Opinion of the Advocate General — ECLI:EU:C:2005:755
Date: 2005-12-08
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Transport – Maritime transport – Freedom to provide services – Maritime cabotage (Council Regulation No 3577/92, Art. 3(2) and (3)) In respect of cargo vessels over 650 gt carrying out island cabotage, Article 3(3) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) provides that all matters relating to manning are to be the responsibility of the flag State when the voyage concerned follows or precedes a voyage to or from another State. In this respect, a ‘voyage which follows or precedes the cabotage voyage’, as set out in that provision, means in principle any voyage to or from another State, whether or not the vessel has cargo on board. However, sham voyages without cargo on board carried out to circumvent Regulation No 3577/92 cannot be permitted. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, in respect of all matters relating to manning, from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of Regulation No 3577/92, in favour of Article 3(3). (see para. 25, operative part)