Avis juridique important

Judgment of the Court of 5 October 1994. - Commission of the European Communities v French Republic. - Failure to fulfil obligations - Maritime transport - Freedom to provide services. - Case C-381/93. European Court reports 1994 Page I-05145 Swedish special edition Page I-00223 Finnish special edition Page I-00225

Summary Parties Grounds Decision on costs Operative part

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Transport ° Maritime transport ° Freedom to provide services ° Restrictions ° National legislation, applicable to all vessels irrespective of the operator' s nationality, which distinguishes between domestic transport and transport to other Member States and treats the former more advantageously ° Not permissible in the light of single-market objectives

(Council Regulations Nos 4055/86 and 3577/92)

Where national legislation, even though it is applicable without discrimination to all vessels, whether used by national providers of services or those from other Member States, operates a distinction, for example as regards the charges levied for use of port installations, according to whether those vessels are engaged in internal transport or in intra-Community transport, thus securing a special advantage for the domestic market and the internal transport services of the Member State in question, that legislation must be deemed to constitute a restriction on the freedom to provide maritime transport services contrary to Regulation No 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries.

On the one hand, in the perspective of a single market and in order to permit the realization of its objectives, the freedom to provide services precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. On the other hand, to accept that, on the ground that the freedom to provide services applies to maritime transport between Member States only progressively and within the time-limits laid down in Regulation No 3577/92, the Member States might be justified, during the transitional period provided for for that form of transport, in charging intra-Community maritime transport more heavily than internal transport would be tantamount to rendering the extension of the freedom to provide services to intra -Community maritime transport provided for in Regulation No 4055/86 to a substantial extent nugatory.

In Case C-381/93,

Commission of the European Communities, represented by Xavier Lewis, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

French Republic, represented by Catherine de Salins, Deputy Director of Legal Affairs at the Ministry of Foreign Affairs, and by Hubert Renié, Principal Deputy Secretary in the Directorate of Legal Affairs in the same ministry, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 Boulevard Prince Henri,

defendant,

APPLICATION for a declaration that, by maintaining in force a system for levying charges on the disembarkation and the embarkation of passengers in the case of vessels using port installations situated on its continental or island territory and arriving from ports situated in another Member State or travelling to them, whereas in the case of passenger transport between two ports situated on national territory those charges are levied only on embarkation for departure from the continental or island port, and by applying higher rates of charges when passengers arrive from or embark for ports situated in another Member State than when they travel to a port situated on national territory, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1),

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler (Rapporteur), G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: C.O. Lenz,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 8 June 1994,

after hearing the Opinion of the Advocate General at the sitting on 12 July 1994,

gives the following

Judgment

1 By application lodged at the Court Registry on 3 August 1993, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by maintaining in force a system for levying charges on the disembarkation and embarkation of passengers in the case of vessels using port installations situated on its continental or island territory and arriving from ports situated in another Member State or travelling to them, whereas in the case of transport between two ports situated in national territory, those charges are levied only on embarkation for departure from the continental or island port, and by applying higher rates of charges when passengers arrive from or embark for ports situated in another Member State than when they travel to a port situated on national territory, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1).

2 Under Article R.212-17 of the French Code governing maritime ports a charge is levied on each passenger disembarking, embarking or transshipping in the maritime ports of metropolitan France. That charge, which is borne by the shipowner, may be recovered from the passengers.

3 Article R.212-19 of that code, as contained in Decree No 92/1089 of 1 October 1992 altering the rates of tax on passengers of commercial vessels collected by way of port dues (Official Journal of the French Republic, 7 October 1992), provides as follows:

"In the maritime ports of continental France, charges at the following rate shall be imposed on passengers of commercial vessels by way of port dues for passengers travelling on a hovercraft or any other vessel:

1. Passengers bound for a continental French port or Corsica: F 8.28 (with a 50% reduction for fourth class passengers). For the purpose of levying the charge, passengers of hovercrafts or single-class vessels shall be deemed to be second-class passengers;

2. Passengers arriving from or travelling to a port of the British Isles or the Channel Islands: F 17.52;

3. Passengers arriving from or travelling to a port situated in Europe (with the exception of those mentioned at 1 and 2 above) or in any Mediterranean country: F 21.01;

4. Passengers arriving from or travelling to all other ports: F 74.81.

..."

4 Article R.212-20 goes on to provide:

"In the maritime ports of Corsica, the following rates of charge shall be imposed on passengers of commercial vessels by way of port duty where they travel on a hovercraft or any other vessel:

1. Passengers travelling to a port in Corsica, continental France or Sardinia: F 8.28 (with a 50% reduction for fourth class passengers);

2. Passengers arriving from or travelling to a port situated in Europe (with the exception of those mentioned at 1 above) or in North Africa: F 8.28;

3. Passengers arriving from or travelling to all other ports: F 49.88.

..."

5 The Commission considers that this system of charges is discriminatory in two ways: on the one hand, the rate of tax is lower for the transport of passengers whose destination is a French port than for the transport of passengers whose destination is a port of another Member State (except for passengers travelling to Sardinia from Corsica); in addition, for transport between French ports the charge is levied only on embarkation, whereas for transport between a French port and a port of another Member State (except for journeys between Corsica and Sardinia), the charge is levied on both embarkation and disembarkation.

6 The Commission considers that, even if the French rules do not discriminate on the basis of the nationality of the provider of the transport services in question, they constitute an impediment to the freedom to provide services contrary to Article 1 of Regulation No 4055/86 owing to the fact that they distinguish between transport services within France and those performed to or from another Member State, although the port services covered by the charge are the same in both cases.

7 In its defence the French Government maintains that Regulation No 4055/86 does not fully implement the freedom to provide services in maritime transport, inasmuch as it concerns only maritime transport between Member States and between Member States and third countries and not maritime transport within the Member States, namely maritime cabotage. In that connection it stresses that Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7), which entered into force on 1 January 1993 provides in Article 6(1) that the freedom to provide services in the case of regular passenger and ferry services in the Mediterranean and along the coast of France are to be applicable only from 1 January 1999.

8 Therefore, according to the French Government, the observance by France of the rules concerning the freedom to provide services must be assessed separately for each of these two types of services. In both cases France satisfies the requirements of Community law, inasmuch as there is no discrimination as between French operators and operators from other Member States in intra-Community maritime transport from or to a French port; in the case of cabotage all operators from the other Member States are placed in the same situation with regard to the applicable French legislation.

9 In order to assess whether the Commission' s allegation is well founded it should first be recalled that Article 1(1) of Regulation No 4055/86 provides that

"Freedom to provide maritime transport services between Member States and between Member States and third countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended."

11 By providing, further, that "Without prejudice to the provisions of the Treaty relating to right of establishment, a person providing a maritime transport service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals", Article 8 of Regulation No 4055/86 transposes the principle laid down in the third paragraph of Article 60 of the Treaty to the sphere of maritime transport between Member States.

12 Finally, under Article 1(3) of Regulation No 4055/86, the provisions of Articles 55 to 58 and 62 of the Treaty are to apply to those types of maritime transport.

23 Under those circumstances the Commission' s application for a declaration of a failure to fulfil obligations must be granted in the terms sought.

Costs

24 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the French Republic has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by maintaining in force a system for levying charges on the disembarkation and embarkation of passengers in the case of vessels using port installations situated on its continental or island territory and arriving from ports situated in another Member State or travelling to them, whereas in the case of passenger transport between two ports situated on national territory those charges are levied only on embarkation for departure from the continental or island port, and by applying higher rates of charges when passengers arrive from or embark for ports situated in another Member State than when they travel to a port situated on national territory, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries;

2. Orders the French Republic to pay the costs.