CELEX: C1998/258/35
Language: en
Date: 1998-08-15 00:00:00
Title: Action brought on 25 May 1998 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-202/98)

C 258/22             EN                 Official Journal of the European Communities                                   15.8.98
Action brought on 25 May 1998 by the Commission of                 those arrangements are to be phased out or adjusted in
the European Communities against the Grand Duchy of                accordance with the provisions of Article 4.
                         Luxembourg
                       (Case C-202/98)
                        (98/C 258/35)                              There is no period of grace for the requisite adjustment in
                                                                   respect of trade governed by the Code of Conduct for
                                                                   Liner Conferences, to which Article 4(1)(a) of the
                                                                   regulation applies. Where other carriage is concerned, the
An action against the Grand Duchy of Luxembourg was                deadline for adjustment laid down in Article 4(1)(b)
brought before the Court of Justice of the European                expired on 1 January 1993. It is therefore irrelevant
Communities on 25 May 1998 by the Commission of the                whether it was governed by Article 4(1)(a) or (b), since all
European Communities, represented by Franck Benyon,                the time-limits for adjustment have long since expired.
Legal Adviser, and Bernard Mongin, of its Legal Service,           The Commission does not have any information enabling
acting as Agents, with an address for service in                   it to conclude that the Grand Duchy of Luxembourg has,
Luxembourg at the Office of Carlos Gómez de la Cruz,               to date, adjusted or phased out the arrangements in the
Wagner Centre, Kirchberg.                                          agreements with Senegal and the Ivory Coast.
The Commission of the European Communities claims
that the Court should:                                             Article 3 of Regulation No 4055/86 concerns agreements
                                                                   concluded by Member States. Although Luxembourg
                                                                   states that the agreements have not been published, it does
Ð declare that, by entering into and maintaining in force          not appear to dispute the fact that they were validly
    the agreements containing cargo-sharing arrangements           concluded by Belgium on behalf of the UEBL pursuant to
    with Mali and Togo, and failing either to adjust the           Article 31(1) of the UEBL Treaty and that it therefore has
    agreements with Senegal and the Ivory Coast so as to           obligations towards third countries. Article 3 of the
    provide for fair, free and non-discriminatory access by        regulation also states in mandatory terms that the
    Community nationals to the cargo-shares due to                 arrangements are to be phased out or adjusted; it does not
    Luxembourg, or to determinate those agreements,                merely invite Member States to enter into negotiations to
    Luxembourg has failed to fulfil its obligations under          that effect but requires them to achieve results.
    Council Regulation (EEC) No 4055/86 of 22 December
    1986 applying the principle of freedom to provide
    services to maritime transport between Member States
    and between Member States and third countries (1), in          Luxembourg's refusal to terminate the agreements on the
    particular Articles 3 and 4(1) thereof in the case of          ground that they contain other important provisions
    Senegal and the Ivory Coast, and Article 5 thereof in          consistent with Community law cannot be accepted. Such
    the case of Mali and Togo;                                     a position would effectively render the principle of the
                                                                   supremacy of Community law over national law
                                                                   redundant in the field of the provision of services. The
Ð order the Grand Duchy of Luxembourg to pay the                   termination of bilateral contracts which are contrary to
    costs.                                                         Community law does not in any way prevent Luxembourg
                                                                   from entering into new agreements concerning matters not
                                                                   covered by Community law.
Pleas in law and main arguments adduced in support:
                                                                   The argument that the agreements are to a large extent
The existing agreements (UEBL Ð Ivory Coast, UEBL Ð
                                                                   inoperative as regards Luxembourg or that the
Senegal)
                                                                   involvement of any Luxembourg shipping companies has
                                                                   not been established is irrelevant both for Article 3 and
                                                                   for Article 5 of Regulation No 4055/86, which both refer
The agreements with Senegal and the Ivory Coast entered            to cargo-sharing arrangements contained in any
into force on 3 September 1984 and 25 October 1979,                agreements': even if the Luxembourg companies have not
that is to say before the entry into force of Regulation           availed themselves of those rights, what matters is the fact
No 4055/86. They are existing agreements subject to the            that they exist and that nationals of other Member States
provisions of Articles 3 and 4 of that regulation.                 may consequently not benefit from them.
Each of those agreements contains cargo-sharing
arrangements reserving 40 % of trade to Belgian or                 In those circumstances, the Commission considers that
Luxembourg shipping companies, to the exclusion of                 Luxembourg has failed to comply with its obligations
shipping companies from the other Member States of the             under Regulation No 4055/86 as regards existing
Community. According to Article 3 of the regulation,               agreements.
 ---pagebreak--- 15.8.98               EN                Official Journal of the European Communities                                  C 258/23
The agreements concluded after the entry into force of             declare that, by adopting and maintaining in force
Regulation No 4055/86 (UEBL Ð Mali, UEBL Ð Togo)                   Article 2 of the Law of 9 July 1975 on the control of
                                                                   insurance undertakings, as amended by the Royal Decree
                                                                   of 12 August 1994, the Kingdom of Belgium has failed to
The prohibition on cargo-sharing arrangements in any              fulfil its obligations under Council Directive 92/49/EEC of
future agreements' (Article 5 of the regulation) is intended       12 June 1992 on the coordination of laws, regulations and
to preclude the substantive legal effects of such                  administrative provisions relating to direct insurance other
arrangements which undermine the principle of freedom              than life assurance and amending Directives 73/239/EEC
to provide services which applies to maritime transport by         and 88/357/EEC (third non-life insurance Directive) (1) and
virtue of Regulation No 4055/86. In order to ensure the            under the EC Treaty.
effectiveness of the prohibition, Member States are
required not to include cargo-sharing arrangements when
negotiating new agreements with third countries.
                                                                   Pleas in law and main arguments adduced in support:
The agreements with Mali and Togo contain cargo-sharing
arrangements which, in respect of future agreements, are
prohibited other than in the exceptional circumstances             In that it excludes from the scope of the national
specified in Article 5(1) of Regulation No 4055/86,                transposing legislation any insurance fund or undertaking
namely where, without such arrangements, Community                 covering the risk of accidents at work, even where such
liner shipping companies would not have an effective               undertakings carry on business at their own risk with a
opportunity to ply for trade to and from the country               view to profit, Article 2 of the Belgian Law of 9 July
concerned and in accordance with Article 6 of the                  1975, as amended by the Royal Decree of 12 August
regulation which requires a proposal from the                      1994, is inconsistent with Directive 92/49/EEC. The
Commission to the Council. Those circumstances do not              Commission does not contest the fact that the Belgian
exist, nor have the procedures been followed in the                system in respect of accidents at work falls within the
present case. The agreement in question reserves carriage          exception relating to social security. However, where,
between the parties to vessels flying their flag or operated       under the legislation of a Member State, operations
by national shipping companies'. It follows that vessels          forming part of the compulsory social security system may
operated by nationals of other Member States are                   be effected by insurance undertakings carrying on business
excluded from carriage.                                            at their own risk with a view to profit, as is the case in
                                                                   Belgium, they fall within the scope of Directive 92/49/
                                                                   EEC.
The Grand Duchy of Luxembourg has not provided the
necessary proof of the termination of those agreements.
                                                                   The only interpretation of Directive 92/49/EEC which
(1) OJ L 378 of 31.12.1986, p. 1.                                  enables Article 2(2) to be reconciled with Article 55 is that
                                                                   which includes within the scope of the directive the
                                                                   provision of insurance cover against the risk of accidents
                                                                   at work where that activity is carried on by an insurance
                                                                   undertaking at its own risk with a view to profit.
Action brought on 2 June 1998 by the Commission of the
  European Communities against the Kingdom of Belgium              The joint declaration of the Council and the Commission
                                                                   annexed to the Council minutes at the time of adoption of
                       (Case C-206/98)
                                                                   Directive 88/357/EEC relates to Article 12(2) of that
                        (98/C 258/36)                              directive, which was repealed by Article 37 of Directive
                                                                   92/49/EEC with effect from 1 July 1994; it cannot prevail
                                                                   over the clear provisions of a subsequent directive
                                                                   amending the directive forming the subject-matter of the
An action against the Kingdom of Belgium was brought               declaration.
before the Court of Justice of the European Communities
on 2 June 1998 by the Commission of the European
Communities, represented by Christina Tufvesson, Legal
Adviser, and Bernard Mongin, of its Legal Service, acting          Lastly, the Belgian Government wrongly relies on
as Agents, with an address for service in Luxembourg at            Article 55 of the EC Treaty. The legal basis of Directive
the Office of Carlos Gómez de la Cruz, Wagner Centre,              92/49 is Articles 57(2) and 66 of the EEC Treaty, and its
Kirchberg.                                                         object is the completion of the internal market in direct
                                                                   insurance other than life assurance from the point of view
                                                                   both of the right of establishment and of the freedom to
The Commission of the European Communities claims                  provide services. It follows that, as regards the areas
that the Court should:                                             harmonised by that directive (in particular, prudential and