1 BY A JUDGMENT OF 22 APRIL 1981 WHICH WAS RECEIVED AT THE COURT ON 14 JANUARY 1982 THE TRIBUNAL DE POLICE ( POLICE COURT)OF THE FIRST CANTON OF VERVIERS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO THE INTERPRETATION OF ARTICLES 3 ( E ) AND 75 OF THE EEC TREATY IN ORDER TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH THOSE PROVISIONS OF THE BELGIAN LEGISLATION ON RATES FOR THE TRANSPORT OF GOODS BY ROAD BETWEEN THE KINGDOM OF BELGIUM AND THE FEDERAL REPUBLIC OF GERMANY . THE LEGISLATION IN QUESTION IS THE ROYAL DECREE OF 24 SEPTEMBER 1971 ( MONITEUR BELGE ( BELGIAN OFFICIAL GAZETTE ), P . 11667 ) AS AMENDED BY THE ROYAL DECREES OF 8 SEPTEMBER 1978 AND 18 JULY 1979 ( MONITEUR BELGE , P . 11472 AND P . 8871 RESPECTIVELY ), WHICH FIXES THE ROAD TRANSPORT RATES BETWEEN BELGIUM AND THE FEDERAL REPUBLIC OF GERMANY , BASED ON THE LAW OF 1 AUGUST 1960 ON THE CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD ( MONITEUR BELGE , P . 6101 ) AND THE LAW OF 18 FEBRUARY 1969 ON MEASURES FOR THE IMPLEMENTATION OF INTERNATIONAL TREATIES AND INSTRUMENTS RELATING TO TRANSPORT BY ROAD ( MONITEUR BELGE , P . 2988 ), HEREINAFTER REFERRED TO AS ' ' THE BELGIAN LEGISLATION ' ' .
2 IT MAY BE SEEN FROM THE FILE OF THE CASE THAT THE QUESTION WAS RAISED IN THE COURSE OF CRIMINAL PROCEEDINGS AGAINST A BELGIAN CARRIER WHO IS CHARGED WITH HAVING TRANSPORTED GOODS , DURING THE MONTH OF NOVEMBER 1982 , BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND BELGIUM AT RATES SUBSTANTIALLY LOWER THAN THE MINIMUM RATE OF THE BRACKET AUTHORIZED BY THE ROYAL DECREES CITED ABOVE .
3 IN THE JUDGMENT CONTAINING THE REFERENCE , THE TRIBUNAL OBSERVES THAT THE EEC TREATY AIMS TO ESTABLISH A COMPETITIVE ECONOMY BETWEEN MEMBER STATES AND THAT IT MIGHT THEREFORE SEEM CONTRADICTORY TO THE DECLARED AIMS OF THE TREATY TO FIX PRICES IN THE ABSENCE OF A JOINT DECISION BY ALL THE MEMBER STATES . THE COURT EXPRESSES DOUBTS AS TO THE COMPATIBILITY OF THE NATIONAL PROVISIONS WITH ARTICLE 3 ( E ) WHICH INSTITUTES A COMMON POLICY IN THE SPHERE OF TRANSPORT , AND WITH ARTICLE 75 WHICH EMPOWERS THE COUNCIL TO LAY DOWN COMMON RULES APPLICABLE TO INTERNATIONAL TRANSPORT .
4 HAVING FOUND THAT THERE WAS A QUESTION AS TO THE COMPATIBILITY OF THE RELEVANT BELGIAN LEGISLATION WITH THE TREATY , THE TRIBUNAL STAYED ITS PROCEEDINGS SO AS TO ENABLE THE COURT TO GIVE A RULING ON THE QUESTIONS OF INTERPRETATION RELATING TO COMMUNITY LAW , ON WHICH MAY DEPEND THE OPINION WHICH THE TRIBUNAL MUST GIVE ON THE COMPATIBILITY OF THE BELGIAN LEGISLATION WITH THE PROVISIONS OF THE EEC TREATY .
5 THAT QUESTION MUST BE ANSWERED WITH REFERENCE NOT ONLY TO THE ARTICLES OF THE TREATY CITED BY THE TRIBUNAL , BUT ALSO TO THE PROVISIONS ENACTED BY THE COMMUNITY INSTITUTIONS TO ENSURE THEIR APPLICATION , NAMELY REGULATION ( EEC ) NO 1174/68 OF THE COUNCIL OF 30 JULY 1968 ON THE INTRODUCTION OF A SYSTEM OF BRACKET TARIFFS FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 411 ) AND COUNCIL REGULATION ( EEC ) NO 2831/77 OF 12 DECEMBER 1977 ON THE FIXING OF RATES FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES ( OFFICIAL JOURNAL , L 344 , P . 22 ).
6 ACCORDING TO ARTICLE 3 ( E ) OF THE TREATY , THE ACTIVITIES OF THE COMMUNITY ARE TO INCLUDE INTER ALIA ' ' THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF TRANSPORT ' ' . WITHIN THE FRAMEWORK OF THE COMMON TRANSPORT POLICY PROVIDED FOR IN ARTICLE 74 , ARTICLE 75 REQUIRES THE COUNCIL TO LAY DOWN , ON A PROPOSAL FROM THE COMMISION AND AFTER CONSULTING THE ECONOMIC AND SOCIAL COMMITTEE AND THE ASSEMBLY , INTER ALIA 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 .
7 AS WAS STATED BY THE NATIONAL COURT , APPLICATION OF THOSE PROVISIONS IS DESIGNED TO LIBERALIZE TRADE AND TO ESTABLISH A COMPETITIVE ECONOMY WITHIN THE COMMUNITY . HOWEVER , BOTH THE FOURTH PARAGRAPH OF THE PREAMBLE TO THE TREATY AND THE FUNDAMENTAL PRINCIPLE OF A COMMON TRANSPORT POLICY REQUIRE THAT THE COMMUNITY ALSO GUARANTEE BALANCED TRADE AND FAIR COMPETITION , AND TO ACHIEVE THOSE AIMS DUTIES AND RESTRICTIONS MAY BE IMPOSED ON TRANSPORT UNDERTAKINGS IN THE COMMUNITY .
8 CERTAIN RULES CONCERNING THE TRANSPORT OF GOODS BY ROAD BETWEEN MEMBER STATES WERE LAID DOWN BY REGULATION NO 1174/68 OF THE COUNCIL ON THE ADOPTION OF A SYSTEM OF COMPULSORY BRACKET TARIFFS , THE MAIN PURPORT OF WHICH IS REPEATED IN REGULATION NO 2831/77 .
9 UNDER THOSE TWO REGULATIONS THE MEMBER STATES DIRECTLY CONCERNED WITH ANY TRANSPORT ROUTES MUST FIX BY AGREEMENT THE TARIFFS APPLICABLE IN THEIR RELATIONS WITH EACH OTHER ( ARTICLE 4 OF REGULATION NO 1174/68 AND ARTICLE 11 OF REGULATION NO 2831/77 ).
10 IN INTRODUCING THE SYSTEM OF BRACKET TARIFFS , THE REGULATIONS PRESERVE THE PRINCIPLE OF THE FREEDOM OF UNDERTAKINGS TO FIX THEIR TARIFFS ACCORDING TO THE REQUIREMENTS OF THE MARKET . HOWEVER , CERTAIN RESTRICTIONS ARE PLACED ON THAT FREEDOM BY THE FIXING OF A MAXIMUM AND A MINIMUM RATE WHICH ARE DESIGNED TO AVOID , AS IS STATED IN THE FIFTH RECITAL OF THE PREAMBLE TO REGULATION NO 1174/68 , ABUSE OF DOMINANT POSITIONS ON THE ONE HAND AND DAMAGING COMPETITION ON THE OTHER . THUS IT IS CLEAR THAT WHILE THE REGULATIONS RESPECT THE FREEDOM OF UNDERTAKINGS TO FIX THEIR OWN TARIFFS , THEY PLACE COMPULSORY LIMITS ON THAT FREEDOM .
11 MOREOVER , IT SHOULD BE NOTED THAT ARTICLE 12 OF REGULATION NO 1174/68 AND ARTICLE 17 OF REGULATION NO 2831/77 REQUIRE MEMBER STATES TO ADOPT THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY FOR THE IMPLEMENTATION OF THE REGULATIONS , AND IN PARTICULAR , TO PROVIDE FOR BOTH PERMANENT AND EFFECTIVE CONTROL AND APPROPRIATE PENALTIES FOR BREACHES .
12 IT APPEARS FROM THE FILE ON THE CASE THAT THE TARIFFS APPLICABLE FOR TRANSPORT ROUTES BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND BELGIUM WERE ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-MENTIONED REGULATIONS AND THAT THEY WERE IMPLEMENTED BY THE ROYAL DECREES CITED BOTH IN THE JUDGMENT CONTAINING THE REFERENCE AND ABOVE . THE PREAMBLES TO THE ROYAL DECREES BOTH REFER EXPRESSLY TO THE CORRESPONDING COMMUNITY REGULATION , AND ARE THEREFORE CLEARLY IDENTIFIED AS MEASURES IMPLEMENTING THE SAID REGULATIONS .
13 THE GENERAL CONTEXT OF THE REGULATIONS MAKES IT CLEAR THAT BELGIUM NOT ONLY HAD THE RIGHT BUT WAS UNDER AN OBLIGATION TO PROVIDE FOR APPROPRIATE PENALTIES DESIGNED TO ENSURE THAT BELGIAN CARRIERS OBSERVED THE TARIFF BRACKETS FIXED IN PURSUANCE OF THOSE REGULATIONS . THE APPLICABILITY OF SUCH PENALTIES CANNOT THEREFORE BE CONTESTED ON THE BASIS OF A PRINCIPLE OF FREE COMPETITION WHICH APPLIES IN COMMUNITY LAW ONLY WITHIN THE COMPULSORY LIMITS ESTABLISHED BY THE APPLICATION OF THE SYSTEM OF BRACKET TARIFFS PROVIDED FOR BY REGULATIONS NOS 1174/68 AND 2831/77 .
14 THE ACCUSED POINTS OUT THAT THE TRANSPORT RATES WHICH HE CHARGED ON THE INVOICES AND WHICH ARE THE SUBJECT OF THE PROSECUTION BROUGHT BEFORE THE TRIBUNAL WERE FIXED AT A RATE BELOW THE MINIMUM OF THE BRACKET PROVIDED FOR UNDER THE BELGIAN LEGISLATION BECAUSE THEY WERE THE RATES FOR RETURN JOURNEYS WHICH WOULD OTHERWISE HAVE HAD TO BE MADE UNLADEN . THE ACCUSED APPEARS TO BE OF THE OPINION THAT THE LIMITS WHICH APPLY UNDER THE SYSTEM OF BRACKET TARIFFS ARE NOT APPLICABLE TO SUCH JOURNEYS , OR AT LEAST THAT SUCH JOURNEYS MAY BE THE SUBJECT OF A SPECIAL CONTRACT WITHIN THE MEANING OF ARTICLE 5 OF REGULATION NO 1174/68 RE-ENACTED IN ARTICLE 14 OF REGULATION NO 2831/77 .
15 IN THIS CONTEXT IT SHOULD BE NOTED THAT ACCORDING TO BOTH ARTICLE 3 OF REGULATION NO 1174/68 AND ARTICLE 10 OF REGULATION NO 2831/77 THE BASE-RATE FROM WHICH THE BRACKETS ARE CALCULATED TAKES INTO ACCOUNT THE ' ' AVERAGE COST OF THE TRANSPORT OPERATION ' ' CALCULATED FOR UNDERTAKINGS ' ' AVERAGE COST OF THE TRANSPORT OPERATION ' ' CALCULATED FOR UNDERTAKINGS ' ' ENJOYING NORMAL CONDITIONS OF USE OF ( THEIR ) CARRYING CAPACITY ' ' . IT APPEARS FROM THE EVIDENCE PROVIDED ON THIS SUBJECT BY THE COMMISSION THAT THE TARIFFS ESTABLISHED UNDER THE COMMUNITY REGULATIONS TAKE INTO CONSIDERATION THE FACT THAT SOME RETURN JOURNEYS ARE UNLADEN , A FACTOR WHICH IS TAKEN INTO ACCOUNT IN DETERMINING THE BRACKET AND , MORE ESPECIALLY , THE MINIMUM RATE THEREOF .
16 IN ANY EVENT , IT MAY BE NOTED THAT THE EXCLUSION OF RETURN JOURNEYS ON THE DIFFERENT TRANSPORT ROUTES WOULD NEGATE THE PURPOSE OF THE BRACKET TARIFFS INASMUCH AS ON ANY ONE ROUTE CARRIERS IN ONE OF THE MEMBER STATES CONCERNED WOULD BE COMPETING IN RESPECT OF THE OUTWARD JOURNEY OF UNDERTAKINGS IN THE OTHER MEMBER STATE CONCERNED AND VICE VERSA .
17 AS REGARDS ' ' SPECIAL CONTRACTS ' ' , IT IS SUFFICIENT TO NOTE THAT SUCH CONTRACTS MAY BE CONCLUDED ONLY IN CERTAIN CIRCUMSTANCES WHICH ARE STRICTLY DEFINED BY THE PROVISIONS CITED ABOVE ; RETURN FREIGHT IS NOT INCLUDED THEREIN .
18 THE REPLY TO BE GIVEN TO THE TRIBUNAL IS THEREFORE THAT THE PROVISIONS ADOPTED FOR THE IMPLEMENTATION OF ARTICLES 3(E ) AND 75 OF THE EEC TREATY WITHIN THE FRAMEWORK OF REGULATION NO 1174/68 AND COUNCIL REGULATION NO 2831/77 REQUIRE TRANSPORT OPERATORS TO COMPLY WITH THE TARIFFS FIXED AND APPLIED BY THE MEMBER STATES IN ACCORDANCE WITH THE PROVISIONS OF THOSE REGULATIONS AND FAILURE SO TO COMPLY RENDERS THEM LIABLE TO THE PRESCRIBED PENALTIES .
COSTS
19 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND THE COMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE IN THE NATURE OF A STEP IN THE PROSECUTION BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL DE POLICE OF THE FIRST CANTON OF VERVIERS BY A JUDGMENT OF 22 APRIL 1981 , HEREBY RULES :
THE PROVISIONS ADOPTED FOR THE IMPLEMENTATION OF ARTICLES 3 ( E ) AND 75 OF THE EEC TREATY WITHIN THE FRAMEWORK OF REGULATION ( EEC ) NO 1174/68 OF THE COUNCIL OF 30 JULY 1968 ON THE INTRODUCTION OF A SYSTEM OF BRACKET TARIFFS FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES AND COUNCIL REGULATION ( EEC ) NO 2831/77 ON THE FIXING OF RATES FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES REQUIRE TRANSPORT OPERATORS TO COMPLY WITH THE TARIFFS FIXED AND APPLIED BY THE MEMBER STATES IN ACCORDANCE WITH THE PROVISIONS OF THOSE REGULATIONS AND FAILURE SO TO COMPLY RENDERS THEM LIABLE TO THE PRESCRIBED PENALTIES .
