2. Vlaams Gewest v P&O North Sea Ferries Limited: the factual and legal context
The Belgian national provision giving rise to the proceedings requires shipping companies sailing to Flemish maritime ports to comply with the rules imposing a a charge for the mandatory use of services under the vessel traffic services (VTS) system by vessels bound for a port located in that system’s operational area. The charge must be paid by any vessel of more than 41 metres coming from the sea and bound for a Flemish port included in the VTS system, and is only payable once per voyage, even if the vessel enters the area concerned more than once per day.
A fixed element of the charge is determined based on the length of the vessel concerned. The charge is not payable in respect of navigation between Flemish ports, for navigation on inland waterways, for vessels less than 41 metres in length, or for certain other categories of vessels.
P&O North Sea Ferries Limited (P&O), a company domiciled in the UK with a Belgian subsidiary, has refused to pay the invoices for the mandatory use of the VTS system since 1996. The contested invoices for VTS concerned navigation to or from Zeebrugge (Belgium). The outstanding amount totals more than 13 million EUR. The Flemish Region has brought proceedings before the referring national court seeking an order for P&O to pay the invoices which have remained unpaid since 30 April 1996, together with statutory interest where applicable.
The legal basis for the parties’ claims is Regulation 4055/86(1) Regulation 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries [1986] OJ L 378/1. in conjunction with Article 56 TFEU and related EU acquis. Article 56(1) TFEU provides that, ‘[w]ithin the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.’ Article 56 and other provisions on the freedom to supply international maritime services were first made applicable by this Regulation, since it follows from Article 58(1) TFEU, in conjunction with Article 100(2) TFEU, that, in the maritime transport sector, application of the freedom to provide services requires the Council to adopt secondary legislation.(2) Article 100(2) of TFEU (Common Transport Policy).
The Regulation applies to the cross-border maritime transport services between Member States and between Member States and third countries. This freedom only applies, however, to the persons set out in Article 1 of the Regulation: firstly, to the nationals of Member States who are established in a Member State other than that of the person for whom the services are intended,(3) Article 1(1). See also C‑83/13 Fonnship A/S v Svenska Transportarbetareförbundet, Facket för Service och Kommunikation (SEKO), and Svenska Transportarbetareförbundet v Fonnship A/S, Judgment of 8 July 2014. secondly, to nationals of Member States established outside the EU, and, thirdly, to shipping companies established outside the EU and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation.(4) Article 1(2). EEA nationals (Iceland, Norway and Liechtenstein) are also included, as the Regulation (except Articles 5 to 7) is incorporated in the EEA Agreement. Thus, the Regulation by its wording does not apply to nationals of the UK following its exit from the EU.
The 'maritime transport services between Member States and between Member States and third countries' are covered by the Regulation if they are normally provided for remuneration and include the carriage of passengers or goods by sea between Member States or between Member States and offshore installations, as well as the carriage of passengers or goods by sea between the ports of a Member State and ports or offshore installations of a third country.(5) Article 1(4) of the Regulation.
Further, Article 8 of the Regulation provides that, ‘[w]ithout prejudice to the provisions of the Treaty relating to right of establishment, a person providing a maritime transport service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.’ (author’s italics)
The Trade and Cooperation Agreement between the EU and the UK (the TCA)(6) See footnote 4. was invoked by the claimant in this case, as P&O North Sea Ferries Limited was a company established in the UK. The TCA contains its own provision on the international maritime transport services, importantly, Article 191, which establishes the principle of equal treatment with regard, among other aspects, to access to ports, use of port infrastructure, use of maritime auxiliary services, assignment of berths and facilities for loading and unloading, and related fees and charges.(7) Article 191(1)(a) of TCA. It also seeks to abolish any unilateral measures or administrative obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of international maritime transport services. However, Article 191 of TCA is not fully identical to EU acquis in relation to the international maritime transport services.
Moreover, it is expressly provided in Article 5 of the TCA that its provisions do not confer rights or impose obligations on individuals and cannot be invoked in the domestic legal systems of the Parties. Thus, by contrast to the directly effective provisions of the Regulation 4055/86, the natural and legal persons such as P&O North Sea Ferries Limited, who are (indirectly) protected by the provisions of the TCA, may not rely on these provisions in courts.
The following questions were referred to the CJEU by the national court:
(1) Does a vessel traffic services (VTS) regime, with the associated fixed tariff based on the length of the vessel, that applies to maritime traffic to a Flemish port from a port in another Member State, but which does not apply to traffic between Flemish ports because such traffic is exempt from the tariff, constitute an obstacle to the freedom to provide services pursuant to Regulation [No 4055/86], in conjunction with Article 56 TFEU?
(2) Does the application of a uniform VTS tariff, based solely on the length of the vessel, for access to ports that are substantially distinct, have the effect of rendering the VTS tariff contrary to the freedom to provide services in Article 56 TFEU and Regulation [No 4055/86], because other important factors specific to the route of navigation to the port, such as the distance travelled by the vessel in the VTS area, the distance between the open sea and the port, and the complexity and particular characteristics of the port, are not taken into account?
(3) Should Article 191 of the [TCA] be interpreted as meaning that, even after the withdrawal, service providers established in the UK can invoke EU law, and [should the first and second questions] be answered in the same way both before and after the withdrawal of the UK?