SAM Schiffahrt GmbH and Heinz Stapf v Bundesrepublik Deutschland.
Date: 1997-07-17
23 As the case-law has firmly established, in giving the Council the task of adopting this policy a common transport policy, the Treaty has conferred wide legislative powers upon it as regards the adoption of appropriate common rules (judgment in Case 97/78 Schumalla [1978] ECR 2311, paragraph 4).
24 In reviewing the exercise of such powers, the Court cannot substitute its own assessment for that of the Community legislature, but must confine itself to examining whether that latter assessment contains a manifest error or constitutes a misuse of powers, or whether the authority in question did not clearly exceed the bounds of its discretion (judgments in Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 18; C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-169/95 Spain v Commission [1997] ECR I-0000, paragraph 34).
25 The Court's case-law also shows that where, as in this case, implementation by the Council of a common policy requires it to assess a complex economic situation, its discretion is exercisable not only in relation to the nature and scope of the provisions which are to be adopted but also, to a certain extent, to the findings as to the basic facts, especially in the sense that it is free to base its assessment, if necessary, on findings of a general nature (judgments in Case 166/78 Italy v Council [1979] ECR 2575, paragraph 14; Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25).
34 The first point to make in that respect, as the Advocate General observes in paragraph 41 of his Opinion, is that inland waterway transport is not wholly interchangeable with other methods of transport since, on account of the very limited network on which it depends, it cannot offer the same flexibility as road transport or even the lesser flexibility of rail transport.  Moreover, the reduction of structural overcapacity, which is aimed essentially at aligning supply and demand in the sector concerned, does not necessarily imply a reduction of the competitive capacity of that sector in relation to others.
46 As the Court has held in its case-law concerning actions for annulment, the legality of a measure must be assessed on the basis of the factual and legal situation which existed at the time when it was adopted (judgment in Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7).  By analogy, the assessment of the validity of a measure which the Court is called upon to undertake on a reference for a preliminary ruling must normally be based on the situation which existed at the time that measure was adopted.
47 Even if the validity of a measure might, in certain cases, be assessed by reference to new factors which arose subsequently to its adoption, the documents before the Court do not permit the conclusion that any such factors exist in this case, as the Advocate General has pointed out in paragraph 39 of his Opinion.  First, the period in issue in the main proceedings is the financial year 1990, which was the first year in which the basic regulation applied. Moreover, the information referred to in paragraph 30 of this judgment shows that the structural overcapacity which existed in the inland waterways sector at the time the regulation was adopted has not been entirely reduced in the following years.
50 The Court has consistently held that the general principle of equality, which is one of the fundamental principles of community law, requires that similar situations are not to be treated differently unless differentiation is objectively justified (judgments in Joined Cases 201/85 and 202/85 Klensch and Others v Secrétaire d'État [1986] ECR 3477, paragraph 9; Joined Cases C-267/88 to C-285/88 Wuidart and Others v Laiterie Coopérative [1990] ECR I-435, paragraph 13).
62 In reply to that argument, it is sufficient to point out that, in accordance with the 11th recital in the preamble to the basic regulation, Article 8(1)(a) requires the owner of a new vessel either to scrap a tonnage of carrying capacity equivalent to the new vessel without receiving a scrapping premium or, if he does not scrap a vessel, to pay a special contribution equal to the scrapping premium for a tonnage equal to that of the new vessel.  In its judgment in Joined Cases C-13/92, C-14/92, C-15/92 and C-16/92 Driessen and Others v Minister van Verkeer [1993] ECR I-4751, paragraph 36, the Court held that that rule was an appropriate way of limiting new investments in a sector characterized by structural overcapacity.
67 Under the Court's case-law, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (judgment in United Kingdom v Council, cited above, paragraph 57; Case C-233/94 Germany v Parliament and Council [1997] ECR I-0000, paragraph 54).
72 Under the Court's case-law, the right to property and the freedom to pursue a trade or business both form part of the general principles of Community law.  Those principles are, however, not absolute, but must be viewed in relation to their social function.  Consequently, the exercise of the right to property and the freedom to pursue a trade or business may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (judgment in Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 78).