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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0018

	Název: Title:		JUDGMENT OF THE COURT OF 17 MAY 1994. CORSICA FERRIES ITALIA SRL V CORPO DEI PILOTI DEL PORTO DI GENOVA. REFERENCE FOR A PRELIMINARY RULING: TRIBUNALE DI GENOVA - ITALY. COMPULSORY PILOTING SERVICE - DISCRIMINATORY TARIFFS - FREEDOM TO PROVIDE SERVICES - COMPETITION. CASE C-18/93.

	Publikace: Publication:		REPORTS OF CASES 1994 PAGES I-1783

	Předmět (klíčová slova): Keywords		FREEDOM OF ESTABLISHMENT AND SERVICES;FREE MOVEMENT OF SERVICES;COMPETITION;RULES APPLYING TO UNDERTAKINGS;DOMINANT POSITION;TRANSPORT;

	Související předpisy: Corresponding acts:		386R4055;157E090;157E086

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Politi Case 43/71 Politi v Italy [1971] ECR 1039 · Birra Case 162/73 Birra Dreher v Amministrazione delle Finanze dello Stato [1974] ECR 201; · Simmenthal Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453 · [309] San Giorgio Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 · [628a] Ligur Carni Joined Cases C-277, 318 and 319/91 Ligur Carni v Unitŕ Sanitaria Locale [1993] ECR I-6621 · Eurico Joined Cases C-332, 333 and 335/92 Eurico Italia v Ente Nazionale Risi [1994] ECR I-711 · [243] Salonia Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563 · Durighello Case C-186/90 Durighello v Istituto Nazionale della Previdenza Sociale [1991] ECR I-5773 · [569] Dias Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673 · Falciola Case C-286/88 Falciola v Commune di Pavia [1990] ECR I-191 · [550a] La Pallice Port Joined Cases C-78 to 83/90 Compagnie Commerciale de L’Ouest and Others v Receveur Principal des Douanes de La Pallice Port [1992] ECR I-1847 · Corsica Ferries France Case C-39/89 Corsica Ferries France v Direction Générale des Douanes Françaises [1989] ECR 4441 · Case 13/83 Parliament v Council [1985] ECR 1513 · [513] Höfner Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979 [517] Kouvelas Case C-260/89 ERT v DEP and Kouvelas


	Plný text: Fulltext:		Ne

Fakta:
Corsica Ferries Italia Srl (“Corsica Ferries”), a company established in Italy, brought an action before the Tribunale di Genova (District Court, Genoa) against the Corpo dei Piloti del Proto di Genova (Corporation of Pilots of the Port of Genoa; “the Corporation”) seeking recovery of tariffs paid to the Corporation for piloting services. Those tariffs were adopted by the Corporation and approved by the competent Minster. They provided for a reduction for certain types of vessels engaged in maritime cabotage (i.e. traffic between two [Italian] national ports). At the material time, only vessels flying the Italian flag could obtain permission to engage in maritime cabotage. The vessels operated by Corsica Ferries were registered in Panama and flying the Panamanian flag.
Corsica Ferries contended that they were incompatible with the freedom to provide services because of their discriminatory effect and that they were incompatible with the Community rules on competition. The Tribunale di Genova stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice a number of questions, asking
inter alia
(1) whether Community law precludes the application in a Member State, for identical piloting services, of different tariffs depending on whether or not the undertaking which provides shipping services between two Member States operates a vessel which is authorized for maritime cabotage, that being reserved to vessels flying the flag of that State and (2) whether Articles 90(1) and 86 of the Treaty prohibit a national authority from enabling an undertaking which has the exclusive right of providing compulsory services in a substantial part of the common market to apply different tariffs to maritime transport undertakings, depending on whether they operate transport services between Member States or between ports situated on national territory.

Názor soudu a komentář:
Before examining the substance of the case, the Court inquires into the admissibility of the reference. Confirming prior rulings (
Politi; Birra; Simmenthal;
[309]
San Giorgio;
[628a]
Ligur Carni; Eurico
), the Court found that the reference was admissible irrespective of the fact that it arose from an
ex parte
procedure provided for by the Italian Court of Civil Procedure rather than in an
inter partes
hearing. Article 177 of the Treaty merely requires that the national court or tribunal perform a judicial function which is the case also in
ex parte
proceedings. The Court, however, holds that a number of questions did not require its ruling because they bore no relation to the subject matter of the main action and hence were not objectively required in order to settle the dispute in that action (cf. [243]
Salonia; Durighello;
[569]
Dias; Eurico; Falciola
) which had regard only to the allegedly discriminatory effect of the tariff system.
In its reference regarding the first question, the national Court had,
inter alia
, asked whether the application of different tariffs was compatible with Articles 5 and 7 of the Treaty. In that respect, the Court points out that Article 5, providing that the Member States must ensure fulfilment of their obligations arising out of the Treaty, is worded so generally that it cannot apply autonomously when the situation concerned is governed by a specific provision of the Treaty ( [550a]
La Pallice Port
). Similarly, the general principle of non-discrimination cannot apply when a more specific enunciation of that principle is applicable. In the present case, the principle of equality contained in Article 59 of the Treaty is such a more specific rule which apply with priority.
With respect to the freedom to provide services set out in Article 59 of the Treaty, three issues had to be resolved at the outset: (i) whether it applied to services in the field of maritime transport; (ii) whether Corsica Ferries could rely on the provision in view of the fact that its vessels were registered in Panama; and (iii) whether the present case was not excluded from the scope of the Treaty on the ground that it was purely national. With regard to the first issue, the Court notes that pursuant to Article 61(1) the freedom to provide services in the field of transport is governed by the provisions Title IV relating to transport (see Case 13/83;
Corsica Ferries France
). The freedom to provide maritime transport services had therefore, pursuant to Articles 74 and 75, been established in the framework of a common policy by Regulation (EEC) No 4055
Of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member states and between Member States and third countries (OJ 1986 L 378, p. 1).
. According to Article 1(1) of this Regulation
Article 1(1) of this regulation provides:
“Freedom to provide maritime transport services between Member States and between Member States and third countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.”
, the scope of application of the freedom to provide maritime transport services applies to transport between Member States and to nationals of Member States who are established in a Member State other than that of the person for whom the services are intended and is thus irrespective of the flag which the vessels in question fly. Finally, the Court points out that the freedom to provide maritime services may be relied on by an undertaking as against the State in which it is established, if the services are provided for persons established in another Member State; such a case is not a purely national matter.
Having thus established the applicability of the freedom to provide services, the Court finds that the tariff system which in respect of tariff reductions refers to vessels engaged in cabotage, though facially neutral, are indirectly discriminatory since the provision of cabotage services is restricted to vessels flying the Italian flag which will predominantly be vessels from Italian companies. Grounds of navigational safety, national transport policy or protection of the environment could not justify the tariff system in issue because they did not appear necessary for attaining those objectives.
With regard to the competition rules, the Court established that the tariff system was incompatible with Articles 86 and 90(1) of the Treaty. The Corporation constituted an undertaking holding an exclusive right to provide compulsory piloting services in the port of Genoa and hence was covered by Article 90(1). In approving of the tariff system, the competent Minister had violated the obligations imposed by Articles 90(1) and 86(c). Article 86, to which Article 90(1) refers, presently applied because, under the Court’s case-law ( [513]
Höfner;
[517]
Kouvelas
), an undertaking which has a legal monopoly in a substantial part of the common market, was to be regarded as an “undertaking occupying a dominant position”. The Corporation has such legal monopoly, holding the exclusive right to render pilot services in the port of Genoa, which, in the light of the volume of traffic processed therein, constitutes a “substantial part of the common market. “While the mere fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) is not in itself incompatible with the Treaty” (see
Höfner
) “a Member State infringes with the prohibitions of those two articles if, by approving the tariffs adopted by the undertaking, it induces it to abuse its dominant position
inter alia
by applying dissimilar conditions to equivalent transactions with its trading partners within the meaning of Article 86(c) of the Treaty. Inasmuch as the discriminatory practices referred to in the order for reference affect undertakings providing transport services between two Member States, they may affect trade between Member States.”

Shrnutí (Summary of the Judgment):
1. ARTICLE 177 OF THE TREATY DOES NOT MAKE THE REFERENCE TO THE COURT SUBJECT TO THERE HAVING BEEN AN INTER PARTES HEARING IN THE PROCEEDINGS IN THE COURSE OF WHICH THE NATIONAL COURT REFERS A QUESTION FOR A PRELIMINARY RULING, ALTHOUGH IT MAY BE IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE FOR THE PRELIMINARY QUESTION NOT TO BE REFERRED UNTIL AFTER AN INTER PARTES HEARING.

2. IN THE CONTEXT OF THE PROCEDURE PROVIDED FOR IN ARTICLE 177 OF THE TREATY, THE COURT HAS NO JURISDICTION TO RULE ON QUESTIONS SUBMITTED TO IT BY A NATIONAL COURT IF THOSE QUESTIONS BEAR NO RELATION TO THE FACTS OR THE SUBJECT-MATTER OF THE MAIN ACTION AND HENCE ARE NOT OBJECTIVELY REQUIRED IN ORDER TO SETTLE THE DISPUTE IN THAT ACTION.

3. ARTICLE 1(1) OF REGULATION NO 4055/86 APPLYING THE PRINCIPLE OF FREEDOM TO PROVIDE SERVICES TO MARITIME TRANSPORT BETWEEN MEMBER STATES AND BETWEEN MEMBER STATES AND THIRD COUNTRIES PRECLUDES THE APPLICATION IN A MEMBER STATE OF DIFFERENT TARIFFS FOR IDENTICAL PILOTING SERVICES, DEPENDING ON WHETHER OR NOT THE VESSEL OPERATED BY AN UNDERTAKING ESTABLISHED IN A MEMBER STATE FOR PROVIDING MARITIME TRANSPORT SERVICES BETWEEN TWO MEMBER STATES IS AUTHORIZED TO ENGAGE IN MARITIME CABOTAGE, WHICH IS RESERVED TO VESSELS FLYING THE FLAG OF THAT STATE. SUCH A PRACTICE CONSTITUTES DISCRIMINATION, ALBEIT ONLY INDIRECTLY, ON THE GROUND OF NATIONALITY, SINCE VESSELS FLYING THE NATIONAL FLAG ARE GENERALLY OPERATED BY NATIONAL ECONOMIC OPERATORS, WHEREAS TRANSPORT UNDERTAKINGS FROM OTHER MEMBER STATES AS A RULE DO NOT OPERATE VESSELS REGISTERED IN THAT STATE.

4. ALTHOUGH THE MERE FACT OF CREATING A DOMINANT POSITION BY GRANTING EXCLUSIVE RIGHTS WITHIN THE MEANING OF ARTICLE 90(1) OF THE TREATY IS NOT IN ITSELF INCOMPATIBLE WITH ARTICLE 86 OF THE TREATY, THOSE TWO PROVISIONS PROHIBIT A NATIONAL AUTHORITY FROM INDUCING, BY APPROVING ITS TARIFFS, AN UNDERTAKING WHICH HAS BEEN GRANTED THE EXCLUSIVE RIGHT OF PROVIDING COMPULSORY PILOTING SERVICES IN A SUBSTANTIAL PART OF THE COMMON MARKET TO APPLY DIFFERENT TARIFFS TO MARITIME TRANSPORT UNDERTAKINGS, DEPENDING ON WHETHER THEY OPERATE TRANSPORT SERVICES BETWEEN MEMBER STATES OR BETWEEN PORTS SITUATED ON NATIONAL TERRITORY, WHERE SUCH DISCRIMINATION IS LIABLE TO AFFECT TRADE BETWEEN MEMBER STATES.

Plný text judikátu (Entire text of the Judgment):