Opinion of Advocate General Van Gerven delivered on 9 February 1994

1 Original language: Dutch.

2 Il appears from the minutes of the extraordinary general meeting of shareholders held on 4 December 1992 (a copy of which is appended to Corsica Ferries' written observations) that it was only after it was resolved at that meeting to increase the company's capital that Tour Ship Group SA became a shareholder: until that date, 99% of the company's capiul (LIT 20000000) had been held by a Liechtenstein company, Allgemeine Tourist Organisation Anstalt. The meeting resolved to increase the capital to LIT 199000000. Tour Ship Group immediately subscribed for LIT 179000000 of the shares, which it paid up forthwith.

3 Corsica Ferries' counsel stated at the hearing that only those two vessels fly the Panamanian flag; Corsica Ferries' other vessels fly the Italian flag.

4 According to the extract from Lloyd's Register of Shipping, which is appended to the Commission's written observations, those two vessels belong to Tourship Co. SA.

5 Decrees Nos 29/89, 50/90 and 28/91, a copy of which is appended to Corsica Ferries' written observations.

6 See the definition of cabotage in V. Power, EC Shipping Law, London, Lloyd's of London Press, 1992, p. 211, paragraph 7.6.2.1: cabotage is the carriage of passengers or goods by sea between ports in any one Member State, including the overseas territory of that Sute.

7 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.

8 Judgment in Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 33.

9 Judgment in Case 43/71 Politi v Italy [1971] ECR 1039, paragraph 5. For subsequent confirmation, see the judgments in Case 162/73 Birra Dreher [1974] ECR 201, paragraph 3, in Case 70/77 Simmenthal [1978] ECR 1453, paragraph 9, and in Case 199/82 San Giorgio [1983] ECR 3595, paragraph 9, and recently the judgment of 13 December 1993 in Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni [1993] ECR I-6621, paragraph 16. See the Opinion of Mr Advocate General Roemer in Case 33/70 S ACE v Italian Ministry for Finance [1970] ECR 1213, at 1226: There can be no doubt as to the admissibility of the reference. In particular, it is of no importance that the proceedings in the main action are merely of a summary nature, in other words, simply for the granting of an order for payment.

10 Judgment in Birra Dreher, end of paragraph 3.

11 Judgment in Simmenthal, paragraphs 10 and 11; this point of view has recently been confirmed in paragraph 16 of the judgment in Ligur Carni, cited in footnote 8.

12 It is a court or tribunal which is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature; order in Case 138/80 Borker [1980] ECR 1975, paragraph 4; judgment in Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4. It also satisfies the requirement laid down in the recent judgment in Corhiau uiat it must be an authority acting as a third party in relation to the authority which adopted the decision forming the subject-matter of the proceedings (judgment in Case C-24/92 Corhiau [1993] ECR I-1277, paragraph 15).

13 The Court confirmed that it has no jurisdiction to deliver advisory opinions on general or hypothetical questíons as long ago as its judgment in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18. In the judgment which it gave on 16 July 1992 in Case C-83/91 Meilicke [1992] ECR I-4871 the Court refused for the first time to answer any of the questions referred for a preliminary ruling.

14 Judgment in Case 126/80 Salonia v Poidomani and Others [1981] ECR 1563, paragraph 6, and trie judgment in Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 11; see also the judgments in Case C-186/90 Dunghello [1991] ECR I-5773, paragraph 9, in Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 18, and in Case C-67/91 Asociación Española de Banca Pnvada and Others [1992] ECR I-4785, paragraph 26. See also the order in Case C-286/88 Falciola [1990] ECR I-191, paragraph 8.

15 Order in Falciola, cited in the preceding footnote, end of paragraph 9.

16 See the judgment in Joined Cases C-321/90 and C-322/90 Telemarsicalruzzo and Others [1993] ECR I-393, paragraphs 6 to 10 and the orders in Case C-157/92 Banchero [1993] ECR I-1085, paragraphs 4 to 7, and in Case C-386/92 Monin Automobiles [1993] ECR I-2049, paragraphs 6 to 9.

17 The Court reserves this right according to a consistent line of cases: see in particular the judgment in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 26, and the judgment in Case 204/87 Bekaert [1988] ECR 2029, paragraph 7.

18 See the judgment in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others [1992] ECR I-1847, paragraph 19.

19 Judgments in Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13, in Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraph 12, and in Case C-179/90 Merci [1991] ECR I-5889, paragraph 11.

20 See the recent judgment in Case C-20/92 Hubbard [1993] ECR I-3777, paragraph 10.

21 The provisions on transport are set out in Title IV of Part Two of the EEC Treaty, Foundations of the Community; since the entry into force of the European Union Treaty, they appear in Title IV of Part Three of the EC Treaty, Community policies.

22 Judgment in Case 13/83 European Parliament v Council [1985] ECR 1513, paragraph 62.

23 Judgment in European Parliament v Council, paragraph 63; see also the judgment in Case 4/88 Lambregls [1989] ECR 2583, paragraph 14.

24 Judgment in Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377.

25 Judgment in Case 186/87 Cowan [1989] ECR 195.

26 The Council also adopted the following regulations on this basis with a view to liberalizing maritime transport: Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4) (adopted on tne basis of, inter alia , Article 87 of the EC Treaty), Council Regulation (EEC) No 4057/86 of 22 December 1986 on unfair pricing practices in maritime transport (OJ 1986 L 378, p. 14) and Council Regulation (EEC) No 4058/86 of 22 December 1986 concerning coordinated action to safeguard free access to cargoes in ocean trades (OJ 1986 L 378, p. 21).

27 OJ 1986 L 378, p. 1. That regulation was amended following German reunification by Council Regulation (EEC) No 3573/90 of 4 December 1990 (OJ 1990 L 353, p. 16).

28 Under Article 12 of the regulation. Article 2 of the regulation contains specific transitional deadlines for unilateral national restrictions on the carriage of certain goods wholly or partly reserved for vessels flying the national flag.

29 Judgment in Case 167/73 Commission v France [1974] ECR 359, paragraphs 28 and 32.

30 Paragraph 32 of the judgment cited in the preceding footnote.

31 The question of the effect of Community law on national rules relating to the nationality of vessels nas nothing whatsoever to do with that question. In the judgment of 4 October 1991 in Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, paragraph 15, the Court held that as Community law stands at present, it is for the Member States to determine, in accordance with the general rules of international law, the conditions which must be fulfilled in order for a vessel to be registered in their registers and granted the right to fly their flag, but, in exercising that power, the Member States must comply with the rules of Community law. For the significance of Community law as regards the nationality of ships, see in general R. R. Churchill, European Community Law and the Nationality of Ships and Crews, European Transport Law, 1992, pp. 591 to 615.

32 Judgment in Case C-246/89 Commission v United Kingdom, cited in the preceding footnote, at paragraph 21; see also the judgment in Case C-221/89 Factortame and Others (Factortame II) [1991] ECR I-3905, paragraph 20.

33 See in particular the judgment in Case 63/86 Commission v Italy [1988] ECR 29, paragraph 14.

34 Title I of the General Programme for the elimination of restrictions on freedom to provide services, OJ English Special Edition, Second Series IX, p. 3.

35 I would reach the same conclusion if, in addition to the strictly legal criteria, the Tour Ship group were to be regarded as an economic entity: the bulk of the group's activities are located in the Community (France and Italy) and the person who actually controls the group — Mr Lou — is French and resides in Corsica. The fact that before 4 December 1992, it was a Liechtenstein Anstalt —also, as may be assumed, under the Mr Lota's control — which owned 90% of Corsica Ferries is not a determining factor in this connection.

36 I would point out that there is an amended proposa! for a Council Regulation on a common definition of a Community shipowner, which was submitted by the Commission on 27 February 1991 (OJ 1991 C 73, p. 25). It is stated in the conclusions of the European Council held in Edinburgh on 11 and 12 December 1992 that the Commission intended to revise that proposal in the light of the principle of subsidiarity: See EC Bulletin, 12-1992, p. 18. In a resolution of 16 September 1993, the Parliament called upon the Commission to maintain its proposal for a regulation and upon the Council to adopt it without delay (OJ 1993 C 268, p. 170).

37 The Court has long held that this principle is fundamental: see in particular the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 27.

38 Judgment in European Parliament v Council, cited in footnote 21, at paragraph 64. See also the judgments in Joined Cases 209 to 213/84 Asjes [1986] ECR 1425, paragraph 37, and in Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 11.

39 See among recent judgments, the judgments in Case 154/89 Commission v France [1991] ECR I-659, paragraph 12, in Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 15, and in Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 16, (the tourist guide judgments); the judgment in Case C-260/89 ERT [1991] ECR I-2925, paragraph 19; the Mediawet judgments, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 14, and Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 10; and the judgments in Case C-106/91 Ramrath [1992] ECR I-3352, paragraph 27, and in Case C-17/92 Distribuidores Cinematográficos [1993] ECR I-2239, paragraph 13.

40 Judgment in Joined Cases 62/81 and 63/81 Seco [1982] ECR 223, paragraph 8; more recendy, see in particular the judgment in Case C-360/89 Commission v Italy [1992] ECR I-3401, paragraph 11.

41 Judgment in Corsica Ferries France, cited in footnote 37, at paragraph 7.

42 This view is also taken by G. Marenco, The Notion of Restriction on the Freedom of Establishment and Provision of Services in the Case-Law of the Court', in Yearbook of European Law, Volume 11, Oxford, Clarendon Press, 1992, (111), p. 144.

43 Judgment in Corsica Ferries France, paragraph 8 (my emphasis). See also, as regards freedom of establishment, the judgment in Case 270/83 Commission v France [1986] ECR 273, end of paragraph 21, and, as regards free movement of goods, the judgment in Case C-126/91 Yves Rocher [1993] ECR I-2361, paragraph 21 (in which an exception was made for purely hypothetical barriers).

44 As its final sentence states, the regulation of which this provision forms part is binding in its entirety and directly applicable in all Member Sutes in accordance with the second paragraph of Article 189 of the EEC Treaty.

45 See, as regards Article 59 of the EC Treaty, the judgments in Case 36/74 Walrave [1974] ECR 1405, paragraph 17, and in Case 13/76 Dona [1976] ECR 1333, paragraph 17.

46 It appears from the judgment in Case 16/78 Cboquet [1978] ECR 2293, paragraph 8, that the requirements for the safety of highway traffic may in any event constitute a ground of general interest justifying nondiscriminatory restrictions on freedom to provide services.

47 It appears from the Court's case-law on the free movement of goods that environment protection in particular may be invoked as a ground of general interest in order to justify restrictions on intra-Community trade: see the judgments in Case 240/83 ADBHU [1985] ECR 531, paragraph 13, in Case 302/86 Commission v Denmark [1988] ECR 4607, paragraphs 8 and 9, and in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 32.

48 The Court has consistently held that national rules which are not applicable to services without distinction as regards their origin are compatible with Community law only if they can be brought within the scope of an express derogation, such as Article 56 of the EC Treaty: for recent confirmation, see, inter alia, the recent judgment in Collectieve Antennevoorziening Couda, cited in footnote 38, at paragraph 11; see also the judgments in Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 11, and in Distribuidores Cinematográficos, also cited in footnote 38, at paragraph 16.

49 For the possibility of Member States' applying restrictions on freedom to provide services in the field of intra- Community maritime transport prior to the entry into force of Regulation No 4055/86, see tne judgment in Corsica Ferries France, cited in footnote 37, at paragraph 14.

50 Judgments, cited in footnote 38, in Case C-154/89 Commission v France, at paragraphs 9 and 10, in Case C-180/89 Commission v Italy, at paragraphs 8 and 9, and in Case C-198/89 Commission v Greece, at paragraphs 9 and 10. The last paragraph cited has been expressly confirmed by the Court in paragraph 12 of the judgment in Hubbard, cited in footnote 19.

51 Judgment in Case 81/87 Daily Mail [1988] ECR 5483, paragraph 16.

52 Judgment in Case 115/78 Knoors [1979] ECR 399, paragraph 24.

53 Judgment in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32.

54 Judgments in Case 143/87 Stanton [1988] ECR 3877, paragraphs 13 and 14, and in Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraphs 13 and 14.

55 This case was concerned with a company incorporated under French law which relied on Article 59 of the EC Treaty against the French authorities on the ground that the ultra-Community services which it provided were subject to discriminatory treatment in comparison with similar domestic services.

56 The judgment in Merci , cited in ^paragraph 18, also contains, in paragraphs 25 to 28, sufficient indications as to the applicability of Article 90(2) which may be applied to the present case by analogy.

57 Judgment in Mera , paragraph 9.

58 Judgment in Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; this case-law has recently been confirmed m the judgment in Joined Cases C-159/91 and C-160/91 Poucet [1993] ECR I-637, paragraph 17.

59 Judgment in Merci, paragraph 14; judgment in Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 9. See also the judgments in Höfner and Elser , cited in footnote 57, at paragraph 28, in ERT, cited in footnote 38, at paragraph 31, and in Case C-18/88 Ä7T [1991] ECR I-5941, paragraph 17.

60 Judgment in Merci, paragraph 15.

61 Judgment in Joined Cases 253/78 and 1 to 3/79 Giry and Guerlain [1980] ECR 2327, paragraph 15. See the judgment in Case 14/68 Wilhelm [1969] ECR 1, paragraph 3, delivered as long ago as 13 February 1969. As regards the relationship between the Community provisions on competition and national rules on the supervision of a particular economic sector, see the judgment in Case 45/85 Verband der Versicherer v Commission [1987] ECR 405, paragraph 23.

62 In this respect, a parallel may be drawn with the situation at issue in the case of United Brands (judgment in Case 27/76 United Brands [1978] ECR 207): there the Court held that the discriminatory pricing policy practised by UBC, which invoiced distributor/ripeners at prices which differed from one Member State to another for identical quantities and types of bananas constituted an abuse of a dominant position on the ground that [t] hese discriminatory practices, which varied according to the circumstances of the Member Sutes, were just so many obstacles to the free movement of goods and their effect was intensified by the clause forbidding the resale of bananas while still green and by reducing the deliveries of the quantities ordered (paragraph 232) and that a rigid partitioning of national markets was thus created at price levels which were artificially different, placing certain distributor/ripeners at a competitive disadvantage, since compared with what it should have been competition had thereby been distorted (paragraph 233). The same reasoning can be applied mutatis mutandis in the present case: the differentiated tariffs charged by the Corporation constitute an obstacle to freedom to provide intra-Community shipping transport services and place persons providing such services at a disadvantageous competitive position.

63 Cited in the preceding footnote.

64 See paragraphs 18 and 19 of that judgment.

65 Cf. paragraph 20 of the judgment in Merci, where, in order to answer the question whether the rules at issue were liable to affect trade between the Member Sutes, the Court referred to what it held in paragraph 15 of that judgment (quoted above in the body of my Opinion).

66 Judgment in Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 104 in fine (my emphasis); see also the judgments in Case 226/84 British Leytand v Commission [1986] ECR 3263, paragraph 20, and in Höfner and Elser, cited in footnote 57, at paragraph 32. See also the judgments of the Court of First Instance in T-69/89 RTE v Commission [1991] ECR II-485, paragraph 76, and in Case T-70/89 BBC v Commission [1991] ECR II-535, paragraph 64. The Court of Justice gave an even broader interpretation in the judgment in Case 247/86 Alsatel [1988] ECR 5987, paragraph 11, that is to say, that Article 86 of the EC Treaty covers all practices which may influence, directly or indirectly, actually or potentially, patterns of trade between the Member States and thereby hinder the economic interpénétration intended by the Treaty.

67 In the Dutch language version, the authors of the European Union Treaty omitted to alter the reference to Article 7, which has been renumbered Article 6.

68 Judgment in ERT, cited in footnote 38, at paragraph 35. See also the earlier judgment in Case 13/77 INNO [1977] ECR 2115, paragraphs 31 and 32.

69 Compare the judgment in Case 66/86 Ahmed Saeed [1989] ECR 803, paragraph 3 of the operative part, in which the Court ruled that Articles 5 and 90 of the Treaty precluded the approval by national authorities of tariffs resulting from tariffagreements contrary to Article 85(1) of the EC Treaty.