CELEX: 61982CC0012
Language: en
Date: 1982-10-26
Title: Opinion of Mr Advocate General Rozès delivered on 26 October 1982. # Criminal proceedings against Joseph Trinon. # Reference for a preliminary ruling: Tribunal de police de Verviers (1er canton) - Belgium. # Road transport - Bracket tariffs. # Case 12/82.

OPINION OF MRS ADVOCATE GENERAL ROZÈS
      DELIVERED ON 26 OCTOBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The Court has received a request for a preliminary ruling from the Tribunal de Police of the First Canton of Verviers, Belgium, in which the Court is asked to “rule on the question of the compatibility of Belgian legislation with the EEC Treaty”.
      The facts are as follows:
      I —
      
               1.
            
            
               Joseph Trinon, director of the haulage company Translac, based in Dison, Belgium, was summoned before the Tribunal charged, as the person bearing criminal and civil liability for the company, with having contravened provisions of Belgian law which impose a minimum transport rate for the carriage of goods by road for hire or reward between the Kingdom of Belgium and the Federal Republic of Germany.
               In the course of a random check of tariffs at the head office of the company, it was established that the rates invoiced for three transport operadons carried out in November 1980 from Germany to Belgium were substantially lower than the minimum tariff provided for in the case of such operations by the Belgian Royal Decree of 24 September 1971, as amended, “fixing the tariff for the carriage of goods by road for hire or reward between the Kingdom of Belgium and the Federal Republic of Germany, even where such carriage involves transit through a third country”. By way of example, the file of the case shows that the invoiced rate of BFR 10000 for having transported 24100 kg of bricks on 14 November for a distance of 383 km was 39.3% lower than the compulsory minimum rate of BFR 16500.
               Before the Tribunal de Police, Mr Trinon contended that the case should be referred to the Court of Justice and submitted that the Court should be asked whether Article 8 of the Belgian Law of 1 August 1960 on the carriage of goods by road for hire or reward, and the subsequent legal provisions fixing the maximum and minimum transport rates were compatible with a common transport policy and the development on a European scale of a competitive economy, which excludes the restrictive practice of compulsory rates.
               The Tribunal agreed to refer to this Court for a preliminary ruling, but preferred to rephrase the question proposed in those general terms.
               The Procureur du Roi appealed against that judgment before the Tribunal Correctionnel [Criminal Appeal Court], but did not submit written observations. The accused amended the question which he requested the appeal court to put to this Court to read as follows:
               “Does the acceptance by a carrier of return freight at a rate below the legal tariff and the failure to observe the requirements as to form and substance of Article 14 of Regulation (EEC) No 2831/77 contravene the provisions of that regulation when the transport rate is determined on the basis of the reciprocal interests of the customer and the carrier, in particular as regards time, place and the cost price, calculated with reference to a system of free competition which ensures a fair return for the carrier?”
               On 27 November 1981, in the absence of observations by the appellant, the Tribunal de Première Instance [Court of First Instance], Verviers, sitting as an appellate court, upheld the judgment of the Tribunal de Police in its entirety and referred the case back to the latter “to be decided after a ruling had been obtained from the Court of Justice”.
            
         
               2.
            
            
               In his defence, Mr Trinon adduced certain arguments which should be examined before, discussing the question which has been raised. He suggests that the practice of offering lower tariffs is justified by the operation of so-called “return” transport operations. Article 14 of Council Regulation No 2831/77, (
                     2
                  ) which, in particular, makes the legality of special transport contracts concluded at a lower rate than the minimum tariff applicable subject to strict requirements of form, is not valid, according to the accused, because its terms are so strict as to be incompatible with the real situation of a carrier who wishes to procure return freight immediately.
               Clearly, that question is not included in the wording of the reference and, moreover, may not be extracted from the reasons given for making the reference. It need not, therefore, be examined. (
                     3
                  ) Nevertheless, it led to observations submitted at the hearing both by the representative of the Commission and by the Belgian Government expert, from which it may be concluded that it is not necessary to make specific provision for tariffs applicable to return freight in the relevant Community regulations and the Belgian provisions implementing them.
               Under the regulation, the tariffs fixed by common agreement between the Member States concerned take into account the fact that some return journeys are unladen. Moreover, they are bilateral tariffs, which apply to all transport routes between Belgium and the Federal Republic of Germany. It follows that a journey from Germany to Belgium which is a return journey for a Belgian carrier is at the same time an outward journey for a German carrier and is therefore subject to the same tariff in either case. In the circumstances, any interpretation of Regulation No 2831/77 which sought to exclude return journeys from the scope of the regulation would strike against the fundamental aim of the regulation, which is to avoid damaging competition. It would confer on carriers for whom the journey was a return journey an unfair advantage over their competitors, for whom it would be an outward journey.
               These observations are important.
            
         
               3.
            
            
               Let us now examine the question which has been referred to the Court by the Tribunal de Police of the First Canton of Verviers.
               In the grounds of its judgment, the court cites provisions of Belgian law on the one hand, and the wording of the EEC Treaty on the other, and questions the compatibility of the former with the latter. In this connection it cites “Article 8 of the Law of 1 August 1960, inasmuch as it permits a national authority to fix rates unilaterally” and the “Royal Decrees of 24 September 1971, 8 September 1978 and 18 July 1979, inasmuch as they make rates fixed bilaterally between two Member States compulsory”. The Tribunal compares those provisions with Article 3 (e) of the Treaty which “introduces a common transport policy” and Article 75, which “empowers the Council to lay down common rules applicable to international transpon to or from the territory of a Member State”. For that reason the Tribunal considers that “a preliminary question arises as to the compatibility of the Belgian legislation with the EEC Treaty”, and that “in accordance with Article 177 of the Treaty, it is advisable to submit [the question] to the Court of Justice for a preliminary ruling”. The request is repeated in the operative pan of the judgment, which asks the Court “to give a preliminary ruling on the question of the compatibility of the Belgian legislation with the EEC Treaty”.
               The terms of the request led the Belgian Government to raise two objections of inadmissibility.
               The first is based on the fact that the Coun may not rule on the validity of national laws in proceedings for obtaining a preliminary ruling.
               The second is the objection of oscuri libelli, based on the fact that the wording of the request is too general.
               The Court's case-law provides answers to these two objections.
               It is true that the Court may not rule “proceedings brought under Article 177 of the EEC Treaty ... on the compatibility of rules of national law with provisions of Community law.” However, the Court does have jurisdiction “to provide the national court with all material concerning the interpretation of Community law which will enable that court to judge whether those rules are compatible with the rule of Community law in question”. (
                     4
                  )
               As far as the second objection is concerned, I need only refer to Case 10/71, Ministère Public Luxembourgeois v Muller and Others (
                     5
                  ) in which the judgment of the Tribunal d'Arrondissement [District Court] of Luxembourg did not cite the provisions of Community law which it required to be interpreted. Nevertheless, following the opinion of Advocate General Dutheillet de Lamothe, (
                     6
                  ) the Court stated that “despite the imprecise nature of the questions, the grounds of judgment of the national court clearly show the subject-matter of [the] reference”. (
                     7
                  )
               In the light of the grounds stated by the Tribunal de Police of Verviers, I suggest that the Court interpret the question as seeking to ascertain whether Council Regulation No 2831/77 permits a Member State to fix compulsory rates for the carriage of goods by road between another Member State and itself.
               We must therefore examine the relevant legal provisions.
            
         II —
      
               1.
            
            
               Regulation No 2831/77 “shall apply to the carriage of goods by road for hire or reward between the Member States ...” (Article 1). It provides that “the rates charged for carriage referred to in Article 1 shall be governed by a system of tariffs” (Article 2(1) which “shall be either for reference or compulsory” (Article 2 (2)). The decision as to which of those tariff systems is to apply is taken by mutual agreement of the Member States concerned (Article 2 (3)). Belgium and the Federal Republic of Germany decided upon the system of compulsory tariffs for the transpon routes which they shared.
               “Compulsory tariffs shall be brought into force and published by the competent authorities of the Member States ...” (Article 8). They “shall be fixed or amended by agreement between the Member States concerned, that is, the States on the territories of which the goods are to be loaded or unloaded” (Article 11 (1)). “Each Member State shall bring such uriffs into force within two months following the conclusion of negotiations for the fixing or amendment of uriffs or, as the case may be, following the completion of the procedure referred to in Article 13 ...” (Article 11 (2)).
               That article institutes a procedure for the settlement of disputes which may arise “if the negotiations for the esublishment or modification of a compulsory uriff fail”. In such a case, “the dispute shall be referred to the Commission at the request of a Member State” (first subparagraph of Article 13 (1)).
               “After consulting” a committee composed of government experts, the Commission “shall adopt a decision which shall be notified to the interested parties and published in the Official Journal of the European Communities” (second subparagraph of Article 13 (1)) and which “shall become binding one month after the date of publication ...” (Article 13 (2)).
               Finally, Article 17 of the regulation provides that Member States are to adopt “in due course, and after consulting the Commission, ... the laws, regulations and administrative provisions necessary for” its implementation.
            
         
               2.
            
            
               Belgium complied with that provision by enacting the Royal Decree of 17 October 1979, (
                     8
                  ) which corresponded to the Royal Decree of 25 October 1971 implementing the regulation of the Council which preceded Regulation No 2831/77, namely Regulation No 1174/68. (
                     9
                  )
               In the particular case of transport operations between Germany and Belgium, the latter had enacted by 1980 three successive Royal Decrees fixing compulsory tariffs.
               All three decrees, which are cited both in the summons served on Mr Trinon to appear before the Tribunal de Police and in the grounds of the judgment of that court containing the reference, include a reference in the preamble to the Council Regulation which they are to implement.
               The Royal Decree of 24 September 1971 was adopted in accordance with Regulation No 1174/68, Article 4(1) of which had already laid down the obligation which was subsequently repeated in Article 11 (1) and (2) of Regulation No 2831/77.
               The measure was first amended by the Royal Decree of 8 September 1978 in order to implement the decision of the Commission, made pursuant to Article 13 of Regulation No 2831/77, on the dispute which had arisen between Belgium and Germany, in particular, concerning the revision of the rates applicable to transport operations between the two countries. (
                     10
                  ) The Royal Decree of 8 September 1978 introduced a standard increase of the rates of 15%.
               Lastly, the Royal Decree of 18 July 1979, which was applicable at the time of the facts in question, had the principal effect of increasing rates expressed in Belgian francs by 15% in order to compensate for the fall of the Belgian franc as against the Deutschmark.
               The three measures fixing compulsory rates for the carriage of goods by road for hire or reward between Belgium and the Federal Republic of Germany implement the provisions of the relevant Council regulations, in particular Article 11 (1) and (2) of Regulation No 2831/77, to the letter.
            
         
               3.
            
            
               Is Article 8 of the Belgian Law of 1 August 1960, (
                     11
                  ) which together with the Royal Decrees to which I have referred constitutes the legal basis for the indiament, incompatible with the regulation, as Mr Trinon maintains and as the national court is inclined to believe?
               The wording of that provision is as follows:
               “The King may, when circumstances so require, lay down provisions governing the rates and conditions of the carriage of goods for hire or reward.
               He may also determine the powers, composition and operation of a consultative commission for road haulage rates.”
               It is submitted that that is incompatible with Regulation No 2831/77 because it empowers a national authority to fix rates unilaterally, whereas the Community regulation provides, as we have seen, that the rates are to be fixed by agreement between the Member States directly concerned.
               In my opinion, that argument cannot be supported. Whatever the precise rôle of the Law of 1 August 1960 may be in the Belgian internal procedure for fixing transport rates, (a point which the Court may not decide in proceedings for obtaining a preliminary ruling), (
                     12
                  ) it is sufficient to note that the Rovai Decrees of 1971, 1978 and 1979 represent all that is necessary for the proper fulfilment by Belgium of the obligation laid down by Articles 11 and 13 of the regulation of 1977 to negotiate with the Federal Republic of Germany the compulsory tariff applicable to transport operations between those two countries, to appeal to the arbitration of the Commission in the event of a dispute and to implement in its territory the rates established as a result of the agreement with the Federal Republic of Germany or, in the absence of such an agreement, as a result of the Commission's decision settling the dispute.
               In my opinion, therefore, the following answer should be given to the question referred by the Tribunal de Police of the First Canton of Verviers: Council Regulation No 2831/77 must be interpreted as meaning not only permitting, but indeed imposing an obligation on Member States which have opted for the system of compulsory tariffs in their relations with another State to fix those tariffs unilaterally within their jurisdiction, either by virtue of a bilateral agreement with the other Member State directly concerned or, if necessary, in accordance with the decision of the Commission which settles the dispute which has arisen with that State.
            
         (
            1
         )	Translated from the French.
      (
            2
         )	Council Regulation No 2831/77 of 12 December 1977 on the fixing of rates for the carnage of goods by road between Member States.
      (
            3
         )	9 December 1965Hessische Knappschaft v Maison Singer et Fils, Case 44/65 [1965] ECR 965.
      (
            4
         )	17 December 1981, Frans-Nederlandse Maatschappij voor Biologische Producten, Case 272/80 [1981] ECR 3277, at p. 3290; see further, in particular, the Court's judgment of 6 October 1970in Grad v Finanzamt Traunstein, Case 9/70 [1970] ECR 825, at p. 840, paragraph 17 of the decision.
      (
            5
         )	The Mertert Port case, [1971] ECR 723.
      (
            6
         )	ibid., at p. 731.
      (
            7
         )	ibid., Judgment of 14 July 1971 at p. 729, paragraph 4 of the decision.
      (
            8
         )	Royal Decree implementing Regulation (EEC) No 2831/77 of the Council of the European Communities of 12 December 1977 on the fixing of rates for the carriage of goods by road between Member States.
      (
            9
         )	Regulation (EEC) No 1174/68 of the Council of the European. Communities of 30 July 1968 on the introduction of a system of bracket tariffs for the carriage of goods by road between Member States.
      (
            10
         )	Commission Decision of 12 June 1978 settling the dispute between the Federal Republic of Germany on the one side and Belgium and the Netherlands on the other over the level of the compulsory tariffs for the carriage of goods by road between those Member States.
      (
            11
         )	Law on the carriage of goods by road for hire or reward, as I said earlier.
      (
            12
         )	See in particular the judgments of 19 March 1964, Hmkstran, nee Ungir, Case 75/63 [1964] ECR 177, and 6 May 1980, Lee, Case 152/79 [1980] ECR 1495, at p. 1507, paragraph 11 of the decision.