Recently the Council of Ministers of the European Communities adopted a regulation relating to the customs treatment of goods in transit through the customs territories of the Member States. According to Article 7 of this regulation the transit of goods carried by ships on the Rhine may provisionally continue to take place in conformity with the procedures provided for in Article 9 of the Revised Convention on Rhine Navigation, even if the transportation of the goods in question starts or ends within the Community; furthermore, under para. 3 of the same article, the provisions of the EEC treaty relating to the free movement of goods, can only be applied to goods transported in accordance with Article 9 of the Rhine Navigation Convention, if these goods are covered, in addition, by a “document of internal community transit”, proving the “community character” of the goods.

The wording of this article raises the legal question whether a Community regulation could in so far as Rhine navigation is concerned validly prescribe procedures, relating to the customs handling of goods, other than, or additional to, those provided for in the Rhine Navigation Convention.

Actually the provisions of the latter Convention concerning customs treatment are inspired by the necessity of ensuring free navigation, whereas the Community regulations, dealing with transit of goods, whatever the means of transport may be, are, of course, inspired by the requirements of a common market of goods.

Articles 6 to 14 of the Rhine Navigation Convention deal with customs matters. The history of this regime is traced in the present paper from the “Reichs-Deputations Hauptschluss of 25 February 1803” through the “Oktroi-vertrag” of 1804, the proceedings of the Vienna Congress' Commission on the free navigation of rivers, the Final Act of the same Congress and the Rhine Navigation Act of 1831 to the Rhine Navigation Convention of 1868, and the “Preusische Denkschrift betreffend die Revidierte Rheinschiffahrts-Akte” commenting the lastmentioned Convention.

Particular attention is given to the reference, in Articles 9 and 13 of that Convention, to States united in a common customs' or taxation system.

The history thus described confirms the view that the transit facility, laid down in Article 9 of the Rhine Navigation Convention, applies also in the case where the territory of one State, belonging to a group of States “united in a common customs' system”, is crossed. The EEC-regulation cannot, therefore, take away the right of a waterman to make use of this facility.

On the other hand, there would seem to be no legal objection to the same regulation prescribing for the sake of the application of the EEC treaty rules relating to the free movement of goods, a specific method of proving the fulfilment of the conditions required in that treaty, provided that the document required can be obtained in such a way that the facility provided for in Art. 9 of the Rhine Navigation Convention is not thereby nullified.

Indeed if the additional document could only be obtained by a waterman by leaving a deposit as security, or by making his ship conform to other technical requirements than those, prescribed by the relevant regulations of the Central Rhine Navigation Commission (Règlement sur la clôture douanière des bâtiments du Rhin), or in any other way by fulfilling conditions taking away the advantages of the transit facility under Art. 9 of the Rhine Navigation Convention, there would be a conflict between the EEC-regulation and the Convention. As the EEC-regulation stands at present there is no such conflict. Nevertheless it would be convenient if the customs procedures under the Rhine Navigation Convention and those under the EEC-regulation on community transit could be unified. Consultations to that effect between the two organisations are pending.