Bilateral Agreements and the Freedom to
DANIELLE CHARLES-LE BIHAN and JOEL LEBULLENGER
On 22 December 1986, the Council of Ministers adopted a series of Regulations which together lay the foundations of a Common Maritime Transport Policy for the European Community. These measures were designed to ensure the application of commercial principles in this sector of activity. More specifically, Council Regulation 4055/86 applying the principle of the freedom to provide services between Member States and between Member States and third countries,1 provides that Community shipowners should have non-discriminatory access to all traffic. With those goals in mind, the Community legislation displays a clear bias against bilateral shipping agreements which it regards as promoting protectionism.2
Being realistic, the Community has not a priori outlawed this type of arrangement. Indeed only 'cargo-sharing arrangements' fall within the scope of Regulation 4055/86. This Regulation makes a distinction between existing bilateral agreements which must be 'phased out or adjusted'3 and future arrangements which the Council will only authorize in 'exceptional circumstances?'.4 Community legislation has however left certain keynotions -- like the definition of a 'cargo-sharing arrangement', and the meaning of the term 'exceptional circumstances' -- rather open-ended.
Those are two of the issues we shall attempt to address in this article. We shall also draw extensively upon the recent test case between the Commission and the Council over an agreement involving Italy and Algeria. In this case the Court of Justice had its first chance to consider the new Common Maritime Transport Policy; judgment was delivered on 30 May 1989.5 By way of introduction, it might be convenient to outline the salient features of the Italo-Algerian case.____________________