CELEX: 61993CC0020
Language: en
Date: 1993-10-20 00:00:00
Title: Opinion of Mr Advocate General Van Gerven delivered on 20 October 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.

OPINION OF ADVOCATE GENERAL
      VAN GERVEN
      delivered on 20 October 1993 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The two joined cases before the Court relate to one and the same question which has been referred by the Tribunal de Commerce, Brussels, and which concerns the interpretation of the requirement of financial standing in 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. (
                     1
                  )
            
         
               2. 
            
            
               According to the third recital of the preamble, the Directive, which is based on Article 75 of the EEC Treaty, sets out ‘common rules for admission to the occupation of road haulage operator in national and international transport operations in order to ensure that road haulage operators are better qualified, thus contributing to rationalization of the market, improvement in the quality of the service provided, in the interests of users, operators and the economy as a whole, and to greater road safety.’
               Article 1(1) of Directive 74/561 provides that ‘admission to the occupation of road haulage operator shall be governed by the provisions adopted by the Member States in accordance with the common rules contained in this Directive’.
               Article 3(1), subparagraph 1, states that ‘natural persons or undertakings wishing to engage in the occupation of road haulage operator shall: (a) be of good repute, (b) be of appropriate financial standing; (c) satisfy the condition as to professional competence’.
               Article 3(3), to which the present question relates, set out in detail the second of these three conditions 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.’ (
                     2
                  )
            
         
               3. 
            
            
               The ‘coordination at a later date’ announced by the above provision was effected by Council Directive 89/438/EEC of 21 June 1989. (
                     3
                  ) The fifth recital of the preamble to this directive states that ‘as regards the requirement of appropriate financial standing, it is necessary, in particular to ensure the equal treatment of undertakings in the various Member States, to lay down certain criteria which transport operators must satisfy, and which are applicable to transport operators seeking authorization for admission to the occupation as from 1 January 1990’.
               Article 1(5) of Directive 89/439 replaces Article 3(3) of Directive 74/561. The new paragraph contains, under letter (b), a list of particulars to which the competent authority must have regard in assessing financial standing. Under letter (c), the same paragraph states that ‘the undertaking must have available capital and reserves of at least ECU 3000 per vehicle or ECU 150 per tonne of the maximum authorized weight of the vehicles used by the undertaking, whichever is the lower.’ Under letter (d), ‘the competent authority may accept as evidence of financial standing confirmation or assurance given by a bank or other suitably qualified establishment. Such confirmation or assurance may be given in the form of a bank guarantee or by any other similar means.’
               Finally, letter (e) provides that ‘points (b), (c) and (d) shall apply only to undertakings authorized in a Member State, as from 1 January 1990 under national regulations, to engage in the activities of a road haulage operator.’
               As will be shown below (paragraph 9), Directive 89/438 is not related to the subjectmatter of the present case, although it is referred to by the order making the reference. I mention it only to give a complete picture of the measures concerned, as amended up to the present date.
            
         
               4. 
            
            
               In Belgium, Directive 74/561 was implemented by the Royal Decree of 5 September 1978 laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations. (
                     4
                  ) With regard to the requirement concerning financial standing, Article 2(4) of the Decree originally provided that the requirement was satisfied if the carrier had a bank account and was registered in the commercial register. (
                     5
                  )
            
         
               5. 
            
            
               The Royal Decree of 11 September 1987 (
                     6
                  ) replaced this provision and added to the earlier Decree a new chapter entitled ‘Conditions concerning financial standing’, the first two articles of which are worded as follows:
               ‘Article 37
               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 250000 for each transport certificate or general national transport licence.
               Article 38
               1.   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. (...)
               2.   The guarantee may consist in an immediate-recourse guarantee of a bank, a private savings bank, an insurance company or public credit institution, or in a deposit with the Caisse des Depots et Consignations of cash or securities accepted by the Minister of Finance for the provision of guarantees of any kind to be lodged with the Caisse des Depots et Consignations.’
            
         
               6. 
            
            
               Finally, in 1991, pursuant to Directive 89/438 (sec paragraph 3 above), the Royal Decree of 5 September 1978 was entirely replaced by the Royal Decree of 18 March 1991, (
                     7
                  ) which still provides for a compulsory guarantee system, but the wording is slightly different with regard to the ambit of the guarantee. (
                     8
                  )
            
         
               7. 
            
            
               The question referred by the Tribunal de Commerce concerning the interpretation of Article 3(3) of Directive 74/561 has arisen in actions connected with the insolvency of two different transport undertakingsi. The action which has given rise to Case C-20/93 relates to a claim by a German company, Deutscher Kraftverkehr (‘DKV’), against a Belgian bank, SA Générale de Banque (‘Générale de Banque’). DKV, through a credit card system, supplied diesel oil to a transport undertaking, PVBA Zelltrans (‘Zelltrans’). Since 1988 Générale de Banque had stood surety for Zelltrans up to the sum of BFR 700000 pursuant to Article 38(2), second subparagraph, of the Royal Decree of 5 September 1978, as amended by the Decree of 11 September 1987 (cited in paragraph 5 above). By registered letter of 4 December 1989 to the Ministry of Communications, Générale de Banque gave notice that it was withdrawing the guarantee. (
                     9
                  ) On 28 February 1990 Zclltrans was adjudicated insolvent by the Tribunal de Commerce, Brussels. On 16 March 1990 DKV informed Générale de Banque that it was owed DM 14475.40 by Zclltrans and, since Générale de Banque refused to make payment under the guarantee, DKV instituted proceedings against it by writ of 16 May 1990.
               The actions which have given rise to Case C-21/93 relate to claims by DKV also and by the Dutch company BV Mobil Oil (‘Mobil Oil’), again against Générale de Banque, and also against SA AG de 1824 (‘AG de 1824’). These claims arise from supplies of diesel oil (totalling DM 105710.93 and BFR 355659 respectively) to, in this case, SPRL Transports Lechien et Fils (‘Lechien’), which was also adjudicated insolvent and for which Générale de Banque and AG de 1824 had given immediate-recourse guarantees under Article 38(2), first subparagraph, of the Royal Decree of 5 September 1978, as amended by the Royal Decree of 11 September 1987. The actions by the two plaintiffs against the two defendants were commenced in 1989.
            
         
               8. 
            
            
               The issue in the main actions is whether the guarantee provided for by the Decree of 5 September 1978, as amended by that of 11 September 1987, also covers claims against a transport undertaking for supplies of fuel or whether the guarantee is limited to claims arising from contracts of carriage in the strict sense between the carrier and the customer whose goods are transported.
               The problem in the present case essentially concerns the interpretation of the abovementioned Decree, in particular Article 38(1) (cited in paragraph 5 above). However, as this provision implements Article 3(3) of Directive 74/561 (cited in paragraph 2), the Tribunal de Commerce, Brussels, judged it desirable to ascertain whether interpretation of the Directive could resolve the dispute in the main actions as described above. This is why the national court has referred a question asking whether, when in applying Article 3(3) of the Directive a Member State imposes upon carriers an obligation to provide a guarantee (which in Belgium takes the form of an immediate-recourse guarantee) in order to meet the requirement concerning financial standing, the security furnished ‘is to be regarded as enuring for the benefit solely 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?’
            
         
               9. 
            
            
               Before replying to this question, I should like to point out that it relates to Article 3(3) of Directive 74/561 in the version in force before it was amended by Directive 89/438 (see paragraphs 2 and 3 above). This is how the question is understood by all the parties before the Court (DKV, Mobil Oil, Générale de Banque, AG de 1824, the Belgian Government and the Commission of the European Communities). I presume that this is what the Tribunal de Commerce intended. It is clear from the files of the main actions that the transport undertakings concerned, Zelltrans and Lechien, held a licence under the Belgian law before 1 January 1990 to carry on the business of road haulage operator. Pursuant to Article 3(3)(e) of Directive 74/561, as replaced by Article 5 of Directive 89/438 (cited in paragraph 3 above), the new provisions of the latter concerning financial standing are not therefore applicable to these transport undertakings. (
                     10
                  )
            
         
               10. 
            
            
               Also by way of preliminary, I wish to consider the submission by AG de 1824 in its written observations to the Court to the effect that the Court could refrain from answering the question because a reply would not assist a decision in the main actions. The dispute in those actions concerns the interpretation of the contested guarantees, which raises a question of purely Belgian civil law the answer to which cannot be affected by whether the Royal Decree of 1978, as amended in 1987, is compatible with Directive 74/561 or not. As the Commission rightly observed at the hearing, this reasoning is wrong in general and in particular in the light of the following paragraph of the Court's judgment in the Marleasing case: (
                     11
                  )
               ‘In order to reply to that question, it should be observed that, as the Court pointed out in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen, the Member States obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.’
               Therefore the possibility cannot be ruled out that, when the national court interprets the contested guarantees in the light of the relevant Belgian legislation, it will have to do so in accordance with Directive 74/561. Therefore the correct interpretation of the Directive may be of assistance to the national court.
            
         
               11. 
            
            
               Now let me turn to the reply to be given to the question from the national court. The parties propose two opposite answers. (
                     12
                  ) DKV and Mobil Oil contend that it is clear from Article 3(3) of Directive 74/561 that a guarantee system such as that established by the Belgian Decree of 1987, which I have cited, cannot be limited to guaranteeing the obligations arising from a contract of carriage in the strict sense, but covers all claims which may arise from the carrier's business. According to DKV and Mobil Oil, only in this way can the aims of the Directive be achieved. On the other hand, Générale de Banque, AG de 1824 and the Commission consider that the Directive is not explicit on this point and confers a wide discretion on the Member States. It does not oblige them to introduce a guarantee system and, if they do so, it is open to them to decide whether or not to confine it to securing the obligations arising from a contract of carriage in the strict sense. In practical terms, this means that the interpretation of the Directive is of no assistance to the outcome of the dispute in the main actions before the Tribunal de Commerce, Brussels. For the reasons which will be given below, I concur in this second interpretation.
            
         
               12. 
            
            
               The provisions of Directive 74/561 concerning financial standing are particularly summary. Article 3(1), first subparagraph (see paragraph 2 above), refers to the possession of ‘appropriate financial standing’ as one of the conditions required for engaging in the occupation of road haulage operator. Article 3(3) (see also paragraph 2 above) states that ‘appropriate financial standing shall consist in having available sufficient resources to ensure the launching and proper administration of the undertaking.’ The Directive does not indicate what the precise requirements are in this connection. On the contrary, paragraph 3 goes on to state that ‘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’. It is clear that this leaves the Member States with a wide discretion, enabling them to decide not only how to check the financial standing of an (applicant) transport undertaking, but also to define what is meant by ‘financial standing’ and, more specifically, the nature and size of the ‘sufficient resources to ensure the launching and proper administration of the undertaking’. Directive 89/438, which is not in issue in the present case (see paragraph 3 above), for the first time restricted somewhat this wide discretion, but even then in terms which, it seems to me, do not give a definite reply to the question now before the Court. (
                     13
                  )
               Given this wide discretion, the Belgian legislature had no obligation to introduce a mandatory guarantee system and, if it decided to do so, it was likewise under no obligation to make the system cover more than just the liabilities arising from a contract of carriage in the strict sense. Clearly, however, the Directive did not prohibit it from doing so.
            
         
               13. 
            
            
               In support of the opposite argument, DKV and Mobil Oil contend that a wide interpretation of the Belgian guarantee rules — to the effect that they cover claims arising from supplies of fuel — was required by the Directive because a guarantee system of wide application was ‘necessary to ensure the launching and proper administration of the undertaking’. In addition, they draw attention to the third recital of the preamble to Directive 74/561 (cited in paragraph 2 above), which refers to the interests of the economy as a whole, which, they say, indicates that the financial protection contemplated by the Directive applies not only to contracts of carriage in the strict sense, but also to other contracts in connection with the carrier's business.
            
         
               14. 
            
            
               I do not find these arguments persuasive. There may reasonably be different opinions as to the financial resources necessary to ensure the launching and proper administration of an undertaking. In most sectors of commerce other than transport, businesses arc started and also, I believe, well managed without a compulsory guarantee system. Such a system is undoubtedly a judicious safeguard for the carrier's financial standing, particularly if the guarantee secures not only his customers' claims against him, but also ensures the payment of his debts to the suppliers of goods, such as fuel, which are essential for the proper operation of the business. However, I find it difficult to accept that such a guarantee, whether wide or narrow in scope, is in itself essential to ensure the carrier's financial standing and that Article 3(3) of Directive 74/561 therefore requires the Member States to set up such a system.
               The reference in the preamble to the economy as a whole does not appear to support this argument either. As Générale de Banque indicates in its observations, the reference should rather be construed as meaning that an improvement in the distribution of goods in the Community is beneficial for the economy as a whole, but such improvement does not formally require a guarantee for the benefit of fuel suppliers. In any case, a general reference in a preamble is of no weight in construing a provision which refers expressly to the freedom of assessment of the Member States.
            
         
               15. 
            
            
               Therefore I propose that Court reply as follows to the question from the national court:
               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 in force before amendment by Directive 89/438/EEC, docs not preclude a Member State which requires a guarantee to be furnished as proof of a carrier's financial standing from limiting the benefit of the guarantee to creditors whose claims are based on a contract of carriage with the carrier. It is for the national court, and not the Court of Justice, to determine whether the national provisions actually entail such a restriction.
            
         (
            *1
         )	Original language: Dutch.
      (
            1
         )	OJ 1974 L 308, p. 18.
      (
            2
         )	At the same time as Directive 74/561/EEC, the Council adopted, on 12 November 1974, Directive 74/562/EEC, parallel with the first and concerning admission to the occupation of road passenger transport operator in national and international transport operations. The wording of Articles 1(1). 2(1), first subparagraph, and (3) of the latter is exactly the same as that of Articles 1(1), 3(1), first subparagraph, and (3) of the former, which I have cited above.
      (
            3
         )	Council Directive 89/438/EEC of 21 June 1989 amending Directive 74/561/EEC on admission to the occupation of road haulage operator in national and international transport operations, 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).
      (
            4
         )	Belgisch Staatsblad, 19 October 1978, p. 12464.
      (
            5
         )	This is not the place for considering the question whether such a summary provision could be deemed to implement the Directive satisfactorily.
      (
            6
         )	Royal Decree amending the Royal Decree of 5 September 1978 laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations {Belgisch Staatsblad, 22 October 1987, p. 15301).
      (
            7
         )	Royal Decree laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations.
      (
            8
         )	Article 21 of this decree provides that the guarantee ‘shall be applied in its entirety to secure the debts of the undertaking ... provided that such debts arise from pursuit of the business of road haulage operator and that such business is covered by a transport certificate, genera! national transport licence or general international transport licence’.
      (
            9
         )	Article 40(2). No 2. of the Royal Decree of 5 September 1978. as amended, by that of 11 September 1987. provides that the surety shall be discharged ‘ifit wishes to be released from its obligations: on the expiry of three months com mencing on the date when the Minister of Communications receives the registered letter notifying him of such decision.’
      (
            10
         )	The Commission also observes that the acts which arc the subject of the main proceedings took place before 1 January 1990, whereas Article 5(1) of Directive 89/438 states that it applies from that date. This appears to be correct with regard to the facts of Case C-21/93 (sec paragraph 7), but not beyond dispute with regard to those of Case C-20/93, some of which at least took place in 1990 (sec paragraph 7). However, the question docs not appear to be material and, if it were, it would fall to be decided by the national court.
      (
            11
         )	Case C 106/89 Marleanng v Im Comercial Internacional de Alimentación [1990] LCR I 4135, paragraph 8.
      (
            12
         )	The Belgian Government has not commented on the question. It merely observes that the Royal Decrees of 1989 and 1991 implement Directives 74/561 and 89/438 correctly, as the Commission has confirmed, and that in its opinion, the 1978 Decree, as amended in 1987, should be interpreted in the manner proposed by DKV and Mobil Oil. Therefore the Belgian Government has not stated its views on whether the Directive necessitates such interpretation.
      (
            13
         )	The amended text of Article 3(3) merely requires the undertaking concerned to have a certain minimum capital (letter (c)) and the competent authorities of the Member States to have regard to certain factors set out in letter (b) for assessing financial standing.