Report for the Hearing in Case C-17/90

I — Legislative background

1. The plaintiff is an undertaking established in the Federal Republic of Germany engaged in the transport of goods within Germany under an authorization issued pursuant to the Güterkraftverkehrsgesetz (Law on the Carriage of Goods by Road, hereinafter referred to as the GüKG). It wished to enter into contractual relations with Transvenlo, a carrier established in the Netherlands, under which that carrier would undertake to carry out the longdistance transport of goods within the Federal Republic of Germany. To that end, it had submitted a request for an authorization to the Bundesanstalt für den Güterfernverkehr (Federal Office for the Long-Distance Carriage of Goods). The Bundesanstalt für den Güterfernverkehr refused to grant an authorization because it took the view that the plaintiff's intention was unlawful because internal goods transport may be carried on only by a carrier established in and authorized by the Federal Republic of Germany.

2. The plaintiff thereupon applied to the Verwaltungsgericht (Administrative Court) Cologne, for a declaration that it was entitled to arrange for Transvenlo to carry out the internal transport of goods within the Federal Republic of Germany and to agree, in the context of that contract, on carriage costs lower than those determined by the German authorities in accordance with the abovementioned legislation. The action was unsuccessful both in the Verwaltungsgericht and, on appeal, in the Oberverwaltungsgericht (Higher Administrative Court).

3. The Oberverwaltungsgericht noted that according to the legislation in question internal goods transport in the Federal Republic of Germany may be carried on only by a carrier who has a place of business in the Federal Republic of Germany and who has been issued with the relevant authorization under the system of quotas fixed by the Federal Government.

4. The plaintiff lodged an appeal on a point of law against that decision. It claimed that the restrictions under the national legislation on the services of carriers who are not established in the Federal Republic of Germany, but are established in other Member States of the Community and are there authorized to engage in the carriage of goods, have been rendered invalid through the direct effect of Articles 59 and 60 of the EEC Treaty.

5. The Bundesverwaltungsgericht thereupon referred the following question to the Court of Justice for a preliminary ruling:

II — Summary of the written observations submitted to the Court

1. The plaintiff in the main proceedings observes that the preliminary question falls within the context of the common market in transport which has still not been realized and the organization of which is provided for by the Commission in its proposal for a regulation on the introduction of the final regime for the organization of the market for the carriage of goods by road (Official Journal 1990 C 87, p. 4).

2. The defendant in the main proceedings notes the steps taken by the Council since 1985 in conformity with Article 75(l)(b) of the Treaty. It considers that, by adopting Regulation (EEC) No 4059/89 of 21 December 1989 laying down the conditions under which nonresident carriers may operate national road haulage services within a Member State, the Council has now fulfilled its obligation under the aforementioned provision. According to the defendant, Regulation 4059/89 defines in particular the conditions under which any road haulage carrier for hire and reward who is established in a Member State of the Community is to be entitled to operate on a temporary basis national road haulage services for hire and reward, namely within Community cabotage quotas.

3. The Spanish Government considers that the question referred for a preliminary ruling does not call for an answer following the entry into force of Regulation No 4059/89 which the Council adopted by virtue of the obligation imposed on it by Article 75(l)(b) of the Treaty. It argues that, although the validity of Regulation No 4059/89 is limited in time, that is from 1 July 1990 to 31 December 1992, on which date a definitive cabotage system will become applicable, the freedom to provide services in the transport sector is already established at Community level.

4. The Commission explains that the question which has been referred to the Court may be divided into three parts: a first point on the content of the obligation on the Council to achieve freedom to provide transport services; a second point concerning the effects of the Court's declaration that the Council had failed to act in this matter; and a third point relating to the effects of applying provisions guaranteeing freedom to provide services on internal tariff systems which are applicable to transport operations carried out within the territory of Member States.

1 Language of the Case: German.