C-430/99

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between Member States and third coun- and between Member States and third tries, 2 Article 1 of which reads: countries" where they are normally pro- vided 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 services are intended. the carriage of passengers or goods by sea between any port of a Member State and any port or off-shore instal- lation of another Member State;

2. The provisions of this regulation shall also apply to nationals of the Member States established outside the Community (b) third-country traffic: and to shipping companies established outside the Community and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation. the carriage of passengers or goods by sea between the ports of a Member State and ports or off-shore instal- lations of a third country.'

3. The provisions of Articles 55 to 58 and 62 of the Treaty shall apply to the matters covered by this regulation. 4. Article 8 of this regulation provides:

10. The third paragraph of Article 15(d) provides that the VTS charge is to be determined by ministerial decree. 6. Article 1(1 )(i) of the SVW defines vessel traffic services as the bringing about and maintenance of safe and smooth shipping traffic by means of a system of personnel and infrastructural facilities on a systematic and interactive basis. 11. Effect was given to the second para- graph of Article 15(d) of the SVW by the Besluit verkeersbegeleidingstarieven scheepvaartverkeer (Decree on vessel traffic services tariffs for shipping traffic) of 4 November 1994 (hereinafter, the 'BVS'). Under Article 2(1) of the BVS, the tariff 7. The first paragraph of Article 15(c) of determined by ministerial decree is payable the SVW requires those who (on the basis in respect of shipping movements in the of a subsequent implementing rule) are following areas subject to the VTS: subject to vessel traffic services in accord- ance with Article 4(3) of the SVW to pay the VTS charge.

— Eems

8. U n d e r t h e f i r s t p a r a g r a p h of Article 15(d) of the SVW, the VTS charge serves to offset the vessel traffic services — Den Helder

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— North Sea channel — warships of countries other than the Netherlands, where so agreed with the flag State of the ships concerned;

HI — Facts and procedure to report in when entering an area subject to the VTS and when carrying out certain manœuvres.

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vidual sea-going vessels. According to the Treaty (now, after amendment, Article 49 explanatory memorandum to the SVW, EC). Regulation No 4055/86 makes that 90% of the costs of the VTS are attribu- principle also applicable to maritime ship- table to maritime shipping and 10% to ping. inland shipping. When the charge was set, the costs of certain general services were not taken into account, so that the revenue expected from the charges in 1995 accounted for approximately 72% of the 22. The legislation at issue is not contrary general costs of the VTS. Even on the basis to the prohibition of discrimination on of other estimates to the effect that mari- grounds of nationality. The charge is levied time shipping accounts for 60% of the on all vessels without distinction, irrespec- traffic using the system and inland shipping tive of the flag they fly. The exemption of 40%, the charges for maritime shipping are inland shipping and smaller vessels does still not disproportionate to the rate of not constitute indirect discrimination. It is uptake by such vessels. According to find- true that Netherlands vessels make up a ings which are not yet definitive, the clearly greater proportion of the inland revenue generated by the VTS charge in shipping in waters subject to the VTS than fact accounts for only about 62% of the they do of the maritime shipping in such costs of traffic accompaniment. The waters, and the exemption therefore national court also considers the length of favours national shipping undertakings to a vessel to be an appropriate and easily a greater extent. However, that exemption verifiable criterion for calculating the is objectively justified by the fact that charges in question. inland shipping makes much less use of the VTS.

(c) Must Question 1.(b) be answered 25. Finally, the national court considers the differently if that charge is levied possibility of transposing the principles on shipping whose participation in developed by the Court of Justice in the the system is mandatory, but not judgment in Keck and Mithouard 5to free- on other users, such as inland dom to provide services. waterway or sea-going vessels the length of which does not exceed 41 metres?

26. The Raad van State raises the following questions on these issues: 2. (a) If a system such as VTS and its associated tariff constitute an obstacle to freedom to provide services, does that obstacle come under the exceptions in Article 56 (now, after amendment, Article 46 EC) of the EC Treaty for provi- 1. (a) Does a system such as VTS, in so sions justified on grounds of public far as it provides for mandatory security? participation in vessel traffic ser- vices, constitute an obstacle to freedom to provide services for

4 — Cf. judgment in Case C-55/94 Gehhard [1995| ECK I-4165. 5 — Judgment in Joined CasesC-267/91 and C-268/91 Keck and (b) Is it material to the reply to Ques- Muhimani |1993| ECR I-6097. tion 2.(a) whether the tariff is

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greater than the actual cost of the 28. In this connection, the national court service provided to a given ship? submits the following questions:

27. The national court also considers whether the exemption of inland shipping (b) If so, does that aid come within the constitutes aid prohibited under Article 92 prohibition laid down in that of the EC Treaty (now, after amendment, provision? Article 87 EC). In Case 173/73, 6the Court made it clear that the exemption of a branch of economic activity from certain financial charges could also constitute aid for the beneficiary undertakings. However, the national court finds that the exemption from the VTS charge is justified by the nature and internal structure of the system. It is also unsure whether the exemption distorts competition and affects trade (c) If Question 4.(b) must also be between Member States. Finally, if that is answered affirmatively, does the the case, the national court considers that classification as aid prohibited the exemption may constitute de minimis under Community law also have aid, which is permissible. consequences under Community law for the tariff which partici- pants, apart from those exempted, 6 — Commission v Italy [1974] ECR 709. are required to pay?

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V — Submissions of the parties 31. The overwhelming majority of the costs, they argue, originate from traffic vessel services in the Rhine Estuary (VTS Waterweg). The State has assigned that task to the Gemeentelijk Havenbedrijf Rotterdam (Rotterdam Municipal Port Operator) and pays towards the operation ( 1 ) The claimants of the port, although that contribution bears no relation to cost. However, the costs of vessel traffic services in the Water- weg area are already partly covered by the Rotterdam port fees, which means that sea-going vessels are charged twice. The (a) The structure of the VTS tariff system revenue from this VTS area is used to finance the costs of traffic accompaniment in other, quieter areas.

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(b) Freedom to provide services thermore, it is not clear what the levying of the charge has to do with a selling arrange- ment.

33. In the view of the claimants, the obligation to participate in the traffic accompaniment scheme does not in itself entail a restriction on freedom to provide 37. There are no overriding reasons relat- services. ing to the public interest capable of justify- ing the scheme. The VTS charge is not a suitable means of attaining the objective sought. Nor is it necessary, since it is disproportionate to the costs. Moreover, the length of a vessel is not an objective 34. However, the levying of the VTS criterion for calculating the charge. charge is, in their view, contrary to the provisions on freedom to provide services. Although 82% of the vessel traffic services involve inland waterway vessels, inland shipping is exempt from the VTS charge. Netherlands vessels account for an esti- mated 75% of inland shipping. On the (c) The prohibition of State aid other hand, only 13.6% of vessels entering the port of Rotterdam fly the Netherlands flag, while around 40% fly the flags of other Member States. The exemption of inland shipping therefore entails covert discrimination on grounds of nationality. 38. In the claimants' submission, the exemption of inland waterway vessels con- stitutes State aid which is capable of distorting competition and restricting trade between Member States. There is fierce 35. Moreover, there is no justification for competition between the sea ports of Ant- the infringement of the provisions on free- werp and Rotterdam. 10 The service pro- dom to provide services. Financing by way vided by transport undertakings often con- of charges is permissible only if the charges sists in door-to-door delivery. When decid- are proportionate to the service, and the ing through which port transport is to be costs are not spread among users in a effected, the cost of onward transport by discriminatory manner. inland waterway between those two ports is of considerable significance. Cost advan- tages of inland waterway vessels in Rotter-

(b) Freedom to provide services

40. The rules governing vessel traffic ser- vices on inland waterways and in ports provide for less intense supervision. In the waters frequented by sea-going vessels, 42. According to the Netherlands Govern- which are the main focus of the VTS, ment, the rules on the VTS charges contain inland waterway vessels are hardly ever to neither direct nor indirect discrimination be found. It is no coincidence that the VTS on grounds of nationality. On the contrary, the obligation to pay such charges is incumbent on all sea-going vessels — both 11 — Council Directive 93/75/EFC. of 1 3September 1993 con- national and foreign — in the same way. cerning minimum requirements for vessels calling at or leaving Community ports and carrying dangerous or The provisions do not impose any addi- polluting goods. OJ 1991 L 247, p. 19, last amended by Council Directive 9 8 / 5 5 / E C of 17 July1998, OJ 1998 tional eligibility requirements on service L 2 1 5 ,p. 65. providers who are established in another

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Member State and already meet all the 45. The VTS charge is levied only on requirements applicable there. Rather, the maritime shipping because such shipping conditions laid down relate only to per- relies heavily on vessel traffic services. The formance of the service. This is comparable advantages resulting from vessel traffic with the situation underling the judgment services for inland shipping are purely in Keck and Mithouard. incidental.

43. In the alternative, the Netherlands 46. The exemption of other groups of Government considers that any restrictions vessels, in particular those under 41 metres on freedom to provide services on grounds in length, is objectively justified. of public security in accordance with Article 56 of the EC Treaty and for over- riding reasons relating to the public interest are justified. The relevant provisions of Directive 93/75 and the fact that vessel traffic services are widely used around the world show that there is a public interest in coastal waters being subject to such a scheme. It is permissible to levy charges to (3) The Commission cover the costs of financing these necessary public services.

ceivable that an inland vessel will occa- necessary for the VTS does not mean that sionally benefit from the system in the same they will not occasionally avail themselves way as a sea vessel, but will not have to pay of the support provided by the VTS. The the charge. fact that they use the system less could be reflected in correspondingly lower, or flat- rate, charges. Finally, when introducing the VTS charge, the legislature itself assumed a rate of uptake of the system by inland shipping of 10%, which is not a negligible 48. The Commission maintains that the percentage. unequal treatment of sea-going vessels pre- dominantly flying foreign flags cannot be justified under Article 56 of the EC Treaty; in particular, it is not clear to what extent the discriminatory charging structure is necessary to improve the safety of shipping. 51. The Commission appears to object also to the exemption of other categories of vessels, in particular the general exemption of vessels in State ownership.

(b) The prohibition of State aid

54. In the written procedure, the Commis- A — Compatibility of the VTS rules with sion also expressed the view that the best the freedom to provide services way for the national court to put an end to the infringement of the provisions concern- ing aid would be to terminate the appli- cation of the entire system and exempt all operators from the charge. At the hearing, 57. The national court has doubts prin- however, the Commission representative cipally as to whether the levying and the indicated that it would be more effective structure of the VTS charges are compatible to impose appropriate charges retrospec- with the principle of freedom to provide tively on all VTS participants, though he services. doubted whether the national court could make an order to that effect.

59. Under Article 61(1) of the EC Treaty, freedom to provide services in the field of transport is governed by the provisions of the Title relating to the common transport 62. Under Article 1(1) of Regulation policy. 16 The application of the principles No 4055/86, nationals of Member States relating to the freedom to provide services who are established in a Member State must therefore be achieved by measures other than that of the person for whom the under the common transport policy. 17 services are intended may rely on freedom Even after the expiry of the transitional to provide services. In that regard, Regu- period, the provisions of Articles 59 and 60 lation No 4055/86 and Article 59 of the (now Article 50 EC) of the EC Treaty are EC Treaty are alike. Under Article 1(3) of not of direct application in the field of Regulation No 4055/86 in conjunction transport policy. 18 with Article 58 of the EC Treaty (now Article 48 EC), companies or firms are to be treated in the same way as natural persons who are nationals of a Member State, provided that the company or firm was formed in accordance with the law of a Member State and has its registered office, 60. Pursuant to Article 84(1) of the EC central administration or principal place of Treaty, the Treaty provisions governing business within the Community. transport policy are themselves applicable only to transport by rail, road and inland waterway. Under Article 84(2) of the EC Treaty, special legal acts adopted by the Council are required to extend the common transport policy to sea transport. On the basis of that provision, the Council adopted 63. According to the information provided Regulation No 4055/86, which renders by the national court, Nedlloyd is a com- applicable to the sphere of maritime trans- pany incorporated under Netherlands law port between Member States the totality of which is established in the Netherlands. It the Treaty rules governing freedom to is thus a company which is to be treated in provide services. 19 the same way as a national of a Member State. Sea-Land, on the other hand, does not satisfy that condition. It was formed in 16 — Cr. judgments in Case 13/83 Parlament v Council [1985] LCR LSI?, paragraph 62. and Case C I S / 9 3 (cited in Delaware (USA). The decision on the footnote 13, paragraph 23). objection given by the Rotterdam Customs 1 7 — Judgment in Case C-18/93 (cited in footnote 13, paragraph Office on 15 March 1996, which Sea-Land 18 —Judgment in Case 13/8} (cited in footnote 16, paragraph submitted as Annex 17 to its observations, shows that its principal place of business is 19 —Judgment in Case C-381/93 Comission v France|1994| in Charlotte, North Carolina (USA). ECR 1-5145, paragraph 13.

'In pursuance of those rules the freedom to provide services may be relied on not only — Sea-Land would have to be controlled by nationals of Member States established by nationals of the Member States; and in a Member State other than that of the recipient of the services but also by an undertaking against the State in which it is established where the services are provided to recipients established in another Member State ... , and more generally whenever a provider of services offers services in a Member State other than the — Sea-Land's vessels would have to be one in which he is established.' registered in the Member State whose nationals are the controlling share- holders. 20 — Cited in footnote 19, paragraph 14.

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70. However, as the claimants submit in a different context, the service provided by transport undertakings frequently consists in more than just transport between two sea ports. Goods are often delivered 'door 69. It remains to be clarified whether free- to door'. Consequently, even if the trans- dom to provide services in maritime trans- port by sea takes place solely between the port also applies where no intra-Commu- country of establishment of the shipping nity cross-border element is present, only a undertaking and a third country, if the connection with a third country. That goods are subsequently transported on would be the case, for instance, where the within the Community, the operation may service provider and service recipient are entail a sufficient intra-Community con- established in the Netherlands and the nection. service consists in the transport of goods from the Netherlands to the USA. It is true that, according to the wording of the first sentence of Article 1(1), the express pur- pose of the regulation is to extend the principle of freedom to provide services to maritime transport between Member States 71. Consequently, Nedlloyd could rely on and third countries. The precondition for freedom to provide services as against its this, however, is that the service provider country of establishment even if the recipi- and the service recipient must be estab- ent of the service were also established there, provided that transport is effected to another Member State. That applies by 21 — Judgments in Cases C-154/89 Commission v France [1991] extension to Sea-Land as well. If the ECR I-659, C-180/89 Commission v Italy [1991] ECR I-709, and C-198/89 Commission v Greece [1991] ECR I-727. 22 — Cf. judgment in Case C-198/89 (cited in footnote 21, 24 — Cf. the judgment in Joined Cases 35/82 and 36/82 Morson paragraphs 9 and 10). and Jhanjan [1982] ECR 3723, paragraph 16, and in 23 — Cf. the Opinion of Advocate General Van Gerven in Case Joined Cases C-64/96 and C-65/96 Uecker and Jacquet C-18/93 [1994] ECR I-1783, at I-1785, point 29. [1997] ECR I-3171, paragraph 16.

74. I shall henceforth proceed on the basis that the persons and subject-matter at issue (2) Restriction on freedom to provide ser- fall within the scope of Regulation vices No 4055/86, it being assumed that the claimants:

(a) Discrimination on grounds of national- — provide services for remuneration; and ity

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77. The principle of freedom to provide vessels on the other. The Raad van State services, as guaranteed by Regulation does not discuss the other groups covered No 4055/86, excludes any discrimination by the exemption. against service providers on grounds of nationality. Under Article 8 of Regulation No 4055/86, Member States are thus required to treat nationals of other Member States in the same way as their own nationals. Under Article 9 of Regulation No 4055/86, any restrictions on the provi- 80. In order to fall within the meaning of sion of services must be applied to the the term as used in Article 1(4) of Regu- service provider without distinction on lation No 4055/86 and Article 60(1) of the grounds of nationality. EC Treaty (now Article 50 EC), a service must normally be provided for remuner- ation. Neither warships nor any other State-owned vessels such as police and customs craft would normally provide ser- vices for remuneration which are com- parable to the services provided by the sea-going vessels liable to the VTS charge. 78. The rules on the VTS charge make Only if vessels attributable to the State virtually no direct reference to the national- were to offer similar commercial services ity or residence of the shipping undertak- would the exemption of those vessels con- ing. Sea-going vessels of Netherlands ship- stitute discrimination in breach of freedom ping companies are liable to the charge in to provide services. It is for the national the same way as similar vessels of shipping court to make any necessary findings of companies from other Member States. The fact. flag under which the sea vessel operates is also irrelevant.

vessels than maritime vessels. The national 84. In Case C-18/93, 28 the Court had to court and the Netherlands Government, on examine whether the Italian piloting tariffs the other hand, consider that the exemption discriminated indirectly on grounds of is objectively justified. nationality. The contested system provided for a more favourable tariff for vessels licensed for cabotage. Liberalisation of the sector at that time was such that the right of cabotage was reserved for vessels flying the national flag. The class receiving favourable treatment therefore consisted 82. As already stated, Regulation essentially of Italian nationals because No 4055/86 renders the totality of the vessels flying the national flag were oper- Treaty rules governing the freedom to ated mainly by nationals. The Court provide services applicable to the sphere viewed that fact alone as sufficient to of maritime transport between Member indicate the existence of discrimination. 29 States. 25 In order to apply Regulation It did not give any further consideration to No 4055/86 in a manner consistent with whether, by virtue of the different levels of the Treaty, regard must therefore be had to charges, identical situations were in fact all the principles which the Court has accorded unequal treatment. In that case, developed in interpreting Article 59 of the however, it was obvious that, apart from EC Treaty. 26 Accordingly, it is not only the nationality of the persons concerned, overt discrimination that is prohibited, but there was not the slightest difference also all forms of covert discrimination between those who had to pay the full which, although based on criteria which tariff and those required to pay the reduced appear to be neutral, in practice lead to the tariff. same result. 27

objective and nationality-neutral differenti- vessels with a gross registered tonnage in ation must prove in fact to be arbitrary, excess of 500 were required to use the that is to say that situations which — mooring services and thus to pay the apart from the nationality of the persons charges. The plaintiff in the main proceed- concerned — are comparable must be ings, which itself used larger vessels, con- treated differently, the real reason for the tended that vessels with a gross registered distinction lying solely in the difference in tonnage under 500 were operated mainly nationality between the members of one by Italian undertakings. Advocate General group and those of another. Fennelly ultimately left open the question whether any covert discrimination existed. However, he took the view that the oper- ators of larger vessels could not rely on such discrimination since they were not in competition with the operators of smaller 86. In order to answer the question vessels. A better point of comparison, he whether the distinction between maritime said, was vessels of equivalent size belong- shipping and inland shipping is arbitrary ing to domestic operators. These, however, and whether there has therefore been an were subject to the same tariffs as under- infringement of freedom to provide services takings from other Member States.31 in the form of covert discrimination, it is necessary to take account of the importance of that principle of Community law in terms of the internal market. The purpose of prohibiting States from according to nationals of another Member State treat- ment less favourable than that accorded to their own nationals in the context of the 88. The question whether or not there is a provision of services is to open up national restriction on freedom to provide services markets and create an internal market in in the form of indirect discrimination on services. The favouring by one Member grounds of nationality therefore hinges State of its own nationals makes it more essentially on whether the groups treated difficult for service providers from other differently are comparable in terms of the Member States to gain access to the service which they provide. This could be national market of the former State, and assumed to be the case if the undertakings distorts competition in the internal market. in one group were in competition with the undertakings in the other group.

parties to the proceedings have had regard 91. The Commission argues that, on the not so much to the comparability of the Antwerp-Rotterdam route at least, there is particular services offered as to the degree competition between maritime shipping to which the VTS is used by maritime and inland shipping. It contends that 6.3 shipping and inland shipping respectively. million tonnes of freight are transported by This may be significant in determining inland waterway each year between those whether the costs of the VTS are spread two ports. However, it does not say to fairly among the users and whether any what extent goods are transported by the restriction on the provision of services is corresponding sea route. proportionate. 32 None the less, for the purposes of determining whether different groups of service providers are indirectly discriminated against on grounds of nationality, or whether the differentiation is objective, what matters most is the comparability of the economic operators in terms of the service provided. 92. This conflicts with the claimants' sub- mission that sea-going vessels usually put in at only one port along the entire stretch of coast between Le Havre and Hamburg. 90. There are considerable differences Presumably, goods landed at the central between the transport services provided mooring place for that area are then trans- by sea-going vessels on the one hand and ported on by land or inland waterway for those provided by inland waterway vessels distribution in continental north-western on the other. Sea-going vessels normally Europe. Transport by sea between ports serve destinations which are entirely dif- which are also connected by inland water- ferent from those served by inland water- ways therefore seems to be a rare occur- way vessels, they have different capacities rence. Transporting goods by sea between and are subject to different rules of law. ports located close together, especially Pursuant to Article 84 of the EC Treaty, using large sea-going vessels of over 41 Title V (concerning transport policy) of metres in length, would not be viable. The Part Three of the Treaty is thus directly piloting-service and port-use costs, coupled applicable to transport by inland water- with the loading and unloading fees, would way, but not to maritime transport. In the be disproportionate to the short distance field of maritime transport, freedom to the goods have to be transported. provide services is governed by Regulation No 4055/86, in the field of transport by inland waterway, however, by Council Regulation (EC) No 1356/96 of 8 July 1996 on common rules applicable to the transport of goods or passengers by inland waterway between Member States with a view to establishing freedom to provide such transport services. 33 93. The claimants and the Commission alike highlight the importance of transpor- ting goods by inland waterway between 32 — Cf. point 120 et seq. below. Antwerp and Rotterdam. However, the 33 — OJ 1996 L 17J, p. 7. claimants' submissions seem to provide

96. The extent to which the exemption of sea-going vessels of up to 41 metres in length leads to indirect discrimination can- not be determined on the basis of the information provided by the national court and the parties to the proceedings. It is not 94. It must therefore be assumed that clear whether most of the vessels falling inland shipping and maritime shipping do into that category are Dutch or to what not operate on the same market. It follows extent the services provided by them are that the difference in the treatment comparable with those provided by larger accorded to those two transport sectors vessels. It is for the national court to does not adversely affect the attainment of determine those facts and to assess them the objective of creating equal conditions of against the aforementioned criteria. competition on the internal market. The fact that only sea-going vessels are subject to the VTS charge does not therefore constitute indirect discrimination on grounds of nationality. Even if those who benefit from the exemption of inland ship- (c) Other restrictions ping are mainly Netherlands nationals, the operators of sea-going vessels cannot claim discrimination since inland shipping is not an appropriate point of comparison.

97. According to settled case-law, Article 59 of the EC Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it 95. For the same reasons, sea-going vessels applies without distinction to nationals liable to the VTS charges are likewise not providing services and to those of other discriminated against to the benefit of the Member States, when that restriction is categories of vessels exempted under sub- liable to prohibit, impede or otherwise paragraphs (e) and (f) of the first paragraph render less advantageous the activities of a

101. Nevertheless, the findings in the judg- ment in Keck and Mithouard cannot be transposed to this case. The national legis- lation at issue in Keck and Mithouard (d) The rule in Keck and Mitbouard concerned the sale of goods in one Member State. However, the charging system at issue here does not only affect the sale of maritime transport services in the Nether- lands. The cross-border character of the 99. However, the national court asks the service means that local measures of the Court to examine whether a restriction on kind at issue here make it more difficult freedom to provide services must be found actually to provide the service and thereby not to exist because the levying of charges affect the internal market as a whole. The is comparable to selling arrangements Court made it clear in Alpine Invest- within the meaning of the judgment in ments 36 that a restriction in the State in Keck and Mithouard. 35 which the provider of services is established also affects recipients of the service in other Member States and therefore directly affects access to the market in services in those States. There is therefore no question of the rule in Keck and Mithouard being 100. In that decision, the Court held that a systematically applied mutatis mutandis to national system of selling arrangements cross-border services. 37

34 — Judgments in Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, Case C-398/95 SETTG [1997] ECR I-3091, 36—Judgment in Case C-382/93 [1995] ECR I-1141, para- paragraph 16, Case C-266/96 (cited in footnote 3, para- graph 38. graph 56) and Case C-58/98 Corsten [2000] ECR I-7919, 37 — Cf., with reference to the judgment in Alpine Investments, paragraph 33. the Opinion of Advocate General Jacobs in Case C-405/98 35 — Judgment in Joined Cases C-267/91 and C-268/91 (cited in Gourmet international Products [2001] ECR I-1795, footnote 5). paragraph 71.

106. The Court of Justice has already relied (3) Justification on Article 56 of the EC Treaty in order to justify general, non-discriminatory rules. In particular, in the judgment in Corsica Ferries III, it contemplated the possibility that the provisions on the use of mooring services in Italian ports could be justified on the basis of Article 56 of the EC Treaty, (a) Article 56 of the EC Treaty even though they applied without distinc- tion to all service providers and contained no rules relating specifically to foreign nationals. 38 In other cases, it has held that Article 56 of the EC Treaty and overriding reasons relating to the public interest together form possible grounds of justifi- 104. The national court considers any cation, although it has not clearly defined restrictions on freedom to provide services imposed by the VTS charging system to be justified under Article 56(1) of the EC 38 — Judgment in Case C-266/96 (cited in footnote 3, paragraph Treaty. 60).

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'Next, with regard to the question whether there are overriding reasons based on the general interest which may justify the restriction on freedom of establishment resulting from the prohibition under chal- 108. A reading of Article 56(1) of the EC lenge, it must be remembered that the Treaty in conjunction with Article 56(2) protection of public health is one of the bears out that conclusion. According to reasons which may, under Article 56(1) of paragraph 2, the Council may issue direc- the EC Treaty (now, after amendment, tives for the coordination of the provisions Article 46(1) EC), justify restrictions result-

39 — Cf. judgments in Case C-67/98 Zenatti [1999] ECR 41 — The Council availed itself of that power when adopting I-7289, paragraphs 28 and 29, and Joined Cases C-34/95, Council Directive 64/221/EEC of 25 February 1964 on the C-35/95 and C-36/95 De Agostini [1997] ECR I-3843, coordination of special measures concerning the movement paragraphs 52 to 54. and residence of foreign nationals which are justified on 40 — Cf. judgment in Case C-414/97 Commission v Spain grounds of public policy, public security or public health [1999] ECR 1-5585, paragraph 21. (OJ, English Special Edition 1963-1964 (II), p. 117).

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111. The Court has consistently held that 114. The VTS serves to support the navi- 'a restriction on the fundamental principle gation of vessels in coastal waters and port of freedom to provide services can be based only on rules justified by overriding requirements relating to the public interest 43 — Judgment in Case C-58/98 Carsten (cited in footnote 34, and applicable to all persons and under- aragraph 35). Sec also judgments in Case 279/80 Webb takings operating in the territory of the P 19811 ECR 3305, paragraph 17, Case C-180/89 (cited in footnote 2 1 , paragraph 17), Ciase C-198/89 (cited in footnote 2 1 , paragraph IS), Case C-76/90 (cited in State where the service is provided, in so fai- footnote 34, paragraph 15), Ciase C-43/93 Vander Elst as that interest is not safeguarded by the [1994] ECR 1-3803, paragraph 16, and Case C-272/94 Gustaf |1996| ECR I-1905, paragraph 11. rules to which the provider of such a service 44 — Cf. judgments in Ciase C-55/94 (cited in footnote 4, paragraph 361, Case C-424/97 Hann [2000] ECR I-5123, paragraph 57 and, most recently, Case C-108/96 (cited in footnote 42, paragraph 26). 42 — Judgment in Case C-108/96 Mac Quen | 2 0 0 1 | FCR I-837, 45 — Cf. judgment in Ciase C-108/96 cited in footnote 42, paragraph 28. paragraph 28).

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119. The levying of the charge is also necessary. It is true that the costs of the VTS could be met out of the public purse. 116. The public interest in such cases Then, however, the costs would be borne typically lies in having the costs of the by the public rather than by the economic State measure in question being imposed on operators who are responsible for and those who cause them to raise. Transferring caused them. After all, it is only the heavy responsibility for the costs to those persons shipping traffic present in coastal areas that also serves the general good ultimately, makes the VTS necessary at all. since the public is relieved of the burden of the costs of vessel traffic services. This is also true of the VTS legislation. Overall, 46 — Judgment in Case C-58/98 (cited in footnote 34, paragraph 39). See also judgments in Case C-288/89 Collectieve therefore, it serves objectives in the public Antennevoorziening Gouda and Others [1991] ECR I-4007, paragraphs 13 to 15, and Case C-76/90 (cited in interest. footnote 34, paragraph 15).

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123. The level of a particular charge must correspond as far as possible to the actual costs of the vessel traffic services provided, 121. By Question 2(b), the national court so that the charging system is proportionate seeks to ascertain whether the charge can for the purposes of attaining the objective be greater than the actual costs of the of spreading the costs fairly among those specific service provided to the individual who incur them. However, for reasons of vessel. The issue here is whether the administrative simplicity, the national principle of proportionality can provide a legislature has the power to lay down fixed clearer indication of which cost factors may rates when determining the charge. The be taken into account in such an examin- scale of charges may be based on objective ation. In connection with the prohibition of and easily verifiable criteria but those customs duties and charges having equiv- criteria must be specifically linked to alent effect, the Court has consistently held responsibility for costs. that 'Articles 9 and 12 of the Treaty do not apply to a charge imposed on goods by reason of the fact that they cross a frontier 4 7 — See Case C - 1 6 / 9 4 Dubois [ 1 9 9 5 ] ECU I - 2 4 2 1 , if that charge constitutes consideration for paragraph 15; to that effect see also the judgments cited i n footnote 7, Case 46/76 (paragraphs .31 to 34), Case a specific service actually rendered to an 132/78 (paragraph 7 ) and Case 132/82 (paragraph 8).

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It is not for the Court of Justice but for the 125. The national court cites various fig- national court to ascertain the facts which ures in connection with the extent to which have given rise to the dispute and to maritime shipping uses the VTS. However, establish the consequences which they have it still does not appear to have reached any for the judgment which it is required to conclusive findings on the matter. More- deliver ... .' over, it is not made definitively clear whether the actual revenue from the charges is proportionate to the costs for which maritime shipping is responsible. The national court does refer in this respect to estimates indicating that the revenue 127. It therefore falls to the national court broadly tallies with the rate of use by to ascertain whether the charges levied on maritime shipping. The claimants, on the maritime shipping as a whole cover the other hand, put forward totally different general costs attributable to it on the basis figures taken from experts' reports. More- of its rate of use. In this connection, the fact over, they advance various arguments to that other traffic, in particular inland ship- show that the level of the charges in fact ping, makes use of the VTS without having bears no relation to the costs of the VTS, to bear part of the costs does not in itself but is determined rather by economic constitute a breach of the principle of policy decisions. proportionality. That would be the case only if the charges for sea-going vessels served not only to meet the costs attribu- table to such vessels but also the costs resulting from vessel traffic services pro- vided to other vessels not liable to the VTS 126. In view of this uncertainty surround- charges. ing the facts, the point made by the Court of Justice most recently in Case C-435/9748 is relevant here:

129. In that Opinion, Advocate General National rules which require the operators Saggio stated that the increase in the toll of sea-going vessels of over 41 metres in rates on the Brenner motorway could be length to participate in a system for the justified only by an increase in the cost of monitoring of traffic in coastal waters and operating that motorway, not by cost port areas and to pay a charge for services changes throughout the motorway net- provided under that system may constitute work, for the use of which, moreover, no a restriction on freedom to provide services comparable charges were levied. 49 That in maritime transport within the meaning conclusion was based on an interpretation of Regulation No 4055/86 in conjunction of Directive 93/89. 50 It is true that the with Article 59 of the EC Treaty, in so far provisions of Directive 93/89 applicable in as the shipping undertakings concerned Case C-205/98 constitute a specific provide a service with an intra-Community expression of the principle of proportional- cross-border connection. For the purposes ity. However, in view of the special char- of that restriction, it is irrelevant whether acteristics of those rules and of that case, other vessels are exempt from the charge if the findings in Case C-205/98 cannot be they do not provide comparable services. transposed to the facts at issue here.

49 — Cited in footnote 8, point 58. See also the judgment in this case (also cited i n footnote 8, paragraph 130 et seq.). 50 — Council Directive 93/89/EEC of 25 October 1993 on the application by Member States of taxes on certain vehicles used for the carriage of goods by road and tolls and charges for the use of certain infrastructures, OJ 1993 The restriction may be justified by overrid- L 279, p. 32. ing reasons relating to the public interest, in

135. The Court of Justice has applied those principles to two cases in which, essen- 133. The VTS charge is applicable in tially, the plaintiffs challenged certain tax general only to maritime shipping. The charges and the national courts referred to national court would like to know whether the Court, inter alia, the question whether the exemption of inland shipping and other the exemption of other undertakings from groups of vessels amounts to State aid for the tax in question was to be regarded as the purposes of Article 92 of the EC aid. 52 In both cases, the Court took the Treaty. view that, in actions directed against taxes,

51 — Judgment in Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, paragraph 52, with further references. See also the judgment in Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20, and the Opinion of Advocate General Cosmas in the same case, point 26 et seq. 134. However, it is questionable whether 52 — Judgments in EKW and Wein & Co., paragraph 53, and Idéal Tourisme, paragraph 26 et seq., both cited in the questions on this issue need to be footnote 51.

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137. If participation in the VTS free of charge were to be classified as aid, then its effect as aid could in principle be elimin- 140. The questions on whether the exemp- ated in two ways. Either all participants in tion from the VTS charge constitutes aid do not therefore need to be answered. 53 —Judgment in Case C-39/94 SFEI [1996] ECR I-3547. paragraph 67. 54 — Luc. cit., paragraph 7 0. 55 — See point 91 et seq. above.

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VII — Conclusion

141. In view of the foregoing considerations, I propose that the questions referred for a preliminary ruling be answered as follows:

(1) National rules which require the operators of sea-going vessels of over 41 metres in length to participate in a vessel traffic services system in coastal waters and port areas and to pay a charge for the services provided under that system may constitute a restriction on freedom to provide services in maritime transport within the meaning of Regulation No 4055/86 in conjunction with Article 59 of the EC Treaty (now, after amendment, Article 49 EC), in so far as the shipping undertakings concerned provide a service with an intra- Community cross-border connection. For the purposes of that restriction, it is irrelevant whether other vessels are exempt from the charge if they do not provide comparable services.