Bundesrepublik Deutschland v Delta Schiffahrts- und Speditionsgesellschaft mbH.
Date: 1994-06-09
12 Secondly, the rules on competition laid down in the Treaty, and in particular those contained in Articles 85 and 90, apply to the transport sector (see, most recently, the judgment in Case C-185/91 Gebrueder Reiff [1993] ECR I-5801, hereinafter "the judgment in Reiff").
14 Article 85 of the Treaty is, in itself, concerned solely with the conduct of undertakings and not with measures adopted by Member States by law or regulation. The Court has consistently held, however, that Article 85 of the Treaty, in conjunction with Article 5, requires the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see the judgment in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and the judgment in Reiff, paragraph 14).
15 In its judgment in Reiff (paragraph 15) the Court, considering a similar question referred to it regarding the determination of tariff rates for the long-distance carriage of goods by road, held that, in order to give a helpful answer to the national court, it should first be considered whether the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty could be inferred from rules such as those in question in the main proceedings.
16 As regards rules such as those constituted by the BinnSchVG, it should first be noted that the members of the freight commissions, while not described as experts in tariff matters, unlike the members of the tariff commissions set up by the Law on the carriage of goods by road which was in point in the judgment in Reiff, hold an honorary office and are not bound by orders or instructions. As regards the expanded freight commissions, the BinnSchVG expressly underlines the independent role of the chairman and the two assessors who have three of the five votes.
17 Furthermore, the BinnSchVG does not allow the freight commissions to determine tariffs on the basis solely of the interests of carriers and shippers, but, in Paragraph 21, requires them to take into account the interests of the agricultural sector and of medium-size businesses or of areas which are economically weak and have poor transport services.
18 It follows that, under a tariff-fixing system such as that set up by the BinnSchVG, the members of the freight commissions, although appointed by a public authority acting on a proposal from the professional associations concerned, may not be regarded as representatives of those associations, called upon to negotiate and conclude agreements on prices.
19 It must next be considered, as the Court stated in its judgment in Reiff (paragraph 20), whether the public authorities have delegated their powers in the matter of fixing tariffs to private economic operators.
21 For the purpose of carrying out that task, the Federal Minister for Transport has the power to establish the freight commissions and expanded commissions which are subject to his control. Even though, contrary to what is provided by the Law on the carriage of goods by road, the Minister for Transport is not entitled to be a member of the freight commissions, he may himself fix the tariffs by substituting his decision for that of the commissions if the tariffs decided by them are not in accordance with the public interest which, by virtue of his office, it is his duty to safeguard.