Proposal for a COUNCIL REGULATION (EC) on common rules applicable to the transport of goods or passengers by inland waterway between Member States with a view to establishing freedom to provide such transport services
Date: 1995-05-10
Institutions: European Commission
Subjects: carriage of goods, carriage of passengers, freedom to provide services, inland waterway shipping, intra-EU transport, transport policy

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  10.05.1995 
COM(95)I67 final 

95/0106  (CNS) 

Proposal  for a 

COUNCIL  REGULATION (EC) 

on common rules applicable to the transport of goods or 
passengers by inland waterway between Member States with a 
view to establishing freedom to provide such transport services 

(presented  by the  Commission) 

EXPLANATORY  MEMORANDUM 

I. 

GENERAL 

The  transport  of  goods  or  passengers  by  inland  waterway  between  Member  States  and  in 
transit through them is only partly covered by Community provisions on market access.  Only 
access to traffic on the Rhine is governed by conditions of access adopted at Community  level; 
these were introduced pursuant to Additional Protocol No 2 to the Convention of Mannheim 
and  transposed  into  Community  law  by  Council  Regulation  (EEC)  No 2919/85  of 
17 October  1985 laying down the conditions for access to the arrangements under the Revised 
Convention  for  the  Navigation  of  the  Rhine  relating  to  vessels  belonging  to  the  Rhine 
Navigation.1  While the national transport services sector2 is fully  covered by rules of access 
adopted by the Council,  access to one area of  international  transport links  is not covered by 
Community  provisions. 

In  order  to  fill  this  gap,  it  is  firstly  necessary  to  ensure 
that  access  to  the  entire  inland 
waterway market (both national and international transport operations within the Community) 
is subject to Community  rules. 

However,  the  adoption  of  rules  governing  access  to  the  inland  waterway  transport  market 
between Member States at Community  level primarily stems from a requirement arising  from 
the judgment of the European Court of Justice of 22 May  1985 in Case 13/853 (action brought 
by the European Parliament against the Council for failure to act).  In its judgment,  the Court 
drew  attention  in particular to the obligation  imposed  on the Council  by Article 75(l)(a)  to 
introduce a legislative instrument to establish  freedom  to provide transport services  between 
Member States.  It made it clear that the requirements of freedom  to provide services  involve 
the abolition of all discrimination  against the provider of  the services on the grounds  of his 
nationality  or the fact  that he  is established  in a Member  State other than that  in  which the 
service is to be provided. 

Freedom to provide inland waterway transport services between Member States already existed 
before  the  EEC Treaty  came  into  being  and  has  existed  since  its  entry  into  force: 
this 
freedom has always been applied de facto by the Member States to these transport links.  For 
this reason,  there did  not seem to be any need to lay  down rules  governing  access to  these 
transport services at Community level, especially as the provisions of Article 76 of the Treaty 
make the de facto freedom of access irreversible and this situation is also in keeping with the 
general objectives of the Treaty. 

OJL  280,  22.10.1985. 
Council Regulation (EEC) No 3921/91  of  16.12.1991 laying down the conditions 
under which  non-resident  carriers  may  transport  goods  or passengers  by  inland 
waterway  within  a Member  State  (OJ L  373,  31.12.1991,  p.  1). 
[1985-4] ECR  1556. 

However,  it  has become  necessary  for the Council  to adopt rules governing  access  to the 
market  in  inland  waterway  transport  between  Member  States and in transit  through  them 
following the accession to the European Union of a country, namely Austria,  whose inland 
waterways  are connected to those of  the other  Member  States in view  of  the  fact  that two 
Member  States  have  concluded  bilateral  inland  waterway  transport  agreements  with  this 
country which are incompatible with the principle of freedom to provide services in this area. 

Since these bilateral agreements subordinate access for transport operators in Member States 
which are not party to the said agreements  to the issue of special permits by  the Austrian 
authorities and  the two Member States concerned, Austrian accession  to the Community has 
meant that, because of the agreements,  different  arrangements  apply between the Member 
States in relation to the international transport and transit of goods and passengers by inland 
waterway. 

It is therefore necessary,  in accordance with the requirements arising from the judgment of 
the Court of Justice of 22  May  1985, for the Council, on the basis of Article 75(l)(a) of the 
Treaty, to lay down Community rules for access to transport services between Member States 
which  ensure  mat  the  principle  of  freedom  to  provide  services  applies  in  law  to  all 
international transport links within the Community.  The achievement of this objective will 
furthermore  make  it  possible  to  avoid  distortions  of  competition  and  disturbances  in  the 
organization of the  transport market concerned. 

The  Community  action  envisaged  in this proposal  can be analysed from the  viewpoint  of 
subsidiarity by answering four basic questions: 

(a)  What  are  the  objectives  of  the  proposed  action  in  relation  to  the  Community's 

obligations? 

The  action  is  based  on  the  concern  to  maintain,  throughout  the  Community,  freedom  to 
provide  inland waterway  transport  services  between Member  States and in transit  through 
them following the accession of Austria, a country whose inland waterways are connected to 
those  of  the  other  Member  States.  The judgment  of  the  European  Court  of  Justice  of 
22 May  1985 in Case 13/85 requires the Council to introduce a legislative instrument based 
on  Article 75(l)(a)  to  establish  freedom  to  provide  transport  services  on  transport  links 
between the Member States. 

(b) 

Is  the  proposed  action  the  exclusive  responsibility  of  the  Community  or  a 
responsibility shared with theMember  states? 

The Council proposal is based on Article 75(1 )(a) of the Treaty and is therefore the exclusive 
responsibility of the  Community. 

(c)  What is the Community dimension? 

The action recommended concerns all the Member States and is aimed at establishing in law 
the principle of freedom to provide inland waterway transport services between the Member 
States and in transit through them. 

(d)  What means of action  are available to the Community? 

The  proposed  action  can  only  be  achieved  by  means  of  a  Council  Regulation  similar  to 
Council  Regulation  (EEC)  No 3921/91  which  lays  down  the  conditions  under  which 
non-resident carriers may transport goods or passengers by inland waterway within a Member 
State  ("cabotage"). 

II. 

SPECIAL  CONSIDERATIONS 

4. 

The Commission  recommends  that Community  transport operators continue to benefit  from 
freedom to  provide  services  for  the  transport  of  goods  or  passengers  by  inland  waterway 
between the Member  States and in transit through them.  There does not seem to be any need 
to modify  the present de facto  situation  for  these transport  links as  it  is already  in  keeping 
with the objectives  followed  for  the completion of the internal market. 

l'y QPQSAL 3FOH A COUNCIL  IffiCTIUVnQN 

on common rules applicable to the transport of goods or 

passengers by inland waterway between Member States with a 

view to establishing freedom  to provide such transport  services 

THE COUNCIL  OF THE EUROPEAN  UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular  Article 75 

thereof, 

Having regard to the Commission  proposal,1 

In cooperation with the European  Parliament,2 

Having regard  to the opinion of the Economic  and Social Committee,3 

Whereas the establishment  of a common transport policy  involves,  inter alia,  laying down common 

rules applicable to access to the market in the international transport of goods and passengers by inland 

waterway  within the territory  of the Community;  whereas those rules must be laid down  in such  a 

way  as to contribute to the completion  of the internal transport  market; 

Whereas  these  uniform  arrangements  for  market  access  also  involve  introducing  the  freedom  to 

provide  services  by  eliminating  all  restrictions  imposed  on  the provider  of  services  because of  his 

nationality or the fact that he is established  in a Member  State other than that  in which the service is 

to be provided; 

Whereas,  following  the  accession  of  new  Member  States,  different  arrangements  exist  between 

Member  States  for  international  transport  and  transit  by  inland  waterway  because  of  bilateral 

agreements  concluded  between  Member  States  and  a  new  acceding  State;  whereas  it  is  therefore 

necessary to lay down common rules to ensure the proper functioning  of the internal transport market 

and more particularly  to avoid distortions  of competition  and disturbances  of the organization  of the 

market  concerned; 

Whereas this  action  is within the Community's  exclusive field of  competence  and  that the  objective 

can only be attained by the establishment  of uniform  rules  and obligations; 

HAS ADOPTED THIS  REGULATION: 

Article 1 

This  Regulation  applies  to  the  transport  of  goods  or  passengers  by  inland  waterway  for  journeys 

between Member  States and in transit through  them. 

Article 2 

Any operator  transporting  goods or passengers by  inland  waterway  shall be allowed  to carry  out the 

transport operations referred to in Article 1  above without discrimination on grounds of his nationality 

or place of  establishment,  provided  that: 

he is established  in a Member  State in accordance with the laws of that Member  State, 

he  is  entitled  in  that  Member  State  to  carry  out  the  international  transport  of  goods  or 

passengers by inland waterway,  and 

he uses for  such transport  operations  vessels  which  are registered  in a Member  State or,  in 

the absence of registration,  are covered by a certificate of membership  of a fleet of a Member 

State. 

Article 3 

This Regulation shall not affect the rights for operators from third countries existing under the Revised 

Convention for the Navigation of the Rhine (Convention of Mannheim), the Convention on Navigation 

on  the  Danube  (Belgrade  Convention)  or  the  rights  arising  from  the  European  Community's 

international  obligations,  in particular  those arising from association or partnership  and  cooperation 

agreements  concluded  with  associated or  third  countries  in Central  and Eastern Europe. 

Article 4 

This Regulation shall enter into force on the twentieth day following the date of its publication  in the 

Official  Journal of the European Communities. 

This Regulation shall  be binding in its entirety  and directly applicable in all  Member  States. 

Done at Brussels, 

For the Council 

The  President 

ISSN 0254-1475 

COM(95) 167 final 

DOCUMENTS 

EN 

07  10 

Catalogue number  :  CB-CO-95-188-EN-C 

ISBN 92-77-88390-1 

Office  for Official Publications of the European Communities 

L-2985 Luxembourg 

S