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COMMISSION OPINION

of 17 May 1989

addressed to the Government of the Kingdom of the Netherlands concerning a draft law on the carriage of goods and passengers by inland waterway.

(Only the Dutch text is authentic)

(89/347/EEC)

By letter of 18 January 1989 the Netherlands Government communicated to the Commission a draft law on the carriage of goods and passengers by inland waterway, pursuant to Article 1 of the Council Decision of 21 March 1962 instituting a procedure for prior examination and consultation in respect of certain laws, regulations and administrative provisions concerning transport proposed in Member States (1), as amended by Decision 73/405/EEC (2).

The letter from the Netherlands Government reached the Commission on 25 January, and in accordance with Article 1 of the abovementioned Decision the Netherlands Government also transmitted the draft law to the other Member States. Pursuant to Article 2 (4) of the Council Decision and in agreement with the Netherlands Government, the two-month period within which the Commission must deliver its opinion has been extended until 25 April 1989.

On the Commission's initiative a consultation meeting with representatives of the Netherlands Government was held in Brussels on 2 March 1989. Pursuant to Article 2 of the Council Decision, the Commission delivers the following opinion:

1. The Commission notes that the draft law concerns the carriage of goods and passengers by inland waterway both on own account and for hire or reward and that it covers the following fields in Dutch inland waterway transport policy: regulation of capacity, access of vessels to transport operations on the waterways in the Netherlands, access to the occupation of carrier by inland waterway, categories of national transport operations for hire or reward and freight allocation system, transport on own-account, transport by tankers, registration of vessels.

The draft law is in the form of a framework law in that some of the areas it covers are to be regulated by implementing measures promulgated as general administrative orders (algemene maatregelen van bestuur) at a later date. The Commission reserves the right to deliver an opinion on all the provisions which will govern the areas covered by the draft law when it has copies of the essential measures to be adopted in the form of general administrative orders.

2. The provisions on the access of vessels to the goods and passenger transport market on the waterways in the Netherlands constitute the incorporation into Dutch law of the measures necessary to implement Council Regulation (EEC) No 2919/85 of 17 October 1985 laying down the conditions for access to the arrangements under the Revised Convention for the Navigation of the Rhine relating to vessels belonging to the Rhine Navigation (1). The draft provisions introduce into the Netherlands the document certifying that a vessel belongs to Rhine Navigation provided for in that Regulation.

The draft law would extend to all Dutch inland waterways the requirement that a vessel, under whatever flag, must carry this document. The Commission would point out that to require the approval of the Dutch Minister to a document certifying that a vessel belongs to Rhine Navigation is contrary to Article 1 of Regulation (EEC) No 2919/85 read in conjunction with Article 2 (1) of the implementing regulation annexed to it. The Netherlands Government is therefore asked to amend the relevant provision in its draft law by abandoning the approval of these documents issued by other Member States.

3. The Commission notes that the draft law also aims to transpose into Netherlands law Council Directive 87/540/EEC of 9 November 1987 on access to the occupation of carrier of goods by waterway in national and international transport and on the mutual recognition of diplomas, certificates and other evidence of formal qualifications for this occupation (4). It should be pointed out that under Article 11 of this Directive the Netherlands Government ought to have enacted the measures to implement the Directive by 30 June 1988 at the latest and that, since that date, it is in breach of Community law by failing to fulfil an obligation under Community legislation.

As to the provisions concerning access to the occupation of carrier, the Commission notes that under Article 15 of the draft law the Minister will be authorized, in cases specified in a general administrative order, to grant derogations from the professional competence condition upon request. In order to avoid any misunderstanding, the Netherlands Government should redraft Article 15 to make it quite clear that this derogation relates only to the exception referred to in Article 4 (2) of the Directive. Apart from that case, the Directive provides for no other possible derogation from the relevant provisions for the condition of professional competence.

4. The introduction of the licence provided for in Article 21 of the draft law without which a carrier will not be authorized to engage in transport operations on Dutch inland waterways, marks a departure from the present situation in that the licence will also be required for transit operations and operations on 'North/South' links, whatever flag the vessel is sailing under. The Netherlands Government representatives said at the consultation meeting on 2 March 1989 that this licence would be subject to no other conditions beyond possession of the certificate of professional competence as a carrier and the document certifying that the vessel belongs to Rhine Navigation. Article 21 of the draft law ought to be redrafted to make it quite clear that no quantitative criteria will apply.

Furthermore, the Minister's approval of the appropriate document issued by the authority of another Member State is contrary to Community legislation. Article 21 should be redrafted in this respect also.

5. The draft law provides that for every special or ordinary occasional national transport operation the vessel's certificate must carry the corresponding endorsement. The Commission asks the Netherlands Government to ensure that carriers from other Member States wishing to engage in these transport operations can obtain the endorsement for the transport sector selected on the basis of the appropriate documents issued by the authorities in their country and under the same conditions as Dutch carriers.

6.1. The conditions concerning the freight allocation system planned for ordinary occasional national transport operations does not change the present regulatory situation. This freight allocation system is organized and administered by the public authority and remains open to carriers of all Member States with no discrimination on the basis of the carrier's nationality.

The Commission draws the attention of the Netherlands Government to the fact that this freight allocation system poses problems in the light of Article 3 (f) and the second paragraph of Article 5 of the EEC Treaty.

Article 42 of the draft law which provides that the Netherlands Government may entrust the organization and management of the freight allocation system to a legal person governed by private law, is manifestly contrary to Article 3 (f) and the second paragraph of Article 5 of the EEC Treaty, read in conjunction with Article 85.

6.2. As regards the procedures for freight rates and conditions for transport operations covered by the rota system, the Commission would point out to the Netherlands Government that endorsing rates previously agreed between the trade associations of shippers and carriers poses problems in the light of Article 3 (f) and the second paragraph of Article 5 of the EEC Treaty taken in conjunction with the provisions of Article 85 of the Treaty.

7. The Commission is communicating this opinion to the other Member States.

Done at Brussels, 17 May 1989.

For the Commission

Karel VAN MIERT

Member of the Commission

(1) OJ No 23, 3. 4. 1962, p. 720/62.

(2) OJ No L 347, 17. 12. 1973, p. 48.

(3) OJ No L 280, 22. 10. 1985, p. 4.

(4) OJ No L 322, 12. 11. 1987, p. 20.