Report for the Hearing delivered in Case 4/88

I — Facts and procedure in the main proceedings

1. The company Lambregts Transportbedrijf (hereinafter referred to as Lambregts) was the holder of 10 general licences for domestic transport, 11 general licences for international transport and a number of German and French licences for frontier-zone and short-distance transport.

2. General licences for domestic and international transport are issued by a Member State to a transport undertaking in respect of particular vehicles. The undertaking is authorized to carry out transport operations of one or both categories with a vehicle registered in its name. The licence is issued to the undertaking and may not, in principle, be transferred. The undertaking must be established in Belgium and, consequently, must have fulfilled in that country the conditions for admission to the occupation of goods haulage operator.

3. The Belgian transport authorities became suspicious that Lambregts' registered office in Baarle-Hertog might be fictitious, and on 25 August and 7 September 1981 an official made unannounced visits to that office. He reported that the registered office consisted of a permanently sited caravan on which there was no number, name, bell or letterbox and that, according to a postal official, correspondence for Lambregts was delivered to a person residing in Breda (Netherlands).

4. On the basis of that investigation the Director-General of the Bestuur van het Vervoer (Transport Department) informed Lambregts by letter of 2 December 1981 that it had been determined that, although incorporated under Belgian law, the undertaking had no real establishment in Belgium and that its licences were to be withdrawn.

5. By letter of 9 December 1981, Lambregts stated that it had a registered office in Baarle-Hertog, although it admitted that for some time that office had been manned by only one employee who was there only at irregular intervals. Lambregts also emphasized that transport orders were kept in the office so that the drivers, who had keys to the office, could pick them up there, and that since November 1981 an employee was present every day to perform various administrative duties.

6. Upon receipt of that letter, the Transport Department proposed that the Minister should withdraw the licences granted to Lambregts on the ground that no transport activities were carried on at the address in Baarle-Hertog. In its view, Lambregts' observations were not of such a kind as to refute or even in any way to qualify the situation found to exist at that address.

7. On 24 February 1982, the Minister for Transport, acting under Articles 25 and 40(2) of the Royal Decree of 9 September 1967, in the version in force since 1 March 1976, decided to withdraw all the licences for domestic and international transport granted to Lambregts. Those provisions read as follows:

8. In an application lodged on 4 March 1982, Lambregts appealed to the Administrative Division of the Raad van State against that decision. Furthermore, on 5 March 1982, Lambregts applied to the President of the Rechtbank van Eerste Aanleg (Court of First Instance), Brussels, for an order suspending the operation of the abovementioned decision until such time as the Raad van State had ruled. That application was dismissed on 25 March 1982 by the Rechtbank van Eerste Aanleg but was granted on appeal on 18 May 1982 by the Hof van Beroep (Court of Appeal), Brussels. No appeal was lodged against that decision.

9. The Fourth Chamber of the Raad van State, before which the main proceedings for the annulment of the decision withdrawing the transport licences had been brought, decided that Lambregts did not have a place of business in Belgium. That concept must be understood as meaning centre of activities within the meaning of Article 198 of the Vennootschappenwet (Law on Companies). The existence of such a place of business would be demonstrated by the fact that activities forming part of the commercial activity of the undertaking concerned regularly take place there and that the undertaking is there represented by an agent entitled to enter into binding commitments with third parties. The Minister therefore was right in considering that those conditions had not been fulfilled.

10. The Raad van State interpreted Lambregts' submission alleging an infringement of the general principles recognized by the EEC Treaty as invoking the principle of freedom to provide services since the contested rules did not prohibit any Community undertaking from establishing itself in Belgium nor do they make such establishment subject to restrictive or discriminatory conditions, provided that the establishment is genuine.

II — Written observations submitted to the Court

1. The plaintiff in the main proceedings points out that the case raises the question of the possibility of relying directly on Article 75(l)(a) and (b) of the EEC Treaty before a national court, in other words, the question of whether it has direct effect. After reviewing the Court's case-law on the direct effect of provisions of the EEC Treaty, the plaintiff sets out the conditions which Community provisions must fulfil in order to have direct effect, namely that there be a clear and unconditional obligation, that there be no discretion in the implementation of the provision at issue and that no implementing measures have to be adopted by the Member States or Community institutions.

2. The Belgian Government first states that, by virtue of Directive 74/561/EEC, cited above, any person wishing to establish himself in Belgium as a road haulage operator in national and international transport operations must meet and fulfil the conditions for admission to that occupation in force in Belgium, laid down in the Royal Decree of 5 September 1978. It points out that the conditions for admission to the occupation of road haulage operator are merely a preliminary requirement in order to be regarded as a trader in that sector and that they do not include any requirement of establishment or nationality.

3. The Netherlands Government points out the significance of the judgment of the Court of 22 May 1985 in determining whether Article 75(l)(a) and (b) of the EEC Treaty confers rights on nationals of the Member States upon which they may rely before national courts in respect of conduct engaged in before that date, that is to say, 24 February 1982, at least in so far as that provision requires the Council to introduce freedom to provide transport services.

4. The Commission observes that Article 75 does not grant rights directly to Community nationals, nor does it impose precise and unconditional obligations on the Member States from which nationals of the Member States may indirectly derive rights. It considers that the fact that the Council is required, before the end of the transitional period, to adopt measures to ensure freedom to provide services in the transport sector is not as such sufficient to conclude that Article 75 has direct effect.

1 Language of the case: Dutch.