Freedom to provide services to maritime cabotage applicable to EU shipowners who have their ships registered in a Member State governs maritime cruise services
Under the regulation on maritime cabotage (Council Regulation (EEC) No 3577/9) freedom to provide services to maritime transport within a Member State has applied, since 1 January 1993, to EU shipowners who have their ships registered in, and flying the flag of a Member State, provided that these ships comply with all conditions of national law in relation to cabotage.
Alpina (a Swiss company) and Nicko Tours (a German company), respectively, the shipowner and user company of a Swiss tourist vessel, wished to organise a cruise of approximately one week departing from Venice. They had intended to cross the Venetian lagoon to Chioggia, then cross territorial sea between Chioggia and Porto Levante before travelling up the river Po for approximately 60 kilometres and returning to Venice following the reverse itinerary. The application for authorisation to cross the stretch of sea was rejected by the port authority on the ground that, under Italian law, maritime cabotage was reserved for ships flying the flag of a Member State of the EU. Alpina and Nicko Tours contested that refusal before the Veneto Regional Administrative Court (Tribunale amministrativo regionale per il Veneto), and subsequently before the Italian Council of State (Consiglio di Stato). The latter court asked, in essence, whether a cruise which started and ended, with the same passengers, in the same port of the Member State in which it took place, was covered by the term ‘maritime cabotage’ within the meaning of Regulation No 3577/92.
The Court held that it was apparent from Article 1(1) of Regulation No 3577/92 that regulation related only to transport services within a Member State (cabotage) which were of a maritime nature. Consequently, inland waterway transport services provided within a Member State and not of a maritime nature were not governed by that regulation. By contrast, those services fell within the scope of Council Regulation 3921/91 of 16 December 1991 laying down the conditions under which non-resident carriers may transport goods or passengers by inland waterway within a Member State (OJ 1991 L 373, p. 1).
However, contrary to what Alpina and Nicko Tours claim, it did not appear that the cruise which was the subject of the dispute in the main proceedings had a mainly non-maritime nature.
The Court held that the term ‘sea’ referred to by Regulation No 3577/92 was not limited to territorial sea within the meaning of the United Nations Convention on the Law of the Sea, but also covered internal maritime waters which are on the landward side of the baseline of the territorial sea (see, also Case C‑323/03 Commission v Spain).
Consequently, even if Alpina and Nicko Tours were correct in claiming that the crossing of the stretch of sea between Chioggia and Porto Levante was in itself too short to confer a maritime nature on the cruise at issue in the main proceedings, their argument that that cruise had a mainly non-maritime nature appeared, subject to verification by the referring court, at all events to be unfounded in that, besides that stretch, other sections of the itinerary, such as the areas of navigation in the Venetian lagoon and in the mouth of the river Po, formed part of the internal maritime waters of the Italian Republic.
The Court added in order to reply to the question referred, it was necessary to note at the outset that it was unambiguously apparent from the reference to ‘cruise liners’ in Article 3(1) of Regulation No 3577/92 and from the derogation provided until 1 January 1995 for some cruise services in Article 6(1) of that regulation that cruises were among the types of transport covered by that regulation. However, since Regulation No 3577/92 concerned ‘maritime cabotage’ alone, only cruises covered by that concept fell within the ambit of that regulation.
The Court thus concluded that a maritime transport service consisting of a cruise which started and ended, with the same passengers, in the same port of the Member State in which it took place, was covered by the term ‘maritime cabotage’ within the meaning of Regulation No 3577/92.
Text of Judgment