Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova.
Date: 1994-05-17
12 With respect to the nature of the proceedings in the national court, the Court has already held that the President of an Italian district court, adjudicating on an application in ex parte summary proceedings for which provision is made in the Italian Code of Civil Procedure, performs a judicial function within the meaning of Article 177 of the Treaty and that that article does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling, although it may be in the interests of the proper administration of justice that there has been such a hearing (see the judgments in Case 43/71 Politi v Italy [1971] ECR 1039; Case 162/73 Birra Dreher v Amministrazione delle Finanze dello Stato [1974] ECR 201; Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453; Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595; Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni v Unità Sanitaria Locale, 15 December 1993, not yet reported in the ECR; and Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia v Ente Nazionale Risi, 3 March 1994, not yet reported in the ECR).
14 Finally, as to the relevance of the questions, the Court has held that it has no jurisdiction to rule on questions submitted by a national court if those questions bear no relation to the facts or the subject-matter of the main action and hence are not objectively required in order to settle the dispute in that action (see the judgments in Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563; Case C-368/89 Crispoltoni v Fattoria Autonoma Tabacchi di Città di Castello [1991] ECR I-3695; Case C-186/90 Durighello v Istituto Nazionale della Previdenza Sociale [1991] ECR I-5773; Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673; Case C-67/91 Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada and Others [1992] ECR I-4785; and Eurico Italia, cited above; and the order in Case C-286/88 Falciola v Comune di Pavia [1990] ECR I-191).
18 The Court notes to begin with that Article 5 of the Treaty, referred to in question 1, which provides that Member States must ensure fulfilment of their obligations arising out of the Treaty, is worded so generally that there can be no question of applying it autonomously when the situation concerned is governed by a specific provision of the Treaty (see the judgment in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l' Ouest and Others v Receveur Principal des Douanes de La Pallice Port [1992] ECR I-1847, paragraph 19).
19 Secondly, the Court has consistently held that Article 7 of the EEC Treaty (Article 6 of the EC Treaty), which lays down the general principle of the prohibition of discrimination on grounds of nationality, applies independently only to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination (see the judgment in Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 11).
23 Article 61(1) of the Treaty provides that freedom to provide services in the field of transport is to be governed by the provisions of the title of the Treaty relating to transport (see in particular the judgments in Case 13/83 Parliament v Council [1985] ECR 1513, paragraph 62, and Case C-49/89 Corsica Ferries France v Direction Générale des Douanes Françaises [1989] ECR 4441, paragraph 10).
24 It follows that, as the Court held in its judgments in Corsica Ferries France, cited above, paragraph 11, and in Joined Cases 209 to 213/84 Ministère Public v Asjes [1986] ECR 1425, paragraph 37, in the transport sector the objective laid down in Article 59 of the Treaty of abolishing during the transitional period restrictions on freedom to provide services should have been attained in the framework of the common policy provided for in Articles 74 and 75 of the Treaty.
25 With regard in particular to maritime transport, Article 84(2) of the Treaty provides that the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for that kind of transport.
29 As to the persons covered by Regulation No 4055/86, Article 1 refers to nationals of Member States who are established in a Member State other than that of the person for whom the services are intended, and does not mention the registration of or the flag flown by the vessels operated by the transport undertakings.
30 Moreover, the freedom to provide maritime transport services between Member States, and in particular the prohibition of discrimination on grounds of nationality, may be relied on by an undertaking as against the State in which it is established, if the services are provided for persons established in another Member State. In a case such as that in point in the main proceedings, an undertaking established in one Member State and operating a liner service, covered by Regulation No 4055/86, to another State, provides those services, by reason of their very nature, inter alia for persons established in the latter State.
33 Such a system indirectly discriminates between economic operators according to their nationality, since vessels flying the national flag are generally operated by national economic operators, whereas transport undertakings from other Member States as a rule do not operate ships registered in the State applying that system.
40 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 (see the judgments in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DEP and Kouvelas [1991] ECR I-2925, paragraph 31; and Merci Convenzionali Porto di Genova, cited above, paragraph 14).
41 The market in question is that of piloting services in the port of Genoa. Having regard in particular to the volume of traffic in that port and its importance in relation to maritime import and export operations as a whole in the Member State concerned, that market may be regarded as constituting a substantial part of the common market (see the judgment in Merci Convenzionali Porto di Genova, cited above, paragraph 15).
43 However, a Member State infringes the prohibitions in those two articles if, by approving the tariffs adopted by the undertaking, it induces it to abuse its dominant position inter alia by applying dissimilar conditions to equivalent transactions with its trading partners, within the meaning of Article 86(c) of the Treaty.
44 Inasmuch as the discriminatory practices referred to in the order for reference affect undertakings providing transport services between two Member States, they may affect trade between Member States.