CJEC, November 17, 1993, No C-185/91

THE COURT,

1 By order of 14 June 1991, received at the Court on 22 July 1991, the Landgericht (Regional Court) Koblenz referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 85 and the second paragraph of Article 5 of the EEC Treaty with a view to enabling it to adjudicate as to the compatibility with those provisions of the mandatory approval procedure laid down by German law for road transport tariffs.

2 That question was raised in proceedings between the Bundesanstalt fuer den Gueterfernverkehr (Federal Office for Long-Distance Carriage of Goods by Road, the "Bundesanstalt") and Gebrueder Reiff GmbH & Co. KG ("Reiff") in which the Bundesanstalt seeks payment of the difference between the transport tariff adopted by the Federal Minister of Transport and the price actually invoiced to Reiff by a carrier.

3 In the Federal Republic of Germany, the road haulage industry is governed by the Gueterkraftverkehrsgesetz (Law on the carriage of goods by road, the "GueKG"). By virtue of Paragraph 7 of the GueKG, the intention is in particular to achieve an economically rational distribution of tasks between means of transport on the basis of market pricing and fair competition.

4 The tariffs are fixed by tariff boards on the basis of certain statutory criteria. The boards are made up of tariff experts in the relevant branches of the long-distance haulage industry, chosen by the Federal Minister of Transport from among the persons suggested to him by the undertakings or associations in the sector concerned. The Law makes clear that the members of the Tariff Boards are to discharge their duties in an honorary capacity and are not to be bound by orders or instructions. The Minister may take part in meetings of the boards or be represented in such meetings or delegate that right to agents of the Bundesanstalt (Paragraphs 20a, 21 and 21b of the GueKG).

5 Paragraph 21 of the GueKG provides that the Tariff Boards are to give to an Advisory Committee, to be made up of representatives of haulage undertakings and attached to each Tariff Board, an opportunity to issue an opinion before tariffs are fixed.

6 The decisions of the Tariff Boards require approval by the Federal Minister of Transport, acting in agreement with the Federal Minister for Economic Affairs. The Federal Minister of Transport may, by agreement with the Federal Minister for Economic Affairs, fix the tariffs himself in the stead of the Tariff Board if the public interest so requires. The tariffs fixed and approved are published in the form of an order and are binding on the undertakings (Paragraph 20 of the GueKG).

7 If the freight charge invoiced is lower than that prescribed by the tariff, the undertaking must claim the difference. If it fails to do so, the "equalization" claim is assigned to the Bundesanstalt, which is required to enforce payment in its own name against the shipper (Paragraph 23 of the GueKG).

8 Reiff had a transport operation carried out for a price lower than that prescribed by the tariff and the Bundesanstalt commenced proceedings against it to recover the difference between the price paid to the carrier and the tariff.

9 In those circumstances, the Landgericht Koblenz stayed the proceedings pending a preliminary ruling from the Court on the following question:

"Is the statutory procedure of the Federal Republic of Germany for setting tariffs which is laid down by Paragraph 20 et seq. of the Gueterkraftverkehrsgesetz (Law on the carriage of goods by road) compatible with Article 85(1) and the second paragraph of Article 5 of the EEC Treaty or are the various tariff fixings made pursuant to the aforementioned provisions void for infringing Article 85(1) and the second paragraph of Article 5 in accordance with Article 85(2) of the EEC Treaty?"

10 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

11 It must be noted at the outset that it is not for the Court, in proceedings under Article 177 of the Treaty, to rule as to the compatibility of provisions of national law with those of Community law; however, the Court is competent to provide the national court with all information as to the interpretation of Community law which may help the national court to decide whether the provisions at issue are compatible with the Community rules.

12 It must also be observed that, as the Court held in Joined Cases 209-84 to 213-84 Ministère Public v Asjes [1986] ECR 1425, the competition rules of the Treaty, and in particular those of Articles 85 to 90, apply to the transport sector.

13 Accordingly, the question submitted by the Landgericht Koblenz must be construed as seeking essentially to determine whether Article 3 (f), the second paragraph of Article 5 and Article 85 of the EEC Treaty preclude rules of a Member State which require the tariffs for long-distance road haulage to be fixed by Tariff Boards and made binding on all economic agents, after approval by the public authority, under conditions such as those laid down by the GueKG.

14 It must also be borne in mind that, in itself, Article 85 of the Treaty relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States. The Court has consistently held, however, that Article 85, read in conjunction with Article 5 of the Treaty, requires the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. By virtue of the same case-law, such is the case where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere (see Case 267-86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16).

15 In order to provide a useful answer to the national court, it is therefore necessary to consider first whether legislation such as the GueKG is indicative of the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty.

16 As regards the role of economic agents, the Court has held that the fact that the public authority appoints as members of a body responsible for fixing prices persons proposed by trade organizations which are directly concerned does not exclude the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty if those persons have negotiated and concluded an agreement on prices as representatives of the organizations which proposed them (see Case 123-83 BNIC v Clair [1985] ECR 391).

17 The Tariff Boards provided for by the GueKG are made up of tariff experts from the relevant sectors of the road haulage industry who are not bound by orders or instructions from the undertakings or associations which proposed them to the Federal Minister of Transport for appointment. Those boards cannot therefore be regarded as meetings of representatives of undertakings in the industry concerned.

18 Moreover, the GueKG does not allow the Tariff Boards to fix the tariffs solely by reference to the interests of undertakings or associations of undertakings engaged in transport but requires them to take account of the interests of the agricultural sector and of medium-sized undertakings or regions which are economically weak or have inadequate transport facilities. Furthermore, the tariffs are fixed only after compulsory consultation of an advisory committee made up of representatives of the users of the services.

19 It follows that, under a system for the fixing of road haulage tariffs like that introduced by the GueKG, the members of the Tariff Boards, although chosen by the Federal Minister of Transport on a proposal from the trade organizations directly concerned, cannot be regarded as representatives of the latter, called on to negotiate and conclude an agreement on prices.

20 Secondly, it is necessary to decide whether the public authorities have delegated their powers regarding the fixing of tariffs to private economic agents.

21 The GueKG is intended to secure the best possible road haulage service and entrusts to the Federal Government the task of approximating the conditions of competition as between different means of transport and of ensuring an economically rational division of tasks between them. To that end, the GueKG expressly requires the Federal Minister of Transport to harmonize the services and the prices of the various means of transport in order to avoid unfair competition, in particular between road, rail and river transport.

22 In order to discharge that responsibility, the Federal Minister of Transport not only has the power to establish the Tariff Boards and advisory committees, and to decide on their composition and structure but may also personally attend their meetings or be represented at them or delegate that right to agents of the Bundesanstalt. Furthermore, if the tariffs decided on by a Tariff Board are inimical to the public interest, the Federal Minister of Transport may, by agreement with the Federal Minister for Economic Affairs, fix the tariffs himself in the stead of the Tariff Board.

23 It follows that under a system for the fixing of road haulage tariffs of the kind introduced by the GueKG, the public authorities have not delegated their powers regarding the fixing of tariffs to private economic agents.

24 It must therefore be stated in reply to the question submitted that Article 3 (f), the second paragraph of Article 5 and Article 85 of the EEC Treaty do not preclude rules of a Member State which provide that tariffs for the long distance transport of goods by road are to be fixed by tariff boards and are to be made compulsory for all economic agents, after approval by the public authorities, if the members of those boards, although chosen by the public authorities on a proposal from the relevant trade sectors, are not representatives of the latter called on to negotiate and conclude an agreement on prices but are independent experts called on to fix the tariffs on the basis of considerations of public interest and if the public authorities do not abandon their prerogatives but in particular ensure that the boards fix the tariffs by reference to considerations of public interest and, if necessary, substitute their decision for that of the boards.

Costs

25 The costs incurred by the Belgian, Danish, German, Greek, Spanish, French, Irish, Italian, Netherlands, Portuguese and United Kingdom Governments, and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since, for the parties to the main proceedings, these proceedings are 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,

In answer to the question referred to it by the Landgericht Koblenz, by order of 14 June 1991, hereby rules:

Article 3 (f), the second paragraph of Article 5 and Article 85 of the EEC Treaty do not preclude rules of a Member State which provide that tariffs for the long distance transport of goods by road are to be fixed by tariff boards and are to be made compulsory for all economic agents, after approval by the public authorities, if the members of those boards, although chosen by the public authorities on a proposal from the relevant trade sectors, are not representatives of the latter called on to negotiate and conclude an agreement on prices but are independent experts called on to fix the tariffs on the basis of considerations of public interest and if the public authorities do not abandon their prerogatives but in particular ensure that the boards fix the tariffs by reference to considerations of public interest and, if necessary, substitute their decision for that of the boards.