No C 341/38 Official Journal of the European Communities 19. 12. 83
APPENDIX
to the opinion of the Economic and Social Committee
Rejected amendment
The following amendment, which was based on the Section opinion and tabled in accordance
with the Rules of Procedure, was rejected by the Committee at the plenary session :
Page 12, point 4.5
Add the following to the last paragraph:
'Account should also be taken of the interests of users and suppliers, particularly as regards
computer software.'
Voting
For: 24, against: 35, abstentions: 11.
Opinion on the proposal for a Council Regulation on the formation of rates for the
carriage of goods by road between Member States
The text referred to the Committee has been published in Official Journal of the Euro-
pean Communities No C 265 of 9 October 1982, page 5.
A. LEGAL BASIS FOR THE OPINION
On 5 October 1982 the Council referred the abovementioned proposal to the Econo-
mic and Social Committee in accordance with Article (75) of the Treaty establishing
the European Economic Community.
B. OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE
The Economic and Social Committee prepared its opinion on the above matter at its
210th plenary session held in Brussels on 28 and 29 September 1983.
The full text of the opinion is as follows:
THE ECONOMIC AND SOCIAL COMMITTEE,
Having regard to the Treaty establishing the Euro-
pean Economic Community, and in particular
Article 75 thereof,
Having regard to the decision taken by the Council
on 5 October 1982 to ask the Committee for an
opinion on the abovementioned draft Regulation ('),
(•) OJ No C 265, 9. 10. 1983, p. 5.
Having regard to the decision taken by its Bureau
on 13 October 1982 to instruct the Section for Trans-
port and Communications to prepare a report and
an opinion on the matter in accordance with
Article 22 of the Committee's Rules of Procedure,
Having regard to the opinion adopted by the Sec-
tion for Transport and Communications at its 151st
meeting held on 14 September 1983,
Having regard to the report submitted by the rappor-
teur, Mr Bos,
19. 12. 83 Official Journal of the European Communities No C 341/39
Having regard to the discussions on 29 September
1983 during the 210th plenary session held on 28
and 29 September 1983,
Whereas
1. Article 21 of Council Regulation (EEC)
No 2831/77 of 12 December 1977 on the forma-
tion of rates and the conditions for the carriage
of goods by road between Member States (')
stipulates that the Council shall take a decision on
the future provisions governing this field by
31 December 1982 at the latest; Article 21 of the
abovementioned Regulation also states that the
Regulation is to expire by 31 December 1983 at
the latest.
2. At its meeting on 7 June 1983 the Council took
a decision 'without prejudice to the opinion of
the Economic and Social Committee'. Under
this decision, rates for the carriage of goods
between Member States shall in future essen-
tially be set out in a system of reference tariffs,
although bilateral or multilateral bracket tariffs
may be used.
3. It has not been officially informed of the
detailed provisions decided upon by the Coun-
cil and can therefore take a stand only on the
draft Regulation submitted to it,
HAS ADOPTED THE FOLLOWING OPINION
by 41 votes to 13 with eight abstentions.
1. Harmonized framework for the formation of
rates for the carriage of goods
The Committee welcomes the Commission's endea-
vour to establish a harmonized framework for the
formation of rates for the carriage of goods by road
between Member States.
Such a framework could form an essential part of a
Community transport policy which should be basi-
cally designed to create a uniform or common inter-
nal transport market. The conditions necessary for
the establishment of a really effective common
transport policy do not in all probability exist at the
present time. The Commission's proposal should
therefore be regarded only as a step towards the
achievement of a common transport policy and as
providing a contribution towards the creation of
such a policy.
(') OJ No L 334, 24. 12. 1977, p. 22.
It is of course to be expected that the development
of a common system for the formation of rates for
the carriage of goods by road will have an effect on
the integration process and will also stimulate
efforts to meet the need for reciprocal consultations.
The Committee would expressly point out that the
establishment of a common framework for rate for-
mation does not lessen the need or indeed remove
the need to harmonize conditions of competition in
road transport. The contrary is the case as such a
step makes it absolutely necessary to press ahead
more rapidly with the harmonization of these condi-
tions.
2. Significance of the Community framework for the
formation of rates for the carriage of goods
The very divergent transport policies of the 10 Mem-
ber States at the moment make it very difficult to
arrive at a common position on the matter. The
Committee considers that this situation need not,
however, result in the proposed Regulation having
ho practical significance. As the proposal consti-
tutes a step towards a Community transport policy
in one area and provides a frame of reference of rate
formation, it should have a concrete impact.
3. Desirability of setting tariffs at least on a
bilateral basis
As the aim of the Regulation is to make a significant
contribution towards the establishment of a com-
mon transport market, tariffs must, at the very least,
be determined on a bilateral basis between Member
States. Tariffs fixed on a unilateral basis cannot
only be used to give an artificial stimulus to
national exports but they also produce a situation
whereby no reference rates are available for incom-
ing traffic into a Member State.
In the case of foreign carriers taking on loads for the
return journey from a Member State the reference
tariff of that State does not provide an adequate
point of reference if it does not accord with the con-
ditions applying in the case of the carrier's own
business. In this connection the Committee would
draw attention to Article 78 of the EEC Treaty
which stipulates that account has to be taken of the
economic situation of carriers. Inward and outward
journeys between two Member States constitute a
single transport market, notwithstanding differences
of emphasis due to national considerations. The var-
ious cost factors and currency fluctuations play an
important role in determining the profitability and
liquidity of enterprises.
No C 341/40 Official Journal of the European Communities 19. 12. 83
These problems of cost differences and liquidity
constraints will not be solved by unilaterally-deter-
mined rates which merely set aside the problems.
The introduction of bilateral rates would mean that
these problems would have to be tackled directly
and a solution found in the foreseeable future.
4. Reference tariffs and compulsory tariffs: A dual
system or one point of departure
In some Member States transport policy still favours
compulsory tariffs for the time being. Non-binding
recommended rates are scarcely permitted.
Although the majority of the members of the Com-
mittee prefer the system of reference tariffs, a minor-
ity of its members is in favour of compulsory tariffs.
These latter members represent in particular some
large Member States having a considerable amount
of transit traffic.
(a) Intermediate solution
The Committee would draw attention to the fact
that there exists an intermediary stage between
non-binding recommended rates and compulsory
tariffs. In proposing this middle course, it is recog-
nized that bringing stability to the haulage industry
is a matter of practical importance for the operation
of the transport market. The intermediate solution
would involve setting a market floor. Rates below
this threshold would have to be notified, either auto-
matically or subject to certain conditions. The car-
rier would have to prove that such rates were econ-
omically justifiable.
(b) Uniform method of calculation
The Committee also notes that under the present cir-
cumstances it would not be possible to introduce
either a system of non-binding recommended rates
or a system of compulsory tariffs applicable to all
routes between Member States. In the case of some
routes between Member States there would even be
little point in setting out a tariff. There is, however,
no need for resignation in the face of these struc-
tural conditions.
The Committee holds the view that, in spite of the
conflicting nature of the two tariffs systems, it is not
necessary to work with two wholly different systems.
Every system of rates has to be based on costs (hav-
ing regard to the continuity of operations) and mar-
ket conditions. This applies both to a system of
recommended rates and to compulsory tariffs. On
the basis of these two factors it is therefore possible
to set out both a reference tariff and a compulsory
bracket tariff. It is, however, essential in the case of
all bilaterally determined tariffs, of whatever type
they may be, that the same method of calculation be
used. As a result, one and the same method may
also serve as the basis for a compulsory minimum,
median or maximum tariff.
In this way it will at least be possible substantially
to avoid the creation of a dual system as regards the
framework for determining rates for the carriage of
goods by road between EC Member States. Differ-
ences would then only exist with regard to the form
of the rates and the procedures for implementing
them. Such differences would not run counter to the
pricing system, provided that under given circum-
stances and on particular routes the rates charged
did not exceed or fall short of the reference tariff by
more than a given percentage. If the same method
of calculation is used, however, the bases for deter-
mining the tariffs will be uniform.
(c) Supervision of tariffs
The Committee wishes to draw attention to a parti-
cular problem which arises with regard to the super-
vision of compulsory tariffs. This form of tariffs can
only operate if bilaterally agreed rates are super-
vised by both of the Member States in question.
This can only happen if the necessary apparatus is
available. It must also be possible, when certain
conditions apply, to conclude special contracts or
agree special rates which are not in conformity with
the compulsory tariffs, provided that they are econ-
omically justifiable.
5. Establishment of tariffs
(a) Reference tariffs
Reference tariffs should be determined in such a
way as to promote the continuous availability of
transport services. Sufficient practical experience
exists to enable this principle to be implemented.
Unprofitable haulage operations can thus be
stopped by suitable means with a view to achieving
a stable, balanced market.
Rates should be determined on the basis on the cost
of providing the transport services. The cost price
itself should in turn be based on a normal degree of
utilization of carrying capacity and compliance with
legal and administrative requirements, in particular
the regulations governing working conditions. The
reference tariff should also make provision for a
margin to cover unforeseen or unquantifiable costs
which can be determined on the basis of previous
figures and data supplied by hauliers.
19. 12. 83 Official Journal of the European Communities No C 341/41
The cost price can be published in a generally com-
prehensible form and can be related to the 'normal
transport services' performed by a vehicle or an
undertaking.
(b) Compulsory tariffs
The Commission's proposal to base the compulsory
tariffs on variable costs is not practicable. In the
short term the variable costs consist of costs related
solely to the number of Kilometres covered; these
form only an extremely small percentage of total
costs and thus have no great practical significance
for hauliers.
If we extend the time horizon, all costs are 'variable
costs'. Therefore it would be advisable to base the
bracket(s) for a compulsory tariff on the spread in
costs resulting from differences in the utilization of
transport services (market conditions). It would then
be possible to determine to what extent freight rates
below a certain percentage of the reference tariff are
justified economically. Hauliers whose market
would allow them to operate at below the average
'market price' level would have scope to do so. Par-
ticularly binding provisions would, however, have to
be introduced to prevent abuse of compulsory tariffs
(unfair competition).
This approach can play an important role in stabiliz-
ing the freight market with the aforementioned sys-
tem of a market floor. In addition, this approach
would ensure that the same method of calculation
(tariffs on the basis of continuity of operations and
market conditions) was used throughout.
The Committee cannot at this time say how far
below the published reference tariff the minimum
tariff or market floor should be. The risks of setting
too high a minimum tariff and the resultant disrup-
tive effects on the market must be set against the
danger that a minimum tariff or market floor
far below average costs would have the effect of
reducing the framework for price formation to an
absurdity.
6. Procedures for fixing tariffs and deadlines
As regards the procedures for fixing tariffs, the
Committee believes that the governments concerned
must be made responsible for fixing the tariffs on
the basis of proposal from the hauliers and after
consultation of transport agents and freight forwar-
ders. Unless it is fixed by state authorities a tariff
will hardly have any effect and might not even be
implemented. Furthermore, there would be no guar-
antee that transport users and freight forwarders
would receive an adequate profit.
Although there are formal grounds for rejecting the
participation of road haulage industry employees in
the fixing of tariffs (employees of transport agents
and freight forwarders are not involved in the con-
sultation), the Committee has no fundamtenal
objections to the consultation of workers' represen-
tatives. The detailed provisions of such consulta-
tions should be looked at more closely. The overall
period leading up to the introduction of the pro-
posed system must not, however, be extended.
As far as the deadlines in the procedures are con-
cerned, the Committee regards the proposed Regu-
lation as a major improvement on present arrange-
ments. It is implicit in any system of tariffs based on
costs and market conditions that changes in these
costs and conditions must be reflected in the tariffs
within a reasonably short period.
Done at Brussels, 29 September 1983.
The Chairman
of the Economic and Social Committee
Francis CEYRAC
No C 341/42 Official Journal of the European Communities 19. 12. 83
APPENDIX
to the opinion of the Economic and Social Committee
Rejected amendments
The following amendments, tabled in accordance with the Rules of Procedure, were defeated by
the Committee during the discussion:
Page 5
'Point (a) Intermediate solution:
Delete this entire passage.
Reason
The main thrust is already made in the previous paragraph: 'the majority of the members of the
Section prefer the system of reference tariffs'. The 'intermediate solution' recommended in point
(a) would involve carriers in an unreasonable amount of paperwork if they were required to prove
that the rates for each consignment were 'economically justifiable'. The effects of this interme-
diate solution would then be more protectionist than for compulsory tariffs.
Voting
For: 25, against: 27, abstentions: 2.
Page 9, 5 (b)
Insert before Item 6:
'Commercial costs are included among the "variable costs" mentioned in Article 12. It
should be stated, in Article 12 or another Article, that:
"A special tariff will be applied to transport operations involving transport agents. A percen-
tage representing the commercial services provided by the transport agent instead of the hau-
lier is to be deducted from the minimum rate." '
Reasons
In the majority of hauls carried out within the Community, freight forwarders are responsible for
seeking out customers, acquiring loads, providing commercial administrative services, advancing
funds and accepting the risk of bad debts.
The Regulation should therefore specify that hauliers should pay for this important trade func-
tion, which contributes to the coordination of road haulage within the common market. Hauliers
delegate a part of their responsibilities to freight forwarders. It is logical that the Regulation
should make provision for the payment by hauliers of part of the tariff to the freight forwarder,
even if the rate charged is the minimum one laid down.
De facto and de jure, the transport agent (a term which refers particularly to the road haulage
freight forwarder) accepts a consignment in his own name and at his own risk, and arranges for
the consignment to be transported by the haulier. The haulier invoices the transport agent at the
market or tariff rate, less the commission (remuneration of the freight forwarder). The freight for-
warder, in turn, invoices the client at the normal free-market or regulated rate.
Voting
For: 21, against: 26, abstentions: 10.
Full & Egal Universal Law Academy