OPINION OF ADVOCATE GENERAL

WAHL

delivered on 27 March 2014 ( )

Case C‑207/13

Wagenborg Passagiersdiensten BV

Eigen Veerdienst Terschelling BV

MPS Stortemelk BV

MPS Willem Barentsz BV

MS Spathoek NV

GAF Lakeman, trading as Rederij Waddentransport

v

Minister van Infrastructuur en Milieu

(Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands))

(Freedom to provide services — Regulation (EEC) No 3577/92 — Concept of ‘maritime cabotage’ — Applicability — Transport of passengers between the Dutch mainland and certain islands in the Dutch part of the Wadden Sea — Annex I to Directive 2006/87/EC — Article 1(2) of Regulation (EC) No 1370/2007)

1. For reasons unknown, the terminology applicable to bodies of water is confusingly diversified. A rule of thumb would be that a ‘sea’ is larger than a lake; that it is connected to, or forms part of, a larger ocean; and that it contains salt water rather than fresh water. Yet that is not always so. ( )

2. Of interest today is the Wadden Sea, a uniquely European body of water which begins at Den Helder in the Netherlands, stretches along the northwestern coast of Germany and ends at Blåvands Huk in the south-western part of Denmark. The islands at its edge, which are sometimes referred to as the Frisian Islands, form a partial barrier to the North Sea. In 2009, the Dutch and German parts of the Wadden Sea were added to the list of World Heritage Sites by the United Nations Educational, Scientific and Cultural Organisation (Unesco), and Denmark applied in 2013 for the remaining part to receive that recognition also. ( )

3. According to Unesco, the Wadden Sea is the largest unbroken system of intertidal sand and mud flats in the world, with natural processes undisturbed throughout most of the area. It encompasses a multitude of transitional zones between land, sea and fresh water, and is rich in species specially adapted to the demanding environmental conditions. It is considered one of the most important areas for migratory birds in the world, and is connected to a network of other key sites for migratory birds. ( )

4. This does not mean that the Wadden Sea has been left untouched by the needs of modern society. Since at least the beginning of the 20th century, ferries have operated between the Dutch mainland and certain islands in the Dutch part of the Wadden Sea. One of the main issues in the present case is whether Regulation (EEC) No 3577/92 (‘the Cabotage Regulation’) ( ) applies to that body of water. If so, another issue to be resolved is whether, in light of the liberalisation of maritime services sought by that regulation, the Netherlands Government could legitimately award licences to certain shipping companies in 2011 without having recourse to a competitive award procedure.

5. As we will see, the Cabotage Regulation applies to ‘maritime transport’, that is to say, transport by sea. The Netherlands Government contends, in particular, that the Wadden Sea is not a ‘sea’ for the purposes of the Cabotage Regulation, but rather an inland body of water, which thus falls outside the scope of that regulation. In what follows, I will explain why I disagree.

I – Legal framework

A – EU law

6. Under Article 1 of the Cabotage Regulation, freedom to provide maritime transport services within a Member State (maritime cabotage) is to apply, as from 1 January 1993, to EU 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.

7. Article 2 of that regulation contains the following definitions:

‘For the purposes of this Regulation:

1. “maritime transport services within a Member State (maritime cabotage)” shall mean services normally provided for remuneration and shall in particular include:

…

(c) island cabotage: 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 …’

8. Article 4(1) of the Cabotage Regulation contains rules on public service contracts (‘PSCs’) and public service obligations (‘PSOs’). Under that provision, a Member State may conclude PSCs with shipping companies participating in regular services to, from and between islands, or it may impose PSOs on such companies as a condition for the provision of cabotage services. That provision also states that whenever a Member State concludes PSCs or imposes PSOs, it must do so on a non-discriminatory basis in respect of all EU shipowners.

9. Regulation (EC) No 1370/2007 ( ) lays down detailed rules concerning the provision of services of general interest in the field of public passenger transport (‘the PPT Regulation’). Article 1(2) of that regulation provides:

‘This Regulation shall apply to the national and international operation of public passenger transport services by rail and other track-based modes and by road … Member States may apply this Regulation to public passenger transport by inland waterways and, without prejudice to [the Cabotage Regulation], national sea waters.’

10. Article 5 of the PPT Regulation provides:

‘…

3. Any competent authority which has recourse to a third party other than an internal operator, shall award [PSCs] on the basis of a competitive tendering procedure, except in the cases specified in paragraphs 4, 5 and 6. The procedure adopted for competitive tendering shall be open to all operators, shall be fair and shall observe the principles of transparency and non-discrimination. Following the submission of tenders and any preselection, the procedure may involve negotiations in accordance with these principles in order to determine how best to meet specific or complex requirements.

4. Unless prohibited by national law, the competent authorities may decide to award [PSCs] directly either where their average annual value is estimated at less than EUR 1 000 000 or where they concern the annual provision of less than 300 000 kilometres of public passenger transport services.

In the case of a [PSC] directly awarded to a small or medium-sized enterprise operating not more than 23 vehicles, these thresholds may be increased to either an average annual value estimated at less than EUR 2 000 000 or where they concern the annual provision of less than 600 000 kilometres of public passenger transport services.’

11. Article 7(2) of the PPT Regulation lays down rules regarding the publication of relevant information in connection with the procedure leading to the award of a public service contract.

12. Directive 2006/87/EC ( ) lays down technical requirements for inland waterway vessels. Article 1(1)(a) classifies the EU inland waterways in different zones. Under Article 1(2), any Member State may, after consulting the Commission, modify the classification of its waterways. That Member State is to notify the Commission of these modifications at least six months before their entry into force and must also inform the other Member States.

13. Annex I to Directive 2006/87 contains a list of the inland waterways referred to in Article 1. In respect of the Kingdom of the Netherlands, the entry ‘[Wadden Sea]: including the links with the North Sea’ is listed under Zone 2 in Chapter 1 of that annex.

B – Netherlands law

14. Passenger transport in the Netherlands is governed by the Law of 6 July 2000 laying down new rules on public transport, private bus transport and taxi transport (Law of 2000 on the transport of persons) (Wet van 6 juli 2000, houdende nieuwe regels omtrent het openbaar vervoer, besloten busvervoer en taxivervoer (Wet personenvervoer 2000) ( )) (‘the Wp2000’). Article 1 of the Wp2000 defines an exclusive licence as the right to operate a public transport activity within a given area for a given period of time, to the exclusion of third parties. Article 19(1) of the Wp2000 prohibits the operation of a public transport activity without a licence, whilst Article 49 of that law allows rules governing the tendering procedure to be enacted by statutory instrument.

15. Under Article 2(1) of the Wp2000, that law applies to public transport of passengers by road, by rail and by guidance system. However, Article 2(2) of the Wp2000 makes it possible for the scope of that law to be extended by statutory instrument.

16. A ministerial decree regarding the transport of passengers — Decree of 14 December 2000 laying down a general administrative order to implement the Law on the transport of persons (Decree of 2000 on the transport of persons) (Besluit van 14 December 2000, houdende vaststelling van een algemene maatregel van bestuur ter uitvoering van de Wet personenvervoer 2000 (Besluit personvervoer 2000) ( )) (‘the Bp2000’) — contains rules complementing the Wp2000. Article 7a of the Bp2000 concerns passenger transport licences in respect of the Wadden Sea islands of Vlieland, Terschelling, Ameland and Schiermonnikoog. The provision was inserted into the Bp2000 by ministerial decree of 23 December 2009 and came into force on 4 February 2010. Article 7a(1) of the Bp2000 makes Articles 19(1) and 49 of the Wp2000 applicable also to ferry or boat transport services between two or more ports which provide access to the Wadden Sea.

17. Under Article 7a(3) of the Bp2000, licences are to be awarded for a maximum of 15 years following a competitive tendering procedure, in respect of which Article 5(3) of the PPT Regulation applies. By way of derogation, the initial licence may, under Article 7a(4) of that decree, be awarded directly if the criteria set out in Article 5(4) of that regulation are met.

II – Facts, procedure and the questions referred

18. The private undertakings party to the main proceedings provide passenger transport services by ferry across the Wadden Sea. Since the beginning of the 20th century, Wagenborg Passagiersdiensten (‘Wagenborg’) has serviced ferry routes between the islands of Ameland and Schiermonnikoog and the Dutch mainland. Terschellinger Stoombootmaatschappij (‘TSM’) operates a similar service in respect of the islands of Vlieland and Terschelling. During the 1980s and again in 2006 and 2007, the Netherlands Government entered into various PSCs with both Wagenborg and TSM (‘the licence-holders’) pertaining to ferry services to all the abovementioned islands (‘the islands in question’).

19. Following the entry into force of Article 7a of the Bp2000 on 4 February 2010, the Netherlands Government published a note setting out the aim and the procedure to be followed in respect of the initial award of licences, as referred to in Article 7a(4) of the Bp2000, for the exclusive provision of ferry services to and from the islands in question. This note was followed up, on 26 May 2010, by the online publication of the tendering specifications and the conditions governing the tendering procedure. On 9 March 2011, a licence notice was adopted and, on 9 May 2011, the final tendering specifications were published in the Staatscourant (Official Gazette).

20. TSM and Eigen Veerdienst Terschelling (‘EVT’) submitted bids for the licence relating to Vlieland and Terschelling, whilst Wagenborg submitted a bid for the licence relating to Ameland and Schiemonnikoog.

21. By decisions of 24 May 2011, the Minister van Infrastructuur en Milieu (‘the Minister’) awarded the licence for Vlieland and Terschelling to TSM and the licence for Ameland and Schiemonnikoog to Wagenborg (‘the contested licences’). By decision of 21 June 2011, the Minister rejected the bid submitted by EVT.

22. EVT, Stortemelk, Willem Barentsz, Spathoek and Waddentransport (‘the competitors’) raised objections against the decisions of 24 May and 21 June 2011. The Minister rejected those objections by decisions of 8 March 2012. The latter decisions added a supplementary condition to the decisions of 24 May and 21 June 2011, limiting the passenger transport services covered by the contested licences to a maximum of 300 000 kilometres per year.

23. The decisions of 8 March 2012 were subsequently challenged by the competitors before the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry). ( )

24. The competitors argue that it was unlawful to award the contested licences directly on the basis of Article 5(4) of the PPT Regulation, in as much as the application of that provision to the services in question is, in their view, not permitted under Article 1(2) of that regulation. Moreover, according to the competitors, the specific manner in which the contested licences were awarded is contrary to Article 4 of the Cabotage Regulation and, consequently, in breach of Article 1(2) of the PPT Regulation.

25. In the event that the Cabotage Regulation does not apply to the Wadden Sea, the competitors claim in the alternative that, although the scope of the PPT Regulation can be extended to cover transport by inland waterway, the same extension could not be applied to Article 5(4) of that regulation.

26. Lastly, the competitors argue that where a Member State decides to extend the scope of the PPT Regulation, it must apply the regulation in its totality to such transport (including the obligation of publication set out in Article 7), which the Minister failed to do.

27. In response, the Minister contends, first, that the possibility of extending the scope of the PPT Regulation follows from national law, that is to say, from Articles 2(2) and 49 of the Wp2000. Second, the Minister contends that the Cabotage Regulation does not apply to the Wadden Sea. Third, the criterion of 300 000 kilometres laid down in Article 5(4) of the PPT Regulation may be applied to passenger transport across the Wadden Sea. Lastly, the Minister argues that Article 1(2) of the PPT Regulation allows a Member State to apply only certain provisions of that regulation to that type of transport, such as those governing the award and duration of licences.

28. Entertaining doubts as to the scope of the Cabotage Regulation and its relationship with other EU legislative instruments, the College van Beroep voor het Bedrijfsleven decided to stay the proceedings and to refer the following questions to the Court:

‘1. Does the designation of the Netherlands portion of the Wadden Sea as an inland waterway (Zone 2 waterway) in Annex I to Directive 2006/87 preclude the application of the Cabotage Regulation to public passenger transport services over the Wadden Sea between the Netherlands mainland and the islands of Terschelling, Vlieland, Ameland and Schiermonnikoog?

2. Does the applicability of the Cabotage Regulation preclude application of the [PPT] Regulation, having regard to Article 1(2) of [the PPT Regulation]?

3. Are Member States free, under Article 1(2) of the [PPT] Regulation, to declare just one or more specific parts of that regulation, in this case Article 5(3) and, related thereto, Article 5(4), to be applicable to services of public passenger transport by water?

4. Can the exception provided for in Article 5(4) of the [PPT] Regulation, more particularly the distance criterion of 300 000 kilometres laid down in that provision, (simply) be declared to be applicable to services of public passenger transport by water?

5. If the answer to Question 4 is in the affirmative, what consequences should then be attached to the fact that in the case in question operating licences for services of public passenger transport by water were granted in the absence of compliance with the requirements of Article 7(2) of the [PPT] Regulation?’

29. Written and oral observations have been submitted by the licence-holders, the competitors, by the Netherlands Government and by the Commission.

III – Analysis

A – Preliminary observations

30. The five questions referred by the College van Beroep voor het Bedrijfsleven may be summarised as follows.

31. By Question 1, the referring court wishes to know whether the designation of the Wadden Sea as an ‘inland waterway’ in one instrument of secondary legislation — namely, Directive 2006/87 — prevents another instrument of secondary legislation — namely, the Cabotage Regulation — from applying to that same body of water.

32. That question presupposes that the Cabotage Regulation applies to the Wadden Sea. Indeed, although unsure, the referring court seems to believe that it does, given the way in which it has framed that question. Nevertheless, in light of the objections raised by the licence-holders, as well as the Netherlands Government, that issue ought to be determined beforehand.

33. Following up on its first question, the referring court wishes to know, by Question 2, whether the PPT Regulation and the Cabotage Regulation are mutually exclusive.

34. Questions 3 and 4, which overlap somewhat and which I will therefore address together, both concern the issue of whether, in light of Article 1(2) of the PPT Regulation, a Member State is free to apply only certain provisions and/or criteria laid down in that regulation to cabotage services and, in particular, whether it is free to apply only the distance criterion of 300 000 kilometres, below which recourse to a competitive award procedure is not required. That question therefore in turn presupposes that the answer to Question 2 is that the PPT Regulation and the Cabotage Regulation are not mutually exclusive.

35. By Question 5, the referring court essentially asks what consequences would attach to not meeting the publication requirements set out in Article 7(2) of the Cabotage Regulation. However, that question has been put only in the event that Question 4 is answered in the affirmative — that is to say, if it is found that a Member State may apply Article 5(4) of the PPT Regulation individually to cabotage services.

36. In what follows, I will set out the reasons why it is my view that the Cabotage Regulation applies to the Wadden Sea, despite the fact that Directive 2006/87 designates the Wadden Sea as an inland waterway. In addressing Question 2, I will then elaborate on the interrelationship between the Cabotage Regulation and the PPT Regulation. This will lay the foundations for discussing the possibility for Member States to extend only specific provisions of the PPT Regulation to cabotage services, as envisaged in Questions 3 and 4. Lastly, I will assess whether there is indeed any need to answer Question 5.

37. However, before dealing with the substance of the questions referred, it is necessary to address the objections raised by the Netherlands Government as to the admissibility of Questions 1 and 2.

B – Admissibility of Questions 1 and 2

38. The Netherlands Government contends that both Questions 1 and 2 are inadmissible for the same reason, namely that there is no need to answer those questions in order to resolve the dispute before the referring court.

39. The Netherlands Government argues that, consistently with the overarching aim of the Cabotage Regulation as specified in the third, fourth and fifth recitals in the preamble thereto, ( ) that regulation applies only to cross-border situations. In support of that argument, the Netherlands Government refers to Regulation (EEC) No 3921/91, ( ) which, in its view, does not apply to purely internal situations. Lastly, that government argues that the provisions relating to freedom of movement in the FEU Treaty do not apply to situations where all the relevant facts are confined within a single Member State. Referring to the fact that the contested licences all relate to the territory of the Netherlands and that all the undertakings party to the main proceedings are Dutch, the Netherlands Government accordingly takes the view that the Cabotage Regulation does not apply in the present dispute and that there is no need to answer the first two questions referred.

40. In that regard, it should be recalled that, under Article 267 TFEU, it is solely for the national court before which the dispute has been brought and which must assume responsibility for the judicial decision to be made to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. The Court may refuse to rule on a question referred to it by a national court only where it is obvious that the answer sought is wholly unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( )

41. The present case does not give rise to any of those situations.

42. While the Court may, in certain instances, declare inadmissible requests for preliminary rulings where all the relevant facts are confined within a single Member State, it should be borne in mind that such a decision to decline jurisdiction is usually founded on the provisions on freedom of movement enshrined in the FEU Treaty. ( ) Although the case under consideration does involve the freedom to provide services, it is essentially governed by an instrument of harmonisation, namely, the Cabotage Regulation. The argument as to admissibility is therefore irrelevant.

43. Moreover, under Article 1 thereof, the Cabotage Regulation applies to EU shipowners who have their ships registered in, and flying the flag of, a Member State, provided that those ships comply with all conditions for carrying out cabotage in that Member State. That provision does not require any cross-border element. This is supported by the expression ‘within Member States’, which appears in the third and fourth recitals in the preamble to the Cabotage Regulation (and on which the Netherlands Government curiously relies), as well as the definition of ‘maritime cabotage’ in Article 2(1) as ‘maritime transport services within a Member State’ (emphasis added). ( ) The fact that Regulation No 3921/91 may echo the requirements of the FEU Treaty as to the existence of a cross-border element does not mean that such a requirement must be applied, as a general rule, to other instruments of harmonisation.

44. These are important aspects of the case which also carry implications for my assessment of the first question referred. Indeed, the arguments raised by the Netherlands Government concerning the application of the Cabotage Regulation to purely internal situations relate to the substance of the first two questions referred, rather than to their admissibility. ( )

45. On that basis, I consider Questions 1 and 2 to be admissible.

C – Consideration of the questions referred

1. Question 1

46. The first question referred essentially deals with the implications, for the scope of the Cabotage Regulation, of the fact that the Wadden Sea is classified as an ‘inland waterway’ under Directive 2006/87.

47. Before answering this question, it is necessary to establish whether the Cabotage Regulation even applies to the Wadden Sea.

a) Applicability of the Cabotage Regulation to the Wadden Sea

48. In my view, it follows from the wording, structure and aim of the Cabotage Regulation that it must apply to the Wadden Sea.

49. According to the wording of Article 1 of the Cabotage Regulation, the type of service governed by the regulation is ‘maritime cabotage’. As mentioned above, that expression is defined in Article 2(1) as ‘maritime transport services within a Member State’.

50. Put plainly, the applicability of the Cabotage Regulation depends on whether the contested licences concern transport by sea. To my mind, transport to and from the Dutch mainland across the Wadden Sea to the islands in question quite obviously constitutes transport by sea.

51. Indeed, no real argument has been made that the Wadden Sea is not a ‘sea’ for the purposes of the Cabotage Regulation. No one argues that it is an enclosed body of water; that its waters are not salty; or that it is a fluvial waterway. Moreover, although the Frisian Islands form a ‘dotted line’ separating the Wadden Sea from the North Sea, the two nevertheless flow into each other. The name given to that body of water does not, therefore, seem purely coincidental. ( )

52. As for a structural interpretation of the Cabotage Regulation, I would point out that the definition provided in Article 2 is complemented by examples of what constitutes maritime cabotage. Indeed, it follows from Article 2(1)(c) of the regulation that maritime cabotage refers to ‘services normally provided for remuneration’ and includes, ‘in particular’, island cabotage, consisting in 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, or ports situated on the islands of one and the same Member State. ( )

53. Seen in that light, the contested licences must fall within the concept of ‘island cabotage’.

54. As for the aim of the Cabotage Regulation, it is to implement the freedom to provide services in respect of maritime cabotage, under the conditions and subject to the exceptions laid down in that regulation. ( )

55. In this respect, it is common ground that all the undertakings party to the main proceedings provide passenger transport services by ferry across the Wadden Sea and that they have all taken an interest in the contested licences. Moreover, ferrying for remuneration to the islands in question has taken place since the early part of the 20th century. Against that background, it would be contrary to the purpose of the Cabotage Regulation to exclude the Wadden Sea from the liberalisation which that regulation is designed to bring about.

56. On that basis, it is clear to me that the Cabotage Regulation applies to the Wadden Sea. Moreover, such an interpretation is supported by case-law.

57. Indeed, in Commission v Spain, ( ) the Court held that the Ria de Vigo (Vigo estuary), a deep inlet in the Autonomous Community of Galicia, fell within the scope of the Cabotage Regulation. The decisive criterion in that judgment appears not to have been the fact that the Vigo estuary was a river valley, but instead the fact that it was ‘inundated by the sea’. ( ) The Court followed the then Advocate General Tizzano, who had concluded that ‘[t]here is no doubt that the waters of the Vigo estuary are sea waters and that is sufficient, according to the letter of the provisions [of the Cabotage Regulation], for transport through them to be considered transport “by sea”’. ( )

58. Moreover, Advocate General Cruz Villalón has recently taken the view that, even where only a limited part of a cruise takes place at sea, that is enough for the transport service to be classified as ‘maritime cabotage’. ( )

59. That view is in no way weakened by the arguments raised by the Netherlands Government and essentially repeated by the licence-holders. Apart from repeating the argument set out in point 39 above, concerning the requirement of a cross-border element, the Netherlands Government claims that, in its fourth report on the implementation of the Cabotage Regulation, the Commission also took the view that the Cabotage Regulation did not apply to the Wadden Sea. ( ) The Netherlands Government goes on to argue that, under international law, the Wadden Sea is classified as ‘internal waters’ as it is situated on the landward side of the baseline of the territorial sea of the Netherlands. ( ) Lastly, that government emphasises, as do the licence-holders, the morphological and nautical differences between the Wadden Sea and the Ria de Vigo.

60. As regards the contention that a cross-border element is required, I would simply refer to points 43 and 44 above.

61. As regards the Commission report relied on by the Netherlands Government in its second argument, I would stress that that report was drawn up with a view to monitoring implementation of the Cabotage Regulation, in accordance with Article 10 thereof. ( ) A report of that kind, which contains factual assessments that may change over time, cannot bind the Commission in legal proceedings, far less this Court when it is called upon to interpret the scope of secondary legislation such as the Cabotage Regulation. ( ) In addition, I cannot but point out that, in the present proceedings, the Commission takes a position different from the report.

62. As for the Netherlands Government’s argument regarding the classification of the Wadden Sea under the Montego Bay Convention, suffice it to say that a similar argument was attempted, in vain, in Commission v Spain. ( ) No reason exists, to my mind, to depart from that ruling.

63. That being so, my reading of Commission v Spain is that the only relevant criterion is whether the Wadden Sea is ‘inundated by the sea’ — which, except for parts of it at low tide, I gather it is.

64. On that basis, I conclude that the Cabotage Regulation is applicable to the facts.

b) Implications of the classification as an ‘inland waterway’ under Annex I to Directive 2006/87

65. As mentioned above, Question 1 arose because of the Netherlands Government’s argument that Directive 2006/87, including Annex I thereto, precludes application of the Cabotage Regulation. In light of the discussion above, I will be brief.

66. In accordance with Article 288 TFEU, the Cabotage Regulation is binding in its entirety and directly applicable in all Member States. Directive 2006/87, although binding as to the result to be achieved, leaves the choice of form and methods to the Member States. The directive, which was adopted many years after the Cabotage Regulation, is silent as to its relationship with the earlier instrument; it does not even refer to the regulation. Both legal instruments must therefore be considered to be mutually independent yet equally binding, each in its own way. ( )

67. The scope of an instrument of secondary law is normally defined by its own terms and may not, in principle, be extended to situations other than those which it envisaged. ( ) As the Commission rightly points out, Directive 2006/87 lays down technical requirements for inland waterway vessels. In contrast, the Cabotage Regulation liberalises maritime transport services within the Member States. Those two legal instruments therefore differ as much in their scope as in their objectives. ( ) Moreover, Article 1(1) of Directive 2006/87 clearly states that the classification which it introduces is ‘[f]or the purposes of this Directive’. Likewise, under Article 2(1) of the Cabotage Regulation, maritime cabotage is defined ‘[f]or the purposes of this Regulation’.

68. What is more, making application of the Cabotage Regulation conditional upon the relevant classification for the purposes of Directive 2006/87 would be tantamount to granting the Member States, by virtue of their right to modify that classification under Article 1(2) of the directive, freedom to apply or to ignore the regulation. Such a position would be untenable.

69. It therefore follows from the above that the answer to Question 1 must be that the designation of the Netherlands portion of the Wadden Sea as an inland waterway in Annex I to Directive 2006/87 does not preclude the application of the Cabotage Regulation to public passenger transport services over the Wadden Sea between the Dutch mainland and the islands in question.

2. Question 2

70. As in the first question, the referring court requests guidance on the interrelationship between the PPT Regulation and the Cabotage Regulation, having regard to Article 1(2) of the former. However, in contrast to the first question, the issue is now whether the Cabotage Regulation takes precedence over the other instrument of secondary law.

71. Unlike the situation mentioned in point 66 above, the PPT Regulation — which is also more recent than the Cabotage Regulation — does address its relationship with the earlier instrument: under Article 1(2) of the PPT Regulation, Member States may apply the instrument to public passenger transport by inland waterway and, without prejudice to the Cabotage Regulation, by national sea water.

72. It is therefore clear that Article 1(2) of the PPT Regulation allows Member States to extend its scope to cover maritime transport. Accordingly, the key to the answer to the second question is the meaning of the expression ‘without prejudice to the Cabotage Regulation’.

73. A comparison of the various language versions shows a certain degree of convergence to the effect that the Cabotage Regulation is to apply regardless of the PPT Regulation. ( )

74. This is confirmed by recital 10 in the preamble to the PPT Regulation. ( ) According to that recital, the organisation of public passenger transport services by national sea water is subject to compliance with the general principles of the (now) FEU Treaty, in so far as those services are not covered by specific provisions of EU law, in casu the Cabotage Regulation.

75. The EU legislature did not frame the reference to the Cabotage Regulation in Article 1(2) of the PPT Regulation in less rigid terms, through the use of other expressions such as ‘notwithstanding’, ‘subject to’ or ‘provided that’. I therefore essentially agree with the Commission that the reference must be understood as follows: (i) the PPT Regulation permits Member States to apply it alongside the Cabotage Regulation to national sea water; and (ii) where the application of the PPT Regulation is incompatible with the concurrent application of the Cabotage Regulation, the PPT Regulation expressly defers to the Cabotage Regulation, without this being a matter of choice for Member States that have opted to apply both regulations.

76. For those reasons, the answer to Question 2 must be that application of the Cabotage Regulation does not preclude the concurrent application of the PPT Regulation. However, where joint application is impossible, the Cabotage Regulation must prevail.

3. Questions 3 and 4

a) General observations

77. Questions 3 and 4, which I will deal with together, concern perhaps the most interesting issue arising from the case before the referring court: is a Member State free to pick and choose — ‘cherry-pick’, as it were — which provisions of the PPT Regulation it wishes to apply to transport by water?

78. I have suggested above that the Cabotage Regulation takes precedence over the PPT Regulation. The purpose of Questions 3 and 4 is therefore to determine the circumstances in which an incompatibility between those two regulations might occur which would inevitably prompt such a deferral. In other words, whereas Question 2 concerns the abstract mutual applicability of both regulations, Questions 3 and 4 concern their concurrent application in practice. It is noteworthy here that the EU legislature foresaw the possibility of an overlap between the two legal instruments and — consciously, therefore — accepted a coexistence of sorts.

79. Ideally, the answer which the referring court seeks would be directly apparent from the wording of the PPT Regulation. Given that this is not the case, a purposive interpretation will have to be adopted. To that end, it must be recalled, first, that the areas to which the regulation applies unconditionally are public passenger transport services by rail and by road. It is only on the strength of the authorisation given to Member States in Article 1(2) that a Member State may also apply the regulation to transport by internal waterway ( ) and, without prejudice to the Cabotage Regulation, to transport by national sea water.

80. Unfortunately, the lengthy legislative process leading to the adoption of the PPT Regulation does not shed much light. The original Commission proposal for a regulation covered inland waterways and did not mention national sea waters. ( ) A revised proposal no longer included inland waterways, but it did contain the precursor to the current Article 5(4). ( ) The Council then reinserted, in its Common Position, a provision under which ‘Member States may apply this Regulation to public passenger transport by inland waterway’. ( ) On the second reading of the draft instrument, Parliament approved the Common Position after the Committee on Transport and Tourism had recommended amending the provision in question. ( ) The amended proposal approved by Parliament contained the current wording of recital 10 in the preamble to the PPT Regulation and Article 1(2) thereof, neither of which was altered again subsequently. The travaux préparatoires provide no explanation as to why the possibility of extending the scope of that regulation to maritime transport or the reference to the Cabotage Regulation were included; nor do they elaborate on how such an extension is to operate.

81. Indeed, the Cabotage Regulation is rather minimalistic in the way it regulates maritime transport services, a case in point being the procedure for awarding PSCs under Article 4. In that sense, the PPT Regulation admittedly contains more detailed rules which may help to clarify those laid down in the Cabotage Regulation and, in that way, enhance legal certainty. ( ) However, notwithstanding the assertions made by the licence-holders, the EU legislature did not specifically address the implications of the exception provided for in Article 5(4) of the PPT Regulation where a Member State has elected to extend the scope of the PPT Regulation to maritime transport. What can be said with certainty, however, is that the PPT Regulation does not constitute a formal amendment to the Cabotage Regulation; nor can it operate as such.

82. Indeed, building on my proposed answer to Question 2, as far as maritime transport is concerned, where it is not possible to apply the provisions of both regulations concurrently, any conflicting provision of the PPT Regulation must be left unapplied. Against that background, I believe that Article 1(2) of the PPT Regulation authorises the extension of the regulation’s provisions to maritime transport where those provisions facilitate, or at least do not hinder, the liberalisation which the Cabotage Regulation seeks to achieve. In order to determine whether a specific provision of the PPT Regulation is in conflict with the Cabotage Regulation — let alone relevant to transport by sea — a case-by-case approach is required. Such an analysis, however, would exceed the scope of this Opinion. That said, I will examine specifically the compatibility of Article 5(4) of the PPT Regulation with the Cabotage Regulation in part (b) below.

83. In my view, a typical example of a rule which does not hinder the liberalisation sought by the Cabotage Regulation would be the first sentence of Article 7(2) of the PPT Regulation, concerning the publication of information, especially since the Cabotage Regulation is silent on this point. ( ) Where a Member State has chosen to extend the scope of the PPT Regulation to cover transport services by sea or by inland waterway, that provision must therefore be applied.

84. Accordingly, I cannot agree with the arguments submitted by the Netherlands Government.

85. First, that government observes that the Dutch version of the second sentence of Article 1(2) of the PPT Regulation refers to ‘de bepalingen van deze verordening’ (‘the provisions of this regulation’), meaning that the Member States are at liberty to apply only specific provisions of the regulation to maritime transport.

86. To my mind, however, the Netherlands Government artificially extends the meaning of those words. The Dutch version does not clearly state that a Member State may apply some of the provisions of the PPT Regulation to maritime transport. More importantly, as the referring court pointed out, the Dutch version appears to be anomalous. The other language versions do not mention ‘provisions’, but refer to the possibility of applying the PPT Regulation as such. ( ) Here I would call to mind that it is settled law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override other language versions. ( )

87. Indeed, it would be contrary to the uniform application of EU law if, owing to the way in which a provision is framed in its national language, a Member State were in a position to select exactly which provisions it could apply to transport by inland waterway or by national sea water, whereas other Member States would not enjoy that freedom. ( )

88. Second, the Netherlands Government relies on the principle of plus semper in se continet quod est minus (‘the greater includes the lesser’) in support of the view that it may freely choose which provisions of the PPT Regulation to apply to maritime transport.

89. To ensure the uniform application of the PPT Regulation, such an argument must be rejected. Otherwise, there would be a risk that maritime transport services would come to be governed by 28 different sets of rules, rather than at most two. This would further partition the market for maritime transport services. Moreover, such a view would sit uneasily with Article 7 of the Cabotage Regulation, which provides that the standstill obligation under Article 62 of the EEC Treaty is to apply to the matters which that regulation covers. ( )

90. Third, the Dutch Government argues that it could have adopted national rules reflecting Article 5(4) of the PPT Regulation yet without expressly referring to that regulation. However, assuming that it had done so, I would simply point out that such rules could not in any event have exempted that Member State from its obligation to comply with the Cabotage Regulation.

91. Lastly, my view cannot be rebutted by statements made by the Commission in response to Parliamentary Questions, such as those relied upon by the Netherlands Government. ( ) Apart from repeating my reasoning in point 61 above, I do not, in any event, construe those statements in the same way as that government. There is nothing in those statements to indicate that Member States are free to apply individual provisions of the PPT Regulation to maritime transport. Quite to the contrary, the partial application of the PPT Regulation to maritime transport follows implicitly and directly from Article 1(2) rather than being at the discretion of the Member States.

92. On that basis, I will now assess whether Article 5(4) of the PPT Regulation can be applied alongside the Cabotage Regulation.

b) The possibility of applying Article 5(4) of the PPT Regulation to maritime transport services

93. At the outset, it should be recalled that Article 5(4) of the PPT Regulation allows an exception to Article 5(3). Under the latter provision, a competent authority which has recourse to a third party other than an internal operator is to award PSCs on the basis of a competitive tendering procedure which is open to all operators, which is fair, and which observes the principles of transparency and non-discrimination. ( ) By way of derogation, Article 5(4) provides, inter alia, that the competent authorities may decide to award PSCs directly either where the average annual value of those contracts is estimated at less than EUR 1 000 000 or where they concern the annual provision of less than 300 000 kilometres of public passenger transport services. ( )

94. The national rules at issue provide that licences are to be awarded following a competitive tendering procedure, in respect of which Article 5(3) of the PPT Regulation applies. However, those rules also provide that the initial licence may be awarded without recourse to a competitive tendering procedure if the criteria set out in Article 5(4) of that regulation are met.

95. In order to determine whether such a regime is compatible with the Cabotage Regulation, it is necessary to establish the obligations which that regulation entails.

96. Under Article 4(1) of the Cabotage Regulation, a Member State may conclude PSCs with shipping companies participating in regular services to, from and between islands. Moreover, whenever a Member State concludes a PSC, it is to do so on a non-discriminatory basis in respect of all EU shipowners. ( ) Lastly, Article 4(3) provides that existing PSCs may remain in force until the relevant contract expires.

97. Whereas Article 5 of the Cabotage Regulation lays down specific rules to cover serious disturbances of the internal market in transport ( ) and emergencies, as well as the procedures to be observed in that connection, Article 6 sets the date for the application of that regulation with regard to certain sectors. The transitional period for all sectors has now expired. Furthermore, Article 7 specifies that Article 62 of the EEC Treaty applies to the matters covered by the Cabotage Regulation.

98. It follows that Article 4(1) of the Cabotage Regulation imposes an obligation on Member States to conclude PSCs on a non-discriminatory basis in respect of all EU shipowners. Apart from the situations governed by Article 5, which are of an exceptional nature, I am unable — as is the Commission — to identify any general exception to, or lower threshold in respect of, that obligation. This is supported by Article 4(3), under which the only contracts allowed to continue are those concluded prior to the entry into force of the Cabotage Regulation. I therefore take the view that the obligation to observe the principle of non-discrimination applies whenever a Member State wishes to conclude a PSC.

99. Furthermore, I agree with the Commission that the principle of non-discrimination laid down in Article 4(1) of the Cabotage Regulation is an expression of the general principle of equal treatment and non-discrimination based on nationality, as enshrined in the Treaties, from which a general principle of transparency derives. Accordingly, where a Member State chooses to secure a public service by means of a contract, ( ) it must ensure a sufficient degree of publicity in connection with the award of PSCs which will make it possible for such contracts to be competed for fairly, without necessarily implying an obligation to launch an invitation to tender. ( )

100. Accordingly, I cannot find any inconsistency between Article 4(1) of the Cabotage Regulation, on the one hand, and the duty laid down in the initial part of the first sentence of Article 5(3) of the PPT Regulation to award PSCs on the basis of a competitive tendering procedure, on the other.

101. However, I cannot agree that the exception allowed under Article 5(4) of the PPT Regulation to the obligation to organise a competitive tendering procedure when concluding a PSC for public passenger transport services by rail and by road can be extended to the field of maritime transport, even if that exception applies only to the initial licence. To do so would restrict the scope of Article 4(1) of the Cabotage Regulation, despite the fact that, as mentioned, that regulation must take precedence over the PPT Regulation. Therefore, where a Member State elects to extend the scope of the PPT Regulation, Article 5(4) of that regulation must be left unapplied.

102. This view holds true whatever the actual grounds for not using a competitive award procedure. Put simply, it does not matter, for instance, whether the criteria of the economic value of the contract in question (‘the economic criterion’) or the distance involved (‘the distance criterion’) are met. For the sake of completeness, I will nevertheless consider each of those criteria in turn. ( )

103. On the basis of the distance criterion, specifically mentioned in Question 4, direct awards can be made — unless this is prohibited by national law — in the case of PSCs for the annual provision of less than 300 000 kilometres of public passenger transport services. As for the suitability of applying that criterion to maritime transport, I find the arguments submitted by the competitors convincing. First, it is worth mentioning that this exception derives from the revised Commission proposal for a regulation which, as already mentioned, did not at the time make any mention of transport by national sea water. Second, allowing such an exception to apply would, moreover, entail the risk that the lion’s share of maritime transport service contracts would be awarded without a competitive procedure, ( ) contrary to the aim of the Cabotage Regulation, which is to liberalise the provision of such services. ( )

104. The economic criterion, on the other hand, allows a Member State to forego a competitive tendering procedure where the average annual value of a PSC is estimated at less than EUR 1 000 000 (again, only if national law does not forbid this). It could be argued — as the licence-holders submit — that that criterion is merely a specific expression of a general principle of EU procurement law.

105. For instance, in Chapter II of Directive 2004/18/EC, ( ) Section 1 sets out economic thresholds relating to procurement contracts, which trigger the application of that directive. Moreover, the general principles of equal treatment and non-discrimination based on nationality as enshrined in primary EU law, which give rise to a corollary duty of transparency and, accordingly, require a sufficient degree of publicity, apply to contracts which present an interest to undertakings from other Member States (contracts with an ‘EU interest’). ( ) Obviously, the higher the value of a given contract, the stronger the possibility that it will present an EU interest. ( )

106. However, even on the assumption that such a general principle of EU procurement law exists (the contours of which remain unclear ( ) and where the Court has held that even non-profitable contracts may present an EU interest ( )), it would be a delicate matter for this Court to give its views as to whether an economic criterion originally designed for passenger transport by rail and by road might also be suitable for maritime cabotage. More importantly, there is nothing in the Cabotage Regulation to suggest that, in spite of its wording, it contains an unwritten and inherent economic threshold. To interpret that regulation in such a manner would be problematic in the light of Article 7 thereof.

107. Furthermore, it is worth pointing out that even in respect of ‘small islands’, that is to say, islands for which the total annual number of inbound and outbound passengers carried by sea is around 300 000 or fewer, the Commission has not suggested doing away completely with a prior Union-wide announcement of the service required. ( )

108. It is for the referring court to verify whether the procedure followed by the Netherlands authorities in the case before it actually complies with the requirements mentioned in point 99 above, in particular as those requirements manifest themselves, inter alia, in the first sentence of Article 7(2) of the PPT Regulation.

109. Summing up, I find that, on a proper construction of Article 1(2) of the PPT Regulation, where Member States declare that regulation applicable to public passenger transport services either by internal waterway or by national sea water, they must apply the regulation in its entirety. In so far as public passenger transport services by national sea water are concerned, where the application of specific provisions of that regulation conflicts with the application of provisions of the Cabotage Regulation — such as the application of Article 5(4) of the PPT Regulation concurrently with Article 4(1) of the Cabotage Regulation — Member States must leave the provisions of the PPT Regulation unapplied.

4. Question 5

110. The referring court has made this question conditional upon an affirmative answer to Question 4. Given the answers proposed above for Questions 2 to 4, it follows that, in the case of a body of water such as the Wadden Sea, a Member State is not entitled to award the contested licences directly without having recourse to any form of competitive tendering procedure. Accordingly, there is no longer any need to address the consequences of non-compliance with the publication requirements set out in Article 7(2) of the PPT Regulation.

111. However, in order to be of use to the referring court, I will refer to the remark made in point 82 above. Thus where a Member State has opted to extend the scope of the PPT Regulation to maritime transport, it must also apply the first sentence of Article 7(2) of that regulation.

IV – Conclusion

112. I propose that the questions referred by the College van Beroep voor het Bedrijfsleven (Netherlands) be answered as follows:

– The designation of the Netherlands portion of the Wadden Sea as an inland waterway in Annex I to Directive 2006/87/EC of the European Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels and repealing Council Directive 82/714/EEC does not preclude the application 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) to public passenger transport services across the Wadden Sea, between the Netherlands mainland and the islands of Vlieland, Terschelling, Ameland and Schiemonnikoog;

– The application of Regulation No 3577/92 does not preclude the concurrent application of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70. However, where the application of one or more provisions of Regulation No 1370/2007 conflicts with the application of Regulation No 3577/92, only the latter regulation is to be applied;

– On a proper construction of Article 1(2) of Regulation No 1370/2007, where Member States declare the regulation to be applicable either to public passenger transport services by internal waterway or to public passenger transport services by national sea water, they must apply that regulation in its entirety. In so far as public passenger transport services by national sea water are concerned, where the application of specific provisions of that regulation conflicts with the application of provisions of Regulation No 3577/92, Member States must leave the provisions of Regulation No 1370/2007 unapplied. That is the case for Article 5(4) of Regulation No 1370/2007 and Article 4(1) of Regulation No 3577/92.