Nv Nederlandse Spoorwegen v Minister Van Verkeer En Waterstaat: ECJ 27 Nov 1973

ECJ 1. A legal obligation in general terms requiring transport rates to be approved by public authority cannot in itself be deemed to constitute a ‘tariff obligation’ within the meaning of article 2 (5) of regulation no 1191/69. Under this provision, the distinguishing features of a tariff obligation are not only that rates are fixed or approved by public authority but also that it satisfies the double condition that ‘ special ‘ tariff obligations for certain specified categories of passenger or goods, or on certain routes, should be involved, and that, in addition, they should be contrary to the commercial interests of the undertaking.
2. Articles 4 and 5 of regulation no 1191/69 do not exclude the possibility that economic disadvantages, within the meaning of the regulation, can subsist over a period of only one year and, accordingly, give rise to a claim for compensation. Neither do they exclude the right of member states, in assessing these disadvantages, to take into account the whole of the transport undertaking’ s economic situation, and to withhold compensation for disadvantages which appear to be temporary or accidental and, on a longer-term assessment, capable of being off-set in due course, or neutralized by a change of operating methods.
3. In calculating the amount of compensation to be paid to a transport undertaking, in a case where public service obligations have been partially terminated, there must be an apportionment, having regard to the characteristics and volume of the activities involved, of the total costs between the transport activities in respect of which the public service obligations have been maintained and those in which they are terminated.
The mere prospect for a transport undertaking of discontinuing certain activities following termination of public service obligations is insufficient to justify allocating the whole of the total costs to the activities it has been compelled to maintain, as this could take place only where those activities are in fact discontinued.

Citations:

R-36/73, [1973] EUECJ R-36/73

Links:

Bailii

European, Transport

Updated: 21 June 2022; Ref: scu.214342