Naftiliaki Etaireia Thasou AE (C-128/10) and Amaltheia I Naftiki Etaireia (C-129/10) v Ypourgos Emporikis Naftilías.
Date: 2011-03-17
33. On the basis of Article 80(2) EC, now Article 100(2) TFEU, the European legislature adopted the Regulation which has as its aim, as stated in Article 1 thereof, the application to Community shipowners of the principle of freedom to provide services in maritime transport within the territory of each Member State ( Analir and Others , paragraph 20, and Case C-323/03 Commission  v Spain  [2006] ECR I-2161, paragraph 43).
40. In that respect, it should be recalled that, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference. It is settled case‑law that the Court of Justice does not have jurisdiction to interpret the internal law of a Member State (Case C-511/03 Ten Kate Holding Musselkanaal and Others  [2005] ECR I-8979, paragraph 25 and case-law).
43. As regards the question whether the Regulation, and in particular Article 1 thereof, precludes a system, such as that at issue in the main proceedings, liable to culminate in the imposition of timeslots for reasons of the safety of ships and order in ports, it is important to note that national rules, which make the provision of maritime cabotage services subject to prior administrative authorisation, are liable to impede or render less attractive the provision of those services and therefore constitute a restriction on the freedom to provide them (see Analir and Others , paragraph 22, and Commission v Spain , paragraph 44).
45. Such a restriction may, however, be justified by overriding reasons in the public interest. As is clear from settled case-law, the aim of ensuring safety in port waters constitutes such an overriding reason in the public interest (see to that effect, Case C-266/96 Corsica Ferries France  [1998] ECR I-3949, paragraph 60).
48. Second, it follows from the case-law of the Court that a prior authorisation scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of European Union law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings. Therefore, if a prior authorisation scheme is to be justified even though it derogates from that freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see Case C-338/09 Yellow Cab Verkehrsbetrieb  [2010] ECR I-0000, paragraph 53 and the case-law cited).
53. Furthermore, according to the case-law of the Court, a prior administrative authorisation system can be a means of imposing public service obligations (see Analir and Others , paragraph 34).
54. Given that all cabotage services are not necessarily services requiring public service obligations, such a system is permitted only if the competent national authorities have determined, for each route in question, that the regular transport services would be inadequate if their provision were left to market forces alone and if that system is necessary and proportionate to the aim of ensuring the adequacy of regular transport services to and from the islands (see, to that effect, the ninth recital in the preamble to the Regulation and Analir and Others , paragraphs 29 and 34).
55. Finally, such a system of prior authorisation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of the provisions of the Regulation. Consequently, it must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see, to that effect, Analir and Others , paragraphs 37 and 38).