61988J0004

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Transport - National and international transport - Implementation of freedom to provide services - Council' s failure to act - Consequences - Direct effect of Article 75 of the Treaty - None

( EEC Treaty, Arts 59, 60 and 75 )

The Council' s failure to fulfil its obligations under Article 75 of the Treaty by not adopting the measures necessary to extend freedom to provide services to the transport sector before the end of the transitional period does not serve to render Articles 59 and 60 of the Treaty directly applicable in the transport sector .

Article 75(1)(a ) and ( b ) of the Treaty does not of itself create individual rights on which nationals of the Member States may rely in proceedings before national courts with regard to decisions adopted by national authorities .

In Case 4/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Raad van State ( Council of State ) of Belgium for a preliminary ruling in the proceedings pending before that court between

Lambregts Transportbedrijf, Baarle-Hertog,

and

Belgian State,

on the interpretation of Article 75(1)(a ) and ( b ) of the EEC Treaty,

THE COURT ( Sixth Chamber )

composed of : T . Koopmans, President of the Chamber, G.F . Mancini, C.N . Kakouris, F.A . Schockweiler and M Díez de Velasco, Judges,

Advocate General : F.G . Jacobs

Registrar : D . Louterman, Principal Administrator

after considering the observations submitted on behalf of

the plaintiff in the main proceedings, by M . Denys, of the Brussels Bar,

the Belgian Government, by E . Marissens, of the Brussels Bar,

the Netherlands Government, by E.F . Jacobs, of the Ministry of Foreign Affairs, acting as Agent, and

the Commission of the European Communities, by T . van Rijn, member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 25 May 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 15 June 1989,

gives the following

Judgment

1 By a judgment of 1 December 1987, which was received at the Court Registry on 8 January 1988, the Raad van State of Belgium referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Article 75(1 ) of the EEC Treaty .

2 Those questions arose in proceedings between a road haulage undertaking, Lambregts Transportbedrijf ( hereinafter referred to as "Lambregts "), and the Belgian State .

3 Lambregts held a number of licences issued to it by the Belgian authorities for domestic and international transport with vehicles registered in its name operating from or to Belgian territory . In the course of an administrative inquiry carried out in 1981 in order to determine whether that company could be regarded as still being established in Belgium, the competent authorities found that Lambregts did not have a real place of business in Belgium, within the meaning of the Belgian law on companies .

4 On the basis of that finding, on 24 February 1982 the Belgian Minister for Transport withdrew all the transport licences previously issued to Lambregts .

5 On 4 March 1982, Lambregts brought an action for the annulment of that decision before the Raad van State alleging that the withdrawal of the transport authorizations was incompatible with Community law . The Raad van State therefore decided to refer the following questions to the Court for a preliminary ruling :

"1 . Does Article 75(1)(a ) and ( b ) of the EEC Treaty, at least in so far as it requires the Council to implement freedom to provide services in the field of transport, create individual rights on which nationals of the Member States may rely in proceedings before national courts with regard to events which took place on 24 February 1982?

2 . If the answer to the first question is in the affirmative : under those provisions, can the retention of licences for national or international transport issued by the authorities of a Member State to a transport undertaking established in another Member State be made subject to the condition that the undertaking concerned have a 'centre of activities' in the first State, or in other words that the undertaking regularly enter into transactions in that State which form part of its business activities and that it be represented there by an agent who is authorized to enter into commitments with third parties that are binding on it?"

6 Reference is made to the Report for the Hearing for a fuller account of the relevant provisions and the facts of the main proceedings, 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 .

7 The national court' s first question raises the problem whether, having regard to the Council' s obligation to implement the common transport policy under Articles 74 and 75 of the Treaty, the principle of freedom to provide services may be relied upon by an individual not residing in a Member State which in 1982, by an administrative decision, prohibited him from engaging in transport operations within, from and to that Member State .

8 It should first be pointed out that Article 59, guaranteeing the freedom to provide services within the Community, became directly and unconditionally applicable on the expiry of the transitional period indicated in Article 8 of the Treaty, as the Court pointed out in its judgment of 17 December 1981 Case 279/80 Webb (( 1981 )) ECR 3305 . In that judgment, the Court also pointed out that that freedom involved the abolition of all discrimination against the person providing the service by reason of the fact that he is established in a Member State other than that in which the service is to be provided .

9 However, it should be observed that under Article 61(1 ) of the Treaty, freedom to provide services in the field of transport is governed by the provisions of the title relating to transport, namely Article 74 et seq . of the Treaty . According to Article 75(1 ) of the Treaty, the Council is to lay down common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States, the conditions under which non-resident carriers may operate transport services within a Member State and any other appropriate provisions .

10 With regard to common rules applicable to international transport during the period at issue in the main proceedings, it should be pointed out that any transport operation in that area was, and, moreover, still is, subject to the issue of a licence and to the condition that the undertaking involved is established in the Member State which issues the licence . Such licences are issued either on the basis of a system of bilateral quotas, covering only transport between two Member States, or under the Community quota system, entitling licence holders to engage in transport operations on any routes between the Member States . The latter system was set up by Council Regulation No 3164/76 of 16 December 1976 on the Community quota for the carriage of goods by road between Member States ( Official Journal 1976 L 357, p . 1 ).

11 Council Regulation No 1841/88 of 21 June 1988 amending the Community quota ( Official Journal L 163, p.1 ) maintained that system but provided that the Community quota and the bilateral quotas between Member States were to be abolished on 1 January 1993 for Community hauliers and as from that date, access to the market for trans-frontier carriage of goods by road within the Community would be governed by a system of Community licences issued on the basis of qualitative criteria .

12 It follows from the foregoing that during the period at issue, in 1982, the common rules applicable to international transport did not permit an undertaking established in a Member State other than the one from or to which it proposed to carry out transport operations, to rely on the rules governing freedom to provide services .

13 The same was true in regard to an undertaking' s right to carry out transport operations within another Member State in which it did not have an establishment, because the Council had not laid down the conditions under which non-resident carriers were to be permitted to engage in domestic transport .

14 With regard to the legal consequences of that failure to implement the principle of freedom to provide services in international and domestic transport, it should be pointed out that in its judgment of 22 May 1985 Case 13/83 Parliament v Council (( 1985 )) ECR 1513, the Court decided that the Council had failed to fulfil its obligations under Article 75 of the Treaty but nevertheless pointed out that the effect of that fact was not to render Articles 59 and 60 of the Treaty directly applicable in the transport sector . During the period at issue, in 1982, freedom to provide services in the field of international transport was thus ensured only within, from or to the Member State in which the undertaking was established and was subject to the issue of a transport licence under the bilateral or Community quotas for the Member State concerned .

15 The reply to the first question should therefore be that Article 75(1)(a ) and ( b ) of the Treaty does not create individual rights on which nationals of the Member States may rely in proceedings before national courts with regard to decisions adopted by national authorities in 1982 .

16 Having regard to the reply given to the national court' s first question, there is no need to reply to its second question .

Costs

17 The costs incurred by the Government of the Kingdom of Belgium, the Government of the Kingdom of the Netherlands and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of 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 ( Sixth Chamber )

in answer to the questions referred to it by the Raad van State of Belgium, by judgment of 1 December 1987, hereby rules :

Article 75(1)(a ) and ( b ) of the Treaty does not create individual rights on which nationals of the Member States may rely in proceedings before national courts with regard to decisions adopted by national authorities in 1982 .