CELEX: 31976D0649
Language: en
Date: 1976-05-04 00:00:00
Title: Commission Decision of 4 May 1976 on aid from the Belgian Government to the Société nationale des chemins de fer belge (SNCB) for through international railway tariffs for coal and steel

No L 229/24                          Official Journal of the European Communities                               20. 8 . 76
                                                 COMMISSION DECISION
                                                       of 4 May 1976
                on aid from the Belgian Government to the Societe nationale des chemins de fer beiges
                          (SNCB) for through international railway tariffs for coal and steel
                                       (Only the French and Dutch texts are authentic)
                                                        (76/649/EEC)
 THE COMMISSION OF THE EUROPEAN                                   Whereas on 8 October 1975 the Commission ruled
 COMMUNITIES ,                                                    that the aid granted to SNCB by the Belgian
                                                                  Government to compensate it for losses sustained as
                                                                  a result of applying international railway tariffs to
 Having regard to the Treaty establishing the                     the carriage of ECSC products is subject to Articles
 European Economic Community, and in particular                    92 and 93 of the EEC Treaty ; whereas the measure in
Article 93 thereof,                                               question cannot be justified on the basis either of
                                                                   Article 92 (2) and (3 ) of the Treaty or of Article 3 of
                                                                   Council Regulation (EEC) No 1107/70 ; whereas the
                                                                   Commission therefore called upon the Belgian
 Having regard to the observations presented by the                Government and the Governments of the other
parties concerned,                                                 Member States to present their observations ;
 Whereas since 1971 the Belgian Government has been
 granting aid, estimated at Bfrs 525 million in 1975, to
                                                                  Whereas , in a letter dated 14 November 1975, the
 the Societe nationale des chemins de fer beiges
 (SNCB) as compensation for financial burdens                     Belgian Government stated that the aid in question
                                                                  does not affect trade between Member States and
which, according to that Government, result from
                                                                  cannot distort competition by favouring certain
applying to ECSC products through international
 tariffs established in accordance with the Agreement
                                                                  undertakings or certain products since it does not
                                                                  alter the level of the transport tariffs and so is not
of 21 March 1955 (*), signed by the Member States                 passed on to SNCB's clients ; whereas the
pursuant to Article 70 of the ECSC Treaty, and
Article 10 of the Convention on the transitional                  Commission cannot share this view, since granting
provisions ;
                                                                  the aid in question enables SNCB to keep its tariffs
                                                                  lower than they should be and to charge its users a
                                                                  more favourable tariff; whereas aid granted to a
                                                                 single undertaking or to a single mode of transport
Whereas the Belgian Government originally justified              with the purpose of reducing the rates applied for
the granting of this aid on the basis of Article 2 (5 )          international traffic automatically affects trade
of Council Regulation (EEC) No 1191 /69 of 26 June                between    Member States in that it distorts or
 1969 on action by Member States concerning the                   threatens to distort competition by favouring certain
obligations inherent in the concept of a public                  undertakings or certain products ;
service in transport by rail, road and inland
waterway (2);
                                                                 Whereas the Commission cannot accept the Belgian
Whereas, as a result of objections raised on this                Government's view that what is involved here is
subject by the Commission departments, the Belgian               compensation for a tariff obligation pursuant to
Government changed its initial position by justifying            Article 3 (2) of the abovementioned Regulation
the aid on the basis of Article 3 (2) of Council                  (EEC) No 1107/70, i.e. a tariff obligation not falling
Regulation (EEC) No 1107/70 of 4 June 1970 on the                within the definition given in Article 2 (5 ) of
granting of aids for transport by rail , road and                Regulation (EEC) No 1191/69 ; whereas Article 3 (2)
inland waterway (3);                                             relates only to aid as reimbursement for the
                                                                 discharge of obligations inherent in the concept of a
                                                                 public service ; whereas by virtue of the rules laid
(!) OJ No 9, 19. 4. 1955, p. 701 .                               down in the Agreement of 21 March 1955 on the
H OJ No L 156, 28 . 6. 1969, p . 1 .                             establishment of through international railway tariffs
(3) OJ No L 130, 15 . 6. 1970, p . 1 .                           that Agreement does not constitute a public service
 ---pagebreak---    20. 8 . 76                          Official Journal of the European Communities                          No L 229/25
    obligation pursuant to Article 3 (2) but a means of           measures which, as long as the general tariff
   enforcing    the   rules  on    non-discrimination     of      situation is maintained, represent the most
   Article 4 (b) and the first and second paragraphs of           appropriate means of ensuring compliance with the
   Article 70 of the ECSC Treaty which reflect one of             principle embodied in the ECSC Treaty which
   the principles of the common market in coal and                requires transport undertakings, like coal and steel
   steel ; whereas when concluding the Agreement of               producers, to offer their clients comparable rates for
   21 March 1955, the Member States expressly stated in           comparable services on all ECSC markets within the
   Article 18 thereof that by it they had undertaken              Community; whereas the 1955 Agreement merely
    'only those obligations which are within the scope of         establishes a structure so that railway tariffs for
   the Treaty and of the Convention and which have as             international traffic are compiled in such a way as to
   their purpose the implementation of those instru­              guarantee the comparability of the resulting rates
   ments ';                                                      with domestic transport rates ; whereas the
                                                                 Agreement does not affect the freedom of railway
                                                                  undertakings as regards the level of these tariffs and
   Whereas the abovementioned rules, which are                    the differentiation of their tariff systems, in
   intended to implement a fundamental principle of              particular as a result of the state of the markets
   the common market in ECSC products, apply to all               concerned ; whereas SNCB has made use of this
   parties involved in this market and also determine            possibility by granting special tariffs for domestic
   the commercial behaviour of transport undertakings            traffic which are lower than the general tariffs ;
   as regards the carriage of coal and steel, irrespective        whereas it is at present applying 39 special tariffs,
   of their status and their policy regarding the                the rates of which are in many cases lower than
   compilation of transport rates ;                              would result under the 1955 Agreement, for
                                                                 international traffic with the other Community
                                                                 networks ;
   Whereas the fact that Article 10 of the Convention
„ on the transitional provisions, which provided for
   the establishment for carriage within the Community           Whereas, concerning the ruling of the French Council
  of through international tariffs incorporating a               of State in 1961 on a dispute between the French
  degressive factor taking account of total distance, has        Railways (SNCF) and the French Government
  so far been enforced only in respect of the railways           concerning ECSC tariffs, it should be noticed that
   is not due to any desire to class the transport services      this ruling, given on different legal grounds in a
  in question as a public service but is solely the result       period when Regulation (EEC) No 1107/70 was no.t
  of the structure of these undertakings, each of which          in force, cannot be treated as a precedent for the
  serves a domestic network and applies domestic                 interpretation of Community instruments and
   tariffs, which makes it necessary, for transport              moreover       this  ruling    concerned   a   situation
  between Member States, to establish international              fundamentally different from the subject matter of
  tariffs    in  accordance   with    the   rules  of   the      this Decision since the SNCF was not authorized to
  abovementioned provision which were defined more               raise its tariffs ;
  precisely in the 1955 Agreement so as to comply
  with the principle of non-discrimination enshrined in
   the Treaty;                                                   Whereas these considerations do not prevent the
                                                                 Belgian Government from granting the aid in
                                                                 question under Article 4 of Regulation (EEC) No
  Whereas the Commission cannot share the Belgian                1107/70 ; whereas this formal distinction is an
  Government's view that by prescribing the                      important one of principle as regards action for the
  application of through international tariffs in                progressive improvement of the situation of the
  accordance with an imposed method whereby                      railways undertaken as part of the common transport
  reductions are granted on the tariffs normally                 policy,
  applying to domestic transport over the same route,
  the 1955 Agreement entails losses of revenue for
  SNCB from the international carriage of ECSC
  products; whereas, in the absence of an imposed
  structure for ECSC international tariffs, SNCB could
  have raised them ; whereas, in the present                     HAS ADOPTED THIS DECISION :
  circumstances, international transport rates are lower
  than the tariffs normally applying for domestic
  traffic in every case, irrespective of the level of the
  tariffs ;                                                                               Article 1
  Whereas the Belgian Government has failed to                   The aid granted by the Belgian State to the Societe
  appreciate the character and the purpose of these              nationale des chemins de fer beiges (SNCB) for
 ---pagebreak--- No L 229/26                       Official Journal of the European Communities                          20 . 8 . 76
through international railway tariffs for coal and                                 Article 2
steel on the basis of Article 3 (2) of Council
Regulation (EEC) No 1107/70 of 4 June 1970 on the
granting of aids for transport by rail, road and             This Decision is addressed to the Kingdom of
inland waterway, as amended by Regulation (EEC)              Belgium .
No 1473/75 of 20 May 1975 is not compatible with
the common market to the extent that it should be
granted under Article 4 of the said Regulation.
                                                             Done at Brussels, 4 May 1976.
The Kingdom of Belgium shall take the necessary
action, as soon as possible and at the most within                                  For the Commission
three months, either to terminate the aid in question
or to modify its legal base in order that this aid may                                  The President
be granted under the provisions of Article 4 of
Regulation (EEC) No 1107/70.                                                       Francois-Xavier ORTOLI