Inspecteur van de Belastingdienst Douane, district Rotterdam v Sea-Land Service Inc. and Nedlloyd Lijnen BV.
Date: 2002-06-13
30 Regulation No 4055/86, adopted on the basis of Article 84(2) of the Treaty, lays down measures for the application in the maritime transport sector of the principle of freedom to provide services laid down in Article 59 of that Treaty. Moreover, the Court held to that effect by ruling that Article 1(1) of that regulation defines the beneficiaries of freedom to provide maritime transport services between Member States and between Member States and third countries in terms which are substantially the same as those in Article 59 of the Treaty (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 10).
31 Moreover, it follows from Articles 1(3) and 8 of Regulation No 4055/86 that the regulation makes applicable to the matters covered by the regulation the whole of the Treaty rules relating to freedom to provide services (see, to that effect, Commission v France, paragraphs 11 to 13).
32 It is settled case-law that freedom to provide services, as referred to in Article 59 of the EC Treaty, 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, inter alia, Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 56; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33; and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 21). Pursuant to that rule, freedom to provide services may also 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 (see, inter alia, Commission v France, cited above, paragraph 14, and Case C-224/97 Ciola [1999] ECR I-2517, paragraph 11).
36 While it is true that Article 59 and the third paragraph of Article 60 of the EC Treaty (now the third paragraph of Article 50 EC) prohibit all forms of disguised discrimination which, although based on criteria which appear to be neutral, in practice lead to the same result (see, inter alia, Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 8), it is also true that a difference of treatment cannot constitute discrimination unless the circumstances in question are comparable (see, inter alia, Case C-479/93 Francovich [1995] ECR I-3843, paragraph 23, and Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 84).
41 Next, with regard to the question whether there are overriding reasons based on the general interest which may justify the restriction on freedom to provide services resulting from that system, it must be remembered that the protection of public security is one of the reasons which may, under Article 56(1) of the Treaty, justify restrictions resulting from special treatment for foreign nationals. Protection of public security is therefore, in principle, also capable of justifying a national measure which applies indiscriminately, as in the cases in the main proceedings (see, to that effect, Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 28).
46 In that respect, it must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20).
47 It must be held that the fourth question is of no relevance to the outcome of the main proceedings, which concern the requirement for Sea-Land and Nedlloyd to pay the VTS tariff. In this case, the persons liable to pay an obligatory contribution cannot rely on the argument that the exemption enjoyed by other persons constitutes State aid in order to avoid payment of that contribution (see Case C-390/98 Banks [2001] ECR I-6117, paragraph 80).