C-379/92

* Original language: German.

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Article 7 of the EEC Treaty I - 3484 The principle of proportionality I - 3484 C — Conclusion I - 3485

Mr President, out those operations, generally in an area Members of the Court, between 12 and 24 nautical miles from the Italian base line.

A — Introduction

2. The questions were raised by the Pretore di Ravenna (District Magistrate, Ravenna) in criminal proceedings brought against Matteo Peralta, an Italian national. Mr Peralta is the master of the tanker Acrux, which flies the 4. According to Article 20(1), a master of a Italian flag and is operated by the shipping vessel flying the Italian flag (and the operator company Diego Can & Figli, established at and the owner of the ship if they participated Genoa, Italy. The vessel is especially in the offence) who infringes Article 16 is ha- equipped for transporting chemicals. Mr Per- ble to a term of imprisonment ranging from alta, in his capacity as the master of the ves- two months to two years and a fine of sel, is accused of repeatedly discharging into between LIT 500 000 and LIT 10 million; the sea between January and March 1990 those penalties are to be reduced by half in water which had been used to flush tanks the event that the offenses are due to negli- which had previously contained caustic soda. gence. Under Article 20(2), masters of vessels It appears from the case-file that the vessel flying a foreign flag are liable to the same was outside territorial waters when it carried penalties.

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6. In order to comply with the ban on dis- charges into the sea so defined, it is neces- sary, for instance, after cleaning the tanks as in this case, to use other methods of disposal. Mr Peralta refers in his observations to installations in which the waste water is treated before disposal. ' According to Mr 8. It should be observed that, in accordance Peralta, however, such installations are avail- with a Council Recommendation, 3 the able in certain Italian ports only, but not in MARPOL Convention has been signed by ports in other countries, or at least not in the almost all 4 the Member States, including case of water used to flush the tanks of the Italy. The Community itself is not a party to type at issue in this case. The waste water in the Convention. According to Article 3(1) of question has to be kept on board in special the Convention, it applies, inter alia, to ships containers until the vessel itself or smaller entitled to fly the flag of a Party to the Con- tankers can transfer them to the aforemen- vention. In accordance with the objective set tioned installations. out in its preamble of eliminating or reduc- ing pollution of the marine environment by oil and other harmful substances through rules having universal purport, it introduces a whole series of prohibitions and restric- tions on the discharge of such substances into the sea. The prohibitions set out in the 7. Before the national court, Mr Peralta claimed that the aforementioned Italian pro- 2 — United Nations Treaty Series, Volumes 1340 and 1341, N o 22484. 3 — Council Recommendation 78/584/EEC of 26 June 1978 on 1 — It appears from a report proposing the amendment of the the ratification of Conventions on safety in shipping, aforementioned provisions that the shore installations dis- OJ 1978 L 194, p. 17. charge into the sea the treated water used to flush out the 4 — Ireland and Luxembourg have not acceded to the Conven- tanks. don.

(b) furnish to the Administration of the ship such information and evidence as may be in its possession that a 10. Regulation 3(1) of Annex II divides liq- violation has occurred. uid substances into four categories, A to D, corresponding to decreasing degrees of harmfulness. According to information pro- vided by the Commission, at the material 5 — Article 2(5) of the Convention defines 'Administration' as time caustic soda was classed in Category C the Government of the State under whose authority the ship is operating. (but has since been downgraded to Category

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(e) The discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.' (a) The ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self- 6 — According to Article 2(7) of the Convention, 'Organization' means the Inter-Governmentai Maritime Consultative Orga- propelled; nization.

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12. Regulation 5(9) lays down special — London on the Prevention of Marine Pollu- stricter — conditions for the discharge of tion by Dumping of Wastes and Other Mat- Category C substances in 'special areas'. ter. Conversely, the term 'dumping' within However, only the Baltic Sea Area and the the meaning of the Convention of the Lon- Black Sea Area (Regulation 1(7)) are don does not cover the disposal at sea of regarded as special areas within the meaning wastes or other matter incidental to, or of Annex II. derived from, the normal operations of ves- sels (Article 3(l)(b)(i) of the Convention of London). It follows that if the MARPOL Convention applies to the situation at issue, it cannot also be caught by the Convention of London.

13. Apparently, there are no other sources of international law, including provisions of Community law, apart from the MARPOL Convention, which might be used as a crite- rion against which to judge Mr Peralta's con- duct.

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16. Mention should also be made of Council Articles 7, 48, 52 and 59 of the EEC Directive 76/464/EEC of 4 May 1976 on Treaty and are they consequently pollution caused by certain dangerous sub- prohibited by Article 62 of the same stances discharged into the aquatic environ- Treaty in so far as they are not justified ment of the Community. 9 That directive is by objective reasons relating to the applicable to inland surface water, territorial protection of the public interests of the waters, internal coastal waters and ground State in question? water, with the exception, however, of oper- ational discharges from ships in territorial waters and dumping from ships in territorial waters. (2) Under Community law as it now stands and in the light of the Community provisions referred to in Question 1, is a rule of a Member State compatible with Community law if it prescribes treatment — even a criminal penalty — 17. Lastly, the Council has adopted a deci- (for the nationals of that State) by sion establishing a Community information reason of their nationality, but not for system for the control and reduction of pol- nationals of the other Member States for lution caused by the spillage of hydrocar- identical conduct? bons and other harmful substances at sea. , 0 Neither does that decision contain any crite- ria of potential relevance to the conduct of which Mr Peralta stands accused in the main proceedings. And is such a rule of criminal law compatible with the principle of proportionality guaranteed by Com- munity law inasmuch as it entails, inter aim, for the master of the vessel the automatic and mandatory additional 18. In view of that de jure and de f acto situ- penalty of the temporary suspension of ation, the Pretura Circondariale di Ravenna the exercise of his professional activity has referred the following questions to the and work? Court for a preliminary ruling:

(4) Do the principles defended by the (6) Is Article 30 of the Treaty compatible Community legal order in the field of with a rule of a Member State which, by the environment, in particular the imposing an absolute prohibition principle of prevention laid down in against discharging hydrocarbons and Anicie 130r et seq. of the Treaty, harmful substances into the high seas preclude a law of a Member State exclusively on national vessels, even which, by imposing on national though they are equipped with the vessels an absolute prohibition against extremely expensive technologies discharging hydrocarbons and harmful prescribed by the agreements applicable substances into the high seas, has, in in that field, forces those vessels to practice, the effect of forcing such utilize special technologies and to use an vessels to use an alternative method of alternative method of discharge, which discharge, which is inefficient from is inefficient, costly and, in any case, in every point of view and, in any case, breach of the obligations which that contrary to the obligations which that State has undertaken at the international State has undertaken at an international level and in respect of which the level and in respect of which the Community has adopted implementing Community has adopted implementing measures? measures?

20. It seems doubtful to me whether the Pretore di Ravenna also intended to raise the question whether the suspension of authori- Admissibility of the national court's questions zation to work is compatible as such with Community law. The second question, which might possibly contemplate that issue, is worded rather vaguely. In any event, I shall also be tackling that issue later in this Opinion so as to deal with the whole area covered by the request for a preliminary rul- 23. Nobody has questioned the admissibility ing. of the national court's questions. The Com- mission has merely referred to the cases in which the Court has consistently held that, whereas the Court has not jurisdiction in Article 177 proceedings to rule on the com- patibility of national legislation with Com- munity law, it may nevertheless provide the 21. 2. In addition, it seems worth specifying criteria for the interpretation of Community the scope of the questions referred for a pre- law which will enable the national court to liminary ruling in the light of the facts which solve the legal problem with which it is have been disclosed to the Court. faced. I2

22. In the first place, the prohibition on dis- 24. I would add that, in my view, neither can charging 'hydrocarbons' mentioned in the the national court's questions be regarded as fourth question is irrelevant in this context, inadmissible on the ground that its order is since caustic soda is not a hydrocarbon. It insufficiently reasoned. Admittedly, accord- follows in particular that Annex I to the ing to the Court's Telemarsicabruzzo case- MARPOL Convention is not applicable (although the provisions of Annex II which are set out at the beginning of this Opinion 11 — See section 2, above. are applicable). Secondly, although they are 12 — See, for example, the judgment in Case C-150/S8 Parfiime- rie-Fabrik 4711 v Provide [1989] ECR 3891, paragraphs 11 drafted in general terms, questions 1, 2 and 3 and 12.

law, 13 the grounds of the order for reference 26. The questions do not, however, reveal have to satisfy certain minimum require- the precise consequences flowing from the ments so as to enable the Court to arrive at prohibition on vessels flying the Italian flag an interpretation of Community law which from discharging tank-flushing liquids at will be of use to the national court. Such an sea. 17 Mr Peralta provided the Court with interpretation is possible in this case, even additional particulars on this point during though the national court has not set out the the written procedure. It may be doubted relevant factual and legal circumstances whether those particulars are sufficiently exhaustively in the order for reference. H connected with those set out in the order for reference. But even if that were not the case, the request for a preliminary ruling would not be inadmissible in its entirety as a result. The other facts can be substantively severed from this aspect and may also be legally reviewed on a separate basis. A possible absence of a connection between the partic- ulars provided by Mr Peralta and those set out in the order for reference would there- 25. The — not very complicated — circum- fore merely mean that the former particulars stances of the conduct which led to the crim- could not be taken into account when con- inal proceedings brought against Mr Peralta sidering the questions raised in the order for are set out in the order for reference. The reference. 18 only matter warranting confirmation is that the presumed infringements of the Italian environment-protection legislation took place in extra-territorial waters. As for the legal situation, the Italian court cites the applicable provisions of Italian law. As appears from the wording of the questions, these provisions give rise to criminal sanc- tions, '[impose] an absolute prohibition against the discharge of tank-flushing liquids into the high seas only on vessels registered in the State in question' 15 and '[entail], inter alia, for the master of the vessel the auto- 27. Neither has the national court specified matic and mandatory additional penalty of the international legal context. On the con- the temporary suspension of the exercise of trary, it merely refers to 'international agree- his professional activity and work'. 16 ments' ('applicable in that field' or 'ratified by the Community') and to 'the obligations which [the] State [concerned] has undertaken at an international level'. However, I con- 13 — Judgment in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others v Circostel [1993] sider that, where the facts may be discerned, ECR 1-393; see also the orders in Case C-157/92 Banchero as in this case, sufficiently precisely, the [1993] ECR 1-1085 and in Case C-3S6/92 Monin Automobiles [1993] ECR 1-2049. Court may, where necessary with the help of 14 — For a similar case, see the judgment in Case C-316/93 Vaneetveld [1994] ECR 1-763, paragraph 13. See also my Opinion in Case C-2/93 Exportslachtenjen van Oordegem [1994] ECR 1-2283, at 1-2285, paragraph 10. 15 — See question 5. 17 — See section 6, above. 16 — See question 2. 18 — Judgment in Case 247/86 Alsatel [1988] ECR 5987.

29. I — It should first be checked whether the MARPOL Convention as such forms 31. II — Let us therefore turn to the other part of Community law and may therefore provisions and principles of Community law cause the national provisions at issue to be cited by the national court. In this connec­ inapplicable. That question should be tion, it should be observed that at the mate­ answered in the negative, as the Commission rial time the EEC Treaty in the version set suggests in its observations. As I have 20 out in the Single European Act was applica­ already mentioned, the Community itself ble. In so far as I deem it appropriate I shall is not a party to the M A R P O L Convention. refer at certain points to the version of the Consequently, the Convention could form Treaty set out in the Maastricht Treaty. part of Community law only if the Treaty had transferred to the Community the com­ petence on the basis of which the Member 21 — Judgments in Joined Cases 21/72 to 24/72 International Fruit v Produktschap voor Groenten en Fruit [1972] E C R 1219, paragraphs 10 to 18, and in Joined Cases 267/81 to 269/81 Amministrazione delle Finanze dello Stato v SPĪ 19 — See, for example, the judgment in Case C-286/90 Poulsen and Sami [1983] E C R 801, paragraph 17. and Diva Navigation [1992] ECR 1-6019. 22 — See Opinion 2/91 (ILO Convention N o 170) [1993] E C R 20 — See section 8, above. 1-1061, paragraph 9.

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(i) Articles 84 and 130r of the EEC Treaty clude the application of the contested Italian provisions.

32. These provisions lay down rules for action by the Counal in the field of sea and (ii) Article 3(f) of the EEC Treaty 2J (in con- air transport (Article 84(2)) and the environ- junction with Article 85 et seq. of the EEC ment (Article 130r). Treaty)

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38. In the second place, the Court has held the Italian provisions cannot reinforce the that in some cases the 'provisions relating to effects of such circumstances. undertakings' set out in Articles 85 and 86, which, as a general rule, are applicable only to undertakings, 25 preclude, regard being had to Article 5, the application of public measures laid down by the Member States. The measures in question are measures 40. Neither does it appear to me that those which could deprive the rules applicable to provisions are requiring or fostering anti- undertakings of their effectiveness.26 That competitive practices. will be the case where a Member State imposes or encourages the conclusion of agreements contrary to Article 85 or rein- forces the effects of such agreements, or removes the State character of its own rules by delegating to private operators the 41. Lastly, no more does it appear that the responsibility for taking decisions to inter- Italian provisions are abdicating to private vene in the economic field.27 This is also operators responsibility for taking decisions true, mutatis mutandis, of conduct of Mem- to intervene in the field of the economy. ber States which may affect the effectiveness of the prohibition of abuses of dominant positions set out in Article 86. 28

42. All in all, therefore, it cannot be shown that those provisions infringe Article 3(f) of the EEC Treaty.

39. In this case, there is nothing to suggest that conduct on the part of undertakings is infringing the competition rules or even that there is a dominant position. Consequently, (iii) Article 30 et seq. of the EEC Treaty

goods. That freedom also covers the guaran- measures having equivalent effect within the tee secured by Article 34 of the Treaty, meaning of Article 34 national measures which must therefore also be regarded as 'which have as their specific object or effect forming an integral part of the preliminary the restriction of patterns of exports and questions. thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic mar- ket of the State in question at the expense of 44. Basically, one might be tempted to view the production or of the trade of other the Italian legislation from the point of view Member States.' The question would be, of the field of application of both Article 30 should not any increase in the cost of and Article 34. exports (in so far as they are carried in Italian-registered ships) as a result of the Italian legislation be regarded as being a 'spe- cific restriction of patterns of exports', since it affects primarily external trade and to a lesser degree domestic trade? 45. As far as Article 30 is concerned, accord- ing to the well-known form of words used in the judgment in Dassonville, 'all trading rules ... which are capable of hindering, directly or indirectly, actually or potentially, intra- Community trade' 29 are to be considered as measures having an effect equivalent to 47. Apart from any questions as to the de quantitative restrictions. Might it not be facto situation as regards the exact economic argued that the prohibition on Italian- consequences resulting from the Italian legis- registered ships' discharging certain sub- lation, in particular if a comparison is made stances into extra-territorial waters makes between cabotage and transport carried out imports carried by those ships more expen- between Italy and other Member States, I sive and hence affects intra-Community take the view that that legislation should not trade at least indirectly? be considered in the light of Article 30 et seq. of the Treaty, but against the back- ground of the Community rules on the free- dom to provide services.

rectly from a reading of Article 61(1) of the the framework of the common policy pro- Treaty itself, such activities, which, more- vided for in Articles 74 and 75. 32 over, are covered by the definition set out in the first paragraph of Article 60, must be regarded as services. 3I However, restrictive national legislation in that services sector invariably affects the price of imported or exported goods, since imports and exports have to be carried by means of transport. Systematically to appraise such legislation in 50. If the Council has not yet achieved free- the light of the provisions governing the free dom to provide services in a specific trans- movement of goods would be incompatible port sector, it would be contrary to the spirit with the rules set out in Article 59 et seq. of of Article 61 to review against Article 30 et the Treaty. According to the first paragraph seq. a national provision which submitted of Article 60, services are to be considered economic activities carried out by individuals 'services' within the meaning of the Treaty to constraints. If that approach were taken, where they do not fall within other funda- the Council's common transport policy mental freedoms, including the free move- would be replaced by the application of the ment of goods. It follows that a given barrier provisions on the free movement of goods. to the exercise of a cross-border economic activity cannot in principle be caught both by the provisions governing free movement of goods and the provisions applicable to services at the same time.

57. In particular, it is not claimed that Mr 54. In considering this article, which, as a Peralta resided in another Member State, let general provision of the Treaty, also applies alone that he acquired his professional qual- to sea transport, 33 it is appropriate, as I have ification in another Member State. already mentioned, to review both the prin- ciple of the punishment of the master (for infringements of the ban on discharges at sea) and the fact that the penalty of suspen- sion of his master's certificate is prescribed only where the master is an Italian national. 58. Furthermore, the offence, if any, was committed on a vessel flying the Italian flag. Under the 1958 Convention on the High Seas (Article 5), 3 6 the rules of which are regarded generally as corresponding to the usages of international law, 37 ships have the nationality of the State whose flag they are entitled to fly; that State must exercise its 55. To my mind, Article 48 of the Treaty is not applicable to this case from any of these angles, since it is confined, having regard to Mr Peralta's capacity as an employed person, 34 — Cf. the judgments in Joined Cases 35/82 and 36/82 Morson and ¡hanjan [1982] ECR 3723, paragraph 16, in Case to the territory of a single Member State, and C-19/92 Kraus [1993] ECR 1-1663, paragraphs 15 and 16, and in Case C-332/90 Steen [1992] ECR 1-341. 35 — See the judgment in Kraus, cited in the preceding footnote, paragraph 15. 36 — United Nations Treaty Series, Volume 450, pp. 11, 169. 33 — Judgment in Case 167/73 Commission v France [1974] ECR 37 — See the judgment in Poulsen (cited in footnote 19), para- 359. graph 10.

59. Admittedly, it is true to say that the sus- 61. Lastly, there is the fact that the profes- pension of the professional qualification pro- sional qualification may be suspended only vided for by the Italian legislation may, when in the case of a master of Italian nationality. it is ordered by a court or tribunal, consti- However, such 'reverse discrimination' does tute a barrier to the 'emigration' of an not alter the fact that this case is not con- employed person such as Mr Peralta: it nected with any of the situations contem- might possibly prevent him from exercising plated by Community law. 41 the occupation which that qualification enables him to carry out in another Member State (during the period for which the sus- pension is operative). However, in the judg- ment in Moser, which relates to a similar case, the Court refuted that reasoning as fol- 62. For all those reasons, there can have lows: been no infringement of Article 48 of the Treaty.

'A purely hypothetical prospect of employ- ment in another Member State does not (v) Article 52 of the EEC Treaty establish a sufficient connection with Com- munity law to justify the application of Arti- cle 48 of the Treaty.' 39

63. As far as Article 52 of the EEC Treaty is concerned, it is necessary to consider the sit- uation of Cali & Figli as the company oper- 60. As regards the possibility of carrying out ating the vessel on which the alleged an occupation in another Member State, a infringement was committed. However, the connection between the criminal legislation condition for the implementation of the

(vi) The principle of freedom to provide services 'It should be noted that the rules of the EEC Treaty governing freedom of establishment ..., may be relied upon only by a national of a Member State of the Community who wishes to establish himself on the territory of another Member State or by a national of that State where there is a connecting factor between his circumstances and any of the circumstances envisaged by Community law.' « 66. 1. As I have already indicated, Article 59 of the Treaty, on which the national court relies, is not an adequate basis for the free movement of services in the sphere of trans- port in accordance with Article 61 of the Treaty. In that area, it is for the Community to abolish restrictions on the freedom to provide services under the common policy defined in Articles 74 and 75. 44 64. That condition, however, is not fulfilled in this case. According to the information available to the Court, the fact that Cali & Figli is established in Italy and carries on its business (in the circumstances with which this case is concerned) from Italy establishes no connection with an activity which might previously have been carried out as from an establishment located in another Member 67. As far as sea transport is concerned, the State. N o more can it be seen to what extent Council adopted on 22 December 1986, pur- the contested legislation might have pre- suant to Article 84(2) of the Treaty, Regula- vented Cali & Figli from exercising its right tion (EEC) N o 4055/86 applying the princi- to establish itself in another Member State. 43 ple of freedom to provide services to maritime transport between Member States and between Member States and third coun- 42 — Judgments in Case C-147/91 Ferrer Laderer [1992] E C R 1-4097, paragraph 7, and in Kraus, cited in footnote 34, paragraph 15. 43 — See footnote 40. 44 — See section 49 above.

69. Article 8 of the regulation transposes, 71. 2. In view of those provisions, the prin- within the field of application of the regula- ciple of freedom to provide services was tion, the principle laid down in the second applicable to transport services of the type paragraph of Article 60 of the Treaty, and described in the regulation in the material provides as follows: period (January to March 1990). The ques- tion whether that principle precludes the application of the Italian legislation at issue depends in any case on whether the trans- port operations which resulted in Mr Peral- 'Without prejudice to the provisions of the ta's carrying out the acts of which he stands Treaty relating to right of establishment, a accused fall within the scope ratione mate- person providing a maritime transport ser-

46 — Article 9 of the regulation, which reproduces Article 65 of ti — OJ 1986 L 378, p. 1. the Treaty, is explained by those provisions.

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There is nothing in the case-file to indicate the nature of the 73. 3. If the Court should decide not to take transport operations to which the charges up that proposal, it would be necessary to brought against Mr Peralta relate. Admit- consider the other conditions in the light of tedly, the bills of lading of which he pro- which it may be determined whether the duced copies to the Court related, inter alia, principle of freedom to provide services pre- to shipments of caustic soda effected on the cludes the application of the Italian legisla- Accrux on each occasion between ports in tion. two different Member States.

72. This being so, it does not seem appropri- the services are intended'. Does that mean ate to check any further whether there was that the application of the principle of the any infringement of the principle of freedom freedom to provide services is systematically to provide services. However, the Court excluded — and hence also in this case — should draw the national court's attention to where the operator of the vessel as the pro- the fact that that principle has applied in the vider of the services and the person for field of the carriage of goods between Mem- whom the services are intended are estab- ber States and between Member States and lished in the same Member State?

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of 26 February 1991 in the 'tourist guide' present in the scope of Regulation cases: N o 4055/86 where the sea transport in ques- tion starts or ends in a Member State (B) other than the Member State in which the provider of the services is established (A). In such a case, part at least of the service is pro- vided in Member State (B). In such case, the 'Although Article 59 of the Treaty expressly latter is bound to comply with the provi- contemplates only the situation of a person sions of Regulation N o 4055/86, whether or providing services who is established in a not the operator of the ship is established in Member State other than that in which the a different Member State than his custom- recipient of the service is established, the er. » purpose of that article is nevertheless to abolish restrictions on the freedom to pro- vide services by persons who are not estab- lished in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only 76. Consequently, the connecting factor when all the relevant elements of the activity with Community law as so defined exists for in question are confined within a single all transport operations carried out from or Member State that the provisions of the to ports in other Member States. It is absent Treaty on freedom to provide services cannot in the case of transport operations carried apply (judgment in Case 52/79 Procureur du out between the State where the provider of Roi v Debauve [1980] ECR 833, at para- services is established and a third country. graph 9).

53 — That approach is, moreover, quite consonant with the ori- gin and objectives of Regulation N o 4055/86. It appears from Articles 2 to 5 of the regulation that it was designed 75. Regard being had to that case-law, the primarily as a response to rules —whether unilateral or essential connection with Community law is agreed with third countries — which result in the Member States concerned discriminating against providers of ser- vices from other Member States. That discrimination related in particular to the possibility of shipping, on cer- tain sea crossings, cargoes to other Member States or from those States to ports in the Member State concerned (see 52 — Judgments in Case C-154/89 Commission v France [1991] the examples set out in document COM(85)90 final, para- ECR 1-659, paragraphs 9 and 10, in Case C-198/89 Com- graph 35). The regulation would not fulfil that function if it mission v Greece [1991] ECR 1-727, paragraphs 9 and 10, were confined to cases in which the establishments of the and in Case C-180/89 Commission v Italy [1991] ECR two parties to the provision of services were in different 1-709, paragraphs 8 and 9. Member States.

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79. (a) I need only briefly consider Mr Per- alta's claim that the absolute prohibition imposed by the Italian legislation on dis- In this connection, it is observed in the first charging caustic soda into the sea is not laid place that that particular feature is deter- down by legislation in other Member States. mined by the limits on Italian sovereignty. As regards Article 7 of the EEC Treaty According to the mutually consistent infor- (Article 6 of the EC Treaty), the Court has mation provided by the Italian Government held that it does not apply to any disparities and the Commission, the Italian State does in treatment or distortions which may result not have an exclusive economic zone within for persons and undertakings subject to the the meaning of Article 55 of the United jurisdiction of the Community from the Nations Convention on the Law of the Sea. application by a Member State of measures Article 211(5) and (6) of that convention, that are stricter than those applied in the which relate to coastal States' rights in the same sphere by other Member States. 54 This sphere of environment protection in their should also apply to the prohibition of dis- exclusive economic zones, is therefore not crimination set out in the second paragraph applicable. In addition, the Commission has of Anicie 60 of the EEC Treaty and Article 8 informed the Court that the Italian State has of Regulation N o 4055/86, since those provi- not laid down provisions on any 'contiguous sions pursue in their own sphere the same zone' (within the meaning of Article 24 of the Convention on the Territorial Sea and

the Contiguous Zone 56 and Article 33 of the 83. (aa) In order to answer that question, it United Nations Convention on the Law of must first be emphasized that the case-law the Sea). The rights conferred by those con- on non-discriminatory restrictions intro- ventions on coastal States in the contiguous duced by a State other than the Member zone do not relate to the sphere of environ- State of establishment cannot simply be ment protection. Consequently, if the Italian transposed to cases such as the one at issue. legislation confines the prohibition of dis- Admittedly, that case-law, which may charges at sea outside Italian territorial regarded as definitive at least since the judg- waters only to vessels flying the Italian flag, ments in Collectieve Antennevoorziening there cannot even be any question of a dif- Gouda, 58 Commission v Netherlands 59 and ference of treatment: under Article 5 of the Säger,60 also submits non-discriminatory Convention on the High Seas, only vessels provisions of the sort which I have men- flying the Italian flag are within Italian juris- tioned to the same 'test' of Article 59. It diction outside Italian territorial waters. That checks whether the provisions in question reason alone is sufficient to rule out any are justified by imperative requirements infringement of the rule set out in Article 8 relating to the public interest and whether of Regulation N o 4055/96. the principle of proportionality has been complied with. However, that test relates specifically to the provisions of a State (the State in which the service is provided) other than the State of establishment, with the leg- islation of the State in which the service is provided being applied in addition to that of the State of establishment: 81. Secondly, if that were not the case what would be involved is reverse discrimination which is not sufficient in itself for taking issue with conduct of a Member State from the point of view of a fundamental freedom (with regard to its own nationals). 57 'In the absence of harmonization of the rules applicable to services, or even of a system of equivalence, restrictions on the freedom guaranteed by the Treaty in this field may arise ... as a result of the application of national rules which affect any person estab- lished in the national territory to persons providing services established in the territory 82. (c) Consequently, as the Italian legisla- of another Member State who already have tion entails no discrimination contrary to the to satisfy the requirements of that State's leg- principles of the freedom to provide services, islation.' 6I it should now be considered whether, as non-discriminatory legislation, it detracts from the freedom to provide services of per- sons in the situation of Cali Sc Figli. 58 — Case C-288/89, [1991] ECR 1-4007. 59 — Case C-353/89, [1991] ECR 1-4069. 60 — Case C-76/90, [1991] ECR 1-4221. 61 — Paragraph 12 of the judgment in Collectieve Antennevoor- ziening Gouda and paragraph 16 of the judgment in Com- 56 — Uniteti Nations Treaty Series, Volume 516, p. 205. mission v Netherlands, citea above. See also paragraph 12 of 57 — See section 61 above. the judgment in Säger.

86. According to the Dassonville 63 and the 88. The test to be employed (in the case of Cassis de Dijon 64 case-law, the legislation of freedom to provide services) in accordance the Member State of importation may with the principles set out in the judgments infringe Article 30 even where there is no in Collectieve Antennevoorziening Gouda, discrimination based on the origin of the Commission v Netherhnds and Säger pre- goods where it impedes intra-Community supposes that the restriction is specifically trade and is not justified on imperative linked to the cross-border nature of the pro- public-interest grounds. The judgment in vision of services: it is not the constraints Keck and Mithouard 65 seems to confirm that resulting from the legislation itself that are that case-law (which foreshadowed to a the subject of the test, 68 but those caused by degree the judgments of 25 July 1991 in Col- the co-existence of the legislation of two lectieve Antennevoorziening Gouda, Com- Member States. The cross-border nature of mission v Netherlands and Säger) does in fact the provision of services is reflected in that cover barriers caused by divergent legislation co-existence of two sets of provisions. If it were sought systematically to assess the leg- islation of the State of establishment in the 62 — Provisions of the State in which the services are provided which result in an absolute prohibition of the provision of services in question are a special case. But there is no need to consider them here. 63 — See footnote 29. 66 — See the Opinion of Mr Van Gerven in Joined Cases 64 — Judgment in Case 120/78 Rewe-Zentral AG v Bundesmo- C-401/92 and C-402/92 Tankstation 't Heukske [1994] nopolverwaltung für Branntwein [1979] ECR 649. ECR 1-2199, at 1-2201, section 20. 65 — Judgment in Joined Cases C-267/91 and C-268/91 Keck 67 — See section 46 above. and Mithouard [1993] ECR 1-6097. 68 — See, however, footnote 62.

light of the criteria of 'imperative public- 90. In the judgment in Corsica Ferries, what interest grounds' and proportionality, this was at issue was French legislation which would cover also restrictions with no specific imposed lower harbour dues on sea trans- link with cross-border services. Such an port between Corsica and the French main- approach, however, would go beyond the land than it imposed on sea transport guarantee afforded by the freedom to pro- between Corsica and ports in other Member vide services. States. Corsica Ferries France contested that legislation. Admittedly, during the material period, Regulation N o 4055/86 was not yet in force, and hence an infringement of the principles governing freedom to provide ser- vices did not at first sight arise for consider- ation. Nevertheless, the Court held as fol- lows: 89. Consequently, if it is impossible to pray in aid the judgments in Collectieve Anten- nevoorziening Gouda, Commission v Neth- erlands and Säger in order to resolve the question as to whether the legislation at issue detracts from the freedom to provide ser- vices of persons in the situation of Cali & Figli, what criterion should be applied? In 'The French legislation at issue in the main my view, the answer to that question must proceedings may constitute a restriction on be given in accordance with the consider- freedom to provide services within the Com- ations set out above: there must be a specific munity within the meaning of the first para- link between the restriction and a cross- graph of Article 59 of the EEC Treaty in so border element affecting the provision of ser- far as it discriminates between persons pro- vices in question. This will be the case where viding transport services between a port sit- the restriction attaches treatment to a provi- uated in national territory and a port situated sion of services embodying that element in another Member State of the Community which is more unfavourable than the treat- and persons providing transport services ment given to a comparable provision of ser- between two ports situated in national terri- vices lacking that cross-border element. That tory.' 71 answer is confirmed by consistent determi- nations in the judgments in Corsica Ferries 69 (concerning freedom to provide services) and in Daily Mail70 (concerning Article 52 of the Treaty) and the Groenveld case-law. They show that, provided that the aforementioned condition is satisfied, even measures taken by Member States which are, in a manner of speaking, 'on this side' of the border crossed 91. That excerpt shows that the Court sub- by individuals may be tested against the mits even the provisions of the Member State touchstone of fundamental freedoms. of establishment to the test based on the principles governing the freedom to provide

94. In this case, the cross-border element of 92. A similar idea may be derived from the the transport operations carried out by carri- judgment in Daily Mail, where the following ers in Italy lies in the fact that the transport is stated with regard to Article 52 et seq.: operations are carried out from or to ports in other Member States. It follows that the leg- islation at issue constitutes a restriction on freedom to provide services where it affects the performance, by such operators, of trans- port operations from and to ports in other 'Even though those provisions are directed Member States more severely than the per- mainly to ensuring that foreign nationals and formance of other transport operations, in companies are treated in the host Member particular, domestic operations. State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its leg- islation which comes within the definition contained in Article 58. As the Commission rightly observed, the rights guaranteed by Article 52 et seq. would be rendered mean- 95. (bb) As far as the application of that test ingless if the Member State of origin could to the instant case is concerned, it should be prohibit undertakings from leaving in order observed in the first place that, according to to establish themselves in another Member its wording, the Italian legislation at issue State. In regard to natural persons, the right makes no distinction between the various to leave their territory for that purpose is categories of transport operations. Neverthe- expressly provided for in Directive 73/148 ... less, it might have more severe effects on transport operations from and to ports in other Member States that it does on purely domestic transport operations. It cannot be told from the order for reference whether this is the case. Admittedly, the prohibition on discharges which is at issue is mentioned therein, but not the ensuing practical conse- 93. As I have already explained, the case-law quences for domestic transport operations as on Article 34 is based on differential treat- compared with the cross-border transport ment of exports and domestic trade. Here operations which I have mentioned.

96. Having regard to the supplementary par- account of Mr Peralta's observations in for- ticulars provided by Mr Peralta, 72 it is not mulating its answers. Naturally, it is for the altogether improbable that the Italian legisla- national court to make the necessary findings tion might entail such consequences. The of fact. rule that discharges must take place on-shore might cause vessels going from and to ports in other Member States to have to make detours and/or incur additional costs (rela- tively small ones in the case of tankers who take up water at sea for the purpose of flush- ing their tanks), constraints which domestic 98. On this basis, the next question is operators do not incur, or incur to a lesser whether it is sufficient that the national leg- extent: in any event, it seems that some Ital- islation creates — if not according to its ian ports make installations for the elimina- wording, at least by reason of its practical tion of pollutants available to ships. consequences — separate rules for the two categories of provisions of services. On the basis of the case-law on Article 34,1 consider that this question can be answered in the affirmative. According to that case-law, it is sufficient for the measure in question to 'have as its specific effect' 77 the restriction of 97. In that connection, the first question patterns of exports. I cannot see why any which arises is whether the Court may take other criterion should be applied in this case. account of those additional particulars in its It is therefore enough if relatively more deliberations. The prohibition of discharges severe constraints should bear upon cross- mentioned in the order for reference neces- border services as a practical result of the sarily means that the water used to flush measure in question, even if that should not tanks must be eliminated on-shore. The par- appear from the wording of the legislation. ticulars provided by Mr Peralta in this con- nection as regards the conditions under which this takes place are not a new fact, but are closely connected with the order for ref- erence. n In particular, they are not at odds with it. 74 Moreover, observations on those claims could have been submitted at the hearing which the Court held in this case. 99. For completeness' sake, I would add that With a view to giving a useful answer to the the special constraint which Mr Peralta questions referred for a preliminary ruling, 75 claims is imposed on ships flying the Italian the Court should, in the event that it does flag because under the Italian legislation they not take up my earlier suggestion, 76 take are bound both to be fitted with equipment enabling them to comply with the provisions of the MARPOL Convention and to comply with the obligations imposed by the Italian 72 — See section 6 above. prohibition on discharges at sea has no bear- 73 — See footnote 18. 74 — Cf. the judgments in Case 104/77 Oehlscbläger [1978] ing on that test. The fact that that is so is ECR 791, paragraph 4, and in Case 17/81 Papst and Rich- arz [1982] E C R 1331, paragraph 12. 75 — See the judgment in Ferrer Laderer, cited in footnote 42, paragraph 6. 76 — See section 72 supra. 77 — See section 46 supra.

102. In the case of discriminatory rules of host States, the Court has held that they are compatible with Community law only if 'they can be brought within the scope of an 105. The criterion of proportionality deter- express exemption, such as that contained in mines whether or not that reason justifies the Article 56 of the Treaty'. 78 On the other Italian legislation. The legislation must be apt hand, other restrictions resulting from the to secure the achievement of the objective application of the legislation of the host State which it seeks to attain and must not go to persons providing services may be justi- beyond that which is necessary to attain it. 82 fied by overriding reasons relating to the public interest. 79 80 — Judgment in Case C-302/86 Commission v Denmark [1988] ECR 1-4067, paragraph 8 et seq. 81 — See also the judgment in Case 240/83 Procureur de la 78 — Judgment in Collectieve Antennevorziening Couda, para- République v ADHU [1985] ECR 531, paragraph 9. graph 11. 82 — Paragraph 15 of the judgment in Collectieve Antennevoor- 79 — Paragraph 13 of Collectieve Antennevoorziening Gouda. ziening Gouda.

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110. Although this principle forms part of the Community legal order, 84 it cannot be applied as such to facts which do not fall within that legal order. 85 Apart from the rel- 108. In addition, the Italian Government has evant rules relating to freedom to provide drawn attention to the special situation of services in connection with which I have the Mediterranean, which, in its view, war- rants special protection on the grounds of the low rate of renewal of its waters. If the 83 — See the judgment in Case C-179/90 Merci Convenzionali protection of the Mediterranean (or of any Porto di Genova [1991] ECR 1-5889, paragraph 11. 84 — See, for example, the judgment in Case 265/87 Schräder v comparable waters) were to be the sole aim Hauptzollamt Gronau [1989] ECR 2237, paragraph 21. of such measure, it should in any case be 85 — As the Court has consistently held with regard to funda- regarded as being disproportionate with mental rights recognized by the Community legal order; see, most recendy, the judgment in Case C-159/90 Society regard to other seas without that particular for the Protection of Unborn Children Ireland Ltd and Stephen Grogan and Others [1991] ECR 1-4685, paragraph characteristic. 31.

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PERALTA

considered the principle of proportionality, the application of which would necessitate a there is, as far as I can see, no rule of Com- review in the light of the principle of propor- munity law which is applicable to this case tionality.

C — Conclusion

111. For all the foregoing reasons, I consider that the reply to be given to the Pre- tura Circondariale di Ravenna should be as follows:

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In the alternative

The principle of freedom to provide services set out in Regulation (EEC) N o 4055/86 precludes, in a situation of the type arising in the instant case, the application of legislation of the type described in (1) above where it is established (by the national court) that:

— the legislation has more severe effects on transport operations from or to ports in other Member States than it has on other transport operations, in particular those carried out between ports in the Member State in which the operator is established, and

— the legislation, having regard to the provisions of international law binding on the Member State in question, is inappropriate or unnecessary in order to achieve the intended objectives in the field of environment protection.