Opinion of the Advocate General — ECLI:EU:C:2005:668
Date: 2005-11-10
Language of the case: Spanish
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: Spain

Summary of the Judgment 1. Transport – Maritime transport – Freedom to provide services – Maritime cabotage (Council Regulation No 3577/92, Art. 2(1)(a) and (c)) 2. Transport – Maritime transport – Freedom to provide services – Maritime cabotage (Council Regulation No 3577/92) 3. Transport – Maritime transport – Freedom to provide services – Maritime cabotage (Council Regulation No 3577/92, Art. 1) 4. Transport – Maritime transport – Freedom to provide services – Maritime cabotage – Regulation No 3577/92 (EC Treaty, Art. 62 (repealed by the Treaty of Amsterdam); Art. 49, first para., EC; Council Regulation No 3577/92, Arts 6 and 7) 1. In order to interpret the term ‘carriage … by sea between ports’ which is part of the definitions of mainland and island cabotage in Article 2(1)(a) and (c) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), account must be taken of the objective of that provision, which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down. It is not permissible to equate ‘sea’ within the meaning of Regulation No 3577/92 with ‘territorial sea’ within the meaning of the United Nations Convention on the Law of the Sea of 10 December 1982 (‘the Montego Bay Convention’), because such assimilation is likely to undermine that objective. The application of that regulation solely to territorial sea, within the meaning of that Convention, would preclude the liberalisation intended by that regulation of potentially significant maritime transport services where they operate on the landward side of the baseline of the territorial sea that States may draw, in accordance with that Convention, across the natural entrance points of a bay. Furthermore, it does not follow from Regulation No 3577/92 that the Community legislature intended to limit its scope to territorial sea within the meaning of the Montego Bay Convention. (see paras 24-27) 2. Given the context of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States maritime cabotage and the objective it pursues, namely to implement freedom to provide services for maritime cabotage, the term ‘port’ in that regulation encompasses infrastructure, albeit small-scale, the function of which is to enable goods to be loaded and unloaded or passengers to be embarked and disembarked for conveyance by sea. (see para. 33) 3. A national measure which reserves maritime transport services in an estuary to a single undertaking by means of an administrative concession for a duration of 20 years, renewable for a period of 10 years, is liable to impede or even prohibit the provision of those services by undertakings in other Member States and therefore constitutes a restriction on freedom to provide maritime cabotage services in the Community. The same is true of a measure which adopts the experience acquired in maritime transport in that estuary as a criterion for selecting the undertaking to be granted the concession. Such restrictions may nonetheless be justified by overriding reasons in the public interest if they apply to all persons and undertakings pursuing an activity in the territory of the host Member State, they are suitable for securing the attainment of the objective which they pursue, and they do not go beyond what is necessary in order to attain it. However, that is not the case in these proceedings. As far as concerns a number of islands in the estuary, measures which are less restrictive than that concession, such as the organisation of a system of advance booking and sale of the available places, could be introduced in order to adapt the traffic to those islands to environmental requirements and the limited capacity of the quay. Next, as regards the requirements relating to the organisation of traffic in the geographical area concerned, the Member State has failed to show that passenger transport services across the estuary must be subject to a concession granted to a single operator for a duration of 20 years, which may be extended to 30 years, in order to avoid becoming unprofitable and disappearing. Furthermore, the Member State has also failed to show that the intensity of maritime traffic in the estuary would give rise to difficulties preventable only by the introduction of a measure as restrictive as that concession, or, even assuming that substantial investments are required in order to maintain the maritime connections in question, that such investments could be amortised only over a period of 20 or even 30 years. Finally, as regards the selection criterion relating to experience in the transport sector in the estuary, no overriding reasons have been put forward to justify the restriction which results from that criterion. Moreover, the fact that that criterion was said not to be decisive for the award of the concession is irrelevant, since the finding of a Member State’s failure to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom. (see paras 44-50) 4. Article 7 of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) must be interpreted in the light of the provision which immediately precedes it. Although Article 6 allows Member States to maintain after the date of entry into force of the regulation and for a transitional period existing restrictions in a number of specific cases, Article 7 provides, in substance, that those States may not introduce restrictions that are new in relation to the existing situation at that date. The two provisions therefore complement one another and constitute in fact the two sides to a system of progressive liberalisation. That interpretation of Articles 6 and 7 is supported by the fact that the repeal, by the Treaty of Amsterdam, of Article 62 of the Treaty, to which Article 7 refers, which prohibited Member States from introducing any new restrictions on the freedom to provide services, coincided with the disappearance, in the text of Article 49 EC, of the reference to the progressive abolition, during the transitional period, of restrictions on freedom to provide services within the Community. It follows that Article 7 is meaningful only in a context of progressive liberalisation of the services referred to in the regulation. (see paras 62-64)