C-49/89

3. In my opinion, the same should be done in this case, since the procedure under 4. 2. If the problem to be resolved is limited in that way, let me say at once that I find 0 Original language German the Commission's position convincing. It — 'Must the EEC TreatyTreaty,, in particular Articles 59 59,, 62 and 84 84,, be interpreted as meaning that a Member State is aulh- argues that at that time a Member State was onzi-d,, in connection with the use by a ship of harbour onzi-d not prohibited from levying charges on the territory,, to levy charges installations situated in its island territory on ihc embarkation and disembarkation of passengers arrival and departure of passengers on ships [ravelling to or arriving from a port situated in another using port facilities in its island territory State,, whilst in the case of travel between two Member State ports situated within national territory those charges arc where the passengers were coming from or levied only on embarkation at the island port'' going to ports in other Member States 2 — Judgment of 19 December 1968 in Case 13 /68 Satgoil v 13/ ] ECR 453 although such charges were levied in regard liaban Mnmtry of Foreign Trade [ 1968 1968] 3 — Judgment of 3 March 1971 in Case 51 /70 /l// 51/ o»< Lumeke //o ·. Lumeke·. to journeys between two ports situated in Llaiiplzollamt Pastan [ 1971 ] EC R 121 national territory only upon departure from 4 — Judgment of 23 March 1982 in Case 53/81 Lemu v Staals- 53/ secretam van /nume 1982 1982]] ECR 1035 the island port.

OPINION OF MR LENZ — CASE C-49/89

7. (a) It is to my mind clear that the plaintiff's argument that Chapter 3 of Title III of the EEC Treaty, containing provisions on the abolition of restrictions on freedom 'Freedom to provide services in the field of to provide services, was applicable to sea transport shall be governed by the provisions transport at a time when the Council had of the title relating to transport.' adopted no measure under Article 84(2) of the EEC Treaty (that is to say, no measure implementing a maritime transport policy and thereby making Title IV applicable to that area) is contrary to the overall structure of the Treaty. That would mean that the general provisions of Article 59 et seq. The decisive factor in that regard is the fact would be immediately applicable to an area that at that time no measures had been which the authors of the Treaty regarded as adopted for the introduction of freedom to particularly delicate, namely shipping (to provide services, that is to say, no use had which not even the provisions concerning been made of Article 84(2) of the EEC the common transport policy, by means of Treaty, which provides that the Council which the objectives of Chapter 3 of Title may, acting unanimously, 5decide whether, III are to be achieved in the field of to what extent and by what procedure transport, are in themselves applicable). appropriate provisions may be laid down for That cannot be right, and in that connection sea transport. As the Court has seen, the the judgment in Case 4/88 7is of a certain only relevant measure is Council Regulation interest inasmuch as it was decided that in No 4055/86 of 22 December 1986 applying 1982, in the absence of special measures in the principle of freedom to provide services regard to transport policy, it was not to maritime transport between Member possible to rely on Article 59, and the States and between Member States and Council's failure to act in regard to third countries 6and it was only from the transport policy did not make that article time at which that regulation entered into directly applicable. force (1 January 1987, in accordance with Article 12 thereof) that it was clear that 'freedom to provide maritime transport services between Member States and between Member States and third countries [was to] apply in respect of nationals of 8. (b) The plaintiff's position is certainly Member States who are established in a not supported by any other relevant Member State other than that of the person judgment. It is true that in Case 167/73 8it for whom the services are intended' (Article was stated in general terms that sea and air 1(1)). transport are subject to the general rules of

the Treaty even though, so long as the may be derived directly from the Treaty is Council has not decided otherwise, they are certainly not acceptable. It must not be not subject to the rules of Title IV relating forgotten that that regulation, as can be to the common transport policy. It should seen from the statement of the reasons on not be forgotten, however, that that case which it is based, is a measure adopted was concerned only with the rather different under Article 84(2) of the EEC Treaty, that problem of the application of Articles 48 is to say, a measure laying down new rules to 51. (which is also demonstrated by the fact that in Article 12 the time for the entry into force of the regulation is provided). It is also interesting to note that it is clearly stated in the 11th recital in its preamble that 9. In any event, it is quite clear from the 'therefore the principle of freedom to judgment of 30 April 1986 in Joined Cases provide services should now be applied to 209 to 213/84 9that under Article 61 of the maritime transport between Member States EEC Treaty freedom to provide services in and between Member States and third the field of transport is governed not by the countries so as progressively to abolish provisions of the chapter on services but by existing restrictions and prevent the intro­ the provisions of the title relating to the duction of new restrictions'. common transport policy. The objective laid down in Article 59 of abolishing restrictions on freedom to provide services must be attained (as is emphasized in paragraph 37) in the framework of the common policy provided for in Articles 74 and 75. 12. (d) Finally, it is also immediately clear to me that in the circumstances of the main proceedings reference cannot be made to the general principles of the Treaty (unity of 10. (c) Reference may also be made in this the common market; prohibition of connection to Regulation No 4055/86, discrimination in Article 7). which I have already mentioned. The statement in the second recital in its preamble to the effect that in accordance with Article 61 of the Treaty freedom to provide services in the field of maritime transport is to be governed by the provisions of the title relating to transport means that 13. The application and realization of those the implementation of that freedom must be principles in the area with which the Court carried out through measures under that is concerned is provided for in Chapter 3 of title, and direct reliance on Article 59 et seq. Title III. Since that chapter makes a clear is excluded. exception for the entire field of transport (in the form of the reference in Article 61 to the title relating to transport), it would be contrary to the overall structure of the Community rules to counter that exception 11. The plaintiff's argument in regard to by relying on the principles laid down in that regulation, to the effect that it merely Part One of the Treaty (the principles laid clarifies and confirms a legal position which down in Article 7 do not come into consideration because, as has been demon­ 9 — Judgment of 30 April 1986 in Joined Cases 209 to 213 213// 84 1986]] ECR 1457 Ministere public v Asjei [ 1986 strated to the Court, the French provisions

15. (f) We need not therefore consider the question of the effect of the standstill provision in Article 62 with regard to the fact that the unequal treatment which existed at the time when the Treaty came into force was abolished by a Decree of 27 18. The French Government's argument January 1969 and was reintroduced only by that transport services between Italian and the Decree of 12 May 1981, because Corsican ports cannot be compared to according to Article 61(1) that provision is purely internal French services (because the not applicable. economic conditions, such as the possibility of making duty-free purchases, liability to value-added tax or the application of the rules applying to public utilities, are different) must be regarded as irrelevant 16. 4. If these remarks are not in themselves since those are matters which are not sufficient and it is desired to examine the covered by the rules under consideration question as referred to the Court, in the and are moreover in part only loosely general terms in which it is formulated, connected with the actual provision of without limitation in time (and it would transport services. appear that the contested French rules are still being applied today), then I consider that the Commission's view should be upheld, that is to say, it should be decided that the French rules constitute a restriction on freedom to provide services within the meaning of Article 59 of the EEC Treaty 19. (b) The Commission is also right when and that since the entry into force of Regu­ it says that it is possible that differing rules lation No 4055/86, which implemented concerning the levying of passenger tax freedom to provide services in maritime have an effect on the passengers' choice of transport, such rules are no longer lawful. route and therefore on the volume of traffic.

'Freedom to provide maritime transport 20. I must also agree with the Commission services between Member States and when it goes on to emphasize that the between Member States and third countries extent of the disadvantage to transport shall apply in respect of nationals of services between Member States (according Member States who are established in a to the amounts in question) is not decisive Member State other than that of the person and the fact that the measure involved is for whom the services are intended.' fiscal in nature is of no significance. On the first aspect reference may be made to the meaning of the principle of freedom to provide services, which quite simply requires the abolition of discrimination (as has been emphasized, for example, in the case-law on freedom of establishment — Case 270/ 23. The French Government's argument 1 83 0), and regard should also be had to the that traffic to and from Corsica is to be case-law on the abolition of restrictions on regarded as French coastal shipping and the free movement of goods, from which it that freedom to provide services must first is clear that even minor restrictions are be applied in that respect, as a proposal for unlawful (Joined Cases 51 to 54/71 11). a regulation made by the Commission shows, is certainly not pertinent. If I have correctly understood the abovementioned proposal for a regulation, the rules contained therein deal only with the abolition of obstacles in maritime transport within Member States (that is to say, as 21. In relation to the second aspect, it is Article 1 puts it, transport by sea of sufficient to draw attention to the judgment 12 passengers and goods between ports in one in Case 127/86 (which was concerned Member State). To that extent, that is to with the problem of freedom of movement say, in regard to the right of undertakings in connection with fiscal discrimination) whose registered office is in another and, once again, to the judgment in Member State to provide such services, Case 270/83. there is still a need for rules. However, the proceedings before the Cour de cassation 270// 83 10 — Judgment of 28 January 1986 in Case 270 Commission Republic[[1986 v French Republic 1986]] ECR 273 deal with transport between two Member 11 — Judgment of 15 December 1971 in Joined Cases 51 to States (Italy and France) and in that regard 54// 71 htlcnititional Fruit Company NV and Others v 54 all that is necessary for the application of 1971]] ECR Produklschap voor groenten en fruit [ 1971 1107 freedom to provide services is already 127// 86 Aiiimr re public 12 — Judgment of 6 July 1988 in Case 127 ana Ministre dei Finances du Royaume de Belgique v Ledoux contained in Regulation No 4055/86. 1988]] ECR 3741 [ 1988