Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The main action, in connection with which the present reference for a preliminary ruling is made, relates to the question whether national measures regarding load capacity for the purposes of international carriage of goods by road are compatible with Community law. The facts may be summarized as follows:

The plaintiff in the main action, D. J. Smit Transport BV, whose registered office is in The Hague (hereinafter referred to as Smit) is a transport undertaking specializing mainly in international removals. According to the Netherlands Wet Autovervoer Goederen [Law governing the carriage of goods by motor vehicle] of 4 August 1951 (Staatsblad 342) and the administrative regulations adopted for implementation thereof, a permit for international carriage of goods is required for transport operations of that kind. In order to obtain such a permit the undertaking in question must already possess a transport permit for national carriage of goods. The purpose of both provisions is to ensure control over the load capacity used for the carriage of goods and therefore a total capacity, expressed in tonnes is prescribed for each undertaking, at a level which takes into account, inter alia, the need for the capacity and the use to which it is to be put. There is therefore a connection between the capacity assigned to national transport and that assigned to international transport, in so far as the latter is deducted from the former.

Smit, whose fleet of vehicles has a total load capacity of 30.1 tonnes, has a permit for national transport limited to a total capacity of 50.1 tonnes which is valid until 1990. For transport to and from all European countries it received a permit limited to 18 tonnes which was valid until 3 June 1981.

On 3 April 1979 Smit applied to have that capacity increased to 36.29 tonnes — its total capacity at that time — so as to be able to use its whole fleet of vehicles for transport purposes at the same time. However the Commissie Grensoverschrijdend Beroepsgoederenvervoer van de Stichting Nedcrlandsche Internationale Wegvervoer Organisatie rejected that application by a decision dated 13 September 1979 on the ground, inter alia, that it was not in the general interests of transport to increase capacity when there was no actual demand for it. Investigations had shown that the applicant was not using its authorized transport capacity to the full. That decision was challenged by Smit on 10 December 1979 by means of an application to the Crown in which it argued that the limitation on its load capacity was contrary to the First Council Directive of 23 July 1962 on the establishment of certain common rules for international transport (carriage of goods by road for hire or reward) (Official Journal, English Special Edition, 1959-62, p. 267), especially Articles 1 (3) and 3 thereof.

Article 1 of that directive provides as follows :

Paragraph (3) of that article provides that the types of carriage listed in Annex II, item (5) of which includes the activities carried out by the plaintiff in the main proceedings, are no longer to be subject to a quota system. For those types of carriage it may, however, be necessary to obtain further authorization provided no quantitative restriction is involved, which is not the case with respect to the types of carriage referred to in Annex I.

Finally, Article 3 of the directive provides as follows:

The Raad van State, Afdeling voor de Geschillen van de Bestuur, ordered the proceedings to be stayed and on 6 April 1982 referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty:

My views on the questions submitted are as follows:

1. First question

In submitting this question the court making the reference seeks clarification as to whether the First Council Directive on the establishment of certain common rules for international transport has direct effect in the sense that individuals may rely on it before the courts of the Member States with the result that any national provision which is incompatible with it may not be given effect. The Court of Justice has consistently held in numerous cases that directives have such an effect and at the same time has stressed that individuals are able to rely on the relevant provision as against provisions of national law which are incompatible with it, if the period prescribed for the incorporation of the directive into national law has expired and the provision is unconditional and sufficiently precise as regards its subjectmatter.

As has been rightly emphasized by the Governments of the Kingdom of Belgium, the Federal Republic of Germany, the French Republic and the Kingdom of the Netherlands and also by the Commission, which have submitted observations, those requirements are satisfied in this case. Article 1 of the directive imposes in that regard a precise and unequivocal obligation, which allows no margin of discretion, whereby the Member States are required to liberalize the types of carriage referred to in the directive by the end of 1962 at the latest and to abandon any form of quota system, while Article 3 lays down the scope of application of the directive. It follows that the directive has direct effect in the sense that the persons to whom it applies may rely upon it directly, and in particular upon the obligation imposed by Article 1 (3), in order to contest before the courts of the Member States national legislation which is incompatible with it.

2. Second question

This question is concerned with the interpretation of Articles 1 (3) and 3 of the directive and its purpose is to enable the court making the reference to decide whether the Netherlands measures limiting load capacity are in conformity with the provisions of those articles. In this connection the first problem to be considered is whether such a restriction on the permitted total capacity of international transport undertakings established in the Netherlands in fact falls within the scope of the directive.

3. Third question

If it is found that the directive in question does not disallow national rules regulating load capacity of the type at issue applicable to undertakings established in the Member State in question, the court making the reference wishes to know whether such rules are prohibited by Article 7 of the EEC Treaty if a Member State subjects its own transport undertakings to stricter requirements than those which apply under Community law to undertakings established in other Member States.

As the governments which have taken part in these proceedings and the Commission have rightly pointed out, this question, which deals with the problem of so-called reverse discrimination, should be answered in the negative. In this context it is sufficient to refer to the longstanding case-law of the Court of Justice, according to which the principle of nondiscrimination embodied in Article 7 does not prohibit different treatment for nationals of different Member States provided that the distinction arises from the differing rules of the individual Member States which have not yet been harmonized by Community law. The important point is simply that the national rules may not, directly or indirectly, make a distinction on the ground of the nationality of the traders. Consequently, as the Court of Justice stated expressly in the Oebel case, Article 7 is not infringed by national rules which are applicable not on the basis of the nationality of traders, but simply on the basis of their location.

In conclusion, therefore, I propose that the Court should answer the questions submitted by the Netherlands Raad van State as follows:

1 Translated from the German

2 See the judgment of 17 December 1970 in Case 33/70 SACE Sp4. Ministry for finance of the Italian Republic [1970] ECR 1213, the judgment of 19 January 1982 in Case 8/81 Ugula Becker v Finanzamt Munsitr-Invenstadt [1982] ECR 53, and the judgment of 18 June 1982 in Case 255/81 RA Great Finanzamt GK Famburg ECR 235

3 See the judgment of 13 February 1969 in Case 14/68 Walt Wilhelm ami Others v Bundeskartellamt [1969] ĽCR 1, the judgment of 14 July 1981 in Case 155/80 Summary proceedings against Sergius Oebel [1981] LCR 1993, and the judgment of 27 October 1982 in Joined Cases 35 and 36/82 Elenina Eiselina Christina Morson anil Others v State ol the Netherlands and Others [1982] ECR 2723.

4 See the judgment of 13 February 1969 in Case 14/68 Walt Wilhelm ami Others v Bundeskartellamt [1969] ĽCR 1, the judgment of 14 July 1981 in Case 155/80 Summary proceedings against Sergius Oebel [1981] LCR 1993, and the judgment of 27 October 1982 in Joined Cases 35 and 36/82 Elenina Eiselina Christina Morson anil Others v State ol the Netherlands and Others [1982] ECR 2723.