3.1 Restrictions on the freedom under Regulation 4055/86: The concept and scope of the prohibition
The case of Vlaams Gewest v P&O North Sea Ferries Limited concerned the dispute arising from Belgian national rules which imposed charges for identical VTS services on vessels longer than 41 meters operating between a port in Belgium and a Flemish port and a port in another Member State. These services had to be paid by vessels above a certain length sailing between a port in a different Member State and a port in Belgium and a Flemish port, but at the same time were provided free of charge to any vessel sailing on a domestic route between Flemish ports.
The CJEU confirmed that Article 1(3) and Article 8 of Regulation 4055/86 make applicable the whole of the Treaty rules relating to freedom to provide services, to the questions covered by this Regulation.(1) Judgment in Vlaams Gewest (n 1), para 21. See also C‑430/99 and C‑431/99 Sea-Land Service and Nedlloyd Lijnen cited in the judgment. The freedom of movement for international maritime transport services under the Regulation means that not only nationality-based discrimination against persons covered by the Regulation, but also other, indistinctly applicable, restrictions are prohibited when they are ‘liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he or she lawfully provides similar services’.(2) Judgment in Vlaams Gewest (n 1), para 22. See also C‑76/90 Säger, para 12, and C‑398/95 SETTG, para 16.
It is clarified in the earlier case law that the Regulation prohibits, among other things, the application of different tariffs for identical (piloting) services for undertakings, depending on whether or not an undertaking, even one from that Member State, which provides maritime transport services between that Member State and another Member State, operates a vessel authorised to engage in maritime cabotage, which is reserved to vessels flying the flag of that State.(3) Judgment in Vlaams Gewest (n 1), para 23. See also C‑18/93 Corsica Ferries, para 35.
By applying a charge for VTS services in a way that treats vessels on such routes less favourably than on domestic routes, Belgium infringed Article 56 TFEU, since this rule was liable to impede or render less attractive the provision of services supplied by a provider established in another Member State. Such legislation therefore constitutes a restriction on the freedom to provide services.(4) Judgment in Vlaams Gewest (n 1), para 27; Sea-Land Service and Nedlloyd Lijnen (n 12), para 38.