Bundesanstalt für den Güterfernverkehr v Gebrüder Reiff GmbH & Co. KG.
Date: 1993-11-17
12 It must also be observed that, as the Court held in Joined Cases 209/84 to 213/84 Ministère Public v Asjes [1986] ECR 1425, the competition rules of the Treaty, and in particular those of Articles 85 to 90, apply to the transport sector.
14 It must also be borne in mind that, in itself, Article 85 of the Treaty relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States. The Court has consistently held, however, that Article 85, read in conjunction with Article 5 of the Treaty, 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. By virtue of the same case-law, such is the case where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere (see Case 267/86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16).
15 In order to provide a useful answer to the national court, it is therefore necessary to consider first whether legislation such as the GueKG is indicative of the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty.
17 The Tariff Boards provided for by the GueKG are made up of tariff experts from the relevant sectors of the road haulage industry who are not bound by orders or instructions from the undertakings or associations which proposed them to the Federal Minister of Transport for appointment. Those boards cannot therefore be regarded as meetings of representatives of undertakings in the industry concerned.
18 Moreover, the GueKG does not allow the Tariff Boards to fix the tariffs solely by reference to the interests of undertakings or associations of undertakings engaged in transport but requires them to take account of the interests of the agricultural sector and of medium-sized undertakings or regions which are economically weak or have inadequate transport facilities. Furthermore, the tariffs are fixed only after compulsory consultation of an advisory committee made up of representatives of the users of the services.
19 It follows that, under a system for the fixing of road haulage tariffs like that introduced by the GueKG, the members of the Tariff Boards, although chosen by the Federal Minister of Transport on a proposal from the trade organizations directly concerned, cannot be regarded as representatives of the latter, called on to negotiate and conclude an agreement on prices.
20 Secondly, it is necessary to decide whether the public authorities have delegated their powers regarding the fixing of tariffs to private economic agents.
22 In order to discharge that responsibility, the Federal Minister of Transport not only has the power to establish the Tariff Boards and advisory committees, and to decide on their composition and structure but may also personally attend their meetings or be represented at them or delegate that right to agents of the Bundesanstalt. Furthermore, if the tariffs decided on by a Tariff Board are inimical to the public interest, the Federal Minister of Transport may, by agreement with the Federal Minister for Economic Affairs, fix the tariffs himself in the stead of the Tariff Board.
24 It must therefore be stated in reply to the question submitted that Article 3(f), the second paragraph of Article 5 and Article 85 of the EEC Treaty do not preclude rules of a Member State which provide that tariffs for the long distance transport of goods by road are to be fixed by tariff boards and are to be made compulsory for all economic agents, after approval by the public authorities, if the members of those boards, although chosen by the public authorities on a proposal from the relevant trade sectors, are not representatives of the latter called on to negotiate and conclude an agreement on prices but are independent experts called on to fix the tariffs on the basis of considerations of public interest and if the public authorities do not abandon their prerogatives but in particular ensure that the boards fix the tariffs by reference to considerations of public interest and, if necessary, substitute their decision for that of the boards.