Report for the Hearing delivered in Case C-49/89

I — Facts and procedure

1. Article L.211-1 of the French code des ports maritimes provides that harbour dues may be levied in seaports on commercial operations or visits by ships there. With regard to merchant vessels, Article L.211-2 requires shipowners to pay a tax on passengers embarked, disembarked or transferred.

2. Corsica Ferries (France), which operates three ships between Corsica and certain Italian ports, brought an action against the customs authorities for recovery of the amounts paid under the abovementioned provisions, alleging that the French legislation discriminates between ships plying between Corsica and ports in continental France, which are required to pay passenger tax only when leaving the Corsican port, and ships plying between Corsica and ports situated in EEC Member States other than France, which are liable to the tax both on arrival and on departure.

3. Its application having been dismissed by the tribunal de grande instance (Regional Court) and the cour d'appel (Court of Appeal), Bastia, Corsica Ferries appealed to the Cour de cassation (Court of Cassation).

4. Since it considered that the dispute involved the interpretation of certain articles of the EEC Treaty, the Cour de cassation, by judgment of 17 January 1989, decided to stay proceedings until the Court of Justice had given a preliminary ruling under Article 177 of the EEC Treaty on the following question :

5. The judgment of the Cour de cassation was received at the Court Registry on 23 February 1989.

6. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 12 May 1989 by the Commission of the European Communities, represented by its Legal Adviser Jean Amphoux, and on 22 May 1989 by Corsica Ferries, the appellant, represented by Mr Thouvenin, of the Paris Bar, and Mr Scapel, of the Marseilles Bar.

7. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

8. Under Article 95(1) and (2) of the Rules of Procedure, the Court, by decision of 21 June 1989, assigned the case to the Second Chamber.

II — Written observations submitted to the Court

1. Corsica Ferries, the appellant, states that under the French legislation in force from 1969 to 1981 ships plying between Italy and Corsica suffered no discrimination in relation to those sailing between continental France and Corsica. It was only in 1981 that the French authorities introduced the present discriminatory rules, which, moreover, apply in all French seaports.

2. The Commission considers that an analysis of the scope of the national provisions at issue in the light of the rules of Community law makes it clear that they are discriminatory. However, the discrimination is not based on the nationality of the passengers, the flag under which the ship is registered or the nationality of the shipowner or the Member State in which he is established. None the less, that discrimination is likely to prejudice freedom to provide services in the domain of passenger transport by sea. By making transfrontier services within the Community subject to a financial charge greater than that levied on purely national services the French legislation is analogous in its effect to a tax having an effect equivalent to a customs duty in the context of intra-Community trade in goods. It is therefore an instance of discrimination which must be abolished, regardless of the seriousness of the effects which it produces.

III — Oral procedure

The Government of the French Republic, which had not submitted written observations, argued first that there were two different kinds of maritime traffic, namely coastal traffic between domestic ports and international traffic. Since they constitute two distinct legal categories, different tax rules are fully justified.

The principle of freedom to provide services has been applicable to maritime transport only since 1 January 1987, the date on which Regulation No 4055/86 entered into force. Moreover, according to Article 1 of that regulation, it applies to intra-Community shipping services and to traffic with non-member countries, and until such time as a regulation is adopted on maritime transport within the Member States special legislation may be applied to domestic coastal traffic.

1 Language of the case: French.