3.2 Safety of ports as objectives of overriding public interest justifying the restriction
In line with the general approach under EU law, the CJEU accepted that national rules imposing a restriction on freedom of maritime transport services can, in principle, be justified by overriding reasons in the general interest, assuming that such rules are equally applicable to all persons or undertakings pursuing an activity in the territory of the host Member State. In addition, such national rules ‘must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it’ (proportionality of the restriction).(1) Judgment in Vlaams Gewest (n 1), para 28; Sea-Land Service and Nedlloyd Lijnen (n 12), para 39.
The aim of securing safety in port waters is, in principle, accepted as being such a reason, according to well-established case law.(2) Judgment in Vlaams Gewest (n 1), para 30 ; Sea-Land Service and Nedlloyd Lijnen (n 12), paras 41 and 42; C‑128/10 and C‑129/10 Naftiliaki EtaireiaThasou and Amaltheia I Naftiki Etaireia, para 45. The Court agreed that a traffic services system,, such as the VTS, constitutes a nautical service essential to the maintenance of public security in coastal waters as well as in ports. The imposition of a fee for the mandatory use of that system, to which vessels of a length of 41 metres or more are subject as users of that system, appeared to the Court to be capable of contributing to the objective of general interest regarding security in port waters.(3) Judgment in Vlaams Gewest (n 1), para 31.
With regard to the charge applied solely on the length of the vessels concerned, the CJEU accepted that the length may, in principle, be a relevant criterion for imposing such a charge. However, the Court pointed out that there must be an actual correlation between the cost of the service from which those vessels benefit and the amount of that charge.
It follows from the earlier rulings by the Court that this is not the case where that amount includes cost factors chargeable to categories of ships other than sea-going vessels longer than 41 metres.(4)Sea-Land Service and Nedlloyd Lijnen (n 12), paras 32-33. In Vlaams Gewest, significant regional disparities existed between the ports, since accessibility of different ports may be fundamentally different in nature and complexity, influencing the need for VTS. The Court established that ‘the application of a single tariff to vessels of a certain length, irrespective of the objective difficulties specific to navigation and docking in the designated ports, in the light, moreover, of the non-application of that tariff to comparable vessels sailing a domestic route from or to a port to which access might prove just as difficult as for vessels departing from or bound for a Member State other than the Kingdom of Belgium, goes beyond what is necessary to attain the asserted objective of safety.’(author’s italics)(5) Judgment in Vlaams Gewest (n 1), para 35. This conclusion is hardly surprising, although it is more indicative of the Court’s disapproval of the inherently discriminatory nature of the charge in question, than of its excessive character (‘beyond what is necessary’).