JUDGMENT OF THE COURT (Fifth Chamber)

18 June 1998 (1)

(Freedom to provide services — Maritime transport — Undertakings holdingexclusive rights — Mooring services for vessels in ports — Compliance with thecompetition rules — Tariffs)

In Case C-266/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunaledi Genova (Italy) for a preliminary ruling in the proceedings pending before thatcourt between

Corsica Ferries France SA

and

Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl,

Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl,

Ministero dei Trasporti e della Navigazione,

on the interpretation of Articles 3, 5, 30, 59, 85, 86 and 90(1) of the EC Treaty andof Council Regulation (EEC) No 4055/86 of 22 December 1986 applying theprinciple of freedom to provide services to maritime transport between MemberStates and between Member States and third countries (OJ 1986 L 378, p. 1),

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet (Rapporteur),J.C. Moitinho de Almeida, J.-P. Puissochet and L. Sevón, Judges,

Advocate General: N. Fennelly,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Corsica Ferries France SA, by G. Conte and G. Giacomini, of the GenoaBar,

—    Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl, by A. Tizzano,of the Naples Bar, and F. Munari, of the Genoa Bar,

—    Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl, by S.M. Carboneand G. Sorda, of the Genoa Bar, and G.M. Roberti, of the Naples Bar,

—    the Italian Government, by Professor U. Leanza, Head of the Legal Service,Ministry of Foreign Affairs, acting as Agent, assisted by P.G. Ferri,Avvocato dello Stato,

—    the Commission of the European Communities, by G. Marenco, PrincipalLegal Adviser, and L. Pignataro, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Corsica Ferries France SA, represented byG. Conte and G. Giacomini, Gruppo Antichi Ormeggiatori del Porto di GenovaCoop. arl, represented by F. Munari, Gruppo Ormeggiatori del Golfo di La SpeziaCoop. arl, represented by S.M. Carbone, G. Sorda and G.M. Roberti, the ItalianGovernment, represented by G. Aiello, Avvocato dello Stato, and the Commission,represented by L. Pignataro, at the hearing on 6 November 1997,

after hearing the Opinion of the Advocate General at the sitting on 22 January1998,

gives the following

Judgment

1.

    By order of 5 July 1996, received at the Court on 2 August 1996, the Tribunale diGenova (District Court, Genoa), referred to the Court for a preliminary rulingunder Article 177 of the EC Treaty a number of questions on the interpretation ofArticles 3, 5, 30, 59, 85, 86 and 90(1) of the EC Treaty and of Council Regulation(EEC) No 4055/86 of 22 December 1986 applying the principle of freedom toprovide services to maritime transport between Member States and betweenMember States and third countries (OJ 1986 L 378, p. 1).

2.

    Those questions arose in proceedings between Corsica Ferries France SA(hereinafter 'Corsica Ferries‘) and Gruppo Antichi Ormeggiatori del Porto diGenova Coop. arl (the mooring group of the Port of Genoa, hereinafter 'theGenoa mooring group‘) and the Gruppo Ormeggiatori del Golfo di La SpeziaCoop. arl (the mooring group of the Port of La Spezia, hereinafter 'the La Speziamooring group‘) and the Ministero dei Trasporti e della Navigazione (Ministry ofTransport and Shipping).

3.

    Corsica Ferries is a company incorporated under French law which, since 1 January1994, has provided, in its capacity as a shipping company, a regular liner service bycar ferry between Corsica and various Italian ports, including Genoa and La Spezia.For this purpose it uses ferries flying the Panamanian flag on time charter fromTourship Ltd, which is established in Jersey. Corsica Ferries and Tourship Ltd areboth controlled by Tourship SA, a company incorporated under Luxembourg lawand established in Luxembourg. Over the period from 1994 to 1996 Corsica Ferriespaid to the Genoa and La Spezia mooring groups various sums in respect ofmooring services (mooring and unmooring of vessels) to which port stops made byvessels operated by it had given rise.

4.

    Corsica Ferries always attached express reservations to its payments, indicating thatthe requirement to avail itself of the services of the mooring groups constituted animpediment to the free movement of goods and to freedom to provide services andthat the sums it was being charged were calculated on a tariff which bore norelation to the actual services provided and had been adopted in breach of thecompetition rules of Community law.

5.

    On 2 July 1996, on the basis of Article 633 of the Italian Code of Civil Procedure,Corsica Ferries applied to the Tribunale di Genova for orders enjoining the Genoamooring group to pay a sum of LIT 669 838 425, the La Spezia mooring group asum of LIT 188 472 802, and, jointly and severally, the Ministry of Transport andShipping a sum of LIT 858 311 227, each sum to be paid with interest. Accordingto Corsica Ferries, such an order was justified because there was no legal cause forthe payments it had made. It put forward two lines of argument in this connexion.

6.

    First, the tariffs charged for mooring operations in the ports in point in the mainproceedings bore no relation to the cost of the services actually provided to vesselsby the mooring groups and, furthermore, varied from one port to another. This

meant that there was an impediment both to the freedom to provide services,which is guaranteed in the maritime transport sector by Regulation No 4055/86, andto the free movement of goods guaranteed by Article 30 of the Treaty.

7.

    Secondly, those payments had been imposed in breach of the competition rules ofthe Treaty. Not only were the tariffs the result of an agreement betweenassociations of undertakings, prohibited by Article 85 of the Treaty, but also theGenoa and La Spezia mooring groups were abusing their dominant position in asubstantial part of the common market, in breach of Article 86 of the Treaty, bycharging unfair tariff rates, by preventing shipping companies from using their ownqualified staff to carry out mooring operations, and by setting tariffs that variedfrom one port to another for identical services provided to identical vessels.

8.

    In support of its application for an order that the Italian Republic be made jointlyand severally liable for the payment of the sums which it claims are owed to it,Corsica Ferries claims that that State is liable because it did not intervene in orderto bring to an end the breaches of Community law of which it considers itself avictim.

9.

    From the legislation applicable to the case, it appears that mooring services aregoverned by the Codice della Navigazione (Shipping Code, hereinafter 'theCode‘), the Regolamento per la Navigazione Marittima (Regulation on MaritimeShipping, hereinafter 'the Regulation‘) and, for each port, by the provisionsadopted by the competent local maritime authority.

10.

    Under Articles 62 and 63 of the Code, the Port Harbour Master regulates andsupervises vessels' entry into and departure from the port as well as theirmovements, anchorage and mooring, orders berthing and unmooring manoeuvres,if need be orders, on his own initiative, the manoeuvres specified to be carried out at the vessel's own expense, and lastly orders the mooring ropes to be cut in anextreme emergency.

11.

    Pursuant to Article 116 of the Code, mooring operatives form part of the personnelassigned to port services. The rules specifically applicable to them are containedin Chapter VI (Articles 208 to 214) of the Regulation. Article 209 entrustsregulation of the mooring service to the Port Harbour Master, who is to ensurethat it is properly run in accordance with the needs of the port and may, inter alia,set up a mooring group in ports where there is such a need. Lastly, Article 212 ofthe Regulation provides that, in each port, tariffs relating to mooring services areto be fixed by the Head of the Maritime District.

12.

    The specific legislation applicable in the Port of Genoa consists of Regulation No759 of 1 June 1953, adopted by the President of the Consorzio Autonomo del Portodi Genova (Independent Consortium of the Port of Genoa), who set up the Genoamooring group, and the Regulation on Shipping Services and Port Police adoptedon 1 March 1972, Article 13 of which states:

'use of the services of mooring operatives for the mooring and unmooring ofvessels is optional ...

Nevertheless, where a vessel does not request the services of mooring operatives,mooring operations must be carried out solely by the crew of the vessel.‘

13.

    According to the national court, the second paragraph of that provision renders useof the services of the Genoa mooring group de facto compulsory.

14.

    The rules specifically applicable to the port of La Spezia are contained in DecreeNo 20 of 16 July 1968 of the Head of the Maritime District of La Spezia. Article1 of that decree sets up a group of operators responsible for mooring operations.According to Article 2, that group

'shall carry out berthing and unmooring services for vessels and ensure safety inthe port. The service in question is compulsory for vessels with a gross registeredtonnage of more than 500 tonnes. Vessels with a lower tonnage may carry out themanoeuvre in question using its own crew provided they do not hinder traffic anddo not compromise either the safety of the port or staff. It is strictly prohibited touse any other operative not belonging to the above group of operatives to providemooring services.‘

15.

    As regards the tariff rates for mooring operations, the account of these in the orderfor reference, given in the context of an ex parte summary procedure whichconsequently reproduces only the facts and legal arguments put forward by CorsicaFerries, differs from that given by the Genoa and La Spezia mooring groups, theItalian Government and the Commission. Notwithstanding the written question putby the Court to Corsica Ferries on that point, certain aspects have had to be leftunresolved, since the parties have maintained divergent interpretations in certainrespects.

16.

    According to the order for reference, there is no legislative text determining thecriteria to which the head of each maritime district must conform in fixing thetariffs for mooring services. Those tariffs are sometimes fixed after agreements havebeen reached between undertakings in the sector and are made enforceable by anadministrative measure.

17.

    According to the Genoa and La Spezia mooring groups, the Italian Governmentand the Commission, however, account must be taken of Law No 160/89 of 5 May1989 (GURI No 139 of 16 June 1989), which provides, in Article 9(7), that theMinister for the Merchant Navy is to adopt the rules harmonising tariffs for portservices and operations at national level, after consultation with the trade unionsmost representative in the sector at national level, the other sides of the industryand the companies concerned. The tariff restructuring thus provided for was inparticular regulated by Circular No 8/1994 of 19 September 1994 of the Minister

for the Merchant Navy, who determines the criteria to which the port authoritiesmust conform in fixing tariffs.

18.

    According to those same parties, the tariffs are thus calculated on the basis of aformula the purpose of which is to apportion the charges connected withperformance of the mooring service between the various classes of port users. Forthe purpose of applying the tariffs, users are allotted to different categories on thebasis of the gross tonnage of the vessel, and may claim reductions for certaincategories of vessel, such as car-ferries, or reductions linked to the frequency ofberthing. The level of the tariff, which is valid for two years, is calculated on thebasis of projected overall turnover for each mooring group, which itself depends onthe volume of traffic in the port. Before the decision of the port authority layingdown the tariff for each port is adopted, those concerned, on both the supply anddemand sides, may make known their point of view.

19.

    The tariffs for the ports of Genoa and La Spezia were published by decrees of 20October and 27 September 1994 respectively.

20.

    According to the Tribunale di Genova, the Genoa and La Spezia mooring groupsprovide services to Corsica Ferries, which itself offers services falling underRegulation No 4055/86, and those groups constitute undertakings, for the purposesof Article 90(1) of the Treaty, with exclusive rights in a substantial part of thecommon market. Since it entertained doubts as to whether the nature of theexclusive rights, the compulsory nature of the service, the basis on which tariffs aredrawn up and the amounts charged might constitute a barrier to intra-Communitytrade in goods and services and induce undertakings vested with those rights toabuse their dominant position to the detriment of trade between Member Statesas a result of the costs borne by the undertakings engaged in transport operationsbetween Member States, the national court decided, in consequence, to stayproceedings and refer to the Court for a preliminary ruling the following questions:

'(1)    Must Article 30 of the Treaty be interpreted as precluding legislation and/oradministrative practice in a Member State which debars shipping companiesestablished in other Member States from berthing their vessels on entry todocks in the first-mentioned State, or unmooring those vessels on departure,unless they use the services provided by a local undertaking by virtue of itsexclusive concession in respect of berthing and unmooring facilities, whichentails paying to that undertaking dues which may not be commensuratewith the actual cost of the services provided?

(2)    Does Council Regulation (EEC) No 4055/86 of 22 December 1986 inconjunction with Article 59 of the Treaty preclude the imposition in aMember State of a requirement whereby berthing services are obligatoryand shipping companies established in another Member State are chargedtariffs which are fixed not by law but merely by administrative discretion in

respect of the arrival or departure of their vessels in or from the first-mentioned Member State?

(3)    Do Articles 3, 5, 90(1), 85 and 86 of the Treaty, in conjunction, precludelegislation and/or administrative practice in a Member State which conferson an undertaking established in that State an exclusive right to provideberthing services such as to enable those services to be made compulsory,dues to be charged which may not be commensurate with the actual cost ofthe services provided, tariffs to be applied which have been determined byagreement and/or administrative discretion, and tariff conditions to beimposed which vary from one port to another, even for like services?‘

Admissibility

21.

    Both the Italian Government and the Genoa and La Spezia mooring groups havequestioned the admissibility of the questions referred on grounds relating, first, tothe nature of the proceedings before the national court and, secondly, to the lackof relevance of the questions with regard to the case before that court.

22.

    First, as far as the nature of the proceedings before the national court is concerned,the Italian Government points out that they are summary, ex parte proceedingswhich may be brought by anyone who is seeking enforcement on the basis ofwritten evidence for the purpose of obtaining a payment order without the otherparty being heard; any inter partes argument only takes place subsequently if theparty who has been ordered to pay objects to that order. According to the ItalianGovernment, the fact that the proceedings are not inter partes and it is impossibleto obtain any evidence other than the written evidence produced by the applicantprevents the Court from having before it the information necessary to enable it toreply to questions which, as they concern competition, relate to complex legal andfactual circumstances.

23.

    In that respect, it should be borne in mind that the Court has already held that thePresident of an Italian district court, adjudicating on an application in ex partesummary proceedings for which provision is made in the Italian Code of CivilProcedure, performs a judicial function within the meaning of Article 177 of theTreaty and that that article does not make the reference to the Court subject tothere having been an inter partes hearing in the proceedings in the course of whichthe national court refers the questions for a preliminary ruling (Case C-18/93Corsica Ferries [1994] ECR I-1783, paragraph 12, and the case-law cited therein).

24.

    It must, however, be added that in the context of such applications, it is equallynecessary that the national court give the Court a detailed and complete accountof the factual and legal context.

25.

    In this case the description of the factual and legal context does indeed appearinadequate in some respects, thus preventing the Court from replying to certain ofthe questions raised with the precision desired. Nevertheless, the information in thefile enables the Court to give a ruling although it will leave open certain aspects ofthe questions raised.

26.

    As regards the relevance of the questions raised, the Genoa and La Spezia mooringgroups have claimed that the application before the national court seeks to obtainreimbursement of all the sums paid to them by Corsica Ferries. Since they wouldin any event be entitled to obtain some remuneration since mooring services werein fact provided, the application by Corsica Ferries does not therefore fulfil one ofthe requirements laid down by Article 633 of the Italian Code of Civil Procedure,namely that there should be a debt that is certain. They conclude that the reply tothe questions referred will have no effect on the decision to be given on thedispute.

27.

    In that regard, it must be borne in mind that, as the Court has consistently held,it is for the national courts alone, before which the proceedings are pending andwhich must assume responsibility for the judgment to be given, to determine, havingregard to the particular features of each case, both the need for a preliminaryruling to enable them to give judgment and the relevance of the questions whichthey refer to the Court. A request for a preliminary ruling from a national courtmay be rejected only if it is quite obvious that the interpretation of Community lawsought by that court bears no relation to the actual nature of the case or thesubject-matter of the main action (see Case C-62/93 BP Supergas v Greek State[1995] ECR I-1883, paragraph 10, and Case C-143/94 Furlanis v Anas and Itinera[1995] ECR I-3633, paragraph 12). That is not, however, the case here.

28.

    The reference for a preliminary ruling is, accordingly, admissible.

Question 1

29.

    By its first question the national court asks, essentially, whether Article 30 of theTreaty precludes legislation of a Member State which requires shipping companieswhich are established in other Member States and whose vessels make port stopsin the first-mentioned State to use the services of mooring groups holding exclusiveconcessions, for a charge higher than the actual cost of the service provided. Thenational court asks whether, although not directly concerning goods, the legislationat issue in the main proceedings is contrary to Article 30 of the Treaty, inasmuchas its effect is to render transport more costly and therefore to impede imports ofgoods from other Member States.

30.

    It should be noted that, in the case in the main proceedings, the legislation applieswithout distinction to any vessel, Italian or otherwise, making a port stop in one ofthe ports in question. The requirement it lays down is that, for a charge, local

mooring services holding an exclusive concession for berthing and unmooring areto be used. As far as any effects of that requirement on the free movement ofgoods are concerned, it must be observed that, on the one hand, essentially whatis involved in this case is the provision of a maritime transport service concerningpersons as well as goods. On the other hand, even if only the transport of goodswere involved, the file on the case shows that, for a vessel, the price of mooringservices represents less than 5% of port costs which, in total, represent 12 to 14%of the cost of transport, making up from 5 to 10% of the cost of transportedproducts. The use of mooring services represents an additional cost for transportedproducts of approximately 0.05%.

31.

    Consequently, legislation such as that at issue in the main proceedings makes nodistinction according to the origin of the goods transported, its purpose is not toregulate trade in goods with other Member States and the restrictive effects whichit might have on the free movement of goods are too uncertain and indirect for theobligation which it imposes to be regarded as being capable of hindering tradebetween Member States (Case C-379/92 Peralta [1994] ECR I-3453, paragraph 24,and Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883, paragraph 41).

32.

    The answer to the first question must therefore be that Article 30 of the EC Treatydoes not preclude legislation of a Member State, such as that at issue in this case,which requires shipping companies which are established in other Member Statesand whose vessels make port stops in the first-mentioned Member State to haverecourse to the services of local mooring groups holding exclusive concessions, fora charge higher than the actual cost of the service provided.

Question 3

33.

    By its third question, which it is appropriate to examine before the second questionin order to make the best possible use of the information concerning the factualand legal context given in the file, the national court asks, essentially, whetherArticles 3, 5, 85, 86 and 90 of the Treaty preclude legislation in a Member Statewhich confers on undertakings established in that State an exclusive right to providemooring services, requires those services to be used for a charge higher than theactual cost of the services provided, and provides for tariffs that vary from one portto another for equivalent services.

34.

    The rules on competition laid down in the Treaty apply to the transport sector(Case C-185/91 Reiff [1993] ECR I-5801, paragraph 12, and Case C-153/93 DeltaSchiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 12).

35.

    Articles 85 and 86 of the Treaty are, in themselves, concerned solely with theconduct of undertakings and not with laws or regulations adopted by MemberStates. However, it is settled law that Articles 85 and 86, read in conjunction with

Article 5 of the Treaty, require the Member States not to introduce or maintain inforce measures, even of a legislative or regulatory nature, which may renderineffective the competition rules applicable to undertakings (Centro ServiziSpediport, cited above, paragraph 20, and the case-law cited therein).

Articles 86 and 90 of the Treaty

36.

    The national court asks whether there is an abuse, on the part of the Genoa andLa Spezia mooring groups, of their dominant position on a substantial part of thecommon market by virtue of the exclusive rights conferred upon them by the Italianpublic authorities.

37.

    There are three aspects to the abuse alleged in this case. It is said to reside in thegrant of exclusive rights to local mooring groups, preventing shipping companiesfrom using their own staff to carry out mooring operations, in the excessive natureof the price of the service, which bears no relation to the actual cost of the serviceprovided, and in the fixing of tariffs that vary from port to port for equivalentservices.

38.

    As regards the definition of the market in question, it appears from the order forreference that it consists in the performance on behalf of third persons of mooringservices relating to container freight in the ports of Genoa and La Spezia. Havingregard inter alia to the volume of traffic in those ports and their importance inintra-Community trade, those markets may be regarded as constituting a substantialpart of the common market (Case C-179/90 Merci Convenzionali Porto di Genova[1991] ECR I-5889, paragraph 15, and Case C-163/96 Raso and Others [1998] ECRI-0000, paragraph 26).

39.

    As far as the existence of exclusive rights is concerned, it is settled law that anundertaking having a statutory monopoly in a substantial part of the commonmarket may be regarded as having a dominant position within the meaning ofArticle 86 of the Treaty (Case C-41/90 Höfner and Elser v Macrotron [1991] ECRI-1979, paragraph 28; Case C-260/89 ERT v DRP [1991] ECR I-2925, paragraph 31;Merci Convenzionali Porto di Genova, cited above, paragraph 14; and Raso andOthers, cited above, paragraph 25).

40.

    Next, it should be pointed out that although merely creating a dominant positionby granting exclusive rights within the meaning of Article 90(1) of the Treaty is notin itself incompatible with Article 86, a Member State is in breach of theprohibitions contained in those two provisions if the undertaking in question,merely by exercising the exclusive rights granted to it, is led to abuse its dominantposition or if such rights are liable to create a situation in which that undertakingis led to commit such abuses (Case C-41/90 Höfner and Elser v Macrotron, citedabove, paragraph 29; Case C-260/89 ERT v DRP, cited above, paragraph 37; MerciConvenzionali Porto di Genova, cited above, paragraph 17; Case C-323/93 Centre

d'Insémination de la Crespelle [1994] ECR I-5077, paragraph 18; Raso and Others,cited above, paragraph 27).

41.

    It follows that a Member State may, without infringing Article 86 of the Treaty,grant exclusive rights for the supply of mooring services in its ports to local mooringgroups provided those groups do not abuse their dominant position or are not lednecessarily to commit such an abuse.

42.

    In order to rebut the existence of such abuse, the Genoa and La Spezia mooringgroups rely on Article 90(2) of the Treaty, which provides that undertakingsentrusted with the operation of services of general economic interest are to besubject to the competition rules contained in the Treaty only in so far as theirapplication does not obstruct the performance, in law or in fact, of the particulartasks assigned to them. Article 90(2) of the Treaty further provides that, in orderfor it to apply, the development of trade must not be affected to such an extent aswould be contrary to the interests of the Community.

43.

    They maintain that the tariffs applied are indispensable if a universal mooringservice is to be maintained. On the one hand, the tariffs include a componentcorresponding to the additional cost of providing a universal mooring service. Onthe other hand, the differences in the tariffs from one port to another, which,according to the file, result from account being taken, when the tariffs arecalculated, of corrective factors reflecting the influence of local circumstances —which would tend to indicate that the services provided are not equivalent — arejustified by the characteristics of the service and the need to ensure universalcoverage.

44.

    It must therefore be considered whether the derogation from the rules of theTreaty provided for in Article 90(2) of the Treaty may fall to be applied. To thatend, it must be determined whether the mooring service can be regarded as aservice of general economic interest within the meaning of that provision and, if so,first, whether performance of that particular task can be assured only throughservices for which the charge is higher than their actual cost and for which the tariffvaries from one port to another, and, secondly, whether the development of tradeis not affected to such an extent as would be contrary to the interests of theCommunity (see, to that effect, Case C-157/94 Commission v Netherlands [1997]ECR I-5699, paragraph 32).

45.

    It is evident from the file on the case in the main proceedings that mooringoperations are of general economic interest, such interest having specialcharacteristics, in relation to those of other economic activities, which is capable ofbringing them within the scope of Article 90(2) of the Treaty. Mooring groups areobliged to provide at any time and to any user a universal mooring service, forreasons of safety in port waters. At all events, the Italian Republic could properly

have considered that it was necessary, on grounds of public security, to confer onlocal groups of operators the exclusive right to provide a universal mooring service.

46.

    In those circumstances it is not incompatible with Articles 86 and 90(1) of theTreaty to include in the price of the service a component designed to cover the costof maintaining the universal mooring service, inasmuch as it corresponds to thesupplementary cost occasioned by the special characteristics of that service, and tolay down for that service different tariffs on the basis of the particularcharacteristics of each port.

47.

    Consequently, since the mooring groups have in fact been entrusted by the MemberState with managing a service of general economic interest within the meaning ofArticle 90(2) of the Treaty, and the other conditions for applying the derogationfrom application of the Treaty rules which is laid down in that provision aresatisfied, legislation such as that at issue does not constitute an infringement ofArticle 86 of the Treaty, read in conjunction with Article 90(1).

Article 85 of the Treaty

48.

    The national court also asks whether the process whereby the tariffs for themooring services are fixed is compatible with Article 85 of the Treaty.

49.

    The Court has already held that Articles 5 and 85 are infringed where a MemberState requires or favours the adoption of agreements, decisions or concertedpractices contrary to Article 85 or reinforces their effects, or where it deprives itsown rules of the character of legislation by delegating to private economicoperators the responsibility for taking decisions affecting the economic sphere(Centro Servizi Spediporto, cited above, paragraph 21, and the case-law citedtherein).

50.

    In that connection it must be pointed out, first, that the file on the case in the mainproceedings does not reveal the existence of an agreement, decision or concertedpractice within the meaning of Article 85 of the Treaty.

51.

    Although the mooring groups do constitute undertakings for the purposes of thatprovision, any agreement there may be between those groups at national level doesnot result in fixing a common price for all ports, since the tariff is calculated on thebasis of a mathematical formula to which are applied various corrective factorslinked to the characteristics of each port. Moreover, even if it were shown that theports compete with each other in a single geographical market, which is presumedto be the case in the order for reference, it remains difficult to discern therestrictive effects of any agreement, inasmuch as exclusive rights are granted ineach of the ports concerned and there is therefore no potential competitor to thelocal mooring group. Consequently, it is not evident from the file on the case in the

main proceedings that there is an agreement between undertakings the purpose oreffect of which is to restrict competition.

52.

    Nor, on the other hand, is it evident from the file that the Italian authorities havedelegated their powers with respect to the fixing of tariffs to the Genoa and LaSpezia mooring groups. In each of the ports concerned the tariffs for mooringservices have been fixed by the local maritime authority, pursuant to Article 212 ofthe Regulation, on the basis of a general formula determined at national level bythe public authorities after consultation, not only with the mooring groupsconcerned, but also with the representatives of users and shipping agents in theports of Genoa and La Spezia. The participation of the mooring groups in theadministrative procedure for drawing up the tariffs cannot be regarded as anagreement, decision or concerted practice between economic operators which thepublic authorities have required or favoured or the effects of which they havereinforced.

53.

    Accordingly, Article 85 of the Treaty does not preclude legislation such as that atissue in the main proceedings.

54.

    In the light of the foregoing considerations, the answer to be given to the thirdquestion must be that the combined provisions of Articles 5, 85, 86 and 90(1) of theTreaty do not preclude legislation of a Member State, such as that at issue in thiscase,

—    which confers on undertakings established in that State an exclusive right toprovide a mooring service,

—    which requires the service to be used at a price which, in addition to theactual cost of the service provided, includes a supplement to covermaintenance of a universal mooring service, and

—    which provides for tariffs that vary from one port to another in order totake into account each port's particular characteristics.

Question 2

55.

    By its second question, the national court asks, essentially, whether the combinedprovisions of Regulation No 4055/86 and Article 59 of the Treaty precludelegislation of a Member State from requiring shipping companies established inother Member States, when their vessels make a port stop in the first-mentionedMember State, to use, for a charge, the services of local mooring groups holdingexclusive concessions.

56.

    According to settled case-law, Article 59 of the Treaty requires not only theelimination of all discrimination against a person providing services on the groundof his nationality but also the abolition of any restriction, even if it applies withoutdistinction to nationals providing services and to those of other Member States,when that restriction is liable to prohibit or otherwise impede the activities of aprovider of services established in another Member State where he lawfullyprovides similar services (Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, andCase C-398/95 SETTG [1997] ECR I-3091, paragraph 16).

57.

    As the Advocate General pointed out at paragraph 35 of his Opinion, theimpugned legislation would not appear to contain any overt or covert discriminationcontrary to Article 59 of the Treaty and Article 9 of Regulation No 4055/86.

58.

    On the one hand, in the Port of Genoa the obligation to use the mooring servicesprovided by the Genoa mooring group applies to all shipping companies withoutdistinction. On the other hand, in the port of La Spezia, all operators of vesselswhose gross tonnage exceeds 500 must have recourse to the services of the LaSpezia mooring group. A company such as Corsica Ferries, which operates car-ferries, is therefore subject to the same obligation to use the mooring services asItalian transport companies using vessels of equivalent size.

59.

    As a preliminary point it should be noted that, as far as any impediment to thefreedom to provide mooring services is concerned, reference need merely be madeto the Court's reasoning, earlier in this judgment, regarding the application of thederogation from the rules of the Treaty which is provided for in Article 90(2) of theTreaty, to conclude that such an impediment, if it exists, is not contrary to Article59 of the Treaty since the conditions for application of Article 90(2) are satisfied.

60.

    With regard to the possible existence of a restriction on freedom to providemaritime transport services, it must be observed that the mooring serviceconstitutes a technical nautical service which is essential to the maintenance ofsafety in port waters and has the characteristics of a public service (universality,continuity, satisfaction of public-interest requirements, regulation and supervisionby the public authorities). Accordingly, provided that the price supplement inrelation to the actual cost of the service does indeed correspond to the additionalcost occasioned by the need to maintain a universal mooring service, therequirement to have recourse to a local mooring service, even if it were capable ofconstituting a hindrance or impediment to freedom to provide maritime transportservices, could be justified, under Article 56 of the EC Treaty, by the considerationsof public security relied on by the mooring groups, on the basis of which thenational legislation on mooring was adopted.

61.

    Consequently, the answer to the second question must be that the provisions ofRegulation No 4055/86 and Article 59 of the EC Treaty do not preclude legislationof a Member State, such as that at issue in this case, which requires shippingcompanies established in another Member State, when their vessels make port

stops in the first Member State, to have recourse to the services which localmooring groups holding exclusive concessions suppy for a charge. Such legislation,even if it constituted an impediment to freedom to provide maritime transportservices, would, in fact, be justified by considerations of public security within themeaning of Article 56 of the EC Treaty.

Costs

62.

    The costs incurred by the Italian Government and by the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the proceedings pendingbefore the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Tribunale di Genova by order of5 July 1996, hereby rules:

1.

    Article 30 of the EC Treaty does not preclude legislation of a MemberState, such as that at issue in this case, which requires shipping companieswhich are established in other Member States and whose vessels make portstops in the first-mentioned Member State to have recourse to the servicesof local mooring groups holding exclusive concessions, for a charge higherthan the actual cost of the service provided.

2.

    The combined provisions of Articles 5, 85, 86 and 90(1) of the EC Treatydo not preclude legislation of a Member State, such as that at issue in thiscase,

    —    which confers on undertakings established in that State an exclusiveright to provide a mooring service,

    —    which requires the service to be used at a price which, in addition tothe actual cost of the service provided, includes a supplement to covermaintenance of a universal mooring service, and

    —    which provides for tariffs that vary from one port to another in orderto take into account each port's particular characteristics.

3.

    The provisions of Council Regulation (EEC) No 4055/86 of 22 December1986 applying the principle of freedom to provide services to maritimetransport between Member States and between Member States and thirdcountries and Article 59 of the EC Treaty do not preclude legislation of aMember State, such as that at issue in this case, which requires shippingcompanies established in another Member State, when their vessels makeport stops in the first Member State, to have recourse to the services whichlocal mooring groups holding exclusive concessions supply for a charge.Such legislation, even if it constituted an impediment to freedom to providemaritime transport services, would, in fact, be justified by considerationsof public security within the meaning of Article 56 of the EC Treaty.

GulmannWathelet Moitinho de Almeida Puissochet Sevón

Delivered in open court in Luxembourg on 18 June 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: Italian.