Agip Petroli SpA v Capitaneria di porto di Siracusa and Others.
Date: 2006-04-06
16. This interpretation is moreover in accordance with the objective of the regulation, which is to implement freedom to provide services for maritime cabotage under the conditions and subject to the exceptions which the regulation lays down (see, in particular, Case C-205/99 Analir and Others  [2001] ECR I-1271, paragraph 19). In fact, it allows the full application of Article 3(3) of the regulation which, by stipulating for its part the application of the law of the flag State, is directly in line with that objective.
19. It should be noted in this respect that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends (see, in particular, Case C- 367/96 Kefalas and Others  [1998] ECR I-2843, paragraph 20; Case C-373/97 Diamantis  [2000] ECR I-1705, paragraph 33, and Case C-255/02 Halifax and Others  [2006] ECR I-0000, paragraph 68).
20. The scope of Community law must in no case be extended to cover abuses on the part of a trader, that is to say, activities which are not carried out in the context of normal commercial transactions, but only with the aim of circumventing the rules of Community law (see to this effect, in particular, Case 125/76 Cremer  [1977] ECR 1593, paragraph 21; Case C-8/92 General Milk Products  [1993] ECR I-779, paragraph 21, and Halifax , paragraph 69).
21. The national courts may, consequently, on the basis of objective evidence, take account of abuse on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provision of Community law on which they seek to rely. In that respect, they must nevertheless take into account the objectives pursued by that provision (see Diamantis , paragraph 34, and the case-law cited).
22. Consequently, shipowners cannot be allowed to have set up artificially an international voyage in ballast in order that Article 3(3) of the regulation, and therefore the legislation of the flag State, instead of Article 3(2) of the regulation, and therefore the legislation of the host State, be applicable.
23. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, for all matters relating to manning, from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of the regulation, in favour of Article 3(3) (see, to this effect, Halifax , paragraph 86).
24. It is for the national court, however, to verify in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined, whether action constituting an abusive practice has taken place in the case before it (Case C-515/03 Eichsfelder Schlachtbetrieb  [2005] ECR I-0000, paragraph 40, and Halifax , paragraph 76).
25. Having regard to the foregoing considerations, the reply to the question referred must be that an international voyage, as referred to in Article 3(3) of the regulation, means in principle any voyage to or from another State, whether or not the vessel has cargo on board. However, sham voyages without cargo on board carried out to circumvent the rules laid down in the regulation cannot be permitted. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, for all matters relating to manning, from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of Regulation (EEC) No 3577/92, in favour of Article 3(3).
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