7.2.2009

EN

Official Journal of the European Union

C 32/18

(Case C-508/08)

(2009/C 32/28)

Language of the case: Maltese

Parties

Applicant: Commission of the European Communities (represented by: J. Aquilina, K. Simonsson, acting as Agents)

Defendant: Republic of Malta

Form of order sought

—declare that, by signing an exclusive public service contract with ‘Gozo Channel Company Ltd’ (GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic of Malta has failed to fulfil its obligations, in particular under Articles 1 and 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage)(1);

—order the Republic of Malta to pay the costs.

Pleas in law and main arguments

So as to be able to conclude a public service contract for the provision of cabotage services between Malta and Gozo, the Maltese authorities have to demonstrate that such a contract is necessary so as to impose those public service obligations that it deems necessary to ensure an appropriate service for the abovementioned route, and that the contract is adequate in the light of its aims.

While the Commission readily acknowledges that a satisfactory service is paramount for the Malta-Gozo route, it states on the other hand that the Maltese authorities have in no manner provided this proof; in this sense, they have not even sought to establish if one or more private operators were capable of providing this service on the same conditions on a purely commercial basis. In addition, they have not shown that the exclusivity given to GCCL is an appropriate and adequate means to achieve this end.

In addition, the fact that this contract was concluded without a prior open call for Community tenders, so as to ensure access on a non-discriminatory basis in respect of all Community shipowners, runs counter to the requirements of Regulation No 3577/92.

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(1) OJ 1992 L 364, p. 7.