C-381/93

3. Article 1(1) of Regulation No 4055/86 provides on this point, using almost identical wording to Article 59, that: 1. I . In this action for failure to fulfil Treaty obligations the Commission claims that the French Republic has infringed Article 1 of Regulation (EEC) No 4055/86, 1 which introduced the principle of freedom to pro­ vide services in the sector of maritime trans­ port between Member States and between Member States and third countries. The infringement is said to consist in the fact that 'Freedom to provide maritime transport ser­ the defendant Member State imposed differ­ vices between Member States and between ent charges for the use of French port instal­ Member States and third countries shall lations in passenger transport, depending on apply in respect of nationals of Member whether the transport was between domestic States who are established in a Member State ports or between those ports and the ports other than that of the person for whom the of other Member States. services are intended.'

" Original language: German. 2 — See also the second recital in the preamble to Regulation 1 — Council Regulation of 22 December 1986 applying the prin­ No 4055/86. ciple of freedom to provide services to maritime transport 3 — Consistent case-law; see, most recently, the judgment in between Member States and between Member States and Case C-18/93 Corsica Ferries Italia [1991] ECR I-1783, third countries (OJ 1986 L 378, p. 1). paragraph 24.

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4. Article 1(2), (3) and (4) provides as fol­ ...` lows:

4. For the purpose of this Regulation, the 6. Articles 2 to 4 of the regulation contain following shall be considered "maritime transitional provisions relating to 'unilateral transport services between Member States national restrictions on the carriage of cer­ and between Member States and third coun­ tain goods' and existing 'cargo-sharing tries" where they are normally provided for arrangements' between Member States and 4 remuneration: third countries. Such arrangements can in future be concluded only in accordance with the provisions of Articles 5 and 6. Apart from that, the regulation does not provide for any restrictions of the freedom to pro­ vide services guaranteed by Article 1. In par­ (a) intra-Community shipping services: ticular, apart from the aforesaid exceptions, there is no transitional period, so that the principle of freedom to provide services applies from 1 January 1987, the date when the regulation entered into force (Article 12).

the carriage of passengers or goods by sea between any port of a Member State and any port or offshore installation of another 4 — Those provisions incidentally provide the explanation for Article 9 of the regulation, which is modelled on Article Member State; 65 of the Treaty.

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7. Since the material scope of that regulation mean services normally provided for remu­ is limited to transport between Member neration and shall in particular include: States and between Member States and third countries, the Council considered it appro­ priate to complement it by a regulation on maritime transport within Member States (maritime cabotage), namely Regulation 5 (a) mainland cabotage: the carriage of passen­ (EEC) No 3577/92. Under Article 1(1) of gers or goods by sea between ports situ­ that regulation: ated on the mainland or the main terri­ tory of one and the same Member State without calls at islands;

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9. The fourth indent of Article 6(1) provides times (Code of maritime ports) are incom­ for the following exception: patible with that regulation. Those articles lay down detailed rules on the harbour charges for the use of French maritime ports. On expiry of the time-limit set by the Com­ mission in its reasoned opinion (April 7 1993 or thereabouts) those provisions were applicable in the version of 1 October 1992. 8 'By way of derogation, the following mari­ time transport services carried out in the Mediterranean and along the coast of Spain, Portugal and France shall be temporarily exempted from the implementation of this Regulation: 12. Under Article R 212-17 a charge is levied on shipowners in respect of passengers embarking, disembarking or transshipping in the maritime ports of metropolitan France. The shipowner can pass the charge on to the passengers.

9 13. The first paragraph of Article R 212-19 —· regular passenger and ferry services, until defined the following categories in respect of 1 January 1999.' charges levied in maritime ports of continen- tal France for the use of a hovercraft or other commercial vessel:

10. Regulation No 3577/92 entered into force on 1 January 1993, in accordance with — passengers bound for a continental Article 11. French port: FF 8.28 (with a 50% reduc­ tion for fourth class passengers). For the

6 — See the codified version in accordance with Decree No 78-487 (Journal officiel de la République française (/ORF), 2 April 1978). 7 — The reasoned opinion is dated 25 January 1993. It stated that 11. The Commission's complaint in the the Member State concerned was to comply within two months from notification of the reasoned opinion. I presume present proceedings relates primarily to Reg­ that the document was notified immediately after being ulation No 4055/86. In the Commission's drawn up. 8 — Decree No 92-1089 (JORF, 7 October 1992). opinion, Articles R 212-17, R 212-19 and R 9 — The second paragraph provided for various reductions, 212-20 of the French Code des ports mari­ which are, however, of no relevance for the present case.

— secondly, for transport between French ports the charge is levied only on 14. Under the first paragraph of Article embarking, whereas for transport R 212-10, those charges were determined as between French ports and ports of other follows in the maritime ports of Corsica: Member States the charge is levied for both embarking and disembarking.

— passengers travelling to a port in Corsica, continental France or Sardinia: FF 8.28 (with a 50% reduction for fourth class 16. In the Commission's opinion, the rules passengers) (1). thus distinguish ('discriminate') between

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transport services to and from French ports 18. The French Cour de cassation, which and transport services to or from a port in had before it an action by Corsica Ferries another Member State which thus have a France for reimbursement of port charges, cross-border element. That is so despite the had referred a question to the Court on the fact that the use of the port for which the compatibility of the above rules with Arti­ charge is intended as payment is the same in cles 59, 62 and 84 of the Treaty. However, both cases. Such provisions may influence since Regulation No 4055/86 was not yet in passengers' choice of routes. They thus have force at the material time for the main pro­ 13 the effect of an obstruction, prohibited by ceedings, the Court held: Regulation No 4055/86, of freedom to pro­ vide services.

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munity within the meaning of the first para­ is excluded from freedom to provide services graph of Article 59 of the EEC Treaty in so until 1 January 1999. For both groups of ser­ far as it discriminates between persons pro­ vices France satisfies the requirements arising viding transport services between a port sit­ from the principle of freedom to provide ser­ uated in national territory and a port situated vices. Those requirements consist of 'the in another Member State of the Community abolition of all discrimination against a per­ and persons providing transport services son providing a service on the grounds of his between two ports situated in national terri­ nationality or the fact that he is established tory'. in a Member State other than that in which 1 the service must be provided'. 4

23. Whether France respects the Treaty pro­ visions on non-discrimination must be ascer­ tained separately for each of the two groups 21. III. The defendant Member State argues, of services. To compare one French rule with on the other hand, that Regulation No the other, as the Commission does, is not 4055/86 relates only to transport services possible, since — the French Government between Member States and between Mem­ ber States and third countries, while freedom to provide services in the maritime cabotage 14 — Judgment in Joined Cases 62 and 63/81 Seco v EVl [1932] sector is governed by Regulation No ECK 223, paragraph 8. See, more recently, the judgments in 3577/92. Under Article 6 of the latter regula­ Case C-288/89 Collectieve Antennevoorzicmng Gondii [1991] ECR I-1007, paragraph 10 and Case C-353/89 Com- tion, however, in the case of France cabotage mission I Netherlands [1991] ECR I-1069, par.lgrapli 14.

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OPINION OF ADVOCATE GENERAL LENZ — CASE C-381/93

adds in its rejoinder — the principle of free­ themselves — freedom to provide services dom to provide services in the maritime does not yet apply to cabotage in France. transport sector does not mean that intra- Moreover, intra-Community passenger Community transport and internal transport transport to and from French ports, which is cannot be governed by different rules, espe­ subject to the higher charges, is largely car­ cially if that principle applies only to one of ried out by French companies or companies the two types of transport. established in France.

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COMMISSION v FRANCE

under which those services must keep to a barkation and the embarkation of pas­ reasonable frequency throughout the year sengers in the case of vessels using port and special tariff conditions apply. Traffic installations situated on its continental or between Corsica and Italy, on the other island territory arriving from ports situ­ hand, is purely seasonal and is operated on a ated in another Member State or travel­ purely commercial basis. The fares are lower ling to them, whereas in the case of pas­ than those between Corsica and the main­ senger transport between two ports land, and that difference already existed situated on national territory those before the levying of the charge on disem­ charges are levied only on embarkation 16 barkation was discontinued. The Commis­ for departure from the continental or sion's arguments in this case are thus purely island port, and by applying higher rates theoretical. of charges when passengers arrive from or embark for ports situated in another Member State than when they travel to a port situated on national territory, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 4055/86 of 28. Finally, for the sake of completeness, it 22 December 1986 applying the principle should be noted that, according to agreed of freedom to provide services to mari­ information supplied by the parties at the time transport between Member States hearing, the contested provisions have been and between Member States and third amended since the filing of the rejoinder. In countries; 17 the new version the charge is now levied on embarking and disembarking at uniform rates for both types of transport in question here.

OPINION OF ADVOCATE GENERAL LENZ — CASE C-381/93

B — Opinion 33. Apart from the judgment in the Corsica Ferries I case, the value of referring to which is disputed by the parties, the Court has not yet stated a position on that point. It is, however, possible to find useful indications in judgments on the interpretation of basic freedoms in other fields, if one constant fea­ ture of those basic freedoms is kept in mind. 30. I. The Commission's application prima­ That constant feature is that the exercise of rily raises the question whether there is an the basic freedoms always relates to — at infringement of the freedom to provide ser­ least — two Member States of the Commu­ vices guaranteed by Regulation No 4055/86, nity: situations which are limited in all if the system of charges was more favourable respects to the territory of one Member State for the economic operators concerned in the 18 are not covered by the basic freedoms. case of internal transport than in the case of intra-Community transport. The Commis­ sion regards this as an independent breach of the Treaty. The alleged disguised discrimina­ tion on the grounds of nationality, on the other hand, is in the Commission's view, as expressed in the arguments summarized above, only a side-effect of that breach.

34. For the fundamental freedoms to be able to produce their full effect, all the States con­ cerned must cooperate in making them a reality, in other words, ensuring that the crossing of an intra-Community frontier is 31. //. On the question which is at the cen­ not obstructed by specific restrictions. tre of this case, it must be stated at the outset that the French rules do not distinguish according to the nationality or establishment of the person providing the service, but according to the route of the transport ser­ vice.

the latter provision concerns 'national mea­ sures which have as their specific object or effect the restriction of patterns of exports 'Even though those provisions are directed and thereby the establishment of a difference mainly to ensuring that foreign nationals and in treatment between the domestic trade of a companies are treated in the host Member Member State and its export trade in such a State in the same way as nationals of that way as to provide a particular advantage for State, they also prohibit the Member State of national production or for the domestic mar­ origin from hindering the establishment in ket of the State in question at the expense of another Member State of one of its nationals the production or of the trade of other or of a company incorporated under its leg­ Member States'. 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 ingless if the Member State of origin could prohibit undertakings from leaving in order to establish themselves in another Member 37. In other words, the exporting State, in State. In regard to natural persons, the which the act of exercise of the fundamental right to leave their territory for that purpose freedom commences, must not place move­ is expressly provided for in Directive ments of goods which cross its frontier and 73/148 ... .' thus have the cross-frontier element essential for Article 30 et seq. in a worse position than movements of goods that remain within those frontiers and thus lack that element.

did not apply to transport services crossing a in comparison with the market in which frontier as to purely internal transport ser­ French shipowners operate as exporters of vices. services. As the French Government con­ cedes, such a cabotage market exists, namely between Corsica and the French mainland. That freedom to provide services does not yet apply to that market merely means that economic operators from other Member States have no right of access to that market. 40. If an economic operator established in However, that has nothing to do with the Member State A transports persons or goods right, postulated above, to be able to provide (by sea) between that State and another services which affect the territory of other Member State, that transport service has a Member States under the same conditions as cross-border element which is relevant for services which affect only the territory of the 25 freedom to provide services within the Member State of establishment. meaning of Article 1 of Regulation No 4055/86, since that service is provided, at least in part, in a Member State other than that in which the economic operator is estab­ 24 lished. If a transport service which has that cross-border element is treated worse than a transport service without that element, that economic operator's freedom to provide ser­ vices is restricted by an obstruction of the type which was the subject-matter of the Groenveld judgment in the field of free movement of goods. 42. It is true, however, that the above con­ siderations concern directly only economic operators established in France. Operators from other Member States (together with the economic operators equated with them under Article 1(2) of Regulation No 41. That reasoning is also not affected by the 4055/86) who provide transport services French Government's observation that the between France and other Member States purely internal transport used as a compari­ are, in relation to France, not exporters but 26 son is until 1 January 1991 not yet subject to importers of those services. In that respect freedom to provide services. It suffices for present purposes that a cabotage market exists, which receives preferential treatment 25 — See also paragraph 23 in my Opinion in Case C-49/89 (cit­ ed in note 23 above). 26 — While in the case of free movement of goods, the process of export concerns the State in which the goods (before being exported) are in free circulation, the 'State of export' in the 23 — Opinion in Case C-49/89 [1989] ECR 4447, at p. 4450, case of freedom to provide services is, for the purpose of paragraph 17. the above considerations, the State of establishment from 24 — See paragraphs 9 and 10 of the judgments in Case which the service is provided. On the problem of services C-154/89 Commission v France [1991] ECR I-659 and Case which are provided from an establishment in another Mem­ C-198/89 Commission v Greece [1991] ECR I-727; para­ ber State for the purpose of circumventing domestic legis­ graphs 8 and 9 of the judgment in Case C-180/89 Commis- lation, see my Opinion in Case C-23/93 TV 10 v Commis- sion v Italy [1991] ECR I-709. See also my Opinion in the sariaat voor de Media [1994] ECR 1-4795, I-4797, and the Peralta case (cited in note 20), paragraphs 74 and 75. case-law discussed there.

47. The defendant Member State's submis­ 44. It follows that the French provisions in sion at the hearing referring to the differ­ question infringed Article 1 of Regulation ences between traffic between Corsica and No 4055/86. the mainland on the one hand and between 30 Corsica and Italy on the other hand does not convince me either. It is essentially a rep­ etition of the argument which has just been discussed on the alleged trivial nature of the infringement, and it should therefore be rejected for the same reasons. 45. That conclusion is not affected by the defendant Member State's submission that the charges in question were not capable of influencing passengers' choice of route, in 2S — See the judgments cited in note 14, in particular Collectieve Antennevoorziening Gonda, paragraphs 10 and 11, and Commission v Netherlands, paragraphs H and 15. 29 — See also paragraph 8 of the Corsica Ferries 1 judgment (note 10). 27 — See paragraph 21 above and note 14. 30 — See paragraph 27 above.

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48. If that submission were to be interpreted 49. The infringement which has thus been as the praying in aid in its defence by the found of Article 1 of Regulation No defendant Member State of Article 90(2) of 4055/86 was still in existence on expiry of the Treaty, that could not be accepted either. the time-limit set by the Commission Apart from the fact that reliance on that pro­ in its reasoned opinion (and continued until vision would be out of time in view of Arti­ after filing of the rejoinder). The changes cle 42(2) of the Court's Rules of Procedure, 31 made by Decree No 94-420 cannot be there is also nothing to show that the differ­ taken into account in the present procee­ ing systems of charges are necessary for the dings, since only the legal position performance of tasks by the holder of the on expiry of that time-limit is relevant concession. 32 here.