<TI><NP><NO.P>A —</NO.P><TXT>Inapplicability of Articles 5, 6 and 59 of the EC Treaty. Applicability ratione materiae of Regulation (EEC) No 4055/86</TXT></NP></TI>13.In its first and third questions, the national court asks the Court whether differentiated tariffs for piloting are compatible with three provisions of the EC Treaty, namely Article 5, Article 6 (Article 7 prior to the entry into force of the European Union Treaty) and Article 59.I would observe forthwith that, in my view, Article 5 has no bearing on this case. It appears from the Court's case-law that that provision, which requires the Member States duly to fulfil their Community obligations, has no independent effect in a situation which, like the one in question, is governed — as will be shown — by a specific provision of Community law.See the judgment in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others [1992] ECR I-1847, paragraph 19.
Consequently, the question is whether Articles 6 and 59 of the EC Treaty are applicable. The Court has consistently held that the prohibition of discrimination laid down in Article 6 applies independently only to situations governed by Community law in regard to which the Treaty lays down no specific prohibition of discrimination.Judgments in Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13, in Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraph 12, and in Case C-179/90 Merci [1991] ECR I-5889, paragraph 11.
Since Article 59 of the EC Treaty lays down such a specific prohibition of discrimination,See the recent judgment in Case C-20/92 Hubbard [1993] ECR I-3777, paragraph 10.
it will now be necessary for me to consider whether it is applicable in a situation such as the one at issue.
14.In the context of a transport undertaking such as Corsica Ferries, it is clear that Article 59 of the EC Treaty is not independently applicable. According to Article 61(1) of the EC Treaty, Freedom to provide services in the field of transpon shall be governed by the provisions of the Title relating to transport.The provisions on transport are set out in Title IV of Part Two of the EEC Treaty, Foundations of the Community; since the entry into force of the European Union Treaty, they appear in Title IV of Part Three of the EC Treaty, Community policies.
In the celebrated judgment delivered on 22 May 1985 in European Parliament v Council, the Court inferred from that derogating provision that application of the principles governing freedom to provide services, as established in particular by Articles 59 and 60 of the Treaty, must be achieved, according to the Treaty, by introducing a common transport policy.Judgment in Case 13/83 European Parliament v Council [1985] ECR 1513, paragraph 62.
It was on account of that obligation that the Court found against the Council in that judgment under Article 175 of the EC Treaty for failing to ensure freedom to provide services in the sphere of international transport. Accordingly, Articles 59 and 60 are not of direct application in the transport sectorJudgment in European Parliament v Council, paragraph 63; see also the judgment in Case 4/88 Lambregls [1989] ECR 2583, paragraph 14.
— although this does not prevent them (as will be seen in paragraph 23 below) from serving as a reference point when it is a question of the Council's implementing freedom to supply services in that sector.15.Admittedly, the Commission points out that Corsica Ferries may also be regarded as a person for whom services are intended within the meaning of Article 60 of the Treaty. Piloting services are services provided for remuneration which are not, strictly speaking, transport services (nothing and nobody is transported and assistance is merely given to the carrier). From that point of view, the Commission argues that it might be considered, following the judgments in Luisi and CarboneJudgment in Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377.
and CowanJudgment in Case 186/87 Cowan [1989] ECR 195.
, that Corsica Ferries, as a victim of discriminatory tariffs, can rely on Article 59 of the Treaty. However, I doubt that the judgments in Luisi and Carbone and Cowan may unquestionably serve as precedents in this case: both those cases concerned natural persons who were carrying out no economic activity within the meaning of the EC Treaty and came within the scope of Community law only because they went to another Member State as tourists or patients, that is to say, as persons for whom intra-Community services were intended. The situation is completely different in the case of an undertaking like Corsica Ferries which offers domestic and international services and is hindered in providing its cross-frontier services by the fact that higher piloting tariffs are applied to its foreign services than are applied to vessels flying the Italian flag carrying out scheduled services between Italian ports. Consequently, the differentiated tariffs must be considered from the point of view of the hindrance which they pose to Corsica Ferries as a provider of intra-Community services, rather than from the point of view of the restrictions to which they give rise for Corsica Ferries as a recipient of piloting services, which, for it, are merely ancillary services. As I have already stated, this does not, however, prevent the principles of freedom to provide services set out in Article 59 et seq. of the EC Treaty from also being applicable, but in the context of the measures adopted by the Council pursuant to Article 84(2) of the EC Treaty.16.According to the interpretation of Article 61(1) of the EC Treaty which the Court gave in European Parliament v Council, the Council was under a duty to ensure freedom to provide services in the transport sector. As regards the sea transport sector, a specific legal basis exists, namely the first subparagraph of Article 84(2) of the EC Treaty, which provides that the Council may, acting by a qualified majority — rather than by a unanimous vote as was the case before the Single European Act —, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport. Since late 1986, the Council has adopted various regulations on that basis designed to liberalize this sector. Two of those regulations set out to achieve freedom to provide services.The Council also adopted the following regulations on this basis with a view to liberalizing maritime transport: Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4) (adopted on tne basis of, inter alia , Article 87 of the EC Treaty), Council Regulation (EEC) No 4057/86 of 22 December 1986 on unfair pricing practices in maritime transport (OJ 1986 L 378, p. 14) and Council Regulation (EEC) No 4058/86 of 22 December 1986 concerning coordinated action to safeguard free access to cargoes in ocean trades (OJ 1986 L 378, p. 21).
The first of those regulations — the only one which was applicable at the material time — was Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries.OJ 1986 L 378, p. 1. That regulation was amended following German reunification by Council Regulation (EEC) No 3573/90 of 4 December 1990 (OJ 1990 L 353, p. 16).
That regulation entered into force on 1 January 1987.Under Article 12 of the regulation. Article 2 of the regulation contains specific transitional deadlines for unilateral national restrictions on the carriage of certain goods wholly or partly reserved for vessels flying the national flag.
Article 1 of the regulation confirms the principle of freedom to provide services in the following terms:
1.Freedom to provide maritime transport services between Member States and between Member States and third countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.2.The provisions of this Regulation shall also apply to nationals of the Member States established outside the Community and to shipping companies established outside the Community and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation.3.The provisions of Articles 55 to 58 and 62 of the Treaty shall apply to the matters covered by this Regulation.4.For the purposes of this Regulation, the following shall be considered maritime transport services between Member States and between Member States and third countries where they are normally provided for remuneration:
- (a)intra-Community shipping services:
the carriage of passengers or goods by sea between the ports of a Member State and any port or offshore installation of another Member State;
The second regulation which is worth mentioning here (although it was not adopted until after the material facts occurred) is Council Regulation (EEC) No 3577/92 (cited in section 6 above). That regulation applies the principle of freedom to provide services to maritime transpon within Member States, namely maritime cabotage. Article 1(1) reads as follows:
As from 1 January 1993, freedom to provide maritime transport services within a Member State (maritime cabotage) shall apply to Community shipowners who have their ships registered in, and flying the flag of a Member State, provided that these ships comply with all conditions for carrying out cabotage in that Member State, including ships registered in Euros, once that Register is approved by the Council.
17.Since this case is concerned with an undertaking providing scheduled services between the Port of Genoa in Italy and ports in Corsica in France, intra-Community shipping services within the meaning of Article l(4)(a) of Regulation No 4055/86 are manifestly involved (and not cabotage services within the meaning of Regulation No 3577/92, which was not yet applicable at the time of the facts of the main proceedings). As a result, Regulation No 4055/86 is applicable both ratione materiae and, as will subsequently be seen, ratione personae.That enables me to give a definitive answer forthwith to the question as to whether Article 6 of the EC Treaty is applicable in this case. The answer is in the negative, since, like Article 59 of the EC Treaty (see section 23 below), Article 1(1) of Regulation No 4055/86 contains a specific expression of the prohibition of discrimination laid down in Article 6 of the EC Treaty. In the absence of such a specific provision, Article 6 would have been applicable. In the judgment delivered in 1974 in Commission v France, the Court inferred from the special exemption provided by Article 61(1) of the EC Treaty that, in the field of transport, the general rules of the Treaty must be applied insofar as they are not excluded,Judgment in Case 167/73 Commission v France [1974] ECR 359, paragraphs 28 and 32.
general rules which, according to that judgment, are also applicable to sea and air transport. Under Article 84(2) of the EC Treaty, sea and air transport is excluded solely from the rules of the title of the Treaty on the common transport policy.Paragraph 32 of the judgment cited in the preceding footnote.
There is no doubt that the prohibition laid down in Article 6 of the EC Treaty forms part of those general rules.
<TI><NP><NO.P>B —</NO.P><TXT>Applicability ratione personae of Regulation No 4055/86</TXT></NP></TI>18.Before tackling the question as to whether Article 1 of Regulation No 4055/86 prohibits discriminatory treatment of a provider of services such as Corsica Ferries, I shall first examine whether Corsica Ferries falls within the scope ratione personae of the regulation. As I have already mentioned (in section 8), the Corporation and the Italian Government maintain that, as an undertaking whose vessels fly the Panamanian flag — that is to say, a flag of a third country —, Corsica Ferries cannot rely on the principle of freedom to provide services.19.I cannot accept that proposition. Unlike Article 1(1) of Regulation No 3577/92, Article 1(1) of Regulation No 4055/86 does not provide that Community shipowners who have their ships registered in ... a Member State must be involved. In order for that provision to apply ratione personae, it is sufficient for nationals of Member States who are established in a Member State other than that of the person for whom the services are intended to be involved. Nationals or companies who satisfy that requirement may rely on the principle of freedom to provide services even if they sail under the flag of a third country.The question of the effect of Community law on national rules relating to the nationality of vessels nas nothing whatsoever to do with that question. In the judgment of 4 October 1991 in Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, paragraph 15, the Court held that as Community law stands at present, it is for the Member States to determine, in accordance with the general rules of international law, the conditions which must be fulfilled in order for a vessel to be registered in their registers and granted the right to fly their flag, but, in exercising that power, the Member States must comply with the rules of Community law. For the significance of Community law as regards the nationality of ships, see in general R. R. Churchill, European Community Law and the Nationality of Ships and Crews, European Transport Law, 1992, pp. 591 to 615.
As the Commission has observed, the third indent of Article 2 of Regulation No 4055/86 provides an additional argument in favour of that solution. That provision lays down a specific timetable (expiring on 1 January 1993) by which the Member States have to abolish unilateral national restrictions in existence before 1 July 1986 on the carriage of certain goods between Member States and between Member States and third countries in other vessels (my emphasis), that is to say, vessels which — unlike the vessels referred to in the first two indents — do not fly the flag of a Member State. It appears from that specific derogation that the carriage of goods and persons in vessels not flying the flag of a Member State does fall in general within the scope of the rules on freedom to provide services set out in Article 1 of the regulation.
The fact that Corsica Regina and Corsica Victoria are not registered in a Member State would only have any effect if it were to appear that Corsica Ferries did not fall within the first but within the second paragraph of Article 1 of Regulation No 4055/86 (which is set out in section 12 supra). Under that provision, freedom to provide services applies only to nationals of Member States established outside the Community and to shipping companies established outside the Community and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation.
20.In my view, there is not the slightest reason for regarding Corsica Ferries as a shipping company established outside the Community. It is certainly a company established in the Community, with the result that Article 1(1) is applicable to it. In order to determine what is meant by the expression establishment in the Community, reference should be made to the case-law on Article 52 of the EC Treaty in which the Court held thatthe concept of establishment within the meaning of Article 52 et seq. of the Treaty involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period.Judgment in Case C-246/89 Commission v United Kingdom, cited in the preceding footnote, at paragraph 21; see also the judgment in Case C-221/89 Factortame and Others (Factortame II) [1991] ECR I-3905, paragraph 20.
Naturally, account must be taken in this connection of the fact that Corsica Ferries is a company and therefore — since among other things Article 1(3) of Regulation No 4055/86 refers to Article 58 of the EC Treaty (see section 16 above) — it must have its registered office, central administration or principal place of business within the Community in order to be able to qualify for the benefit of freedom to supply services. In this context, it should also be borne in mind that the General Programme for the abolition of restrictions on freedom to provide services — a programme which, as the Court has repeatedly stated, provides useful guidance with a view to the implementation of the provisions of the Treaty on freedom to provide servicesSee in particular the judgment in Case 63/86 Commission v Italy [1988] ECR 29, paragraph 14.
— provides a definition of the companies and firms which benefit by the abolition of restrictions on freedom to provide services:
companies and firms formed under the law of a Member State and having their seat prescribed by their statutes, their centre of administration or their main establishment situated within the Community, provided that where only that seat prescribed is situated within the Community their activity shows a real and continuous link with the economy of a Member State; such link shall not be one of nationality, whether of the members of the company or firm, or of the persons holding managerial or supervisory posts therein, or of the holders of the capital .Title I of the General Programme for the elimination of restrictions on freedom to provide services, OJ English Special Edition, Second Series IX, p. 3.
21.It is clear from the application of those criteria to Corsica Ferries that it is in fact a shipping company established in the Community: as has already been mentioned (in section 2), it is a company incorporated under Italian law whose registered office is in Cagliari and whose activities, in particular the activities at issue (operation of regular scheduled services between the Port of Genoa and ports in Corsica), unquestionably show a real and continuous link with the economy of a Member State.I would reach the same conclusion if, in addition to the strictly legal criteria, the Tour Ship group were to be regarded as an economic entity: the bulk of the group's activities are located in the Community (France and Italy) and the person who actually controls the group — Mr Lou — is French and resides in Corsica. The fact that before 4 December 1992, it was a Liechtenstein Anstalt —also, as may be assumed, under the Mr Lota's control — which owned 90% of Corsica Ferries is not a determining factor in this connection.
It also seems clear to me that, not only is Corsica Ferries a national of a Member State within the meaning of Article 1(1) of Regulation No 4055/86, but it also fulfils the requirement of being established in a Member State other than that of the person for whom the services are intended. Since the scheduled services which it carries out ply between Corsica and the Port of Genoa, a major proportion of the persons for whom the services are intended unquestionably consists of persons established in another Member State (in particular, France).
22.I would add a brief word about who, in the final analysis, is the shipowner in the main proceedings. There was a complete lack of clarity about this at the hearing. Counsel for Corsica Ferries argued that it depends on the definition given to the term shipowner: if the criterion employed is the ownership of the vessel, the shipowner is Tour Ship Panama; if the criterion taken is who bears the risk connected with the operation of the undertaking, the shipowner is Corsica Ferries itself; if the criterion is who carries out real control, the shipowner is Mr Lota.Be that as it may, that question has no bearing on the interpretation of Community law requested of the Court, since Article 1(1) of Regulation No 4055/86 refers solely to nationals of the Member States. It might have some relevance to the interpretation of the expression shipping company within the meaning of the second paragraph of Article 1, but, as I have just mentioned, that provision is not applicable in this case.I would point out that there is an amended proposa! for a Council Regulation on a common definition of a Community shipowner, which was submitted by the Commission on 27 February 1991 (OJ 1991 C 73, p. 25). It is stated in the conclusions of the European Council held in Edinburgh on 11 and 12 December 1992 that the Commission intended to revise that proposal in the light of the principle of subsidiarity: See EC Bulletin, 12-1992, p. 18. In a resolution of 16 September 1993, the Parliament called upon the Commission to maintain its proposal for a regulation and upon the Council to adopt it without delay (OJ 1993 C 268, p. 170).
<TI><NP><NO.P>C —</NO.P><TXT>Interpretation of Article 1(1) of Regulation No 4055/86</TXT></NP></TI>23.I shall now turn to the scope of Article 1(1) of Regulation No 4055/86. Since, as the title of the regulation indicates, that provision is designed to apply to intra-Community shipping transport the principle of freedom to provide services — a fundamental principle of the EC TreatyThe Court has long held that this principle is fundamental:
see in particular the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 27.
and its wording is manifestly based on the first paragraph of Article 59 of the EC Treaty, it seems fitting to interpret the provision as consistently as possible with the Court's case-law on the first paragraph of Article 59. The Court has already come out in favour of such an approach which is consistent with the Treaty in the judgment in European Parliament v Commission, which I cited earlier.This is borne out by the following paragraph of that judgment:
However, the Parliament, the Commission and the Netherlands Government have rightly contended that the obligations imposed on the Council by Article 75(1 )(a) and (b) include the introduction of freedom to provide services in relation to transport, and that the scope of that obligation is clearly defined by the Treaty. Pursuant to Articles 59 and 60 the requirements of freedom to provide services include, as the Court held in its judgment of 17 December 1981 (Case 279/80 Webb [1981] ECR 3305), the removal of any discrimination against the person providing services based on his nationality or the fact that he is established in a Member State other than that where the services are to be provided. Judgment in European Parliament v Council, cited in footnote 21, at paragraph 64. See also the judgments in Joined Cases 209 to 213/84 Asjes [1986] ECR 1425, paragraph 37, and in Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 11.
This is the reason why Article 1 of Regulation No 4055/86 has to be interpreted consistently with the way in which the Court has interpreted Article 59 of the EC Treaty. It appears from the above quotation that this means — as the Court has consistently held — that any discrimination against a person providing services on account of his nationality or on account of the fact that he is established in a Member State other than the one in which the service is provided is prohibited.See among recent judgments, the judgments in Case 154/89 Commission v France [1991] ECR I-659, paragraph 12, in Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 15, and in Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 16, (the tourist guide judgments); the judgment in Case C-260/89 ERT [1991] ECR I-2925, paragraph 19; the Mediawet judgments, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 14, and Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 10; and the judgments in Case C-106/91 Ramrath [1992] ECR I-3352, paragraph 27, and in Case C-17/92 Distribuidores Cinematográficos [1993] ECR I-2239, paragraph 13.
What is more, not only overt discrimination is prohibited, but also all forms of covert discrimination which, although based on criteria which appear to be neutral, in practice lead to the same result.Judgment in Joined Cases 62/81 and 63/81 Seco [1982] ECR 223, paragraph 8; more recendy, see in particular the judgment in Case C-360/89 Commission v Italy [1992] ECR I-3401, paragraph 11.
24.Should it be considered in this case that the conditions for obtaining reduced tariffs for piloting services — namely that the vessel using the services has to have a cabotage licence and carry out regular services between Italian ports (see section 6) — constitute discrimination contrary to Community law? The Commission considers that this is in fact the case. At the material time, cabotage licences were granted under Article 224 of the Code only to ships flying the Italian flag. Since, generally speaking, vessels flying the Italian flag belong to Italian nationals or companies, whilst nationals or companies of other Member States do not generally operate with vessels flying the Italian flag, the Commission considers that the aforementioned conditions constitute covert discrimination based on nationality, which, as the Court has consistently held, is also prohibited.Although, in my view, the Commission's reasoning is correct, the conclusion that prohibited discrimination is involved in this case can also be reached directly on the basis of the Court's judgment of 13 December 1989 in Corsica Ferries France. What was at issue in this case was a French decree levying a charge, borne by the shipowner, on all passengers which, in the case of ships plying between Corsica and mainland France, was levied only when the ship left the Corsican port, whereas ships plying between Corsica and another State were liable to the charge both on arrival at and departure from a Corsican port.
The Court held that
the French legislation at issue in the main proceedings may constitute a restriction on freedom to provide services within the Community within the meaning of the first paragraph 59 of the EEC Treaty in so far as it discriminates between persons providing transpon services between a port situated in national territory and a port situated in another Member State of the Community and persons providing transport services between two ports situated in national territory .Judgment in Corsica Ferries France, cited in footnote 37, at paragraph 7.
25.Accordingly, it follows from the judgment in Corsica Ferries France that it is sufficient in order for there to be an infringement of the principle of freedom to provide services for a Member State to apply to the exportation of services, such as intra-Community shipping services, discriminatory treatment by comparison with the treatment given to similar domestic services (see also section 28 below).This view is also taken by G. Marenco, The Notion of Restriction on the Freedom of Establishment and Provision of Services in the Case-Law of the Court', in Yearbook of European Law, Volume 11, Oxford, Clarendon Press, 1992, (111), p. 144.
Such discrimination is also involved in this case. It is therefore also prohibited by Article 1(1) of Regulation No 4055/86, which, as I stated earlier, has to be interpreted consistently with Article 59. The fact that, as the Corporation maintains, the differences in the tariffs charged for piloting services had only a limited effect on supplies of services by undertakings such as Corsica France — which, moreover, does not go without saying, having regard to the magnitude of the amounts sought to be recovered — does not affect their incompatibility with Community law: as the Court also held in Corsica Ferries France, the articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Communiţy provisions and any restriction, even minor, of that freedom is prohibited .Judgment in Corsica Ferries France, paragraph 8 (my emphasis). See also, as regards freedom of establishment, the judgment in Case 270/83 Commission v France [1986] ECR 273, end of paragraph 21, and, as regards free movement of goods, the judgment in Case C-126/91 Yves Rocher [1993] ECR I-2361, paragraph 21 (in which an exception was made for purely hypothetical barriers).
Lastly, it is clear that Article 1(1) of Regulation No 4055/86 has direct effect.As its final sentence states, the regulation of which this provision forms part is binding in its entirety and directly applicable in all Member Sutes in accordance with the second paragraph of Article 189 of the EEC Treaty.
Corsica Ferries is entitled in any event to rely on that direct effect as regards the differences in tariffs charged for piloting services, which, in this case, were approved by ministerial circular and can therefore be deemed to emanate from the public authorities. Moreover, it seems desirable to me that, following the example of the case-law on the Treaty provisions on services,See, as regards Article 59 of the EC Treaty, the judgments in Case 36/74 Walrave [1974] ECR 1405, paragraph 17, and in Case 13/76 Dona [1976] ECR 1333, paragraph 17.
the principle set out in the aforesaid provision should also apply to a trade association such as the Corporation, which was set up by decree of the President of the Republic and has a degree of collective power to make regulations.
26.The Corporation and the Italian Government have sought to persuade the Court that the differences in tariffs could be objectively justified. In their contention, the piloting services were necessary to ensure the safety of vessels moving in and around the port. The Italian Government further stressed at the hearing that the application of differentiated tariffs was a choice of national transport policy which was completely compatible with the principles of Community law. The preferential tariff applied to vessels engaged in cabotage sought, it was maintained, to make this form of transport competitive with road transport, which is overcrowded and a big source of pollution. In that respect, the differentiated tariffs also constituted an environment policy choice, since cabotage caused much less pollution than road transport. Lastly, the Italian Government stated that until the end of December 1992, that is to say, before Regulation No 3577/92 entered into force, it was perfectly lawful to place maritime transport at an advantage in this way, since there was not yet a common transport policy with regard to cabotage.27.Although I can agree that piloting services do have a function to perform with a view to ordering movements in and around the port and in that respect are concerned with public security in the broad sense — a ground of justification expressly recognized in Article 56 of the EC Treaty, which is applicable in this case as a result of Article 1(3) of Regulation No 4055/86 (see section 12 above) —, I cannot see why a difference in the tariffs charged for those services is necessary in order to ensure shipping safety.It appears from the judgment in Case 16/78 Cboquet [1978] ECR 2293, paragraph 8, that the requirements for the safety of highway traffic may in any event constitute a ground of general interest justifying nondiscriminatory restrictions on freedom to provide services.
The same reservation essentially applies to the national transport and environment policy choices prayed in aid. Whilst it is true that reasons relating to transport infrastructure and environment protection certainly qualify as grounds for nondiscriminatory restrictions on intra-Community services,It appears from the Court's case-law on the free movement of goods that environment protection in particular may be invoked as a ground of general interest in order to justify restrictions on intra-Community trade: see the judgments in Case 240/83 ADBHU [1985] ECR 531, paragraph 13, in Case 302/86 Commission v Denmark [1988] ECR 4607, paragraphs 8 and 9, and in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 32.
it seems to me that the application of differentiated tariffs is by no means necessary in order to achieve the policy objectives promoted, even regardless of the fact that it is not certain that the differentiated tariffs at issue, which have discriminatory effects, are capable of being justified on the grounds of policy aims which can be relied on only in order to support nondiscriminatory restrictions.The Court has consistently held that national rules which are not applicable to services without distinction as regards their origin are compatible with Community law only if they can be brought within the scope of an express derogation, such as Article 56 of the EC Treaty: for recent confirmation, see, inter alia, the recent judgment in Collectieve Antennevoorziening Couda, cited in footnote 38, at paragraph 11; see also the judgments in Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 11, and in Distribuidores Cinematográficos, also cited in footnote 38, at paragraph 16.
In order to make maritime transport within Italy competitive with transport over land, it would have been sufficient — and even appropriate — to make piloting tariffs cheaper for all vessels; it was not necessary to that end to apply differentiated tariffs depending on whether or not the vessels were flying the Italian flag. It is clear, moreover, from the circular of 18 December 1992 (see section 6 above), which extended the tariffs applicable to vessels licensed for cabotage operations to vessels flying the flag of another Member State, that a different solution was possible. Consequently, the differential tariffs in force until that time were not necessary in order to achieve the aims pursued and hence do not comply with the principle of proportionality.
Lastly, as regards the argument based on Regulation No 3577/92, it is true that it was only through the adoption of that regulation that the Council finally implemented the principle of freedom to provide services in the field of maritime transport within Member States. However, that simply means that, until that regulation entered into force, Community law allowed the Member States to apply restrictions with regard to the provision of services in the field of cabotage.For the possibility of Member States' applying restrictions on freedom to provide services in the field of intra- Community maritime transport prior to the entry into force of Regulation No 4055/86, see tne judgment in Corsica Ferries France, cited in footnote 37, at paragraph 14.
In contrast, as far as the provision of services in the field of intra-Community shipping transport — as is at issue in the main proceedings — was concerned, the Member States were under a duty to abolish restrictions as from 1 January 1987, that is to say, as from the entry into force of Regulation No 4055/86.
28.The only point remaining to be examined is whether, as a company incorporated under Italian law whose principal place of business is located in Italy, Corsica Ferries can actually rely on Article 1(1) of Regulation No 4055/86 as against the Italian authorities. To my mind, the proper starting point should be the following considerations set out by the Court in the tourist guide judgments: Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).
Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established. Judgments, cited in footnote 38, in Case C-154/89 Commission v France, at paragraphs 9 and 10, in Case C-180/89 Commission v Italy, at paragraphs 8 and 9, and in Case C-198/89 Commission v Greece, at paragraphs 9 and 10. The last paragraph cited has been expressly confirmed by the Court in paragraph 12 of the judgment in Hubbard, cited in footnote 19.
29.It is clear from what I have already said that here all the relevant elements are not confined within a single Member State: the mere fact that Corsica Ferries provides regular scheduled services between the Port of Genoa and ports in Corsica is a relevant intra-Community element (see section 17 above). However, it is true that the case-law which I have just cited applies Article 59 of the EC Treaty to services which are provided in a Member State in which they are received irrespective of the place in which the recipient of the service is established, whereas the question arising in the present case is instead whether the principle of freedom to provide services can also be relied on against the Member State from which the provider originates, Italy, in this case, in view of the fact that Corsica Ferries is a company incorporated under Italian law.I nevertheless take the view that this question should be answered in the affirmative, since the services provided in this case are, by reason of their nature, intended for both recipients from another Member State and for nationals, more specifically for both French recipients (and travellers from other Member States) and Italian recipients. A brief comparison with the case-law on the free movement of persons should suffice to elucidate my view: the Court has confirmed, inter alia, that Community nationals (or companies and firms within the meaning of Article 58 of the EC Treaty) may rely on the Treaty provisions in question (namely Article 48 or 52) against their Member State of origin where that Member State applies measures which make it more difficult for them to establish themselves or work in another Member State (or even in their own Member State). This may be the case, for example, where it prohibits them from leaving their own country,Judgment in Case 81/87 Daily Mail [1988] ECR 5483, paragraph 16.
where it refuses to recognize professional qualifications acquired by its nationals in another Member StateJudgment in Case 115/78 Knoors [1979] ECR 399, paragraph 24.
or where it puts restrictions on the use of a university degree obtained in another Member StateJudgment in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32.
or, more generally, where it treats them less favourably when they wish to work in more than one Member State, for instance by subjecting them to more burdensome treatment in the field of social security.Judgments in Case 143/87 Stanton [1988] ECR 3877, paragraphs 13 and 14, and in Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraphs 13 and 14.
To my mind, the same principle should apply in the sphere of freedom to provide services, as is confirmed by the judgment in Corsica Ferries France , cited in section 24 above:This case was concerned with a company incorporated under French law which relied on Article 59 of the EC Treaty against the French authorities on the ground that the ultra-Community services which it provided were subject to discriminatory treatment in comparison with similar domestic services.
where a Member State of origin restricts the supply of services by one of its nationals or by companies incorporated under its law, such restrictions are, in principle, incompatible with the Community principle of freedom to provide services and the providers of services concerned may rely on that principle against their own Member State where, as in this case, the services provided are, by reason of their nature, also intended for recipients from other Member States.