61984C0298
OPINION OF MR ADVOCATE GENERAL MANCINI
delivered on 28 November 1985 (
*1
)
Mr President,
Members of the Court,
1.
In Italy, as in every other country with an extensive railway network, different categories of passenger trains exist: there are long distance trains called ‘rapidi’, which link the major cities, and ‘espressi’, ‘diretti’ and ‘locali’ which also stop in the smaller towns or even at all stations. On the basis of legislation going back to 1934, the Ferrovie dello Stato may make access to any train subject to special conditions in order to provide a service rationally and objectively adapted to the many different requirements of transport users.
On Train No 991, a Rome-Palermo ‘rapido’, second-class passengers boarding in Rome must hold a ticket for a journey in excess of 400 kilometres. On 17 January 1984 Paolo Iorio, an Italian national, boarded that train but, as he held a ticket for a journey below the required distance, he was fined by the ticket inspector. The Azienda autonoma delle ferrovie dello Stato then ordered him to pay a fine of LIT 44650 under Article 84 of the Presidential Decree No 753 of 11 July 1980. Mr Iorio brought an action before the Vice Pretore [Deputy Magistrate] of Latina claiming that the conditions limiting access to the train on the basis of the length of the journey were contrary to the principle of the free movement of persons laid down in Article 48 of the EEC Treaty. By order of 3 December 1984, the Vice Pretore stayed proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
(1)
Are the provisions of Decree No 753/80 of the President of the Republic and Article 3 (2) of the Conditions and Tariffs of the State Railways contrary to Article 48 (3) (b) of the Treaty of Rome?
(2)
Does the principle of freedom of movement contained in the aforesaid article of the EEC Treaty also apply within each Member State of the European Community?
(3)
Does that principle preclude the administrative authority, in this instance the Minister for Transport or the Regional Manager of the State Railways, from restricting the freedom of movement of workers within the country by creating train services admitting only passengers with a ticket for a journey of more than a certain minimum number of kilometres?
(4)
Is the situation under consideration contrary to any other provision of the Treaties establishing the European Communities or to regulations or other acts having the force of law within the Italian Republic?
2.
Observations were submitted by the plaintiff in the main proceedings, the Italian Government and the Commission of the European Communities. At the hearing, Mr Iorio admitted, upon reflection, that Article 48 (3) (b) of the Treaty does not concern situations internal to one Member State. In order to show that Community law was relevant to the problem, however, he claimed that the Italian rules should be considered not as such but as a point of comparison with the rules in force in the other Member States, which do not have similar limits on access to public transport services. The principle laid down in Article 48 must therefore be regarded as an appropriate instrument for bringing about a harmonization of the national rules on that subject by removing the existing disparities. I would point out however that such arguments, which might be taken into consideration for the purposes of introducing a common passenger transport policy, that is to say, in regard to a future change in the law, are beyond the scope of the questions raised by the national court.
The observations of the Italian Government and the Commission are more concrete and more relevant. Both agree that Article 48 refers to the situation of workers who must cross one or more frontiers in order to take up an actual offer of employment in another Member State. That provision cannot therefore concern the way in which a citizen moves about within his own country. The Italian Government also points out that the Italian rules governing access to the various types of train are of general application and were adopted without any reference to the nationality of the passengers.
3.
Formulated in accordance with the criteria which the Court, in its previous decisions, has deduced from Article 177, the four questions raised by the vicepretore di Latina may be reduced to one: does an internal rule imposing conditions of access on users of public transport services conflict with Community law and, in particular, with the principle of the free movement of persons.
The answer is ‘no’. In accordance with the general principle laid down in Article 7, Article 48 is intended to remove from the legislation of the Member States rules which provide for less favourable treatment in regard to employment, remuneration and other conditions of work for workers coming from another Member State than that granted in the same circumstances to workers who are nationals of the Member State concerned. However, that provision (like the other Treaty rules on the free movement of workers) cannot be relied upon in regard to a situation which is purely internal to one Member State. While it is true that the legal protection which that provision gives to workers who are nationals of Member States involves in certain cases amendments to national legislation which may also enlarge or reinforce the rights of nationals, that does not mean that the Member States have lost the power to lay down special conditions, within their own territory, regarding the movement of all persons subject to their jurisdiction (see judgment of 28 March 1979 in Case 175/78 Regina v Saunders [1979] ECR 1129, and judgment of 28 June 1984 in Case 180/83 Moser v Land Baden-Württemberg [1984] ECR 2539).
However, the case upon which the vicepretore must rule clearly concerns an Italian national who was travelling in his own country on an Italian train under the conditions laid down with general effect by the competent national authorities. That situation by its very nature has no connection with Community law.
4.
Therefore, I propose that the Court reply as follows to the questions referred to it by the vicepretore di Latina by order of 3 December 1984 in the proceedings pending before him between Paolo Iorio and the Azienda autonoma delle ferrovie dello Stato:
‘Community law, and in particular Artide 48 (3) (b) of the EEC Treaty, is not infringed by a national provision laying down conditions for the transport of persons on the State Railways which limit access to certain trains to passengers holding tickets for a certain minimum distance on condition that the said limitation applies to all passengers without regard to their nationality’.
(
*1
)	Translated from che Italian.