Commission of the European Communities v Kingdom of Spain.
Date: 2006-03-09
23. In 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 (Case C-17/03 VEMW and Others [2005] ECR I-0000, paragraph 41, and the case-law cited).
24. It follows that, in order to interpret the term ‘carriage … by sea between ports’ which is part of the definitions of mainland and island cabotage in Article 2(1)(a) and (c) of Regulation No 3577/92, account must be taken of the objective of that provision, which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which it lays down (see Case C-205/99 Analir and Others  [2001] ECR I-1271, paragraph 19).
25. Equating ‘sea’ within the meaning of Regulation No 3577/92 with ‘territorial sea’ within the meaning of the Montego Bay Convention is likely to undermine that objective. The application of that regulation solely to territorial sea, within the meaning of that convention, would preclude the liberalisation intended by that regulation of potentially significant maritime transport services where they operate on the landward side of the baseline of the territorial sea that States may draw, in accordance with that convention, across the natural entrance points of a bay.
26. Furthermore, it does not follow from Regulation No 3577/92 that the Community legislature intended to limit its scope to territorial sea within the meaning of the Montego Bay Convention.
27. Therefore, it is not permissible to equate the two terms.
32. It follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (Case C‑43/04 Stadt Sundern  [2005] ECR I-4491, paragraph 24, and the case-law cited).
43. It must be noted that Article 1 of Regulation No 3577/92 clearly establishes the principle of freedom to provide maritime cabotage services within the Community ( Analir and Others , paragraph 20, and Case C-288/02 Commission  v Greece  [2004] ECR I-10071, paragraph 29).
44. A national measure which reserves maritime transport services in the Vigo estuary to a single undertaking by means of an administrative concession for a duration of 20 years, renewable for a period of 10 years, is liable to impede or even prohibit the provision of those services by undertakings in other Member States and therefore constitutes a restriction on freedom to provide services. The same is true of the selection criterion relating to experience in maritime transport in the Vigo estuary (see, to that effect, Analir and Others , paragraph 22, and Commission v Greece , paragraph 30).
45. As regards the determination of whether those restrictions may be permitted, it must be pointed out that the 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 public 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 ( Analir and Others , paragraph 25, and the case-law cited, and Commission  v Greece , paragraph 32). That is not, however, the case in these proceedings.
50. Moreover, the fact that that criterion was said not to be decisive for the award of the concession is irrelevant, since the finding of a Member State’s failure to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom (Case C-175/97 Commission v France  [1998] ECR I-963, paragraph 14, and the case-law cited).
51. The withdrawal of that criterion by a law dated 23 December 2003 is also irrelevant. The question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (Case C-209/02 Commission  v Austria  [2004] ECR I-1211, paragraph 16, and the case-law cited).