88/86 · GlobalLawDB

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Judgment of the Court17 December 1987^noteIn Case 88/86REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven (Administrative Court of last instance in matters of trade and industry) in the proceedings pending before that court betweenBovo Tours BV, Roelofarendsveen, and Van Nood Touringcars BV, Amsterdam,andMinister for Transport, Water Control and Construction, andCommissie Vervoervergunningen, The Hague,andAutobusonderneming Snel en Co. BV, Rotterdam, joined to the proceedings as third party,THE COURT,composed of: G. Bosco, President of Chamber, acting as President, J. C. Moitinho de Almeida and G. C. Rodriguez Iglesias, Presidents of Chambers, T. Koopmans, U. Everling, R. Joliét and F. Schockweiler, Judges,Advocate General: J. Mischo,Registrar: B. Pastor, Administratorafter considering the observations submitted on behalf of— Bovo Tours BV and Van Nood Touringcars BV, plantiffs in the main proceedings by M. W. Josephus Jitta, of the Amsterdam Bar,— Autobusonderneming Snel en Co. BV, joined to the proceedings as third party, by R. A. A. Duk, of the Hague Bar,— the United Kingdom, by B. F. McHenry of the Treasury Solicitor's Department, acting as Agent,— the French Government, by Régis de Gouttes, acting as Agent,— the Netherlands Government, by I. Verkade, acting as Agent,— the Commission of the European Communities, by T. van Rijn, a member of its Legal Department,having regard to the Report for the Hearing and further to the Hearing on 7 April 1987,after hearing the Opinion of the Advocate General delivered at the sitting on 4 June 1987,gives the following

Judgment

1By judgment of 14 February 1986, which was received at the Court on 24 March 1986, the College van Beroep voor het Bedrijfsleven referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions concerning the interpretation of Regulation (EEC) No 517/72 of the Council of 28 February 1972 on the introduction of common rules for regular and special regular services by coach and bus between Member States (Official Journal, English Special Edition 1972 (I), p. 143).

2Those questions arose in proceedings before that court for the annulment of two decisions concerning an application for the introduction of a regular coach service between Amsterdam and London by the transport undertaking Snel en Co. BV (hereinafter referred to as ‘Snel’), whose registered office is in Rotterdam, pursuant to Article 12 et seq. of Regulation No 517/72. The two contested decisions are, on the one hand, the decision favourable to the application, which was communicated on 17 November 1983 by the Minister for Transport, Water Control and Construction to the Commissie Vervoervergunningen (Committee for the Authorization of Transport Services) and, on the other, the decision taken by the Committee on 12 April 1984 to grant the authorization applied for. The application for annulment was made by Bovo Tours BV of Roelofarendsveen and Van Nood Touringcars BV of Amsterdam who were competitors already holding an authorization to run a regular coach service between Amsterdam and London.

3By a decision of 29 June 1984 the President of the College van Beroep voor het Bedrijfsleven ordered the temporary suspension of the decisions until that court had given judgment in the main action. On 14 February 1986, that court declared the action against the decision of 17 November 1983 to be inadmissible and stayed its proceedings pending a ruling by the Court of Justice on the following questions :(1) Must Article 16 (2) of Regulation (EEC) No 517/72 of the Council be interpreted to the effect that it is sufficient if a Member State provides, in its national legislation implementing that regulation, for a procedure which allows interested parties, before a decision concerning any application is taken, to submit written objections against that application within 30 days of its being deposited for public inspection?Whether Question 1 is answered in the negative or in the affirmative:(2) Must “decisions on applications to introduce a regular service... taken by agreement between the Member States in whose territories passengers are to be taken up or set down”, as referred to in Article 13 (1) of Regulation No 517/72, be regarded as:(a) decisions of the Member State in which the undertaking applying for authorization has its headquarters taken by that Member State only after the other Member States concerned have given their assent;or(b) multilateral decisions adopted jointly by several Member States following international negotiations;or(c) sui generis decisions which, in view of their character and the existence of an alternative procedure for adopting a decision in the absence of agreement, may be equated with an act or decision of a Community institution?(3) In the event of the Court's considering that the interpretation set out in part (c) of Question 2 is correct, is the decision which the Netherlands Minister for Transport, Water Control and Construction announced — and for which he stated the reasons — in his letter of 17 November 1983 invalid on the ground that, for the reasons given in the body of this judgment, it conflicts with Article 190 of the EEC Treaty and/or Regulation No 517/72, in particular Article 8 thereof?(4) If the Court does not consider the interpretations set out in part (c) of Question 2 to be correct, must Article 8 (1) of Regulation No 517/72 be interpreted to the effect that the expression “existing passenger transport services” covers solely regular passenger services by coach operated on the same route and using the same method of crossing the Channel as the service which is the subject of the application, or does it extend to other types of passenger service by coach (operated partly on a different route; using another method of crossing the Channel) and to passenger services by rail?’

4Reference is made to the Report for the Hearing for a fuller account of the relevant provisions of Community and national law 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.

The nature of the decisions concerning the introduction of a regular or special regular coach or bus service

5It is first necessary to answer the national court's second question concerning the nature of the decisions taken with respect to applications to introduce a regular coach or bus service. More precisely, the national court wishes to know whether such decisions constitute decisions of the national authorities of the competent Member State under Article 12 (2) of Regulation No 517/72 which, under Article 16 (1) of that regulation, may be adopted only pursuant to the agreement of the Member States on whose territory travellers are taken up or set down or, where appropriate, pursuant to the decision of the Commission or Council mentioned in Article 14 of that regulation, or whether those decisions are international agreements or sui generis decisions which may be equated with an act or decision of a Community institution.

6The plaintiffs in the main proceedings, the French Government and the Commission maintain that the decisions mentioned in Article 16 of Regulation No 517/72 are decisions of national authorities for which agreement between the Member States is only a condition precedent. The Netherlands Government considers that they are joint decisions of Member States taken in implementation of the regulation. Snel and the United Kingdom take the view that such decisions are in the nature of international agreements. However, the United Kingdom does concede that certain decisions on the introduction of a regular service may be qualified as internal decisions of the competent national authorities.

7Article 16 (1) of Regulation No 517/72 provides as follows:‘The competent authority of the Member State referred to in Article 12 (2) shall, according to the terms of agreement pursuant to Article 13 (1) or of any decision taken under Article 14:(i) grant an authorization for the introduction of a regular service or of a special regular service;(ii) authorize a variation of the conditions subject to which a service is operated or, in the case of variation under Article 9 (2), notify the holder of the authorization of such variation;(iii) renew the authorization; or(iv) formally refuse the application.’

8.It is apparent from that provision that the final decision is taken by the national authority of the Member State on whose territory the headquarters of the applicant undertaking is situated. The fact that the decision may only be taken after a procedure requiring the prior agreement of the Member States concerned or a decision of the Commission or Council does not prevent that decision from being an act adopted by the national authority.

9This interpretation is not contradicted by the fact that elsewhere the regulation uses the expression ‘decisions taken by agreement between the Member States’. Read in conjunction with Article 16 (1), that expression must be interpreted as meaning that such decisions, as well as the decision of the Commission or Council, where appropriate, are merely a condition precedent of the final decision which is a matter for the competent national authorities.

10Consequently, the answer to the second question should be that Article 16 (1) of Regulation No 517/72 must be interpreted as meaning that decisions on applications to introduce a regular service or a special regular service by coach or bus between the Member States are national decisions.

The extent to which transport undertakings must be given the opportunity to make representations concerning their interests (Article 16 (2) of Regulation No 517/72)

11In its first question, the national court is essentially asking whether a national rule providing for the publication of applications to introduce a regular service or a special regular service and allowing interested parties 30 days to submit their observations before a decision is taken on the application satisfies the Member States' obligation under the second subparagraph of Article 16 (2) of Regulation No 517/72 which provides that ‘Member States shall ensure that transport undertakings in their capacity as such are given the opportunity to make representations concerning their interests, by appropriate means, in respect of such decisions’.

12The plaintiffs in the main proceedings and the Commission consider that Article 16 (2) of Regulation No 517/72 obliges Member States to provide for subsequent review of decisions taken under Article 16 (1). The Netherlands and French Governments, the United Kingdom and Snel maintain that Article 16 (2) is complied with if the legislation of a Member State gives interested parties the opportunity to submit within a prescribed period their objections regarding published applications to introduce regular services.

13It must first be noted that Article 16 (2) merely provides that transport undertakings in their capacity as such must be given ‘the opportunity to make representations concerning their interests, by appropriate means, in respect of such decisions’.

14That provision obliges Member States only to ensure that the transport undertakings concerned have the opportunity 14 make representations concerning their interests but leaves the Member States free to choose the most appropriate procedures to attain that objective.

15As regards competing undertakings which wish to object to the introduction of the service for reasons of an economic nature, that objective is satisfied if they are permitted to intervene in the enquiry procedure and to submit their arguments. Furthermore, it is at that stage that their intervention is of value since it allows consideration to be given to the economic case for introducing the service.

16In those circumstances the first subparagraph of Article 16 (2), whereby the national decision must state the reasons on which it is based, does not imply that competing undertakings must have the opportunity to bring a subsequent appeal.

17Consequently, the answer to the first question must be that national rules which provide for the publication of applications to introduce a regular service or special regular service by coach or bus and allow interested parties to submit their observations within 30 days before a decision is taken on those applications satisfy the Member States' obligation under the second subparagraph of Article 16 (2) of Regulation No 517/72.

The interpretation of Article 8 (1) of Regulation No 517/72

18In its fourth question, the national court is asking whether the expression ‘existing passenger transport services’ in Article 8 (1) of Regulation No 517/72 includes all types and modes of transport, in particular other regular coach services operated partly on a different route or another method of crossing the sea and passenger services by rail.

19The plaintiffs in the main proceedings, the French Government and the Commission maintain that that expression must be given a broad interpretation which would include all types and modes of passenger transport in existence when the application is made which are relevant to that application. The United Kingdom takes the view that the expression should not be interpreted as referring to a particular mode of transport or a particular route. The examination of the application should not be confined to the question whether there are adequate existing services, but consideration should also be given to the question whethc the granting of an application would benefit the public by improving the provision of transport services in terms of quality or quantity. Snel and the Netherlands Government consider that the expression simply refers to regular passenger transport services by coach using the same route as the regular services to which the application relates.

20Article 8 (1) and (2) provides as follows:1. Examination of an application to introduce a regular service or a special regular service shall be for the purpose of establishing that the traffic to which the application relates is not already catered for in a satisfactory manner, both as to quality and as to quantity, by existing passenger transport services.2. The following, in particular, shall be taken into consideration during the examination referred to in paragraph 1 :(a) the current and foreseeable transport needs which the applicant is planning to meet;(b) in the case of regular services, the state of the passenger transport market in the areas in question’.

21Both the wording and the purpose of Article 8 indicate that a broad interpretation must be given to the expression ‘existing passenger transport services’.

22Article 8 (2) requires that when the application is being examined account is to be taken in particular of the state of the passenger transport market in the areas concerned. The term ‘transport market’ includes all types and modes of transport.

23Furthermore, as the fifth recital of the preamble to the regulation states, the purpose of Article 8 is to ‘ensure the proper functioning of services at minimum cost to the community in general’ and therefore that ‘it is necessary on the one hand to adapt the supply of transport to the demand therefor on the routes to be served and, on the other, to coordinate passenger transport services in the areas concerned in an effective manner’. That objective would not be attained if, when examining an application to introduce a regular or special regular service account did not have to be taken, in order to assess transport needs, of all types and modes of transport, in particular other regular bus services operated on a partly different route or using another method of crossing the sea and passenger transport by rail.

24The answer given to the fourth question must therefore be that the expression ‘existing passenger transport services’ in Article 8 (1) of Regulation No 517/72 includes all types and modes of transport, in particular other regular bus services operated partly on a different route or using another method of crossing the sea and passenger transport by rail.

25In the light of the answer given to the national court's second question, there is no need to give an answer to the third question.

Costs

26The costs incurred by the Netherlands Government, the French Government, the United Kingdom 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.

Operative part

On those grounds,THE COURT,in answer to the question submitted to it by the College van Beroep voor het Bedrijfsleven, by judgment of 14 February 1986,hereby rules:

(1).Article 16 (1) of Regulation No 517/72 must be interpreted as meaning that decisions on applications to introduce a regular service or a special regular service by coach or bus between Member States are national decisions.

(2).National rules which provide for the publication of applications to introduce a regular service or a special regular service by coach or bus and allow interested parties to submit their observations within 30 days before a decision is taken on those applications satisfy the Member States' obligation under the second subparagraph of Article 16 (2) of Regulation No 517/72.

(3).The expression ‘existing passenger transport services’ in Article 8 (1) of Regulation No 517/72 includes all types and modes of transport, in particular other regular bus services operated partly on a different route or using another method of crossing the sea and passenger transport by rail.

Delivered in open court in Luxembourg on 17 December 1987.