JUDGMENT OF 30.11.1982 — CASE 12/82 MINISTERE PUBLIC v TRINON
In Case 12/82 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Police [Police Court] of the First Canton of Verviers (Belgium) for a preliminary ruling in the proceedings pending before that court between
THE COURT composed of: J. Menens de Wilmars, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco and O. Due, Judges, Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure and the observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, may be summarized as follows:
I — Facts and written procedure
Regulation 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), as amended by Regulation No 293/70 of the Council of 16 February 1970 (Official Journal English Special Edition 1970 (I), p. 90), introduced a system of compulsory tariff brackets for the carriage of goods by road between Member States of the Community, in the form of tariffs prescribed and published by the competent authorities and governing, subject to certain exceptions and derogations, the fixing of transport rates and conditions (Article 1 (1), (2) and (3)).
Bracket tariffs are tariffs laying down maximum and minimum rates. The difference between those two rates constitutes the bracket spread (Article 2 (0).
The bracket spread was fixed by the regulation at 23% of the maximum rate (Anicle 2 (2)).
According to the fifth recital in the preamble to Regulation No 1174/68, the tariffs must be drawn up in such a way as to avoid both abuse of dominant positions and damaging competition.
Each tariff is to be drawn up by reference to a base-rate which is the middle point of the bracket (first subparagraph of Article 3 (1)). The base-rate itself is to be fixed having regard to the average cost of the transport operation, including the general expenses of the business, for a properly managed undertaking enjoying normal conditions of use of its carrying capacity, and to market conditions and is to be such as to provide a fair return for carriers (second subparagraph of Article 3 (1)).
The tariffs may vary according to the circumstances of the service provided, and in particular according to the technical and economic characteristics of the operation in question, the route concerned, the length of the transit period, the tonnage conditions and the type of goods carried (Article 3 (2)).
The tariffs are to be fixed or amended by agreement between the Member States directly concerned, that is, the States on whose territories the goods are to be loaded or unloaded (first subparagraph of Article 4 (1)). The Commission may participate in an advisory capacity in the negotiations; it may submit to the Member States directly concerned proposals designed to produce agreement (first subparagraph of Article 4 (2)).
If an agreement is reached between the Member States directly concerned, it is to be notified forthwith to the Commission and to the other Member States (Article 4 (2) (a)).
If no agreement is reached, the dispute may be referred to the Commission at the request of any of the Member States concerned. After consulting a Committee of Experts, composed of government experts and having a representative of the Commission as Chairman (Article 11), the Commission, acting as soon as possible, is to adopt a decision which is to be notified to the Member States concerned and at the same time communicated to the other Member States. That decision is to take effect after a period of twenty days, unless before the expiry of that period the matter is referred to the Council by a Member State. In such cases, the Council is to give its decision by a qualified majority within twenty days. The decisions so adopted by the Council or the Commission are to remain in force until such time as an agreement is concluded between the Member States concerned or until any further decision is made by the Council or the Commission in accordance with the same procedure (Article 4 (2) (b)).
Each Member State is to bring the tariffs into force within two months following the conclusion of negotiations for the fixing or amendment of tariffs or, as the case may be, following completion of the procedure leading to a decision by the Commission or the Council (second subparagraph of Article 4 (1)). The tariffs are to be communicated by Member States to the Commission (Article 4 (3)).
Bracket tariffs are to be officially published in the Member States concerned. The particulars published are to include the dates of their entry into force; only the maximum rate for each bracket need be published (Article 6).
Rates for any given transport operation may be freely determined within the upper and lower limits of the relevant bracket tariff (first subparagraph of Article 2 (3)).
The conclusion of contracts at transpon rates falling outside the upper or lower limits of the relevant tariff brackets is, as a rule, prohibited (second subparagraph of Article 2(3)). Nevertheless, special contracts may be concluded in writing between a carrier and another party at transport rates outside the upper or lower limits of the tariff brackets subject to the following conditions:
Circumstances must exist which were not taken into account at the time when the tariffs were fixed, as, in particular, where a special contract relates to transport operations having special technical features or where the contraa is made in response to the requirements of competition or where it is entered into for a certain period.
Where the special contract provides for transport rates above the upper limit of the relevant tariff bracket, such contracts must relate to transport operations the technical features of which entail costs significantly higher than the average costs on which the relevant tariff is based, as, in particular, where the goods require special handling during transit; where the vehicle has to be fitted with special equipment, where a special vehicle fitted with permanent special equipment has to be used or where carriage has to be effected at a speed significantly slower than normal traffic speed; where the consignor requires particularly rapid delivery of the goods; where the goods are of a dangerous or offensive nature or where the goods are such that they must be delivered in a single large load or are of abnormal dimensions.
Where the special contract provides for transport rates below the lower limit of the relevant tariff bracket, the tonnage to be carried under any such contract within any three month period must be not less than 500 metric tons (second subparagraph of Article 5 (1) of Regulation No 1174/68, as amended by Regulation No 293/70).
Special contracts must be such as to maintain or increase the carrier's trading returns.
On concluding any special contract the carrier must forthwith communicate the terms thereof to the competent authorities of the Member State where his vehicles are registered, or of the Member State where the goods are to be loaded. When communicating the terms of the contract the carrier must attach all particulars supporting the conclusion of the contract and the rates agreed (first subparagraph of Article 5 (2)).
Member States must, after consulting the Committee, adopt such laws, regulations or administrative provisions as may be necessary for the implementation of the regulation. Such measures must cover, inter alia, the organization of, procedure for and means of carrying out checks on compliance and the penalties applicable in case of breach (Article 12 (1)).
Regulation No 1174/68 came into force on 1 September 1968 and was valid until 31 December 1971. It was provided, however, that it should remain in force for a period of one year in the event of the Council's not having decided before that date on the system to be applied thereafter (Articles 17 and 18). In fact the period of validity of the regulation was repeatedly extended, on the last occasion until 31 December 1977 by Council Regulation No 3181/76 of 21 December 1976 (Official Journal, L 359, p. 13).
Regulation No 1174/68 was replaced from 1 January 1978 by Council Regulation 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 334, p. 22).
On the ground that a single system for the fixing of rates and conditions for the carriage of goods by road between Member States could be achieved only progressively and in parallel to the development of the markets concerned the regulation, as an experiment, offered Member States the choice, on the basis of a common principle, between a non-binding reference tariff and compulsory bracket tariffs (second and third recitals in the preamble).
It is left to the Member States concerned to decide by mutual agreement on the application of one or other of the tariff systems, taking particular account of the economic and technical conditions of the transport market concerned (first subparagraph of Article 2(3)). Subject to compliance with that principle, the Member States may mainuin compulsory tariffs where such uriffs have been applied in pursuance of a Community regulation and may introduce reference uriffs where no Community uriff rules have been applied (second subparagraph of Article 2 (3)).
The reference tariffs are merely recommendations. They provide guidelines for the determination of transpon rates and each transport undertaking has the responsibility of agreeing the rate with its customer according to the market situation and the interests of both parties.
As regards the compulsory bracket tariffs, Regulation No 2831/77 repeats the essential provisions of Regulation No 1174/68.
Moreover, the compulsory tariffs applied at the time of the entry into force of Regulation No 2831/77 are to remain in force until they are replaced by other tariffs (Article 20 (2)) and any laws, regulations or administrative provisions introduced by the Member States pursuant to Regulation No 1174/68 are to remain in force for the compulsory tariffs established pursuant to the new regulation until they are replaced by provisions adopted on the basis of the latter (Article 20 (3)).
The following general implementing measures were adopted in Belgium: the Royal Decree of 25 October 1971 which brought into effect Regulation No 1174/68 (Moniteur Belge [Belgian Official Gazette], 4 November 1971) and the Royal Decree of 17 October 1979 which brought into effect Regulation No 2831/77 (Moniteur Belge, 9 November 1979).
Pursuant to Regulation No 1174/68, the Kingdom of Belgium negotiated and concluded several tariff agreements with the Member States concerned. Thus the Royal Decree of 24 September 1971 (Moniteur Belge, 6 October 1971), adopted in accordance with the Law of 1 August 1960 on the carriage of goods by road for hire or reward (Moniteur Belge, 12 August 1960) and the Law of 18 February 1969 on measures for the implementation of international treaties and instruments relating to transport by road, rail or inland waterway (Moniteur Belge, 4 April 1969), brought into force with effect from 1 November 1971 the tariff for the carriage of goods by road for hire or reward between the Kingdom of Belgium and the Federal Republic of Germany even where such carriage involves transit through a third country.
The transport rate which results from the Royal Decree establishes the hire or reward for the transport of the consignment from the place where it is loaded to the place where it is to be unloaded for delivery, together with the loading and unloading time (Article 6 (1)). The rate is determined separately for each consignment on the basis of the tariff distance, the nature of the goods and the weight of the consignment (Article 6 (2)). Carriers and their clients are free to fix transport rates at their discretion between the maximum and minimum rates of the bracket; the maximum rate is determined with reference to the scales set out in the decree (Article 6 (3)). The transport rate is expressed in Deutschmarks and pfennigs and in Belgian francs (Article 6 (4)).
The Royal Decree of 24 September 1971 was amended by Royal Decrees of 8 September 1978 (Moniteur Belge, 4 October 1978) and of 18 July 1979 (Moniteur Belge, 11 August 1979).
Checks carried out by an inspector from the Ministry of Transport revealed that on 4, 14 and 18 November 1980 Joseph Trinon, a company director residing in Verviers, had transported goods for hire or reward between the Federal Republic of Germany and Belgium at rates significantly lower than the minimum rate of the bracket authorized by the Royal Decree of 24 September 1971, as amended by the Royal Decrees of 8 September 1978 and 18 July 1979.
When summoned to appear before the Tribunal de Police of the First Canton of Verviers, Mr Trinon did not dispute the facts. However, he questioned the validity of the national laws and regulations which he was charged with infringing. He submitted that they were contrary to “both the spirit and the wording of the EEC Treaty”; in particular, he submitted that Article 8 of the Law of 1 August 1960 permitted a national authority to fix prices unilaterally and the Royal Decree of 24 September 1971 made rates fixed bilaterally between two Member States binding.
In its judgment of 22 April 1981, the Tribunal de Police observed that as far as the spirit of the EEC Treaty was concerned, its aim was 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; as regards the wording of the Treaty, the Tribunal de Police expressed 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 transpon.
Haying found that there was a preliminary question as to the compatibility of the relevant Belgian legislation with the EEC Treaty, the Tribunal de Police decided to stay its proceedings, pursuant to Article 177 of the EEC Treaty, until the Court of Justice had given a preliminary ruling on the compatibility of the Belgian legislation with the EEC Treaty.
On appeal by the Procureur du Roi [Public Prosecutor] of Verviers, the Tribunal Correctionnel [Criminal Appeal Court], Verviers, in its judgment of 27 November 1981 upheld the decision of the Tribunal de Police and refered the case back to the latter.
The judgment of 22 April 1981 of the Tribunal de Police of the First Canton of Verviers was lodged at the Court Registry on 14 January 1982.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged on 11 March by the accused in the main proceedings, Joseph Trinon, represented by Philippe de Bournonville, advocate, of St-Vith; on 19 March by the Commission of the European Communities, represented by its Legal Adviser, Etienne Lasnet; and on 23 March 1982 by the Government of the Kingdom of Belgium, represented by the Minister of Transport, assisted by Robert Wijffels, advocate, of Antwerp.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preliminary inquiry. However, it called upon the representative of the accused in the main proceedings at the hearing on the observations contained in the Commission's statement.
II — Written observations submitted to the Court
Joseph Trinon, the accused in the main proceedings, submits that, as a question of fact, his vehicles transported goods at a rate below the legal tariff solely because they were already in the Federal Republic of Germany and therefore it was not necessary to make an extra journey; as a matter of law, the preliminary question referred to the Court by the Tribunal de Police should have been as follows:
“Does the acceptance by a carrier of return freight at a rate below the legal tariff and the failure to observe the requirements as to form and substance of Article 14 of Regulation No 2831/77 contravene the provisions of that regulation when the transport rate is determined on the basis of the reciprocal interests of the customer and the earner, in particular as regards time, place and the cost price, calculated with reference to a system of free competition which ensures a fair return for the carrier?”
Article 14 of Regulation No 2831/77 (Article 5 of Regulation No 1174/68) requires a broad and dynamic approach; in that light it should be noted that it is current practice for a carrier who applies the bilateral tariffs to give his customer a rebate at the end of the financial year in the form of a credit note; the normal tariff is not the general rule.
In the circumstances which gave rise to the prosecution, strict adherence to the system of tariff brackets might impede the setting up of a system of price formation which takes account of the true position of the parties at the time when the offer of and request for return freight is made. The carrier might be prevented from reflecting his lower cost price immediately in the transport rate: thus the competitive advantage gained from the lowering of the cost price would be lost. The quality of the service provided to the customer cannot be disputed; the possibility of damaging competition does not arise.
The automatic application of a compulsory bilateral tariff per kilometre does not appear to be compatible with a competitive economy which precludes the kind of restrictive practices constituted by compulsory rates, even those resulting from a bilateral tariff.
On the facts, any risk of abuse of a dominant position or of damaging competition resulting solely from the rates was excluded; the mutual interests of both the customer and the carrier were safeguarded and the rates charged by the latter assured him of a fair return.
The Government of the Kingdom of Belgium considers that the reference for a preliminary ruling is inadmissible inasmuch as it raises the question of the compatibility of national laws with Community law: in proceedings for obtaining a preliminary ruling the jurisdiction of the Court of Justice is, according to its own case-law, restricted to the interpretation of the EEC Treaty; it is not authorized to give a ruling on a question concerning the compatibility of national laws with the EEC Treaty and may not rule on internal legal measures in the light of the above-mentioned Treaty.
In addition, the Government submits that the reference from the national court is phrased in very general terms and is wholly lacking in deuils; it formulates no questions and is open to the objection of obscuri libelli.
The decision of the national court may, if necessary, be interpreted as raising the question whether Article 8 of the Belgian Law of 1 August 1960, in so far as it permits a national authority to fix prices unilaterally, and the Royal Decree of 24 September 1971, in so far as it makes rates which have been fixed bilaterally between two Member States compulsory, are contrary to Articles 3 (e) and 75 of the EEC Treaty. In that case it should be noted that the bilateral fixing of tariffs between two Member States which is the subject-matter of the Royal Decree of 24 September 1971 was expressly provided for by Regulations Nos 1174/68 and 2831/77, which confirm the compulsory nature thereof; the uriffs were fixed in accordance with Article 4 of Regulation No 1174/68 and met the requirements of the subsequent Regulation No 2831/77. The Royal Decree of 24 September 1971, as amended by the Royal Decrees of 8 September 1978 and 18 July 1979, was therefore wholly compatible with the spirit and the wording of the EEC Treaty.
Moreover, the Royal Decree of 24 September 1971 was issued in accordance with the Law of 18 February 1969 and did not fix rates unilaterally. Thus the objection on the grounds that a unilateral price was fixed, misukenly based on Article 8 of the Law of 1 August 1960, must fail.
The Commission also notes that the Court of Justice, according to its own case-law, may not give a ruling on the compatibility of internal laws with the provisions of Community law in proceedings based on Article 177 of the EEC Treaty; it is, however, within its jurisdiction to provide the national court with all the relevant material for the interpreution of Community law which may enable the court to decide on the compatibility of the national laws with the regulation concerned. In this insunce the preliminary question should be rephrased so that the question before the Court is whether or not national rules such as those in force in Belgium regarding the fixing of rates for road transport are compatible with Community law, with reference not only to Article 3 (e) and Article 75 of the Treaty, but also to the Community regulations concerning the rates applicable to the transport of goods by road between Member States.
An examination of the general legislation applicable in Belgium in the matter of rates for transpon, the general implementing measures of the Community regulations and the specific measures fixing and adjusting compulsory uriffs for transport routes between Belgium and the FR of Germany demonstrates that provisions of that nature come within the framework of the Community regulations and, in ceruin cases, constitute the implementing measures necessary for the proper application of such regulations.
Article 8 of the Law of 1 August 1960 does no more than authorize the executive to lay down rules governing the rates and conditions of transport for hire or reward, having regard to, and in compliance with, the Community regulations in force; in the context of the Community, this provision no longer allows a national authority to fix such rates unilaterally.
The Law of 18 February 1969 and the Royal Decree of 17 October 1979 are within the terms of the Community regulations and serve only to implement them.
The Royal Decrees of 24 September 1971, 8 September 1978 and 18 July 1979 fix compulsory rates, thereby implementing the Community regulations in force; the fixing and adaptation of transport tariffs between Belgium and Germany derive directly and exclusively from those regulations, which are binding.
III — Oral procedure
The accused in the main action, represented by Philippe de Bournonville; the Government of the Kingdom of Belgium, represented by Robert Wijffels, assisted by Johan Vandekerkhof, an expert on transport and Assistant Adviser at the Ministry of Transport; and the Commission, represented by Etienne Lasnet, presented oral argument and their replies to the questions raised by the Court at the hearing on 29 September 1982.
The accused in the main proceedings submitted that, in accordance with its case-law, the Court should hold the question to be admissible, that he could not be indicted under the Belgian Law of 1 August 1960 because Article 8 of that Law could not be regarded as a provision authorizing the executive to implement Community regulations which relate to the negotiation of bilateral tariffs, and that return freight might be the subject of a “special contract” within the meaning of Article 14 of Regulation No 2831/77 (Article 5 of Regulation No 1174/68).
The Government of the Kingdom of Belgium re-affirmed its view that the Court was not required to answer the question in the form in which it was referred to it, and that the contested Belgian Royal Decrees merely implemented the Community regulations, in particular Regulation No 2831/71. The transport rate for an outward and return journey was calculated separately for each consignment; in addition, the tariff was based on a cost price which took into account the fact that some return journeys are unladen.
The Commission again maintained that the disputed national provisions were adopted principally in order to implement the Community regulations. Those regulations were, subject to the necessary implementing measures, directly applicable and Article 14 of Regulation No 2831/77, in providing for the conclusion of special contracts with transport rates outside the bracket, constituted an exception which was not applicable to contracts for return freight.
The Advocate General delivered her opinion at the sitting on 26 October 1982.
Decision
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 Anieles 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 transpon 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 transpon 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 transponed 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 transpon 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: