Corsica Ferries France SA v. Gruppo Antichi Ormeggiatori del Porto di

Genova Coop. arl and Others (C-266/96)

Before the Court of Justice of the European

Communities

ECJ (Presiding, Gulmann P.; Wathelet (Rapporteur), Moitinho

de Almeida, Puissochet and Sevon, JJ.) Mr Nial Fennelly, Advocate General

18 June 1998

Reference from Italy by the Tribunale di Genova under Art. 177 E.C.

European court. Preliminary ruling. Admissibility. In the context of an Article 177 reference, it is for the national courts alone to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling may be rejected only if it is quite obvious that the interpretation of Community law sought by the court bears no relation to the actual nature of the case or the subject matter of the main action. [27] B.P. Supergas v. Greek State (C-62/93): [1995] E.C.R. I-1883; Furlanis V. Anas and Itinera (C-143/94): [1995] E.C.R. I-3633, applied. Imports. National law. Shipping. Given that the purpose of a national law requiring ships from other Member States to use the mooring services of local undertakings holding exclusive concessions is not to regulate trade between Member States, since it makes no distinction according to the origin of goods transported, and that its possible restrictive effects on the free movement of goods are too uncertain and indirect to hinder inter-State trade, such legislation is not caught by Article 30 E.C. [31] Peralta (C-379/92): [1994] E.C.R. I-3453; Centro Servizi Spediporto (C-96/94): [1995] E.C.R. I-2883; [1996] 4 C.M.L.R. 613, applied.

Restrictive practices. Dominant position. Relevant market. "Substantial part of the Common Market". Shipping. Where the relevant market for the purposes of Article 86 E.C. constitutes the performance on behalf of third persons of mooring services *403 relating to container freight in a Community port, having regard to the volume of traffic in that port and its importance in intra Community trade, that market may be regarded as constituting a substantial part of the Common Market. [38] Merci Conventionali Porto di Genova (C-179/90): [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422; Raso and Others (C-163/96): [1998] 4 C.M.L.R. 737, followed. Restrictive practice. Dominant position. State monopolies. An undertaking having a statutory monopoly in a substantial part of the Common Market, may be regarded as having a dominant position within the meaning of Article 86 E.C. Höfner and Elsner v. Macrotron (C-41/90): [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306; Ert V. Drp (C-260/89): [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540; Merci Conventionali Porto Di Genova (C- 179/90): [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422; Raso and Others (C-163/96): [1998] 4 C.M.L.R. 737, followed. Restrictive practice. Dominant position. Abuse. State monpolies. Shipping. Although merely creating a dominant position by granting exclusive rights within the meaning of Article 90(1) E.C. is not in itself incompatible with Article 86, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or when such rights are liable to create a situation in which that undertaking is led to commit such abuses. It follows that a Member State may, without infringing Article 86, grant exclusive rights for the supply of mooring services in its ports to local mooring groups provided those groups do not abuse their dominant position or are not led necessarily to commit such an abuse. [40]-[41] Höfner and Elsner v. Macrotron (C-41/90): [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306; Ert V. Drp (C-260/89): [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540; Merci Conventionali Porto Di Genova (C-179/90): [1991] E.C.R. I-5889, [1994] 4 C.M.L.R. 422; Centre D'insemination De La Crespelle (C-323/93): [1994] E.C.R. I-5077; Raso and Others (C-163/96): [1998] 4 C.M.L.R. 737 , followed. Restrictive practices. State monopolies. Universal services. Shipping. Mooring operations are of general economic interest, such interest having special characteristics, in relation to those of other economic activities, which is capable of bringing them within the scope of Article 90(2) E.C. [45]

Restrictive practices. National law. State monopolies. Universal services. Shipping. National legislation allowing undertakings which have been entrusted with the managing of a service of *404 general economic interest within the meaning of Article 91(2) E.C. (in casu: mooring services) to charge rates which are higher than actual cost and which are different from port to port does not infringe Article 86 in conjunction with Article 90(1) where the charge in question covers the maintenance of that universal service and represents the particular characteristics of each port. [46]-[47] Restrictive practices. Agreements. National authorities. Delegation of regulatory powers. Articles 5 and 85 E.C. are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions affecting the economic sphere. [49] Centro Servizi Spediporto (C-96/94): [1995] E.C.R. I-2883, [1996] 4 C.M.L.R. 613, applied. National law. Services. Public security. State monopolies. Universal services. Shipping. National legislation requiring shipping companies established in another Member State to use the mooring services of local undertakings which has been entrusted with the managing of a service of general economic interest within the meaning of Article 91(2) E.C. does not infringe Regulation 4055/86 and Article 59 E.C. where the conditions for application of Article 90(2) are satisfied. In any event, such legislation may be justified by considerations of public security under Article 56 where the mooring service constitutes a technical service essential to the maintenance of safety in port waters and has the characteristics of a public service. [59]-[60] Under Italian law ships from other Member States are required to use the services of local mooring companies which hold exclusive concessions in each port. The Court interpreted Articles 5, 30, 59, 85, 86 and 90(1) E.C. and Directive 4055/86 in proceedings for the recovery of sums paid to the mooring groups operating in the ports of Genoa and La Spezia to the effect that the legislation in question did not infringe Article 30 or Article 90(1) in conjunction with Article 86, that mooring is a service of general economic interest within the meaning of Article 90(2), that there was no breach of Articles 5 and 85 since the tariffs were calculated on the basis of a general mathematical formula determined at national level by public authorities after consultation with both the mooring groups and the users of the services and that given that the conditions contained in Article 90(2) were met, the legislation in question did not infringe Article 59 and Regulation

4055/86 but it would have been justified in any event under Article 56 by considerations of public security. Representation *405 G. Conte and G. Giacomini, of the Genoa Bar, for Corsica Ferries France SA. A. Tizzano, of the Naples Bar, and F. Munari, of the Genoa Bar, for Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl. S. M. Carbone and G. Sorda, of the Genoa Bar, and G. M. Roberti, of the Naples Bar, for Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl. Professor U. Leanza, Head of the Legal Service, Ministry of Foreign Affairs, acting as Agent, assisted by P. G. Ferri, Avvocato dello Stato, for the Italian Government. G. Marenco, Principal Legal Adviser, and L. Pignataro, of the Legal Service of E.C. Commission, acting as Agents, for the Commission. Cases referred to in the judgment: 1. BP Supergas v. Greece (C-62/93), 6 July 1995: [1995] E.C.R. I-1833. 2. Furlanis v. Anas and Itinera (C-143/94), 26 October 1995: [1995] E.C.R. I-3633. 3. Peralta (C-379/92), 14 July 1994: [1994] E.C.R. I-3453. 4. Centro Servizi Spediporto v. Spedizioni Marittima del Golfo (C-96/94), 5 October 1995: [1995] E.C.R. I-2883; [1996] 4 C.M.L.R. 613. 5. Bundesanstalt für den Gutterfernverkehr v. Reiff (C-185/91), 17 November 1993: [1993] E.C.R. I-5801; [1995] 5 C.M.L.R. 145. 6. Germany v. Delta Schiffahrts- und Speditions-Gesellschaft (C-153/93), 9 June 1994: [1994] E.C.R. I-2517. 7. Merci Convenzionali Porto di Genova v. Siderurgica Gabrielli (C- 179/90), 10 December 1991: [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422. 8. Silvano Raso and Others (C-163/96), 12 February 1998: [1998] 4 C.M.L.R. 737. 9. Höfner and Elser v. Macrotron (C-41/90), 23 April 1991: [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306. 10. Ert v. Dep (C-260/89), 18 June 1991: [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540. 11. Centre d'Insemination de la Crespelle v. Cooperative de la Mayenne (C-323/93), 4 May 1994: [1994] E.C.R. I-5077. 12. E.C. Commission v. Netherlands (C-157/94), 23 October 1997: [1997] E.C.R. I-5699. 13. Säger v. Dennemeyer & Co. Ltd (C-76/90), 25 July 1991: [1991] E.C.R. I-4221. 14. Settg v. Minister for Employment (C-398/95), 5 June 1997: [1997] E.C.R. I-3091; [1998] 1 C.M.L.R. 420.

Further cases referred to by the Advocate General: 15. Potente Carni and Cispadana Costruzioni v. Amministrazione delle Finanze dello Stato (C 71 & 178/91), 20 April 1993: [1993] E.C.R. I-1915 *406 . 16. Ligur Carni and Others v. Unita Sanitaria Locale N. XV di Genova (C 277, 318 & 319/91), 15 December 1993: [1993] E.C.R. I-6621. 17. Francovich and Others v. Italy (C 6 & 9/90), 19 November 1991: [1991] E.C.R. I-5337; [1993] 2 C.M.L.R. 66. 18. Brasserie du Pêcheur v. Germany and R. v. Secretary of State for Transport, Ex parte Factortame (C 46 & 48/93), 5 March 1996: [1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889. 19. Banchero (C-157/92), 19 March 1993: [1993] E.C.R. I-1085. 20. Dzodzi v. Belgium (C-297/88 & C-197/89), 18 October 1990: [1990] E.C.R. I-3763. 21. Politi v. Italy (43/71), 14 December 1971: [1971] E.C.R. 1039; [1973] C.M.L.R. 60. 22. Birra Dreher SpA v. Amministrazione delle Finanze dello Stato (162/73), 21 February 1974: [1974] E.C.R. 201. 23. Simmenthal v. Amministrazione delle Finanze dello Stato (70/77), 28 June 1978: [1978] E.C.R. 1453; [1978] 3 C.M.L.R. 670. 24. Leur-Bloem v. Inspecteur des Belastingdienst (C-28/95), 17 July 1997: [1997] E.C.R. I-4161; [1998] 1 C.M.L.R. 157. 25. Giloy v. Hauptzollamt Frankfurt AM Main-Ost (C-130/95), 17 July 1997: [1997] E.C.R. I-4291. 26. Union Laitiere Normande v. French Dairy Farmers (244/78), 12 July 1979: [1979] E.C.R. 2663; [1980] 1 C.M.L.R. 314. 27. Irish Creamery Milk Suppliers Association and Others v. Ireland and Others (36 & 71/80), 10 March 1981: [1981] E.C.R. 735. 28. Union Royale Belge des Societes de Football Association and Others v. Bosman and Others (C-415/93), 15 December 1995: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645. 29. Telemarsicabruzzo SpA v. Circostel and Ministero delle Poste E Telecomunicazioni and Ministero della Difesa (C 320, 321 & 322/90), 26 January 1993: [1993] E.C.R. I-393. 30. Falciola Angelo SpA v. Comune di Pavia (C-286/88), 26 January 1990: [1990] E.C.R. I-191. 31. Monin Automobiles (C-386/92), 26 April 1993: [1993] E.C.R. I-2049. 32. La Pyramide Sarl (C-378/93), 9 August 1994: [1994] E.C.R. I-3999. 33. Saddik (C-458/93), 23 March 1995: [1995] E.C.R. I-511; [1995] 3 C.M.L.R. 318. 34. Gerard Bresle v. Prefet de la Region Auvergne and Prefet du Puy-de-Dome (C-257/95), 2 February 1996: [1996] E.C.R. I-233. 35. Max Mara v. Ufficio del Registrio di Reggio Emilia (C-307/95), 21 December 1995: [1995] E.C.R. I-5083. 36. Banco de Fomento E Exterior SA v. Pechim and Others (C-326/95), 13 March 1996: [1996] E.C.R. I-1385; [1997] 1 C.M.L.R. 1029 *407 . 37. Sunino and Data (C-2/96), 20 March 1996: [1996] E.C.R. I-1543.

38. Italia Testa (C-101/96), 25 June 1996: [1996] E.C.R. I-3081. 39. Mario Modesti (C-191/96), 19 July 1996: [1996] E.C.R. I-3937. 40. Lahlou Hassan (C-196/96), 19 July 1996: [1996] E.C.R. I-3945. 41. Banco de Fomento E Exterior SA v. Pechim and Others (C-66/97), 30 June 1997: [1997] E.C.R. I-3757. 42. Celestini v. Saar-Sektkellerei Faber GmbH (C-105/94), 5 June 1997: [1997] E.C.R. I-2971; [1997] 3 C.M.L.R. 769. 43. Krüger v. Haupzollamt Hamburg-Jonas (C-334/95), 17 July 1997: [1997] E.C.R. 4517. 44. Phytheron International SA v. Jean Bourdon SA (C-352/95), 20 March 1997: [1997] E.C.R. I-1729; [1997] 3 C.M.L.R. 199. 45. Salonia v. Poidomani and Others (126/80), 16 June 1981: [1981] E.C.R. 1563; [1982] 1 C.M.L.R. 64. 46. Keck and Mithouard (C 267 & 268/91), 24 November 1993: [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 47. Prantl (16/83), 13 March 1984: [1984] E.C.R. 1299; [1985] 2 C.M.L.R. 238. 48. Stier v. Hauptzollamt Hamburg-Ericus (31/67), 4 April 1968: [1968] E.C.R. 235; [1968] C.M.L.R. 187. 49. E.C. Commission v. Denmark (C 47/88), 11 December 1990: [1990] E.C.R. I-4509. 50. Hessische Knappschaft v. Maison Singer et Fils (44/65), 9 December 1965: [1965] E.C.R. 965; [1966] C.M.L.R. 82. 51. Kerafina and Others v. Greece (C 134 & 135/91), 12 November 1992: [1992] E.C.R. I-5699; [1993] 2 C.M.L.R. 277. 52. Daniele Annibaldi v. Sindaco del Comune di Guidonia and Presidente Regione Lazio (C-309/96), 18 December 1997: [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187. 53. E.C. Commission v. Ireland (61/77), 16 February 1978: [1978] E.C.R. 417; [1978] 2 C.M.L.R. 466. 54. Job Centre Coop. arl (C-111/94), 19 October 1995: [1995] E.C.R. I-3361. 55. Reiseburo Broede v. Sandker (C-3/95), 12 December 1996: [1996] E.C.R. I-6511; [1997] 1 C.M.L.R. 224. 56. Alpine Investments v. Minister Van Financien (C-384/93), 10 May 1995: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209. 57. Societe Technique Miniere v. Maschinenbau Ulm (56/65), 30 June 1966: [1966] E.C.R. 235; [1966] C.M.L.R. 357. 58. Job Centre (C-55/96), 11 December 1997: [1997] E.C.R. I-7119; [1998] 4 C.M.L.R. 708 *408 . 59. Cali and Figli Srl v. Servizi Ecologici Porto di Genova SpA (C- 343/95), 18 March 1997: [1997] E.C.R. I-1547; [1997] 5 C.M.L.R. 484. 60. Ladbroke Racing v. E.C. Commission (C 359 & 379/95 P), 11 November 1997: [1997] E.C.R. I-6265; [1998] 4 C.M.L.R. 27. 61. Asia Motor France and Others v. E.C. Commission (T-387/94), 18 September 1996: [1996] E.C.R. II-961; 5 C.M.L.R. 537. 62. Somaco Sarl v. E.C. Commission (C-401/96 P), 7 May 1998: Not yet reported.

63. Sodemare and Others v. Regione Lombardia (C-70/95), 17 June 1997: [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591. 64. Meng (C-2/91), 17 November 1993: [1993] E.C.R. I-5751. 65. Bundesanstalt fur den Guterfernverkehr v. Gebruder Reiff GmbH (C-185/91), 17 November 1993: [1993] E.C.R. I-5801; [1995] 5 C.M.L.R. 145. 66. DIP and Others v. Comune di Bassano del Grappa and Comune di Chioggia (C 140-142/94), 17 October 1995: [1995] E.C.R. I-3257; [1996] 4 C.M.L.R. 157. 67. Pigs and Bacon Commission v. McCarren & Co. (177/78), 26 June 1979: [1979] E.C.R. 2161; [1979] 3 C.M.L.R. 389. 68. Apple and Pear Development Council v. Lewis (222/82), 13 December 1983: [1983] E.C.R. 4083; [1984] 3 C.M.L.R. 733. 69. BRT v. SABAM and NV Fornior (127/73), 21 March 1974: [1974] E.C.R. 313; [1974] 2 C.M.L.R. 251. 70. GT-Link A/s v. de Danske Statsbaner (C-242/95), 17 July 1997: [1997] E.C.R. I-4449; [1997] 5 C.M.L.R. 601. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Opinion of Mr Advocate General Fennelly

I --Introduction 1. In this case the Court has once again been asked to assess the compatibility with the Treaty rules on the free movement of goods and services and on competition of the Italian legislation governing ports. The reference concerns companies having exclusive rights at two of Italy's leading Mediterranean ports, where shipping companies are obliged to avail of their mooring services. It is in particular alleged that the fees charged are not compatible with Community law.

II --The legal and factual context

A --Factual background and procedure before the national court 2. Corsica Ferries France SA (hereinafter "Corsica Ferries" or "the plaintiff") is a French shipping company which, since 1 January 1994, *409 has provided a regular liner service for the carriage of goods and passengers between various Corsican ports and, inter alia, the Italian ports of La Spezia and Genoa. For this purpose, it has used four roll-on roll-off ferries, [FN1] acquired on a time-charter basis from a Jersey-based company, and which fly the Panamanian flag. [FN2] FN1 The vessels are thus modern car-ferries designed to permit vehicles to be driven directly on at the start of the voyage and off at the end of it. FN2 Both the charterer, Tourship Ltd and Corsica Ferries are controlled by Tourship SA, a company established in Luxembourg.

3. During the period 1 January 1994 to 29 February 1996 (hereinafter "the material period"), Corsica Ferries was obliged by maritime regulations to pay to the Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl and the Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl [FN3] sums in the respective amounts of 669,838,425 LIT and 188,472,802 LIT for the mooring services provided to it by those groups in respect of the calls made by its ferries at the ports of Genoa and La Spezia. Since the plaintiff considered the compulsory nature of the mooring services to be contrary to Community law, it made payment with the reservation that it did not accept the legality of the charge and might later seek its recovery. FN3 They will hereinafter be collectively described, for convenience, as "the mooring groups". When separate references are necessary, they will be described, respectively, as the "Genoan mooring group" and "the La Spezia mooring group". 4. On 2 July 1996 Corsica Ferries made an ex parte application to the Tribunale di Genova (District Court, Genoa, hereinafter "the national court") pursuant to Article 633 et seq. of the Codice di Procedura Civile (Code of Civil Procedure, hereinafter "the code") for an injunction against the mooring groups seeking repayment of the abovementioned sums, and jointly and severally, against the Ministero dei Trasporti e della Navigazione (Ministry of Transport and Shipping) for the total of the fees paid, plus interest. The plaintiff argued that the payments were unjustified because the services provided had not been requested by it, and that the charges imposed violated Community law relating to the freedom to provide services and the free movement of goods. It maintained that, notwithstanding the absence of binding national legislation, the tariffs were, in fact, obligatory. Furthermore, it contended that the port authorities, by approving tariffs agreed by the mooring groups themselves, facilitated the abuse by those groups of their exclusive rights at the ports in question and, thus, were responsible for breaches of Articles 85 and 86 of the Treaty. 5. The national court considered the following matters to be settled: (a) pursuant to Council Regulation 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, [FN4] as interpreted by the Court in Corsica Ferries, [FN5] *410 the registration of, or the flag flown by, vessels operated by the transport undertaking is not relevant; (b) in Community law, charges, even if made for services which are compulsory by law, must be proportional to the cost of the service actually provided [FN6]; (c) Member State legislation requiring undertakings to use the services of a local undertaking with an exclusive concession constitutes a barrier to imports [FN7]; (d) a Member State is in breach of the prohibitions laid down by the Community competition rules where an undertaking is induced, merely by exercising the exclusive rights conferred on it, to abuse its dominant position, or where those rights are liable to lead to a situation in which the undertaking is induced to

commit abuses of that kind [FN8]; (e) under Community law the Member States are liable for the harm caused to individuals as a result of infringements of Community law attributable to them. [FN9] FN4 [1986] O.J. L378/1; [1989] 4 C.M.L.R. 774 (hereinafter "the 1986 Regulation"). FN5 Case C-18/93, Corsica Ferries: [1994] E.C.R. I-1783, para. [29]. FN6 Reference is made to the Court's judgment in Joined Cases C 71 & 178/91, Ponente Carni and Cispadana Costruzioni: [1993] E.C.R. I-1915. FN7 The Court's judgment in Joined Cases C277, 318 & 319/91, Ligur Carni and Others: [1993] E.C.R. I-6621 (hereinafter "ligur carni") is cited in support of this proposition. FN8 Reference is made to Case C-179/90, Merci Convenzionali Porto di Genova: [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422 (hereinafter "porto di genova"). FN9 The national court refers to Joined Cases C 6 & 9/90, Francovich and Others [1993] E.C.R. I-5337; [1993] 2 C.M.L.R. 66 and Joined Cases C 46 & 48/93, Brasserie du Pecheur and Factortame: [1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889. 6. The national court has also taken the view, first, that a shipping company, established in one Member State and operating a regular liner service to another Member State, offers services "which are inherently of a cross-frontier nature", secondly, that the mooring groups, having been vested by the public administration with the exclusive right to provide compulsory mooring services in the ports of Genoa and La Spezia, are undertakings within the meaning of Article 90(1) of the Treaty and, finally, that those ports are "areas which constitute a substantial part of the Common Market".

B --The judgment of the national court

(i) The national legislative context 7. The national court describes mooring activities (l'attività di ormeggio) as consisting in "attaching a vessel that has arrived in port to the dock using appropriate lines and cables". [FN10] It points out that the Italian Codice della Navigazione (Shipping Code) [FN11] contains no provisions concerning this activity, apart from its Article 116(4) which indicates "that mooring operatives form part of the personnel assigned *411 to port services". However, the national court states that legal provisions concerning mooring services are contained in Articles 208 to 214 of Regolamento di Esecuzione al Codice di Navigazione

(Regulation for the application of the Shipping Code, hereinafter "the national regulation"). According to the national court: That Regulation, which is an administrative measure, indicates the technical qualifications prescribed for operatives engaged in mooring activities and entered on the prescribed registers, the powers of the harbourmaster for regulation of the service and the arrangements for provision of the service. FN10 The sufficiency of this description is strongly contested in the observations submitted to the Court, particularly in those of the mooring groups (see especially para. 38 below). FN11 Royal Decree 337 of 30 March 1942. Taking the view that no legal provision or regulation makes the mooring service compulsory, the national court states that "the tariffs provided for in Article 212 of the Regulation are laid down by the Head of the Maritime District", "and then by the Administrative Authority". [FN12] FN12 As we shall see, the views on who is really responsible for the fixing of the tariffs are disputed in the observations submitted to the Court; see paras 49-50 below. 8. The mooring services are provided by a single undertaking at both the ports of Genoa and La Spezia. The national court states that the Genoan mooring group was established by Decree 759 of 1 June 1953 of the president of the Consorzio Autonomo del Porto di Genova (Independent Consortium of the Port of Genoa, hereinafter "the CAP"), approving the regulations governing the mooring and unmooring of vessels. Although Article 13(1) of Order No. 2 of 1 March 1972 of the president of the CAP provides that the "use of the services of mooring operatives for the mooring and unmooring of vessels is optional", Article 13(2) nevertheless provides that "where a vessel does not request the services of mooring operatives, mooring operations must be carried out solely by the crew of the vessel". [FN13] Thus, according to the national court, the use of the services of the Genoan mooring group is rendered de facto compulsory. In contrast, as regards the Port of La Spezia, it points out that, under Article 2 of Decree No. 20 of 16 July 1968 of the Capo del Compartimento Marittimo di La Spezia (Head of the Maritime District of La Spezia), recourse to the services of the La Spezia mooring group is compulsory for vessels exceeding a gross tonnage of 500. [FN14] FN13 Quoted in the order for reference, emphasis in original. FN14 The exclusive position of the La Spezia group is effectively guaranteed by Article 25 of Decree No. 20, which, by reference to Article 1174 of the Shipping Code, penalises the execution of mooring operations whenever "persons in the employ of the [group]" are not used.

9. As regards the tariff-fixing role of "the Head of the Maritime District" and "the Administrative Authority" under Article 212 of the national regulation, [FN15] the national court states that, though "the law does not determine the criteria to be observed by the Administrative Authority in laying down the tariffs", they are sometimes "laid down in accordance with agreements concluded between the undertakings in *412 the sector and then brought into force by a measure adopted by the Public Administration ...". [FN16] FN15 See para. 7 above. FN16 It cites, by way of example, Decree No. 1074 of the president of the CAP of 12 August 1991.

(ii) The questions referred 10. Having regard to the nature of the exclusive rights enjoyed by the mooring groups, the compulsory nature of the services they provide and the basis on which their tariffs are drawn up and levied, the national court took the provisional view that the provisions and practices concerned may constitute a barrier to intra-Community trade in goods and services and induce undertakings vested with those rights to abuse their dominant position to the detriment of trade between Member States as a result of the costs borne by the undertakings engaged in transport operations between Member States. Accordingly, it decided to refer the following questions to the Court pursuant to Article 177 of the Treaty: 1. Must Article 30 of the Treaty be interpreted as precluding legislation and/or administrative practice in a Member State which debars shipping companies established in other Member States from berthing their vessels on entry to docks in the first-mentioned State, or unmooring those vessels on departure, unless they use the services provided by a local undertaking by virtue of its exclusive concession in respect of berthing and unmooring facilities, which entails paying to that undertaking dues which may not be commensurate with the actual cost of the services provided? 2. Does Council Regulation 4055/86 of 22 December 1986 in conjunction with Article 59 of the Treaty preclude the imposition in a Member State of a requirement whereby berthing services are obligatory and shipping companies established in another Member State are charged tariffs 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, 85, 86 and 90(1) of the Treaty, in conjunction, preclude legislation and/or administrative practice in a Member State which confers on an undertaking established in that State an exclusive right to provide berthing services such as to enable those services to be made compulsory, dues to be charged which may not be commensurate with the actual cost of the services provided, tariffs to be applied which have been determined by agreement and/or

administrative discretion, and tariff conditions to be imposed which vary from one port to another, even for like services?

III --Observations 11. Written and oral observations have been submitted by Corsica Ferries, the mooring groups, Italy and the Commission.

IV --The admissibility of the reference 12. In their written observations, the mooring groups and Italy have expressed reservations regarding the admissibility of the reference in the present case. Essentially, they contend that the details provided of *413 the factual circumstances, particularly as regards the services provided by the mooring groups and the provisions of national law, do not suffice to permit the Court to provide a useful answer. Italy, referring to the Court's judgment in Banchero, [FN17] stresses the particular importance of a detailed exposition of the legal and factual context where the questions referred concern complex issues, such as, in the present case, the application of the Community's competition rules. The mooring groups also assert that the use by Corsica Ferries of the ex parte or summary procedure under Article 633 of the Code in the main proceedings has resulted in the national court presenting a one-sided and artificial picture of the legal and factual situation to the Court. They contend that even the national law requirements, in particular, that the amount claimed be certain, are not satisfied in the present case, since, whatever view might be taken of the fees charged, some services were nevertheless provided to Corsica Ferries. Accordingly, even an answer by the Court favourable to Corsica Ferries would not simply enable the national court to order the repayment of the fees paid. The mooring groups, thus, contend that the utility of the reference for the proceedings before the national court is questionable, particularly as regards the Ministero dei Trasporti e della Navigazione, which, even if Corsica Ferries' substantive Community law claims were upheld, could not, in their view, simply be ordered, on the basis of the case law of the Court regarding Member State liability, to repay all of the fees levied on Corsica Ferries. [FN18] FN17 Case C-157/92: [1993] E.C.R. I-1085. FN18 Loc. cit., fn. 9 above. 13. The Commission, on the other hand, considers the reference to be admissible. In its view, the admissibility, in principle, of a reference in summary proceedings, such as under Article 633 of the Code, has already been decided by the Court in paragraph [12] of its judgment in Corsica Ferries. At the oral hearing, the Commission contended that, in any event, the observations submitted to the Court had furnished it with enough information to enable useful answers to be given to the questions referred. For its part, Corsica Ferries maintained at the hearing that the outline contained in the order for reference

sufficiently describes the legal and factual context of the dispute. 14. In the circumstances of the present case, I agree with the Commission that it follows, in particular from the principle declared by the Court in paragraph [12] of its judgment in Corsica Ferries, that a reference made in summary proceedings, such as those under Article 633 of the Code, is admissible. I endorse the view expressed by Advocate General Van Gerven in his Opinion in Corsica Ferries that; the basic philosophy underlying the preliminary rulings procedure is, [FN19] as pronounced consistently by the Court, that it constitutes "an instrument for co-operation between the Court of Justice and the national courts, whereby the Court of Justice provides the national courts with the criteria *414 for the interpretation of Community law which they need to dispose of disputes which they are called upon to resolve. [FN20] FN19 See para. 9 of his Opinion. FN20 See, for example, Joined Cases C 297/88 & C 197/89, Dzodzi: [1990] E.C.R. I-3763, para. [33]. 15. As early as 1971, the Court recognised, in Politi v. Italy, [FN21] what it confirmed three years later, in Birra Dreher, [FN22] namely, that references may be made even in ex parte proceedings. These decisions were made at a time when the Court adopted a more liberal and flexible attitude to references pursuant to Article 177 of the Treaty. The jurisdiction to make references at the ex parte stage nevertheless involves an issue of principle, though the Court has never suggested that its position should be changed. Beginning with Simmenthal, the Court accepted that "the interests of the proper administration of justice" might require that a reference be made only "after both sides have been heard". [FN23] However, the Court has always declared that "it is for the national court alone to assess whether that is necessary". [FN24] On the contrary, in paragraph [12] of its judgment in Corsica Ferries, which concerned a reference made by the Tribunale di Genova in proceedings brought by Corsica Ferries under Article 633 of the Code, the Court reaffirmed that Article 177: ... does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling, although it may be in the interests of the proper administration of justice that there has been such a hearing. FN21 Case 43/71: [1971] E.C.R. 1039, paras [3] and [4]. FN22 Case 162/73, Birra Dreher v. Amministrazione delle Finanze dello Stato: [1974] E.C.R. 201, at paras [2] and [3]. FN23 Case 70/77, Simmenthal v. Amministrazione della Finanze dello Stato: [1978] E.C.R. 1453; [1978] 3 C.M.L.R. 670, para. [10]. See also Ligur Carni, loc. cit., fn. 7 above, paras [15] and [16] of the judgment and paras 12 to 14 of

Darmon A.G.'s Opinion. FN24 See, respectively, Simmenthal and Ligur Carni, ibid., paras [11] and [16]. This restatement leaves no room for doubt as to the principle of the jurisdiction to entertain references for preliminary rulings made at the ex parte stage of national proceedings. 16. It does not automatically follow, however, that a reference made in the context of ex parte proceedings will always be admissible. The Court has, in response to particular problems presented by individual cases, identified a number of situations where it does not consider that it has jurisdiction. More to the point of the present case, it has in recent years, to quote from the Opinion of Advocate General Jacobs in Leur-Bloem; placed more emphasis on the need to give a ruling within the context of the factual situation of the case and has accordingly been more strict in demanding that national courts clearly specify the factual and legislative context in which a ruling is sought. [FN25] FN25 See his joint Opinion of 17 September 1996 in Case C-28/95, Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam *415 and Case C-130/95, Bernd Giloy v. Hauptzollamt Frankfurt AM Main-Ost: the Court gave two separate judgments on 17 July 1997; see [1997] E.C.R. I-4161; [1988] 1 C.M.L.R. 157 and [1997] E.C.R. I-4291 respectively. 17. In my opinion, the national court, when considering whether to refer in summary proceedings, should bear in mind the fact that it is often only on hearing the other side that the precise factual and legal context can be defined. Furthermore, in references made in ex parte proceedings, the defendant will have its first opportunity of presenting its side of the case before this Court, giving rise to a real risk that it will raise both factual and national law issues that have not been raised in the national proceedings, and thus creating grave difficulties for the Court. In Union Laitiere Normande, in 1979, the Court emphasised that "the need to afford a helpful interpretation of Community law [made] it essential to define the legal context in which the interpretation requested should be placed". [FN26] The Court recalled this dictum two years later when, in Irish Creamery Milk Suppliers Association v. Ireland, it was expressly asked, by the High Court of Ireland, to rule on the correctness of the exercise of the discretion to refer questions of interpretation before examining the facts. [FN27] Recalling its observation in Union Laitiere Normande, it suggested that [FN28]: From that aspect it might be convenient, in certain circumstances, for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so as to enable the latter to take cognisance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give.

FN26 Case 244/78 Union Latiere Normande v. French Dairy Farmers: [1979] E.C.R. 2663; [1980] 1 C.M.L.R. 314 para. [5]. FN27 Joined Cases C 36 & 71/80: [1981] E.C.R. 735, See Paras [6] and [7]. FN28 ibid., para. [6]. 18. However, it immediately went on to stress that: [T]hose considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case and which is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the Court. 19. The accepted point of departure for the stricter approach of the Court in demanding a full account of the factual and legal context, detected by Advocate General Lenz in Bosman, [FN29] is its decision in Telemarsicabruzzo. [FN30] In that latter case the Court apparently accepted Advocate General Gulmann's proposal for a "slightly more restricted attitude". [FN31] Thus, it did not content itself with a mere *416 reiteration of the need for specification of the "factual and legal context"; it took the further step of declaring that there was no need to answer the question referred. In the period of some five years since that decision, the Court has, not infrequently by order, ruled inadmissible a number of references from national courts. [FN32] In its order in Banchero, upon which Italy relies, the Court repeated its now well-known dictum that; the need to arrive at an interpretation of Community law which will be of use to the national court requires that that court should define the factual and legislative context of the questions which it refers or at least explain the assumptions of fact on which those questions are based. [FN33] FN29 Case C-415/93, Union Royale Belge des Societes de Football Association and Others v. Bosman and Others: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645 (hereinafter "bosman"), para. 73 of the Opinion. FN30 Joined Cases C 320, 321 & 322/90: [1993] E.C.R. I-393. However, Bernard and Sharpston, in a major recent article entitled "The Changing Face of Article 177 References" (1997) 34 C.M.L.Rev., pp. 1113 to 1171, identify Case C-286/88, Falciolo: [1990] E.C.R. I-191 as the real source of recent developments in the case law of the Court regarding aspects of the previous approach towards its jurisdiction under Article 177. FN31 ibid., para. 20 of the Opinion. FN32 See also, for example, Case C-386/92, Monin Automobiles: [1993] E.C.R. I-2049, Case C-378/93, La Pyramide: [1994] E.C.R. I-3999, Case C-458/93, Saddik: [1995] E.C.R. I-511; [1995] 3 C.M.L.R. 318, Case C-257/95, Bresle: [1996] E.C.R. I-233, Case C-307/95, Max Mara: [1995] E.C.R. I-5083, Case C-

326/95, Banco de Fomento E Exterior: [1996] E.C.R. I-1385; [1997] 1 C.M.L.R. 1029, Case C-2/96, Sunino and Data: [1996] E.C.R. I-1543, Case C-101/96, Italia Testa: [1996] E.C.R. I-3081, Case C-191/96, Modesti: [1996] E.C.R. I- 3937, Case C-196/96, Lahlou: [1996] E.C.R. I-3945 and Case C-66/97, Banco de Fomento E Exterior: [1997] E.C.R. I-3757. FN33 Loc. cit., para. 4 of the order. 20. In short, the admissibility, in principle, of a particular reference does not mean that the Court will always be in a position to respond to the questions referred. Having regard to the underlying purpose of Article 177, I would always emphasise, however, that exceptional circumstances must exist before the Court should refuse to answer questions referred. [FN34] The Court frequently reformulates the questions referred so as to orient its answers towards the really pertinent Community law issues raised, and seeks to supplement the information provided by the national court by reference to the observations of the parties and of the Commission (and, occasionally, other Community institutions) or to the intervention of the Member States. [FN35] FN34 See, in support of this view, the recent decision in Case C-105/94, Celestini v. Saar-Sektkellerei Faber: [1997] E.C.R. I-2971; [1997] 3 C.M.L.R. 769, para. [22]. In my Opinion in that case, I had expressed the view (para. 29) that the Court "... should refuse to answer questions referred, only in exceptional circumstances where it is very clear that no genuinely useful answer can be given". FN35 See, for example, Case C-334/95, Krüger: [1997] E.C.R. I-4517, para. [23]. 21. The Court was prepared in Corsica Ferries to accept that the "statement of facts" comprised in the order for reference could be supplemented by information contained in "the written and oral observations submitted to [it]". [FN36] Advocate General Van Gerven [FN37] had, however, advised that, in light of the insufficiency of the description of the national legal context and since an application under Article 633 of the Code had to concern an amount which was certain, only the questions pertaining to the alleged discrimination in the tariffs applied at the Port of Genoa were admissible. The Court essentially *417 followed his recommendation. [FN38] In the present case, the voluminous written observations, particularly those submitted by the defendants, have furnished the Court with extensive information concerning the nature of mooring services and about the relevant Italian law. It is difficult to exclude the possibility that the decision to refer questions at the ex parte stage has contributed to the uncertainties of fact and law which, thus, confront this Court. FN36 Para. [13]. FN37 See para. 11 and the first of his formal conclusions at para. 36 of his

Opinion. FN38 It endorsed the Commission's view regarding the limited nature of the action before the national court and, consequently, ruled that it was only necessary to answer the questions concerning the alleged tariff discrimination. 22. Where, in particular, the observations submitted to the Court reveal the possibility that a reference made might contain an incomplete, or even an incorrect, account of the relevant provisions of national law, the Court is placed in a very difficult position, since it is, in principle, bound by the national court's account. [FN39] Consequently, if that account is lacking in pertinent respects, the Court may be led to give its answers to the questions referred on a practically hypothetical or academic basis. Yet the Court, quite rightly, has always refused to answer purely hypothetical questions. [FN40] FN39 See, in this regard, Case C-352/95, Phyteron International: [1997] E.C.R. I-1729; [1997] 3 C.M.L.R. 199, paras [11] to [14]. FN40 See, for example, Case 126/80, Salonia v. Poidomani and Giglio: [1981] E.C.R. 1563; [1982] 1 C.M.L.R. 64, para. [6] and Bosman, loc. cit., fn. 28, para. [59]. 23. In the present case, it is clear that the first two questions referred effectively raise the compatibility of the tariffs with Articles 30 and 59 of the Treaty. This would appear to arise from the claim of the plaintiff in the main action to recover all of the fees paid by it to the mooring groups. The defendants contend, to my mind not unreasonably, that, as they have provided services to the plaintiff, they are entitled, on any view, to some payment and, accordingly, that the plaintiff's claim fails to satisfy the requirements of Article 633 of the Code. It seems, however, from the order for reference that the national court may, indeed, accede to the plaintiff's claim if the basis of imposition of charges is found to be incompatible with Community law. The consequences of such a ruling, including its possible incompatibility with the requirements of Italian procedural law, are a matter for the substantive and procedural law of that Member State. 24. I am, thus, of the opinion that all of the questions referred by the national court in the instant case are admissible and should be answered by the Court, except, as indicated above, where I do not think that the information provided in the order for reference, viewed in the light of the conflicting observations provided to the Court, is sufficient. I would also recommend that, in answering the questions referred, the Court draw attention in its judgment to the specific difficulties presented by references made in inaudite altere parte or summary proceedings in the context of safeguarding the *418 productiveness of the Article 177 procedure as an effective instrument for co-operation between the Court of Justice and the national courts.

V --Analysis

A --The first question

(i) Introduction 25. By its first question, the national court essentially wishes to know, particularly in the light of the judgment in Ligur Carni, whether it is compatible with Article 30 of the Treaty for Italian legislative or other rules to require shipping companies established in other Member States, and desirous of berthing vessels at Italian ports, to use the services of local mooring undertakings. Although not expressly couched in alternative terms, there is a second aspect to the question; namely whether the combination of the local undertaking's monopoly with the requirement of "paying to that undertaking dues which may not be commensurate with the actual cost of the services provided" ("versando a detta impressa corrispettiva anche sproporzionati rispetto al costo effettivo dei servizi resi") would be compatible with Article 30.

(ii) Observations 26. The plaintiff submits that, as a result of the monopoly granted to the mooring groups, it is obliged to pay significant sums for the provision of services of little or no value or use to it. It relies upon Ligur Carni to support its view that, as it also uses its ferries to transport goods from Corsica in France to Italy, the exclusive concessions granted to local mooring groups operate to render imports from another Member State "more burdensome and more difficult"; accordingly, it submits, the impugned national rules constitute a measure having equivalent effect to a quantitative restriction on imports contrary to Article 30 of the Treaty. [FN41] FN41 It could also be argued, although Corsica Ferries has not sought to do so in the present case, that they are incompatible with Article 34 of the Treaty as equivalent to a quantitative restriction on exports, since, presumably, it also carried Italian exports on its car-ferries during the material period. 27. The mooring groups submit that it would undermine the distinction that ought to exist between the field of application, on the one hand, of Article 30 and, on the other, of Article 59 if the former were regarded as capable of applying to national rules that are not intended to regulate trade in goods and that do not have any, other than wholly uncertain, indirect or aleatory, effects on the free movement of goods. They refer to the judgments, and Opinions of Advocates General Lenz and Léger respectively, in Peralta and Centro Servizi Spediporto v. Spedizioni Marittima del Golfo in support of their view that rules concerning the provision of transport *419 services cannot, merely because the object of the relevant transport service is goods, be regarded as falling within the scope of Article 30. [FN42] In this respect, they contend the incidence of the costs of the services which they provide on the final cost of imported products to be no more than 0.05 per cent. In the alternative, they submit that, even if Article 30 may apply in principle, the Court should apply its Keck and Mithouard [FN43] case law

and find that the impugned rules do not have as their object the regulation of trade and do not, in law or in fact, distinguish between imported and domestic products. FN42 See, respectively, Case C-379/92, Peralta: [1994] E.C.R. I-3453 and Case C-96/94: [1995] E.C.R. I-2883 (Hereinafter "Centro Servizi Spediporto"). The mooring groups refer, in particular, to paragraph 40 of the Opinion of Léger A.G. in Centro Servizi Spediporto where he referred, with approbation, to Lenz A.G.'s statement at paragraph 51 of his Opinion in Peralta that the demarcation should be based on the principle that "all situations in which the barrier to the movement of goods is merely the reflection of a barrier to (cross-border) services" must be regarded as being subject to the provisions of Article 59 of the Treaty. FN43 Joined Cases C 267 & 268/91: [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 28. The Commission is also of the view that Article 30 is inapplicable. In its written observations, it cites, inter alia, paragraphs [24] and [41] respectively of the judgments in Peralta and Centro Servizi Spediporto and, in particular, the Court's declaration that the purpose of "legislation which makes no distinction according to the origin of the goods transported" is not "to regulate trade in goods with other Member States and the restrictive effects which it might have on the free movement of goods are too uncertain and indirect in order for the obligation which it lays down to be regarded as being such as to hinder trade between Member States".

(iii) Analysis 29. I agree with the Commission and the mooring groups. The applicability of Article 30 of the Treaty to a national measure does not, of course, depend on the degree of its effect on trade. It is clear from the case law of the Court that no de minimis rule operates in respect of Article 30. [FN44] Nevertheless, the Court, both before and after its decision in Keck and Mithouard, has consistently required that rules that apply indistinctly to national and imported products must, if an impediment to trade for the purposes of Article 30 is to be established, have some protective effect. This may be illustrated by the judgments in Peralta and Centro Servizi Spediporto, for example, which concerned rules affecting, respectively, maritime and road-haulage transport operators but whose application was not linked to the origin of the goods transported. The Court took the view, notwithstanding the indirect and consequential effects of such rules on the cost of transporting imported products, that such rules could not be regarded, in principle, as falling within the scope of Article 30. I think that the *420 principles declared in that case law may be applied in the present case. A general obligation to employ the services of a local mooring group whenever a transport operator, regardless of its Member State of establishment, causes one of its ships to call at an Italian port cannot, in principle, be regarded as a measure having equivalent effect to a quantitative restriction.

FN44 See, for example, Case 16/83, Prantl: [1984] E.C.R. 1299; [1985] 2 C.M.L.R. 238, where the Court declared that, for Article 30 purposes, it was not necessary that an impugned measure have an appreciable effect on trade; see para. 20. 30. I think that the analogy made by Corsica Ferries to the obligation affecting the transporters of fresh meat in Ligur Carni is misconceived. Although the objective of the rules impugned in the instant case is, like in Ligur Carni, to reserve the provision of a service to undertakings themselves involved in providing services, there the similarity ends. In Ligur Carni the scope of the application of the impugned regional Italian rule was specific: municipal transport of meat from the local slaughterhouse to its final destination was either to be entrusted to a local transport undertaking or executed by the transporter responsible for having brought the meat to that municipality (from either other parts of Italy or other Member States) on payment of "a certain sum to the [local] undertaking holding the concession". [FN45] The Court took the view that this rule constituted a measure having equivalent effect to a quantitative restriction, "since its effect [was] to make importation of goods from other Member States more burdensome and more difficult ...". [FN46] In contrast, the scope of the impugned rules in the present case is general and, as the agent for the Commission aptly pointed out at the hearing, their application is not dependent upon the transport of any specific goods. Thus, the rules apply whenever a ship berths at an Italian port, regardless of what, if any, goods are transported thereon. The trigger for their application is the use, by the providers of maritime transport services, of Italian ports and, consequently, their effects on the cost of importing goods is entirely incidental. Therefore, I would reject Corsica Ferries' argument that the requirement to use the services of the local mooring group falls within the scope of Article 30 of the Treaty. FN45 See Ligur Carni, loc. cit., para. [36]. FN46 ibid., para. [38]. 31. The plaintiff maintains, in addition, that, since more imported than domestic goods are arguably transported to Italy by maritime means of transport, excessive fees for mooring services more gravely affect imports. Although such effects could, in theory, be sufficiently adverse for Article 30 to apply, [FN47] the national court has made no *421 findings in respect of the level of fees charged by the mooring groups. Consequently, I do not think that the Court has any information on which it can base an answer to that aspect of the first question. FN47 In Case 31/67, Stier v. Hauptzollamt Hamburg-Ericus: [1968] E.C.R. 235; [1968] C.M.L.R. 187, though admittedly in the context of a case concerned with internal taxation, the Court stated that the imposition of a charge "... of such an amount that the free movement of goods within the Common Market would be

impeded as far as those goods are concerned" would not be permitted ( [1968] E.C.R. 235, at p. 241). In Case C-47/88 E.C. Commission v. Denmark: [1990] E.C.R. I-4509, the Court noted, with reference to Stier, that "the only possibility of approaching an adverse effect of that kind on the free movement of goods" would be "by reference to the general rules contained in Articles 30 et seq. of the Treaty"; see para. [13]. 32. For the reasons stated above, I am satisfied that national rules such as those at issue in the instant case are not incompatible with Article 30 of the Treaty.

B --The second question 33. By its second question the national court wishes to know whether the exclusive concession given to the local mooring groups, combined with the claimed discretionary fixing of the tariffs, constitutes an impermissible restriction on the freedom to provide maritime transport services. I do not think that the manner in which the tariffs are fixed can, independently of the compatibility with Article 59 of the Treaty of the grant of the exclusive concession regarding mooring services, constitute a restriction on the freedom to provide services, although it may, of course, exacerbate the effects of any restriction that is found to exist in the grant of those concessions. Corsica Ferries, however, also refers to the possibility that the charging of excessive fees might constitute a breach by Italy of Article 90 in conjunction with Article 59. Since the national court has not raised this issue in its third question, I do not think that it would be either appropriate or necessary for the Court to address it in its answer. [FN48] FN48 The plaintiff, in its written observations on the second question, also raised the possibility that the imposition of excessive charges attributable to Italian public authorities could constitute a breach of Articles 9 and 12 of the Treaty. Since it is for the national court alone to determine what questions ought to be referred to the Court, the plaintiff's attempt to invoke Articles 9 and 12 of the Treaty is manifestly inadmissible: see, for example, Case 44/65, Hessische Knappschaft v. Singer: [1965] E.C.R. 965; [1966] C.M.L.R. 82, at p. 970, and Joined Cases C 134 & 135/91; Kerafina v. Greece and Others: [1992] E.C.R. I-5699; [1993] 2 C.M.L.R. 227, para. [16], as well as para. 13 of the Opinion of 2 October 1997 of Cosmas A.G. in Case C-309/96, Annibaldi v. Sindaco del Commune di Guidonia et Presidente Regione Lazio: [1997] E.C.R. I-7493; [1998] 2 C.M.L.R. 187.

(i) The prima facie application of the freedom to provide services 34. The Council, by the adoption of the 1986 Regulation, [FN49] as noted by the Court in Corsica Ferries, has applied the principle of freedom to provide services under Article 59 of the Treaty to maritime transport between Member States. [FN50] Moreover, the plaintiff, as a company established in France and controlled by a Luxembourg company and providing services in Italy, comes clearly within the scope ratione personae of Article 59 of the Treaty and Article 1

of the 1986 Regulation. [FN51] FN49 Regulation 4055/86, loc. cit., fn. 4 above. FN50 See, in particular, para. [26]. FN51 Under Article 1(4), the concept of "maritime transport services" shall be considered to comprise, inter alia, "intra-Community shipping services", to wit, "the carriage of passengers or goods by sea between any port of a Member State and any port or off-shore installation of another Member State".

*422 (ii) The existence of discrimination 35. Unlike in the earlier case of Corsica Ferries, the impugned rules in the instant case would not appear to contain any overt or covert discrimination contrary to Article 59 of the Treaty and Article 9 of the 1986 Regulation. On the one hand, at the Port of Genoa, the obligation to use the mooring services provided by the Genoan mooring group applies de facto to all shipping companies, whereas at La Spezia, on the other hand, all operators of vessels whose gross tonnage exceeds 500 must have recourse to the services of the La Spezia mooring group. Nevertheless, the plaintiff has referred to the fact that more national than non-national transport undertakings may operate vessels which escape the obligation to use the mooring group's services. [FN52] Although it is, thus, possible that the rules applicable at the Port of La Spezia might indirectly be discriminatory, I do not think that Corsica Ferries could rely on any such eventual discrimination. An undertaking such as the plaintiff which operates large modern car-ferries, cannot be compared with a hypothetical group of competing national transport undertakings operating vessels whose gross tonnage does not exceed 500. To my mind, in the absence of relevant findings of fact regarding the plaintiff's Italian competitors by the national court, such a comparison would not answer the question that has been referred in the present case. The 500-tonne threshold cannot, without more, be compared with the fishery-protection measures at issue in E.C. Commission v. Ireland, which applied to "scarcely any boats in the Irish fishing fleet". [FN53] The proper comparator for Corsica Ferries must be Italian transport undertakings using vessels of analogous size to its car-ferries. Since such Italian operators would be subject to the same tariffs as the plaintiff, no question of direct or indirect discrimination arises. FN52 In its oral observations, Corsica Ferries maintained, without being contradicted, that all vessels benefiting from the exemption are operated by Italian nationals or undertakings, either for the provision of local cabotage services or for fishing. FN53 Case 61/77: [1978] E.C.R. 417; [1978] 2 C.M.L.R. 466, para. [70].

(iii) The existence of a restriction on the freedom to provide services

36. Next, it is necessary to consider whether the exclusive concessions may, none the less, be considered to constitute a non-discriminatory restriction upon the freedom of transport undertakings like the plaintiff to provide maritime transport services to and from Italian ports.

(a) The nature of mooring services 37. Unfortunately, it is in respect of the nature of mooring services that the unilateral character of the presentation made to the national court, which is clearly reflected in its order for reference, is most striking. According to Corsica Ferries, the mooring operation consists *423 essentially of the tying and untying of a vessel using appropriate lines and cables [FN54] and amounts to no more than receiving ropes from the ship and fixing them to motoring posts on the dock and vice versa. FN54 See para. 7 above. 38. However, an entirely different picture emerges from the observations of the mooring groups. They strongly contest the commonplace description advanced by the plaintiff. They contend that the service constitutes one of the three technical nautical services provided at ports which are fundamental for maintaining safety in port waters and, furthermore, that it possesses all of the characteristics of a service provided in the public interest. [FN55] They refer, in particular, to the following aspects: (i) the correct mooring of the boat to the quay, including the securing of the boat to the mooring post; (ii) ensuring that the moored vessel remains fast at its berth during the entire duration of its stay in the port, and, in particular, when the loading and unloading of the passengers and goods transport thereon is in progress; (iii) intervening whenever it is necessary to modify or reinforce the mooring of the vessel, particularly whenever changeable weather conditions might necessitate moving it to another berth; (iv) ensuring before the vessel casts off that its proposed path out of the port is clear and, where there are obstacles, to remove them before the anchor is lifted; (v) to co-operate fully with the crew of the vessel during its exit from the port and until it reaches the open sea. FN55 The other two services are, in their view, piloting and tugging. They point out that these services must be provided on a 24-hour basis, 365 days per year and under the supervision of the appropriate maritime authorities, particularly the harbourmaster. In this respect, the harbourmaster may call upon the mooring groups to provide other assistance, in particular when dangerous weather conditions occur at the port. 39. In the light of the view I shall presently take regarding the issue of a restriction on the provision of services, it is unnecessary to express a view about

the competing descriptions. Nor would it be appropriate. That remains a matter for the national court. Obviously, protection against the risks to human life and health, as well as the environment, posed by reckless or negligent mooring and unmooring of ships, particularly at large and busy ports like Genoa and La Spezia, constitutes a legitimate policy goal for Member States to pursue in the absence of appropriate harmonising Community measures. [FN56] It is, of course, for the national court to determine if that objective is achieved, *424 or better achieved, by the grant of exclusive mooring-services concessions. FN56 The first step towards the development of a Community-wide policy was taken by the Commission with the publication, on 24 February 1993, of a communication entitled "Towards a Common Maritime Security Policy"; see COM(93) 66 final.

(b) Observations on the existence of a restriction 40. The plaintiff contends essentially that, as a French company providing maritime transport services between Corsica and Italy, the obligation to use the services provided by the local mooring groups constitutes a restriction on its freedom to provide cross-border services, whereas, at French ports, such services are optional. The mooring groups rely particularly on the view of Advocate General Elmer in Job Centre that the Keck and Mithouard line of case law developed by the Court in respect of Article 30 of the Treaty could equally be applied to Article 59 of the Treaty. [FN57] Thus, since the impugned rules are not intended to regulate trade in services and since their effects thereon all occur in Italy and affect all providers of maritime transport services equally, they do not restrict the provision of such services and, hence, fall outwith the scope of Article 59. The Commission is in general agreement with this view. [FN58] FN57 Case C-111/94, Job Centre: [1995] E.C.R. I-3361, para. 27 of the Opinion. FN58 In its view, the increased costs which may result from the impugned rules do not affect the costs of services provided by non-Italian undertakings more adversely than those of domestic maritime transport undertakings.

(c) Analysis 41. It must first be noted that the supposed restriction in the present case does not relate to the provision of mooring services. Corsica Ferries, while asserting the right to use its own trained crews and the modern equipment present on its well appointed car ferries in order to berth its own ferries, has not claimed that the grant of exclusive concessions in Italy to local mooring groups constitutes, per se, a restriction on the freedom to provide cross-border mooring services at Italian ports. The restriction that it has alleged relates, instead, to the provision of maritime transport services and comprises essentially the de jure or de facto prohibition affecting maritime transport operators, of providing themselves for the berthing of their ships and, in particular, the additional costs which compulsory

recourse to local mooring groups may entail. 42. The Court has consistently held that: Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services. [FN59] FN59 See, for example, Case C-76/90, Säger: [1991] I-4221, para. [12] and Case C-398/95, Settg: [1997] E.C.R. I-3091, para. [16]. It is difficult to formulate an objective definition of the sorts of *425 national measures that are capable of constituting such "restrictions". In its recent judgment in Reisebüro Broede v. Sanker, they were formulated as those which, though applicable equally to national and non-national providers of services, were, none the less, "... liable to prohibit, impede or render less advantageous the activities of a provider of a service established in another Member State where he lawfully provides similar services". [FN60] FN60 See, for example, Case C-3/95: [1996] E.C.R. I-6511; [1997] 1 C.M.L.R. 224 (Hereinafter "Reisebüro Broede"), Para. [25]. 43. In cases like Säger and Reisebüro Broede the national rules involved the Member State, on whose territory the service-provider wished to provide a particular service, prohibiting its provision in the absence of the possession of qualifications which were not required by the Member State of establishment of the service-provider. It is easy to see that such rules, though non-discriminatory, may constitute restrictions on the freedom to provide cross-border services. On the one hand, as the Court noted in Reisebüro Broede, they may make it impossible to provide the service in the host Member State, since the activities there of the foreign service-provider are provided on a purely temporary basis. [FN61] In cases like Säger, on the other hand, the obligation imposed on the service-provider, who remains in its own Member State, to obtain a licence from the Member State of receipt of the service, that is itself dependent on possession of a particular (national) diploma in that State, is equally capable of impeding access to the relevant market. National service-providers are likely to be better placed to adapt their activities to the requirements of such a measure. Thus, the detrimental effects of a rule, such as that involved in Settg, where a Greek law imposed a mandatory legal form of employment relationship on non-national tour guides desirous of occasionally providing services on a self-employed basis in Greece, was unmistakable. [FN62] In the words employed by the Court in Alpine Investments, such rules "directly affect [...] access to the market in services in ... other Member States and [are] thus capable of hindering intra-Community trade in services". [FN63]

FN61 See, ibid., para. [27]. FN62 Cited in fn. 58 above: see, in particular, paras [17] and [18] of the judgment and para. 27 of the Opinion of Lenz A.G. FN63 Case C-384/93: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209, para. [38]. 44. I think that the measures in the present case are much closer to those discussed in Peralta. Their effects on the freedom to provide services are too remote and indirect to be capable of directly affecting access to the market in the provision of maritime transport services. The requirement to use the services of local mooring groups does not subject the provision of the services at issue, namely the maritime transport services, to any conditions other than the compulsory use of an incidental service. In the absence of any relevant findings of fact by *426 the national court, I am not satisfied that any "restriction" for the purposes of Article 59 of the Treaty subsists in the instant case. [FN64] FN64 Indeed, even if the national court were ultimately to find that the mooring groups provide a purely routine service, there is no reason to suppose that the effects of what would then have to be classified as excessive tariffs would bear more onerously upon non-national as opposed to national maritime transport operators. 45. In the light of this conclusion, I do not find it necessary to consider whether the alleged restriction can be justified.

C --The third question

(i) Introduction 46. The third question referred by the national court raises the possible application, on the one hand, of Article 85 in conjunction with Article 5 and, on the other, of Article 86 in conjunction with Article 90(1) of the Treaty. First, the national court wishes to know whether Article 85, in conjunction with Article 5 of the Treaty is opposed to national legislation obliging users of ports to pay tariffs for mooring services that have been agreed by all of the individual members of a national association of mooring-service providers. Secondly, it wishes to ascertain whether national rules are compatible with Articles 86 and 90(1), read in conjunction, where they not only confer, de jure or de facto, a monopoly in respect of the provision of mooring services at ports but also permit the individual grantees of such concessions, at ports of such size and importance for intra-Community trade as Genoa and La Spezia, effectively to charge tariffs that are out of proportion to the actual cost of providing the mooring services in question, and, moreover, that vary from port to port. Having regard to the statement of the national court that Italian "law does not determine the criteria to be observed" by the appropriate public authorities "in laying down the tariffs", as well as the central complaint that those tariffs result from an anti-competitive agreement

between the various providers of mooring services in Italy, I must begin by summarising the diametrically opposing accounts of the tariff-determination process furnished effectively only in the observations submitted to the Court.

(ii) The rules governing the formulation of mooring tariffs 47. The view expressed by the national court [FN65] is that the appropriate administrative authorities sometimes adopt and subsequently render compulsory the mooring tariffs as devised under "agreements concluded between the undertakings in the sector ...". The plaintiff fully supports this assessment. The relevant agreement, in its view, was entered into on 26 July 1990 by ANGOPI (the association of mooring groups) and by the Comita Utenza Portuale (the representatives of certain associations of undertakings which use port services). [FN66] *427 According to Corsica Ferries, the parties to that agreement, on 20 September 1990, requested the Ministro della Marina Mercantile (Minister for the Merchant Navy) to adopt "without delay the measures necessary to ensure the application of the agreement". On 15 May 1991, the Minister replied to the effect that the determination of the tariffs was a matter for agreement between the providers of mooring services. [FN67] Consequently, Corsica Ferries submits that the Italian authorities effectively divested themselves, at least during the material period, of the powers which they possessed under Article 212 of the national regulation and confined themselves to approving and rendering compulsory tariffs drawn up pursuant to a private agreement. FN65 See para. 9 above. FN66 Corsica Ferries states in its written observations that the port users who are parties to the agreement include shipping agents, forwarders and representatives of shipowners. In its opinion, the excessive tariffs agreed have little effect on such users since, in reality, they affect principally the providers of maritime transport services. FN67 See Telegram 5201974 (hereinafter "the Telegram"), a copy of which was annexed to the written observations of the plaintiff. 48. The mooring groups, Italy and the Commission contradict this assessment in their observations to the Court. The mooring groups assert that the tariffs are adopted by the Ministero dei Trasporti e della Navigazione both directly and through its various decentralised organs. That ministry adopts, by decision, a framework (il modello organizzativo) for the determination of the tariffs at each Italian port, having regard to both the number of mooring enterprises and the equipment which they must acquire in order to provide the services, as well as the universal, public-service nature of those services. Since both the mooring groups and all groups representing port users are involved in the discussions preceding the fixing of the tariffs, it is contended that the process is fully transparent and objective. Law 160/89 of 5 May 1989 (hereinafter "the 1989 Law") lays down a number of provisions in respect of maritime transport and

concessions. [FN68] The mooring groups contend that, under Article 9 of the 1989 Law, an objective "cost-plus" system of tariff-determination was established; namely one whereby tariffs were determined essentially in accordance with the gross tonnage of the vessel, with discounts being permitted for frequent users of port facilities, such as car ferry operators like Corsica Ferries. The purpose of the "cost-plus" system is to allocate the costs involved in providing a universal mooring service on a proportional basis among the various users of the port. [FN69] The principles underlying this system were, during the material period, set out in various ministerial circulars. [FN70] It would appear that Decree 1453 of 20 October 1994 of the CAP of Genoa and Order 231 of 27 September 1994 of the Head of the Maritime District of La Spezia conform with the provisions set out in *428 the circulars and, accordingly, provide for a bracket-rate system of tariffs. [FN71] FN68 G.U.R.I., No. 103 of 5 May 1989. FN69 The mathematical formula used is said to take into account all expenditure incurred in the provision of mooring services, including salaries based on the national legal minimum wage, alongside various allegedly objective correction factors. FN70 Namely, Circulars 95/1990 and 98/1991 of the Ministry of the Merchant Navy, repealed lastly by Circular 8/1994 of 29 September 1994. FN71 Thus, according to the written observations of the Commission, under Decree 1453 at the Port of Genoa the minimum rate of 30,000 LIT applied to boats with a gross gauge of between 0 and 250 tonnes, while the maximum rate of 2,631,000 LIT applied to those whose gauge was between 80,001 and 90,000 tonnes. 49. In the light of the stark difference between the observations of Corsica Ferries and the other parties as well as the Commission regarding the tariff-elaboration process, the Court asked the plaintiff, by way of a written question, whether its assessment could be reconciled with that of the other parties in so far as the 1989 Law was concerned. In its response, Corsica Ferries submits essentially that the relevant provision (Article 9(7) of the 1989 Law) concerns only cabotage services and that, in any event, it confers no power on the Ministro della Marina Mercantile to adopt rules unifying tariffs at a national level. Moreover, it points out that no legal measures have been adopted to implement the 1989 Law in respect of maritime transport since ministerial circulars have no binding legal effects in Italian law. [FN72] It contends that the general tariff-determination criteria contained in the circulars at issue merely represent the fruit either of arbitrary administrative decisions or prohibited agreements which have been approved and made compulsory by public authorities. FN72 The judgment of the Italian Constitutional Court of 1 June 1995, G.U.R.I. of

1 June 1995, is cited in support of this contention. Although the plaintiff accepts that Article 9(7) allows the Ministro della Marina Mercantile to fix tariffs in the absence of agreement amongst the relevant economic operators, this may only be done, it points out, after the relevant parliamentary committees are consulted, which, the plaintiff asserts, did not occur in the instant case. 50. The characterisation of the scope of the circulars advanced by Corsica Ferries in its written response to the Court's question was expressly contradicted by the agent representing Italy at the hearing. He contended that the 1989 Law and the circulars remained relevant to the present reference, in spite of the criticisms advanced by Corsica Ferries. He submitted that the restructuring of mooring tariffs for cabotage was extended by the circulars in question to maritime transport; in other words, the circulars were applied as if they were legally binding.

(iii) Jurisdiction of the Court 51. The Court has no power within the context of the Article 177 procedure to resolve this regrettable conflict regarding the rules governing the tariff-determination process. It cannot, therefore, in my view, provide a definite response to the third question. Nevertheless, the link between that question and the dispute before the national court is clear; if the plaintiff's assessment of the tariff-fixing process is correct, the liability of Italy for any resultant breaches of the competition rules would, subject to a possible defence under Article 90(2) of the Treaty, be quite clear. The national court might, therefore, *429 uphold the application of the plaintiff in the main proceedings and order the fees levied to be repaid. It is, however, disquieting, to say the least, that the Court lacks the benefit of the views of the national court on a body of national legal and administrative provisions which seem possibly to be relevant. It is appropriate, none the less, briefly to examine the principles of Community law that would be relevant to an assessment by the national court of the claim for reimbursement of Corsica Ferries based on E.C. competition law.

(iv) Analysis

(a) Prima facie application of the competition rules 52. The national court has made a number of relevant findings of fact in its order for reference. In the first place, it has found (what is scarcely open to doubt) that Corsica Ferries offers services that are "inherently of a cross-frontier nature". The mooring groups claim that the effects of the tariffs on the costs of providing transfrontier maritime transport services are not such as to affect trade between Member States. If Italy is responsible for reinforcing on a nationwide basis the effects of local anti-competitive agreements, I do not think that the potential effect of such action could be described as being de minimis merely because the extra cost for each individual maritime transport undertakings might still be relatively minor. [FN73] In any event, the application of the Treaty competition rules does

not depend on the establishment of an actual effect on competition. A potential effect suffices, and appears difficult to exclude in this case. [FN74] FN73 The sums whose recovery is sought in the application brought by the plaintiff in the main proceedings (see para. 3 above) would hardly appear to be exiguous. FN74 See, for example, Case 56/65, Societe Technique Miniere v. Maschinenbau Ulm: [1966] E.C.R. 235; [1996] C.M.L.R. 357, and, most recently, Case C-55/96, Job Centre Coop [1997] E.C.R. I-7119; [1998] 4 C.M.L.R. 708, para. [36] (hereinafter "job centre ii"). 53. Secondly, it is claimed that the majority of the holders of concessions for the provision of mooring services at Italian ports have, at least, co-ordinated their positions in respect of the tariffs to be charged apparently through their representative association, ANGOPI. In this respect, the mooring groups essentially dispute the view of the national court that the actual tariffs applied result from agreements between mooring groups, as endorsed by the maritime authorities. In their view, the joint activities of the providers of mooring services are confined to participating in essentially a transparent and objective administrative tariff-fixing process which is carried out under the overall supervision of the relevant minister. It is, of course, for the national court to make the final findings as to whether, for the purposes of Article 85 of the Treaty, there is an anti-competitive agreement between undertakings [FN75] at the Ports of *430 Genoa and La Spezia, or a decision of associations of undertakings (for example, ANGOPI and the Comita Utenza Portuale). Only in the event of such a finding will the issue arise as to whether Italy is responsible for the anti-competitive effects of such an agreement or decision. [FN76] FN75 As the national court has found expressly that both the Genoan and La Spezia mooring groups are undertakings for the purposes of Article 90(1) of the Treaty, I think that they should also be regarded as undertakings for the purposes of Articles 85 and 86 of the Treaty since, though Article 90 refers to "undertakings to which the Member States grant special or exclusive rights", the underlying notion is no different from that used in Articles 85 and 86. The statement of the national court simply recognises the fact that the mooring groups have, of course, been granted certain exclusive rights by the maritime authorities at the Ports of Genoa and La Spezia. In this respect, I am of the view that the reference by the mooring groups at the hearing to Case C-343/96, Cali & Figli v. SEPG: [1997] E.C.R. I-1547; [1997] 5 C.M.L.R. 484 is misconceived. In that case, the Court found that an anti-pollution surveillance service provided compulsorily at the oil port of Genoa-Multedo was not of such an economic nature as would justify the application of the Treaty rules on competition since it constituted "a task in the public interest which forms part of the essential functions of the State as regards the protection of the environment in maritime areas" and was, thus, "connected by its nature, its aims and the rules to which it

is subject with the exercise of powers relating to the protection of the environment in maritime areas" (see paras [22] and [23]). Although it is alleged in the instant case that the mooring service provided by the mooring groups is one provided in the general economic interest, I do not think that its supposed public-service objective suffices to denude it of its inherent commercial nature. FN76 The third question referred in this case is concerned with the responsibility of Italy for possible anti-competitive activities and does not, therefore, raise the potential concurrent responsibility of the mooring groups themselves for such activities, if they were still engaged in by such undertakings on their own initiative. Such liability would, of course, not arise if the mooring groups were effectively obliged by the Italian rules to apply anti-competitive tariffs rendered obligatory by the relevant Italian maritime authorities: see, for example, the recent decision in Joined Cases C 359 & 379/95 P E.C. Commission and France v. Ladbroke Racing, where (at para. [33]) the Court held that "if anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply" (my emphasis); as well as the decision of the Court of First Instance in Case T-387/94, Asia Motor France and Others v. E.C. Commission: [1996] E.C.R. II-961; [1996] 5 C.M.L.R. 537, paras [60] and [61]. It is noteworthy that, in his Opinion of 18 December 1997, Tesauro A.G. has recommended that the Court reject the appeal brought by one of the applicants (Somaco) in Asia Motor France and Others v. E.C. Commission; see Case C-401/96 P, Somaco v. E.C. Commission, not yet reported. 54. Finally, as regards the possible application of Article 86, the national court has found that the grant to the mooring groups of their exclusive rights has had the effect of placing each of them in a dominant position on a substantial part of the Common Market. In this respect, I think that it is sufficient to note that, in Porto di Genova and Corsica Ferries, the Court has already held, in respect of statutory monopolies concerning, respectively, dock work and the provision of pilotage services at the Port of Genoa, that, "having regard in particular to the volume of traffic in that port and its importance in relation to maritime import and export operations as a whole in the Member State concerned, that market may be regarded as constituting a substantial part of the Common Market". [FN77] However, I assume that *431 Italian legal procedure allows the opposing parties to contest this finding in adversary proceedings. Nevertheless, if the mooring groups have committed any abuses of their respective dominant positions, Italy, which is responsible for granting them their legal monopolies, may be responsible. FN77 In my Opinion of 9 October 1997 in Case C-163/96, Criminal Proceedings v. Raso and Others: [1998] 4 C.M.L.R. 737, I expressed the view (see para. [55]) that a monopoly in respect of the provision of temporary labour at the Port of La Spezia was capable of constituting, as the national court had stated in its

reference in that case, a dominant position on a substantial part of the Common Market.

(b) Article 85 55. The principles governing the potential responsibility of Member States for breaches of Article 85 of the Treaty are now well established. The Court has most recently confirmed in Sodemare and Others v. Regione Lombardia [FN78] that it is "settled case law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require Member States to refrain from introducing or maintaining in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings". [FN79] Essentially, there are two broadly defined ways in which Member States may infringe their obligations under Article 85 in conjunction with Article 5. First, they may require or favour the adoption of anti-competitive practices involving two or more undertakings or associations of undertakings, or reinforce the effects of such practices. Secondly, they may deprive their own rules of their legislative character by delegating public decision-making power to private economic operators. FN78 Case C-70/95; [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591. FN79 ibid., para. [41]. 56. In the present case, it is common ground that the impugned tariffs were, at least formally, adopted by the relevant maritime authorities at the Ports of Genoa and La Spezia. The core contention of the plaintiff is that those authorities merely rubber-stamp tariff brackets drawn up collusively either by the members of ANGOPI, or by that association in collusion with representatives, or representative associations, of other port users. I have already referred to the absence of consensus regarding this contention. The Court has, in particular, been referred to various ministerial circulars which, whatever their legal value in Italian public law, must, at the very least, influence port authorities when fixing mooring tariffs. That the decisions of such authorities may, despite those circulars, still approve automatically or largely endorse tariffs predetermined by anti-competitive agreements is, of course, possible. However, in the absence of any findings by the national court regarding those circulars--to which, it must be stressed, it was not referred by the plaintiff in its application--I am not satisfied, on the information available to the Court, that, in respect of the tariffs applied at its ports for the provision of mooring services, Italy, through its decentralised port or maritime authorities, has committed any infringement of Article 85, read in conjunction with Article 5, of the Treaty. If this conclusion appears rather lacklustre, I can only revert to the leitmotif of this Opinion: the absence of a satisfactory factual and *432 legal matrix for a helpful decision in the case. The plaintiff has chosen to raise serious issues regarding alleged anti-competitive agreements and the possible existence and abuse of a dominant position within the constraints of a national procedure which does not admit of the opposing

party being heard or of considered judicial determination of central issues of law and fact. When pressed at the hearing to justify this choice, counsel for the plaintiff pleaded the delays inherent in the adversarial procedure in Italy, an argument which scarcely coincides with fundamental legal principles regarding fairness of procedures. To be more precise, Advocate General Gulmann, in his Opinion in Telemarsicabruzzo, placed particular stress on the need for findings of fact in competition cases. In this case, unlike in cases such as Meng, [FN80] Reiff, [FN81] and DIP and Others, [FN82] those criteria are missing. FN80 Case C-2/91: [1993] E.C.R. I-5751. FN81 Case C-185/91: [1993] E.C.R. I-5801; [1995] 5 C.M.L.R. 145. FN82 Joined Cases C 140, 141 & 142/94, DIP and Others v. Comune di Bassano di Grappa and Comune di Chioggia: [1995] E.C.R. I-3257; [1996] 4 C.M.L.R. 157.

(c) Article 86 57. According to the plaintiff, Italy is responsible for the abuse by the mooring groups of their dominant positions at the Ports of Genoa and La Spezia. Relying in particular on Porto di Genova, it says that there are two aspects to the alleged abuse. First, the use of unnecessary services forced upon Corsica Ferries and, secondly, the tariffs charged for those unwanted services bear no relation to the cost of their provision, as appears from the fact that they vary unjustifiably from port to port. As regards cost, the plaintiff contends that not only are the tariffs based on the global costs of providing a permanent mooring service, but that they also include various other "supplementary" components, such as a 1 per cent levy for technical assistance provided by ANGOPI to individual mooring groups and a 1 per cent levy for a form of "insurance" fund. It is also alleged that the tariffs are not applied on a wholly objective basis because of the effects of a supposedly non-transparent discount policy. Corsica Ferries asserts that the mooring groups are led inevitably to commit these abuses as a consequence of the right granted to them by the impugned Italian rules. Furthermore, it is alleged that they are not covered by the derogation contained in Article 90(2) of the Treaty, since a mooring service cannot be regarded as a "service of general economic interest". 58. Not surprisingly, the mooring groups, supported by Italy, deny the existence of any abuse. In so far as the charging of tariffs exceeding the actual cost of the service provided is concerned, they rely upon Article 90(2) of the Treaty and contend that such tariffs are necessary to permit mooring enterprises to carry out effectively the task of providing a universal service. The differences in tariffs charged from port to port reflect the influence of local circumstances that the tariff-calculation formula takes into account, by way of corrective *433 factors, when calculating the tariffs. At the hearing, it was asserted that Corsica Ferries has suffered no abuse by the mooring groups of their dominant position, since it benefits from one of the largest discounts. The Commission, though expressly

reserving its position at the hearing regarding the practice of offering discounts on the published tariffs, submits that the participation of port users in the tariff-fixing process would seem to guarantee that the tariffs fixed are not unreasonable. However, it contends that, in the final instance, it is for the national court to determine whether they are excessive, having regard not only to the immediate costs of providing mooring services to undertakings like Corsica Ferries but also to the costs of maintaining the universal service. 59. It is well established that the mere creation by a Member State of a dominant position through the grant of an exclusive right cannot, in itself, be regarded as incompatible with Article 86 of the Treaty, [FN83] and that "a Member State will contravene the prohibition contained in [Articles 86 and 90(1)] only if the undertaking in question, merely by exercising the right granted to it, cannot avoid abusing its dominant position". [FN84] Since Member States are, thus, at liberty, in the absence of specific Community rules, to create statutory monopolies, the only issue in the present case is whether the adoption by the port authorities of the tariff brackets that were applied to Corsica Ferries constitutes an abuse of those groups' dominant positions for which Italy is responsible. FN83 See, for example, the recent decision in Job Centre II, loc. cit., fn. 72 above, para. [31]. FN84 ibid. 60. Since Community law does not currently preclude Italy granting exclusive rights in respect of the provision of mooring services at its ports, the alleged abuse at issue essentially comprises the charging of tariffs that exceeded the costs of providing the service, plus a reasonable profit margin. For my own part, I find it difficult to see how any mere excess in the price of a service, established to the satisfaction of the national court, could resuit, in the context of Corsica Ferries' claim via Article 633 of the Code, in the refund of the full amount of the fees paid. However, consistently with the position I have already adopted in section IV above, I shall assume that the national court might treat any abusively excessive charging as justifying a complete refund. [FN85] FN85 In Case 177/78, Pigs and Bacon Commission v. McCarren: [1979] E.C.R. 2161; [1979] 3 C.M.L.R. 389 *434 , the Court held that, where a levy has been paid in contravention of Community law, although a right to reimbursement will in principle arise, "it is for the national court to assess, according to its national law, in each individual case, whether and to what extent the levy paid may be recovered ..."; see para. [25], as well as Case 222/82, Apple and Pear Development Council v. Lewis: [1983] E.C.R. 4083; [1984] 3 C.M.L.R. 733, where, at para. [41] of its judgment, the Court held that it was for "the national court to determine, according to its national law, whether and to what extent [an] entitlement to a refund is offset by the advantages accruing directly to the person concerned as a result of the activities [giving rise to the underlying charge]".

61. It is claimed in the present case that the mathematical formula for calculation of the tariffs includes an element over and above costs and profit margin, that is intended to cover the cost of providing mooring services on a universal basis. In my opinion, the compatibility with Article 86 of the Treaty of the inclusion of that incidental element depends on whether the service at issue may be regarded as constituting, for the purposes of Article 90(2), a service "of general economic interest". The Court has consistently held that, as: a provision which permits, in certain circumstances, derogation from the rules of the Treaty, there must be a strict definition of those undertakings which can take advantage of it. [FN86] FN86 See Case 127/73, BRT v. SABAM and NV Fonior: [1974] E.C.R. 313; [1974] 2 C.M.L.R. 251, para. [19] and Case C-242/95, GT-Link v. de Danske Statsbaner: [1997] E.C.R. I-4449; [1997] 5 C.M.L.R. 601, para. [50]. In Porto di Genova, the Court held that the provision of dock work services was not of a kind that was necessarily of a general economic interest because it did not exhibit special characteristics compared with that of other economic activities, [FN87] while, in GT-Link v. de Danske Statsbaner, it took the view that the operation of a commercial port was not an operation of a service of general economic interest. [FN88] In this case, however, it is contended that the objective of the national rules is to ensure, in the interests of port security, that a universal mooring service is available. As the Court has stated in BRT v. SABAM and NV Fonior, it is: the duty of the national court to investigate whether an undertaking which invokes the provisions of Article 90(2) for the purpose of claiming a derogation from the rules of the Treaty has in fact been entrusted by a Member State with the operation of a service of general economic interest. [FN89] FN87 Loc. cit., see para. [27]. Indeed, Van Gerven A.G. had pointed out that "if such operations fall within the concept of services of general interest, then that concept can cover practically all economic activities"; see para. 27 of his Opinion. FN88 Loc. cit., see, in particular, para. [52]. FN89 Loc. cit., para. [22]. I am satisfied, however, that, if the national court were to find that the relevant Italian maritime authorities had entrusted the mooring groups with such a task, then the application of the prohibition contained in Article 86 to the additional component of the tariffs representing the additional cost of providing, at all times and to all users of the Ports of Genoa and La Spezia, a universal mooring service would be liable, within the meaning of Article 90(2), to obstruct the performance of that task. For that reason, the inclusion of such an element in the charges would not be incompatible with Article 86 read in conjunction with Article 90(1).

VI --Conclusion

62. In the light of all of the foregoing, I recommend that the Court answer the questions referred by the Tribunale di Genova as follows: *435 (1) National rules or administrative practices in one Member State which debar indistinctly both domestic shipping companies and shipping companies established in other Member States from berthing or unmooring their vessels on entry and departure from ports in the first-mentioned State, unless they use the mooring services provided by undertakings enjoying statutory exclusive rights in respect of the provision of such services, and which require such shipping companies to pay to those undertakings dues which may not be commensurate with the actual cost of the services provided, are not incompatible with Article 30 of the Treaty; (2) Council Regulation 4055/86 in conjunction with Article 59 of the Treaty does not preclude a Member State from imposing a requirement on all shipping companies, regardless of their Member State of establishment, whose ships call at its ports to use mooring services provided by holders of exclusive concessions at those ports; (3) A Member State which confers on an undertaking an exclusive right to provide mooring services on a market found to constitute a substantial part of the Common Market and to charge obligatory tariffs which may not be commensurate with the actual cost of providing the services, does not infringe Article 86, read in conjunction with Article 90(1), of the Treaty, in the absence of specified abuse and, in particular, does not do so merely because the tariffs include an element designed to cover the costs of a universally available nationwide mooring service; (4) In the absence of specific findings by the national court, it is not possible to provide an answer to the third question in so far as it relates to an infringement of Article 85, read in conjunction with Article 5, of the Treaty. JUDGMENT [1] By order of 5 July 1996, received at the Court on 2 August 1996, the Tribunale di Genova (District Court, Genoa), referred to the Court for a preliminary ruling under Article 177 EEC a number of questions on the interpretation of Articles 3, 5, 30, 59, 85, 86 and 90(1) E.C. and of Council Regulation 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries. [FN90] FN90 [1986] O.J. L378/1; [1989] 4 C.M.L.R. 461. [2] Those questions arose in proceedings between Corsica Ferries France SA (hereinafter "Corsica Ferries") and Gruppo Antichi Ormeggiatori del Porto di Genova Coop. arl (the mooring group of the Port of Genoa, hereinafter "the Genoa mooring group") and the Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl (the mooring group of the Port of La Spezia, hereinafter "the La Spezia

mooring *436 group") and the Ministero dei Trasporti e della Navigazione (Ministry of Transport and Shipping). [3] Corsica Ferries is a company incorporated under French law which, since 1 January 1994, has provided, in its capacity as a shipping company, a regular liner service by car 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 from Tourship Ltd, which is established in Jersey. Corsica Ferries and Tourship Ltd are both controlled by Tourship SA, a company incorporated under Luxembourg law and established in Luxembourg. Over the period from 1994 to 1996 Corsica Ferries paid to the Genoa and La Spezia mooring groups various sums in respect of mooring services (mooring and unmooring of vessels) to which port stops made by vessels operated by it had given rise. [4] Corsica Ferries always attached express reservations to its payments, indicating that the requirement to avail itself of the services of the mooring groups constituted an impediment to the free movement of goods and to freedom to provide services and that the sums it was being charged were calculated on a tariff which bore no relation to the actual services provided and had been adopted in breach of the competition 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 Genoa mooring group to pay a sum of 669,838,425 LIT, the La Spezia mooring group a sum of 188,472,802 LIT, and, jointly and severally, the Ministry of Transport and Shipping a sum of 858,311,227 LIT, each sum to be paid with interest. According to Corsica Ferries, such an order was justified because there was no legal cause for the payments it had made. It put forward two lines of argument in this connection. [6] First, the tariffs for mooring operations in the ports in point in the main proceedings bore no relation to the cost of the services actually provided to vessels by 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 4055/86, and to 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 of the Treaty. Not only were the tariffs the result of an agreement between associations of undertakings, prohibited by Article 85 of the Treaty, but also the Genoa and La Spezia mooring groups were abusing their dominant position in a substantial part of the Common Market, in breach of Article 86 of the Treaty, by charging unfair tariff rates, by preventing shipping companies from using their own qualified staff to carry out mooring operations, and by setting tariffs that varied from one port to another for identical services provided to identical vessels. *437 [8] In support of its application for an order that Italy be made jointly and severally liable for the payment of the sums which it claims are owed to it, Corsica Ferries claims that the State is liable because it did not intervene in order to bring to an end the breaches of Community law of which it considers itself a

victim. [9] From the legislation applicable to the case, it appears that mooring services are governed by the Codice della Navigazione (Shipping Code, hereinafter "the code"), the Regolamento per la Navigazione Maritima (Regulation on Maritime Shipping, hereinafter "the Regulation") and, for each port, by the provisions adopted by the competent local maritime authority. [10] Under Articles 62 and 63 of the Code, the Port Harbour Master regulates and supervises vessels' entry into and departure from the port as well as their movements, 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 an extreme emergency. [11] Pursuant to Article 116 of the Code, mooring operatives form part of the personnel assigned to port services. The rules specifically applicable to them are contained in Chapter VI (Articles 208 to 214) of the Regulation. Article 209 entrusts regulation of the mooring service to the Port Harbour Master, who is to ensure that 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 of the regulation provides that, in each port, tariffs relating to mooring services are to be fixed by the Head of the Maritime District. [12] The specific legislation applicable in the Port of Genoa consists of Regulation 759 of 1 June 1953, adopted by the President of the Consorzio Autonomo del Porto di Genova (Independent Consortium of the Port of Genoa), who set up the Genoa mooring group, and the Regulation on Shipping Services and Port Police adopted on 1 March 1972, Article 13 of which states: ... use of the services of mooring operatives for the mooring and unmooring of vessels 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 use of the services of the Genoa mooring group de facto compulsory. [14] The rules specifically applicable to the port of La Spezia are contained in Decree 20 of 16 July 1968 of the Head of the Maritime District of La Spezia. Article 1 of that decree sets up a group of operators responsible for mooring operations. According toArticle 2, that group: ... shall carry out berthing and unmooring services for vessels and ensure *438 safety in the port. The service in question is compulsory for vessels with a gross registered tonnage of more than 500 tonnes. Vessels with a lower tonnage may carry out the manoeuvre in question using its own crew provided they do not hinder traffic and do not compromise either the safety of the port or staff. It is strictly prohibited to use any other operative not belonging to the above group of operatives to provide mooring services. [15] As regards the tariff rates for mooring operations, the account of these in the order for reference, given in the context of an ex parte summary procedure which consequently reproduces only the facts and legal arguments put forward by

Corsica Ferries, differs from that given by the Genoa and La Spezia mooring groups, the Italian Government and the Commission. Notwithstanding the written question put by the Court to Corsica Ferries on that point, certain aspects have had to be left unresolved, since the parties have maintained divergent interpretations in certain respects. [16] According to the order for reference, there is no legislative text determining the criteria to which the head of each maritime district must conform in fixing the tariffs for mooring services. Those tariffs are sometimes fixed after agreements have been reached between undertakings in the sector and are made enforceable by an administrative measure. [17] According to the Genoa and La Spezia mooring groups, the Italian Government and the Commission, however, account must be taken of Law 160/89 of 5 May 1989, [FN91] which provides, in Article 9(7), that the Minister for the Merchant Navy is to adopt the rules harmonising tariffs for port services and operations at national level, after consultation with the trade unions most representative in the sector at national level, the other sides of the industry and the companies concerned. The tariff restructuring thus provided for was in particular regulated by Circular 8/1994 of 19 September 1994 of the Minister for the Merchant Navy, who determines the criteria to which the port authorities must conform in fixing tariffs. FN91 GURI No. 139, 16 June 1989. [18] According to those same parties, the tariffs are thus calculated on the basis of a formula the purpose of which is to apportion the charges connected with performance of the mooring service between the various classes of port users. For the purpose of applying the tariffs, users are allotted to different categories on the basis of the gross tonnage of the vessel, and may claim reductions for certain categories of vessel, such as car-ferries, or reductions linked to the frequency of berthing. The level of the tariff, which is valid for two years, is calculated on the basis of projected overall turnover for each mooring group, which itself depends on the volume of traffic in the port. Before the decision of the port authority laying down the tariff for each port is adopted, those concerned, on both the supply and demand sides, may make known their point of view. *439 [19] The tariffs for the ports of Genoa and La Spezia were published by decrees of 20 October and 27 September 1994 respectively. [20] According to the Tribunale di Genoa and La Spezia mooring groups provide services to Corsica Ferries, which itself offers services falling under Regulation 4055/86, and those groups constitute undertakings, for the purposes of Article 90(1) of the Treaty, with exclusive rights in a substantial part of the Common Market. Since it entertained doubts as to whether the nature of the exclusive rights, the compulsory nature of the service, the basis on which tariffs are drawn up and the amounts charged might constitute a barrier to intra-Community trade in goods and services and induce undertakings vested with those rights to abuse their dominant position to the detriment of trade between Member States as a result of the costs borne by the undertakings engaged in transport operations

between Member States, the national court decided, in consequence, to stay proceedings 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/or administrative practice in a Member State which debars shipping companies established in other Member States from berthing their vessels on entry to docks in the first-mentioned State, or unmooring those vessels on departure, unless they use the services provided by a local undertaking by virtue of its exclusive concession in respect of berthing and unmooring facilities, which entails paying to that undertaking dues which may not be commensurate with the actual cost of the services provided? (2) Does Council Regulation 4055/86 in conjunction with Article 59 of the Treaty preclude the imposition in a Member State of a requirement whereby berthing services are obligatory and shipping companies established in another Member State are charged tariffs 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, 85, 86 and 90(1) of the Treaty, in conjunction, preclude legislation and/or administrative practice in a Member State which confers on an undertaking established in that State an exclusive right to provide berthing services such as to enable those services to be made compulsory, dues to be charged which may not be commensurate with the actual cost of the services provided, tariffs to be applied which have been determined by agreement and/or administrative discretion, and tariff conditions to be imposed 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 have questioned the admissibility of the questions referred on grounds relating, first, to the nature of the proceedings before the national court and, secondly, to the lack of 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 *440 summary, ex parte proceedings which may be brought by anyone who is seeking enforcement on the basis of written evidence for the purpose of obtaining a payment order without the other party being heard; any inter partes argument only takes place subsequently if the party who has been ordered to pay objects to that order. According to the Italian Government, the fact that the proceedings are not inter partes and it is impossible to obtain any evidence other than the written evidence produced by the applicant prevents the Court from having before it the information necessary to enable it to reply to questions which, as they concern competition, relate to complex legal and factual circumstances. [23] In that respect, it should be borne in mind that the Court has already held that the President of an Italian district court, adjudicating on an application in ex parte summary proceedings for which provision is made in the Italian Code of

Civil Procedure, performs a judicial function within the meaning of Article 177 of the Treaty and that that article does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling (Case C-18/93, Corsica Ferries and the case law cited therein [FN92]). FN92 [1994] E.C.R. I-1783, para. [12]. [24] It must, however, be added that in the context of such applications, it is equally necessary that the national court give the Court a detailed and complete account of the factual and legal context. [25] In this case the description of the factual and legal context does indeed appear inadequate in some respects, thus preventing the Court from replying to certain of the questions raised with the precision desired. Nevertheless, the information in the file enables the Court to give a ruling although it will leave open certain aspects of the questions raised. [26] As regards the relevance of the questions raised, the Genoa and La Spezia mooring groups have claimed that the application before the national court seeks to obtain reimbursement of all the sums paid to them by Corsica Ferries. Since they would in any event be entitled to obtain some remuneration since mooring services were in fact provided, the application by Corsica Ferries does not therefore fulfil one of the 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 to the questions referred will have no effect on the decision to be given on the dispute. [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 and which must assume responsibility for the judgment to be given, to determine, having regard to the particular *441 feature of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see Case C-62/93, BP Supergas v. Greece [FN93] and Case C-143/94, Furlanis v. Anas and Itinera. [FN94] That is not, however, the case here. FN93 [1995] E.C.R. I-1883, para. [10]. FN94 [1995] E.C.R. I-3633, para. [12]. [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

the Treaty precludes legislation of a Member State which requires shipping companies which are established in other Member States and whose vessels make port stops in the first-mentioned State to use the services of mooring groups holding exclusive concessions, for a charge higher than the actual cost of the service provided. The national court asks whether, although not directly concerning goods, the legislation at issue in the main proceedings is contrary to Article 30 of the Treaty, inasmuch as its effect is to render transport more costly and therefore to impede imports of goods from other Member States. [30] It should be noted that, in the case in the main proceedings, the legislation applies without distinction to any vessel, Italian or otherwise, making a port stop in one of the ports in question. The requirement it lays down is that, for a charge, local mooring services holding an exclusive concession for berthing and unmooring are to be used. As far as any effects of that requirement on the free movement of goods are concerned, it must be observed that, on the one hand, essentially what is involved in this case is the provision of a maritime transport service concerning persons as well as goods. On the other hand, even if only the transport of goods were involved, the file on the case shows that, for a vessel, the price of mooring services represents less than 5 per cent of port costs which, in total, represent 12 to 14 per cent of the cost of transport, making up from 5 to 10 per cent of the cost of transported products. The use of mooring services represents an additional cost for transported products of approximately 0.05 per cent. [31] Consequently, legislation such as that at issue in the main proceedings makes no distinction according to the origin of the goods transported, its purpose is not to regulate trade in goods with other Member States and the restrictive effects which it might have on the free movement of goods are too uncertain and indirect for the obligation which it imposes to be regarded as being capable of *442 hindering trade between Member States (Case C-379/92, Peralta [FN95] and Case C-96/94, Centro Servizi Spediporto [FN96]). FN95 [1994] E.C.R. I-3453, para. [24]. FN96 [1995] E.C.R. I-2883; [1996] 4 C.M.L.R. 613, para. [41]. [32] The answer to the first question must therefore be that Article 30 E.C. does 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 States and whose vessels make port calls in the first-mentioned Member State to have recourse to the services of local mooring groups holding exclusive concessions, for a 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 question in order to make the best possible use of the information concerning the factual and legal context given in the file, the national court asks, essentially,

whether Articles 3, 5, 85, 86 and 90 of the Treaty preclude legislation in a Member State which confers on undertakings established in that State an exclusive right to provide mooring services, requires those services to be used for a charge higher than the actual cost of the services provided, and provides for tariffs that vary from one port to another for equivalent services. [34] The rules on competition laid down in the Treaty apply to the transport sector (Case C-185/91, Reiff [FN97] and Case C-153/93, Delta Schiffahrts-und Speditionsgesellschaft [FN98]). FN97 [1993] E.C.R. I-5801; [1995] 5 C.M.L.R. 145, para. [12]. FN98 [1994] E.C.R. I-2517, para. [12]. [35] Articles 85 and 86 of the Treaty are, in themselves, concerned solely with the conduct of undertakings and not with law or regulations adopted by Member States. 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 in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings ( Centro Servizi Spediporto, and the case law cited therein [FN99]). FN99 Cited above, para. [20]. Articles 86 and 90 of the Treaty [36] The national court asks whether there is an abuse, on the part of the Genoa and La Spezia mooring groups, of their dominant position on a substantial part of the Common Market by virtue of the exclusive rights conferred upon them by the Italian public authorities. [37] There are three aspects of the abuse alleged in this case. It is said to reside in the grant of exclusive rights to local mooring groups, preventing shipping companies from using their own staff to carry out mooring operations, in the excessive nature of the price of the service, which bears no relation to the actual cost of the service provided, and in the fixing of tariffs that vary from port to port for equivalent services. *443 [38] As regards the definition of the market in question, it appears from the order for reference that it consists in the performance on behalf of third persons of mooring services relating to container freight in the ports of Genoa and La Spezia. Having regard inter alia to the volume of traffic in those ports and their importance in intra-Community trade, those markets may be regarded as constituting a substantial part of the Common Market ( Case C- 179/90, Merci Convenzionali Porto di Genova [FN100] and Case C-163/96, Raso and Others [FN101]). FN100 [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422, para. [15].

FN101 [1998] 4 C.M.L.R. 422, para. [26]. [39] As far as the existence of exclusive rights is concerned, it is settled law that an undertaking having a statutory monopoly in a substantial part of the Common Market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty ( Case C-41/90, Höfner and Elser v. Macrotron [FN102]; Case C-260/89, Ert v. Dep [FN103]; Merci Convenzionali Porto di Genova [FN104] and Raso and Others [FN105]). FN102 [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306, para. [28]. FN103 [1991] E.C.R. I-2925; [1994] 4 C.M.L.R. 540, para. [31]. FN104 Cited above, para. [14]. FN105 Cited above, para. [25]. [40] Next, it should be pointed out that although merely creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or if such rights are liable to create a situation in which that undertaking is led to commit such abuses ( Case C-41/90, Höfner and Elser v. Macrotron [FN106]; Case C-260/89, Ert v. Dep [FN107]; Merci Convenzionali Porto di Genova [FN108]; Case C-323/93, Centre d'Insemination de la Crespelle [FN109]; Raso and Others [FN110]). FN106 Cited above, para. [29]. FN107 Cited above, para. [37]. FN108 Cited above, para. [17]. FN109 [1994] E.C.R. I-5077, para. [18]. FN110 Cited above, para. [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 mooring groups provided those groups do not abuse their dominant position or are not led necessarily to commit such an abuse. [42] In order to rebut the existence of such abuse, the Genoa and La Spezia mooring groups relying on Article 90(2) of the Treaty, which provides that undertakings entrusted with the operation of services of general economic interest are to be subject to the competition rules contained in the Treaty only in

so far as their application does not obstruct the performance, in law or in fact, of the particular tasks *444 assigned to them. Article 90(2) of the Treaty further provides that, in order for it apply, the development of trade must not be affected to such an extent as would be contrary to the interests of the Community. [43] They maintain that the tariffs applied are indispensable if a universal mooring service is to be maintained. On the one hand, the tariffs include a component corresponding to the additional cost of providing a universal mooring service. On the 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 are calculated, of corrective factors reflecting the influence of local circumstances--which would tend to indicate that the services provided are not equivalent--are justified by the characteristics of the service and the need to ensure universal coverage. [44] It must therefore be considered whether the derogation from the rules of the Treaty provided for in Article 90(2) of the Treaty may fall to be applied. To that end, it must be determined whether the mooring service can be regarded as a service of general economic interest within the meaning of that provision and, if so, first, whether performance of the particular tasks assigned to it can be achieved only through services for which the charge is higher than their actual cost, and, secondly, whether the development of trade is not affected to such an extent as would be contrary to the interests of the Community (see, to that effect, Case C-157/94, E.C. Commission v. Netherlands [FN111]). FN111 [1997] E.C.R. I-5699, para. [32]. [45] It is evident from the file on the case in the main proceedings that mooring operations are of general economic interest, such interest having special characteristics, in relation to those of other economic activities, which is capable of bringing them within the scope of Article 90(2) of the Treaty. Mooring groups are obliged to provide at any time and to any user a universal mooring service, for reasons of safety in port waters. At all events, Italy could properly have considered that it was necessary, on grounds of public security, to confer on local 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 the Treaty to include in the price of the service a component designed to cover the cost of maintaining the universal mooring service, inasmuch as it corresponds to the supplementary cost occasioned by the special characteristics of that service, and to lay down for that service different tariffs on the basis of the particular characteristics of each port. [47] Consequently, since the mooring groups have in fact been entrusted by the Member State with managing a service of general economic interest within the meaning of Article 90(2) of the Treaty, and the other conditions for applying the derogation from application *445 of the Treaty rules which is laid down in that provision are satisfied, legislation such as that at issue does not constitute an infringement of Article 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 the mooring 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 Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions affecting the economic sphere ( Centro Servizi Spediporto and the case law cited therein [FN112]). FN112 Cited above, para. [21]. [50] In that connection it must be pointed out, first, that the file on the case in the main proceedings does not reveal the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty. [51] Although the mooring groups do constitute undertakings for the purposes of that provision, any agreement there may be between those groups at national level does not result in fixing a common price for all ports, since the tariff is calculated on the basis of a mathematical formula to which are applied various corrective factors linked to the characteristics of each port. Moreover, even if it were shown that the ports compete with each other in a single geographical market, which is presumed to be the case in the order for reference, it remains difficult to discern the restrictive effects of any agreement, inasmuch as exclusive rights are granted in each of the ports concerned and there is therefore no potential competitor to the local 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 or effect of which is to restrict competition. [52] Nor, on the other hand, is it evident from the file that the Italian authorities have delegated their powers with respect to the fixing of tariffs to the Genoa and La Spezia mooring groups. In each of the ports concerned the tariffs for mooring services have been fixed by the local maritime authority, pursuant to Article 212 of the Regulation, on the basis of a general formula determined at national level by the public authorities after consultation, not only with the mooring groups concerned, but also with the representatives of users and shipping agents in the ports of Genoa and La Spezia. The participation of the mooring groups in the administrative procedure for drawing up the tariffs cannot be regarded as an agreement, decision or concerted practice between economic operators which the public authorities have required or favoured or the effects of which they have reinforced. *446 [53] Accordingly, Article 85 of the Treaty does not preclude legislation such as that at issue in the main proceedings. [54] In the light of the foregoing considerations, the answer to be given to the question must be combined provisions of Articles 5, 85, 86 and 90(1) of the Treaty do not preclude legislation of a Member State, such as that at issue in this case,

-- which confers on undertakings established in that State an exclusive right to provide a mooring service, -- which requires the service to be used at a price which, in addition to the actual cost of the service provided, includes a supplement to cover maintenance of a universal mooring service, and -- which provides for tariffs that vary from one port to another in order to take into account each port's particular characteristics. Question 2 [55] By its second question, the national court asks, essentially, whether the combined provisions of Regulation 4055/86 and Article 59 of the Treaty preclude legislation of a Member State from requiring shipping companies established in other Member States, when their vessels make a port stop in the first-mentioned Member State, to use, for a charge, the services of local mooring groups holding exclusive concessions. [56] According to settled case law, Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when that restriction is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services ( Case C-76/90, Säger [FN113] and Case C-398/95, Settg [FN114]). FN113 [1991] E.C.R. I-4221, para. [12]. FN114 [1997] E.C.R. I-3091; [1998] 1 C.M.L.R. 420, para. [16]. [57] As the Advocate General pointed out at paragraph 35 of his Opinion, the impugned legislation would not appear to contain any overt or covert discrimination contrary to Article 59 of the Treaty and Article 9 of Regulation 4055/86. [58] On the one hand, in the Port of Genoa the obligation to use the mooring services provided by the Genoa mooring group applies to all shipping companies without distinction. On the other hand, in the port of La Spezia, all operators of vessels whose gross tonnage exceeds 500 must have recourse to the services of the La Spezia mooring group. A company such as Corsica Ferries, which operates car-ferries, is *447 therefore subject to the same obligation to use the mooring services as Italian trnasport companies using vessels of equivalent size. [59] As a preliminary point it should be noted that, as far as any impediment to the freedom to provide mooring services is concerned, reference need merely be made to the Court's reasoning, earlier in this judgment, regarding the application of the derogation from the rules of the Treaty which is provided for in Article 90(2) of the Treaty, to conclude that such an impediment, if it exists, is not contrary to Article 59 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 provide maritime transport services, it must be observed that the mooring service constitutes a technical nautical service which is essential to the maintenance of safety in port waters and has the characteristics of a public service (universality, continuity, satisfaction of public-interest requirements, regulation and supervision by the public authorities). Accordingly, provided that the price supplement in relation to the actual cost of the service does indeed correspond to the additional cost occasioned by the need to maintain a universal local mooring service, the requirement to have recourse to a local mooring service, even if it were capable of constituting a hindrance or impediment to freedom to provide maritime transport services, could be justified, under Article 56 E.C., by the considerations of public security relied on by the mooring groups, on the basis of which the national legislation on mooring was adopted. [61] Consequently, the answer to the second question must be that the provisions of Regulation 4055/86 and Article 59 E.C. do not preclude legislation of a Member State, such as that at issue in this case, which requires shipping companies established in another Member State, when their vessels make port calls in the first Member State, to have recourse to the services which local mooring groups holding exclusive concessions supply for a charge. Such legislation, even if it constituted an impediment to freedom to provide maritime transport services would, in fact, be justified by considerations of public security within the meaning of Article 56 E.C. Costs [62] The costs incurred by the Italian Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Tribunale di Genova by order of 5 July 1996, *448 HEREBY RULES: 1. Article 30 E.C. does 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 States and whose vessels make port stops in the first Member State to have recourse to the services of local mooring groups holding exclusive concessions, for a charge higher than the actual cost of the service provided. 2. The combined provisions of Articles 5, 85, 86 and 90(1) E.C. do not preclude legislation of a Member State, such as that at issue in this case, -- which confers on undertakings established in that State an exclusive right to provide a mooring service,

-- which requires the service to be used at a price which, in addition to the actual cost of the service provided, includes a supplement to cover maintenance of a universal mooring service, and -- which provides for tariffs that vary from one port to another in order to take into account each port's particular characteristics. 3. The provisions of Council Regulation 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries and Article 59 E.C. do not preclude legislation of a Member State, such as that at issue in this case, which requires shipping companies established in another Member State, when their vessels make port stops in the first Member State, to have recourse to the services which local mooring groups holding exclusive concessions supply for a charge. Such legislation, even if it constituted an impediment to freedom to provide maritime transport services would, in fact, be justified by considerations of public security within the meaning of Article 56 E.C.

(c) Sweet & Maxwell Limited [1998] 5 C.M.L.R. 402 END OF DOCUMENT