1 By judgment of 13 August 1993, received at the Court on 6 October 1993, the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty six questions concerning the interpretation of Article 5(1) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport (OJ 1989 L 116, p. 25, hereinafter the "Council Regulation"), the interpretation and validity of Articles 1(2) and 8 of Commission Regulation (EEC) No 1102/89 of 27 April 1989 laying down certain measures for implementing Council Regulation (EEC) No 1101/89 (OJ 1989 L 116, p. 30, hereinafter the "Commission Regulation"), the interpretation of Article 6(4) of the Commission Regulation and, finally, the validity of Letter No 56765 of 29 June 1990 addressed by the Commission to the Kingdom of the Netherlands determining the applications for scrapping premiums which may be accepted by the Funds.
2 Those questions were raised in the course of legal proceedings between Mr Teirlinck and the Minister van Verkeer en Waterstaat (Minister of Transport and Waterways, hereinafter "the Minister") concerning the rejection of an application for scrapping premium for a pusher craft on the ground that the financial resources in the account used for this type of vessel were not sufficient to cover the premium.
3 The Council Regulation seeks to bring about a substantial reduction in structural overcapacity in inland waterway transport. To that end it provides for a scrapping scheme coordinated at Community level applying, under Article 2 thereof, to both cargo-carrying vessels and pusher craft.
4 Under Article 3(1) of the Council Regulation, each of the Member States whose inland waterways are linked to those of another Member State and the tonnage of whose fleet is above 100 000 tonnes is to set up a Scrapping Fund.
5 Under Article 4(1), for each vessel covered by the Council Regulation, the owner is to pay a contribution to one of those Funds.
6 Article 5(1) provides that any owner scrapping a vessel is to receive from the Fund to which his vessel belongs and in so far as the financial means are available a scrapping premium under the conditions set out in Article 6.
7 Article 6(1) provides that: "The Commission shall lay down separately for dry cargo carriers, tankers and for pusher craft:
° the rate of the annual contribution to the Fund for each vessel,
° the rate of the scrapping premiums,
° the period covered by the scrapping schemes, during which scrapping premiums will be paid, and the conditions under which the premiums may be obtained,
° the adjustment coefficients for each type and category of inland waterway vessel ...".
Article 6(4) provides that contribution are to be "fixed at a level allowing the Funds sufficient financial resources to make an effective contribution to reducing the structural imbalance between supply and demand in the inland waterway transport sector, taking into account the difficult economic position of this sector." Under paragraph 5, the Commission is to lay down the period during which scrapping premiums may be obtained and the conditions for granting these premiums on the basis of the objectives to be attained, the vessel types or categories and the financial resources of the Funds.
8 Finally, Article 7 of the Council Regulation provides for advance payments, in the form of loans, in order to enable a coordinated scrapping scheme to start operating immediately. Under Article 3(3) of the Council Regulation, each Fund must consist of two separate accounts, one for dry cargo carriers and pusher craft, the other for tanker vessels. Article 5(2) provides for there to be mutual financial support between the Funds with regard to the separate accounts mentioned in Article 3(3), and that such mutual support is to come into play on the repayment of the interest-free loans mentioned in Article 7, in order to ensure that the time-limit for repayment of those loans is the same for all the Funds. The Commission is directed by Article 6(6) to lay down detailed rules for the mutual financial support referred to in Article 5(2).
9 The Commission Regulation lays down certain measures for implementating Article 6 of the Council Regulation. Article 1 of the Commission Regulation is in the following terms:
"1. This Regulation fixes, inter alia, the annual contributions, the scrapping premiums and the conditions under which they may be obtained in respect of the vessels referred to in Article 2 of Council Regulation (EEC) No 1101/89 in view of the need to reduce fleet capacity by 10% in respect of dry cargo vessels and pusher craft and by 15% in respect of tanker vessels.
2. A total budget of ECU 130,5 million is considered necessary, ECU 81,2 million thereof for dry cargo vessels, ECU 44,3 million for tanker vessels and ECU 5 million for pusher craft."
10 Article 3(1) of the Commission Regulation sets the annual contributions to the Scrapping Funds separately for the three types of vessels in question, namely dry-cargo vessels, tanker vessels, and pusher craft. Similarly, Article 5(1) of the Commission Regulation sets separately for each type of vessel the rates of scrapping premium which may be applied for, and provides for the total amount of those premiums to be within a bracket ranging from 70 to 100% of those rates.
11 In accordance with Article 6(2) of the Commission Regulation, applicants for a scrapping premium must indicate in their applications the percentage of the rate which they wish to receive as a premium for scrapping their vessels. That percentage, referred to as the "premium-rate percentage", may vary from 70 to 100% of the applicable rate.
12 The first subparagraph of Article 6(3) then provides that valid applications for scrapping premiums amounting to 70% of the rates set out in Article 5(1) are to be deemed to be accepted within the limits of the financial resources available in the various accounts, as provided for in Article 1(2). Under Article 6(4), where the application is for a premium exceeding 70% of the aforesaid rates, the Fund authorities must inform the applicant in writing, before 1 September 1990, whether the application has been accepted or refused.
13 Under Article 8(4), if the financial resources required to cover valid applications are less than the funds available in the various accounts referred to in Article 1(2), the applications for scrapping premiums are to be deemed to be accepted in respect of the premium percentages applied for. On the other hand, if the finances required to cover valid applications for scrapping premiums exceed the financial resources available in the various accounts, Article 8(1) provides that "the premium-rate percentage indicated by the vessel owner in his application shall serve as a selection criterion, in that applications for lower percentages shall be given priority over those for higher percentages." In that connection Article 8(2) directs the Commission, with the help of the authorities of the various Funds, to draw up three "joint lists" of valid applications for scrapping premiums for the three types of vessel, starting with the lowest premium-rate percentage. Paragraph 3 of that article requires the different Funds to "continue to grant scrapping premiums in accordance with the list, until the financial resources available in the various accounts referred to in Article 1(2) are used up."
14 Mr Teirlinck is the owner of a pusher craft registered under the name of "Tonny". On 27 April 1990 he applied under Article 5(1) of the Council Regulation for a scrapping premium for that vessel. In his application Mr Teirlinck stated that he was seeking 97% of the maximum rate provided for in Article 5 of the Commission Regulation. On the same date he also applied for a scrapping premium for a dry-cargo vessel named "Neptunus III."
15 On 2 July 1990 the Minister granted the application relating to the vessel, Neptunus III, but on 19 September 1990, that is after expiry of the period referred to in Article 6(4) of the Commission Regulation, rejected the application relating to the vessel "Tonny" on the ground that the financial resources in the account for pusher craft were insufficient to cover it. The Minister' s finding was based on Letter No 56765 addressed by the Commission to the Netherlands authorities on 29 June 1990.
16 It is apparent from that letter that on 15 June 1990 the representatives of the States concerned and of the Scrapping Funds met in order to examine the lists of applications for scrapping premiums received by the different national Funds.
17 On the basis of those lists it was found that, for dry-cargo vessels and tanker vessels, the amount necessary to cover all valid applications for scrapping premiums was within the budgetary resources available in the accounts relating to those categories of vessel. Consequently, in accordance with Article 8(4) of the Commission Regulation, all the valid applications for scrapping premiums were accepted in respect of the premium percentages applied for.
18 However, in the case of pusher craft, the total amount of scrapping premium applied for appeared to exceed the financial resources available for that category. The priority procedure provided for in Article 8(1) (2) and (3) of the Commission Regulation was therefore applied. In collaboration with the authorities of the various Funds, the Commission drew up the list of valid applications which was subsequently appended to Letter No 56765. In view of the limits on financial resources, it was decided that only applications for a premium percentage of 70% of the applicable rate could be accepted. The application concerning the vessel "Tonny", which was for a premium percentage of 97%, was therefore rejected.
19 Mr Teirlinck appealed to the College van Beroep voor het Bedrijfsleven against the Minister' s decision of 19 September 1990 rejecting his application for a scrapping premium for the vessel "Tonny".
20 In the main proceedings Mr Teirlinck asserts first of all that his application for scrapping premium was wrongly rejected on the ground that there were insufficient financial resources in the account for pusher craft provided for in Article 1(2) of the Commission Regulation. He argues in that connection that the scrapping premium applied for ought to have been charged to the common account provided for in Article 3(3) of the Council Regulation for dry-cargo carriers and pusher craft whose total available resources were sufficient. That solution, it appeared to him, was all the more compelling since the vessels "Tonny" and "Neptunus III" were used solely in combination to transport dry cargo.
21 Mr Teirlinck further considers that the provisions of Article 1(2) in conjunction with Article 8 of the Commission Regulation, in providing for the establishment of a separate account for pusher craft, are incompatible with Article 3(3) of the Council Regulation, and that therefore the Commission Regulation should be declared invalid.
22 Finally, Mr Teirlinck considers that the Minister' s decision rejecting his application is invalid on the ground that it was adopted on 19 September 1990 and therefore infringed Article 6(4) of the Commission Regulation.
23 Taking the view that the dispute raised questions concerning the interpretation or validity of certain provisions of the Council and Commission Regulations, and the validity of certain provisions of the Commission Regulation and of the Commission' s decision contained in Letter No 56765 of 29 June 1990, the College van Beroep voor het Bedrijfsleven decided to stay the proceedings and requested the Court to give a preliminary ruling on the following questions:
1. Must Article 5(1) of Council Regulation (EEC) No 1101/89 be interpreted as meaning that a valid application for scrapping premium for an inland waterway vessel to which that regulation applies cannot be refused so long as the limit on the total available funding for the coordinated scrapping schemes has not yet been reached?
2. If Question 1 is answered in the negative, must Article 5(1) of Regulation No 1101/89 be interpreted as meaning that a valid application for scrapping premium for a pusher craft cannot be refused so long as the limit on total financial resources at the disposal of the Funds in the common account for dry-cargo carriers and pusher craft, as provided for in Article 3(3) of that regulation, has not been reached?
3. Must the provisions of Article 1(2) of Regulation (EEC) No 1102/89, in conjunction with the provisions of Article 8 of that regulation, be interpreted as meaning that a valid application for a scrapping premium for a pusher craft must be refused if the financial resources needed to accept the application exceed the amount of ECU 5 million referred to in Article 1(2) for pusher craft from the Member States concerned, notwithstanding the fact that the amount referred to therein for dry-cargo vessels and/or tanker vessels is not used up after approval of all applications for scrapping premiums in those two categories?
4. If Questions 2 and 3 are answered in the affirmative, are the abovementioned provisions of Regulation (EEC) No 1102/89 compatible with Community law, in particular the provision in Article 3(3) of Regulation No 1101/89 that each Fund is to consist of two separate accounts?
5. Is Commission Letter No 56765 of 29 June 1990, signed on behalf of the Director-General for Transport and addressed to the Kingdom of the Netherlands, to be considered a valid act?
6. If the time-limit laid down in Article 6(4) of the Commission Regulation is not complied with, must an application for a scrapping premium be deemed to have been accepted?
The first and second questions
24 By its first question, the national court seeks to ascertain whether Article 5(1) of the Council Regulation must be interpreted as meaning that a valid application for scrapping premium must be accepted if the aggregate financial resources available to the Funds of the Member States concerned are sufficient. If the first question is answered in the negative, the national court wishes to know whether that same provision must be interpreted as meaning that an application for a scrapping premium for a pusher craft must be accepted if the total resources available in the common account for pusher craft and dry-cargo vessels referred to in Article 3(3) of the Council Regulation are sufficient.
25 In order to reply to those questions it is necessary to examine the scheme set up by the Council Regulation with a view to bringing about structural improvements in inland waterway navigation.
26 As explained in the sixth recital in the preamble to the Council Regulation, there is structural overcapacity in cargo-vessel fleets operating on the inland waterways of the States concerned in every sector of the inland waterway transport market. On the basis of that finding it is advocated that the measures to be adopted to bring about a substantial reduction in that excess cargo capacity must be generally applicable and cover all cargo vessels and pusher craft. In the third recital the Council stresses the need to introduce for this purpose a scrapping scheme coordinated at Community level.
27 It therefore appears that the Council Regulation seeks to bring about structural improvements in the market by means of a programmed and balanced reduction in the number of all types or categories of vessel.
28 Under Article 5(1) of the Council Regulation, any owner who arranges for the breaking up of the hull of his vessel (cargo vessel or pusher craft) is to receive a scrapping premium from the Fund to which his vessel belongs in so far as the financial means are available, and subject to the conditions set out in Article 6.
29 Under Article 6(1), the Commission is to lay down separately for the three categories of vessel making up the inland fleets, namely dry-cargo carriers, tankers and pusher craft, the rate of the annual contributions to be paid to the Fund for each vessel and the rate of the scrapping premiums. The second subparagraph of Article 6(4) provides, moreover, that the period for which the contributions are paid is not to exceed ten years.
30 It follows from these various features that, under the scheme laid down by the Council, the Commission must determine in advance the amount of financial resources intended to bring about or, at least to be conducive to, an actual reduction in carrying overcapacity. That presupposes that the Commission must first set itself a result to be achieved as regards the reduction in the size of excessive fleets. Thus, Article 6(5) directs the Commission to lay down a number of objectives to be attained in regard to the reduction of cargo capacity. Even if it is theoretically possible to arrange for the attainment of those objectives in different ways, it is none the less in conformity with the spirit of the scheme for those objectives to be set on the basis of a stated amount of capacity reduction predetermined for each type or category of vessel. Consequently, for the attainment of each one of these objectives an appropriate budget is to be allocated, within the limits, of course, of the aggregate financial resources for structural improvements in the market in question at the disposal of the Scrapping Funds.
31 Accordingly, the scrapping premiums relating to a type or a category of vessel may be granted by the Funds only within the limits of the budget set by the Commission for attaining the aim of reducing capacity in regard to each type or category of vessel.
32 Accordingly, in order not to frustrate the objectives of a coordinated and balanced reduction in cargo-carrying capacity laid down by the Commission, it is necessary to reject Mr Teirlinck' s argument that an application for a premium made by the owner of a pusher craft must be accepted when the financial resources available in the common account for dry-cargo vessels and pusher craft referred to in Article 3(3) of the Council Regulation are sufficient as a whole, even if the resources available in the account earmarked by the Commission for pusher craft alone have been used up.
33 The purpose of Article 3(3) of the Council Regulation is not to specify the limits of the resources available for financing scrapping premiums but rather to facilitate mutual financial support between the national Funds for the two separate accounts referred to therein, one concerning dry-cargo vessels and pusher craft, the other tanker vessels.
34 Under Article 5(2) of the Council Regulation, that mutual financial support comes into play on repayment of the interest-free loans granted by the Member States concerned to the Fund set up in their territory so that a coordinated scrapping scheme can start operating immediately; and its purpose is to ensure that the time-limit for repayment of these loans is the same for all the Funds.
35 The reason why Article 3(3) provides for separate accounts for dry-cargo vessels and for tankers is that, as stated in the eighth recital in the preamble to the Council Regulation, the market for the transport of dry cargo is different in economic terms from the market for the transport of liquid cargo. Furthermore, the Commission explained that pusher craft are generally used to push dry-cargo barges and the market which they form is too small to justify a distinct financial mechanism. That is why they were included in the account provided for dry-cargo vessels.
36 In the light of the foregoing, the reply to the first and second questions submitted for a preliminary ruling must be that Article 5(1) of the Council Regulation is not to be interpreted as meaning that a valid application for a scrapping premium must be accepted if the aggregate financial resources available to the Funds of the Member States concerned are sufficient. Nor is that provision to be interpreted as meaning that an application for a scrapping premium for a pusher craft must be accepted if the financial resources available in the common account for dry-cargo vessels and pusher craft, referred to in Article 3(3) of the Council Regulation, are sufficient as a whole.
The third question
37 By its third question the national court essentially seeks to ascertain whether Article 1(2) and Article 8 of the Commission Regulation must be interpreted as meaning that a valid application for a scrapping premium for a pusher craft must be rejected when the financial resources required to cover it exceed the budget of ECU 5 million provided for in Article 1(2) for pusher craft, notwithstanding the fact that the other budgets mentioned in that provision for dry-cargo vessels and/or tanker vessels are not used up after all the applications for scrapping premiums relating to those two types of vessel have been accepted.
38 It appears from Article 1 of the Commission Regulation that, in order to reduce fleet capacity by 10% in respect of dry-cargo vessels and pusher craft and by 15% in respect of tanker vessels, a total budget of ECU 130.5 million was considered necessary, ECU 81.2 million thereof for dry-cargo vessels, ECU 44.3 million for tanker vessels and ECU 5 million for pusher craft.
39 Separate accounts were therefore established for dry-cargo vessels, for tankers and for pusher craft. Each account has available to it a certain amount to pay scrapping premiums for the type of vessel for which it was established. Since those sums were intended to finance scrapping premiums to be paid in order to reduce overcapacity up to the amount of the percentage provided for, the funds in the account specifically allocated to a certain type of vessel may not be used in order to finance scrapping premiums relating to another type of vessel. That is confirmed by Article 8 of the Commission Regulation.
40 Accordingly, the reply to the third question must be that Article 1(2) and Article 8 of the Commission Regulation must be interpreted as meaning that a valid application for a scrapping premium for a pusher craft must be rejected when the financial resources required to cover it exceed the budget of ECU 5 million provided for in Article 1(2) for pusher craft, notwithstanding the fact that the other budgets mentioned in that provision for dry-cargo vessels and/or for tanker vessels are not used up after all the applications for scrapping premiums relating to those two types of vessel have been accepted.
The fourth question
41 By its fourth question the national court essentially seeks to ascertain whether the Commission Regulation is invalid on the ground that Article 1(2) and Article 8 thereof infringe Article 3(3) of the Council Regulation.
42 As already stated above, the latter provision provides for a common account for dry-cargo carriers and pusher craft, whereas under Article 1(2) and Article 8 of the Commission Regulation a scrapping premium for a pusher craft must be refused when the financial resources required to cover it exceed the budget of ECU 5 million provided for in Article 1(2) for pusher craft, even if sufficient resources remain in the account used for dry-cargo vessels after all valid applications for scrapping premiums in respect of that category of vessel have been accepted.
43 According to the national court, Article 1(2) and Article 8 of the Commission Regulation thus provide for a more specific and more restrictive allocation of budgetary resources than does Article 3(3) of the Council Regulation.
44 In that connection it has been pointed out above that Article 3(3) of the Council Regulation provides for two separate accounts for the sole purpose of ensuring mutual financial support between the Funds, and that it does not concern the question of the financial resources needed for the grant of scrapping premiums. The budgets mentioned in Article 1(2) of the Commission Regulation and adopted for each type of vessel on the basis of the objectives to be attained in respect of different vessel types, in accordance with Article 6(5) of the Council Regulation, in fact constitute the "financial means ... available", referred to in Article 5(1) of the Council Regulation.
45 It does not therefore appear that Articles 1(2) and 8 of the Commission Regulation are incompatible with Article 3(3) of the Council Regulation.
46 The reply to the fourth question must therefore be that examination of the points raised has disclosed no factor of such a nature as to affect the validity of the Commission Regulation.
The fifth question
47 By its fifth question the national court asks whether Letter No 56765 which was addressed by the Commission to the Netherlands Government on 29 June 1990 and which formed the basis for the Minister' s rejection of the application for a scrapping premium lodged by Mr Teirlinck for the vessel "Tonny" is a valid act.
48 It appears from that letter that the Commission merely applied the procedure provided for in Article 8(1), (2) and (3) of the Commission Regulation. Since those provisions are valid and it does not appear that the Commission wrongly implemented them or misinterpreted the substantive rules concerned, the validity of the Commission' s letter cannot be called in question.
49 The reply to the fifth question must therefore be that examination of the points raised has disclosed no factor of such a nature as to affect the validity of the decision contained in Letter No 56765 addressed by the Commission to the Netherlands Government on 29 June 1990.
The sixth question
50 By its sixth question the national court asks whether Article 6(4) of the Commission Regulation must be interpreted as meaning that an application for a scrapping premium amounting to more than 70% of the rates laid down in Article 5 for each type or category of vessel must be deemed to have been accepted when the Fund authorities did not inform the applicant in writing, before 1 September 1990, of the result of his application.
51 The absence of a reply from the national Fund authorities within the period laid down in Article 6(4) of the Commission Regulation does not automatically mean that the application is accepted.
52 The other alternative would run counter to the objectives of the Council and Commission Regulations. As the Netherlands Government observes, the scrapping premiums thus granted would in fact be likely to exceed the financial resources of the Funds concerned. Furthermore, that solution would be contrary to other provisions of the Commission Regulation according to which scrapping premiums may be paid only within the limits of the financial resources available.
53 Moreover, Article 6(3) of the Commission Regulation expressly provides that valid applications for scrapping premium amounting to 70% of the rates set out in Article 5(1) and (2) are to be deemed to be accepted by the Fund within the limits of the financial resources available in the various accounts, as provided for in Article 1(2), and that, in such a case, the Fund authorities are to confirm their acceptance of applications within two months of receipt.
54 However, none of the relevant Community rules provides for applications for scrapping premiums amounting to more than 70% of the rates set out in Article 5 of the Commission Regulation to be accepted.
55 The Commission Regulation therefore establishes two separate regimes, depending on whether the percentage sought in applications for scrapping premiums is equal to or greater than 70% of the rates laid down in Article 5.
56 The reply to the sixth question must therefore be that Article 6(4) of the Commission Regulation must be interpreted as meaning that an application for a scrapping premium amounting to more than 70% of the rates laid down for each type or category of vessel is not to be deemed to be accepted when the Fund authorities did not inform the applicant in writing, before 1 September 1990, of the result of his application.
Costs
57 The costs incurred by the Netherlands Government and by 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, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven, by judgment of 13 August 1993, hereby rules:
1. Article 5(1) of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport is not to be interpreted as meaning that a valid application for a scrapping premium must be accepted if the aggregate financial resources available to the Funds of the Member States concerned are sufficient. Nor is that provision to be interpreted as meaning that an application for a scrapping premium for a pusher craft must be accepted if the financial resources available in the common account for dry-cargo vessels and pusher craft, referred to in Article 3(3) of the abovementioned regulation, are sufficient as a whole.
2. Article 1(2) and Article 8 of Commission Regulation (EEC) No 1102/89 of 27 April 1989 laying down certain measures for implementing Council Regulation (EEC) No 1101/89 on structural improvements in inland waterway transport must be interpreted as meaning that a valid application for a scrapping premium for a pusher craft must be refused when the financial resources required to cover it exceed the budget of ECU 5 million provided for in Article 1(2) for pusher craft, notwithstanding the fact that the other budgets mentioned in that provision for dry-cargo vessels and/or for tanker vessels are not used up after all the applications for scrapping premiums relating to those two types of vessel have been accepted.
3. Examination of the points raised has disclosed no factor of such a nature as to affect the validity of the Commission regulation.
4. Examination of the points raised has revealed no factor of such a nature as to affect the validity of the decision contained in Letter No 56765 addressed by the Commission to the Netherlands Government on 29 June 1990.
5. Article 6(4) of the Commission Regulation is to be interpreted as meaning that an application for a scrapping premium amounting to more than 70% of the rates laid down for each type or category of vessel is not to be deemed to be accepted when the Fund authorities did not inform the applicant in writing, before 1 September 1990, of the result of his application.
