C-18/93

C O R S I C A FERRIES

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 9 February 1994 "

Mr President, Legal and factual context Members of the Court,

2. Corsica Ferries — whose company name was changed to 'Tour Ship Italia s. r. 1.' at an 1. The Tribunale di Genova (District Court, extraordinary general meeting held on 4 Genoa, hereinafter referred to as 'the December 1992 — is a limited liability com­ national court') has referred to the Court a pany incorporated under Italian law whose number of questions for a preliminary ruling registered office is at Cagliari and which pro­ on the interpretation of Arti­ vides domestic and international sea trans­ cles 5, 7, 30, 59, 85, 86 and 90 of the EEC port services using ferries. It appears from Treaty. The questions arose in proceedings the written observations of Corsica Ferries for a court order by which Corsica Ferries that since 4 December 1992, 90% of its capi­ Italia S. r. 1. (hereinafter referred to as 'Cor­ tal has been held by Tour Ship Group SA, a sica Ferries') sought to recover from the public limited company governed by Lux­ Corporazione dei Piloti del Porto di Genova embourg law. J (Corporation of Pilots of the Port of Genoa, hereinafter referred to as 'the Corporation') the sums which it paid for piloting services, in its view contrary to Community law. The piloting services consist in a piloťs being present alongside the master of a vessel whilst the vessel enters the port and moors, According to its own statements, Corsica in particular in order to indicate the course Ferries manages the fleet of the Tour Ship to be steered and to assist the master with group as the shipping agent for the ship­ the necessary manoeuvres. owner (as regards the identity of the ship­ owner, see section 22). Since 1989, it has been directly responsible, as a sea transport undertaking, for the operation of the sched­ uled service between the Port of Genoa and

4. The rules of Italian law governing piloting services are set out in Articles 86 to 100 of the Codice di Navigazione (Navigation Code, hereinafter referred to as 'the Code') I would just make one additional comment and in Articles 98 to 137 of the Regolamento about the structure of the Tour Ship group: di Esecuzione (Navigazione Marittima) Corsica Ferries' counsel stated at the hearing (Implementing Regulation (Maritime Navi- that the sole shareholder in the Luxembourg gation)). company Tour Ship Group is Mr F. Lota, a French national residing in Bastia (Corsica). Through the Luxembourg holding company, Mr Lota controls not only Corsica Ferries, but also Corsica Ferries France and Corsica Ferries Panama, which have recently been renamed Tour Ship France and Tour Ship Under Article 86 of the Code, a corporation Panama. of pilots, with legal personality, is to be set up by decree of the President of the Repub- lic in ports and other places for the access or passage of vessels where there is a recognized need for a piloting service.

5. In practice, an agreement for the provi- the Italian coast. 5 The tariff applicable to sion of services for valuable consideration vessels with a cabotage licence was 30% arises between the Corporation and the mas- lower than the tariffs which vessels without ter of the vessel — representing the ship- such a licence had to pay for the same pilot- owner — under which a pilot, who is a ing service. In addition, a reduction of 50% member of the Corporation, is to provide his was granted to vessels carrying out regular services to the master. scheduled services between Italian ports according to a fixed route and making at least one stopover a week at the Port of Genoa. Lastly, other reductions were granted to vessels of over 2 000 tonnes gross tonnage carrying out cabotage and using piloting ser- vices a specified number of times each Under Article 91 of the Code, piloting tariffs month. are to be approved by the Minister for the Merchant Navy after consulting interested trade associations. The tariffs are put into effect in each port by decree of the compe- tent maritime authority.

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OPINION OF MR VAN GERVEN — CASE C-18/93

7. The Corporation considers that Commu- (3) Is Article 59 of the EEC Treaty compat- nity law has not been infringed and refuses ible, in the case of vessels providing a to reimburse the amounts claimed by Cor- regular scheduled service between two sica Ferries. The national court considered Member States, with the provisions of that 'a correct and accurate interpretation of national law which authorize reductions the substance and scope' of the Treaty provi- in the compulsory tariffs applied to the sions on competition and the free movement piloting service in domestic harbours to of persons, goods and services was necessary be made exclusively in respect of vessels in order to determine whether or not the flying the national flag? application should be upheld, and referred the following questions to the Court of Jus- tice for a preliminary ruling:

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only to vessels flying the national and flying the flag of a Member State can flag; invoke the freedom to provide maritime transport services. Accordingly, both the Corporation and the Italian Government claim principally that the Court should declare inadmissible all the questions referred for a preliminary ruling by the (b) to apply to vessels flying foreign national court. In the alternative, they pro- flags, in the light of the foregoing, pose that the Court should reformulate the tariffs which provide for charges of first and second questions in the light of the an amount "three times" higher circumstances of the case and declare all the than those laid down for domestic other questions inadmissible. At the hearing, vessels; the French Government supported the latter view.

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by Article 177 of the EC Treaty: 10. The Court has always shown particular flexibility about the admissibility of prelimi- nary questions raised in such proceedings for a court order. It has, on several occasions, dismissed objections of inadmissibility raised — generally by the Italian Government — ' The procedure provided for in Article 177 on the ground of the specific nature of such of the Treaty is ... an instrument for cooper- proceedings. The Court rejected such an ation between the Court of Justice and the objection for the first time in the judgment national courts, whereby the Court of Justice in Politi v Italy. In answer to a question as to provides the national courts with the criteria whether the conditions for the application of for the interpretation of Community law the second paragraph of Article 177 of the which they need in order to dispose of the EC Treaty were fulfilled, the Court stated as disputes which they are called upon to follows: resolve. ' 7

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'Article 177 does not make the reference to defended proceedings — the fact that the the Court subject to whether the proceed- main proceedings are not defended has, in ings at the conclusion of which the national principle, no bearing on the admissibility of court has drawn up the reference for a pre- the questions referred to the Court. It never- liminary ruling were or were not defended'. 9 theless appears from the established case-law that, in view of the aim of Article 177 of the EC Treaty, the Court does not regard itself as having jurisdiction to give an answer where the questions referred to it are mani- The Court confirmed those two judgments festly hypothetical, 12 where it is quite obvi- in Simmenthal, but qualified its view as fol- ous that the interpretation of Community lows: law sought by the national court has no rela- tion to the actual nature of the case or to the facts of the main proceedings u and where the preliminary questions therefore do not ' Nevertheless, although Article 177 does not involve an interpretation of Community law make the reference to the Court subject to objectively required in order to settle the whether the proceedings during which the dispute in the main action 14 or where the national court draws up the reference for a national court has not provided the Court preliminary ruling were defended, it may with sufficient factual or legal information where necessary prove to be in the interests for it to find that there is such an objective of the proper administration of justice that a requirement. 15 question should be referred for a preliminary ruling only after both sides have been heard.

11. Consequently, it appears from that case- law that the national court is unquestionably 12 — The Court confirmed that it has no jurisdiction to deliver a 'court or tribunal' within the meaning of advisory opinions on general or hypothetical questíons as long ago as its judgment in Case 244/80 Foglia v Novello Article 177 of the Treaty u and that — even [1981] ECR 3045, paragraph 18. In the judgment which it gave on 16 July 1992 in Case C-83/91 Meilicke [1992] E C R though the Court states a preference for 1-4871 the Court refused for the first time to answer any of the questions referred for a preliminary ruling. 13 — Judgment in Case 126/80 Salonia v Poidomani and Others [1981] ECR 1563, paragraph 6, and trie judgment in Case C-368/89 Crispoltoni [1991] ECR 1-3695, paragraph 11; see 9 — Judgment in Birra Dreher, end of paragraph 3. also the judgments in Case C-186/90 Dunghello [1991] 10 — Judgment in Simmenthal, paragraphs 10 and 11; this point ECR 1-5773, paragraph 9, in Case C-343/90 Lourenço Dias of view has recently been confirmed in paragraph 16 of the [1992] ECR 1-4673, paragraph 18, and in Case C-67/91 judgment in Ligur Carni, cited in footnote 8. Asociación Española de Banca Pnvada and Others [1992] ECR 1-4785, paragraph 26. See also the order in Case 11 — It is 'a court or tribunal which is called upon to give judg- C-286/88 Falciola [1990] ECR 1-191, paragraph 8. ment in proceedings intended to lead to a decision of a judi- cial nature"; order in Case 138/80 Borker [1980] ECR 1975, 14 — Order in Falciola, cited in the preceding footnote, end of paragraph 4; judgment in Case 318/85 Greis Unterweger paragraph 9. [1986] ECR 955, paragraph 4. It also satisfies the require- 15 — See the judgment in Joined Cases C-321/90 and C-322/90 ment laid down in the recent judgment in Corhiau uiat it Telemarsicalruzzo and Others [1993] ECR 1-393, para- must be 'an authority acting as a third party in relation to graphs 6 to 10 and the orders in Case C-157/92 Banchero the authority which adopted the decision forming the [1993] ECR 1-1085, paragraphs 4 to 7, and in Case subject-matter of the proceedings' (judgment in Case C-386/92 Monin Automobiles [1993] ECR 1-2049, para- C-24/92 Corhiau [1993] ECR 1-1277, paragraph 15). graphs 6 to 9.

that Corsica Ferries has produced sufficient are reformulated in order to extract the documents to show that it did in fact pay the aspects of Community law requiring inter- Corporation the amounts which it seeks to pretation, 16 two main questions remain: (i) recover and that — provided that the argu- are the differentiated tariffs charged for pilot- ments used to support the submission that ing services consistent with the Community the differences in tariffs at issue are incom- principle of freedom to provide services and patible with Community law prove to be (ii) is it compatible with Articles 90 and 86 well founded — it therefore has a money of the EC Treaty for a national authority to claim within the meaning of Article 633 of enable an undertaking such as the Corpora- the Codice di Procedura Civile for an tion to charge different tariffs for identical amount which is certain, namely the amount services? of the differences in tariffs. However, the other arguments put forward by Corsica Ferries — namely that the obligation to use piloting services is incompatible per se with Community law (dealt with in question 2) or that the manner in which the tariffs are fixed (question 4) or the circumstances in which Compatibility of differentiated tariffs with remuneration may be charged for piloting the Community principle of freedom to services (question 5(c)) mean that the national provide services provisions are incompatible with Commu- nity law — are not related to the amount of the claim. O n the contrary, they are con- cerned with the legal basis for the claim and hence with how it arose . If the way in which that claim arose is not valid, payment is not A — Inapplicability of Articles 5, 6 and 59 of due and the amount paid may be recovered the EC Treaty. Applicability ratione materiae in full. The Commission states in this con- of Regulation (EEC) No 4055/86 nection that such a dispute cannot be the subject of proceedings for a court order under Article 633 of the Codice di Procedura Civile because it does not relate to a money claim. Without wishing to express a formal view on that issue, I consider that the national court has described the national legal context insufficiently to enable the Court to declare that it has jurisdiction to 13. In its first and third questions, the answer questions 2, 4 and 5(c). national court asks the Court whether differ- entiated tariffs for piloting are compatible with three provisions of the EC Treaty, namely Article 5, Article 6 (Article 7 prior to the entry into force of the European Union Treaty) and Article 59.

I would observe forthwith that, in my view, the field of transpon shall be governed by Article 5 has no bearing on this case. It the provisions of the Title relating to trans- appears from the Court's case-law that that port'. 20 In the celebrated judgment delivered provision, which requires the Member States on 22 May 1985 in European Parliament v duly to fulfil their Community obligations, Council, the Court inferred from that dero- has no independent effect in a situation gating provision that application of the prin- which, like the one in question, is governed ciples governing freedom to provide services, — as will be shown — by a specific provis- as established in particular by Articles 59 ion of Community law. 17 and 60 of the Treaty, must be achieved, according to the Treaty, by introducing a common transport policy. 21 It was on account of that obligation that the Court found against the Council in that judgment under Article 175 of the EC Treaty for fail- ing to ensure freedom to provide services in Consequently, the question is whether Arti- the sphere of international transport. cles 6 and 59 of the EC Treaty are applicable. Accordingly, Articles 59 and 60 are not of The Court has consistently held that the direct application in the transport sector 22 prohibition of discrimination laid down in — although this does not prevent them (as Article 6 applies independently only to 'situ- will be seen in paragraph 23 below) from ations governed by Community law in serving as a reference point when it is a ques- regard to which the Treaty lays down no tion of the Council's implementing freedom specific prohibition of discrimination'. 18 to supply services in that sector. Since Article 59 of the EC Treaty lays down such a specific prohibition of discrimina- tion, I9 it will now be necessary for me to consider whether it is applicable in a situa- tion such as the one at issue.

of view, the Commission argues that it might gave in European Parliament v Council, the be considered, following the judgments in Council was under a duty to ensure freedom Luisi and Carbone23 and Cowan24, that to provide services in the transport sector. As Corsica Ferries, as a victim of discriminatory regards the sea transport sector, a specific tariffs, can rely on Article 59 of the Treaty. legal basis exists, namely the first subpara- However, I doubt that the judgments in graph of Article 84(2) of the EC Treaty, Luisi and Carbone and Cowan may unques- which provides that the Council may, acting tionably serve as precedents in this case: both by a qualified majority — rather than by a those cases concerned natural persons who unanimous vote as was the case before the were carrying out no economic activity Single European Act —, decide 'whether, to within the meaning of the EC Treaty and what extent and by what procedure appro- came within the scope of Community law priate provisions may be laid down for sea only because they went to another Member and air transport'. Since late 1986, the Coun- State as tourists or patients, that is to say, as cil has adopted various regulations on that persons for whom intra-Community services basis designed to liberalize this sector.

As I have of 22 December 1986 applying the principle already stated, this does not, however, pre- of freedom to provide services to maritime vent the principles of freedom to provide transport between Member States and services set out in Article 59 et seq. of the between Member States and third coun- E C Treaty from also being applicable, but in tries. 26 That regulation entered into force the context of the measures adopted by the Council pursuant to Article 84(2) of the EC

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on 1 January 1987. 27 Article 1 of the regula- 4. For the purposes of this Regulation, the tion confirms the principle of freedom to following shall be considered "maritime provide services in the following terms: transport services between Member States and between Member States and third countries" where they are normally provided for remuneration:

' 1. Freedom to provide maritime transport (a) intra-Community shipping services: 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 the carriage of passengers or goods by sea services are intended. between the ports of a Member State and any port or off-shore installation of another Member State;

2. The provisions of this Regulation shall also apply to nationals of the Member States established outside the Community and to shipping companies established outside the Community and controlled by nationals of a The second regulation which is worth men- Member State, if their vessels are registered tioning here (although it was not adopted in that Member State in accordance with its until after the material facts occurred) is legislation. Council Regulation (EEC) N o 3577/92 (cit- ed in section 6 above). That regulation applies the principle of freedom to provide services to maritime transpon within Mem- ber States, namely maritime cabotage. Arti- cle 1(1) reads as follows:

3. The provisions of Articles 55 to 58 and 62 of the Treaty shall apply to the matters covered by this Regulation. As from 1 January 1993, freedom to pro- vide maritime transport services within a Member State (maritime cabotage) shall 27 — Under Article 12 of the regulation. Article 2 of the regula- apply to Community shipowners who have tion contains specific transitional deadlines for unilateral their ships registered in, and flying the flag national restrictions on the carriage of certain goods wholly or partly reserved for vessels flying the national flag. of a Member State, provided that these ships

17. Since this case is concerned with an undertaking providing scheduled services between the Port of Genoa in Italy and ports B — Applicability ratione personae of Regu- in Corsica in France, intra-Community ship- lation No 4055/86 ping services within the meaning of Arti- cle l(4)(a) of Regulation N o 4055/86 are manifestly involved (and not cabotage ser- vices within the meaning of Regulation N o 3577/92, which was not yet applicable at the time of the facts of the main proceed- ings). As a result, Regulation N o 4055/86 is 18. Before tackling the question as to applicable both ratione materiae and, as will whether Article 1 of Regulation N o 4055/86 subsequently be seen, ratione personae. prohibits discriminatory treatment of a pro- vider of services such as Corsica Ferries, I shall first examine whether Corsica Ferries falls within the scope ratione personae of the regulation. As I have already mentioned (in section 8), the Corporation and the Italian Government maintain that, as an undertak- ing whose vessels fly the Panamanian flag — that is to say, a flag of a third country —, That enables me to give a definitive answer Corsica Ferries cannot rely on the principle forthwith to the question as to whether Arti- of freedom to provide services. cle 6 of the EC Treaty is applicable in this case. The answer is in the negative, since, like Article 59 of the EC Treaty (see section 23 below), Article 1(1) of Regulation N o 4055/86 contains a specific expression of the prohibition of discrimination laid down in Article 6 of the EC Treaty. In the absence 19. I cannot accept that proposition. Unlike of such a specific provision, Article 6 would Article 1(1) of Regulation N o 3577/92, Arti- have been applicable. In the judgment deliv- ered in 1974 in Commission v France, the Court inferred from the special exemption 28 — Judgment in Case 167/73 Commission v France [1974] provided by Article 61(1) of the EC Treaty ECR 359, paragraphs 28 and 32. 29 — Paragraph 32 of the judgment cited in the preceding foot- that, in the field of transport, 'the general note.

The fact that Corsica Regina and Corsica Victoria are not registered in a Member State would only have any effect if it were to appear that Corsica Ferries did not fall within the first but within the second para- graph of Article 1 of Regulation N o 4055/86 (which is set out in section 12 supra). Under that provision, freedom to provide services applies only to nationals of Member States As the Commission has observed, the third established outside the Community and to indent of Article 2 of Regulation N o 4055/86 shipping companies established outside the provides an additional argument in favour of Community and controlled by nationals of a that solution. That provision lays down a Member State, if their vessels are registered specific timetable (expiring on 1 January in that Member State in accordance with its 1993) by which the Member States have to legislation. abolish unilateral national restrictions in existence before 1 July 1986 on the carriage of certain goods 'between Member States and between Member States and third coun- tries in other vessels' (my emphasis), that is to say, vessels which — unlike the vessels

Naturally, account must be taken in this con- nection of the fact that Corsica Ferries is a company and therefore — since among other things Article 1(3) of Regulation N o 4055/86 21. It is clear from the application of those refers to Article 58 of the EC Treaty (see sec- criteria to Corsica Ferries that it is in fact a tion 16 above) — it must have its registered shipping company established in the Com- office, central administration or principal munity: as has already been mentioned (in place of business within the Community in section 2), it is a company incorporated order to be able to qualify for the benefit of under Italian law whose registered office is in freedom to supply services. In this context, it Cagliari and whose activities, in particular should also be borne in mind that the Gen- the activities at issue (operation of regular eral Programme for the abolition of restric- scheduled services between the Port of tions on freedom to provide services — a Genoa and ports in Corsica), unquestionably programme which, as the Court has repeat- show a real and continuous link with the edly stated, provides useful guidance with a economy of a Member State. 34 view to the implementation of the provisions of the Treaty on freedom to provide ser- vices 32 — provides a definition of the compa- nies and firms which benefit by the abolition of restrictions on freedom to provide ser- vices: It also seems clear to me that, not only is Corsica Ferries a 'national of a Member State' within the meaning of Article 1(1) of Regulation N o 4055/86, but it also fulfils the requirement of being 'established in a Mem- ber State other than that of the person for

22. I would add a brief word about who, in the final analysis, is the shipowner in the main proceedings. There was a complete lack of clarity about this at the hearing. Counsel 23. I shall now turn to the scope of Arti- for Corsica Ferries argued that it depends on cle 1(1) of Regulation N o 4055/86. Since, as the definition given to the term 'shipowner': the title of the regulation indicates, that pro- if the criterion employed is the ownership of vision is designed to apply to intra- the vessel, the shipowner is Tour Ship Pan- Community shipping transport the principle ama; if the criterion taken is who bears the of freedom to provide services — a funda- risk connected with the operation of the mental principle of the EC Treaty 36 and its undertaking, the shipowner is Corsica Fer- wording is manifestly based on the first ries itself; if the criterion is who carries out paragraph of Article 59 of the EC Treaty, it real control, the shipowner is Mr Lota. seems fitting to interpret the provision as consistently as possible with the Court's case-law on the first paragraph of Article 59. The Court has already come out in favour of such an approach which is consistent with the Treaty in the judgment in European Par- liament v Commission, which I cited earlier.

' However, the Parliament, the Commission and the Netherlands Government have rightly contended that the obligations imposed on the Council by Article 75(1 )(a) and (b) include the introduction of freedom to provide services in relation to transport, and that the scope of that obligation is clearly defined by the Treaty. Pursuant to Articles 59 and 60 the requirements of free- dom to provide services include, as the 24. Should it be considered in this case that Court held in its judgment of 17 Decem- the conditions for obtaining reduced tariffs ber 1981 (Case 279/80 Webb [1981] ECR for piloting services — namely that the vessel 3305), the removal of any discrimination using the services has to have a cabotage against the person providing services based licence and carry out regular services on his nationality or the fact that he is estab- between Italian ports (see section 6) — con- lished in a Member State other than that stitute discrimination contrary to Commu- where the services are to be provided. ' 3 7 nity law? The Commission considers that this is in fact the case. At the material time, cabotage licences were granted under Arti- cle 224 of the Code only to ships flying the Italian flag. Since, generally speaking, vessels flying the Italian flag belong to Italian nationals or companies, whilst nationals or companies of other Member States do not This is the reason why Article 1 of Regula- generally operate with vessels flying the Ital- tion N o 4055/86 has to be interpreted con- ian flag, the Commission considers that the sistently with the way in which the Court aforementioned conditions constitute covert has interpreted Article 59 of the EC Treaty. It appears from the above quotation that this means — as the Court has consistently held — that any discrimination against a person 38 — See among recent judgments, the judgments in Case 154/89 Commission v France [1991] ECR 1-659, paragraph 12, in providing services on account of his nation- Case C-180/89 Commission v Italy [1991] ECR 1-709, para- ality or on account of the fact that he is graph 15, and in Case C-198/89 Commission v Greece [1991] ECR 1-727, paragraph 16, (the 'tourist guide' judg- established in a Member State other than the ments); the judgment in Case C-260/89 ERT [1991] ECR 1-2925, paragraph 19; the 'Mediawet' judgments, Case one in which the service is provided is pro- C-353/89 Commission v Netherlands [1991] ECR 1-4069, paragraph 14, and Case C-288/89 Collectieve Anten- nevoorziening Gouda [1991] ECR 1-4007, paragraph 10; and the judgments in Case C-106/91 Ramrath [1992] ECR 1-3352, paragraph 27, and in Case C-17/92 Distribuidores Cinematográficos [1993] ECR 1-2239, paragraph 13. 37 — Judgment in European Parliament v Council, cited in foot- note 21, at paragraph 64. See also the judgments in Joined 39 — Judgment in Joined Cases 62/81 and 63/81 Seco [1982] Cases 209 to 213/84 Asjes [1986] ECR 1425, paragraph 37, ECR 223, paragraph 8; more recendy, see in particular the and in Case C-49/89 Corsica Ferries France [1989] judgment in Case C-360/89 Commission v Italy [1992] E C R 4441, paragraph 11. ECR 1-3401, paragraph 11.

the French legislation at issue in the main ' the articles of the EEC Treaty concerning proceedings may constitute a restriction on the free movement of goods, persons, ser- freedom to provide services within the Com- vices and capital are fundamental Commu- munity within the meaning of the first para- graph 59 of the EEC Treaty in so far as it discriminates between persons providing 40 — Judgment in Corsica Ferries France, cited in footnote 37, at transpon services between a port situated in paragraph 7. national territory and a port situated in 41 — This view is also taken by G. Marenco, T h e Notion of Restriction on the Freedom of Establishment and Provision another Member State of the Community of Services in the Case-Law of the Court', in Yearbook of European Law, Volume 11, Oxford, Clarendon Press, 1992, and persons providing transport services (111), p. 144.

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27. Although I can agree that piloting ser­ 26. The Corporation and the Italian Gov­ vices do have a function to perform with a ernment have sought to persuade the Court view to ordering movements in and around that the differences in tariffs could be objec­ the port and in that respect are concerned tively justified. In their contention, the pilot­ with public security in the broad sense — a ing services were necessary to ensure the ground of justification expressly recognized safety of vessels moving in and around the in Article 56 of the E C Treaty, which is applicable in this case as a result of Arti­ cle 1(3) of Regulation N o 4055/86 (see sec­ tion 12 above) — , I cannot see why a differ­ 42 — Judgment in Corsica Ferries France, paragraph 8 ( m y ence in the tariffs charged for those services emphasis). See also, as regards freedom of establishment, the judgment in Case 270/83 Commission v France [1986] is necessary in order to ensure shipping safe­ E C R 273, end of paragraph 21, and, as regards free move­ 45 ment of goods, the judgment in Case C-126/91 Yves Rocher ty. [1993] E C R 1-2361, paragraph 21 (in which an exception was made for purely hypothetical barriers). 43 — As its final sentence states, the regulation of which this p r o ­ vision forms part is binding in its entirety and directly applicable in all Member Sutes in accordance with the sec­ 45 — It appears from the judgment in Case 16/78 Cboquet [1978] ond paragraph of Article 189 of the E E C Treaty. E C R 2293, paragraph 8, that the requirements for the safety 44 — See, as regards Article 59 of the E C Treaty, the judgments of highway traffic may in any event constitute a ground of in Case 36/74 Walrave [1974] E C R 1405, paragraph 17, and general interest justifying non-discriminatory restrictions in Case 13/76 Dona [1976] E C R 1333, paragraph 17. on freedom to provide services.

The same reservation essentially applies to pursued and hence do not comply with the the national transport and environment pol- principle of proportionality. icy choices prayed in aid. Whilst it is true that reasons relating to transport infrastruc- ture and environment protection certainly qualify as grounds for non-discriminatory restrictions on intra-Community services, 46 it seems to me that the application of differ- entiated tariffs is by no means necessary in order to achieve the policy objectives pro- moted, even regardless of the fact that it is not certain that the differentiated tariffs at Lastly, as regards the argument based on issue, which have discriminatory effects, are Regulation N o 3577/92, it is true that it was capable of being justified on the grounds of only through the adoption of that regulation policy aims which can be relied on only in that the Council finally implemented the order to support non-discriminatory restric- principle of freedom to provide services in tions. 47 In order to make maritime transport the field of maritime transport within Mem- within Italy competitive with transport over ber States. However, that simply means that, land, it would have been sufficient — and until that regulation entered into force, even appropriate — to make piloting tariffs Community law allowed the Member States cheaper for all vessels; it was not necessary to apply restrictions with regard to the pro- to that end to apply differentiated tariffs vision of services in the field of cabotage. 4S depending on whether or not the vessels In contrast, as far as the provision of services were flying the Italian flag. It is clear, more- in the field of intra-Community shipping over, from the circular of 18 December 1992 transport — as is at issue in the main pro- (see section 6 above), which extended the tar- ceedings — was concerned, the Member iffs applicable to vessels licensed for cabotage States were under a duty to abolish restric- operations to vessels flying the flag of tions as from 1 January 1987, that is to say, another Member State, that a different solu- as from the entry into force of Regulation tion was possible. Consequently, the differ- N o 4055/86. ential tariffs in force until that time were not necessary in order to achieve the aims

business is located in Italy, Corsica Ferries 29. It is clear from what I have already said can actually rely on Article 1(1) of Regula- that here all the relevant elements are not tion N o 4055/86 as against the Italian confined within a single Member State: the authorities. To my mind, the proper starting mere fact that Corsica Ferries provides regu- point should be the following considerations lar scheduled services between the Port of set out by the Court in the 'tourist guide' Genoa and ports in Corsica is a relevant judgments: intra-Community element (see section 17

It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot I nevertheless take the view that this ques- apply (judgment in Case 52/79 Procureur du tion should be answered in the affirmative, Roi v Debauve [1980] ECR 833, at para- since the services provided in this case are, graph 9). by reason of their nature, intended for both recipients from another Member State and for nationals, more specifically for both French recipients (and travellers from other Member States) and Italian recipients.

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own country, 5 0 where it refuses to recognize intended for recipients from other Member professional qualifications acquired by its States. nationals in another Member State 51 or where it puts restrictions on the use of a uni- versity degree obtained in another Member State 52 or, more generally, where it treats them less favourably when they wish to work in more than one Member State, for Compatibility with Articles 86 and 90 of the instance by subjecting them to more burden- EC Treaty of a measure of a national some treatment in the field of social secur- authority authorizing an undertaking such ity. « as the Corporation to apply differentiated tariffs

50 — Judgment in Case 81/87 Daily Mail [1988] ECR 5483, para- graph 16. 51 — Judgment in Case 115/78 Knoors [1979] ECR 399, para- In order to answer this question properly, I graph 24. must first consider whether the Corporation 52 — Judgment in Case C-19/92 Kraus [1993] ECR 1-1663, para- graph 32. should in fact be regarded as an undertaking 53 — Judgments in Case 143/87 Stanton [1988] ECR 3877, para- which has been granted special or exclusive graphs 13 and 14, and in Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraphs 13 and 14. rights within the meaning of Article 90(1) of 54 — This case was concerned with a company incorporated the EC Treaty. I shall then examine whether under French law which relied on Article 59 of the EC Treaty against the French authorities on the ground that the the charging of differentiated tariffs consti- ultra-Community services which it provided were subject tutes an abuse of a dominant position in a to discriminatory treatment in comparison with similar domestic services. substantial part of the common market.

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O P I N I O N O F MR VAN GERVEN — CASE C-18/93

B — Does the charging of differentiated tar- iffs constitute an abuse of a dominant position within the meaning of Article 86 of the EC Treaty?

' a dock-work undertaking enjoying the exclusive right to organize dock work for third parties, as well as a dock-work com- pany having the exclusive right to perform dock work must be regarded as undertakings to which exclusive rights have been granted 32. The fact that the Corporation is an by the State within the meaning of Arti- undertaking to which exclusive rights have cle 90(1) of the Treaty ' . 5 6 been granted within the meaning of Arti- cle 90(1) of the EC Treaty has important

55 — The judgment in Merci , cited in ^paragraph 18, also con- tains, in paragraphs 25 to 28, sufficient indications as to the 57 — Judgment in Case C-41/90 Höfner and Elser [1991] ECR applicability of Article 90(2) which may be applied to the 1-1979, paragraph 21; this case-law has recently been con- present case by analogy. firmed m the judgment in Joined Cases C-159/91 and 56 ·— Judgment in Mera , paragraph 9. C-160/91 Poucet [1993] ECR 1-637, paragraph 17.

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CORSICA FERRIES

consequences for the applicability of Arti- Genoa and the performance of such work. cle 86 of the EC Treaty. As has been con- Regard being had in particular to the volume firmed in particular by the judgment in of traffic in that port and its importance in Merci and, even more recently, by the judg- relation to maritime import and export oper- ment in Corbeau, the Court has consistently ations as a whole in the Member State con- held that cerned, that market may be regarded as con- stituting a substantial part of the common market '. 59

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OPINION OF MR VAN GERVEN — CASE C-18/93

60 — Judgment in Joined Cases 253/78 and 1 to 3/79 Giry and Guerlain [1980] ECR 2327, paragraph 15. See the judgment 34. The Italian Government argues that the in Case 14/68 Wilhelm [1969] ECR 1, paragraph 3, deliv- ered as long ago as 13 February 1969. As regards the rela- differences in tariffs do not constitute an tionship between the Community provisions on competi- abuse of a dominant position within the tion and national rules on the supervision of a particular economic sector, see the judgment in Case 45/85 Verband meaning of Article 86 of the EC Treaty. It der Versicherer v Commission [1987] ECR 405, paragraph 23. maintains that the differences are justified on

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CORSICA FERRIES

61 — In this respect, a parallel may be drawn with the situation at issue in the case of United Brands (judgment in Case 27/76 United Brands [1978] ECR 207): there the Court held that the discriminatory pricing policy practised by UBC, which invoiced distributor/ripeners at prices which differed from one Member State to another for identical quantities and types of bananas constituted an abuse of a dominant posi- tion on the ground that '[t] hese discriminatory practices, which varied according to the circumstances of the Member ' Article 86 does not require it to be proved Sutes, were just so many obstacles to the free movement of goods and their effect was intensified by the clause forbid- that the abusive conduct has in fact apprecia- ding the resale of bananas while still green and by reducing the deliveries of the quantities ordered' (paragraph 232) and that 'a rigid partitioning of national markets was thus cre- ated at price levels which were artificially different, placing certain distributor/ripeners at a competitive disadvantage, since compared with what it should have been competition 62 — Cited in the preceding footnote. had thereby been distorted' (paragraph 233). The same rea- 63 — See paragraphs 18 and 19 of that judgment. soning can be applied mutatis mutandis in the present case: the differentiated tariffs charged by the Corporation consti- 64 — Cf. paragraph 20 of the judgment in Merci, where, in order tute an obstacle to freedom to provide intra-Community to answer the question whether the rules at issue were liable shipping transport services and place persons providing to affect trade between the Member Sutes, the C o u r t such services at a disadvantageous competitive position. referred to what it held in paragraph 15 of that judgment (quoted above in the body of my Opinion).

65 — Judgment in Case 322/81 Michelin v Commission [1983] 66 — In the Dutch language version, the authors of the European E C R 3461, paragraph 104 in fine (my emphasis); see also Union Treaty omitted to alter the reference to Article 7, the judgments in Case 226/84 British Leytand v Commis- which has been renumbered Article 6. sion [1986] ECR 3263, paragraph 20, and in Höfner and 67 — Judgment in ERT, cited in footnote 38, at paragraph 35. See Elser, cited in footnote 57, at paragraph 32. See also the also the earlier judgment in Case 13/77 INNO [1977] judgments of the Court of First Instance in T-69/89 RTE v ECR 2115, paragraphs 31 and 32. Commission [1991] ECR 11-485, paragraph 76, and in Case T-70/89 BBC v Commission [1991] ECR 11-535, paragraph 68 — Compare the judgment in Case 66/86 Ahmed Saeed [1989] 64. The Court of Justice gave an even broader interpreta- ECR 803, paragraph 3 of the operative part, in which the tion in the judgment in Case 247/86 Alsatel [1988] Court ruled that Articles 5 and 90 of the Treaty precluded E C R 5987, paragraph 11, that is to say, that Article 86 of the approval by national authorities of tariffs resulting from the E C Treaty covers all practices 'which may influence, tariffagreements contrary to Article 85(1) of the E C Treaty. directly or indirectly, actually or potentially, patterns of trade between the Member States and thereby hinder the economic interpénétration intended by the Treaty'.

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CORSICA FERRIES

(2) it is contrary to the Community principle of freedom to provide services, which, in the case of maritime transport between the Member States, is laid down in Article 1(1) of Regulation N o 4055/86, to charge, for identical pilot- ing services, a different tariff depending on whether an undertaking providing transport services between two Member States is involved or an undertaking providing such services between ports located in the national territory;