Opinion of the Advocate General — ECLI:EU:C:2004:310
Date: 2004-05-19
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Transport
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Greece

Summary of the Judgment 1. Transport – Maritime transport – Freedom to provide services – Restrictions – National measure making the provision of maritime cabotage services subject to production by Community ships entered in a second or international register of a certificate declaring that those ships are authorised to provide cabotage in the flag State – Whether permissible – Conditions – Burden of proof (Council Regulation No 3577/92, Art. 1) 2. Transport – Maritime transport – Freedom to provide services – Maritime cabotage – Regulation No 3577/92 – Definition of ‘island’ (Council Regulation No 3577/92) 3. Transport – Maritime transport – Freedom to provide services – Maritime cabotage – Principle of the responsibility of the flag State for matters relating to manning – Scope – Cruise liners carrying out island cabotage – Included – Condition (Council Regulation No 3577/92, Art. 3(1)) 1. A national measure making the provision of maritime cabotage services subject to production by Community ships entered in a second or international register of a certificate issued by an authority of the flag State declaring that they are authorised to provide cabotage services constitutes a restriction on the freedom to provide those services. Such a measure may nevertheless be justified by overriding reasons in the general interest provided that it is applicable to all persons and undertakings pursuing an activity in the territory of the host Member State, it is suitable for securing the attainment of the objective which it pursues and it does not go beyond what is necessary in order to attain that objective. As regards those latter conditions relating to the proportionality of the measure in question, the Commission, which has the burden of proof in proceedings for failure to fulfil obligations, by proposing alternative solutions which either do not serve fully to attain the objective sought or in practice turn out to be more complex or more restrictive of freedom to provide services than the certificate system, has not shown that there is a failure to fulfil obligations under Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage). (see paras 30-33, 35) 2. An island within the meaning of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) is defined as an area of dry land elevated permanently from the sea. An area of land which is separated from the rest of the mainland only by a man-made canal a few tens of metres wide cannot be classified as an island. (see paras 42-43) 3. Article 3(1) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) applies to all cruise liners, irrespective of the nature of the cabotage they carry out. Therefore, as regards cruise liners exceeding 650 gt which carry out island cabotage, all matters relating to manning are the responsibility of the flag State. (see paras 54, 56)