Report for the Hearing in Joined Cases C-13/92, C-14/92, C-15/92 and C-16/92

I — Facts and procedure

1. Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport (OJ 1989 L 116, p. 25) seeks to eliminate structural overcapacity in inland waterway transport. For that purpose, it introduces a scrapping premium, which is paid to owners for any vessel which they scrap. In order to ensure that the effects of scrapping are not negated by additional capacity being brought into service at the same time, Article 8(1 )(a) of the regulation provides that, for a period of five years from its entry into force, newly constructed vessels may be brought into service only where:

2. The company Driessen en Zonen v o f (in Case C-13/92) placed an order on 14 December 1988 with the Van Eijk Scheepsbouw shipyard for the construction and delivery of a steel hull for a vessel for inland navigation, which was to be delivered, subject to force majeure, no later than during the fourth week of 1990. The vessel was registered on 27 January 1990. By letter of 14 March 1989, the shipyard, in response to a question concerning the old for new rule, stated that if the order were cancelled a payment of HFL 550000 would be due. By letter of 23 June 1989, the Deputy Inspector General of Transport informed Driessen that it had not met the first and second conditions laid down in Article 8(3)(a) of Regulation No 1101/89 and requested proof that the vessel had been put into service before 1 November 1989. That letter was amended by a letter of 30 October 1989 stating that the conditions for the application of Article 8(3)(a) were met. By letter of 5 January 1990, the Minister van Verkeer en Waterstaat (Minister of Transport and Water Resources) stated that the letter of 30 October 1989 was incorrect and that the vessel did not satisfy the condition of having been brought into service within the six months following the entry into force of the regulation and that, consequently, Driessen would have to meet one of the obligations laid down in Article 8(1 )(a) of the regulation. The hull was delivered by the shipyard in the second week of 1990 and was put into service on 17 February 1990. By letter of 1 February 1990, Driessen requested that it be released, by reason of force majeure, from compliance with the condition laid down in Article 8(3)(a) regarding commissioning within six months. By letter of 10 July 1990, that request was rejected.

3. The four plaintiffs in the main proceedings before the College van Beroep voor het Bcdrijsleven seek annulment of the decisions requiring them to pay the special contribution.

4. Considering, therefore, that an assessment of the validity of certain provisions of the relevant Community regulation was called for, the College van Beroep voor het Bedrijsleven, by orders of 8 November 1991, decided to stay the proceedings pending a ruling from the Court of Justice under Article 177 of the EEC Treaty on the following question:

5. The orders for reference were received at the Court Registry on 22 January 1992.

II — Summary of the written observations submitted to the Court

6. Driessen en Zonen v o f, the plaintiff in the main proceedings in Case C-13/92 (hereinafter Driessen), claims that the old for new scheme is contrary to the principles of legal certainty and equality before the law.

7. A. Molewijk, Motorschiff Sayonara Basel AG and C. Mourik en Zoon v o f, the plaintiffs in the main proceedings in Cases C-14/92, 15/92 and 16/92 respectively (hereinafter the plaintiffs), allege invalidity on five grounds.

8. The Netherlands Government refers to the background to the adoption of Regulation No 1101/89 and states that the cumulative conditions imposed by the transitional rules originate from proposals submitted by trade organizations representing the inland waterway transport sector, such as the International Union for Inland Navigation (hereinafter the UINF) and the European Boatowners' Organization (hereinafter the OEB), at the beginning of September 1988. Trade circles in the Netherlands could not have been unaware of the tightening up of the transitional rules as compared with the Commission's initial proposal since, between May 1988 and February 1989, several trade journals devoted articles to the problems of structural improvement and the conditions which the transitional rules should apply for the benefit of vessels being built when the regulation was adopted. The conditions reported in the press are those which were finally adopted in the regulation. In an opinion sent on 14 October 1988 to the defendant minister, the Nederlandse Sociaal Economische Raad indicated that it would prefer the old for new regime to contain stricter rules and reiterated the proposals of the UINF and the OEB.

9. Before examining the legal arguments, the Council observes that a comparison of the stages of the legislative process with the chronology of events indicates that the plaintiffs took action to anticipate the possible consequences of the regulation.

10. The Commission states at the outset that the introduction of a Community system for improving the structure of internal waterway transport falls within the wide legislative powers ... as regards the adoption of appropriate common rules conferred on the Council, in particular, by Article 75(l)(c) of the EEC Treaty (Case 97/78 Schumalla, cited above). With regard to that discretionary power, the Court has made it clear that the Commission may, in the general interest, exercise its decision-making power according to the requirements of the situation, even to the detriment of certain individual interests (Valsabbia and Others, cited above). The Court has also held that fundamental rights do not constitute unfettered prerogatives and that restrictions may be imposed on the exercise of such rights, provided that the restrictions reflect objectives in the common interest pursued by the Community and do not represent disproportionate and intolerable interference (Case 4/73 Nold v Commission [1974] ECR 491 and Case 5/88 Wachauf [1989] ECR 2639). That applies a fortiori where, as in this case, fundamental rights are not in issue.

1 Language of the case: Dutch.