Opinion of Advocate General Lenz delivered on 11 May 1994

1 Original language: German.

2 It appears from a report proposing the amendment of the aforementioned provisions that the shore installations discharge into the sea the treated water used to flush out the tanks.

3 United Nations Treaty Series, Volumes 1340 and 1341, No22484.

4 Council Recommendation 78/584/EEC of 26 June 1978 onthe ratification of Conventions on safety in shipping, OJ 1978 L 194, p. 17.

5 Ireland and Luxembourg have not acceded to the Convendon.

6 Article 2(5) of the Convention defines Administration as the Government of the State under whose authority the ship is operating.

7 According to Article 2(7) of the Convention, Organization means the Inter-Governmentai Maritime Consultative Organization.

8 See Churchill/Lowe: The law of the sea, Manchester, 1988, p. 243. See also Articles 210 and 211 of the United Nations Convention on the Law of the Sea, adopted at New York on 30 April 1982 and opened for signature on 10 December 1982 at Montego Bay, Jamaica fThird United Nations Conference on the Law of the Sea — Official documents, Volume XVII, 1984, document A/62/122 and corrigendum, pp. 157 to 231).

9 OJ 1977 L 240, p. 1.

10 OJ 1976 L 129, p. 23, as subsequently amended.

11 Decision 86/85/EEC of 6 March 1986 (OJ 1986 L 77, p. 33), as amended by Decision 88/346/EEC of 16 June 1988 (OJ 1988 L 158, p. 32).

12 See section 2, above.

13 See, for example, the judgment in Case C-150/S8 Parfiimerie-Fabrik 4711 v Provide [1989] ECR 3891, paragraphs 11 and 12.

14 Judgment in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others v Circostel [1993] ECR I-393; see also the orders in Case C-157/92 Banchero [1993] ECR I-1085 and in Case C-3S6/92 Monin Automobiles [1993] ECR I-2049.

15 For a similar case, see the judgment in Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 13. See also my Opinion in Case C-2/93 Exportslachtenjen van Oordegem [1994] ECR I-2283, at I-2285, paragraph 10.

16 See question 5.

17 See question 2.

18 See section 6, above.

19 Judgment in Case 247/86 Alsatel [1988] ECR 5987.

20 See, for example, the judgment in Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019.

21 See section 8, above.

22 Judgments in Joined Cases 21/72 to 24/72 International Fruit v Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraphs 10 to 18, and in Joined Cases 267/81 to 269/81 Amministrazione delle Finanze dello Stato v SPĪ and Sami [1983] ECR 801, paragraph 17.

23 See Opinion 2/91 (ILO Convention No 170) [1993] ECR I-1061, paragraph 9.

24 Now Article 3(g) of the Maastricht Treaty.

25 Judgments in Joined Cases 209/84, 210/84, 211/84, 212/84and 213/84 Asjes [1986] ECR 1425, paragraphs 27 to 42, and in Case C-185/91 Reiff [1993] ECR I-5801, paragraph 12.

26 As the Court has consistently held; this has been emphatically confirmed by the three judgments of 17 November 1993 in Case C-2/91 Meng [1993] ECR I-5751, paragraph 14, Reiff, cited in the preceding footnote, paragraph 14, and Case C-245/91 Ohra Schadeverzekering [1993] ECR I-5851, paragraph 10. As far as Article 86 is concerned, see, for example, the judgment in Case C-339/89 Ahtbom AtUntique [1991] ECR I-107, paragraph 11.

27 See the judgments cited in the preceding footnote.

28 See paragraph 14 of the judgments in Meng and Reiff andparagraph 10 of the judgment in Ohra.

29 See the judgments in Case 13/77 GB-1NNO-BM [1977]ECR 2115, paragraphs 33 and 34, in Case 254/87 Syndicat des Librairies de Normandie v L'Aigle Distribution [1988] ECR 4457, paragraph 14, in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, paragraph 52, in Case C-41/90 Hafner and Eiser [1991] ECR I-1979, paragraphs 26 and 27, and in Case C-260/89 ERT [1991] ECR I-2925, paragraphs 35, 36 and 37.

30 Judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5.

31 Judgment in Case 15/79 Groenveld [1979] ECR 837, paragraph 5.

32 Cf. also the judgment in Case C-49/89 Corsica Fernes France v Direction Generale des Douanes Française [1989] ECR 4441, paragraph 7.

33 See the judgments in Asies, cited above, paragraph 37, and in Corsica Fernes, citea in the preceding footnote, paragraph 11.

34 Judgment in Case 167/73 Commission v France [1974] ECR 359.

35 Cf. the judgments in Joined Cases 35/82 and 36/82 Morson and ¡hanjan [1982] ECR 3723, paragraph 16, in Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 15 and 16, and in Case C-332/90 Steen [1992] ECR I-341.

36 See the judgment in Kraus, cited in the preceding footnote, paragraph 15.

37 United Nations Treaty Series, Volume 450, pp. 11, 169.

38 See the judgment in Poulsen (cited in footnote 19), paragraph 10.

39 See also the judgments in Commission v France, cited in footnote 33, and in Case C-37/93 Commission v Belgium [1993] ECR I-6295.

40 Judgment in Case 180/83 Moser v Land Baden-Württemberg [1984] ECR 2539, paragraph 18.

41 With regard to Article 52 of the Treaty, see the judgment in Case 81/87 Daily Mail [1988] ECR 5483, paragraph 19.

42 Judgment in Case 44/84 Hurd [1986] ECR 29, paragraphs 55 and 56.

43 Judgments in Case C-147/91 Ferrer Laderer [1992] ECR I-4097, paragraph 7, and in Kraus, cited in footnote 34, paragraph 15.

44 See footnote 40.

45 See section 49 above.

46 OJ 1986 L 378, p. 1.

47 Article 9 of the regulation, which reproduces Article 65 of the Treaty, is explained by those provisions.

48 See section 67 above.

49 This would be so in any case if Cali Oc Figli was commissioned to carry out such transport operations by a customer established in Italy. See, however, sections 74 to 77 below.

50 Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), OJ 1992 L 364, p. 7.

51 No 38 of the first bundle of annexes to Mr Peralta's observations: besides, the shipment was of a substance other than caustic soda.

52 See the first bundle (preceding footnote), Nos 34 to 37 and 112 to 120.

53 Judgments in Case C-154/89 Commission v France [1991] ECR I-659, paragraphs 9 and 10, in Case C-198/89 Commission v Greece [1991] ECR I-727, paragraphs 9 and 10, and in Case C-180/89 Commission v Italy [1991] ECR I-709, paragraphs 8 and 9.

54 That approach is, moreover, quite consonant with the origin and objectives of Regulation No 4055/86. It appears from Articles 2 to 5 of the regulation that it was designed primarily as a response to rules —whether unilateral or agreed with third countries — which result in the Member States concerned discriminating against providers of services from other Member States. That discrimination related in particular to the possibility of shipping, on certain sea crossings, cargoes to other Member States or from those States to ports in the Member State concerned (see the examples set out in document COM(85)90 final, paragraph 35). The regulation would not fulfil that function if it were confined to cases in which the establishments of the two parties to the provision of services were in different Member States.

55 Judgment in Joined Cases 251/90 and 252/90 Wood and Cowrie [1992] ECR I-2873, paragraph 19, and before that already, the judgment in Case 14/68 Walt Wilhelm [1969] ECR 1, paragraph 13.

56 See the judgment in Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 12.

57 Uniteti Nations Treaty Series, Volume 516, p. 205.

58 See section 61 above.

59 Case C-288/89, [1991] ECR I-4007.

60 Case C-353/89, [1991] ECR I-4069.

61 Case C-76/90, [1991] ECR I-4221.

62 Paragraph 12 of the judgment in Collectieve Antennevoorziening Gouda and paragraph 16 of the judgment in Commission v Netherlands, citea above. See also paragraph 12 of the judgment in Säger.

63 Provisions of the State in which the services are provided which result in an absolute prohibition of the provision of services in question are a special case. But there is no need to consider them here.

64 See footnote 29.

65 Judgment in Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

66 Judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.

67 See the Opinion of Mr Van Gerven in Joined Cases C-401/92 and C-402/92 Tankstation 't Heukske [1994] ECR I-2199, at I-2201, section 20.

68 See section 46 above.

69 See, however, footnote 62.

70 See footnote 31.

71 See footnote 40.

72 Paragraph 7 of the judgment in Corsica Ferries.

73 See section 6 above.

74 See footnote 18.

75 Cf. the judgments in Case 104/77 Oehlscbläger [1978] ECR 791, paragraph 4, and in Case 17/81 Papst and Richarz [1982] ECR 1331, paragraph 12.

76 See the judgment in Ferrer Laderer, cited in footnote 42, paragraph 6.

77 See section 72 supra.

78 See section 46 supra.

79 Judgment in Collectieve Antennevorziening Couda, paragraph 11.

80 Paragraph 13 of Collectieve Antennevoorziening Gouda.

81 Judgment in Case C-302/86 Commission v Denmark [1988] ECR I-4067, paragraph 8 et seq.

82 See also the judgment in Case 240/83 Procureur de la République v ADHU [1985] ECR 531, paragraph 9.

83 Paragraph 15 of the judgment in Collectieve Antennevoorziening Gouda.

84 See the judgment in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 11.

85 See, for example, the judgment in Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 21.

86 As the Court has consistently held with regard to fundamental rights recognized by the Community legal order; see, most recendy, the judgment in Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd and Stephen Grogan and Others [1991] ECR I-4685, paragraph 31.