Joined Cases C-128/10 and C-129/10

Naftiliaki Etaireia Thasou

and

Amaltheia I Naftiki Etaireia

v

Ypourgos Emporikis Naftilías

(Reference for a preliminary ruling from the Simvoulio tis Epikratias)

(Reference for a preliminary ruling – Freedom to provide services – Maritime cabotage – Regulation (EEC) No 3577/92 – Articles 1 and 4 – Prior administrative authorisation for cabotage services – Review of conditions relating to the safety of ships – Maintenance of order in ports – Public service obligations – Absence of precise criteria known in advance)

Summary of the Judgment

Transport – Maritime transport – Freedom to provide services – Maritime cabotage – National legislation which makes maritime cabotage services subject to prior authorisation

(Council Regulation No 3577/92, Arts 1 and 4)

Article 1 in conjunction with Article 4 of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) must be interpreted as not precluding national legislation which establishes a system of prior authorisation for maritime cabotage services providing for the adoption of administrative decisions imposing observance of certain timeslots for reasons relating, first, to the safety of ships and order in ports and, second, to public service obligations, provided that such a system is based on objective, non-discriminatory criteria known in advance, particularly in cases in which several shipowners wish to enter the same port at the same time. With respect to the administrative decisions imposing public service obligations, it is in addition necessary that a genuine public service need arising from the inadequacy of the regular transport services under conditions of free competition can be demonstrated. It is for the national court to determine whether in the main proceedings those conditions are met.

(see para. 63, operative part)

JUDGMENT OF THE COURT (Eighth Chamber)

17 March 2011 ( )

(Reference for a preliminary ruling – Freedom to provide services – Maritime cabotage – Regulation (EEC) No 3577/92 – Articles 1 and 4 – Prior administrative authorisation for cabotage services – Review of conditions relating to the safety of ships – Maintenance of order in ports – Public service obligations – Absence of precise criteria known in advance)

In Joined Cases C‑128/10 and C‑129/10,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Simvoulio tis Epikratias (Greece), made by decisions of 30 December 2009, received at the Court on 11 March 2010, in the proceedings

Navtiliaki Etairia Thasou AE (C‑128/10),

Amalthia I Navtiki Etairia (C‑129/10)

v

Ipourgos Emborikis Navtilías,

intervener:

Koinopraxia Epibatikon Ochimatagogon Ploion Kavalas – Thasou (C‑128/10),

THE COURT (Eighth Chamber),

composed of K. Schiemann, President of the Chamber, L. Bay Larsen and C. Toader (Rapporteur), Judges,

Advocate General: P. Cruz Villalón,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Greek Government, by S. Chala, acting as Agent,

– the European Commission, by L. Lozano Palacios and D. Triantafyllou, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These references for a preliminary ruling concern the interpretation of the relevant provisions of European Union law on the freedom to provide services in the field of maritime cabotage.

2 The references have been made in proceedings between Navtiliaki Etairia Thasou AE (‘Navtiliaki Etairia Thasou’) and Amalthia I Navtiki Etairia, on the one hand, and Ipourgos Emborikis Navtilías (Minister for Merchant Shipping), on the other, concerning the validity of decisions adopted by Ipourgos Emborikis Navtilías, making maritime cabotage subject to certain conditions.

Legal context

European Union legislation

3 The eighth recital in the preamble to Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7; ‘the Regulation’) states:

‘… the implementation of [the] freedom [to provide cabotage services] should be gradual and not necessarily provided for in a uniform way for all services concerned, taking into account the nature of certain specific services and the extent of the effort that certain economies in the Community showing differences in development will have to sustain’.

4 The ninth recital in the preamble to that regulation reads as follows:

‘Whereas the introduction of public services entailing certain rights and obligations for the shipowners concerned may be justified in order to ensure the adequacy of regular transport services to, from and between islands, provided that there is no distinction on the grounds of nationality or residence’.

5 Article 1(1) of the Regulation provides:

‘As from 1 January 1993, freedom to provide maritime transport services within a Member State (maritime cabotage) shall apply to Community shipowners who have their ships registered in, and flying the flag of a Member State, provided that these ships comply with all conditions for carrying out cabotage in that Member State, including ships registered in Euros, once that Register is approved by the Council.’

6 Article 2 of the Regulation provides:

‘For the purposes of this Regulation:

1. ...

(c) island cabotage [shall mean] the carriage of passengers or goods by sea between:

– ports situated on the mainland and on one or more of the islands of one and the same Member State,

– ports situated on the islands of one and the same Member State;

...

3. “a public service contract” shall mean a contract concluded between the competent authorities of a Member State and a Community shipowner in order to provide the public with adequate transport services.

A public service contract may cover notably:

– transport services satisfying fixed standards of continuity, regularity, capacity and quality,

– additional transport services,

– transport services at specified rates and subject to specified conditions, in particular for certain categories of passengers or on certain routes,

– adjustments of services to actual requirements;

4. “public service obligations” shall mean obligations which the Community shipowner in question, if he were considering his own commercial interest, would not assume or would not assume to the same extent or under the same conditions;

...’

7 Article 4 of the Regulation reads as follows:

‘1. A Member State may conclude public service contracts with, or impose public service obligations as a condition for the provision of cabotage services on, shipping companies participating in regular services to, from and between islands

Whenever a Member State … imposes public service obligations, it shall do so on a non-discriminatory basis in respect of all Community shipowners.

2. In imposing public service obligations, Member States shall be limited to requirements concerning ports to be served, regularity, continuity, frequency, capacity to provide the service, rates to be charged and manning of the vessel.

...’

8 Article 6(2) and (3) of the Regulation provides:

‘2. By way of derogation, island cabotage in the Mediterranean and cabotage with regard to the Canary, Azores and Madeira archipelagoes, Ceuta and Melilla, the French islands along the Atlantic coast and the French overseas departments shall be temporarily exempted from the implementation of this Regulation until 1 January 1999.

3. For reasons of socio-economic cohesion, the derogation provided for in paragraph 2 shall be extended for Greece until 1 January 2004 for regular passenger and ferry services and services provided by vessels less than 650 gt.’

National law

9 Article 1 of Law 2932/2001 on the freedom to provide maritime cabotage services (FEK A’ 145/27.6.2001), in the version applicable to the facts in the main proceedings (‘Law 2932/2001’), provides:

‘1. As from 1 November 2002, freedom to provide services shall exist in respect of maritime transport services which:

(a) are provided for remuneration by a shipowner of a Member State of the … Community …, and

(b) are carried out between ports situated on the mainland and the islands or between ports situated on the islands by passenger/vehicle, passenger or cargo vessels operating a regular passenger and ferry service, and by vessels of a tonnage of up to 650 gt … provided that these vessels are registered in, and fly the flag of, Greece or another [Member] State …

…’

10 Article 2(6) of Law 2932/2001 provides:

‘By decision of the Minister, after consultation of the Simvoulio Aktoploïkon Syngkoinonion, public service obligations may be imposed on shipowners interested in operating a vessel on one or more routes. Those obligations shall be imposed in furtherance of reasons of public interest and shall include, without giving rise to discrimination, conditions which concern the ports to be served, the regularity of the service, the continuity, frequency and adequacy of the transport services proposed, fare tariffs and the manning of the vessels …’

11 Article 3 of Law 2932/2001, headed ‘Regular operation – Conditions’, provides:

‘1. The operation of a passenger/vehicle, passenger or cargo vessel shall be valid for a period of one year, starting on 1 November (regular service).’

2. In order to operate services:

(a) the vessel must satisfy all the statutory conditions for effecting cabotage in the Member State in which it is registered and in Greece, have all the shipping documents required by the provisions in force, safety and conservation of the marine environment certificates and a class certificate issued by a recognised classification society, when it is followed by it. …;

(b) the vessel must be suited to the facilities of the port installations and to any special demands of the particular route to be served, ...

...’

12 Article 4 of Law 2932/2001, headed ‘Procedure for the operation of a regular service’, provides:

‘1. In order to operate one or more vessels on a particular route, a shipowner shall submit to the Ministry a declaration stating his name and the location of his seat or residence as well as, in the case of a natural person, his surname, first name and nationality. ... He shall also state the vessel’s designation, the services it will carry out on one or more routes within the network, the ports of departure, the final destination and the intermediate ports in order of call, the days and times of departure and arrival, the highest charge for the service in economy class or a single class … during the period of operation and the other details indicated in the decision referred to in the next paragraph.

...

3. The operating declaration shall be submitted no later than 31 January. The competent department shall publish, no later than 10 February, a press release in at least two daily newspapers distributed throughout the country which refers to the declarations which have been submitted, and, up until 20 February, any person concerned can supplement, amend or withdraw its declaration. The competent department shall communicate those amendments, no later than 28 February, by publishing a press release and indicating them on the Ministry’s web page, if one exists. The department shall notify the person concerned in writing, no later than 31 March, that the declaration has been accepted, except in cases where the following paragraph applies.

4. The Minister may, to the extent necessary, amend the schedule declaration submitted if he has reason to believe that

(a) the conditions in one or more ports do not, for reasons concerning the vessel’s safety or order in the port, permit the schedules requested to be carried out,

(b) the vessel cannot enter the port unhindered and cannot effect the transportation to a particular area of the port and at the time declared or

(c) the frequency of the services or the planned period of their interruption fails to satisfy the settled requirements as to the regular provision of services during the period of operation or, as regards the fare tariff, if he has reason to believe that the highest charge proposed, in accordance with paragraph 1, on a particular route is excessive and contrary to the public interest.

5. … In the cases specified in paragraph 4(a) and (b), the shipowners shall be invited to adapt their timetables by mutual agreement by providing for the intervals required to solve those problems. In the absence of agreement within five days, the Minister shall adopt the necessary amendments to the timetables after consultation of the Simvoulio Aktoploïkon Syngkoinonion.

...’

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C-128/10

13 On 30 January 2006, Navtiliaki Etairia Thasou, a Greek shipping company, submitted regular service operating declarations to Ipourgos Emborikis Navtilías, attaching a table of itineraries, for the period from 1 November 2006 to 31 October 2007 concerning its ships which operate the service between the mainland and the island of Thasos, more precisely, the routes from Kavala to Prinos Thasou and from Keramoti to Thasos.

14 Ipourgos Emborikis Navtilías sought an opinion on those declarations from the Kavala port authority and the Simvoulio Aktoploïkon Syngkoinonion, which is the collective body responsible for matters relating to cabotage, and consists of representatives of all the social and professional bodies involved in cabotage.

15 On 20 March 2006, the Kavala port authority sent Ipourgos Emborikis Navtilías an opinion which indicates, in substance, first, that the simultaneous or almost simultaneous arrival or departure of vessels jeopardises the safety of shipping and, second, that another timetable for those arrivals and departures would ensure a better public service, and amendments to the timetable proposed by Navtiliaki Etairia Thasou were recommended.

16 Since various consultation meetings held at the Kavala Central Port Authority and the Ministry of Merchant Shipping failed to result in an agreement, in particular with regard to the timetable for services, the Simvoulio Aktoploïkon Syngkoinonion issued an opinion dated 26 October 2006 in which it endorsed the amendments suggested by the Kavala port authority.

17 Ipourgos Emborikis Navtilías then imposed, by five decisions of 31 October 2006, the following amendments to Navtiliaki Etairia Thasou’s declaration:

– As regards the route from Kavala to Prinos Thasou, it amended by half an hour the operation of the service and thus decided that, for the period from 1 July to 31 August 2007, Navtiliaki Etairia Thasou’s vessels would depart from the port of Prinos Thasou at 19:00 instead of 18:30 as initially declared;

– As regards the route from Keramoti to Thasos, Ipourgos Emborikis Navtilías decided that:

(a) the times for operating services established for the ships of Navtiliaki Etairia Thasou remain those established for corresponding services for the previous operating period from 1 November 2005 to 31 October 2006,

(b) for the period from 1 July to 31 August 2007, given the size of the Keramoti port and for safety reasons, the services must be carried out at 30 minute intervals.

18 Navtiliaki Etairia Thasou contested the validity of the amendments imposed by Ipourgos Emborikis Navtilías before the referring court and argued that the provisions of Law 2932/2001, pursuant to which the decisions at issue imposed unilateral amendments to the timetables, are invalid because they are contrary to the provisions of the Regulation.

19 Koinopraxia Epibatikon Ochimatagogon Ploion Kavalas – Thasou, an association of shipping companies which had submitted declarations concerning the use of their ships for a regular service on the contested routes for the period from 1 November 2006 to 31 October 2007, intervened in support of Ipourgos Emborikis Navtilías and contended that Navtiliaki Etairia Thasou’s application should be dismissed.

20 The referring court takes the view that the acceptance of the shipowners’ declarations by Ipourgos Emborikis Navtilías constitutes authorisation in Greek law. It argues that, as follows from Article 4(4) of Law 2932/2001, that law makes maritime cabotage services subject to a system of prior administrative authorisation which pursues in particular the objectives, first, of verifying, in accordance with Article 4(4)(a) and (b), whether, in light of the situation prevailing in a specific port, the schedules declared by the shipowner can be carried out under conditions which ensure the safety of the ship and the maintenance of order in the port and also that there will be no hindrance to entering the port, and, second, of imposing, as provided for by Article 4(4)(c), possible public service obligations relating to inter alia the frequency of services and, more generally, adequate services on the route concerned.

21 The referring court also points out that Article 4(5) of Law 2932/2001 in its original version provided that, where several shipowners requested access at the same time to a port which did not have enough capacity and the shipowners were unable to coordinate their arrival by mutual agreement, the administration was to issue an invitation to tender in order to determine the berth and anchor priority.

22 With particular reference to paragraph 34 of Case C-205/99 Analir and Others [2001] ECR I-1271, the referring court furthermore observes that the system of prior authorisation established by Article 4(4)(c) of Law 2932/2001 concerns without exception all shipping routes to the islands, although it does not appear that, before adopting those rules, the competent national authorities determined, for each of those routes, that the regular transport services would be likely to be inadequate if their provision were left to market forces alone.

23 In view of those considerations, the Simvoulio tis Epikratias (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the provisions of Articles 1, 2 and 4 of [the Regulation], interpreted in accordance with the principle of freedom to provide services, allow national schemes to be adopted, whereby shipowners cannot provide cabotage services without a prior administrative authorisation, when:

(a) the purpose of the authorisation system in question is to allow verification of whether, in light of the prevailing conditions in a specific port, the schedules declared by the shipowner can be implemented under conditions of safety for the ship and maintenance of order in the port and verification of the ability of the scheduled vessel to enter a specific port unhindered at the time declared by the shipowner as the preferred time for a specific service without, however, determination in advance in a legal rule of the criteria on the basis of which the authorities rule on such questions, especially in a case where more than one shipowner is interested in entering the same port at the same time;

(b) at the same time, the authorisation system in question constitutes a means of imposing public service obligations, inasmuch as it has in that respect the following features:

(i) it applies without exception to all scheduled shipping routes to the islands,

(ii) it grants the administrative authority responsible for issuing authorisations the broadest discretionary powers in terms of imposing public service obligations, without determining in advance in a legal rule the criteria for the exercise of those powers and without determining in advance the content of the public service obligations which may be imposed?’

Case C‑129/10

24 On 30 January 2006, Amalthia I Navtiki Etairia submitted an operating declaration to Ipourgos Emborikis Navtilías for the period from 1 November 2006 to 31 October 2007, concerning its ship which provides the service between Arkitsa, situated on the mainland, and the village of Aidipsos, situated on an island, and attached the timetables for the routes concerned.

25 In March 2006, having established that it was clear from the timetables submitted that, every day, ships were departing simultaneously, in particular during the summer season, the port authorities indicated in essence that, for safety reasons, they could not allow the simultaneous departure of several ships.

26 Since various consultation meetings held at the Aidipsos port authority and the Ministry of Merchant Shipping did not result in an agreement, the Simvoulio Aktoploïkon Syngkoinonion issued, on 26 October 2006, an opinion in favour of organising the services according to the latest proposal made by the port authorities, namely that only two and not three ships leave at the same time.

27 Following the declarations made by other shipping companies, Ipourgos Emborikis Navtilías, on 31 October 2006, adopted eight decisions which provide for the simultaneous departure of the applicant’s ship and a ship belonging to an association of other shipowners interested in operating the route at issue.

28 Amalthia I Navtiki Etairia contested those eight decisions before the referring court and argued that Ipourgos Emborikis Navtilías should have amended the operating declarations submitted by its competitors for the sole purpose of avoiding the simultaneous departure of ships.

29 The referring court reiterates that Article 4(5) of Law 2932/2001 in its original version provided that, where several shipowners requested access at the same time to a port which did not have enough capacity and they were unable to coordinate their arrival by mutual agreement, the administration was to issue an invitation to tender in order to determine the berth and anchor priority.

30 In view of those considerations, the Simvoulio tis Epikratias decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the provisions of Articles 1 and 2 of [the Regulation], interpreted in accordance with the principle of freedom to provide services, allow national schemes to be adopted, whereby shipowners cannot provide cabotage services without a prior administrative authorisation issued, in the context of an authorisation system aimed inter alia at ensuring verification of whether, in light of the prevailing conditions in a specific port, the schedules declared by the shipowner can be implemented under conditions of safety for the ship and maintenance of order in the port and verification of the ability of the scheduled vessel to enter a specific port unhindered at the time declared by the shipowner as the preferred time for a specific service without, however, determination in advance in a legal rule of the criteria on the basis of which the authorities rule on such questions, especially in cases where more than one shipowner is interested in entering the same port at the same time?’

31 By order of the President of the Court of 8 April 2010, Cases C‑128/10 and C‑129/10 were joined for the purposes of the written and oral procedure and of the judgment.

Consideration of the questions referred

Preliminary observations

32 First, it should be noted that, under Article 58(1) TFEU, freedom to provide services in the field of transport is to be governed by the provisions of Title VI of Part Three of that treaty, relating to transport, which include Article 100(2) TFEU, which enables the European Parliament and the Council to adopt appropriate provisions for sea transport.

33 On the basis of Article 80(2) EC, now Article 100(2) TFEU, the European legislature adopted the Regulation which has as its aim, as stated in Article 1 thereof, the application to Community shipowners of the principle of freedom to provide services in maritime transport within the territory of each Member State (Analir and Others, paragraph 20, and Case C-323/03 Commission v Spain [2006] ECR I-2161, paragraph 43).

34 Pursuant to the eighth recital in the preamble to the Regulation, the implementation of the freedom to provide maritime cabotage services was to be gradual. Pursuant to Article 6(2) and (3) of the Regulation, the Hellenic Republic was exempted from the application of the Regulation until 1 January 2004. At the time that the ministerial acts in question were adopted, the Regulation was, according to Article 6(2) and (3) thereof, already applicable in Greece ratione temporis.

35 Second, the Court must consider, as a further preliminary point, whether the rules laid down by Greek law actually establish a system of prior authorisation.

36 In that regard, it should be noted that it is clear from the contents of the file that the decisions in the two sets of main proceedings concerned the imposition of amendments to the hours of departure proposed by the shipowners because of, first, the safety of ships and order in the ports and, second, the need to ensure a certain frequency on the routes served.

37 The observations submitted to the Court reveal a divergence of views on the interpretation of the applicable national law. The Greek Government and the European Commission do not agree on whether that law establishes a system of authorisation.

38 The Commission, like the referring court, considers that the system established by Law 2932/2001, under which Ipourgos Emborikis Navtilías can accept or reject the scheduled service operating declarations made by owners of ships, constitutes an authorisation system such as that at issue in Analir and Others.

39 By contrast, the Greek Government submits that the procedure for examining those operating declarations submitted by shipowners does not empower the administration to carry out a review of the substance of the declarations, but merely allows it to carry out a formal review and that accordingly that procedure is not an authorisation system.

40 In that respect, it should be recalled that, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference. It is settled case‑law that the Court of Justice does not have jurisdiction to interpret the internal law of a Member State (Case C-511/03 Ten Kate Holding Musselkanaal and Others [2005] ECR I-8979, paragraph 25 and case-law).

41 In the present case, since, according to the orders for reference, the Greek administration does not just accept the shipowners’ operating declarations, but can also amend the transport plans proposed by the shipowners, particularly with regard to the departure times of the ships, the legal effects of such an amendment are equivalent to those of an authorisation. It follows that Law 2932/2001 in fact establishes a system of prior authorisation for the provision of maritime cabotage services.

42 Third, in so far as the referring court, by its questions, does not seek the interpretation of the concepts referred to in Article 2 of the Regulation, the Court finds that the appropriateness of ruling on that article is not established.

The measures to review the safety of ships and order in ports

43 As regards the question whether the Regulation, and in particular Article 1 thereof, precludes a system, such as that at issue in the main proceedings, liable to culminate in the imposition of timeslots for reasons of the safety of ships and order in ports, it is important to note that national rules, which make the provision of maritime cabotage services subject to prior administrative authorisation, are liable to impede or render less attractive the provision of those services and therefore constitute a restriction on the freedom to provide them (see Analir and Others, paragraph 22, and Commission v Spain, paragraph 44).

44 In the present case, the Court finds that the amendments to the shipowners’ timetable proposals for reasons relating to the safety of ports and ships can constitute a restriction on the freedom to provide services which applies to the field of maritime cabotage for the purposes of Article 1 of the Regulation.

45 Such a restriction may, however, be justified by overriding reasons in the public interest. As is clear from settled case-law, the aim of ensuring safety in port waters constitutes such an overriding reason in the public interest (see to that effect, Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 60).

46 In order for a measure based on reasons of safety in port waters to be justified, it must nevertheless satisfy the conditions of proportionality and non-discrimination.

47 As regards, in particular, the examination of proportionality, it should, first, be acknowledged that the introduction of a system of prior authorisation seeking, as the system at issue in the main proceedings does, to ensure that the presence at the same time of several ships in a port does not give rise to risks to the safety of those ships is an appropriate and a necessary means of pursuing the objective of safety in port waters.

48 Second, it follows from the case-law of the Court that a prior authorisation scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of European Union law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings. Therefore, if a prior authorisation scheme is to be justified even though it derogates from that freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see Case C-338/09 Yellow Cab Verkehrsbetrieb [2010] ECR I-0000, paragraph 53 and the case-law cited).

49 The need to circumscribe the exercise of the administration’s power by those criteria also applies when, in a situation such as that in the main proceedings, which concerns the sharing of timeslots between a number of interested shipowners in competition with each other, the national administration decides between the candidates where reasons of safety of ships and ports prevent a number of departures at the same time or require spacing between them.

50 In the present case, pursuant to Article 4(4)(a) and (b) of Law 2932/2001, the amendment to the timeslots proposed by shipowners may be based on requirements relating to the safety of ships and order in ports. In addition, those provisions provide that the Minister may amend the shipowner’s declaration only ‘to the extent necessary’ and by a duly reasoned decision. Even though those general criteria do not define in detail the safety and order reasons which can justify a change in timeslots, they seem to provide an objective framework of a sufficiently precise nature known in advance for the exercise of the national authorities’ discretion.

51 It is for the referring court to carry out the necessary checks in relation to its national legislation.

The measures imposing public service obligations

52 As regards the question whether the Regulation and in particular Articles 1 and 4 thereof preclude a system of prior authorisation imposing public service obligations, which consists in fixing certain timeslots, it has to be noted that, in accordance with Article 4(2), a Member State can impose on shipowners such obligations relating to frequency for regular cabotage services.

53 Furthermore, according to the case-law of the Court, a prior administrative authorisation system can be a means of imposing public service obligations (see Analir and Others, paragraph 34).

54 Given that all cabotage services are not necessarily services requiring public service obligations, such a system is permitted only if the competent national authorities have determined, for each route in question, that the regular transport services would be inadequate if their provision were left to market forces alone and if that system is necessary and proportionate to the aim of ensuring the adequacy of regular transport services to and from the islands (see, to that effect, the ninth recital in the preamble to the Regulation and Analir and Others, paragraphs 29 and 34).

55 Finally, such a system of prior authorisation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of the provisions of the Regulation. Consequently, it must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see, to that effect, Analir and Others, paragraphs 37 and 38).

56 In its orders for reference, the Simvoulio tis Epikratias observes in particular that, in the national legislation at issue in the main proceedings, there are no objective criteria to which the administration must adhere during the procedure leading to the adoption of authorisation decisions. For their part, the Greek Government and the Commission observe that Article 4(4) of Law 2932/2001 transposes Article 4(2) of the Regulation, by reproducing the criteria contained therein.

57 As the Court has already stated in paragraph 55 of this judgment, the prior authorisation system must be based on rules known in advance, which are objective, proportionate and non-discriminatory.

58 Similarly, it is essential that the content of the public service obligations which can be imposed is also determined in a measure of a general nature so that the details and the scope of those obligations are known in advance.

59 As regards the criteria for imposing public service obligations, Article 4(2) of the Regulation, which determines the requirements to which the Member States must be limited in imposing public service obligations, namely ports to be served, regularity, continuity, frequency, capacity to provide the service, rates to be charged and manning of the ship, must be regarded as establishing an exhaustive list.

60 Such requirements may be regarded as objective criteria to which the administration must adhere in the exercise of its discretion for the imposition of public service obligations, particularly in cases where more than one shipowner is interested in entering the same port at the same time.

61 As regards the national legislation at issue in the main proceedings, it should be noted, in particular, that Article 2(6) of Law 2932/2001 lists the various requirements which may justify imposing public service obligations provided for under Article 4(2) of the Regulation. In addition, Article 2 states that such obligations must be imposed ‘in furtherance of reasons of public interest’ and ‘without giving rise to discrimination’. For its part, Article 4(4)(c) of the same law states that the amendments to the shipowners’ declarations relating to the imposition of such obligations may be justified to guarantee regularity in the provision of the services. That same provision provides lastly that such amendments may in that regard be decided on only ‘to the extent necessary’ and if the Minister has ‘reason’ to believe.

62 It is for the referring court to establish whether, on the basis of those factors, the provisions of the legislation at issue in the main proceedings fulfil the conditions referred to in paragraphs 54 and 55 above.

63 Having regard to all of the foregoing considerations, the answer to the questions referred is that the provisions of Article 1 in conjunction with Article 4 of the Regulation must be interpreted as not precluding national legislation which establishes a system of prior authorisation for maritime cabotage services providing for the adoption of administrative decisions imposing compliance with certain timeslots for reasons relating, first, to the safety of ships and order in ports and, second, to public service obligations, provided that such a system is based on objective, non-discriminatory criteria which are known in advance, particularly in cases where more than one shipowner is interested in entering the same port at the same time. With respect to the administrative decisions imposing public service obligations, it is also necessary that a genuine public service need arising from the inadequacy of the regular transport services under conditions of free competition can be demonstrated. It is for the national court to determine whether in the main proceedings those conditions are met.

Costs

64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

The provisions of Article 1 in conjunction with Article 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) must be interpreted as not precluding national legislation which establishes a system of prior authorisation for maritime cabotage services providing for the adoption of administrative decisions imposing compliance with certain timeslots for reasons relating, first, to the safety of ships and order in ports and, second, to public service obligations, provided that such a system is based on objective, non-discriminatory criteria which are known in advance, particularly in cases where more than one shipowner is interested in entering the same port at the same time. With respect to the administrative decisions imposing public service obligations, it is also necessary that a genuine public service need arising from the inadequacy of the regular transport services under conditions of free competition can be demonstrated. It is for the national court to determine whether in the main proceedings those conditions are met.

[Signatures]