Opinion of Advocate General
Mr President,
Members of the Court,
1. The two joined cases before the Court relate to one and the same question which has been referred by the Tribunal de Commerce, Brussels, and which concerns the interpretation of the requirement of financial standing in Article 3(3) of Council Directive 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations.
2. According to the third recital of the preamble, the Directive, which is based on Article 75 of the EEC Treaty, sets out common rules for admission to the occupation of road haulage operator in national and international transport operations in order to ensure that road haulage operators are better qualified, thus contributing to rationalization of the market, improvement in the quality of the service provided, in the interests of users, operators and the economy as a whole, and to greater road safety.
3. The coordination at a later date announced by the above provision was effected by Council Directive 89/438/EEC of 21 June 1989. The fifth recital of the preamble to this directive states that as regards the requirement of appropriate financial standing, it is necessary, in particular to ensure the equal treatment of undertakings in the various Member States, to lay down certain criteria which transport operators must satisfy, and which are applicable to transport operators seeking authorization for admission to the occupation as from 1 January 1990.
4. In Belgium, Directive 74/561 was implemented by the Royal Decree of 5 September 1978 laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations. With regard to the requirement concerning financial standing, Article 2(4) of the Decree originally provided that the requirement was satisfied if the carrier had a bank account and was registered in the commercial register.
5. The Royal Decree of 11 September 1987 replaced this provision and added to the earlier Decree a new chapter entitled Conditions concerning financial standing, the first two articles of which are worded as follows:
6. Finally, in 1991, pursuant to Directive 89/438 (sec paragraph 3 above), the Royal Decree of 5 September 1978 was entirely replaced by the Royal Decree of 18 March 1991, which still provides for a compulsory guarantee system, but the wording is slightly different with regard to the ambit of the guarantee.
7. The question referred by the Tribunal de Commerce concerning the interpretation of Article 3(3) of Directive 74/561 has arisen in actions connected with the insolvency of two different transport undertakingsi. The action which has given rise to Case C-20/93 relates to a claim by a German company, Deutscher Kraftverkehr (DKV), against a Belgian bank, SA Générale de Banque (Générale de Banque). DKV, through a credit card system, supplied diesel oil to a transport undertaking, PVBA Zelltrans (Zelltrans). Since 1988 Générale de Banque had stood surety for Zelltrans up to the sum of BFR 700000 pursuant to Article 38(2), second subparagraph, of the Royal Decree of 5 September 1978, as amended by the Decree of 11 September 1987 (cited in paragraph 5 above). By registered letter of 4 December 1989 to the Ministry of Communications, Générale de Banque gave notice that it was withdrawing the guarantee. On 28 February 1990 Zclltrans was adjudicated insolvent by the Tribunal de Commerce, Brussels. On 16 March 1990 DKV informed Générale de Banque that it was owed DM 14475.40 by Zclltrans and, since Générale de Banque refused to make payment under the guarantee, DKV instituted proceedings against it by writ of 16 May 1990.
8. The issue in the main actions is whether the guarantee provided for by the Decree of 5 September 1978, as amended by that of 11 September 1987, also covers claims against a transport undertaking for supplies of fuel or whether the guarantee is limited to claims arising from contracts of carriage in the strict sense between the carrier and the customer whose goods are transported.
9. Before replying to this question, I should like to point out that it relates to Article 3(3) of Directive 74/561 in the version in force before it was amended by Directive 89/438 (see paragraphs 2 and 3 above). This is how the question is understood by all the parties before the Court (DKV, Mobil Oil, Générale de Banque, AG de 1824, the Belgian Government and the Commission of the European Communities). I presume that this is what the Tribunal de Commerce intended. It is clear from the files of the main actions that the transport undertakings concerned, Zelltrans and Lechien, held a licence under the Belgian law before 1 January 1990 to carry on the business of road haulage operator. Pursuant to Article 3(3)(e) of Directive 74/561, as replaced by Article 5 of Directive 89/438 (cited in paragraph 3 above), the new provisions of the latter concerning financial standing are not therefore applicable to these transport undertakings.
10. Also by way of preliminary, I wish to consider the submission by AG de 1824 in its written observations to the Court to the effect that the Court could refrain from answering the question because a reply would not assist a decision in the main actions. The dispute in those actions concerns the interpretation of the contested guarantees, which raises a question of purely Belgian civil law the answer to which cannot be affected by whether the Royal Decree of 1978, as amended in 1987, is compatible with Directive 74/561 or not. As the Commission rightly observed at the hearing, this reasoning is wrong in general and in particular in the light of the following paragraph of the Court's judgment in the Marleasing case:
11. Now let me turn to the reply to be given to the question from the national court. The parties propose two opposite answers. DKV and Mobil Oil contend that it is clear from Article 3(3) of Directive 74/561 that a guarantee system such as that established by the Belgian Decree of 1987, which I have cited, cannot be limited to guaranteeing the obligations arising from a contract of carriage in the strict sense, but covers all claims which may arise from the carrier's business. According to DKV and Mobil Oil, only in this way can the aims of the Directive be achieved. On the other hand, Générale de Banque, AG de 1824 and the Commission consider that the Directive is not explicit on this point and confers a wide discretion on the Member States. It does not oblige them to introduce a guarantee system and, if they do so, it is open to them to decide whether or not to confine it to securing the obligations arising from a contract of carriage in the strict sense. In practical terms, this means that the interpretation of the Directive is of no assistance to the outcome of the dispute in the main actions before the Tribunal de Commerce, Brussels. For the reasons which will be given below, I concur in this second interpretation.
12. The provisions of Directive 74/561 concerning financial standing are particularly summary. Article 3(1), first subparagraph (see paragraph 2 above), refers to the possession of appropriate financial standing as one of the conditions required for engaging in the occupation of road haulage operator. Article 3(3) (see also paragraph 2 above) states that appropriate financial standing shall consist in having available sufficient resources to ensure the launching and proper administration of the undertaking. The Directive does not indicate what the precise requirements are in this connection. On the contrary, paragraph 3 goes on to state that pending coordination at a later date, each Member State shall determine what provisions and what methods of furnishing proof may be adopted for this purpose. It is clear that this leaves the Member States with a wide discretion, enabling them to decide not only how to check the financial standing of an (applicant) transport undertaking, but also to define what is meant by financial standing and, more specifically, the nature and size of the sufficient resources to ensure the launching and proper administration of the undertaking. Directive 89/438, which is not in issue in the present case (see paragraph 3 above), for the first time restricted somewhat this wide discretion, but even then in terms which, it seems to me, do not give a definite reply to the question now before the Court.
13. In support of the opposite argument, DKV and Mobil Oil contend that a wide interpretation of the Belgian guarantee rules — to the effect that they cover claims arising from supplies of fuel — was required by the Directive because a guarantee system of wide application was necessary to ensure the launching and proper administration of the undertaking. In addition, they draw attention to the third recital of the preamble to Directive 74/561 (cited in paragraph 2 above), which refers to the interests of the economy as a whole, which, they say, indicates that the financial protection contemplated by the Directive applies not only to contracts of carriage in the strict sense, but also to other contracts in connection with the carrier's business.
14. I do not find these arguments persuasive. There may reasonably be different opinions as to the financial resources necessary to ensure the launching and proper administration of an undertaking. In most sectors of commerce other than transport, businesses arc started and also, I believe, well managed without a compulsory guarantee system. Such a system is undoubtedly a judicious safeguard for the carrier's financial standing, particularly if the guarantee secures not only his customers' claims against him, but also ensures the payment of his debts to the suppliers of goods, such as fuel, which are essential for the proper operation of the business. However, I find it difficult to accept that such a guarantee, whether wide or narrow in scope, is in itself essential to ensure the carrier's financial standing and that Article 3(3) of Directive 74/561 therefore requires the Member States to set up such a system.
15. Therefore I propose that Court reply as follows to the question from the national court:
1 Original language: Dutch.
2 OJ 1974 L 308, p. 18.
3 At the same time as Directive 74/561/EEC, the Council adopted, on 12 November 1974, Directive 74/562/EEC, parallel with the first and concerning admission to the occupation of road passenger transport operator in national and international transport operations. The wording of Articles 1(1). 2(1), first subparagraph, and (3) of the latter is exactly the same as that of Articles 1(1), 3(1), first subparagraph, and (3) of the former, which I have cited above.
4 Council Directive 89/438/EEC of 21 June 1989 amending Directive 74/561/EEC on admission to the occupation of road haulage operator in national and international transport operations, Directive 74/562/EEC on admission to the occupation of road passenger transport operator in national and international transport operations and Directive 77/796/EEC aiming at the mutual recognition of diplomas, certificates and other evidence of formal qualifications for goods haulage operators and road passenger transport operators, including measures intended to encourage these operators effectively to exercise their right to freedom of establishment (OJ 1989 L 212, p. 101).
5 Belgisch Staatsblad, 19 October 1978, p. 12464.
6 This is not the place for considering the question whether such a summary provision could be deemed to implement the Directive satisfactorily.
7 Royal Decree amending the Royal Decree of 5 September 1978 laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations {Belgisch Staatsblad, 22 October 1987, p. 15301).
8 Royal Decree laying down the conditions for admission to the occupation of road haulage operator in national and international transport operations.
9 Article 21 of this decree provides that the guarantee shall be applied in its entirety to secure the debts of the undertaking ... provided that such debts arise from pursuit of the business of road haulage operator and that such business is covered by a transport certificate, genera! national transport licence or general international transport licence.
10 Article 40(2). No 2. of the Royal Decree of 5 September 1978. as amended, by that of 11 September 1987. provides that the surety shall be discharged ifit wishes to be released from its obligations: on the expiry of three months com mencing on the date when the Minister of Communications receives the registered letter notifying him of such decision.
11 The Commission also observes that the acts which arc the subject of the main proceedings took place before 1 January 1990, whereas Article 5(1) of Directive 89/438 states that it applies from that date. This appears to be correct with regard to the facts of Case C-21/93 (sec paragraph 7), but not beyond dispute with regard to those of Case C-20/93, some of which at least took place in 1990 (sec paragraph 7). However, the question docs not appear to be material and, if it were, it would fall to be decided by the national court.
12 Case C 106/89 Marleanng v Im Comercial Internacional de Alimentación [1990] LCR I 4135, paragraph 8.
13 The Belgian Government has not commented on the question. It merely observes that the Royal Decrees of 1989 and 1991 implement Directives 74/561 and 89/438 correctly, as the Commission has confirmed, and that in its opinion, the 1978 Decree, as amended in 1987, should be interpreted in the manner proposed by DKV and Mobil Oil. Therefore the Belgian Government has not stated its views on whether the Directive necessitates such interpretation.
14 The amended text of Article 3(3) merely requires the undertaking concerned to have a certain minimum capital (letter (c)) and the competent authorities of the Member States to have regard to certain factors set out in letter (b) for assessing financial standing.