Commission of the European Communities v Hellenic Republic.

• Jurisdiction: European Union
• Celex Number: 62004CC0251
• ECLI: ECLI:EU:C:2006:565
• Date: 14 September 2006
• Docket Number: C-251/04
• Court: Court of Justice (European Union)
• Procedure Type: Recours en constatation de manquement - non fondé

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 14 September 2006 (1)

Case C-251/04

Commission

v

Greece

(Treaty infringement proceedings against a Member State – Article 2(1) of Regulation (EEC) No 3577/92 – Transport – Freedom to provide services – Maritime cabotage – Towage on open sea)

1. In this case the Commission seeks a declaration under Article 226 EC that in allowing only vessels flying the Greek flag to provide towage services on the open sea within Greek national waters, (2) the Hellenic Republic has failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 3577/92 (3) applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage).

Relevant Community law

2. Within Title III of Part Three of the EC Treaty (‘Free movement of persons, services and capital’), Articles 49 to 55 concern services.

3. Article 49(1) EC states:

‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.’

4. Article 51(1) EC provides that freedom to provide services in the field of transport are to be governed by the provisions of the title relating to transport.

5. Article 54 EC states:

‘As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.’

6. Article 80(2) EC, part of Title V of Part Three of the Treaty (‘Transport’) states that the Council may, acting by a qualified majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.

7. On the basis of that provision, which was at the time Article 84(2) of the EEC Treaty, the Commission originally proposed to the Council a single draft regulation applying the principle of freedom to provide services to sea transport services within the Community. (4) Subject to certain limitations, it was intended to apply to sea transport services within Member States, between Member States and between Member States and third countries. However, that draft regulation was not adopted.

8. Subsequently, on the same basis, the Council adopted two related instruments. Regulation No 4055/86 applied the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries. (5) Regulation No 3577/92 applied that principle to maritime transport within Member States (maritime cabotage).

9. So far as is relevant, the recitals to Regulation No 3577/92 read as follows:

‘…

[2] in accordance with Article 61 of the Treaty freedom to provide services in the field of maritime transport is to be governed by the provisions of the Title relating to transport;

[3] the abolition of restrictions on the provision of maritime transport services within Member States is necessary for the establishment of the internal market; … the internal market will comprise an area in which the free movement of goods, persons, services and capital is ensured;

…

[8] the implementation of this freedom should be gradual and not necessarily provided for in a uniform way for all services concerned, taking into account the nature of certain specific services and the extent of the effort that certain economies in the Community showing differences in development will have to sustain;

…

[11] in view of the need to ensure the proper functioning of the internal market and of possible adaptations in the light of experience, the Commission should report on the implementation of this Regulation and if necessary submit additional proposals’.

10. Article 1(1) of Regulation No 3577/92 provides:

‘As from 1 January 1993, freedom to provide maritime transport services within a Member State (maritime cabotage) shall apply to Community ship owners 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.’ (6)

11. For the purposes of Regulation No 3577/92, under Article 2(1),

‘“maritime transport services within a Member State (maritime cabotage)” shall mean services normally provided for remuneration and shall in particular include:

(a) mainland cabotage: the carriage of passengers or goods by sea between ports situated on the mainland or the main territory of one and the same Member State without calls at islands;

(b) off-shore supply services: the carriage of passengers or goods by sea between any port in a Member State and installations or structures situated on the continental shelf of that Member State;

(c) island cabotage: the carriage of passengers or goods by sea between:

– ports situated on the mainland and on one or more of the islands of one and the same Member State,

– ports situated on the islands of one and the same Member State;

Ceuta and Melilla shall be treated in the same way as island ports.’

Relevant national law

12. Article 11(1b) of the Greek Code of public maritime law reserves towage operations and assistance at sea in national waters to vessels flying the flag of Greece.

13. Under Article 188(2) of the Code, the conditions for granting a towage licence, the regulation of towage, circumstances in which towage services must be provided, towage rights in port and mooring waters ‘and all other necessary details’ are to be laid down by a port regulation adopted by the port authority.

14. Article 188(3) of the Code provides:

‘The extent of the right to tow, occasional or emergency towage by other vessels, related rights of tugs and other vessels flying the flag of a State other than Greece, as well as all other related details, shall be laid down by presidential decree.’

15. Article 1(1) of Presidential Decree No 45/83 on the towage of vessels essentially provides that the carrying out of professional towage between two points within national waters as well as the provision of all services directly related to such an operation are reserved to vessels flying the Greek flag. Such vessels must be classed as tugs under the legislation in force and licensed by the competent port authority.

16. Article 4(2) of a General Regulation on Ports, adopted by the competent authority exercising powers in accordance with the competence conferred by Article 188(2) of the Code, requires the owner of a vessel applying for a port towage licence to present to the port authority documents including a certificate of nationality. (7)

Procedure

17. On 18 January 2001 pursuant to the first paragraph of Article 226 EC the Commission sent a letter of formal notice to Greece, stating that in its view Article 11(1b), and Article 188(2) and (3), of the Code of public maritime law and Article 1(1) of Presidential Decree No 45/83 were contrary to Article 1 of Regulation No 3577/92.

18. Greece responded by letter of 27 March 2001, arguing that Regulation No 3577/92 does not apply to towage services. Article 2(1) of the regulation does not define towage services or maritime assistance as maritime transport services; and therefore towage services do not fall within the scope of the regulation. Greece added that, in a recent proposal for a directive on market access to port services, (8) the Council had referred to a Commission Green Paper on Sea Ports and Maritime Infrastructure of December 1997 (9) in which the Commission had for the first time expressed its intention to regulate port services. It was therefore contradictory for the Commission to propose regulating the provision of such services and at the same time to examine whether the Greek legislation was compatible with current Community law in that sector. Finally, according to Greece, the Commission had also recognised that situations similar to that arising under the contested Greek legislation existed in several other Member States.

19. On 22 July 2002, the Commission sent Greece a reasoned opinion pursuant to Article 226 EC. It maintained the position it had adopted in its letter of formal notice, but added the further claim that Article 4(2) of the General Regulation on Ports also infringed Article 1 of Regulation No 3577/92.

20. Greece replied to the reasoned opinion by letter of 13 November 2002, maintaining its position that towage services did not constitute maritime transport services within the meaning of Regulation No 3577/92.

21. The Commission therefore brought the present action. The order that it seeks (in the form resulting from the clarification provided at the hearing) asks the Court to

– declare that by allowing only vessels flying the Greek flag to provide towage services on the open sea within Greek national waters, the Hellenic Republic has failed to fulfil its obligations under Article 1 of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage);

– order the...