61992J0013

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1. Acts of the institutions ° Drafting procedure ° Consultation of the Parliament ° Consultation anew in the event of a substantial amendment to the initial proposal

2. Transport ° Inland navigation ° Structural improvements ° Scrapping premiums ° Special contribution ° Transitional rules ° Breach of the principles of non-retroactivity, protection of legitimate expectations, proportionality and equal treatment ° None

(Council Regulation No 1101/89, Art. 8(1)(a) and (3)(a))

1. Where consultation of the European Parliament is provided for, there must be consultation anew on each occasion when the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except in cases where the amendments essentially correspond to the wishes of the Parliament itself.

2. The principles of non-retroactivity, protection of legitimate expectations, proportionality and equal treatment are not infringed by the transitional rules laid down in Article 8 of Regulation No 1101/89 on structural improvements in inland waterway transport, which, for a specified period, make the commissioning of newly constructed vessels subject to the requirement that the owner of the vessel to be brought into service must either scrap a tonnage of carrying capacity equivalent to the new vessel without receiving a scrapping premium or pay into the scrapping fund a special contribution equal to the scrapping premium, unless he proves that construction was under way when the regulation entered into force, that the work already carried out represents at least 20% of the steel weight or 50 tonnes and that delivery and commissioning of the vessel is to take place within the six months following entry into force of the regulation.

Whilst it is true that the regulation, which was not applicable until after it had entered into force, has onerous effects for certain economic agents who had already placed orders for vessels, there was no basis for any legitimate expectation on their part that new vessels ordered shortly after publication of the proposal for a regulation would be capable of being brought into service under the conditions ° which are less strict than those finally adopted ° laid down in that proposal since the Commission was entitled to amend its proposal at any time, the Council was entitled to adopt an act constituting an amendment to the proposal and they must have known that the industry was in favour of stricter transitional rules.

From the point of view of proportionality, moreover, the scheme adopted is appropriate and was properly considered necessary by the Council in order effectively to limit new investments in a sector in which there was structural overcapacity.

Finally, as regards the principle of equal treatment, the Community legislature cannot be required to adjust conditions objectively determined for the application of a scheme in order to accommodate specific decisions such as the choice of a shipyard which is not able to shorten its delivery times.

In Joined Cases C-13/92, C-14/92, C-15/92 and C-16/92,

REFERENCE to the Court under Article 177 of the EC Treaty by the College van Beroep voor het Bedrijfsleven (Netherlands) for a preliminary ruling in the proceedings pending before that court between

Driessen en Zonen v o f,

A. Molewijk,

Motorschiff Sayonara Basel AG,

C. Mourik en Zoon v o f

and

Minister van Verkeer en Waterstaat,

on the validity of Article 8(1)(a) and (3)(a) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport (OJ 1989 L 116, p. 25),

THE COURT (Fifth Chamber),

composed of: G.C. Rodríguez-Iglesias, President of the Chamber, R. Joliet, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: F.G. Jacobs,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

° Driessen en Zonen v o f, by A.M. Bleeker-Van Velzen, of the Rotterdam Bar,

° A. Molewijk, Motorschiff Sayonara Basel AG and Mourik en Zoon v o f, by J.J. Feenstra and W.P. Sprenger, of the Rotterdam Bar,

° the Netherlands Government, by B.R. Bot, Secretary General in the Ministry of Foreign Affairs, acting as Agent,

° the Council, by P. Woodland and G. Houttuin, of its Legal Service, acting as Agents,

° the Commission, by T. Van Rijn and X. Lewis, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Driessen en Zonen v o f, A. Molewijk, Motorschiff Sayonara Basel AG, Mourik en Zoon v o f, the Netherlands Government, represented by A. Bos, Legal Adviser in the Ministry of Foreign Affairs, the Council and the Commission at the hearing on 22 April 1993,

after hearing the Opinion of the Advocate General at the sitting on 27 May 1993,

gives the following

Judgment

1 By judgments of 8 November 1991, received at the Court on 22 January 1992, the College van Beroep voor het Bedrijfsleven (Netherlands court of last instance in matters of trade and industry) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the validity of Article 8(1)(a) and (3)(a) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport (OJ 1989 L 116, p. 25).

2 That question was raised in proceedings between Driessen en Zonen v o f ("Driessen"), A. Molewijk ("Molewijk"), Motorschiff Sayonara Basel AG ("Sayonara") and C. Mourik en Zoon v o f ("Mourik"), and the Minister van Verkeer en Waterstaat (Minister of Transport and Water Resources, hereinafter "the Minister").

3 Regulation No 1101/89 seeks to eliminate overcapacity in inland waterway transport. To that end, it provides for a scrapping scheme coordinated at Community level.

4 Pursuant to Article 3(1) of the regulation, each of the Member States whose inland waterways are linked to those of another Member State and the tonnage of whose fleet is above 100 000 tonnes is to set up a scrapping fund. Article 4 provides that, for each vessel covered by the regulation, the owner is to pay a contribution into one of the funds set up under Article 3. Pursuant to Article 5(1), any owner of a vessel to which the regulation applies is to receive a premium from the fund to which a vessel belongs if he scraps it. Article 6(1) provides that the Commission is to lay down the rate of the annual contributions to the fund for each vessel, the rate of the scrapping premiums, the period covered by the scrapping schemes, during which scrapping premiums will be paid, the conditions under which the premiums may be obtained and the adjustment coefficients for each type and category of inland waterway vessel.

5 To ensure that the effects of the scrapping scheme are not negated by the simultaneous bringing into service of additional capacity, Article 8(1)(a) of the regulation provides that, for a period of five years from the entry into force of the regulation, vessels covered by it which are newly constructed may be brought into service only where:

"° the owner of the vessel to be brought into service scraps a tonnage of carrying capacity equivalent to the new vessel without receiving a scrapping premium (the 'old-for-new' rule); or

° where the owner scraps no vessel, he pays into the fund covering his new vessel or into the fund chosen by him in accordance with Article 4 a special contribution equal to the scrapping premium fixed for a tonnage equal to that of the new vessel;

..."

6 Article 8(3)(a) of the regulation lays down a transitional period during which the owner of a newly constructed vessel is not required to scrap a vessel of equivalent tonnage or to pay a special contribution, provided that he proves that:

"° construction was under way on the date of entry into force of this regulation,

° work already carried out represents at least 20% of the steel weight or 50 tonnes, and that

° delivery and commissioning is to take place within the six months following entry into force of this regulation."

7 As the regulation entered into force, pursuant to Article 11 thereof, on the date of its publication, namely 28 April 1989, the period prescribed in the third indent of Article 8(3)(a) expired on 28 October 1989.

8 The three preconditions for application of the transitional rules set out in paragraph 6 above did not appear in the first proposal for a regulation submitted by the Commission to the Council on 19 May 1988 (OJ 1988 C 297, p. 13). The second subparagraph of Article 8(1) merely required an owner taking advantage of the transitional rules to prove that the vessels were under construction on the date on which the scrapping scheme was instituted.

9 On 2 September 1988, the Union Internationale de la Navigation Fluviale (UINF) and the Organisation Européenne des Bateliers (OEB) wrote to the Commission. Taking the view that the wording of the second subparagraph of Article 8(1) of the abovementioned proposal was not strict enough, they suggested that the transitional rules should be applicable only if three conditions were fulfilled. On 14 October 1988, the Nederlandse Sociaal Economische Raad (Social and Economic Council, hereinafter "the SER") sent to the Minister an opinion in which it recommended the use of stricter wording. Finally, between September and November 1988, articles expressing similar views appeared in several trade publications.

10 On 16 November 1988, the European Parliament gave an opinion on the Commission' s proposal (OJ 1988 C 326, p. 54). In it, Article 8 was amended so as to include the three conditions suggested by the UINF and the OEB in their letter of 2 September 1988.

11 On 23 December 1988, the Commission submitted an amended proposal (OJ 1989 C 31, p. 14) incorporating the three conditions in question in exactly the same terms as those used by the Parliament. The first and third conditions, whose wording differs in certain respects from the text of the regulation finally adopted, as set out in paragraph 6 above, were drafted as follows:

"(a) construction was under way on the date on which the scrapping scheme commenced;

...

(c) delivery and commissioning is to take place within six months of the date referred to in subparagraph (a) above."

12 Driessen, the plaintiff in the main proceedings in Case 13/92, placed an order on 14 December 1988 with the Van Eijk Scheepsbouw shipyard for the construction and delivery of a steel hull for a vessel for inland navigation, which was to be delivered by the end of the fourth week of 1990 at the latest. By letter of 5 January 1990, the Minister stated that Driessen did not satisfy the condition of having brought the vessel into service within the six months following the entry into force of the regulation. The hull was delivered by the shipyard in the second week of 1990 and the vessel was brought into service on 17 February 1990.

13 Molewijk, the plaintiff in the main proceedings in Case 14/92, placed an order on 25 November 1988 with the Grave BV shipyard for the construction of a vessel for inland navigation, to be delivered by 31 March 1990. By decision of 27 March 1990, the Minister required Molewijk to pay HFL 873 933 by way of special contribution provided for in the second indent of Article 8(1)(a) of the regulation. The vessel was delivered on 7 April 1990 and was brought into service on 21 April 1990.

14 Sayonara, the plaintiff in the main proceedings in Case 15/92, placed an order on 1 March 1989 with the Scheepswerf Slob BV shipyard for the construction of a vessel for inland navigation, which was to be delivered on 31 January 1990. By decision of 28 May 1990, the Minister required Sayonara to pay the special contribution referred to in the second indent of Article 8(1)(a) of the regulation. The vessel was first used for carriage of goods on 22 June 1990.

15 Mourik, the plaintiff in the main proceedings in Case 16/92, placed an order with Gebroeders Buys Scheepsbouw BV on 25 February 1989 for the construction of a vessel for inland navigation, for delivery in April 1990. By letter of 13 October 1989, the Minister informed Mourik that the vessel under construction did not meet the condition laid down in Article 8(3)(a) of the regulation, according to which work already carried out was to represent at least 20% of the steel weight or 50 tonnes. By decision of 9 April 1990, the Minister required the company to pay a special contribution under the second indent of Article 8(1)(a) of the regulation because not only had that condition not been fulfilled but the vessel was put into service in mid-1990.

16 The four plaintiffs in the main proceedings brought actions before the College van Beroep voor het Bedrijfsleven for annulment of the decisions requiring them to pay the special contribution.

17 In those circumstances, the national court referred the following question, worded in the same terms in all four cases, to the Court for a preliminary ruling:

"Are the special contribution rules provided for in the second indent of Article 8(1)(a) of Council Regulation (EEC) No 1101/89 and the transitional rules provided for in Article 8(3)(a), taken in conjunction with each other, invalid in so far as they take no, or at least insufficient, account of a situation such as that at issue in these proceedings?"

18 The situations referred to by the national court are those described in paragraphs 12 to 15 of this judgment.

19 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

20 It is appropriate to consider in turn the various grounds of invalidity alleged by the plaintiffs in their observations.

The right of the European Parliament to be consulted

21 Three of the four plaintiffs maintain that the European Parliament should have been consulted anew since the text of Article 8(1) and (3) finally adopted by the Council departed substantially from the Commission' s initial proposal.

22 They claim, first, that, in the second and third indents of Article 8(3)(a) of the regulation, the text finally adopted by the Council added two new conditions to the condition initially laid down in the Commission' s proposal for the transitional rules to be applicable, thereby making those rules considerably more severe. Secondly, they state that the date on which the scrapping measures provided for in Article 8(1) of the regulation are to apply and on which the preconditions for the applicability of the transitional rules must be fulfilled is, in the text adopted by the Council, the date of entry into force of the regulation and not, as in the Commission' s initial proposal, the date on which each scrapping scheme instituted by the Commission commences.

23 It is settled law that the European Parliament must be reconsulted on each occasion when the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except in cases where the amendments essentially correspond to the wishes of the Parliament itself (Case C-65/90 Parliament v Council [1992] ECR I-4593, paragraph 16).

24 With regard to the first point, although the Commission' s initial proposal merely provided that vessels which the owners proved were under construction on the date on which a scrapping scheme had been instituted were not subject to the rules laid down in Article 8(1) of the regulation, whereas the text finally adopted by the Council added, in the second and third indents of Article 8(3)(a), two new conditions, namely that the work already carried out had to represent at least 20% of the steel weight or 50 tonnes and that delivery and commissioning were to take place within the six months following entry into force of the regulation, those two conditions were added at the express request of the Parliament.

25 As regards the second point, although in the Commission' s initial proposal the date as from which the scrapping measures provided for in Article 8(1) were to apply and on which the precondition for application of the transitional rules ° that is to say the one subsequently laid down in the first indent of Article 8(3)(a) of the regulation ° had to be fulfilled was the date of commencement of the scrapping scheme instituted by the Commission, whereas in the text finally adopted by the Council that date is the date of entry into force of the regulation, such an amendment cannot be regarded as a substantive amendment of the text adopted by the Parliament since the Commission could, on the basis of the latter text, have instituted a scrapping scheme as soon as the regulation entered into force.

26 In those circumstances, there was no need for the Parliament to be consulted anew.

The prohibition of retroactive effect and the principle of the protection of legitimate expectations

27 The applicants claim that the rules introduced by the regulation apply to legal situations that arose before it entered into force and are therefore contrary both to the principle of legal certainty and to the principle that laws must not have retroactive effect. They state that the contracts which they concluded with a view to the construction of new vessels were signed before the contested regulation entered into force, with the result that the latter imposes new obligations on them retroactively.

28 The contested regulation entered into force on 28 April 1989. Pursuant to the second paragraph of Article 11, its application is expressly deferred until 1 May 1989. Consequently, its provisions were not applicable prior to its entry into force.

29 However, it is true that the regulation has onerous effects for certain economic agents, such as the applicants, who placed orders for vessels before it entered into force.

30 In those circumstances, it is necessary to consider whether, by imposing those burdens on certain economic agents, the Council respected the legitimate expectations of those concerned in the exercise of its legislative power.

31 The applicants maintain that the proposal for a regulation published in the Official Journal of the European Communities on 22 November 1988 had already laid down transitional rules, with the result that they had a legitimate expectation that new vessels ordered shortly after the publication of that proposal could be freely put into service, without having to comply with the more restrictive conditions ultimately imposed by the regulation.

32 That argument is untenable.

33 First, there is no basis for any legitimate expectation on the part of the plaintiffs that the rules provided for in the abovementioned Commission proposal would be maintained, since it is clear from Article 149 of the Treaty that the Commission may amend such a proposal at any time and that the Council may adopt an act constituting an amendment to the proposal.

34 Secondly, in view of the letter to the Commission from the UINF and the OEB, the opinion of the SER sent to the Minister and the various reports in the specialized press, the plaintiffs should have known that the view taken in the industry was that the transitional rules, as set out in the Commission' s initial proposal, were not strict enough. It is noteworthy in that connection that, in September 1988, the trade organizations had already suggested that application of the rules in question should be subject to the fulfilment of three conditions which essentially corresponded to those finally adopted.

35 It follows that the contested provisions are not contrary to the principle of the protection of legitimate expectations.

The principle of proportionality

36 As regards the plaintiffs' allegation that the contested provisions are disproportionate, it must first be observed that those provisions constitute an appropriate way of limiting new investments in a sector characterized by structural overcapacity, an objective which, as is apparent from the third recital in its preamble, is pursued by the regulation.

37 Next, the conditions laid down in Article 8(3)(a) of the regulation for the applicability of the transitional derogation do not appear to go further than is necessary in order to achieve the aim pursued.

38 It was reasonable for the Council to take the view that less restrictive conditions would have allowed undertakings rapidly to place their orders for the construction of new vessels shortly before the entry into force of the regulation, with the result that the commissioning of those vessels would have aggravated the existing overcapacity.

39 Moreover, attention had already been drawn to that risk by the relevant trade organizations and by the Parliament in its opinion of 16 November 1988.

40 In those circumstances, it must be concluded that the contested provisions are in conformity with the principle of proportionality.

The principle of equal treatment

41 According to the plaintiffs, the Council infringed the principle of equal treatment because the conditions for the applicability of the derogation under the transitional rules are disadvantageous to undertakings which entrusted the construction of vessels to small shipyards which were not capable of reducing delivery times, as compared with those which, having chosen a large shipyard, were in a position to secure earlier delivery and commission the vessels within the time-limit laid down by the regulation in order to qualify for that derogation.

42 That argument must be rejected. The Community legislature cannot be required, on the basis of the principle of equal treatment, to adjust conditions objectively determined for the application of a scheme in order to accommodate specific decisions taken by individual operators, such as the choice of the shipyard to which they entrust the construction of a vessel.

43 Accordingly, the answer to be given to the national court must be that consideration of the question raised has not disclosed any factor of such a kind as to affect the validity of the combined provisions of the second indent of Article 8(1)(a) and Article 8(3)(a) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport.

Costs

44 The costs incurred by the Netherlands Government, the Council and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven, by judgments of 8 November 1991, hereby rules:

Consideration of the question raised has not disclosed any factor of such a kind as to affect the validity of the combined provisions of the second indent of Article 8(1)(a) and Article 8(3)(a) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport.