CELEX: 62013CC0017
Language: en
Date: 2013-12-19
Title: Opinion of Mr Advocate General Cruz Villalón delivered on 19 December 2013. # Alpina River Cruises GmbH and Nicko Tours GmbH v Ministero delle infrastrutture e dei trasporti - Capitaneria di Porto di Chioggia. # Reference for a preliminary ruling: Consiglio di Stato - Italy. # Maritime transport - Regulation (EEC) No 3577/92 - Concept of ‘maritime cabotage’ - Cruise services - Cruise crossing the Venetian lagoon, Italian territorial sea and the river Po - Departure from and arrival at the same port. # Case C-17/13.

Opinion of the Advocate-General
               
            
            Opinion of the Advocate-General
            1. By the question referred for a preliminary ruling, the Consiglio di Stato (Council of State) seeks guidance from the Court of Justice concerning the meaning and ambit of the term ‘maritime cabotage’ under Regulation (EEC) No 3577/92 (2) and its possible application to the circumstances under consideration. However, the Commission has raised a preliminary issue relating to the jurisdiction of the Court of Justice to give a ruling on the question referred and, even though the Commission itself ultimately submits that this concern should be laid to rest, the issue must be examined. As far as the substance is concerned, it seems to me that there is no doubt that the concept of ‘maritime cabotage’ is applicable to the facts of this case.
            I – Legislative framework 
            A – EU law 
            1. Regulation No 3577/92
            2. Article 1(1) of Regulation No 3577/92 provides as follows:
            ‘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.’ 
            3. By virtue of Article 2 of Regulation No 3577/92, for the purposes of the 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; 
            …’
            4. Pursuant to Article 6(1) of Regulation No 3577/92:
            ‘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: 
            – cruise services, until 1 January 1995,
            …’
            2. The Agreement between the European Union and the Swiss Confederation (3)
            5. Pursuant to Article 5(1) of the Agreement between the European Union and the Swiss Confederation (‘the Agreement’), ‘[w]ithout prejudice to other specific agreements between the Contracting Parties specifically concerning the provision of services (including the Government Procurement Agreement in so far as it covers the provision of services), persons providing services, including companies in accordance with the provisions of Annex I, shall have the right to provide a service in the territory of the other Contracting Party for a period not exceeding 90 days of actual work in a calendar year’.
            6. Article 17 of Annex I to the Agreement provides as follows:
            ‘With regard to the provision of services, the following shall be prohibited under Article 5 of this Agreement: 
            (a) any restriction on the cross-frontier provision of services in the territory of a Contracting Party not exceeding 90 days of actual work per calendar year; 
            (b) any restriction on the right of entry and residence in the cases covered by Article 5(2) of this Agreement concerning: 
            (i) persons providing services who are nationals of the Member States of the European Community or Switzerland and are established in the territory of a Contracting Party other than that of the person receiving services; 
            (ii) employees, irrespective of their nationality, of persons providing services, who are integrated into one Contracting Party’s regular labour market and posted for the provision of a service in the territory of another Contracting Party without prejudice to Article 1.’
            7. Article 18 of Annex I to the Agreement provides as follows:
            ‘The provisions of Article 17 of this Annex shall apply to companies formed in accordance with the law of a Member State of the European Community or Switzerland and having their registered office, central administration or principal place of business in the territory of a Contracting Party.’ 
            8. According to Article 19 of that Annex:
            ‘A person providing services who has the right or has been authorised to provide a service may, for the purposes of its provision, temporarily pursue his activity in the State in which the service is provided on the same terms as those imposed by that State on its own nationals, in accordance with the provisions of this Annex and Annexes II and III.’
            B – National law 
            9. Article 224 of the Codice della navigazione (Shipping Code) (4) provides as follows:
            ‘1. In accordance with Council Regulation (EEC) No 3577/92 of 7 December 1992, cabotage between the ports of the Republic is reserved 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.
            2. The provisions of paragraph 1 shall apply to ships providing port, harbour and coastal maritime services.’ 
            II – Facts 
            10. The reference for a preliminary ruling derives from a dispute between, of the one part, the companies Alpina River Cruises GmbH and Nicko Tours GmbH (respectively, the Swiss shipowner and the German operator of the Bellissima , a ship flying the Swiss flag) and the Italian authorities, of the other, concerning the refusal by the Italian authorities to allow a river cruise arranged by the two companies to pass through Italian territorial sea.
            11. Alpina River Cruises and Nicko Tours had arranged a seven-day cruise, departing from Venice, crossing the Venetian lagoon to Chioggia, then travelling along the River Po and returning to Venice using the same route. During the voyage it was necessary to cross a stretch of sea between the ports of Chioggia and Porto Levante, at the mouth of the River Po, as the Bellissima  is unable to use the Brondolo canal connecting Chioggia with the River Po.
            12. The Italian authorities refused authorisation to operate in respect of the Chioggia — Porto Levante stretch, arguing that Article 224 of the Shipping Code, which makes a reference to Regulation No 3577/92, reserves maritime cabotage to ships flying the flag of a Member State.
            13. The action brought by Alpina River Cruises and Nicko Tours was dismissed by the Tribunale amministrativo regionale per il Veneto (Veneto Regional Administrative Court). An appeal was brought before the Consiglio di Stato, which has made this reference for a preliminary ruling.
            III – The question referred for a preliminary ruling 
            14. The question referred for a preliminary ruling is worded as follows:
            ‘Must Council Regulation (EEC) No 3577/92 of 7 December 1992 be interpreted as applying to cruises between ports within a Member State without different passengers embarking and disembarking in those ports, in that those cruises start and end with the same passengers embarking and disembarking in the same port within that Member State?’
            15. The Consiglio di Stato takes the view that the applicability of Regulation No 3577/92, and the consequence flowing therefrom that a route such as that which Alpina River Cruises and Nicko Tours wish to use is reserved to Community shipowners, depends on whether the definition of ‘maritime cabotage’ or ‘maritime transport services’ under Article 2 of the regulation covers cruises that start and finish with the same passengers embarking and disembarking in the same port within that Member State, although they may pass through other ports within that Member State.
            IV – The procedure before the Court of Justice 
            16. The request for a preliminary ruling was received by the Court on 14 January 2013.
            17. The parties to the main proceedings, the Italian Government and the Commission have submitted written observations.
            18. The parties have been invited to make submissions in writing on the issue whether the combined effect of Article 5 of the Agreement between the European Union and the Swiss Confederation on the free movement of persons and Articles 18 and 19 of Annex I to that Agreement might be that the conditions laid down in Regulation No 3577/92 relating to maritime transport services within a Member State using ships flying the flag of a Member State also apply to maritime transport services within a Member State for a period not exceeding 90 days in a calendar year using ships flying the Swiss flag.
            19. In particular, the Italian Government has been invited to state in writing whether, in its opinion, ships flying the Swiss flag are permitted under the laws and administrative practices of the Italian Republic to provide cruise services in Italian internal waters and whether it considers that the EU-Switzerland Agreement is relevant in this regard. If the reply should be in the affirmative, the Italian authorities are invited to explain why it was that the Chioggia Port Authority was able in this case to ignore the decision of the Ministry for Merchant Shipping of 1 June 1957 referred to in the order for reference.
            20. Alpina River Cruises and the Commission attended the hearing on 24 October 2013. The Italian Government did not do so, nor did it reply to the Court’s questions, as set out at points 18 and 19.
            V – Arguments 
            21. Alpina River Cruises and Nicko Tours believe that the question should be rephrased so that the issue of whether a cruise service that operates in internal waters except for a single sea crossing lasting approximately one hour falls within the ambit of Regulation No 3577/92 can also be considered. They take the view that if Regulation No 3577/92 applies only to ‘maritime’ cabotage, in other words cabotage ‘by sea’, then a service operating almost entirely in internal waters would clearly fall outside its ambit and should not therefore be prohibited on grounds of Article 224 of the Shipping Code. Hence the service requested should, in their view, have been authorised on the basis of a decision of the Ministry of Merchant Shipping of 1 June 1957, which established the rule that ships operating a service mainly in internal waters were authorised to pass by sea between the ports of Chioggia and Porto Levante.
            22. Furthermore, the two companies point out that this case differs from the case of Commission v Spain , (5) inasmuch as the geological features of the Venetian lagoon are not comparable to those of an estuary such as the Vigo estuary. They argue that the disputed service is not covered by the term ‘cabotage’, which, as they see it, implies traffic of goods or passengers between two different points, whereas in this case the service starts and ends in the same port.
            23. The Italian Government has argued that a cruise service of this kind constitutes ‘maritime transport services within a Member State’ and is therefore ‘maritime cabotage’ within the meaning of Regulation No 3577/92, pointing out that, as the object of the regulation is liberalisation, a restrictive interpretation of its terms is to be avoided.
            24. The Commission contends, as a preliminary point, that Regulation No 3577/92 does not apply to this case since the regulation does not cover ships flying the flag of third countries such as the Swiss Confederation.
            25. The Commission nevertheless takes the view that the Court should provide the Consiglio di Stato with a reply, for it seems that the rule set out in Article 224 of the Shipping Code applies only to services covered by ‘maritime cabotage’ under Regulation No 3577/92. In these circumstances, the fact that Article 224 refers to the regulation means that the Court of Justice has jurisdiction to hear the reference for a preliminary ruling. 
            26. In terms of the substance of the case, the Commission refers to Article 6(1) of Regulation No 3577/92, from which it is unequivocally clear that cruise services are covered by the definition of ‘maritime cabotage’. Given that cruises are included within the ambit of the regulation, the Commission believes that the latter should not be interpreted in a way that might result in a substantial number of cruises being excluded. The interpretation put forward by Alpina River Cruises and Nicko Tours, which, moreover, is unsupported by either the wording or the objects of Regulation No 3577/92, should not therefore be adopted.
            27. To the question put by the Court of Justice concerning Article 5 of the Agreement between the European Union and the Swiss Confederation, Alpina River Cruises and Nicko Tours, on the one hand, and the Commission, on the other, have replied to the effect that the Agreement contains no specific reference to maritime cabotage services and does not state how the relevant conditions provided for in Regulation No 3577/92 should be applied. However, given that the Agreement applies to the provision of services in general and does not expressly exclude maritime cabotage services, it may be assumed that they are covered by the Agreement. 
            28. According to Alpina Rivers Cruises and Nicko Tours, the effect of Article 5 of the Agreement, taken together with Articles 18 and 19 of Annex I, is that Swiss shipowning companies (in other words, those formed under Swiss law and established in Swiss territory) are authorised to provide maritime cabotage services in a Member State on a temporary basis — for no more than 90 days a year — if they satisfy the same conditions as the Member State imposes on its own shipowners. The Commission holds that one of these conditions is that the services should be provided using ships registered in Italy and flying the Italian flag.
            VI – Assessment 
            A – The meaning of the question referred and whether it should be rephrased 
            29. At first sight, it might seem that the question referred by the Consiglio di Stato, taken literally, is irrelevant. The fact is that, whether or not the service at issue falls within the definition of ‘maritime cabotage’ under Article 2(1) of Regulation No 3577/92, the regulation would certainly still be inapplicable. In the first case, this is because the regulation applies only to Community shipowners whose ships are registered in, and fly the flag of, a Member State. In the second case it is because Regulation No 3577/92 does not apply to river traffic.
            30. However, the question is not irrelevant, the real reason being that Italian law does not exclude non-Community shipowners from river traffic. If the cruise in question cannot be classified as ‘maritime cabotage’, within the meaning of Regulation No 3577/92, even though this is not the issue here, it would then be necessary to classify it as river traffic, with all the attendant implications under national law for the decision in the main proceedings. 
            31. Furthermore, Alpina River Cruises and Nicko Tours have asked that the question be rephrased so that the issue of whether a cruise service that operates in internal waters except for a single sea crossing lasting approximately one hour falls within the scope of Regulation No 3577/92 can also be considered.
            32. In my view, the question should be rephrased and should focus additionally on the issue mentioned by Alpina River Cruises and Nicko Tours.
            33. The Consiglio di Stato has formulated its question in such a way that the determining factor in clarifying the definition of ‘maritime cabotage’ or ‘maritime transport services’ under Article 2 of Regulation No 3577/92 is whether it covers cruises that start and finish with the same passengers embarking and disembarking in the same port within that Member State, although they may pass through other ports within that Member State.
            34. In my view, however, the main determining factor is whether or not we are dealing with maritime transport. In fact, the debate between the parties has focussed on this particular issue, on which the answer to the substantive question ultimately depends.
            35. This is because the issue of whether or not the same passengers embark and disembark in the same port within a Member State is irrelevant since it is clear from Article 6(1) of Regulation No 3577/92 that ‘cruise services’ fall within the scope of the regulation and therefore constitute a transport service within the meaning of Articles 1 and 2 at all events.
            B – The admissibility of the reference for a preliminary ruling 
            36. The Commission has questioned whether the Court of Justice has jurisdiction to hear this reference for a preliminary ruling. Thus, in the early stages, the Commission argued that Regulation No 3577/92 would not at all events be directly applicable to the situation at issue in the main proceedings, for the regulation is not applicable to ships flying the Swiss flag.
            37. However, the Commission itself resolved the admissibility issue on the basis that the provision applicable in this case — Article 224 of the Shipping Code — states that it is ‘in accordance with Council Regulation (EEC) No 3577/92’ that cabotage is reserved 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. 
            38. Specifically, the Commission interprets the provision of national law as meaning that, were the service in question not, in the circumstances of the case, considered to constitute ‘maritime cabotage’ under the regulation, the reservation contained therein would not apply, with the result that shipowners from non-member States would be permitted to provide the services in question.
            39. Viewed in these terms, in the Commission’s opinion, the fact that the national provision makes a reference to Regulation No 3577/92 implies that the Court of Justice has jurisdiction to entertain the question. Relying on well-established case-law, (6) the Commission views this as a case in which national law makes a renvoi to provisions of EU law ‘in order to determine the rules applicable to a situation that, of itself, does not fall within the scope of Union law’. (7)
            40. Indeed, as the Court of Justice has recently noted in Case C‑313/12 Romeo , (8) ‘it is clearly in the European Union’s interest that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, where, in regulating situations outside the scope of the European Union measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, in order to ensure that internal situations and situations governed by EU law are treated in the same way, irrespective of the circumstances in which the provisions or concepts taken from EU law are to apply …’.
            41. This gives rise to the question whether the Commission is correct in suggesting that the plea of inadmissibility, which it has itself raised, should be set aside in reliance on the settled case-law of the Court of Justice. There is no obvious answer to this question, but if I have understood the provision of national law correctly, I do not think that the Court should rule that it has no jurisdiction. My reasons are as follows. 
            42. The provision of national law in question, namely Article 224(1) of the Shipping Code, is indeed unusual from the perspective with which we are here concerned. It is therefore worth recalling its exact wording: 
            ‘In accordance with Council Regulation (EEC) No 3577/92 of 7 December 1992, cabotage between the ports of the Republic is reserved 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.’
            43. Thus, Italian law ‘reserves’ cabotage exclusively to Community shipowners by reference to Regulation No 3577/92. It is the meaning of the verb ‘reserve’ that must provide the key to the article in question.
            44. By taking this course, the Italian legislature in fact achieves a twofold operation of ‘including’ and ‘excluding’ at the same time.
            45. First of all, Article 224(1) of the Shipping Code has the purely ‘declaratory’ effect of repeating the already directly effective provisions of Regulation No 3577/92, that is to say, that in Italy, cabotage is open to Community shipowners. This is the ‘inclusive’ effect of the national provision.
            46. Secondly, and more interestingly, the provision in question has a ‘constitutive’ effect — in the sense that it does not derive from Regulation No 3577/92 — which is to ‘exclude’ from carrying out cabotage in Italy those that do not fit the description of Community shipowners, again within the meaning of Regulation No 3577/92 itself.
            47. In this way, that is to say, by means of this simultaneous twofold operation, the Italian legislature uses the notion of ‘maritime cabotage’ under Regulation No 3577/92 not only to repeat the terms of the regulation but, above all, to achieve an excluding effect, namely to make cabotage inaccessible to those who do not fit the description of Community shipowners, again within the meaning of the regulation itself.
            48. The decision of the Italian legislature not to extend freedom to provide services beyond the level specifically mentioned in Regulation No 3577/92 takes the form of a renvoi that I perceive to be direct and unconditional. (9) The renvoi  is direct, in that it is explicit and unequivocal, and it is unconditional, in that it is not made subject to the existence of particular circumstances of any kind. The maritime cabotage services access to which is closed to non-Community shipowners are the same as those services access to which is open to Community shipowners, in the definition given in Regulation No 3577/92.
            49. Viewed in these terms, the Italian legislation entirely matches the situation addressed by the settled case-law of the Court of Justice which establishes that the Court has jurisdiction to determine the rules applicable to a situation that, in itself, falls outside the field of application of EU law. (10) This is, in fact, a situation in which ‘national legislation seeks to adopt the same solutions as those adopted in that measure, in order to ensure that internal situations and situations governed by EU law are treated in the same way …’. (11) In the case before us, it is the meaning of ‘maritime cabotage’ that must be treated in the same way both in internal situations and in situations governed by Regulation No 3577/92.
            50. In conclusion, I concur with the Commission in taking the view that the Court of Justice has jurisdiction to hear this reference for a preliminary ruling.
            C – Substance 
            51. As I have had occasion to mention, looking beyond the wording used by the referring court, the question to be answered is whether a transport service of which only a very short stretch is by sea can be regarded as ‘marine cabotage’ within the meaning of Regulation No 3577/92.
            52. I think that this question must be answered using the same kind of clear, direct reasoning with which the Court of Justice answered the question raised in Commission  v Spain .
            53. As Advocate General Tizzano stated at point 21 of his Opinion in Commission  v Spain , ‘ [t]here is no doubt that the waters of the Vigo estuary are sea waters and that is sufficient , [ (12) ] according to the letter of the provisions referred to above [of Regulation No 3577/92], for transport through them to be considered transport “by sea”’. This line of reasoning was adopted by the Court of Justice in paragraphs 25 and 26 of its judgment in Commission  v Spain .
            54. In the present case it is also indisputable that part of the route of the Bellissima is by sea. Admittedly, it is a very small part, by comparison with the ship’s route taken as a whole, but I think that it is sufficient to justify classifying the transport service as marine cabotage, for Article 2 of Regulation No 3577/92 does not define that category by reference to a part or the whole of the route. In view of the regulation’s objective, an interpretation that permits transport to be classified as marine cabotage so long as its route is, even minimally, by sea is therefore to be preferred.
            55. In the words of the Court in Commission  v Spain , ‘[i]n interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part’. (13) In the case of Regulation No 3577/92, its object is ‘to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down’. (14) In view of this, to interpret marine cabotage in a way that would exclude transport services that are only minimally by sea ‘would preclude the liberalisation intended by that regulation of potentially significant maritime transport services’. (15)
            56. Somewhat paradoxically, this means that the transport service provided by Alpina River Cruises and Nicko Tours is excluded from the scope of Regulation No 3577/92 and, consequently, from the liberalisation that it seeks to achieve. But it would be an even greater paradox if the approach advocated by Alpina River Cruises and Nicko Tours were to be accepted and ships registered in Member States and flying the flag of a Member State were excluded from the liberalisation if they were deployed on routes only a minimal part of which was by sea.
            57. The sole concern here is that the Court of Justice should provide a definition of marine cabotage that facilitates the better attainment of the object of Regulation No 3577/92 vis-à-vis its natural addressees, namely: the Member States and, through them, their citizens. The assumption is that, as far as non-member States are concerned, liberalisation of services must be sought by means of specific agreements; agreements precisely of the kind entered into by the European Union and the Swiss Confederation, which is not, however, applicable in this particular case.
            58. None of the foregoing would be compromised by any potential implications of the Agreement between the European Union and the Swiss Confederation concerning the applicability of Regulation No 3577/92 in the circumstances of the case. The parties have been invited by the Court of Justice to comment on those implications.
            59. In my view, the question whether the Agreement is applicable to the circumstances of the case can be fairly easily resolved, given that the transport service at issue is provided continuously from March to November, as was established at the hearing by the reply of the legal representative of Alpina River Cruises to a question put by the Court. This means that this is clearly a service that exceeds 90 days of actual work in a calendar year, which alone is enough to render th e Agreement inapplicable, for it prohibits only restrictions of services that do not exceed that period. 
            VII – Conclusion 
            60. In the light of the foregoing observations, I suggest to the Court that it should answer the question referred as follows:
            A transport service such as that at issue in the main proceedings constitutes a maritime transport service within a Member State within the meaning of Article 2(1) of Regulation No 3577/92.
            (1) . 
            (2)  –	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).
            (3)  –	Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6).
            (4)  –	Royal Decree No 327 of 30 March 1942, Article 224 having been amended by Article 7(2) of Legislative Decree No 457 of 30 December 1997, converted with amendments into Law No 30 of 27 February 1998.
            (5)  –	Case C‑323/03 [2006] ECR I‑2161.
            (6)  – See, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi  [1990] ECR I‑3763; Case C‑28/95 Leur-Bloem  [1997] ECR I‑4161; and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987.
            (7)  –	Paragraph 18 of the Commission’s written observations.
            (8)  –	Case C‑313/12 Romeo  [2013] ECR, paragraph 22 and the case-law cited.
            (9)  –	Case C‑482/10 Cicala [2011] ECR I‑14139, paragraph 19 and the case-law cited.
            (10)  –	See Dzodzi  for a typical example.
            (11)  –	Romeo , paragraph 22.
            (12)  –	Emphasis added.
            (13)  –	Paragraph 23, which also cites Case C‑17/03 VEMW and Others  [2005] ECR I‑4983, paragraph 41.
            (14)  –	Commission  v Spain , paragraph 24, which refers to Case C‑205/99 Analir and Others  [2001] ECR I‑1271, paragraph 19.
            (15)  –	Commission  v Spain , paragraph 25.