Opinion of Mr Advocate General Lenz delivered on 12 July 1994. - Commission of the European Communities v French Republic. - Failure to fulfil obligations - Maritime transport - Freedom to provide services. - Case C-381/93.



European Court reports 1994 Page I-05145

Swedish special edition Page I-00223

Finnish special edition Page I-00225



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A ° Introduction

1. I. In this action for failure to fulfil Treaty obligations the Commission claims that the French Republic has infringed Article 1 of Regulation (EEC) No 4055/86, (1) which introduced the principle of freedom to provide services in the sector of maritime transport between Member States and between Member States and third countries. The infringement is said to consist in the fact that the defendant Member State imposed different charges for the use of French port installations in passenger transport, depending on whether the transport was between domestic ports or between those ports and the ports of other Member States.

2. Regulation No 4055/86 was adopted on the basis of Article 84(2) of the Treaty, since in accordance with Article 61 of the Treaty the provisions of the title relating to transport apply to freedom to provide services in the field of transport. (2) In that sector it is for the Community to attain the objective laid down in Article 59 of the Treaty in the framework of the common transport policy. (3)

3. Article 1(1) of Regulation No 4055/86 provides on this point, using almost identical wording to Article 59, that:

"Freedom to provide maritime transport services between Member States and between Member States and third countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended."

4. Article 1(2), (3) and (4) provides as follows:

"2. The provisions of this Regulation shall also apply to nationals of the Member States established outside the Community and to shipping companies established outside the Community and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation.

3. The provisions of Articles 55 to 58 and 62 of the Treaty shall apply to the matters covered by this Regulation.

4. For the purpose of this Regulation, the following shall be considered 'maritime transport services between Member States and between Member States and third countries' where they are normally provided for remuneration:

(a) intra-Community shipping services:

the carriage of passengers or goods by sea between any port of a Member State and any port or offshore installation of another Member State;

..."

5. Article 8 of the regulation applies the principle laid down in the third paragraph of Article 60 of the Treaty to the field of application of the regulation, stating that:

"Without prejudice to the provisions of the Treaty relating to right of establishment, a person providing a maritime transport service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals."

6. Articles 2 to 4 of the regulation contain transitional provisions relating to "unilateral national restrictions on the carriage of certain goods" and existing "cargo-sharing arrangements" between Member States and third countries. (4) Such arrangements can in future be concluded only in accordance with the provisions of Articles 5 and 6. Apart from that, the regulation does not provide for any restrictions of the freedom to provide services guaranteed by Article 1. In particular, apart from the aforesaid exceptions, there is no transitional period, so that the principle of freedom to provide services applies from 1 January 1987, the date when the regulation entered into force (Article 12).

7. Since the material scope of that regulation is limited to transport between Member States and between Member States and third countries, the Council considered it appropriate to complement it by a regulation on maritime transport within Member States (maritime cabotage), namely Regulation (EEC) No 3577/92. (5) Under Article 1(1) of that regulation:

"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."

8. Article 2(1) provides:

"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:

(a) mainland cabotage: the carriage of passengers or goods by sea between ports situated on the mainland or the main territory of one and the same Member State without calls at islands;

(b) off-shore supply services: the carriage of passengers or goods by sea between any port in a Member State and installations or structures situated on the continental shelf of that Member State;

(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;

..."

9. The fourth indent of Article 6(1) provides for the following exception:

"By way of derogation, the following maritime transport services carried out in the Mediterranean and along the coast of Spain, Portugal and France shall be temporarily exempted from the implementation of this Regulation:

...

° regular passenger and ferry services, until 1 January 1999."

10. Regulation No 3577/92 entered into force on 1 January 1993, in accordance with Article 11.

11. The Commission' s complaint in the present proceedings relates primarily to Regulation No 4055/86. In the Commission' s opinion, Articles R 212-17, R 212-19 and R 212-20 of the French Code des ports maritimes (Code of maritime ports) (6) are incompatible with that regulation. Those articles lay down detailed rules on the harbour charges for the use of French maritime ports. On expiry of the time-limit set by the Commission in its reasoned opinion (April 1993 or thereabouts) (7) those provisions were applicable in the version of 1 October 1992. (8)

12. Under Article R 212-17 a charge is levied on shipowners in respect of passengers embarking, disembarking or transshipping in the maritime ports of metropolitan France. The shipowner can pass the charge on to the passengers.

13. The first paragraph of Article R 212-19 (9) defined the following categories in respect of charges levied in maritime ports of continental France for the use of a hovercraft or other commercial vessel:

° passengers bound for a continental French port: FF 8.28 (with a 50% reduction for fourth class passengers). For the purpose of levying the charge, passengers of hovercraft or single-class vessels shall be deemed to be second class passengers (1).

° passengers arriving from or travelling to a port of the British Isles or the Channel Islands: FF 17.52 (2).

° passengers arriving from or travelling to a port situated in Europe (with the exception of those mentioned at (1) and (2) above) or in any Mediterranean country: FF 21.01 (3).

° passengers arriving from or travelling to all other ports: FF 74.81 (4).

14. Under the first paragraph of Article R 212-10, those charges were determined as follows in the maritime ports of Corsica:

° passengers travelling to a port in Corsica, continental France or Sardinia: FF 8.28 (with a 50% reduction for fourth class passengers) (1).

° passengers arriving from or travelling to a port situated in Europe (with the exception of those mentioned at (1) above) or in North Africa: FF 8.28 (2).

° passengers arriving from or travelling to all other ports: FF 49.88 (3).

15. II. The Commission objects to those provisions from two points of view:

° firstly, they contain a differential rate, depending on whether the transport is to a French port or to a port of another Member State of the Community (except for transport from Corsica to Sardinia).

° secondly, for transport between French ports the charge is levied only on embarking, whereas for transport between French ports and ports of other Member States the charge is levied for both embarking and disembarking.

16. In the Commission' s opinion, the rules thus distinguish ("discriminate") between transport services to and from French ports and transport services to or from a port in another Member State which thus have a cross-border element. That is so despite the fact that the use of the port for which the charge is intended as payment is the same in both cases. Such provisions may influence passengers' choice of routes. They thus have the effect of an obstruction, prohibited by Regulation No 4055/86, of freedom to provide services.

17. In so arguing, the Commission relies in particular on the Court' s judgment of 13 December 1989 in the Corsica Ferries I case. (10) That judgment likewise concerned the French rules on port charges (in the form of charges on the embarking or disembarking of passengers); Article R 212-20 of the Code des ports maritimes already distinguished in the version which was material for the main proceedings in that case, relating to 1981 and 1982, (11) according to the route of the transport to or from Corsican ports. That distinction admittedly did not relate to the rate of the charge, but did relate to the basis of charging: the charge was levied on all passengers whose destinations were ports in Corsica, the French mainland or Sardinia (in other words, only on embarking), while it was levied at the same rate on passengers coming from or going to European ports (in other words, on embarking and on disembarking). (12)

18. The French Cour de cassation, which had before it an action by Corsica Ferries France for reimbursement of port charges, had referred a question to the Court on the compatibility of the above rules with Articles 59, 62 and 84 of the Treaty. However, since Regulation No 4055/86 was not yet in force at the material time for the main proceedings, (13) the Court held:

"The EEC Treaty, in particular Articles 59, 61, 62 and 84 did not, before the entry into force of ... Regulation No 4055/86 ..., prevent a Member State from levying, in connection with the use by a ship of harbour installations situated in its island territory, charges on the embarkation and disembarkation of passengers arriving from or going to a port situated in another Member State, whilst in the case of travel between two ports situated within national territory those charges were levied only on embarkation at the island port."

19. As the Commission particularly points out, however, the Court also stated that

"the French legislation at issue in the main proceedings may constitute a restriction on freedom to provide services within the Community within the meaning of the first paragraph of Article 59 of the EEC Treaty in so far as it discriminates between persons providing transport services between a port situated in national territory and a port situated in another Member State of the Community and persons providing transport services between two ports situated in national territory".

20. The Commission also considers that Regulation No 3577/92 ° which the defendant Member State relies on in its defence, as I am about to explain ° aggravates the discrimination complained of. The contested provisions admittedly do not discriminate directly according to the nationality of the person providing the service. In view of Article 6 of Regulation No 3577/92, however, maritime cabotage can until 1999 be practised only by French shipowners with ships flying the French flag, while shipowners from other Member States have to restrict themselves to transport services between French ports and ports of other Member States. The contested provisions therefore create disguised discrimination on the grounds of nationality.

21. III. The defendant Member State argues, on the other hand, that Regulation No 4055/86 relates only to transport services between Member States and between Member States and third countries, while freedom to provide services in the maritime cabotage sector is governed by Regulation No 3577/92. Under Article 6 of the latter regulation, however, in the case of France cabotage is excluded from freedom to provide services until 1 January 1999. For both groups of services France satisfies the requirements arising from the principle of freedom to provide services. Those requirements consist of "the abolition of all discrimination against a person providing a service on the grounds of his nationality or the fact that he is established in a Member State other than that in which the service must be provided". (14)

22. The defendant Member State argues that, in accordance with that principle, all economic operators who carry out intra-Community or third country transport operations from or to a French port are treated in the same way in law, with respect to the charge on passengers. There is no discrimination between French operators and those of other Member States. All economic operators from other Member States are also treated equally with respect to the French rules on cabotage.

23. Whether France respects the Treaty provisions on non-discrimination must be ascertained separately for each of the two groups of services. To compare one French rule with the other, as the Commission does, is not possible, since ° the French Government adds in its rejoinder ° the principle of freedom to provide services in the maritime transport sector does not mean that intra-Community transport and internal transport cannot be governed by different rules, especially if that principle applies only to one of the two types of transport.

24. As to the Court' s judgment in Case C-49/89, no conclusion can be drawn from its operative part. The Court did not at that time have to give a ruling on the compatibility of the French provisions with Regulation No 4055/86, since that regulation was not applicable ratione temporis. The Court' s observation that the French legislation "may constitute" (15) a restriction on freedom to provide services did not mean that it constituted such a restriction, but that it contained the possibility of so doing. The Court did not state the conditions under which that possibility would be realized.

25. The French Government also challenges the Commission' s argument that there is disguised discrimination on the ground of the nationality of the person providing the service. The fact that only French companies or companies established in France are allowed to engage in cabotage and thus have the benefit of the more favourable charges is due to the fact that ° under the Community rules themselves ° freedom to provide services does not yet apply to cabotage in France. Moreover, intra-Community passenger transport to and from French ports, which is subject to the higher charges, is largely carried out by French companies or companies established in France.

26. Also unfounded in the opinion of the French Government is the Commission' s argument that the scheme of the French rules gives preferential treatment to transport between French ports as opposed to intra-Community transport. Firstly, the difference in charges is too slight, compared to the prices for travel, to have any influence on the choice of destination or alter competition in favour of domestic maritime transport services more than to an utterly marginal extent. Secondly, the Commission' s complaint relates not to the Treaty rules on freedom to provide services, but to those on competition. The Commission' s application does not, however, extend to the rules on competition.

27. At the hearing the French Government also argued that the transport services looked at by the Commission, that is, those between the French mainland and Corsica on the one hand and between Corsica and Italy on the other hand, are of different kinds. Cabotage services between Corsica and the mainland are operated on the basis of a concession granted by the local authorities of Corsica, under which those services must keep to a reasonable frequency throughout the year and special tariff conditions apply. Traffic between Corsica and Italy, on the other hand, is purely seasonal and is operated on a purely commercial basis. The fares are lower than those between Corsica and the mainland, and that difference already existed before the levying of the charge on disembarkation was discontinued. (16) The Commission' s arguments in this case are thus purely theoretical.

28. Finally, for the sake of completeness, it should be noted that, according to agreed information supplied by the parties at the hearing, the contested provisions have been amended since the filing of the rejoinder. In the new version (17) the charge is now levied on embarking and disembarking at uniform rates for both types of transport in question here.

29. IV. The Commission asks the Court to:

(i) declare that by maintaining in force a system for levying charges on the disembarkation and the embarkation of passengers in the case of vessels using port installations situated on its continental or island territory arriving from ports situated in another Member State or travelling to them, whereas in the case of passenger transport between two ports situated on national territory those charges are levied only on embarkation for departure from the continental or island port, and by applying higher rates of charges when passengers arrive from or embark for ports situated in another Member State than when they travel to a port situated on national territory, the French Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries;

(ii) order the French Republic to pay the costs.

The French Republic contends that the Court should:

(i) declare the application as unfounded;

(ii) order the Commission to pay the costs.

B ° Opinion

30. I. The Commission' s application primarily raises the question whether there is an infringement of the freedom to provide services guaranteed by Regulation No 4055/86, if the system of charges was more favourable for the economic operators concerned in the case of internal transport than in the case of intra-Community transport. The Commission regards this as an independent breach of the Treaty. The alleged disguised discrimination on the grounds of nationality, on the other hand, is in the Commission' s view, as expressed in the arguments summarized above, only a side-effect of that breach.

31. II. On the question which is at the centre of this case, it must be stated at the outset that the French rules do not distinguish according to the nationality or establishment of the person providing the service, but according to the route of the transport service.

32. It must therefore be examined whether the principle of freedom to provide services, as defined in Regulation No 4055/86, in addition to rules which discriminate on grounds of nationality or establishment, also prohibits rules which make the distinction at issue here.

33. Apart from the judgment in the Corsica Ferries I case, the value of referring to which is disputed by the parties, the Court has not yet stated a position on that point. It is, however, possible to find useful indications in judgments on the interpretation of basic freedoms in other fields, if one constant feature of those basic freedoms is kept in mind. That constant feature is that the exercise of the basic freedoms always relates to ° at least ° two Member States of the Community: situations which are limited in all respects to the territory of one Member State are not covered by the basic freedoms. (18)

34. For the fundamental freedoms to be able to produce their full effect, all the States concerned must cooperate in making them a reality, in other words, ensuring that the crossing of an intra-Community frontier is not obstructed by specific restrictions.

35. That consideration is the basis of the very structure of Article 30 et seq.: not only the State of import (Article 30) but also the State of export (Article 34) is prohibited from obstructing the free movement of goods.

36. As the Court has consistently held since the Groenveld judgment, (19) the latter provision concerns "national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States".

37. In other words, the exporting State, in which the act of exercise of the fundamental freedom commences, must not place movements of goods which cross its frontier and thus have the cross-frontier element essential for Article 30 et seq. in a worse position than movements of goods that remain within those frontiers and thus lack that element.

38. As I explained in my opinion in the Peralta case, (20) the same principle also applies in the fields of freedom of establishment and freedom to provide services. With respect to freedom of establishment, governed by Article 52 et seq., the Court stated in the Daily Mail judgment: (21)

"Even though those provisions are directed mainly to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation which comes within the definition contained in Article 58. As the Commission rightly observed, the rights guaranteed by Article 52 et seq. would be rendered meaningless if the Member State of origin could prohibit undertakings from leaving in order to establish themselves in another Member State. In regard to natural persons, the right to leave their territory for that purpose is expressly provided for in Directive 73/148 ... ."

39. The Corsica Ferries I judgment, in particular paragraph 7, cited above, (22) follows the same logic. The observation in that passage is in harmony with the opinion which I delivered in that case. I put forward the view that if Regulation No 4055/86 had already been applicable at the material time, there would have been a restriction of freedom to provide services, since the same conditions did not apply to transport services crossing a frontier as to purely internal transport services. (23)

40. If an economic operator established in Member State A transports persons or goods (by sea) between that State and another Member State, that transport service has a cross-border element which is relevant for freedom to provide services within the meaning of Article 1 of Regulation No 4055/86, since that service is provided, at least in part, in a Member State other than that in which the economic operator is established. (24) If a transport service which has that cross-border element is treated worse than a transport service without that element, that economic operator' s freedom to provide services is restricted by an obstruction of the type which was the subject-matter of the Groenveld judgment in the field of free movement of goods.

41. That reasoning is also not affected by the French Government' s observation that the purely internal transport used as a comparison is until 1 January 1991 not yet subject to freedom to provide services. It suffices for present purposes that a cabotage market exists, which receives preferential treatment in comparison with the market in which French shipowners operate as exporters of services. As the French Government concedes, such a cabotage market exists, namely between Corsica and the French mainland. That freedom to provide services does not yet apply to that market merely means that economic operators from other Member States have no right of access to that market. However, that has nothing to do with the right, postulated above, to be able to provide services which affect the territory of other Member States under the same conditions as services which affect only the territory of the Member State of establishment. (25)

42. It is true, however, that the above considerations concern directly only economic operators established in France. Operators from other Member States (together with the economic operators equated with them under Article 1(2) of Regulation No 4055/86) who provide transport services between France and other Member States are, in relation to France, not exporters but importers of those services. (26) In that respect the present case, which relates to the French provisions generally, contains a new factor as compared with the Corsica Ferries I case, which concerned an economic operator established in France.

43. On this point, it suffices to visualise what would happen if the more favourable rules which apply to cabotage extended, in respect of traffic to and from other Member States, only to shipping operators established in France. That would be a clear breach of the prohibition of discrimination set out in Article 8 of Regulation No 4055/86, which is part of the freedom to provide services laid down in Article 1. In accordance with the case-law on the third paragraph of Article 60 of the Treaty, that article of the regulation is directed against all cases of discrimination against a person providing a service on the grounds of his nationality or the fact that he is based in a Member State other than that in which the service is to be provided. (27)

44. It follows that the French provisions in question infringed Article 1 of Regulation No 4055/86.

45. That conclusion is not affected by the defendant Member State' s submission that the charges in question were not capable of influencing passengers' choice of route, in view of the level of fares and the relation between the tariffs for the two types of transport.

46. There is no place for a de minimis rule with respect to the prohibition of treating internal services more favourably than those affecting the territory of another Member State, since that prohibition is the mirror image of the prohibition of discrimination on grounds of nationality or the place of establishment of the person providing the services. But the latter prohibition extends to "any discrimination" of such type, (28) without there being any reservation for discrimination whose effect is trivial. (29)

47. The defendant Member State' s submission at the hearing referring to the differences between traffic between Corsica and the mainland on the one hand and between Corsica and Italy on the other hand (30) does not convince me either. It is essentially a repetition of the argument which has just been discussed on the alleged trivial nature of the infringement, and it should therefore be rejected for the same reasons.

48. If that submission were to be interpreted as the praying in aid in its defence by the defendant Member State of Article 90(2) of the Treaty, that could not be accepted either. Apart from the fact that reliance on that provision would be out of time in view of Article 42(2) of the Court' s Rules of Procedure, there is also nothing to show that the differing systems of charges are necessary for the performance of tasks by the holder of the concession.

49. The infringement which has thus been found of Article 1 of Regulation No 4055/86 was still in existence on expiry of the time-limit set by the Commission in its reasoned opinion (and continued until after filing of the rejoinder). The changes made by Decree No 94-420 (31) cannot be taken into account in the present proceedings, since only the legal position on expiry of that time-limit is relevant here. (32)

C ° Conclusion

50. For the above reasons I propose that the Court:

° uphold the Commission' s application;

° order the defendant Member State to pay the costs in accordance with Article 69(2) of the Rules of Procedure.

(*) Original language: German.

(1) ° Council Regulation of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1).

(2) ° See also the second recital in the preamble to Regulation No 4055/86.

(3) ° Consistent case-law; see, most recently, the judgment in Case C-18/93 Corsica Ferries Italia [1994] ECR I-1783, paragraph 24.

(4) ° Those provisions incidentally provide the explanation for Article 9 of the regulation, which is modelled on Article 65 of the Treaty.

(5) ° Council Regulation 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).

(6) ° See the codified version in accordance with Decree No 78-487 (Journal officiel de la République française (JORF), 2 April 1978).

(7) ° The reasoned opinion is dated 25 January 1993. It stated that the Member State concerned was to comply within two months from notification of the reasoned opinion. I presume that the document was notified immediately after being drawn up.

(8) ° Decree No 92-1089 (JORF, 7 October 1992).

(9) ° The second paragraph provided for various reductions, which are, however, of no relevance for the present case.

(10) ° Judgment in Case C-49/89 Corsica Ferries France v Direction générale des douanes françaises [1989] ECR 4441.

(11) ° See paragraph 14 of the judgment cited in the previous note.

(12) ° See point I.1, second paragraph, of the Report for the Hearing in Case C-49/89.

(13) ° See paragraph 17 above.

(14) ° Judgment in Joined Cases 62 and 63/81 Seco v EVI [1982] ECR 223, paragraph 8. See, more recently, the judgments in Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 10 and Case C-353/89 Commission v Netherlands [1991] ECR

I-4069, paragraph 14.

(15) ° See paragraph 19 above.

(16) ° A single charge only (on embarking) was levied in traffic between Corsica and Italy between 27 January 1969 and 12 March 1981: see the third paragraph of point I.1 of the Report for the Hearing in Case C-49/89.

(17) ° See JORF, 28 May 1994.

(18) ° On freedom to provide services see, for example, the judgment in Case C-41/90 Hoefner and Elser [1991] ECR I-1979, paragraph 37.

(19) ° Judgment in Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1979] ECR 3409, paragraph 7.

(20) ° Opinion delivered on 11 May 1994 in Case C-379/92 Criminal proceedings against Matteo Peralta, not yet published in the ECR, paragraphs 90 to 93.

(21) ° Judgment in Case 81/87 Daily Mail [1988] ECR 5483, paragraph 16.

(22) ° Paragraph 19 above.

(23) ° Opinion in Case C-49/89 [1989] ECR 4447, at p. 4450, paragraph 17.

(24) ° See paragraphs 9 and 10 of the judgments in Case C-154/89 Commission v France [1991] ECR I-659 and Case C-198/89 Commission v Greece [1991] ECR I-727; paragraphs 8 and 9 of the judgment in Case C-180/89 Commission v Italy [1991] ECR I-709. See also my Opinion in the Peralta case (cited in note 20), paragraphs 74 and 75.

(25) ° See also paragraph 23 in my Opinion in Case C-49/89 (cited in note 23 above).

(26) ° While in the case of free movement of goods, the process of export concerns the State in which the goods (before being exported) are in free circulation, the State of export in the case of freedom to provide services is, for the purpose of the above considerations, the State of establishment from which the service is provided. On the problem of services which are provided from an establishment in another Member State for the purpose of circumventing domestic legislation, see my Opinion in Case C-23/93 TV 10 v Commissariaat voor de Media (not yet published in the ECR) and the case-law discussed there.

(27) ° See paragraph 21 above and note 14.

(28) ° See the judgments cited in note 14, in particular Collectieve Antennevoorziening Gouda, paragraphs 10 and 11, and Commission v Netherlands, paragraphs 14 and 15.

(29) ° See also paragraph 8 of the Corsica Ferries I judgment (note 10).

(30) ° See paragraph 27 above.

(31) ° See note 17 above.

(32) ° See for example the judgment in Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6.