JUDGMENT OF THE COURT (Sixth Chamber)

17 July 1997 (1)

(Maritime transport — Harbour duties on shipping and goods — Import surcharge— Abuse of a dominant position)

In Case C-242/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the ØstreLandsret (Denmark) for a preliminary ruling in the proceedings pending beforethat court between

GT-Link A/S

and

De Danske Statsbaner (DSB)

on the interpretation of Articles 9 to 13, 84, 86, 90 and 95 of the EEC Treaty,

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, J.L. Murray andP.J.G. Kapteyn (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

—    GT-Link A/S, by Anders Torbøl, of the Copenhagen Bar,

—    De Danske Statsbaner (DSB), by Ulrik Lett and Anne Rubach-Larsen, ofthe Copenhagen Bar,

—    the Commission of the European Communities, by Hans Peter Hartvig,Legal Adviser, Anders Christian Jessen, Enrico Traversa and Richard Lyal,of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of GT-Link A/S and the Commission at thehearing on 9 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 27 February1997,

gives the following

Judgment

1.

    By order of 30 June 1995, received at the Court on 11 July 1995, the ØstreLandsret referred to the Court for a preliminary ruling under Article 177 of the ECTreaty several questions on the interpretation of Articles 9 to 13, 84, 86, 90 and 95of the EEC Treaty.

2.

    Those questions were raised in proceedings between GT-Link A/S, a Danish limitedcompany which has operated ferry services since 1987 between Gedser (Denmark)and Travemünde (former West Germany) and since 1990 between Gedser andRostock (former East Germany), and De Danske Statsbaner, the Danish nationalrailway company ('DSB‘), concerning the harbour duties which DSB chargedGT-Link for the use of the port of Gedser, owned by DSB. In addition to railtransport, DSB, which belongs to the Danish State, operates ferry services out ofits ports, including Gedser.

3.

    In Denmark, authorization to establish a commercial port, that is to say, a harbourused for the commercial transport of goods, vehicles and persons, is granted by the

Minister for Transport. In accordance with the system of ownership and control,a distinction may be drawn between ports under local authority control, which areindependent bodies answerable to the local authority, the port of Copenhagen,

which has its own special legal status, the State-owned ports, operated either by theMinistry of Transport or by DSB, and private ports, which are operated by theirowners in accordance with the conditions laid down in the relevant authorization.

4.

    Part of the ports' revenue comes from duties paid for their use by users. Thusshipping and goods duties must be paid for berthing, and for embarking anddisembarking goods, vehicles or persons. Special duties are charged for the use ofcranes, warehouses and storage facilities.

5.

    Under Law No 239 of 12 May 1976 on commercial ports (Lovtidende A of 1976,p. 587, 'the 1976 Law‘), which applied until 31 December 1990, the competentminister, now the Minister for Transport, was responsible for setting the rate ofshipping and goods duties after negotiations with the management of thecommercial ports. It was ministerial practice to calculate the rates on the basis ofthe economic conditions obtaining in the 22 provincial ports regarded as being themost important in terms of commercial traffic volume and to set them so as toenable the ports to cover their operating and maintenance expenditure and toensure a reasonable degree of self-financing for necessary extensions andmodernization.

6.

    The shipping and goods duties were set out in regulations for each port drawn upin accordance with the common regulations prepared by the competent minister forall commercial ports.

7.

    Under the regulations applicable at the material time, shipping duty was payableby all ships and craft and all floating installations berthing in the port or in thedeep-water approach channels. It was calculated as a fixed amount according todeadweight tonnage or gross registered tonnage either each time the vessel put intoport or as an amount payable monthly. Vessels of under 100 deadweight or grossregistered tonnes were exempt from payment of shipping duty.

8.

    Goods duty was payable on all goods loaded, unloaded, or otherwise taken onboard or landed within the port or in the deep-water approach channels. Itrepresented a certain amount per tonne. There were exemptions and special ratesfor certain goods. In accordance with those rules, goods duty was to be paid by thevessel or its local agent before the ship's departure, but was ultimately borne by therecipient and sender respectively of the goods from whom reimbursement could beclaimed.

9.

    During the period relevant to the case in the main proceedings, a surcharge of 40%was added to the goods duty levied on goods imported from abroad. It appearsfrom the order for reference that that import surcharge of 40% was introduced inthe context of a general adjustment to the level of port duties made in 1956 in thelight of a report by the committee on rates of duty for ports and bridges set up bythe Ministry of Public Works in 1954.

10.

    According to that committee, the increase considered necessary in the rates of dutyshould apply to both shipping and goods duties, but had 'to be made in such a waythat its objective (increasing income for the ports) is not jeopardized throughcommercial traffic being totally or partially diverted from the ports with the resultthat goods are instead conveyed by road or rail‘. The committee on rates of dutyfor ports and bridges therefore proposed, so far as goods duty was concerned, 'toconcentrate on the turnover of foreign goods inasmuch as the greater part of thegoods which are imported into Denmark are most naturally transported by sea andthe danger that this business will be diverted from ports merely if the goods dutyis increased can therefore to some extent be discounted‘. The committee alsoconsidered that 'the most appropriate solution [was] that the extra revenue to begenerated through goods duty should be derived exclusively from an increase in theduty on imported goods‘, since the duty on imported goods such as fertilizers andfeedstuffs for agriculture and raw materials for industry was lower than duty onfinished products and an increase in duty on those imports would therefore have a much more limited effect on those sectors than an increase in duty on exports. Finally, the risk of domestic traffic deserting the ports in favour of land transportled the committee on rates of duty for ports and bridges to suggest, on the onehand, exempting small craft from the proposed increase in shipping duty and, onthe other, allowing vessels of up to 100 tonnes the lower rates usually allowed inrespect of vessels of less than 100 tonnes.

11.

    The import surcharge of 40% was abolished by the Minister for Transport witheffect from 1 April 1990.

12.

    Under Article 1(3) of the 1976 Law, the competent minister could decide toexempt certain ports from the application of the Law. That is what the ministerdid in respect of the ports belonging to DSB, including Gedser. However, byministerial regulation those ports were made subject to similar rules which setharbour dues at the same level as those prevailing for the commercial ports towhich the Law did apply.

13.

    Under the regulations applicable at the material time to the ports of Gedser andRødby, also owned by DSB, shipping duty for ferry traffic consisted of a monthlycharge on each vessel of 830 öre per deadweight or gross registered tonne, whichconferred the right to unlimited docking during the month in question. Subject totwo exceptions, goods duty came to 940 öre per tonne.

14.

    Those rules provided that in the case of goods conveyed by registered motorvehicles on ferry vessels operated by GT-Link on the Gedser-Travemünde route,goods duty was payable to DSB for the port of Gedser, on the basis of a weeklystatement to be submitted by GT-Link. The regulations also provided for DSB'svessels, including hired vessels, to be exempt from payment of port duties,irrespective of whether they were used as signal vessels or otherwise. In addition,vessels belonging to Deutsche Fähregesellschaft Ostsee mbH (DFO), a subsidiaryof Deutsche Bahn (DB), the German State railway, were also exempt from

payment of port duties, just as DSB's vessels were exempt from paying those dutiesin ports belonging to DB.

15.

    GT-Link's right to use the port of Gedser derived from a contract it had with DSB. The contract provided that GT-Link was liable to pay shipping and goods dutiesto the port in accordance with the regulations in force.

16.

    By application lodged on 27 September 1989 at the Østre Landsret, GT-Linksought repayment from DSB of the sum of DKR 30 396 000 in respect of the totalsum of port duties which it had paid between 18 February 1987 and 31 December1989 or, in the alternative, reimbursement from DSB of the import surcharge paidover the same period, totalling DKR 6 016 000.

17.

    In support of its main claim, GT-Link argued that the port duties levied by DSBwere contrary to Article 86 of the Treaty. It maintained that DSB, as the soleowner of the ports of Rødby and Gedser, occupied a dominant position on therelevant market, namely the supply of port services for ferries carrying road trafficbetween Denmark and Germany, and that DSB abused that dominant position bylevying excessively high port duties, as was borne out, in GT-Link's view, by theaccounts it had been obliged to reconstruct since DSB did not produce the relevantaccounting documents concerning the operation of the port of Gedser. In supportof its alternative claim, GT-Link submitted that the import surcharge of 40% of thegoods duty was contrary either to Articles 9 to 13, or to Article 95, of the Treaty.

18.

    DSB denied that the port duties it levied were incompatible with Article 86 of theTreaty. First, it claimed not to occupy any dominant position on the marketrelevant for the main proceedings, which is the operation of transport terminals forsea, land and air travel between Germany, on the one hand, and Denmark andSweden, on the other. It also maintained that GT-Link had not succeeded indemonstrating that the port duties were unreasonably high in relation to theservices supplied, since the accounts it reconstructed were based on inaccuraciesand in particular ignored the fact that levying port duties enables the owner of theport to secure sufficient revenue not only to cover the operating costs of the port,but also to finance renovation and renewal of port installations. Last, DSB arguedthat the port of Gedser was an undertaking covered by Article 90(2) of the Treatyand the port duties levied were necessary for performing the particular tasksassigned to it. With regard to GT-Link's alternative claim, DSB submitted thatArticles 9 to 13 and 95 of the Treaty were not relevant, since port duties should beassessed in the light of the Title of the Treaty dealing with transport. In thealternative, it denied that the port duties in dispute were incompatible with Articles9 to 13 or 95 of the Treaty.

19.

    Those were the circumstances in which the Østre Landsret decided to stayproceedings and to refer the following questions to the Court for a preliminaryruling:

'1.    Is a special surcharge of 40% of a goods duty which, as described in thisorder for reference, is ordinarily levied for the use of ports authorized bythe Danish Minister for Transport to operate as commercial ports to beregarded as coming under the EEC Treaty rules on the Customs Union,including Articles 9 to 13, or under Article 95 of that Treaty?

2.    Are the EEC Treaty rules on the Customs Union, including Articles 9 to 13,or Article 95, to be understood as meaning that it is incompatible with thoseprovisions to impose a special surcharge of 40% of the goods duty ordinarilylevied if that surcharge is imposed exclusively on goods imported fromoutside Denmark?

3.    If Question 2 is answered in the affirmative: under what conditions can sucha duty be justified on the ground that it represents consideration for aservice provided or on grounds of transport policy pursuant to the Title inthe EEC Treaty dealing with transport?

4.    If the special surcharge is held to be incompatible with the EEC Treaty,does that finding apply to the whole of that surcharge levied since theMember State's accession to the EEC Treaty or does it apply only to theincrease in the surcharge which came into effect after that date?

5.    Does Community law impose special requirements with regard to nationalrules on the burden of proving that the conditions of application of Article86 of the EEC Treaty have been satisfied?

6.    Where a public undertaking which owns and operates a commercial portoccupies a dominant position, is the levying by the commercial port of theduties described above and laid down by the Minister for Transport for theuse of public and private commercial ports capable of constituting an abuseof that position, contrary to Article 86 of the Treaty?

7.    If Question 6 is answered in the affirmative: do the persons or undertakingson whom the duty was imposed have any right under Community law toseek reimbursement or compensation?

8.    Where a public undertaking which owns and operates a commercial portoccupies a dominant position, does the fact that the commercial port doesnot impose the port duties described in this order for reference on its ownferry route or on that of its cooperation partner constitute an abuse of thatposition?

9.    If the answers to Questions 1, 2, 4, 6 and/or 8 are in the affirmative: are theparticular duties and tasks assigned to the defendant capable of justifyingits conduct in accordance with Article 90(2) of the Treaty?‘

The first four questions

20.

    In its judgment of today in Case C-90/94 Haahr Petroleum [1997] ECR I-0000 theCourt ruled, in answer to questions identical to the first four questions referred bythe same national court, that it is contrary to Article 95 of the Treaty for a MemberState to impose a 40% import surcharge on a general duty levied on goods loaded,unloaded, or otherwise taken on board or landed within its ports or in the deep-water approach channels to its ports where goods are imported by ship fromanother Member State.

21.

    The same answer must accordingly be given to the first four questions in this case.

Question 5

22.

    By this question, the national court seeks to ascertain whether Community lawimposes specific obligations with regard to national rules concerning the burden ofproving that the conditions for application of Article 86 of the Treaty have beensatisfied.

23.

    The application of Article 86 of the Treaty by the national authorities is, inprinciple, governed by national procedural rules (Case C-60/92 Otto v Postbank[1993] ECR I-5683, paragraph 14).

24.

    In the absence of Community rules governing a matter, it is for the domestic legalsystem of each Member State to designate the courts and tribunals havingjurisdiction and to lay down the detailed procedural rules governing actions forsafeguarding rights which individuals derive from the direct effect of Communitylaw. However, such rules must not be less favourable than those governing similardomestic actions or render virtually impossible or excessively difficult the exerciseof rights conferred by Community law (see, in particular, Case C-312/93 Peterbroeckv Belgian State [1995] ECR I-4599, paragraph 12, and the cases cited).

25.

    In accordance with those principles, the Court has previously held, in connectionwith repayment of charges levied by a Member State in breach of Community law,that any requirement of proof which has the effect of making it virtually impossibleor excessively difficult to secure that repayment is incompatible with Communitylaw (Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983]ECR 3595, paragraph 14).

26.

    The same principles apply where it is necessary to prove breach of a provision ofCommunity law which, like Article 86 of the Treaty, is capable of having directeffect.

27.

    Consequently, the reply to the fifth question must be that it is for the domesticlegal order of each Member State to lay down the detailed procedural rules,including those relating to the burden of proof, governing actions for safeguardingrights which individuals derive from the direct effect of Article 86 of the Treaty,provided that such rules are not less favourable than those governing similardomestic actions and do not render virtually impossible or excessively difficult theexercise of rights conferred by Community law.

Questions 6 and 8

28.

    By these two questions, which it is appropriate to consider together, the nationalcourt is asking in substance whether the fact that a public undertaking occupyinga dominant position, and which owns and operates a commercial port, levies portduties such as those at issue in the main proceedings, or waives those charges onits own ferry services and reciprocally on those of some of its commercial partners,is capable of constituting an abuse of that dominant position contrary to Article 86of the Treaty.

29.

    In order to answer those questions, it should first be noted that the order forreference states that DSB is a public undertaking responsible to the DanishMinistry of Transport and whose budget is governed by the Budget Law. Furthermore, DSB owns a number of commercial ports, including Gedser, fromwhich its own ferries ply.

30.

    In addition, although the ports belonging to DSB are in principle exempt fromapplication of the 1976 Law, pursuant to a decision of the Minister for Transport,it was by virtue of a ministerial regulation adopted by that same minister that theport duties in dispute were applied to the port of Gedser and that DSB's own ferryservices and those of some of its trading partners were exempted from payment ofthose duties.

31.

    Finally, in their observations before both the Court of Justice and the nationalcourt, as summarized in the order for reference, the parties in the mainproceedings discussed whether or not the level of port duties, as set by the Ministryof Transport, was reasonable.

32.

    Accordingly, in order to give a useful answer to the national court, it is necessaryto consider whether the practices mentioned in the sixth and eighth questions arealso compatible with Article 90(1) of the Treaty, which lays down the requirementsto be observed by the Member States in enacting measures or maintaining themin force, especially as regards public undertakings.

33.

    The Court has previously had occasion to rule that any measure adopted by aMember State which maintains in force a statutory provision that creates a situationin which a public undertaking cannot avoid infringing Article 86 of the Treaty is

incompatible with the rules of the Treaty (see, to that effect, Case C-41/90 Höfnerand Elser [1991] ECR I-1979, paragraph 27).

34.

    In particular, a Member State infringes the prohibitions laid down in Article 90(1)and Article 86 of the Treaty if, by adopting rules governing the port duties to bepaid for the use of ports belonging to a public undertaking, it induces thatundertaking to abuse the dominant position it occupies within the common marketor a substantial part of it (see, to that effect, Case C-18/93 Corsica Ferries [1994]ECR I-1783, paragraph 43).

35.

    In that context it should be noted, first, that the Court has held that an undertakingwhich has a legal monopoly in a substantial part of the common market may beregarded as occupying a dominant position within the meaning of Article 86 of theTreaty (Corsica Ferries, paragraph 40, and the case-law referred to therein). Suchis also the case where a public undertaking is the owner of a commercial port andon that ground has the sole right to levy in that port the duties payable for the useof port facilities.

36.

    Nevertheless, when considering the possibly dominant position of an undertakingwithin the common market or in a substantial part of it, the definition of themarket is of fundamental significance, as the Court has emphasized on manyoccasions (see in particular Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR3775, paragraph 25), as is the delimitation of the substantial part of the commonmarket in which the undertaking may be able to engage in abuses which hindereffective competition (see, inter alia, Case 27/76 United Brands v Commission [1978]ECR 207, paragraph 44).

37.

    As held in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889,paragraph 15, regard must be had in that context to the volume of traffic in theport in question and its importance in relation to maritime import and exportoperations as a whole in the Member State concerned.

38.

    Second, it should be noted that, according to Article 86(a) and (c), an abuse of adominant position may consist of directly or indirectly imposing unfair purchase orselling prices or other unfair trading conditions or applying dissimilar conditions toequivalent transactions with other trading parties, thereby placing them at acompetitive disadvantage.

39.

    The Court has ruled that 'unfair prices‘, for the purposes of Article 86(a), meansprices which are excessive because they have no reasonable relation to theeconomic value of the service supplied (see, to that effect, United Brands,paragraph 250).

40.

    It is for the national court to establish whether that is true of the level of portduties in dispute in the main proceedings.

41.

    The fact that a public undertaking which owns and operates a commercial portwaives those duties on its own ferry services and reciprocally on those of some ofits trading partners is likewise capable of constituting an abuse, in so far as withregard to the public undertaking's other trading partners it involves application ofdissimilar conditions to equivalent transactions, within the meaning of Article 86(c).

42.

    That would be the case as regards exemption of its own ferry services frompayment of duties, if it appeared that in its accounts the public undertaking did notallocate a sum equivalent to the total sum of port duties ordinarily payable to thatpart of its activity concerned with operating ferry services. In the absence oftransparent accounts, the fact that the prices charged for its ferry services areunusually low compared with those charged by competitor ferry companies couldconstitute evidence that there was no such allocation.

43.

    Reciprocal exemption of some of the public undertaking's trading partners frompayment of the duties could constitute breach of Article 86(c) if it was clear thatthe total amount of the duties ordinarily payable by those partners for the use ofthe public undertaking's port facilities for a given period was higher than theamount ordinarily payable by that undertaking for the port services which weresupplied to it over the same period in its trading partners' ports.

44.

    Third, Member States are liable under Articles 86 and 90(1) of the Treaty only ifthe abuse on the part of the public undertaking concerned was liable to affect tradebetween Member States. That does not mean that the abuse must actually haveaffected such trade: it is sufficient to establish that the conduct is capable of havingsuch an effect (see Höfner and Elser, paragraph 32).

45.

    The Court has already held that abusive practices which, like those at issue in themain proceedings, affect undertakings providing transport by sea between twoMember States, may affect trade between Member States (Corsica Ferries,paragraph 44).

46.

    In the light of those considerations, the reply to the sixth and eighth questions mustbe that where a public undertaking which owns and operates a commercial portoccupies a dominant position in a substantial part of the common market, it iscontrary to Article 90(1) in conjunction with Article 86 of the Treaty for thatundertaking to levy port duties of an unreasonable amount pursuant to regulationsadopted by the Member State to which it is answerable or for it to exempt frompayment of those duties its own ferry services and, reciprocally, some of its tradingpartners' ferry services, in so far as such exemptions entail the application ofdissimilar conditions to equivalent services. It is for the national court to determinewhether, having regard to the level of the duties and the economic value of theservices supplied, the amount of duty is actually unfair. It is also for the nationalcourt to determine whether exempting its own ferry services, and reciprocally thoseof some of its trading partners, from payment of duties in fact amounts to theapplication of dissimilar conditions to equivalent services.

Question 9

47.

    By this question the national court is essentially asking whether Article 90(2) of theTreaty permits a public undertaking which owns and operates a commercial portto levy for the use of port facilities port duties which are contrary to Communitylaw.

48.

    Article 90(2) provides that undertakings entrusted with the operation of servicesof general economic interest are subject to the rules of the Treaty, in particular tothe rules on competition, in so far as the application of such rules does not obstructthe performance in law or in fact of the particular tasks assigned to them, subjecthowever to the condition that the development of trade must not be affected tosuch an extent as would be contrary to the interests of the Community.

49.

    Accordingly, for the derogation from the Treaty rules provided for in Article 90(2)to apply, it must first be established whether the undertaking in question hasactually been entrusted with the operation of a service of general economic interestand, if so, whether application of the Treaty rules obstructs the performance of theparticular task assigned to it.

50.

    Since Article 90(2) is a provision which permits, in certain circumstances,derogation from the rules of the Treaty, there must be a strict definition of thoseundertakings which can take advantage of it (Case 127/73 BRT v SABAM and NVFonior [1974] ECR 313, paragraph 19).

51.

    In Case 10/71 Muller and Others [1971] ECR 723, paragraph 11, the Court held thatan undertaking which enjoys certain privileges for the accomplishment of the tasksentrusted to it by law, maintaining for this purpose close links with the publicauthorities, and which is responsible for ensuring the navigability of the State's mostimportant waterway, may fall within the definition of an 'undertaking entrustedwith the operation of services of general economic interest‘.

52.

    It does not follow, however, that the operation of any commercial port constitutesthe operation of a service of general economic interest or, in particular, that all theservices provided in such a port amount to such a task.

53.

    In Merci Convenzionali Porto di Genova, paragraph 27, the Court held that dockwork consisting of loading, unloading, transhipment, storage and general movementof goods or material of any kind is not necessarily of general economic interestexhibiting special characteristics compared with that of other economic activities.

54.

    Finally, even if it were possible to classify the mere provision of the portinfrastructure as being of general economic interest within the meaning of Article90(2), the fact remains that there is no evidence in the order for reference or the

observations submitted to the Court to suggest that application of Article 86 of theTreaty to the levying of port duties by DSB would be liable to obstruct theperformance of such a task.

55.

    The answer to the ninth question is therefore that Article 90(2) of the Treaty doesnot permit a public undertaking which owns and operates a commercial port to levyfor the use of port facilities duties which are contrary to Community law and whichare not necessary to the performance of the particular task assigned to it.

Question 7

56.

    By this question the national court asks whether, if the duties at issue in the mainproceedings are held to be incompatible with Article 90(1), read in conjunction withArticle 86, Community law confers on persons or undertakings who have beenrequired to pay such charges the right to claim reimbursement or compensation.

57.

    The first point to note in that context is that even within the framework of Article90, Article 86 has direct effect and confers on individuals rights which the nationalcourts must protect (Case 155/73 Sacchi [1974] ECR 409, paragraph 18, and MerciConvenzionali Porto di Genova, paragraph 23).

58.

    Second, the Court has consistently held (see, most recently, Joined Cases C-192/95to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects[1997] ECR I-165, paragraph 20) that entitlement to repayment of charges leviedby a Member State in breach of the rules of Community law is a consequence of,and an adjunct to, the rights conferred on individuals by the Community provisionsprohibiting such charges. The Member State is therefore in principle required torepay charges levied in breach of Community law, except where it is establishedthat the person required to pay such charges has actually passed them on to otherpersons (Comateb, paragraph 21, and cases cited therein).

59.

    The same reasoning applies in any event where duties are levied by a publicundertaking which is responsible to the Danish Ministry of Transport and whosebudget is governed by the Budget Law (see paragraph 29 of this judgment).

60.

    It should be emphasized, however, that traders may not be prevented from applyingto the courts having jurisdiction, in accordance with the appropriate procedures ofnational law, and subject to the conditions laid down in Joined Cases C-46/93 andC-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, for reparation ofloss caused by the levying of charges not due, irrespective of whether those chargeshave been passed on (Comateb, paragraph 34).

61.

    In the light of those considerations the answer to the seventh question must be thatpersons or undertakings on whom duties incompatible with Article 90(1) inconjunction with Article 86 of the Treaty have been imposed by a public

undertaking which is responsible to a national ministry and whose budget isgoverned by the Budget Law are in principle entitled to repayment of the dutyunduly paid.

Costs

62.

    The costs incurred by the Commission of the European Communities, which hassubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the action pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to questions referred to it by the Østre Landsret by order of 30 June1995, hereby rules:

1.    It is contrary to Article 95 of the EEC Treaty for a Member State to imposea 40% import surcharge on a general duty levied on goods loaded,unloaded, or otherwise taken on board or landed within its ports or in thedeep-water approach channels to its ports where goods are imported by shipfrom another Member State.

2.    It is for the domestic legal order of each Member State to lay down thedetailed procedural rules, including those relating to the burden of proof,governing actions for safeguarding rights which individuals derive from thedirect effect of Article 86 of the EEC Treaty, provided that such rules arenot less favourable than those governing similar domestic actions and donot render virtually impossible or excessively difficult the exercise of rightsconferred by Community law.

3.    Where a public undertaking which owns and operates a commercial portoccupies a dominant position in a substantial part of the common market,it is contrary to Article 90(1) in conjunction with Article 86 of the EECTreaty for that undertaking to levy port duties of an unreasonable amountpursuant to regulations adopted by the Member State to which it isanswerable or for it to exempt from payment of those duties its own ferryservices and, reciprocally, some of its trading partners' ferry services, in sofar as such exemptions entail the application of dissimilar conditions toequivalent services. It is for the national court to determine whether,having regard to the level of the duties and the economic value of theservices supplied, the amount of duty is actually unfair. It is also for the

national court to determine whether exempting its own ferry services, andreciprocally those of some of its trading partners, from payment of dutiesin fact amounts to the application of dissimilar conditions to equivalentservices.

4.    Article 90(2) of the Treaty does not permit a public undertaking whichowns and operates a commercial port to levy for the use of port facilitiesduties which are contrary to Community law and which are not necessaryto the performance of the particular task assigned to it.

5.    Persons or undertakings on whom duties incompatible with Article 90(1)in conjunction with Article 86 of the Treaty have been imposed by a publicundertaking which is responsible to a national ministry and whose budgetis governed by the Budget Law are in principle entitled to repayment of theduty unduly paid.

ManciniMurray Kapteyn

Delivered in open court in Luxembourg on 17 July 1997.

R. Grass

G.F. Mancini

Registrar

President of the Sixth Chamber

1: Language of the case: Danish.