council Directive 74/561/EEC of 12 November 1974 (Official Journal, L 308, 19. 11. 1974, p. 18), which was aimed at coordination of the conditions regarding personal qualifications considered necessary by the Member States, refers only to admission to the occupation of road-haulage operator. Finally in this connection it should also be noted that the Netherlands Government, as it has assured the Court, has always sought, in harmonizing the Netherlands legal provisions with the directive and the amendments thereto, to ensure that measures designed to regulate the load capacity of transport undertakings established in the Netherlands are consistent with the directive and that the Commission has made no objection in that regard. If the Commission had felt that those measures were not compatible with the directive the obvious step to have taken would have been to commence proceedings under Artilce 169 et seq. of the EEC Treaty. However, the scope of application of the directive as defined by Article 3 may be clarified in the final analysis by consideration of the meaning and purpose of that provision. It must not be overlooked in this connection that the regulation, which was adopted by virtue of Article 75 (1) of the EEC Treaty, dates back to 1962. Article 75 (1) (a) provides that, for the purpose of implementing Article 74, that is to say for the creation of a common transport policy, the Council is to lay down common rules for international transport to or from the territory of the Member State or passing across the territory of one or more Member States, in accordance with the conditions more particularly described therein. As is well known, it has unfortunately not yet been possible to introduce a common transport policy. Thus at the time in question it was possible to take only a tentative step towards achievement of the objective specified in Article 3 (e) of the EEC Treaty. Furthermore, that fact was made clear by the Council in the heading of the directive which refers only to “certain common rules for international transport”. In the first recital in the preamble to that directive it may indeed state that a common transport policy involves, inter alia, laying down common rules for the international carriage of goods by road but, as the second recital indicates, such common rules may be established only progressively. Consequently the directive aims only at the prohibition of quotas in respect of the particular types of carriage defined therein. In the light of these considerations, the meaning and purpose of the directive at that time could only have been to eliminate existing discrimination against transport undertakings established in other Member States and not to abolish load capacity rules applicable to a State's own nationals in the relevant transport sector. This view may also be inferred fcorn ¡the “standstill clause” contained in Article 76 of the EEC Treaty, whereby, until the provisions referred to in Article 75 (1) have been laid down, that is to say until the creation of a common transport policy, “no Member State may ... make the various provisions governing the subject when this Treaty enters into force less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State”.