Corsica Ferries Italia Srl contra Corpo dei piloti del porto di Genova.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Schockweiler
• ECLI: ECLI:EU:C:1994:49
• Date: 09 February 1994
• Docket Number: C-18/93
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61993C0018

Opinion of Mr Advocate General Van Gerven delivered on 9 February 1994. - Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova. - Reference for a preliminary ruling: Tribunale di Genova - Italy. - Compulsory piloting service - Discriminatory tariffs - Freedom to provide services - Competition. - Case C-18/93.

European Court reports 1994 Page I-01783
Swedish special edition Page I-00113
Finnish special edition Page I-00147

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Tribunale di Genova (District Court, Genoa, hereinafter referred to as "the national court") has referred to the Court a number of questions for a preliminary ruling on the interpretation of Articles 5, 7, 30, 59, 85, 86 and 90 of the EEC Treaty. The questions arose in proceedings for a court order by which Corsica Ferries Italia S.r.l. (hereinafter referred to as "Corsica Ferries") sought to recover from the Corporazione dei Piloti del Porto di Genova (Corporation of Pilots of the Port of Genoa, hereinafter referred to as "the Corporation") the sums which it paid for piloting services, in its view contrary to Community law. The piloting services consist in a pilot' s being present alongside the master of a vessel whilst the vessel enters the port and moors, in particular in order to indicate the course to be steered and to assist the master with the necessary manoeuvres.

In order to consider the questions it is necessary first to describe the legal and factual context - which is not completely transparent.

Legal and factual context

2. Corsica Ferries - whose company name was changed to "Tour Ship Italia s.r.l." at an extraordinary general meeting held on 4 December 1992 - is a limited liability company incorporated under Italian law whose registered office is at Cagliari and which provides domestic and international sea transport services using ferries. It appears from the written observations of Corsica Ferries that since 4 December 1992 90% of its capital has been held by Tour Ship Group SA, a public limited company governed by Luxembourg law. (1)

According to its own statements, Corsica Ferries manages the fleet of the Tour Ship group as the shipping agent for the shipowner (as regards the identity of the shipowner, see section 22). Since 1989, it has been directly responsible, as a sea transport undertaking, for the operation of the scheduled service between the Port of Genoa and various ports in Corsica (Bastia, Calvi, Ajaccio). It provides that scheduled service by means of two leased ferries, Corsica Regina and Corsica Victoria, which fly the Panamanian flag. (2) According to the statements made by Corsica Ferries' counsel at the hearing, those vessels belong to the company Tour Ship Panama. (3)

I would just make one additional comment about the structure of the Tour Ship group: Corsica Ferries' counsel stated at the hearing that the sole shareholder in the Luxembourg company Tour Ship Group is Mr F. Lota, a French national residing in Bastia (Corsica). Through the Luxembourg holding company, Mr Lota controls not only Corsica Ferries, but also Corsica Ferries France and Corsica Ferries Panama, which have recently been renamed Tour Ship France and Tour Ship Panama.

3. During the period from the end of 1989 to 31 July 1992, Corsica Ferries paid the Corporation a total of LIT 901 156 960 for its piloting services. It submits that it is the victim of tariff discrimination contrary to the rules on competition and free movement laid down by the EEC Treaty, and claims that the Corporation should reimburse it, for the period 1989 to 1992, the difference between the basic tariff which it was charged and the reduced tariff applicable to vessels flying the Italian flag which provide a scheduled service between national ports. That difference amounts to LIT 588 752 000.

4. The rules of Italian law governing piloting services are set out in Articles 86 to 100 of the Codice di Navigazione (Navigation Code, hereinafter referred to as "the Code") and in Articles 98 to 137 of the Regolamento di Esecuzione (Navigazione Marittima) (Implementing Regulation (Maritime Navigation)).

Under Article 86 of the Code, a corporation of pilots, with legal personality, is to be set up by decree of the President of the Republic in ports and other places for the access or passage of vessels where there is a recognized need for a piloting service.

Although it is in principle optional, the establishment of a piloting service may, under Article 87 of the Code, be made compulsory by decree of the President of the Republic in ports where this is deemed to be necessary. Under that provision, piloting services have been made compulsory in virtually all Italian ports, including that of Genoa. A master of a vessel who infringes the obligation to use the services of a pilot exposes himself to criminal sanctions (Articles 1170 and 1171 of the Code).

5. In practice, an agreement for the provision of services for valuable consideration arises between the Corporation and the master of the vessel - representing the shipowner - under which a pilot, who is a member of the Corporation, is to provide his services to the master.

Under Article 91 of the Code, piloting tariffs are to be approved by the Minister for the Merchant Navy after consulting interested trade associations. The tariffs are put into effect in each port by decree of the competent maritime authority.

By circular of 16 November 1990, the Ministry for the Merchant Navy informed all the harbourmasters' offices that the shipowners' associations and the Italian Federation of Port Pilots had agreed to adapt the tariffs for 1991 and 1992, and that, under Article 91 of the Code, the Ministry had approved those tariffs. The harbourmaster of the Port of Genoa rendered those tariffs applicable by decree.

6. It appears from the decrees of the harbourmaster (4) that, at the time of the facts at issue in the main proceedings, two separate tariffs were in force depending on whether or not the vessel had a cabotage licence for the Italian coast. (5) The tariff applicable to vessels with a cabotage licence was 30% lower than the tariffs which vessels without such a licence had to pay for the same piloting service. In addition, a reduction of 50% was granted to vessels carrying out regular scheduled services between Italian ports according to a fixed route and making at least one stopover a week at the Port of Genoa. Lastly, other reductions were granted to vessels of over 2 000 tonnes gross tonnage carrying out cabotage and using piloting services a specified number of times each month.

At the material time, only vessels flying the Italian flag were entitled to obtain a cabotage licence under Article 224 of the Code. On 1 January 1993, Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (6) (see section 12 below) came into force. With an eye to that regulation, the Minister for the Merchant Navy, by circular of 18 December 1992, extended the tariff applicable to vessels with a cabotage licence to ships flying the flag of another Member State with effect from 1 January 1993.

7. The Corporation considers that Community law has not been infringed and refuses to reimburse the amounts claimed by Corsica Ferries. The national court considered that "a correct and accurate interpretation of the substance and scope" of the Treaty provisions on competition and the free movement of persons, goods and services was necessary in order to determine whether or not the application should be upheld, and referred the following questions to the Court of Justice for a preliminary ruling:

"(1) Are Articles 5 and 7 of the EEC Treaty compatible with the provisions of national legislation which lay down, in respect of vessels providing a regular scheduled service between ports of two Member States, by way of charges for the mandatory piloting service for navigational safety, reduced tariffs which are applicable only to vessels authorized to provide coastal services between domestic ports, where, in the present state of Community law, the provision of coastal services between domestic ports is reserved solely to vessels flying the Italian flag?

(2) Is Article 30 of the EEC Treaty compatible with the provisions or practices of national legislation which require compulsory recourse to the Impresa di Pilotaggio (Piloting Service), even where the same operations can, without endangering navigational safety, be carried out in whole or in part, at a lower cost, with the men, equipment and technologies with which the vessel is provided?

(3) Is Article 59 of the EEC Treaty compatible, in the case of vessels providing a regular scheduled service between two Member States, with the provisions of national law which authorize reductions in the compulsory tariffs applied to the piloting service in domestic harbours to be made exclusively in respect of vessels flying the national flag?

(4) Does the approval on the part of the public authorities of a compulsory tariff, as a result of an agreement or consultation, or both, between the trade associations of the sector concerned, constitute 'endorsement' of an agreement prohibited by Article 85(1) of the EEC Treaty, and, if so, can such endorsement be compatible with the provisions of Article 90(1) in conjunction with Articles 5 and 85 of the EEC Treaty?

(5) Is Article 90(1) in conjunction with Article 86 of the EEC Treaty compatible with national provisions which authorize a dominant undertaking which has been granted exclusive rights over a substantial part of the common market:

(a) to charge in respect of vessels providing a regular scheduled service between two Member States different rates for equivalent services, where the tariff system in force provides...