GT-Link A/S v De Danske Statsbaner (DSB).
Date: 1997-07-17
13 Under the regulations applicable at the material time to the ports of Gedser and Rødby, also owned by DSB, shipping duty for ferry traffic consisted of a monthly charge on each vessel of 830 öre per deadweight or gross registered tonne, which conferred the right to unlimited docking during the month in question.  Subject to two exceptions, goods duty came to 940 öre per tonne.
23 The application of Article 86 of the Treaty by the national authorities is, in principle, governed by national procedural rules (Case C-60/92 Otto v Postbank [1993] ECR I-5683, paragraph 14).
24 In the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law.  However, such rules must not be less favourable than those governing similar domestic actions or render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12, and the cases cited).
25 In accordance with those principles, the Court has previously held, in connection with repayment of charges levied by a Member State in breach of Community law, that any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure that repayment is incompatible with Community law (Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14).
33 The Court has previously had occasion to rule that any measure adopted by a Member State which maintains in force a statutory provision that creates a situation in which a public undertaking cannot avoid infringing Article 86 of the Treaty is incompatible with the rules of the Treaty (see, to that effect, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 27).
34 In particular, a Member State infringes the prohibitions laid down in Article 90(1) and Article 86 of the Treaty if, by adopting rules governing the port duties to be paid for the use of ports belonging to a public undertaking, it induces that undertaking to abuse the dominant position it occupies within the common market or a substantial part of it (see, to that effect, Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 43).
35 In that context it should be noted, first, that the Court has held that an undertaking which has a legal monopoly in a substantial part of the common market may be regarded as occupying a dominant position within the meaning of Article 86 of the Treaty (Corsica Ferries, paragraph 40, and the case-law referred to therein).  Such is also the case where a public undertaking is the owner of a commercial port and on that ground has the sole right to levy in that port the duties payable for the use of port facilities.
36 Nevertheless, when considering the possibly dominant position of an undertaking within the common market or in a substantial part of it, the definition of the market is of fundamental significance, as the Court has emphasized on many occasions (see in particular Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 25), as is the delimitation of the substantial part of the common market in which the undertaking may be able to engage in abuses which hinder effective competition (see, inter alia, Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 44).
37 As held in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 15, regard must be had in that context to the volume of traffic in the port in question and its importance in relation to maritime import and export operations as a whole in the Member State concerned.
39 The Court has ruled that `unfair prices', for the purposes of Article 86(a), means prices which are excessive because they have no reasonable relation to the economic value of the service supplied (see, to that effect, United Brands, paragraph 250).
44 Third, Member States are liable under Articles 86 and 90(1) of the Treaty only if the abuse on the part of the public undertaking concerned was liable to affect trade between Member States.  That does not mean that the abuse must actually have affected such trade: it is sufficient to establish that the conduct is capable of having such an effect (see Höfner and Elser, paragraph 32).
45 The Court has already held that abusive practices which, like those at issue in the main proceedings, affect undertakings providing transport by sea between two Member States, may affect trade between Member States (Corsica Ferries, paragraph 44).
50 Since Article 90(2) is a provision which permits, in certain circumstances, derogation from the rules of the Treaty, there must be a strict definition of those undertakings which can take advantage of it (Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 313, paragraph 19).
51 In Case 10/71 Muller and Others [1971] ECR 723, paragraph 11, the Court held that an undertaking which enjoys certain privileges for the accomplishment of the tasks entrusted to it by law, maintaining for this purpose close links with the public authorities, and which is responsible for ensuring the navigability of the State's most important waterway, may fall within the definition of an `undertaking entrusted with the operation of services of general economic interest'.
52 It does not follow, however, that the operation of any commercial port constitutes the operation of a service of general economic interest or, in particular, that all the services provided in such a port amount to such a task.
53 In Merci Convenzionali Porto di Genova, paragraph 27, the Court held that dock work consisting of loading, unloading, transhipment, storage and general movement of goods or material of any kind is not necessarily of general economic interest exhibiting special characteristics compared with that of other economic activities.
57 The first point to note in that context is that even within the framework of Article 90, Article 86 has direct effect and confers on individuals rights which the national courts must protect (Case 155/73 Sacchi [1974] ECR 409, paragraph 18, and Merci Convenzionali Porto di Genova, paragraph 23).
58 Second, the Court has consistently held (see, most recently, Joined Cases C-192/95 to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165, paragraph 20) that entitlement to repayment of charges levied by a Member State in breach of the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting such charges.  The Member State is therefore in principle required to repay charges levied in breach of Community law, except where it is established that the person required to pay such charges has actually passed them on to other persons (Comateb, paragraph 21, and cases cited therein).
60 It should be emphasized, however, that traders may not be prevented from applying to the courts having jurisdiction, in accordance with the appropriate procedures of national law, and subject to the conditions laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, for reparation of loss caused by the levying of charges not due, irrespective of whether those charges have been passed on (Comateb, paragraph 34).