Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. Whilst the tariff-fixing procedure which applies in the Federal Republic of Germany to the carriage of goods by road, and which is laid down in the German Law on the carriage of goods by road (Gueterkraftverkehrsgesetz, hereinafter "the GueKG"), was at the origin of the Reiff case, (1) it is the compulsory procedure for the approval of tariffs laid down in the German Law concerning inland waterways transport (Binnenschiffsverkehrsgesetz, (2) hereinafter "the BSchVG") which is at the centre of the dispute in the present case.
2. In its judgment in Reiff the Court considered that it could not be inferred from rules of the GueKG type that there was an agreement, decision or concerted practices within the meaning of Article 85 of the EEC Treaty (3) and that such rules did not constitute delegation by the public authorities of their powers in the matter of fixing tariffs to private economic operators. (4)
3. The Court ruled that
"Article 3(f), the second paragraph of Article 5 and Article 85(1) of the EEC Treaty do not preclude State rules which provide that tariffs for the long distance carriage of goods by road are to be fixed by tariff boards and are to be made compulsory for all economic operators, after approval by the public authorities, if the members of those boards, although chosen by the public authorities acting on a proposal from the professional circles concerned, are not representatives of those circles, 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 relating to the public interest and if the public authorities do not abandon their prerogatives, by ensuring in particular that the boards fix the tariffs by reference to considerations relating to the public interest and, if need be, substituting their decision for that of the boards, do not relinquish their powers". (5)
4. Let me say at once that the few details which distinguish the procedure for the determination of tariffs for the carriage of goods overland from the procedure concerning the carriage of goods by inland waterway do not, in my opinion, prevent that decision from being applied in this case.
5. However, when asked whether, following the judgment of the Court, it would withdraw its question, the national court maintained it, not by reason of the differences which might exist between the problems raised by those two procedures, but because, since it disagreed with the solution adopted by the Court, it concluded, for its part, that there was a cartel. (6)
6. The tariff-fixing procedure laid down in Paragraph 21 of the Bschvg leads, according to the national court, to a " ... renunciation by the State of its regulatory powers", "the powers of the Minister for Transport to fix the tariffs himself for reasons relating to the public interest (being reduced) to an altogether theoretical competence". (7) Furthermore, the tariffs are not fixed by independent authorities.
7. These are all points to which the Court has already replied.
8. I will first recall the position I adopted in the Reiff case and the content of the judgment of the Court, and will then examine the few features which are peculiar to the present case and which cannot, as I have said, result in the Court' s diverging from that judgment.
9. I pointed out that the composition of the tariff boards on the one hand, and, on the other hand, the fact that an agreement between undertakings which is not of itself enforceable but is subject to approval may constitute a cartel could have led to the belief that there was an real "risk of a cartel". (8) However, I considered that such a risk could be neutralized where (1) only the State determines the criteria for defining the content of the decisions of the tariff boards and ensures the observance of those criteria by means of administrative and judicial review and (2) it controls every step of the procedure. (9)
10. I concluded that the tariff-fixing procedure in question had never lost the character of legislation. (10)
11. In its judgment the Court held, first, that the tariff boards, composed of experts in tariff matters who are not bound by orders or instructions, cannot be regarded as meetings of representatives of undertakings in the relevant sector (11) and that they do not determine tariffs on the basis of the interests of the undertakings or of the associations of undertakings in that sector but have to take account of other interests specified by statute. Thus, the members of those boards are not representatives of undertakings who are called upon to conclude an agreement on prices. (12)
12. Secondly, the Court considered that the public authorities had not delegated their powers in the matter of fixing tariffs to private economic operators. By laying down rules for the tariff-fixing procedure, the legislature is pursuing an objective in the public interest: "... to bring about an optimum transport service and [confer] on the Federal Government the task of harmonizing the conditions of competition between modes of transport and to ensure an economically judicious division of tasks between them". (13) Furthermore, the Federal Minister for Transport retains control of the procedure before the tariff boards, for which he may substitute if the tariff adopted is not in accordance with the public interest. (14)
13. I will now consider the national rules applicable in the present case.
14. Under the BSchVG the rates for the carriage of goods by inland waterway are determined by freight commissions for inland waterways (Paragraph 21), composed of representatives of the barge owners and shippers who vote by groups. They are appointed by the Federal Minister for Transport on a proposal from the professional associations (Paragraph 25(1)). The expanded commissions, which are competent if the freight commissions fail to agree, are composed of the shippers' group, the shipping group, and an independent chairman appointed by the Minister and two independent assessors, each appointed by one of the two groups (Paragraph 25(5)). Members of the freights commissions and of the expanded commissions hold honorary office and are not subject to orders or instructions (Paragraph 25(6)).
15. The commissions are subject to supervision by the Federal Minister of Transport. The tariffs are subject to his approval (Paragraph 28(1)) and made of general and compulsory application by ministerial order (Paragraph 29(1)).
16. Where transport prices do not correspond with the approved tariff, the competent waterways and inland navigation board may recover the difference on behalf of the Federal Government (Paragraph 31(3)).
17. The slight differences which distinguish the BSchVG from the GueKG could lead to the belief that the risk of there being a cartel is increased in this case. I am thinking principally of the status of the members of the commissions.
18. I nevertheless consider that, just as in the field of the carriage of goods by road, that risk is neutralized by the role which the rules in question reserve to the State.
19. Let me consider those two points in turn.
20. It is true that the members of the commissions, appointed on the authority of the Minister acting on a proposal from the professional associations concerned, are not "tariff experts" as in the case of the GueKG. Nevertheless, they are bound neither by mandate nor by instructions (Paragraph 25(6) of the BSchVG).
21. It is true that the Minister of Transport cannot himself take part in the meetings or be represented at them.
22. Nevertheless, the commissions do not have a free hand in fixing tariffs but must base themselves on the criteria imposed by the Law: Paragraph 21(2) of the BSchVG provides as follows:
"Remunerations must take account of market conditions and of the economic situation of navigation undertakings and undertakings engaging in transportation by raft; they are fixed remunerations or minimum or maximum remunerations. In determining the latter remunerations, unjustified discrimination against agriculture or medium-sized businesses and against areas which are economically weak or have poor transport services must be avoided".
23. Moreover,
"In order to bring about an optimum transport service the Federal Government shall endeavour to harmonize the conditions of competition between modes of transport and to ensure an economically judicious division of tasks between them" (Paragraph 33(1)). "The Federal Minister for Transport shall harmonize services and prices of the various modes of transport in order to avoid unfair competition" (Paragraph 33(2)).
24. The inland waterway freight commissions must take their decisions in accordance with statutory requirements (Paragraph 21). Any fixing of tariffs by the commissions which does not meet those criteria and those objectives is not to be approved.
25. Finally, and most importantly, the Federal Minister for Transport may substitute himself for the commissions "where reasons relating to the public interest (Gruende des allgemeinen Wohls) so require" (Paragraph 30). (15)
26. As may be seen, the tariffs adopted may not reflect private interests and must take into account criteria based on the public interest. By administrative and judicial control the State ensures that those criteria are taken into account by the commissions. Moreover, it is in control of all the stages of the procedure for the adoption of the tariffs.
27. There is, therefore, in this case no cartel freely formed by the operators concerned on the basis of their own interests, as in the case giving rise to the judgment of the Court in BNIC v Clair. (16)
28. As I pointed out in my Opinion in Reiff,
"Such rules do not confirm a pre-existing agreement between undertakings. They do not make enforceable an agreement concluded outside the administrative authorities. They organize, regulate and impose tariffs within the framework of a state procedure. There is, therefore, undoubtedly, an active policy of the State underlying the procedure, and not merely a private initiative". (17)
29. I conclude that under a system for fixing tariffs for the carriage of goods, such as that set up by the BSchVG, the public authorities have not delegated their powers in the matter of fixing tariffs to private economic operators.
30. I therefore propose that the Court rule as follows:
Articles 3(f), 5 and 85 of the EEC Treaty do not preclude national rules from empowering commissions composed of members appointed by the public authorities acting on a proposal from the professional associations in the sector concerned to fix tariffs for the carriage of goods by inland waterway, provided that the decisions of those commissions have to comply with criteria laid down by a public authority and, if those criteria are not observed, should not be approved by that authority, can be replaced by an administrative decision and, in any event, can be reviewed by the courts by means of an action brought against the decision granting approval.
(*) Original language: French.
(1) - Judgment in Case C-185/91 [1993] ECR I-5801.
(2) - As published on 8 January 1969, BGBl I, p. 65.
(3) - Paragraphs 15 and 19 of the judgment.
(4) - Paragraphs 20 and 23.
(5) - Operative part of the judgment.
(6) - Letter of 30 December 1993.
(7) - Ibid.
(8) - See paragraphs 82 and 84 to 104 of the Opinion.
(9) - See paragraphs 105 to 129 of the Opinion.
(10) - Paragraph 129.
(11) - Paragraph 17.
(12) - Paragraphs 18 and 19.
(13) - Paragraph 21.
(14) - Paragraph 22.
(15) - My emphasis. The German Government cites in this respect the remuneration for transport of gravel from the Upper Rhine fixed directly by Ministerial Order following an inappropriate decision of the inland waterway freight commission. The Federal Minister has in the past been able to address directives to the commissions. A letter of 26 April 1991 thus encouraged them to show greater flexibility (observations of the German Government, paragraphs 21 and 23).
(16) - Case 123/83 BNIC v Clair [1985] ECR 391.
(17) - Paragraph 126 of the Opinion.
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