Judgment of the Court of 16 November 1993. - Deutscher Kraftverkehr Ernst Grimmke GmbH & Co. KG and Mobil Oil BV v SA Générale de Banque and SA AG de 1824, formerly AG de 1830. - References for a preliminary ruling: Tribunal de commerce de Bruxelles - Belgium. - Transport of goods by road - Professional competence - Financial standing. - Joined cases C-20/93 and C-21/93.



European Court reports 1993 Page I-05727



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Transport ° Road haulage operator ° Pursuit of occupation ° Requirement concerning financial standing ° National provisions requiring guarantee ° Nature of debts secured ° Discretion of Member States

(Council Directive 74/561, Art. 3(3) in the version applicable until 31 December 1989)

Summary

Article 3(3) of Council Directive 74/561 on admission to the occupation of road haulage operator in national and international transport operations, in the version applicable until 31 December 1989, is to be interpreted as meaning that it does not determine the debts which must be covered by a guarantee, where a Member State chooses to set up such a system to ensure the financial standing of road haulage operators.

Parties

In Joined Cases C-20/93 and C-21/93,

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal de Commerce, Brussels, for a preliminary ruling in the proceedings pending before that court between

Deutscher Kraftverkehr Ernst Grimmke GmbH & Co KG (DKV),

and

SA Générale de Banque

and between

Deutscher Kraftverkehr Ernst Grimmke GmbH & Co KG (DKV),

Mobil Oil BV

and

SA AG de 1824,

SA Générale de Banque,

intervener: Belgian State,

on the interpretation of Article 3(3) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (OJ 1974 L 308, p. 18),

THE COURT,

composed of: O. Due, President, J.C. Moitinho de Almeida and M. Diez de Velasco, Presidents of Chamber, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: W. Van Gerven,

Registrar: D. Louterman-Houbeau, Principal Administrator,

after considering the written observations submitted on behalf of:

° Deutscher Kraftverkehr Ernst Grimmke GmbH & Co KG (DKV), by A.Verriest, of the Brussels Bar,

° SA Générale de Banque, by J.P. Buyle, of the Brussels Bar,

° BV Mobil Oil, by J.P. Walravens, of the Brussels Bar,

° SA AG de 1824, by P. Van Ommeslaghe, admitted to the Cour de Cassation, Belgium,

° the Belgian Government, represented by P. Lavalleye, Director General of the Legal Department of the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, represented by V. Di Bucci, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of SA Générale de Banque, represented by Ch. Steyaert, of the Brussels and Paris Bars, BV Mobil Oil, SA AG de 1824, represented by P. Van Ommeslaghe and Ch. Cauwe, of the Ghent Bar, and the Commission, at the hearing on 21 September 1993,

after hearing the Opinion of the Advocate General at the sitting on 20 October 1993,

gives the following

Judgment

Grounds

1 By judgments of 11 January 1993, received at the Court on 21 January 1993, the Tribunal de Commerce, Brussels, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 3(3) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (OJ 1974 L 308, p. 18, hereinafter "Directive 74/561").

2 The question has arisen in proceedings brought, in Case C-20/93, by Deutscher Kraftverkehr Ernst Grimmke ("DKV") against SA Générale de Banque ("SGB") and, in Case C-21/93, by Mobil Oil ("Mobil") against SGB and SA AG de 1824, formerly AG de 1830 ("AG de 1824"), the Belgian State having been joined as third party in the latter case.

3 DKV supplied fuel to the Belgian road haulage undertaking Zelltrans (Case C-20/93). DKV and Mobil both supplied fuel to Transports Lechien et Fils ("Lechien") (Case C-21/93).

4 SGB gave immediate-recourse guarantees in favour of both Zelltrans and Lechien, while AG de 1824 gave a guarantee only in favour of the latter.

5 After the two transport undertakings were adjudicated insolvent by the Tribunal de Commerce, Brussels, and the Tribunal de Commerce, Charleroi, respectively, DKV and Mobil informed SGB and AG de 1824 that they were creditors of Zelltrans and Lechien (DKV) and of Lechien only (AG de 1824) in respect of unpaid invoices for the abovementioned fuel deliveries, and requested payment under the guarantees. As no payment was made, DKV and Mobil brought an action against SGB and AG de 1824 before the Tribunal de Commerce, Brussels.

6 The guarantees were furnished pursuant to the Royal Decree of 5 September 1978 (Moniteur Belge, 19 October 1978, p. 12464), which implements Directive 74/561, and was amended by the Royal Decree of 14 July 1982 (Moniteur Belge, 18 February 1983, p. 2334) and by the Royal Decree of 11 September 1987 (Moniteur Belge, 22 October 1987, p. 15301).

7 Article 37 of the Decree of 5 September 1978 provides as follows:

"An applicant for, or holder of, a transport certificate or a general national transport licence must prove his financial standing by furnishing a guarantee for BFR 250 000 for each transport certificate or general national transport licence."

8 Article 38(1) of the same decree is worded as follows:

"The guarantee shall be applied to secure claims arising in the course of the business covered by a transport certificate, general national transport licence or general international transport licence.

Only creditors with claims referred to by subparagraph 1 may have recourse to the guarantee (...)."

9 Because the plaintiffs in the main action contended, on the basis of Article 3 of Directive 74/561, that the guarantee required by the abovementioned decree covered not only debts arising from a contract of carriage, but all debts arising in the course of the carrier' s business, including amounts owed for fuel supplied, the Tribunal de Commerce, Brussels, decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

"Where a Member State, in applying Article 3(3) of Directive 74/561/EEC of the Council of the European Communities of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations, and in order to fulfil the requirement of financial standing, imposes upon carriers an obligation to provide a guarantee (in Belgium, an immediate-recourse guarantee), is the security furnished to be regarded as enuring solely for the benefit of creditors who have entered into a contract of carriage with the carrier on whose behalf the guarantee is given, or does the requisite guarantee cover all indebtedness arising from the exercise of his occupational activities by the carrier on whose behalf the security is provided?"

10 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

11 To begin with, it should be observed that Directive 74/561 constitutes the first stage in the harmonization of the rules concerning admission to the occupation of road haulage operator. Article 3 lays down various conditions for engaging in this occupation, relating in particular to good repute, financial standing and professional competence. Article 3(3) also provided for the later coordination of the rules on the financial standing of carriers.

12 That coordination was effected by means of Council Directive 89/438/EEC of 21 June 1989 amending Directive 74/561, Directive 74/562/EEC on admission to the occupation of road passenger transport operator in national and international transport operations and Directive 77/796/EEC aiming at the mutual recognition of diplomas, certificates and other evidence of formal qualifications for goods haulage operators and road passenger transport operators, including measures intended to encourage these operators effectively to exercise their right to freedom of establishment (OJ 1989 L 212, p. 101, hereinafter "Directive 89/438"). Article 1(5) of this directive amended Article 3(3) of Directive 74/561, which now has more detailed provisions with regard to the financial standing of carriers.

13 However, those provisions do not apply ratione temporis in the main proceedings. Article 5(1) of Directive 89/438 states that its provisions apply only from 1 January 1990. It appears from the judgments making the reference that the guarantees given by SGB and AG de 1824 in favour of the transport undertakings concerned are prior to that date.

14 Therefore reference must be made exclusively to Directive 74/561 in the version prior to 1 January 1990. Article 3(3) of this version reads as follows:

"Appropriate financial standing shall consist in having available sufficient resources to ensure the launching and proper administration of the undertaking. Pending coordination at a later date, each Member State shall determine what provisions and what methods of furnishing proof may be adopted for this purpose."

15 It is clear from this provision that each Member State is left a wide discretion with regard to the means by which the financial standing of carriers is to be proved. In particular, it does not make it mandatory to set up a guarantee system to meet the risk of insolvency of a transport undertaking. Therefore it cannot be construed as meaning that it specifies the classes of claim which must be secured by the guarantee where a Member State chooses to set up such a system.

16 To support their argument that the guarantee must cover all the debts of carriers which arise from their business, DKV and Mobil rely, firstly, on the third recital of the preamble to Directive 74/561, according to which the common rules relating in particular to the financial standing of carriers are in the interest of "the economy as a whole" and not only in the interest of users and transport undertakings.

17 Secondly, DKV and Mobil consider that carriers will not be able to ensure the launching and proper administration of their business, as required by Article 3(3) of Directive 74/561, unless they can secure the payment of all debts, including those in respect of fuel supplies.

18 In this connection it is sufficient to observe that the considerations of a general nature relied upon by the plaintiffs in the main action are not such as to restrict the discretion expressly given to the Member States by Article 3(3) in order to achieve the aims of Directive 74/561.

19 Consequently, the reply to be given to the national court must be that Article 3(3) of Directive 74/561, in the version applicable until 31 December 1989, is to be interpreted as meaning that it does not determine the debts which must be covered by a guarantee, where a Member State chooses to set up such a system to ensure the financial standing of road haulage operators.

Decision on costs

Costs

20 The costs incurred by the Belgian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 question referred to it by the Tribunal de Commerce, Brussels, by judgments of 11 January 1993, hereby rules:

Article 3(3) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations, in the version applicable until 31 December 1989, is to be interpreted as meaning that it does not determine the debts which must be covered by a guarantee, where a Member State chooses to set up such a system to ensure the financial standing of road haulage operators.