Haahr Petroleum Ltd v Åbenrå Havn, Ålborg Havn, Horsens Havn, Kastrup Havn NKE A/S, Næstved Havn, Odense Havn, Struer Havn and Vejle Havn, and Trafikministeriet.

• Jurisdiction: European Union
• Celex Number: 61994CC0090
• ECLI: ECLI:EU:C:1997:87
• Date: 27 February 1997
• Docket Number: C-242/95
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61994C0090

Joined opinion of Mr Advocate General Jacobs delivered on 27 february 1997. - Haahr Petroleum Ltd v Åbenrå Havn and others. - Reference for a preliminary ruling: Østre Landsret - Denmark. - Case C-90/94. - Texaco A/S v Middelfart Havn and others and Olieselskabet Danmark amba v Trafikministeriet and others. - Reference for a preliminary ruling: Østre Landsret - Denmark. - Joined cases C-114/95 and C-115/95. - GT-Link A/S v De Danske Statsbaner (DSB). - Reference for a preliminary ruling: Østre Landsret - Denmark. - Maritime transport - Harbour duties on shipping and goods - Import surcharge - Abuse of a dominant position. - Case C-242/95.

European Court reports 1997 Page I-04085

Opinion of the Advocate-General

1 The Østre Landsret (Eastern Regional Court, Denmark) has referred a series of questions concerning the compatibility with Community law of a surcharge formerly levied by Denmark on goods imported from abroad into certain maritime ports and of the system of port duties generally.

2 Although neither Case C-90/94 (Haahr Petroleum) nor Case C-242/95 (GT-Link) has been joined with Joined Cases C-114/95 and C-115/95 (Texaco and Olieselskabet), there is a substantial overlap between the issues raised in all cases. I accordingly propose to deliver a joint Opinion.

3 The applicants in Haahr Petroleum and Texaco and Olieselskabet import petroleum, petroleum products or solid fuels into Denmark through the defendant ports. The applicant in GT-Link operates ferry routes between the Danish port of Gedser, owned by the defendant, and the German ports of Travemünde and Rostock.

Background and national legislation

4 All cases concern the lawfulness of certain port duties levied in Denmark. In order to understand the operation of the port duties, some familiarity with the general framework for the regulation of ports is helpful.

5 For geographical reasons, Denmark has an unusually large number of ports and harbours in relation to its size, and imports and exports are predominantly transported by sea (the Ministry of Transport in Haahr Petroleum gives a figure of 70% of imported goods). Ports used for the commercial transport of goods, vehicles and persons (of which there are 73) are classified for regulatory purposes as commercial ports. Authorization to establish a commercial port is granted by the Minister of Transport. The majority of ports authorized to operate commercially are independent operators under local authority control; some are State-owned, belonging to the Ministry of Transport or the Danish State railway; there are also a number of private undertakings authorized to establish commercial ports, which they operate in accordance with the conditions laid down in the relevant authorization. The port of Copenhagen has a special status, including its own system of duties.

6 The defendant ports in Haahr Petroleum and Texaco and Olieselskabet are commercial ports, mostly run by local authorities but some State-run or private. During the periods at issue in all three cases, commercial ports were governed by Law No 239 of 12 May 1976 on commercial ports (`the 1976 Law'). (1) The port in question in GT-Link is owned by the defendant Danske Statsbaner (`DSB'), the Danish State railway. Although the Minister for Public Works had exempted ports owned by DSB from the provisions of the 1976 Law, exempted ports were subject to parallel regulations which fixed the port duties at the same rates as those set for provincial commercial ports under the 1976 Law. DSB in addition operates a ferry service out of Gedser in competition with the applicant in GT-Link.

7 Various duties are required to be paid for the use of public and some private commercial ports in Denmark (including the defendant private port in Haahr Petroleum). Shipping and goods duties must be paid for berthing, as well as for the disembarkation and embarkation of goods, vehicles and persons. Special duties are charged for the use of cranes, warehouses and storage facilities etc. The duties are paid either directly to the port authorities or, in the case of public commercial ports, to an undertaking leasing wharfage space from the port. In the latter case, the lessee undertaking guarantees under the standard leasing contract drawn up by the Ministry to pay to the port a specified amount in annual shipping and goods duties. If its receipts are less than that amount it makes good the deficit.

8 Under the 1976 Law, shipping and goods duties were determined centrally by the Minister for Public Works (now the Minister for Transport) after discussions with the management of the commercial ports. The duties were set out in regulations for each port drawn up in accordance with the common regulations thus prepared. Ministerial practice was to set the rates of duty so as to create funds to cover expenditure incurred in the running and maintenance of the port and ensure a reasonable degree of self-financing for necessary extensions and modernization. Rates were calculated on the basis of the economic conditions obtaining in the 22 provincial commercial ports regarded as being the most important in terms of commercial traffic volume. Thus for the relevant periods the shipping and goods duties were, subject to a few exceptions, identical throughout the defendant ports and for the port owned by DSB.

9 Shipping duty is payable by all ships, vessels and all floating installations for the right to berth in the port or in the deep-water approach channels. It is calculated as a fixed amount according to gross (registered) tonnage either each time the vessel puts in or as an amount payable on a monthly basis. Vessels of under 100 gross (registered) tonnes are among those exempt from the duty. In the port of Gedser, the relevant regulations required ferry operators to pay a monthly charge for each vessel, based on gross (registered) tonnage, which conferred the right to unlimited docking during the month in question.

10 Goods duty has been payable since at least 1930. The basic provision on goods duty in the regulations applying to all the defendant ports and the port owned by DSB was worded as follows during the period from 1984 to 31 March 1990:

`II. Goods duty General provisions

The rules set out in the present section shall be applied for the calculation of goods duty. In the case of goods imported from outside Denmark, a 40% surcharge shall be added to the duty.'

11 Goods duty is payable on all goods unloaded, loaded or otherwise taken on board or landed within the port or in the deep-water approach channels. The duty is calculated as an amount per tonne. The regulations provide that it is payable in the first instance by the vessel or its local agent prior to the vessel's departure, but is ultimately borne by the recipient or the sender of the goods from whom the vessel is entitled to claim reimbursement; it was stated at the hearing, however, that in most ports the port authorities invoice the charge directly to the recipient of the goods. The duty is levied when the goods cross the quayside. There are exemptions and special rates of duty for specified categories of goods, none of which is relevant to these cases. The revenue generated by the import surcharge accrues to the ports as part of their overall income from duties.

12 The basic duty is imposed both on goods coming into a port by ship and on goods leaving a port by ship. In the case of goods imported into a commercial port by ship from outside Denmark, irrespective of the country of origin of the goods, a 40% surcharge was payable during the relevant periods. That surcharge is at issue in all the cases; the basic rate goods duty is additionally at issue in GT-Link.

13 The surcharge was added to the duty from 1956 until its abolition in the context of an alteration of the rating system in provincial ports on 31 March 1990. It was introduced in the context of a general adjustment to the level of port rates made in the light of a report by the Committee for rates of duty for ports and bridges set up by the Ministry for Public Works in 1954. That report made the following points about an increase in the duty charged on imported goods:

`B. Proposal for increases in the rates of duty

The Committee considers that the increases required in the rates of duty should be imposed on both shipping and goods duties; however, the increase should be made in such a way that the objective (increase of income for the ports) is not jeopardized through commercial traffic being totally or partially diverted from the ports with the result that goods are instead conveyed by road or rail. That would certainly happen to a large extent in the case of domestic transport if, for instance, one were to introduce an indiscriminate increase in the general percentage surcharge on shipping and goods duties.

Increases in duty must for that reason be imposed on those categories of transport which may be regarded as least sensitive to increases and which are also such important sources of income for ports that even small increases will generate the desired extra revenue without affecting the price level to any appreciable extent.

... So far as goods duty is concerned, the implementation of the principle referred to means that it will be necessary to concentrate on the turnover of foreign goods inasmuch as the greater part of the goods which are imported into or exported from Denmark are most naturally transported by sea and the danger that this business will be diverted from ports merely if the goods duty is increased can therefore to some extent be discounted.

Even though goods duty makes up only a small percentage of the price of the goods, every effort should be made to ensure that increases in duty are arranged in such a way that any weakening of the competitiveness of undertakings is kept to a minimum. The most appropriate...