Corsica Ferries France v. Direction Generale des Douanes Francaises (Case C-49/89)

Transcription

1 Corsica Ferries France v. Direction Generale des Douanes Francaises (Case C-49/89) Before the Court of Justice of the European Communities (2nd Chamber) ECJ (2nd Chamber) (Presiding, Schockweiler P.C.; Mancini and O'Higgins JJ.) Herr Carl Otto Lenz, Advocate General. 13 December 1989 Reference from France by the Cour de Cassation (Supreme Court), under Article 177 EECEEC. Provisions Considered: EEC 59, 61, 62, 84 Internal market. The Four Freedoms. The Articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited. [8] Services. Maritime transport. Freedom to supply services did not apply to maritime transport until Regulation 4055/86 entered into force on 1 January Prior to that date the member- States were entitled to apply differential tax rates to sea transport within their territory and between their territory and other member-states respectively. [13]- [14] Services. Maritime transport. Standstill. The standstill clause in Article 62 EEC did not apply to maritime transport. [15] The Court interpreted Articles 59, 61, 62 and 84 EEC in the context of French charges on embarkation/disembarkation in Corsican ports in 1981/1982, such

2 charges being imposed in relation to passengers *228 coming from other French ports but in relation to both those coming from and those going to other member- States, to the effect that freedom of services did not apply to shipping until 1987, that therefore France was not required to avoid discrimination between internal and external routes in 1981/1982, and therefore that the charges were lawful. Representation Me. Thouvenin, of the Paris Bar, and Me. Scapel, of the Marseilles Bar, for the plaintiff. Claude Chavance, Attaché Principal d'administration Centrale in the Directorate for Legal Affairs of the Ministry of Foreign Affairs, for the French Government. Jean Amphoux, Legal Adviser, for the E.C. Commission as amicus curiae. The following cases were referred to in the judgment: 1. Ministere Public v. Ledoux (127/86), 6 July 1988: [1988] E.C.R Gaz:127/86 2. Ministere Public v. Asjes ( /84), 30 April 1986: [1986] E.C.R. 1425, [1986] 3 C.M.L.R Gaz:209/84 3. Lambregts Transportbedrijf v. the State (Belgium) (4/88), 13 July 1989: [1989] E.C.R. 2583, [1991] 1 C.M.L.R Gaz:4/88 The following further cases were referred to by the Advocate General: 4. Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: [1968] E.C.R. 661, [1969] C.M.L.R Gaz:13/68 5. Alfons Lütticke GmbH v. Hauptzollamt Passau (51/70), 3 March 1971: [1971] E.C.R. 121, [1971] C.M.L.R Gaz:51/70 6. Levin v. Secretary of State for Justice (53/81), 23 March 1982: [1982] E.C.R. 1035, [1982] 2 C.M.L.R Gaz:53/81 7. Re French Merchant Seamen: E.C. Commission v. France (167/73), 4 April 1974: [1974] E.C.R. 359, [1974] 2 C.M.L.R Gaz:167/73 8. Re Tax Credits: E.C. Commission v. France (270/83), 28 January 1986: [1986] E.C.R. 273, [1987] 1 C.M.L.R Gaz:270/83 9. International Fruit Company NV v. Produktschap voor Groenten en Fruit (No. 2) 51-54/71, 15 December 1971: [1971] E.C.R Gaz:51/71 The following additional cases were referred to in argument: 10. E.C. Commission v. Belgium (156/77), 12 October 1978: [1978] E.C.R Gaz:156/77 * Unger (Hoekstra) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63), 19 March 1964: [1964] E.C.R. 177, [1964] C.M.L.R Gaz:75/ Van Binsbergen v. Bestuur Van de Bedrijfsvereniging voor de Metaalnijverheid (33/74), 3 December 1974: [1974] E.C.R. 1299, [1975] 1

3 C.M.L.R Gaz:33/ Pinna v. Caisse D'Allocations Familiales de la Savoie (41/84), 15 January 1986: [1986] E.C.R. 1, [1988] 1 C.M.L.R Gaz:41/ Van Eycke v. Aspa NV (267/86), 21 September 1988: [1988] E.C.R. 4769, [1990] 4 C.M.L.R Gaz:267/86 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts Section L 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, section L requires shipowners to pay a tax on passengers embarked, disembarked or transferred. In regard to Corsican seaports, section R levies a charge on all passengers travelling to Corsica from mainland France or Sardinia and a charge at an identical rate on all passengers travelling to or from a port situated in Europe. The single tax scheme which applied to traffic between Corsica and Italy following the adoption of the Decree of 27 January 1969 was repealed by the Decree of 12 May 1981, which once again placed journeys to Italy, with the exception of Sardinia, under the general rules applying to international traffic whereby taxes are levied both on arrival in and departure from a Corsican port. 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 above mentioned 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. Its application having been dismissed by the Tribunal de Grande Instance (Regional Court) and the Cour d'appel (Court of Appeal), *230 Bastia, Corsica Ferries appealed to the Cour de Cassation (Court of Cassation). 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 EEC on the following question: Must the EEC Treaty, in particular Articles 59, 62 and 84, be interpreted as meaning that a member-state is authorised, in connection with the use by a ship of harbour installations situated in its island territory, to levy charges on the embarkation and disembarkation of passengers travelling to or arriving from a port situated in another member-state, whilst in the case of travel between two ports situated within national territory those charges are levied only on embarkation at the island port?

4 Opinion of the Advocate General (Herr Carl Otto Lenz) My opinion on the question referred to the Court by the French Cour de Cassation on 23 February 1989 is as follows. I refer the Court to the Report for the Hearing for the details of the case. 1. The question referred to the Court is formulated in very general terms. [FN1] However, that does not exclude a certain limitation of the subject matter in the light of the facts of the case in so far as the Court has been made aware of them. That has frequently occurred in the Court's previous decisions. Let me refer here merely to the preliminary rulings made in Cases 13/68, [FN2] 51/70 [FN3] and 53/81. [FN4] FN1 See above, under 'Facts'. FN2 Case 13/68, Salgoil v. Italian Ministry for Foreign Trade: [1968] E.C.R. 453, [1969] C.M.L.R FN3 Case 51/70 Lütticke v. Hauptzollamt Passau: [1971] E.C.R. 121, [1971] C.M.L.R FN4 Case 53/81 Levin v. Staatssecretaris Van Justitie: [1982] E.C.R. 1035, [1982] 2 C.M.L.R In my opinion, the same should be done in this case, since the procedure under Article 177 EEC does not involve the formulation of abstract legal opinions but is intended to provide concrete help in arriving at a decision by interpreting Community law in regard to a given set of facts. From that point of view, it is important that, as can be seen from the application of 18 January 1982, the main proceedings are concerned only with the recovery of passenger taxes levied-- unlawfully, it is alleged--since 19 May 1981 under the Decree of 12 May 1981 (in the amount of 836,071.15FF. The obvious thing to do, therefore, is to deal only with the legal position at that time (1981/1982) and consider the situation under Community law at the time in question in regard to the facts of the case before the national court. * If the problem to be resolved is limited in that way, let me say at once that I find the Commission's position convincing. It argues that at that time a member- State was not prohibited from levying charges on the arrival and departure of passengers on ships using port facilities in its island territory where the passengers were coming from or going to ports in other member-states although such charges were levied in regard to journeys between two ports situated in national territory only upon departure from the island port. That is the conclusion which must be drawn from the provisions of the EEC Treaty relevant to this case, namely Article 61, in Title III, Chapter 3 (Services), which provides as follows: Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.

5 The decisive factor in that regard is the fact that at that time no measures had been adopted for the introduction of freedom to provide services, that is to say, no use had been made of Article 84(2) EEC, which provides that the Council may, acting unanimously, [FN5] decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea transport. As the Court has seen, the only relevant measure is Council Regulation 4055/86 applying the principle of freedom to provide services to maritime transport between member-states and between member-states and non-member countries and it was only from the time at which that regulation entered into force (1 January 1987, in accordance with its Article 12) that it was clear that 'freedom to provide maritime transport services between member-states and between member-states and non-member countries [was to] 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' (Article 1(1)). FN5 The procedural rules have been amended by the Single European Act. 3. It is easy to demonstrate that the contrary view, put forward by the plaintiff in the main proceedings, is incorrect. (a) It is to my mind clear that the plaintiff's argument that Chapter 3 of Title III of the EEC Treaty, containing provisions on the abolition of restrictions on freedom to provide services, was applicable to sea transport at a time when the Council had adopted no measure under Article 84(2) EEC (that is to say, no measure implementing a maritime transport policy and thereby making Title IV applicable to that area) is contrary to the overall structure of the Treaty. That would mean that the general provisions of Article 59 et seq. would be immediately applicable to an area which the authors of the Treaty regarded as particularly delicate, namely shipping (to which not even the provisions concerning the common transport policy, by means of which the objectives of Chapter 3 of Title III are to be achieved in the *232 field of transport, are in themselves applicable). That cannot be right, and in that connection the judgment in Case 4/88 [FN6] is of a certain interest inasmuch as it was decided that in 1982, in the absence of special measures in regard to transport policy, it was not possible to rely on Article 59, and the Council's failure to act in regard to transport policy did not make that Article directly applicable. FN6 Case 4/88, Lambregts Transportbedrijf v. Belgian State: [1989] E.C.R. 2583, [1991] 1 C.M.L.R (b) The plaintiff's position is certainly not supported by any other relevant judgment. It is true that in Case 167/73 [FN7] it was stated in general terms that sea and air transport are subject to the general rules of the Treaty even though, so long as the Council has not decided otherwise, they are not subject to the rules of Title IV relating to the common transport policy. It should not be forgotten, however, that that case was concerned only with the rather different problem of the application of Articles 48 to 51.

6 FN7 Case 167/73, E.C. Commission v. France: [1974] E.C.R. 359, [1974] 2 C.M.L.R In any event, it is quite clear from the judgment of 30 April 1986 in Joined Cases /84 [FN8] that under Article 61 EEC freedom to provide services in the field of transport is governed not by the provisions of the chapter on services but by the provisions of the title relating to the common transport policy. The objective laid down in Article 59 of abolishing restrictions on freedom to provide services must be attained (as is emphasised in paragraph 37) in the framework of the common policy provided for in Articles 74 and 75. FN8 Joined Cases /84, Ministère Public v. Asjes: [1986] E.C.R. 1425, [1986] 3 C.M.L.R (c) Reference may also be made in this connection to Regulation 4055/86, which I have already mentioned. The statement in the second recital in its preamble to the effect that 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 means that the implementation of that freedom must be carried out through measures under that title, and direct reliance on Article 59 et seq. is excluded. The plaintiff's argument in regard to that regulation, to the effect that it merely clarifies and confirms a legal position which may be derived directly from the Treaty is certainly not acceptable. It must not be forgotten that that regulation, as can be seen from the statement of the reasons on which it is based, is a measure adopted under Article 84(2) EEC, that is to say, a measure laying down new rules (which is also demonstrated by the fact that in Article 12 the time for the entry into force of the regulation is provided). It is also interesting to note that it is clearly stated in the eleventh recital in its preamble that therefore the principle of freedom to provide services should now be *233 applied to maritime transport between member-states and between member-states and non-member countries so as progressively to abolish existing restrictions and prevent the introduction of new restrictions. (d) Finally, it is also immediately clear to me that in the circumstances of the main proceedings reference cannot be made to the general principles of the Treaty (unity of the Common Market; prohibition of discrimination in Article 7). The application and realisation of those principles in the area with which the Court is concerned is provided for in Chapter 3 of Title III. Since that chapter makes a clear exception for the entire field of transport (in the form of the reference in Article 61 to the title relating to transport), it would be contrary to the overall structure of the Community rules to counter that exception by relying on the principles laid down in Part One of the Treaty (the principles laid down in Article 7 do not come into consideration because, as has been demonstrated to the Court, the French provisions at issue in this case do not involve any discrimination on grounds of nationality).

7 (e) It cannot therefore be said that at the time material to the main proceedings, namely 1981 and 1982, the difference between the French provisions on the levying of passenger taxes in Corsican ports on transport between French ports on the one hand and on transport between Corsican and Italian ports on the other is incompatible with Article 59 of the Treaty. (f) We need not therefore consider the question of the effect of the standstill provision in Article 62 with regard to the fact that the unequal treatment which existed at the time when the Treaty came into force was abolished by a decree of 27 January 1969 and was reintroduced only by the decree of 12 May 1981, because according to Article 61(1) that provision is not applicable. 4. If these remarks are not in themselves sufficient and it is desired to examine the question as referred to the Court, in the general terms in which it is formulated, without limitation in time (and it would appear that the contested French rules are still being applied today), then I consider that the Commission's view should be upheld, that is to say, it should be decided that the French rules constitute a restriction on freedom to provide services within the meaning of Article 59 EEC and that since the entry into force of Regulation 4055/86, which implemented freedom to provide services in maritime transport, such rules are no longer lawful. (a) Clearly the reply to the only relevant question, namely whether different, less favourable conditions for the levying of passenger tax apply to transport services crossing frontiers, such as those provided by the plaintiff between Corsica and Italy, with effect from the entry *234 into force of the decree of 12 May 1981 must be in the affirmative, because it is only in that case, unlike that of transport entirely within France, that passenger tax is levied both upon the arrival and upon the departure of the ship. It is therefore already clear that the measure before the Court is a restriction of freedom to provide services within the meaning of Article 59, because the same conditions do not apply to transport services crossing a frontier as are applied to those which are purely internal. The French Government's argument that transport services between Italian and Corsican ports cannot be compared to purely internal French services (because the economic conditions, such as the possibility of making duty-free purchases, liability to value added tax or the application of the rules applying to public utilities, are different) must be regarded as irrelevant since those are matters which are not covered by the rules under consideration and are moreover in part only loosely connected with the actual provision of transport services. (b) The Commission is also right when it says that it is possible that differing rules concerning the levying of passenger tax have an effect on the passengers' choice of route and therefore on the volume of traffic. Even if, as has been said, they are not directly passed on to the passengers, passenger taxes should be regarded as a factor in the calculation of costs which therefore influence competition, in regard to which the distance between the Italian and the French port probably does not play a decisive rôle. I must also agree with the Commission when it goes on to emphasise that the extent of the disadvantage to transport services between member-states (according to the amounts in question) is not decisive and the fact that the

8 measure involved is fiscal in nature is of no significance. On the first aspect reference may be made to the meaning of the principle of freedom to provide services, which quite simply requires the abolition of discrimination (as has been emphasised, for example, in the case law on freedom of estabishment--case 279/83 [FN9]), and regard should also be had to the case law on the abolition of restrictions on the free movement of goods, from which it is clear that even minor restrictions are unlawful (Joined Cases 51-54/71 [FN10]). FN9 Case 270/83, E.C. Commission v. France: [1986] E.C.R. 273, [1987] 1 C.M.L.R FN10 Joined Cases 51-54/71International Fruit Company v. Produktschap voor Groenten en Fruit (No. 2): [1971] E.C.R In relation to the second aspect, it is sufficient to draw attention to the judgment in Case 127/86 [FN11] (which was concerned with the problem of freedom of movement in connection with fiscal discrimination) and, once again, to the judgment in Case 270/83. FN11 Case 127/86, Ministère Public v. Ledoux: [1988] E.C.R With regard to the question whether discriminatory rules such as the French rule under consideration are contrary to Regulation 4055/86, *235 with the best will in the world I can detect no problem in the terms of the regulation, Article 1 of which quite clearly provides: Freedom to provide maritime transport services between member-states and between member-states and non-member 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 French Government's argument that traffic to and from Corsica is to be regarded as French coastal shipping and that freedom to provide services must first be applied in that respect, as a proposal for a regulation made by the Commission shows, is certainly not pertinent. If I have correctly understood the above-mentioned proposal for a regulation, the rules contained therein deal only with the abolition of obstacles in maritime transport within member-states (that is to say, as Article 1 puts it, transport by sea of passengers and goods between ports in one member-state). To that extent, that is to say, in regard to the right of undertakings whose registered office is in another member-state to provide such services, there is still a need for rules. However, the proceedings before the Cour de Cassation deal with transport between two member-states (Italy and France) and in that regard all that is necessary for the application of freedom to provide services is already contained in Regulation 4055/ On the basis of the foregoing, I propose that the Court should reply as follows to the question referred to it by the French Cour de Cassation: In Community law, prior to the entry into force of Regulation 4055/86, the member-states were not prohibited from levying charges, in connection with the

9 use by a ship of harbour installations situated in its island territory, on the arrival and departure of passengers coming from or going to a port in another member- State, although such charges were levied only on the departure of passengers from the island port in the case of travel between two ports in national territory. JUDGMENT [1] By judgment of 17 January 1989, which was received at the Court on 23 February 1989, the Cour de Cassation of the French Republic referred to the Court for a preliminary ruling under Article 177 EEC a question on the interpretation of the EEC Treaty, in particular Articles 59, 62 and 84. [2] Those questions arose in proceedings between Corsica Ferries France (hereinafter referred to as 'Corsica Ferries') and the Direction Générale des Douanes in regard to charges levied on the shipowner in 1981 and 1982 in respect of passengers embarked, disembarked or transferred in Corsican ports. *236 [3] In regard to those ports, section R of the French Code des Ports Maritimes, as amended by the Decree of 12 May 1981, levies a charge on all passengers travelling to Corsica from mainland France or Sardinia and a charge at an identical rate on all passengers travelling to or from a port situated in Europe or North Africa. [4] According to Corsica Ferries, that provision is contrary to Article 59 et seq. EEC inasmuch as it discriminates between ships plying between Corsica and ports in mainland France, who are not required to pay tax in respect of passengers who embark at a Corsican port, and ships, such as those of Corsica Ferries, plying between Corsica and ports in another State, which are subject to tax both on arrival in and departure from the Corsican port. [5] Since it considered that an interpretation of certain provisions of the EEC Treaty was necessary, the Cour de Cassation stayed the proceedings until the Court of Justice had given a preliminary ruling on the following question: Must the EEC Treaty, in particular Article 59, 62 and 84, be interpreted as meaning that a member-state is authorised, in connection with the use by a ship of harbour installations situated in its island territory, to levy charges on the embarkation and disembarkation of passengers when travelling to or arriving from a port situated in another member-state, whilst in the case of travel between two ports situated within national territory those charges are levied only on embarkation at the island port?. [6] Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. [7] In order to answer the question referred to the Court by the Cour de Cassation, it must first be pointed out that the French legislation at issue in the main proceedings may constitute a restriction on freedom to provide services within the Community within the meaning of Article 59(1) EEC in so far as it discriminates between persons providing transport services between a port situated in national territory and a port situated in another member-state of the

10 Community and persons providing transport services between two ports situated in national territory. [8] As the Court has decided on various occasions, the Articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited. [9] In the area of freedom to provide services such a restriction may, as the Court pointed out in Case 127/86, Ministere Public v. Ledoux, [FN12] result from national tax measures which affect the trader's exercise of that right. FN12 [1988] E.C.R [10] Although Article 59, guaranteeing freedom to provide services *237 within the Community, has been directly and unconditionally applicable since the expiry of the transitional period provided for in Article 8 of the Treaty, under Article 61(1) of the Treaty freedom to provide services in the field of transport is to be governed by the provisions of the title relating to transport (see Joined Cases /84, Ministere Public v. Asjes [FN13] and Case 4/88, Lambregts Transportbedrijf v. Belgian State. [FN14] FN13 [1986] E.C.R. 1425, [1986] 3 C.M.L.R FN14 [1989] E.C.R. 2583, [1991] 1 C.M.L.R. 351, At Paras. [8] & [9]. [11] It follows, as the Court pointed out in Asjes, [FN15] that in the transport sector the objective laid down in 1Article 59 of the Treaty of abolishing during the transitional period restrictions on freedom to provide services should have been attained in the framework of the common policy provided for in Article 74 and 75. FN15 At para. [37]. [12] With regard in particular to maritime transport, Article 84(2) of the Treaty provides that the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for that kind of transport. [13] It was only in Regulation 4055/86 applying the principle of freedom to provide services to maritime transport between member-states and between member-states and non-member countries, which entered into force on 1 January 1987, that the Council adopted, on the basis of Article 84(2) of the Treaty, the measures necessary to achieve freedom to provide services in maritime transport between member-states. [14] It must therefore be concluded that in 1981 and 1982, the period at issue in the main proceedings, freedom to provide services in maritime transport had not yet been implemented and that consequently the member-states were entitled to apply provisions such as those at issue in the main proceedings. [15] That conclusion is not weakened by the fact that those rules were reintroduced into the French Code des Ports Maritimes in 1981 after having been

11 repealed in In the light of the existence of Article 61(1) of the Treaty, Article 62, which prohibits the member-states from introducing any new restrictions on the freedom to provide services which had in fact been attained at the date of the entry into force of the Treaty, does not apply. [16] The answer to the question referred to the Court by the Cour de Cassation of the French Republic should therefore be that the EEC Treaty, in particular Articles 59, 61, 62 and 84, did not, before the entry into force of Council Regulation 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between member-states and between member-states and non-member countries, prevent a member-state from levying, in connection with the use by a ship of harbour installations situated within its island territory, charges on the embarkation and *238 disembarkation of passengers arriving from or going to a port situated in another member-state, whilst in the case of travel between two ports situated within national territory those charges were levied only on embarkation at the island port. Costs [17] The costs incurred by the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Second Chamber), in answer to the question submitted to it by the Cour de Cassation of the French Republic by judgment of 17 January 1989, HEREBY RULES: The EEC Treaty, in particular Articles 59, 61, 62 and 84, did not, before the entry into force of Council Regulation 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between member- States and between member-states and non-member countries, prevent a member-state from levying, in connection with the use by a ship of harbour installations situated in its island territory, charges on the embarkation and disembarkation of passengers arriving from or going to a port situated in another member-state, whilst in the case of travel between two ports situated within national territory those charges were levied only on embarkation at the island port. (c) Sweet & Maxwell Limited [1991] 2 C.M.L.R. 227 END OF DOCUMENT