Asociación Profesional de Empresas Navieras de Líneas Regulares (Analir) and Others v Administración General del Estado.
Date: 2001-02-20
19 On the basis of Article 84(2) of the Treaty, the Council adopted Regulation No 3577/92, the aim of which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down.
20 To that end, Article 1 of that regulation clearly establishes the principle of freedom to provide maritime cabotage services within the Community. The conditions governing the application of the principle of freedom to provide services which is laid down inter alia in Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 61 of the Treaty have thus been defined in the maritime cabotage sector.
21 It is settled case-law that freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State where he lawfully provides similar services (see, in particular, Case C-76/90 Säger [1991] ECR I-4221, paragraph 12; Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14; Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10; Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 56; and Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33).
22 It is clear that national legislation, such as Article 4 of Royal Decree No 1466, which makes the provision of maritime cabotage services subject to prior administrative authorisation, is liable to impede or render less attractive the provision of those services and therefore constitutes a restriction on the freedom to provide them (see, to that effect, Vander Elst, paragraph 15; and Case C-355/98 Commission v Belgium [2000] ECR I-1221, paragraph 35).
25 Second, it is important to note that freedom to provide services, as a fundamental principle of the Treaty, may be restricted only by rules which are justified by overriding reasons in the general interest and are applicable to all persons and undertakings pursuing an activity in the territory of the host Member State. Furthermore, in order to be so justified, the national legislation in question must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it (see, to that effect, Säger, paragraph 15; Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; and Guiot, paragraphs 11 and 13).
29 However, it cannot be inferred from those provisions that all maritime cabotage services with, or between, islands within a Member State must, by reason of the fact that islands are involved, be regarded as public services.
34 It follows that the application of a prior administrative authorisation scheme as a means of imposing public service obligations presupposes that the competent national authorities have first been able to determine, for specific routes, that the regular transport services would be inadequate if their provision were left to market forces alone. In other words, it must be possible to demonstrate that there is a real public service need.
35 Second, for a prior administrative authorisation scheme to be justified, it must also be demonstrated that such a scheme is necessary in order to be able to impose public service obligations and that it is proportionate to the aim pursued, inasmuch as the same objective could not be attained by measures less restrictive of the freedom to provide services, in particular a system of declarations ex post facto (see, to that effect, Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera [1995] ECR I-4821, paragraphs 23 to 28).
37 However, such a scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; and Sanz de Lera, paragraph 25).
38 Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must, in any event, 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. Accordingly, the nature and the scope of the public service obligations to be imposed by means of a prior administrative authorisation scheme must be specified in advance to the undertakings concerned. Furthermore, all persons affected by a restrictive measure based on such a derogation must have a legal remedy available to them.