C-379/92

PERALTA

JUDGMENT OF THE COURT 14 July 1994"

In Case C-379/92,

R E F E R E N C E to the Court under Article 177 of the EEC Treaty by the Pretura Circondariale di Ravenna for a preliminary ruling in the criminal proceedings before that court against

Matteo Peralta,

on the interpretation of Articles 3(f), 7, 30, 48, 52, 59, 62, 84 and 130r of the EEC Treaty,

after considering the written observations submitted on behalf of:

— Matteo Peralta, by Giuseppe Conte and Giuseppe Michele Giacomini, of the Genoa Bar,

— the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Depart­ ment for Contentious Diplomatic Affairs of the Ministry for Foreign Affairs, acting as Agent, assisted by Oscar Fiumara, Avvocato dello Stato,

— the Commission of the European Communities, by Vittorio Di Bucci, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Matteo Peralta, the Italian Government and the Commission of the European Communities at the hearing on 9 February 1994,

2 Those questions were raised in criminal proceedings brought against Matteo Per- alta by the Italian authorities for breach of Law N o 979 of 31 December 1982 lay- ing down provisions for the protection of the sea (GURI N o 16, of 18 Janu- ary 1983, Ordinary Supplement, p. 5).

3 Article 16 of Law N o 979 provides:

'In territorial waters and internal maritime waters, including ports, it shall be pro- hibited for any vessel, regardless of nationality, to discharge into the sea or to cause to be discharged into the sea hydrocarbons or hydrocarbon mixtures or any other substances harmful to the marine environment mentioned in List A annexed to this Law.

Vessels flying the Italian flag shall also be prohibited from discharging the sub- stances referred to in the foregoing paragraph even outside territorial waters.'

4 Infringements of those provisions are penalized, under Article 20 of the same Law, by fines of LIT 500 000 to 10 million and terms of imprisonment of up to two years. Professional sanctions may also be imposed. Masters of vessels who are Ital- ian nationals may be suspended for a period of up to two years. Masters who are not Italian nationals may be prohibited from mooring at Italian ports for a period determined by the Minister for the Merchant Navy.

5 It appears from the documents before the Court that Mr Peralta, an Italian national, is the master of a tanker registered in Italy which is specially equipped for the transport of chemicals. The shipowner is a company governed by Italian law.

And is such a rule of criminal law compatible with the principle of propor- tionality guaranteed by Community law inasmuch as it entails, inter alia, for the master of the vessel the automatic and mandatory additional penalty of the temporary suspension of the exercise of his professional activity and work?

I - 3490

PERALTA

(3) Under Community law as it now stands, can the Member States' retention of competence for matters concerning criminal law affect the fundamental liber- ties guaranteed by the Treaty, such as the free movement of goods and the freedom of movement of persons and, in particular, do the provisions of Articles 16 and 20 of Law N o 979/82 constitute an obstacle to the exercise of those liberties?

(4) D o the principles defended by the Community legal order in the field of the environment, in particular the principle of prevention laid down in Article 130r et seq. of the Treaty, preclude a law of a Member State which, by imposing on national vessels an absolute prohibition against discharging hydrocarbons and harmful substances into the high seas, has, in practice, the effect of forcing such vessels to use an alternative method of discharge, which is inefficient from every point of view and, in any case, contrary to the obligations which that State has undertaken at an international level and in respect of which the Community has adopted implementing measures?

(5) D o the Community principles designed to guarantee that competition between persons supplying shipping and port services in the Community is free but at the same time fair and not artificially distorted and that the demand for services is satisfied with the least possible damage to the environment, and in particular Articles 3f and 84 of the EEC Treaty, preclude a national rule such as the one laid down in Articles 16(17) and 20 of Law N o 979/82, which, by imposing an absolute prohibition against the discharge of tank-flushing liquids into the high seas only on vessels registered in the State in question, even though those vessels are equipped with the extremely expensive decontamination equipment prescribed by international agreements ratified by the Community, distorts competition among seaports and shipping companies in the Community?

9 It appears from all the documents before the Court that the Pretore is essentially asking the Court whether Community law precludes legislation like the Italian leg- islation in question in so far as it impedes the activities of national undertakings engaged in sea transport, like the undertaking employing Mr Peralta. Such legisla- tion could have the effect of, in particular, slowing down cleaning operations by tankers which could be carried out at sea in compliance with the relevant interna- tional agreements which Italy has signed, or of making them more difficult or costly than for vessels of other Member States.

I - 3492

PERALTA

io The Italian court can see a number of ways in which the Italian legislation could have such an impeding effect and considers the objections which could be made against it. The Italian legislation

— fails to observe 'international agreements ratified in Community law';

— infringes Article 7 of the Treaty by discriminating on grounds of nationality;

JUDGMENT OF 14. 7. 1994 — CASE C-379/92

i3 O n the basis of Article 84(2) the Council adopted Regulation (EEC) N o 4055/86 of 22 December 1986 applying the principle of freedom to provide services to mar- itime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1). That regulation entered into force on 1 January 1987. It was therefore applicable at the time of the events in question.

u However, Article 84 does not exclude the application of the Treaty to transport, and marine transport remains, on the same basis as the other modes of transport, subject to the general rules of the Treaty (see the judgment in Case 167/73 Com- mission v France [1974] ECR 359, paragraphs 31 and 32).

Observance of international conventions on the discharge of harmful sub- stances into the sea

is From the papers in the case it appears that, although its order for reference does not state a question in these terms, the national court is asking this Court about the compatibility of the Italian legislation with the International Convention for the Prevention of Pollution from Ships, called 'the Marpol Convention' (United Nations Treaty Series, Volume 1341, N o 22484). It appears to consider that this Convention produces effects in the Community legal order.

i6 In so far as the Italian court raises the question of the compatibility of the Italian legislation with the Marpol Convention, it is sufficient to find that the Community is not a party to that convention. Moreover, it does not appear that the Commu- nity has assumed, under the E E C Treaty, the powers previously exercised by the Member States in the field to which that convention applies, nor, consequently, that its provisions have the effect of binding the Community (see the judgment in Joined Cases 21/72 to 24/72 International Fruit Company and Others v Produkt- scbap voor Groenten en Fruit [1972] ECR 1219, paragraph 18).

i9 The national court enquires whether the principles of Community law for ensur- ing undistorted competition preclude national legislation like the Italian legislation in question. According to the national court, the legislation causes distortions of competition between ports and shipowners in the Community.

20 The competition rules laid down in the Treaty, and, in particular, Articles 85 to 90, apply to the transport sector (see the judgment in Joined Cases 209/84 to 213/84 Ministère Public v Asjes and Others [1986] ECR 1425, paragraph 45, and the judgment in Case C-185/91 Bundesanstalt für den Güterfernverkehr v Gebr. Reiff [1993] ECR 1-5801, paragraph 12). The same is true, in particular, for the field of

I - 3495

JUDGMENT OF 14. 7. 1994 — CASE C-379/92

sea transport (see in particular Council Regulation (EEC) N o 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, OJ 1986 L 378, p. 4).

I - 3496

PERALTA

24 On this point, it is sufficient to observe that legislation like the legislation in ques- tion makes no distinction according to the origin of the substances transported, its purpose is not to regulate trade in goods with other Member States and the restric- tive effects which it might have on the free movement of goods are too uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member States (see the judgment in Case C-69/88 Krantz v Ontvanger der Directe Belastingen [1990] ECR 1-583, paragraph 11, and the judgment in Case C-93/92 CMC Motorradcenter v Pelin Baskiciogullari [1993] ECR 1-5009, paragraph 12).

25 Article 30 does not therefore preclude legislation like the national legislation in question.

Article 48 of the Treaty

26 The national court enquires about the compatibility with Article 48 of a system of sanctions such as that laid down in the Italian legislation in question, which, by providing for the suspension of the professional qualifications of Italian masters who fail to observe the prohibition of discharging harmful substances into the sea, punishes Italian masters more severely than masters of any other nationality.

Article 52 of the Treaty

30 It is not possible to ascertain from the order for reference the reasons for which the national court enquires about the relationship of the Law in question to Arti- cle 52 of the Treaty. In the absence of such an explanation, it should be noted that, according to Mr Peralta, the Law in question deprives Italian marine transport undertakings operating vessels flying the Italian flag of the possibility to establish themselves in other Member States and compels them to use cabotage in Italian territorial waters. H e also points out that the ports of other Member States do not have the plant for treating flushing liquids which such undertakings need in order to be able to comply with the Italian legislation.

I - 3498

PERALTA

3i Even though, according to their wording, the provisions of the Treaty guarantee- ing freedom of establishment are directed in particular to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hinder- ing the establishment in another Member State of one of its nationals or of a com- pany incorporated under its legislation which comes within the definition con- tained in Article 58. For the rights guaranteed by Article 52 et seq. would be rendered meaningless if the Member State of origin could prohibit undertakings from leaving in order to establish themselves in another Member State (see the judgment in Case 81/87 The Queen v Treasury and Commissioners of Inland Rev- enue, ex parte Daily Mail and General Trust [1988] ECR 5483, paragraph 16).

I - 3499

JUDGMENT OF 14. 7. 1994 — CASE C-379/92

Article 59 of the Treaty

36 The national court is enquiring about a situation in which an Italian master put in command of a vessel flying the Italian flag by a provider of services of Italian nationality claims that Italy, the Member State in which that provider of services is established, is infringing the freedom to provide maritime transport services.

Whether the freedom to provide maritime transport services may be relied upon

37 As the Court finds in paragraph 13 of this judgment, Regulation N o 4055/86 was applicable at the time of the events in question.

4i Furthermore, the Court has held that the purpose of Article 59 of the Treaty was to abolish restrictions on the freedom to provide services offered by persons not established in the State in which the service was to be provided and that, conse- quently, the provisions of Article 59 had to apply in all cases in which a person providing services offers those services in a Member State other than that in which he is established (judgment in Case C-154/89 Commission v France [1991] ECR 1-659, paragraphs 9 and 10).

42 Since the vessel which he commands performs deliveries intended for other Mem- ber States, Mr Peralta may rely, as against Italy, on an alleged infringement of the freedom to provide maritime transport services recognized by Community law.

The existence of discrimination between vessels owing to the different flags which they fly

43 Under Article 9 of Regulation N o 4055/86, which refers to the principle laid down in Article 7 of the Treaty, the minimum requirement applying to legislation such as that in question in the main proceedings is that it must not discriminate on grounds of nationality between persons providing maritime transport services.

44 O n this point, legislation of the kind in question meets the requirement of non- discrimination as regards the rules applicable to vessels crossing territorial sea and

I-3501

I - 3502

PERALTA

The existence of restrictions on the freedom to provide maritime transport services

49 The national court indicates that under the Italian legislation restrictions arise on the freedom to provide maritime transport services to other Member States, even if that legislation could not be held to be discriminatory.

so It must be emphasized that the obstacle to exploitation of which Mr Peralta com- plains does not arise from the legislation of a Member State on whose territory a transport service is performed but from the legislation of the Member State in which the undertaking has registered the vessel under Mr Peralta's command and in which it is established, namely Italy. The situation of that undertaking in rela- tion to its own Member State of establishment cannot therefore be compared to that of a maritime transport undertaking established in a Member State other than Italy, operating temporarily in that latter State and therefore having to satisfy simultaneously the requirements imposed by the legislation of the Member State whose flag its vessel flies and those laid down by the Italian legislation.

si However, legislation like the Italian legislation, which prohibits the discharge of harmful chemicals at sea, applies objectively to all vessels without distinction, whether carrying products within Italy or to other Member States. It does not make any distinction regarding services for exported products and for products marketed in Italy. It does not afford any particular advantage to the domestic Ital- ian market, to Italian transport operations or to Italian products.

Article 130r of the Treaty

55 Finally, the national court enquires whether Article 130r et seq. precludes legisla- tion of the same kind as the contested legislation which has the effect of requiring Italian vessels to use an alternative system for treating flushing water, which, in its view, is inefficient and contrary to the international obligations which Italy has assumed.

56 O n this point, it should be recalled that, as the Court held at paragraph 17 above, it is not for the Court to rule on the compatibility of a national provision adopted by a Member State with a convention such as the Marpol Convention. N o r may it interpret Article 130r in the light of an international convention which is not bind- ing on the Community and to which, moreover, not all the Member States are parties.

I - 3504

PERALTA

57 Secondly, Article 130r is confined to defining the general objectives of the Com- munity in the matter of the environment. Responsibility for deciding what action is to be taken is conferred on the Council by Article 130s. Moreover, Article 130t states that the protective measures adopted pursuant to Article 130s are not to pre- vent any Member State from maintaining ór introducing more stringent protective measures compatible with the Treaty.

O n those grounds,

T H E COURT,

in answer to the questions referred to it by the Pretore di Ravenna, by order of 24 September 1992, hereby rules:

Articles 3(f), 7, 30, 48, 52, 59, 62, 84 and 130r of the EEC Treaty and Council Regulation (EEC) N o 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 do not preclude the legislation of a Member State from prohibiting all vessels, regardless of the flag which they fly, from discharging harmful chemical substances into its territorial waters and its internal waters, or from imposing the same prohibition on the high seas only on vessels flying the national flag, or, finally, in the event of infringement, from penalizing masters of vessels who are nationals of that State by suspending their professional qualification.

Mancini Joliét Schockweiler

Rodríguez Iglesias Grévisse