CELEX: C1998/258/28
Language: en
Date: 1998-08-15 00:00:00
Title: Action brought on 8 May 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-171/98)

C 258/16               EN                 Official Journal of the European Communities                                    15.8.98
of Regulation (EEC) No 4055/86. Consequently, that                   on 8 May 1998 by the Commission of the European
agreement is an existing agreement which is subject to the           Communities, represented by Frank Benyon, Legal
provisions of Articles 3 and 4 of the Regulation.                    Adviser, and Bernard Mongin, of its Legal Service, acting
                                                                     as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.
The only exceptions to the application of freedom to
provide services introduced on 1 January 1987 by
Article 1(1) of the Regulation are those laid down in
Article 2 in relation to unilateral restrictions, which was          The Commission of the European Communities claims
introduced by way of derogation from Article 1', and in             that the Court should:
Article 4(1)(b) relating to trades not governed by the Code
of Conduct for Liner Conferences, which grants a period
of grace expiring on 1 January 1993 at the latest.
                                                                     (1) declare that, by introducing and maintaining in force
                                                                         cargo-sharing arrangements, in the agreement
                                                                         concluded with the Republic of Togo, which was
As regards trades governed by the Code of Conduct for                    approved by Belgium by the Law of 9 October 1987
Liner Conferences, which are covered by Article 4(1)(a),                 and entered into force after 1 January 1987, the
no period of grace is granted for the requisite adjustment.              Kingdom of Belgium has failed to fulfil its obligations
However, since the Code of Conduct entered into force on                 under Article 5 of Council Regulation (EEC) No 4055/
6 October 1983 for Zaire but not until 30 March 1988                     86 of 22 December 1986 applying the principle of
for Belgium, the provisions of Article 4(1)(a) could not                 freedom to provide services to maritime transport
have applied to that agreement before 30 March 1988 and                  between Member States and between Member States
the adjustment should therefore have been completed by                   and third countries (1);
that date as regards trades governed by the Code.
Consequently, whether trades are governed by
Article 4(1)(a) or by Article 4(1)(b), the time-limit for            (2) order the Kingdom of Belgium to pay the costs.
adjustment of the cargo-sharing provisions expired long
ago.
                                                                     Pleas in law and main arguments adduced in support:
The Kingdom of Belgium is therefore wrong in
maintaining that the time-limits for adjusting the cargo-
sharing arrangements in respect of trades governed by the            The agreement concluded with Togo on 19 October 1984,
United Nations Code of Conduct for Liner Conferences                 which was approved by Belgium on 9 October 1987 and
have not expired and that the date on which Belgium                  entered into force on 19 October 1987, is not an existing'
signed the Code of Conduct did not constitute the                    agreement within the meaning of Article 3 of Regulation
deadline for adjusting the arrangement. The Commission               (EEC) No 4055/86. Contrary to the assertion of the
observes that, in any event, no adjustment has been made             Kingdom of Belgium, it is a future' agremeent prohibited
11 years after the entry into force of the Regulation and            by Article 5 of that Regulation.
5 years after expiry of the final deadline for adjustment
laid down by that Regulation.
                                                                     The agreement provides in Article 21 that it is to enter
                                                                     into force as soon as each of the contracting parties has
( ) Bilateral maritime agreement concluded between Belgium and
 1
    Zaire.                                                           notified the other, through diplomatic channels, of the
(2) OJ L 378 of 31.12.1986, p. 1.                                    completion of the requisite constitutional procedures'. It
                                                                     therefore provides that the parties are to express their
                                                                     willingness to be bound by its terms only by means of a
                                                                     subsequent approval or ratification procedure. In those
                                                                     circumstances, the signature of the agreement in 1984
                                                                     constituted no more than an authentication of the texts
                                                                     (see Article 10(b) of the Vienna Convention) and did not
                                                                     in any way signify Belgium's willingness to be bound by
                                                                     the agreement. No such obligation was entered into by
Action brought on 8 May 1998 by the Commission of the
                                                                     Belgium in accordance with the agreement until
  European Communities against the Kingdom of Belgium
                                                                     19 October 1987, when approval of the agreement by
                        (Case C-171/98)                              means of the Belgian Law approving the agreement' of
                                                                     19 October 1984 was notified, that is to say, well after the
                          (98/C 258/28)                              regulation entered into force. Until that date, Belgium was
                                                                     free, particularly in the light of the new obligations
                                                                     imposed on it by Regulation (EEC) No 4055/86, to refrain
                                                                     from consenting to be bound, vis-aÁ-vis Togo, by
An action against the Kingdom of Belgium was brought                 obligations concerning cargo-sharing arrangements which
before the Court of Justice of the European Communities              were not in accordance with the Regulation.
 ---pagebreak--- 15.8.98               EN                Official Journal of the European Communities                                   C 258/17
The prohibition of cargo-sharing arrangements in any              The appellant claims that the Court should:
future agreements' (Article 5 of the Regulation) is
designed to obviate the significant legal effects of such
arrangements, which undermine the principle of freedom             (1) set aside the contested judgment (1);
to provide services to maritime transport applied by
Regulation No 4055/86. In order to guarantee the
effectiveness of the prohibition, the Member States are            (2) annul the contested decision, alternatively, refer the
obliged to refrain from including cargo-sharing                        case back to the Court of First Instance for further
arrangements in any new agreements negotiated with third               adjudication in the light of the judgment of the Court
countries.                                                             of Justice;
The agreement in question thus contains cargo-sharing              (3) order the Commission to pay the costs.
arrangements which, in the case of future agreements, may
be authorised only in those exceptional circumstances,
provided for in Article 5(1) of Regulation (EEC) No 4055/          Pleas in law and main arguments adduced in support:
86, where Community liner shipping companies would
not otherwise have an effective opportunity to ply for
trade to and from the country concerned, and which may             Ð Infringement of Commission Decision 94/90/ECSC,
be permitted in accordance with Article 6 of the                       EC, Euratom on public access to Commission
Regulation, which provides for a proposal to be submitted              documents (2): the Court of First Instance wrongly held
by the Commission to the Council. Those criteria and                   that the public interest exception in Decision 94/90
procedures are not satisfied in the present case.                      may be invoked to protect the procedural autonomy of
                                                                       national courts. The decision of the Commission on
                                                                       which the Court of First Instance ruled in its contested
The agreement in question reserves carriage between the                judgment did not concern the question whether or not
parties thereto for vessels which fly the flag of either of            a national court is obliged to grant access to
those parties or which are operated by national shipping              documents contained in its (national) case-file or Ð
companies'. It follows that vessels operated by nationals              more specifically Ð the extent to which the national
of other Member States are excluded from the trade. The                court should grant access to a letter sent to it by the
agreement has therefore been contrary to the regulation                Commission.
since it entered into force. Consequently, the regulation
has been infringed, albeit that Belgium purports to wish to
terminate the agreement as regards the future. In any                  The Court of First Instance wrongly failed to examine
event, no adjustment has been carried out to date.                     whether, in relation to each document access to which
                                                                       is sought, such access should, having regard to its
                                                                       content, be refused in the public interest. If the Court
(1) OJ L 378 of 31.12.1986, p. 1.                                      of First Instance makes access to documents
                                                                       conditional solely on the status of the addresse in the
                                                                       present case, a national court, it will be applying a
                                                                       criterion for which no support is to be found in
                                                                       Decision 94/90.
Appeal brought on 11 May 1998 by the Kingdom of the                    The right to access to documents held by the
Netherlands against the judgment delivered on 19 March                 Commission constitutes a general principle of Decision
1998 by the Court of First Instance of the European                    94/90. The exceptions to that principle must be
Communities in Case T-83/96 between G. van der Wal,                    narrowly interpreted and strictly applied. The
supported by the Kingdom of the Netherlands, and the                   contested judgment is contrary to that interpretation,
         Commission of the European Communities                        which has previously been accepted by the Court of
                                                                       First Instance (3), since all documents drawn up by the
                      (Case C-174/98 P)                                Commission for the purposes of particular proceedings
                        (98/C 258/29)                                  are excluded from the scope of the principle,
                                                                       irrespective of the contents of those documents. The
                                                                       contested judgment thus applies a broad interpretation
                                                                       to the exception, in a manner which is incompatible
An appeal against the judgment delivered on 19 March                   with Decision 94/90. That broad interpretation is also
1998 by the Court of First Instance of the European                    contrary to the objective of Decision 94/90, since it
Communities in Case T-83/96 between G. van der Wal,                    precludes attainment of the objective of transparency
supported by the Kingdom of the Netherlands, and the                   in the relationship between the Commission and
Commission of the European Communities was brought                     national courts.
before the Court of Justice of the European Communities
on 11 May 1998 by the Kingdom of the Netherlands,
represented by Marc Fierstra and Corinna Wissels, of the               The interpretation applied in the contested judgment is
Ministry of Foreign Affairs, The Hague, acting as Agents.              in breach of the uniform application of Community