Judgment of the Court of 7 November 1991. - Pinaud Wieger Spedition GmbH v Bundesanstalt für den Güterfernverkehr. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Freedom to provide services - Cabotage. - Case C-17/90.
European Court reports 1991 Page I-05253
Transport - Road transport - Freedom to provide services - Cabotage - Introduction subject to intervention by the Council (EEC Treaty, Arts 59, 60, 61 and 75)
Under Community law as it stands, that is to say, prior to the entry into force of the Council regulation on cabotage in the road haulage sector, Articles 59 and 60 of the EEC Treaty do not preclude an undertaking established in one Member State from being prohibited from appointing a carrier in another Member State to provide on its behalf internal transport at rates generally in force in the first Member State, using vehicles licensed in the second Member State for the carriage of goods.
In Case C-17/90
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht (Federal Administrative Court), for a preliminary ruling in the proceedings pending before that court between
Pinaud Wieger GmbH Spedition
Bundesanstalt fuer den Gueterfernverkehr (Federal Office for the Long-Distance Carriage of Goods),
on the interpretation of Article 59 of the EEC Treaty,
composed of: O. Due, President, Sir Gordon Slynn, F.A. Schockweiler, F. Grévisse and P.J.G. Kapteyn (Presidents of Chamber), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Díez de Velasco and M. Zuleeg, Judges,
Advocate General: M. Darmon,
Registrar: H.A. Ruehl, Principal Administrator,
after considering the observations submitted on behalf of
- Pinaud Wieger GmbH Spedition by U. Wiemann and B. Eldering, Rechtsanwaelte, Cologne,
- the Bundesanstalt fuer den Gueterfernverkehr by R. Wilke, Rechtsanwalt, Berlin,
- the Spanish Government by C. Bastarreche Saguees and A. Hierro Hernández-Mora of the Ministry of Foreign Affairs, acting as Agents,
- the Commission by R. Waegenbaur and R. Gosalbo Bono, Members of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing oral argument from Pinaud Wieger GmbH Spedition, represented by Gert Mejer, Rechtsanwalt, Cologne, the Bundesanstalt fuer den Gueterfernverkehr, represented by Hans -Joern Niemeyer, Rechtsanwalt, Stuttgart, the Spanish Government and the Commission at the hearing on 21 March 1991,
after hearing the Opinion of the Advocate General at the sitting on 2 July 1991,
gives the following
1 By order dated 9 November 1989, which was received at the Court on 22 January 1990, the Bundesverwaltungsgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the freedom to provide services in the area of road transport.
2 That question arose in proceedings between Pinaud Wieger, the plaintiff in the main proceedings, and the Bundesanstalt fuer den Gueterfernverkehr (Federal Office for the Long-Distance Carriage of Goods), the defendant in the main proceedings.
3 Pinaud Wieger GmbH wished to engage Transvenlo B.V., a carrier established in the Netherlands, for the long-distance transport of goods within Germany. Pinaud Wieger had therefore submitted a request for an authorization to the Federal Office. It refused to grant an authorization on the ground that the internal carriage of goods may be undertaken only by a carrier established in Germany.
4 Pinaud Wieger then brought an action for a declaration that it was entitled to have recourse to Transvenlo for the carriage of goods within the Federal Republic of Germany and to agree, under that contract, rates lower than those determined by the German authorities in accordance with the German legislation. In support of its action, Pinaud Wieger claimed that the restrictions contained in the national statute with respect to the services provided by undertakings which are established in other Member States of the Community and have there obtained an authorization for the carriage of goods have been rendered invalid through the direct effect of Article 59 of the Treaty.
5 The Bundesverwaltungsgericht, before which the matter was brought at last instance, referred the following question to the Court for a preliminary ruling:
"In the light of the continuing failure by the Council of the European Communities to ensure freedom to provide services in the sphere of international transport and to lay down the conditions under which non-resident carriers may operate transport services within a Member State, are Articles 59 and 60 of the EEC Treaty at least directly applicable in so far as an undertaking established in the Federal Republic of Germany may not be prohibited from appointing a Netherlands carrier to undertake on its behalf the internal carriage of goods within the Federal Republic of Germany, using vehicles which are licensed in the Netherlands for the carriage of goods and at rates generally in force in the Federal Republic of Germany?"
6 Reference is made to the Report for the Hearing for a fuller account of the relevant provisions, the procedure and the 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 It should be borne in mind first of all that, according to Article 61(1) of the Treaty, freedom to provide services in the field of transport is to be governed by the provisions of the Title relating to transport. As the Court stated in its judgment in Case 13/83 Parliament v Council  ECR 1513, paragraph 62, application of the principles governing freedom to provide services, as established in particular by Articles 59 and 60 of the treaty, must be achieved, according to the Treaty, by introducing a common transport policy.
8 It should be pointed out, in the second place, that, although the grounds of the order for reference refer to the obligations imposed on the Council under Article 75(1)(a) and (b) of the Treaty, in particular those regarding the establishment of 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 and the laying down of the conditions under which non-resident carriers may operate transport services within a Member State, the legal problem on which the national court must rule in the proceedings before it is whether a non-resident carrier may operate transport services within the internal market of a Member State and, if so, under what conditions.
9 It should also be stated that the question formulated by the national court only envisages the case where the non-resident carrier complies with the rates in force in the host Member State.
10 With regard first of all to the "continuing failure" of the Council to which the question seeking a preliminary ruling refers, it should be recalled that the Court in its judgment in Case 13/83, cited above, declared inter alia that, in breach of the Treaty, the Council had failed to lay down in the context of freedom to provide services in that field the conditions under which non-resident carriers may operate transport services within a Member State in accordance with Article 75(1)(b) and (2) of the Treaty. In that judgment the Court held that the Council had a reasonable period of time in which to take the measures necessary in order to comply with it.
11 In view of the complexity of the cabotage sector, considerable difficulties still stand in the way of the achievement of freedom to provide services in that sphere. This can be done in an orderly fashion only in the context of a common transport policy which takes into consideration the economic, social and ecological problems and ensures equality in the conditions of competition.
12 That being so, the Council was entitled to undertake the liberalization of cabotage operations in a gradual manner. Following the reference for a preliminary ruling, the Council adopted on 21 December 1989 Regulation (EEC) No 4059/89 of 21 December 1989 laying down the conditions, for a transitional period, under which non-resident carriers may operate national road haulage services within a Member State (Official Journal 1989 L 390, p. 3). That regulation entered into force on 1 July 1990.
13 Furthermore, in accordance with Article 9 of the abovementioned regulation, the Council undertook to adopt a regulation laying down the definitive cabotage system by 1 January 1993.
14 In those circumstances and having regard to the fact that, as stated in the order for reference, the national court must give judgment on the basis of the law as it stands at the time of its decision, the reply to the question referred to the Court for a preliminary ruling must be that, under Community law as it now stands, Articles 59 and 60 of the EEC Treaty do not preclude an undertaking established in one Member State from being prohibited from appointing a carrier in another Member State to provide on its behalf internal transport services at the rates generally in force in the first Member State, using vehicles licensed in the second Member State for the carriage of goods.
15 The costs incurred by the Spanish Government 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, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
in answer to the question submitted to it by the Bundesverwaltungsgericht by order of 9 November 1989, hereby rules:
Under Community law as it now stands, Articles 59 and 60 of the EEC Treaty do not preclude an undertaking established in one Member State from being prohibited from appointing a carrier in another Member State to provide on its behalf internal transport services at the rates generally in force in the first Member State, using vehicles licensed in the second Member State for the carriage of goods.