OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 26 June 2025 (1)
Case C‑413/24
Vlaams Gewest
v
P&O North Sea Ferries Limited,
P&O Ferries Limited,
Intervener:
P&O North Sea Ferries Limited
(Request for a preliminary ruling from the ondernemingsrechtbank Gent, afdeling Oostende (Ghent Business Court, Ostend Division, Belgium))
( Reference for a preliminary ruling – Freedom to provide services – Maritime transport – Article 56 TFEU – Regulation No 4055/86 – Scope ratione personae – Vessel traffic services system – Fixed fee for mandatory use of the system – Criterion based on vessel length – Exemption for journeys between two ports in the same Member State – Restriction – Justification – Overriding reason in the public interest – Safety of navigation in port waters – Principles of necessity and proportionality – Application of EU law after the withdrawal of the United Kingdom – Articles 5 and 191 of the Trade and Cooperation Agreement between the United Kingdom and the European Union – Direct effect – None )
I.      Introduction
1.        The departure of the United Kingdom of Great Britain and Northern Ireland from the European Union has impacted every sphere of economic activity and shipping companies operating routes between continental Europe and the United Kingdom have not been spared. This request for a preliminary ruling made by the ondernemingsrechtbank Gent, afdeling Oostende (Ghent Business Court, Ostend Division, Belgium) gives the Court of Justice an opportunity, first, to supplement its case-law on freedom to provide maritime transport services and, second, to determine whether that freedom to provide services can be invoked in the same conditions after the departure of the United Kingdom.
2.        When sailing to Flemish maritime ports, shipping companies are required to comply with the rules laid down in the decreet betreffende de begeleiding van de scheepvaart op de maritieme toegangswegen en de organisatie van het Maritiem Reddings- en Coördinatiecentrum (Decree of 16 June 2006 on the guidance of shipping on maritime access routes and the organisation of the Maritime Rescue and Coordination Centre; (2) ‘the Decree of 16 June 2006’). Article 37 of the Decree of 16 June 2006 provides that a fee, (3) the amount of which is set by the Flemish Government, (4) is payable for the mandatory use of services under the vessel traffic services system by vessels bound for a port located in that systems’ operational area. (5) It must be paid by any vessel of more than 41 metres coming from the sea and bound for a Flemish port included in the vessel traffic services system. (6) If a vessel enters the area concerned more than once per day, the fee is payable only once. (7) The fee is not payable in respect of navigation between Flemish ports. (8) Furthermore, the Decree of 16 June 2006 expressly provides that no fee is payable for navigation on inland waterways, for vessels less than 41 metres (9) in length or for certain other categories of vessels. (10) A fixed amount for the fee is determined on the basis of the length of the vessel concerned. (11)
3.        Since 1996, Vlaams Gewest (Flemish Region, Belgium) has sent invoices to P&O North Sea Ferries Limited (Belgian subsidiary) (‘P&O’ or ‘the defendant in the main proceedings’), (12) on the one hand, for piloting services and, on the other hand, for the mandatory use of the vessel traffic services system. While the invoices for the piloting services have been paid, P&O has systematically contested the invoices for the vessel traffic services system in respect of navigation to or from Zeebrugge (Belgium), with the result that the outstanding amount claimed by the Flemish Region totals more than EUR 13 million.
4.        The Flemish Region has brought proceedings before the referring court seeking an order for P&O to pay the invoices which have remained unpaid since 30 April 1996, together with statutory interest where applicable. (13)
5.        P&O claims before the referring court that the fee paid for the vessel traffic services system and the obligation to have recourse to the vessel traffic services provided by the system create an obstacle to freedom to provide transport services from and to Zeebrugge and are contrary to Article 56 TFEU and Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries. (14) In particular, it submits that the exemption for navigation between Flemish ports constitutes prohibited discrimination. Furthermore, the charges borne by providers of maritime transport services are, in fact, unconnected with the actual use of services under the vessel traffic services system. From that perspective, the national legislation also constitutes an unjustified restriction of freedom to provide maritime transport services. (15)
6.        The Flemish Region claims that EU law authorises justified restrictions on freedom to provide services, as has already been recognised by the Court, (16) and that the purpose of the exemption for traffic between Flemish ports is to avoid the charge being paid multiple times. (17) It states that the vessel traffic services essentially include safety and fluidity of navigation, management and operation of radars on the Scheldt which are necessary for managing and monitoring navigation in the area, provision of information and equipment for remote piloting, implementation of joint nautical management with the Netherlands with a view to safe and fluid maritime traffic in the region, support and coordination of sea rescue and towing operations, and management and monitoring of the conventions concluded between the Flemish Region and the Flemish harbour masters’ services.
7.        The referring court has doubts whether the exemption is discriminatory or restrictive. In addition, it states that, although the conditions for access to Flemish ports are fundamentally different, a fixed tariff, which varies only according to the length of the vessel, is nevertheless applied. The application of such a tariff raises the question whether the obstacle to freedom to provide services which may be represented by the vessel traffic services system fee, calculated solely on the basis of the length of the vessel, can be objectively justified.
8.        Lastly, P&O submits before the referring court that, under Article 191 (18) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (‘the TCA’), (19) it can continue to rely, in respect of invoices issued after the departure of the United Kingdom from the European Union, on the incompatibility of the Flemish legislation with freedom to provide services as guaranteed by EU law, which is disputed by the applicant in the main proceedings.
II.    The questions referred for a preliminary ruling and the procedure before the Court
9.        In those circumstances, the ondernemingsrechtbank Gent, afdeling Oostende (Ghent Business Court, Ostend Division) decided to stay the proceedings and, by decision received at the Court Registry on 13 June 2024, to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does a vessel traffic services (VTS) regime, with the associated fixed tariff based on the length of the vessel, that applies to maritime traffic to a Flemish port from a port in another Member State, but which does not apply to traffic between Flemish ports because such traffic is exempt from the tariff, constitute an obstacle to the freedom to provide services pursuant to Regulation [No 4055/86], in conjunction with Article 56 TFEU?
(2)      Does the application of a uniform VTS tariff based solely on the length of the vessel for access to ports that are substantially different have the effect of rendering the VTS tariff contrary to the freedom to provide services in Article 56 TFEU and Regulation [No 4055/86], because other important factors specific to the route of navigation to the port, such as the distance travelled by the vessel in the VTS area, the distance between the open sea and the port, and the complexity and particular characteristics of the port are not taken into account?
(3)      Should Article 191 of the [TCA] be interpreted as meaning that, even after the withdrawal, service providers established in the United Kingdom of Great Britain and Northern Ireland can invoke EU law, and [should the first and second questions] be answered in the same way both before and after the withdrawal of the United Kingdom of Great Britain and Northern Ireland?’
10.      Written observations were submitted by the Flemish Region, P&O and the European Commission.
III. Analysis
A.      The first and second questions referred for a preliminary ruling
11.      A preliminary point to note is that the Treaty provisions relating to freedom to provide services were made fully applicable in the maritime transport sector, in accordance with Article 84(2) EEC read in conjunction with Article 61 EEC, (20) by Regulation No 4055/86, which adopted measures to implement that fundamental freedom in the maritime transport sector. It follows from Article 1(3) and Article 8 thereof that that regulation makes applicable to the matters covered by it the whole of the Treaty rules relating to freedom to provide services. (21) It is thus by virtue of that express reference in Regulation No 4055/86 to the Treaty provisions on freedom to provide services that a national measure regulating maritime transport services must comply with the Court’s traditional case-law on the elimination of all discrimination on grounds of nationality and the abolition of any unjustified restriction. (22)
12.      According to that case-law, freedom to provide services, which is implemented by Regulation No 4055/86, prohibits all discrimination on grounds of nationality against providers of services who are established in another Member State and any restriction of freedom to provide services, even if it applies without distinction to national providers of services and to those of other Member States, when that restriction is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State where he or she lawfully provides similar services. (23)
13.      Freedom to provide services thus precludes the application of any national legislation whose effect is to make the provision of services between Member States more difficult than that of purely domestic services within a Member State, unless that legislation is justified by compelling reasons of public interest and the measures enacted thereby are necessary and proportionate. (24)
14.      By its first two questions, the referring court asks the Court to rule on two distinct aspects of the national legislation. I will therefore examine, first of all, the exemption for traffic between Flemish ports which it establishes, before considering the question of the application of a uniform tariff calculated solely on the basis of vessel length.
1.      Exemption for traffic between two Flemish ports
15.      The Court has already ruled, in connection with tariffs for vessel traffic services in ports, that a system which gave preferential treatment to vessels permitted to engage in maritime cabotage – which was reserved for vessels flying the national flag – indirectly discriminated between economic operators according to their nationality because vessels flying the national flag were generally operated by national operators. The class receiving favourable treatment appeared to consist essentially of national economic operators. (25)
16.      By explicitly providing that vessels sailing between two Flemish ports are exempt from payment of the fee due for use of the vessel traffic services system, the criterion applied by the national legislation to determine whether the vessels in question should be exempted is the internal nature of the journey.
17.      As the referring court summarises, a sea-going vessel sailing in either direction between Zeebrugge and Antwerp is exempt from the fee such that vessel traffic services are provided to that vessel free of charge, while the same vessel traffic services provided to a vessel coming from a port in another Member State will be charged.
18.      It is clear that services for transport between a Flemish port and a port in another Member State are subject to a charging system which is less favourable than that applying to transport between two Flemish ports, (26) disadvantaging operators such as P&O, which, although sailing to or from a Flemish port, do not appear to sail between Flemish ports. Even though the national legislation at issue in the main proceedings does not reserve that traffic either for vessels flying the national flag (as was the case in the judgment in Corsica Ferries) (27) or for vessels operated by national operators, it can legitimately be presumed that it is Belgian economic operators that are most active on those internal shipping routes.
19.      The Flemish Region maintained before the referring court that the exemption for vessels sailing between Flemish ports does not adversely affect vessels sailing to a Flemish port from another Member State as they are not on the same market. However, as P&O argues, at least some vessels sailing between Flemish ports are on the same market as vessels sailing to or from the sea which operate intra-Community routes.
20.      The Flemish Region also submits that any vessel coming from the sea and bound for a Flemish port pays for the vessel traffic services received. Nevertheless, such vessel traffic services also have to be provided for a journey between two Flemish ports and therefore benefit exempt vessels. (28) As a result, it seems difficult to claim, like the Flemish Region, that the exemption is based on objective criteria independent of the vessels’ origin or destination. (29)
21.      The Flemish Region further explains that the exemption is actually intended to exclude a certain type of navigation from the scope of the fee. (30) It is true that, as the Court ruled in the judgment in Sea-Land Service and Nedlloyd Lijnen, (31) an exemption covering a type of navigation distinct from that which is subject to payment of a tariff may be deemed compatible with freedom to provide services where the services are different. I would, however, recall that in the present case Article 37bis of the Decree of 16 June 2006 does not distinguish according to the type of navigation concerned. Under those circumstances, it does not seem possible to pursue the analogy with the situation at issue in that judgment any further. (32)
22.      Although, as the Flemish Region also claims, Article 37bis of the Decree of 16 June 2006 is, in fact, intended to exempt vessels which, under EU law, do not fall within the scope of the vessel traffic monitoring and information system, (33) it must be reiterated that such an argument seems to be based on an a posteriori  reconstruction of the rationale for the exemption rather than on the criterion applied for the exemption, as is evident from the actual wording of that article.
23.      Above all, in view of the function of the traffic services system, as mentioned in point 6 of this Opinion, the request for a preliminary ruling has not identified objective differences between traffic between Member States and internal traffic capable of explaining the exemption for the latter. (34)
24.      I therefore propose that the Court find that the system at issue in the main proceedings, in so far as it requires payment of a fee for vessels sailing to a Flemish port but exempts vessels sailing between two Flemish ports from such payment, is liable to impede or render less attractive the activities of a provider of services established in another Member State where it provides similar services and constitutes a restriction on the free circulation of those services. (35)
25.      Such a restriction may be allowed only if it is justified on grounds of public policy, public security or public health, in accordance with the provisions of Articles 51 and 52 TFEU, which are applicable in the area of freedom to provide services by virtue of Article 62 TFEU, or by overriding reasons in the public interest established by the Court. (36)
26.      None of those grounds or reasons are present here, the only specific justification (37) put forward by the Flemish Region being the claim that the exemption for traffic between Flemish ports pursues the objective of avoiding vessels which have already entered a Flemish port from the sea having to pay the vessel traffic services system fee multiple times.
27.      Since no valid justification has been put forward, it must be found that a prohibited restriction exists.
2.      Application of a uniform tariff which takes into account only vessel length
28.      The Decree of 16 June 2006 makes only vessels of 41 metres and more in length subject to payment of a fixed fee for the vessel traffic services system when they sail from ports in other Member States for Flemish ports or when they leave Flemish ports to return to a port in another Member State.
29.      It is those two aspects of the Flemish legislation that will now be examined in the light of Article 1 of Regulation No 4055/86. (38)
30.      I would point out that in the judgment in Sea-Land Service and Nedlloyd Lijnenthe Court examined a vessel traffic services system which required payment of a tariff by sea-going vessels longer than 41 metres that participated in that system on a mandatory basis, while other vessels such as inland waterway vessels were exempt from that tariff. (39) It ruled that the payment of such a tariff was liable to impede or render less attractive the provision of those services and constituted a restriction on their free circulation. In view of the fact that the national legislation examined by the Court in that judgment was very similar to the legislation in the present case, the Court should also find that an obstacle exists here.
31.      The grounds of justification invoked should also be readily accepted by the Court. Indeed, the vessel traffic services system allows vessels to be provided with the advice and information necessary for safe navigation by flagging, in particular, obstacles and other traffic that are sometimes not visible as well as any other relevant information. As is stated in the request for a preliminary ruling, the objective is to provide those in command of the vessels with any necessary advice and comprehensive information for determining the most appropriate, safe and fluid route to and from the port. (40)As the Flemish Region maintains, the system undoubtedly contributes to safeguarding the public interest in its safety dimension and the Court has already recognised that the objective of ensuring safety in port waters constitutes an overriding reason in the public interest. (41)
32.      That being the case, in order to be justified, the national legislation in question must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it. (42)
33.      Necessity is hardly in doubt. By analogy with the judgment in Sea-Land Service and Nedlloyd Lijnen, (43) it must be accepted that the traffic services system constitutes a nautical service essential to the maintenance of public security in coastal waters as well as in ports and that the fee  to which sea-going vessels longer than 41 metres are subject, as users of that service, contributes to the general interest in public security in those waters.
34.      On the other hand, the relationship between the criterion applied in order to require payment of the fee (vessel length) and the objective pursued is not self-evident and casts doubt on the proportionality of the system at issue in the main proceedings.
35.      In the first place, I can understand that traffic generated by longer vessels causes a number of problems and calls for increased vigilance in setting routes and meeting all the conditions necessary for safe navigation. The risks in terms of safety of navigation seem to be in proportion to the size of the vessels used for that purpose. However, a single vessel of more than 41  metres does not necessarily represent a greater risk to traffic than would be created by two vessels with a length of 20 metres. Cases in which traffic generated by the movement of smaller vessels would actually jeopardise safety just as much as the presence in port waters of a vessel with a length of more than 41 metres cannot be ruled out. The question therefore arises of the extent to which safety in port waters would not rightly require traffic generated by such smaller vessels to be notified to vessels subject to the fee.
36.      I note that the Court has already ruled in the judgment in Sea-Land Service and Nedlloyd Lijnenthat national legislation which requires the payment of a tariff by sea-going vessels longer than 41 metres is proportionate ‘in so far as there is in fact a correlation between the cost of the service from which those vessels benefit and the amount of that tariff’, but that this would not be the case ‘where that amount included cost factors chargeable to categories of ships other than sea-going vessels longer than 41 metres’. (44)
37.      The applicant in the main proceedings neither puts forward any specific evidence on the basis of which it could claim that that is the case nor explains why the cost necessarily generated by traffic services for smaller vessels will not be charged to them.
38.      In the second place, relying partly on the Opinion of Advocate General Alber in joined cases Sea-Land Service and Nedlloyd Lijnen, (45) P&O submits that, in order to be proportionate, the tariff system should also take into consideration the objective difficulties of navigation specific to each port.
39.      Indeed, I take the view that the tariffs for the vessel traffic services system, while they may take into account the length of the vessel, must also take into account factors which appear to be more directly connected with the safety objective pursued and are capable of establishing a specific relationship between the actual service provided and the objective necessity, (46) for those who benefit from it, to have recourse to the traffic services system. (47) In those circumstances, tariffs which are differentiated according to the port concerned and the objective difficulties specific to navigation and docking in that port would seem to be more commensurate with that objective. The referring court itself has confirmed that there are significant regional disparities, stating that access to the port of Antwerp and access to the port of Zeebrugge are completely different in nature and complexity, the latter being easily accessible from the open sea while access to the former requires a difficult crossing of the Western Scheldt Estuary. (48) However, those differences are not reflected in the tariff system.
40.      It follows from the foregoing that, in order to be proportionate with the objective pursued, a restriction on freedom to provide services consisting in the payment of a fixed fee charged for the mandatory use of the vessel traffic services system solely to vessels of more than 41 metres must be based on an actual link between the amount collected and the objective necessity of the traffic services provided. Such necessity must be assessed, first, by determining the existence of the specific risks to the safety of navigation posed by those vessels and, second, by taking into account the practical difficulties specific to navigation in the port of destination and of arrival based on its particular characteristics. The referring court must satisfy itself that the structure of the fee, as established by the national legislation, meets those conditions.
B.      The third question referred for a preliminary ruling
41.      According to P&O, it follows from Article 191 of the TCA (49) that maritime traffic to the European Union from the United Kingdom may not be treated less favourably than maritime traffic between Member States. P&O argues that such a provision enshrines the freedom to provide services, which continues to apply after the withdrawal of the United Kingdom from the European Union and should require the referring court to apply Regulation No 4055/86 in respect of the proportion of the invoices relating to the period following that withdrawal.
42.      The Flemish Region challenges that position and submits that providers of services established in the United Kingdom can no longer invoke EU law in the same manner after that withdrawal.
43.      I would note as a preliminary point that the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) (50) entered into force on 1 February 2020 and provided for a transition period until 31 December 2020, during which the United Kingdom was to be regarded as a Member State (51) and, consequently, relations between the European Union and that future former Member State were governed by EU law, (52) unless otherwise provided. The transition period was therefore characterised by the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of withdrawal, the Treaties cease to apply to the departing State. (53)
44.      Since the end of the transition period, legal relations between the United Kingdom and the European Union have been regulated by the TCA.
45.      Article 191(1)(a) of the TCA establishes the principle of equal treatment with regard, in particular, to access to ports, the use of port infrastructure, the use of maritime auxiliary services, the assignment of berths and facilities for loading and unloading and the related fees (54) and charges. The contracting parties also undertook to abolish any unilateral measures or administrative obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of international maritime transport services. (55)
46.      Contrary to the claim made by P&O, that article does not literally transpose, in relations between the European Union and the United Kingdom as they had to be remodelled, the freedom to provide services enshrined in Article 56 TFEU.
47.      It is nonetheless important to place Article 191 of the TCA in its own normative context.
48.      Although the objective of the TCA is to establish the basis for a ‘broad relationship’ between the contracting Parties within an area of ‘prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty’, (56) it is undeniable that relations between the European Union and the United Kingdom have, since the end of the transition period and unless specifically provided otherwise, been governed by public international law. Any interpretation of the TCA must comply with the requirements of international law, in particular those of the Vienna Convention on the Law of Treaties of 23 May 1969. (57) Article 4(2) of the TCA specifies that ‘[the TCA does not establish] an obligation to interpret [its] provisions in accordance with the domestic law of either Party’. For its part, Article 5(1) of the TCA stipulates that, unless there is an exception, (58) ‘nothing in this Agreement … shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement … to be directly invoked in the domestic legal systems of the Parties’.
49.      The TCA is then indeed an international agreement, which is binding upon the EU institutions and the Member States (59) and whose provisions form an integral part of EU law, (60) being positioned in the EU legal order between secondary law and primary law. (61) The effects of provisions of an agreement concluded by the European Union with non-member States may not therefore be determined without taking account of the international origin of those provisions. (62) European Union institutions which have power to negotiate and conclude an international agreement are free to agree with the third States concerned what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. Only if that question has not been settled by the agreement does it fall to be decided by the courts having jurisdiction in the matter, and in particular by the Court of Justice, in the same manner as any question of interpretation relating to the application of the agreement in the European Union. (63)
50.      In the case of the TCA, that question has been settled. That agreement explicitly and unequivocally excludes the possibility that one of its provisions – unless an exception is explicitly laid down in the TCA itself – can be interpreted ‘as conferring rights or imposing obligations on persons other than those created between the Parties under public international law’ or ‘as permitting this Agreement … to be directly invoked in the domestic legal systems of the Parties’. (64)
51.      By claiming that it can continue to rely, on the basis of Article 191 of the TCA, on a possible infringement of the freedom to provide services after the withdrawal of the United Kingdom, that is to say, after the internationalisation of legal relations between that State, which is now a third country (65) and no longer a Member State, and the European Union, P&O seeks to accord to the TCA effects which are not its own. (66)
52.      To quote Advocate General Bot, who noted that the contracting parties had expressly intended to exclude any direct effect for the provisions of the agreement under review by the Court in that case, ‘neither the courts of the European Union nor the courts or tribunals of the Member States may therefore apply that agreement directly in the disputes which are brought before them. There are therefore two co-existing legal systems, interference between which has been deliberately limited.’ (67)
53.      Without it being necessary to consider further the interpretation of Article 191 of the TCA, it is sufficient to recall that, from the date of application of the TCA, the acquis communautaire ceased to regulate the European Union’s relations with the United Kingdom. P&O cannot rely directly on EU law (68) or on the TCA for the reasons mentioned above.
54.      That observation leads to the more comprehensive finding that, unless expressly provided otherwise, litigants may not rely on the provisions of the TCA before national courts. Any incompatibility between the law of a Member State and the TCA would have to be resolved by means of the TCA’s own dispute settlement mechanism.
55.      I wonder, however, to what extent the question of the effect in the EU legal order of agreements concluded by the European Union can really be left entirely in the hands of the contracting parties and in particular of the EU institutions. If the wish of those parties to contain the effects of the TCA in their relations is to be accepted and respected, it cannot be ignored that, as is clear from the considerations recalled above, (69) the TCA was integrated into the EU legal order from its entry into force and occupies a clearly defined position in it. As the Court has ruled with specific reference to the TCA, Article 217 TFEU empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU. (70) Article 191 of the TCA gives specific expression to the commitment to create an environment of free competition in the field of international maritime services. Such a commitment is also reflected in the provisions of Article 91 TFEU which sets out, in order to implement the Union’s transport policy, the establishment of ‘common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States’ (71) as well as the definition of ‘the conditions under which non-resident carriers may operate transport services within a Member State.’ (72)
56.      A certain tension therefore seems to arise between, on the one hand, the requirements of the Treaty, the immediate integration of international commitments and their position in the EU legal order and, on the other, the Council of the European Union’s increasingly frequent recourse, in international negotiations, to provisions excluding the direct effect of agreements which are binding upon the European Union.
57.      The communitarisation of the TCA by virtue of its integration into the EU legal order nevertheless means, in my view, that a clause such as Article 5 of the TCA cannot prevent the TCA from having any effect whatsoever in that legal order. Ultimately, it is a matter of safeguarding the constitutional structure of the European Union, which has clearly undertaken to observe international law and to contribute to free and fair trade. (73)
58.      With regard to provisions of international origin which do not possess the necessary qualities to be recognised as having direct effect, the Court has ruled that, even though the validity of the secondary legislation cannot be called into question on the basis of those provisions, the secondary legislation must be interpreted, as far as possible, in accordance with them. (74)
59.      The fact remains that in the main proceedings there is no longer any secondary legislation to interpret in accordance with the TCA because Regulation No 4055/86 ceased to apply to the contracting parties on 31 December 2020. The fact that that regulation no longer applies in relations between P&O and the Belgian authorities after that date is nevertheless, in my view, without prejudice to the possibility for the referring court to interpret its national law, as far as possible, in conformity with Article 191 of the TCA. (75)
IV.    Conclusion
60.      In the light of all of the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the ondernemingsrechtbank Gent, afdeling Oostende (Ghent Business Court, Ostend Division, Belgium) as follows:
(1)      Article 1 of Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, in conjunction with Article 56 TFEU,
must be interpreted as meaning that:
–        it precludes legislation which requires vessels of more than 41 metres entering or leaving ports in a designated region of a Member State to pay a fee for the mandatory use of the vessel traffic services system, even though vessels sailing between two ports in that region are exempt from payment;
–        in order to be proportionate with the objective pursued, a restriction on freedom to provide services consisting in the payment of a fixed fee charged for the mandatory use of the vessel traffic services system solely to vessels of more than 41 metres must be based on an actual link between the amount collected and the objective necessity of the traffic services provided. Such necessity must be assessed, first, by determining the existence of the specific risks to the safety of navigation posed by those vessels and, second, by taking into account the practical difficulties specific to navigation in the port of destination and of arrival based on its particular characteristics. The referring court must, if necessary, satisfy itself that the structure of the fee, as established by the national legislation, meets those conditions.
(2)      Article 127 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and Articles 5 and 191 of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part,
must be interpreted as meaning that after the withdrawal of the United Kingdom from the European Union, UK providers of maritime transport services can no longer rely, before the national courts and tribunals of the Member States, on Regulation No 4055/86 in connection with facts or legal situations arising after 31 December 2020. The national court must interpret its domestic legislation, as far as possible, in conformity with the requirements of Article 191 of that agreement.
1      Original language: French.
2      Belgisch Staatsblad (Belgian Official Gazette), 26 October 2006, p. 57703.
3      In the documents before the Court, that fee is also referred to as a charge, compensation (according to the characterisation adopted by the Cour constitutionnelle (Constitutional Court, Belgium) in its judgment 44/2010 of 29 April 2010, which is mentioned in paragraph 20 of the request for a preliminary ruling) or remuneration. In accordance with the characterisation given to it in Article 37bis(1)(1) of the Decree of 16 June 2006, I will keep to the term ‘fee’ in the text of this Opinion.
4      Article 37(2) of the Decree of 16 June 2006.
5      Article 37(1) of the Decree of 16 June 2006.
6      Article 37bis(2) and (3) of the Decree of 16 June 2006.
7      Article 37bis(2), second subparagraph, of the Decree of 16 June 2006.
8      Article 37bis(2), third subparagraph, of the Decree of 16 June 2006.
9      According to the request for a preliminary ruling, the minimum length was set at 41 metres in 2023. From 2008 to 2023, it was set at 46 metres.
10      Article 37bis(3) of the Decree of 16 June 2006. For the exempt categories designated by the Flemish Government, see Article 37(1)(1) and (2) of that decree.
11      In accordance with Article 37bis(5) of the Decree of 16 June 2006.
12      P&O is a company incorporated under English law which operates in Belgium in the maritime passenger and freight transport sector between the United Kingdom and continental Europe.
13      In addition, the claim made by the applicant in the main proceedings seeks to have P&O ordered to pay invoices which become due in the course of the proceedings or, at least, to have the proceedings stayed in that regard (see paragraphs 9 and 10 of the request for a preliminary ruling).
14      OJ 1986 L 378, p. 1, as corrected (see corrigendum OJ 1987 L 93, p. 17) and subsequently amended by Council Regulation (EEC) No 3573/90 of 4 December 1990 (OJ 1990 L 353 p. 16). Article 1 of that regulation provides, in paragraph 1, that ‘freedom to provide maritime transport 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’. Paragraph 3 of that article states that ‘the provisions of Articles 55 to 58 and 62 of [the EEC Treaty] shall apply to the matters covered by this Regulation’.
15      P&O claims in particular that vessels sailing between two Flemish ports can, depending on their route, benefit from vessel traffic services over a much longer section than that used by vessels coming from the sea. Furthermore, navigation to the port of Antwerp (Belgium) requires more active assistance, in particular because of the number of users of that port and the narrowness of its waterways. However, vessels sailing between a Flemish port and the port of Antwerp are not required to make a financial contribution in order to receive those services. The cost of the services is therefore borne by operators that are subject to payment of the fee.
16      The Flemish Region relies, in that regard, on the judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364).
17      For example, upon arrival at a Flemish port from the sea, then again upon arrival at another Flemish port from that first port.
18      The wording of that article is reproduced in footnote 51 to this Opinion.
19      OJ 2021 L 149, p. 10.
20      Now Articles 100 and 58 TFEU, respectively.
21      See judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraphs 30 and 31).
22      See judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 32).
23      See, to that effect, judgments of 18 June 1998, Corsica Ferries France (C‑266/96, EU:C:1998:306, paragraph 56), and of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 32).
24      See judgments of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 39 and the case-law cited), and of 14 November 2002, Geha Naftiliaki and Others (C‑435/00, EU:C:2002:661, paragraph 20 and the case-law cited).
25      See judgment of 17 May 1994, Corsica Ferries (C‑18/93, EU:C:1994:195, paragraphs 32 to 34).
26      In the same vein, see judgment of 5 October 1994, Commission v France (C‑381/93, EU:C:1994:370, paragraph 22). P&O correctly asserts that any restriction, even minor, of freedom to provide services is prohibited (see judgment of 13 December 1989, Corsica Ferries (France), C‑49/89, EU:C:1989:649, paragraph 8).
27      Judgment of 17 May 1994 (C‑18/93, EU:C:1994:195).
28      The existence of that exemption is precisely why, contrary to its claim, the Flemish Region cannot find support for its argument in the judgment of 17 February 2005, Viacom Outdoor (C‑134/03, EU:C:2005:94).
29      As regards the figures provided by the Flemish Region in paragraph 36 of its written observations, I will simply note that those figures relate solely to 2013. In that year, traffic between Flemish ports represented 1 295 movements: 628 of those movements – slightly above 40% of traffic between Flemish ports – were made under the Belgian flag; 385 vessel movements were exclusively between two Flemish ports, 373 of which (almost 97%) were made by vessels flying the Belgian flag. The place of establishment of the shipping companies whose vessels were flying the Belgian flag is not indicated.
30      The Flemish Region does suggest that the majority of the traffic between two Flemish ports is operated by vessels designed solely for inland navigation.
31      Judgment of 13 June 2002 (C‑430/99 and C‑431/99, EU:C:2002:364, paragraphs 33, 34 and 36).
32      See, in particular, for a comparison with the situation at issue in the main proceedings, paragraph 44 of that judgment.
33      Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC (OJ 2002 L 208, p. 10).
34      See, by analogy, judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 37).
35      See, by analogy, judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 38 and the case-law cited).
36      See, amongst abundant case-law, judgment of 6 May 2021, Analisi G. Caracciolo (C‑142/20, EU:C:2021:368, paragraph 48 and the case-law cited).
37      The Flemish Region puts forward, in the context of its response to the first question referred for a preliminary ruling, a series of arguments concerning the possible justification for the vessel traffic services system fee which relate, in essence, to the need to ensure a high level of safety at sea. However, as is clear from paragraph 49 of its written observations in particular, those arguments actually represent an attempt to justify the criterion based on vessel length which is the subject of the second question referred to the Court.
38      In my view, the referring court will be able to settle the dispute before it on the basis of my proposed answer to the first question alone, as it will be sufficient to find that EU law precludes one of the three aspects of the Flemish legislation under examination by the Court (exemption for traffic between Flemish ports, scope ratione personae of the fee and fixed nature of the fee).
39      See judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 24).
40      See paragraph 17 of the request for a preliminary ruling.
41      See judgment of 17 March 2011, Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia (C‑128/10 and C‑129/10, EU:C:2011:163, paragraph 45 and the case-law cited). Even if it necessarily contributes to it, that overriding reason in the public interest seems to be more accurate than the reason relating directly to the Treaty in connection with the protection of public security which was accepted by the Court in the judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364) (see paragraph 41 of that judgment).
42      See judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 39).
43      Judgment of 13 June 2002 (C‑430/99 and C‑431/99, EU:C:2002:364).
44      Judgment of 13 June 2002 (C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 43, emphasis added). The idea of correlation was taken up by the Court in its subsequent case-law (see judgment of 14 November 2002, Geha Naftiliaki and Others, C‑435/00, EU:C:2002:661, paragraph 26).
45      C‑430/99 and C‑431/99 (EU:C:2001:464). P&O relies, in particular, on points 123 and 130 of that Opinion.
46      In view of the public interest at stake, such necessity may be presumed with the result that P&O’s argument that it does not need the traffic services provided must be rejected.
47      That objective necessity means that the mandatory nature of participation in the vessel traffic services system cannot be called into question.
48      See paragraphs 46 and 50 of the request for a preliminary ruling. It is also interesting to note that the referring court states in paragraph 18 of its request that the fee is collected from a sea-going vessel entering Zeebrugge because a short strip of water is located next to the port of Zeebrugge in the operational area of the vessel traffic services system.
49      ‘Obligations
1.      Without prejudice to non-conforming measures or other measures referred to in Articles 133 and 139, each Party shall implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis by:
(a) according to ships flying the flag of the other Party, or operated by service suppliers of the other Party, treatment no less favourable than that accorded to its own ships with regard to, inter alia:
(i) access to ports;
(ii) the use of port infrastructure;
(iii) the use of maritime auxiliary services;…
(b) making available to international maritime transport service suppliers of the other Party, on terms and conditions which are both reasonable and no less favourable than those applicable to its own suppliers or vessels or to vessels or suppliers of a third country (including fees and charges, specifications and quality of the service to be provided), the following port services: pilotage, towing … port captain’s services, … and shore-based operational services essential to ship operations, including communications …’
50      OJ 2020 L 29, p. 7.
51      See preamble, eighth recital and Articles 126 and 127 of the Withdrawal Agreement. See, also, judgment of 4 October 2024, Mirin (C‑4/23, EU:C:2024:845, paragraph 43 and the case-law cited).
52      See Article 127(1) of the Withdrawal Agreement.
53      Judgment of 16 November 2021, Governor of Cloverhill Prison and Others (C‑479/21 PPU, EU:C:2021:929, paragraph 51).
54      Under the conditions laid down in Article 151(1) of the TCA.
55      See Article 191(2)(c) of the TCA.
56      See Article 1 of the TCA.
57      United Nations Treaty Series, Vol. 1155, p. 331. See Article 4(1) of the TCA.
58      The provisions to which this article gives direct effect are those contained in the memorandum of understanding on the coordination of social security and those in the third part of the TCA, entitled ‘Law enforcement and judicial cooperation in criminal matters’, of which Article 191 of the TCA is not part. As a corollary, the TCA excludes the possibility that a contracting party may provide for a right of action in its domestic legislation that would be exercised against the other party because of a possible infringement by the latter of the TCA (see Article 5(2) of the TCA). On the exclusion of direct effect except in cases expressly provided for in the TCA, see, also, Opinion of Advocate General Szpunar in Alchaster (C‑202/24, EU:C:2024:559, point 56).
59      See Article 216(2) TFEU.
60      See inter alia judgments of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraph 5) and of 21 January 2025, Conti 11. Container Schiffahrt II (C‑188/23, EU:C:2025:26, paragraph 44).
61      See judgment of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 35).
62      Judgment of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 45).
63      See judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 49). Furthermore, once the possibility to interpret secondary EU legislation in keeping with an international agreement is determined, there is no longer any need to examine whether the nature and the broad logic of that agreement preclude the Court from examining the validity of the act at issue in the light of the agreement and whether the provisions relied upon to that end appear, as regards their content, to be unconditional and sufficiently precise (judgment of 21 January 2025, Conti 11. Container Schiffahrt II, C‑188/23, EU:C:2025:26, paragraph 74 and the case-law cited).
64      Article 5(1) of the TCA.
65      See judgment of 4 October 2024, Mirin (C‑4/23, EU:C:2024:845, paragraph 43).
66      In that regard, the Court has previously ruled that, assuming that the Convention on Biological Diversity (signed in Rio de Janeiro on 5 June 1992) contains provisions which do not have direct effect, in the sense that they do not create rights which individuals can rely on directly before the courts, that fact does not preclude review by the courts of compliance with the obligations incumbent on the Community as a party to that agreement (judgment of 9 October 2001, Netherlands v Parliament and Council, C‑377/98, EU:C:2001:523, paragraph 54). The TCA, for its part, expressly excludes all direct effect. It could thus be seen as being strictly based on reciprocal and mutually advantageous arrangements (see, by analogy, judgment of 9 October 2001, Netherlands v Parliament and Council, C‑377/98, EU:C:2001:523, paragraph 53).
67      See Opinion of Advocate General Bot in Opinion 1/17 (EU-Canada CET Agreement, EU:C:2019:72, point 63). The Advocate General went on to explain that, ‘in practice all the free trade agreements recently concluded by the European Union expressly exclude[d] their direct effect. The main reason for excluding the direct effect of those agreements [was] to guarantee effective reciprocity between the parties, in a manner consistent with the objectives of the common commercial policy.’ (point 91)
68      Article 1(1) of Regulation No 4055/86 extends the principle of the freedom to provide services as regards intra-Community traffic to traffic between a Member State and a third country (see judgments of 14 November 2002, Geha Naftiliaki and Others, C‑435/00, EU:C:2002:661, paragraph 21, and of 11 January 2007, Commission v Greece, C‑269/05, EU:C:2007:17, paragraph 22). The Court has ruled that the provision of maritime transport services between the port of a Member State and a port of a third State cannot, in the absence of objective justification, be subject to more onerous conditions than those to which the provision of comparable services between the port of a Member State and another port of that State or a port of another Member State are subject (see judgment of 14 November 2002, Geha Naftiliaki and Others, C‑435/00, EU:C:2002:661, paragraph 22). Furthermore, Article 1(2) of Regulation No 4055/86 provides that that regulation is applicable to nationals of the Member States established outside the Community and to shipping companies established outside the Community and controlled by nationals of the Member States, provided the vessels are registered in those Member States. The request for a preliminary ruling states that the defendant is ‘the company incorporated under English law P&O North Sea Ferries Limited (Belgian subsidiary)’. It is apparent from the documents before the Court that it has its registered office in Dover (United Kingdom). According to the information provided by the Commission, the Belgian branch of the company incorporated under English law does not have distinct legal personality but has a company number in Belgium (see paragraph 10 of the Commission’s written observations). The referring court will have to satisfy itself that the defendant in the main proceedings actually does no longer fall within the scope ratione personae of Regulation No 4055/86 after the withdrawal of the United Kingdom from the European Union.
69      See point 49 of this Opinion.
70      See judgments of 16 November 2021, Governor of Cloverhill Prison and Others (C‑479/21 PPU, EU:C:2021:929, paragraph 57 and the case-law cited). The French word ‘engagements’ was translated by the words ‘commitments’ in the English-language version of the judgment and ‘impegni’ in the Italian-language version.
71      See Article 91(1)(a) TFEU.
72      See Article 91(1)(b) TFEU.
73      See Article 3(5) TEU.
74      See judgments of 18 March 2014, Z. (C‑363/12, EU:C:2014:159, paragraph 91), and of 27 February 2024, EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2024:172, paragraphs 68 to 70).
75      See, with regard to the obligations incumbent on national courts in the case of a provision of a directive which does not have direct effect, judgment of 18 January 2022, Thelen Technopark Berlin (C‑261/20, EU:C:2022:33, paragraph 33).