(Maritime transport – Freedom to provide services – Maritime cabotage)

Summary of the Judgment

(Council Regulation No 3577/92, Art. 1)

(Council Regulation No 3577/92)

3. Transport – Maritime transport – Freedom to provide services – Maritime cabotage – Principle of the responsibility of the flag State for matters relating to manning – Scope – Cruise liners carrying out island cabotage – Included – Condition

(Council Regulation No 3577/92, Art. 3(1))

1.A national measure making the provision of maritime cabotage services subject to production by Community ships entered in a second or international register of a certificate issued by an authority of the flag State declaring that they are authorised to provide cabotage services constitutes a restriction on the freedom to provide those services.

Such a measure may nevertheless be justified by overriding reasons in the general interest provided that it is applicable to all persons and undertakings pursuing an activity in the territory of the host Member State, it is suitable for securing the attainment of the objective which it pursues and it does not go beyond what is necessary in order to attain that objective. As regards those latter conditions relating to the proportionality of the measure in question, the Commission, which has the burden of proof in proceedings for failure to fulfil obligations, by proposing alternative solutions which either do not serve fully to attain the objective sought or in practice turn out to be more complex or more restrictive of freedom to provide services than the certificate system, has not shown that there is a failure to fulfil obligations under Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage).

(see paras 30-33, 35)

2.An island within the meaning of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) is defined as an area of dry land elevated permanently from the sea.

An area of land which is separated from the rest of the mainland only by a man-made canal a few tens of metres wide cannot be classified as an island.

(see paras 42-43)

3.Article 3(1) of Regulation No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) applies to all cruise liners, irrespective of the nature of the cabotage they carry out. Therefore, as regards cruise liners exceeding 650 gt which carry out island cabotage, all matters relating to manning are the responsibility of the flag State.

(see paras 54, 56)

21 October 2004(1)

(Maritime transport – Freedom to provide services – Maritime cabotage)

In Case C-288/02,ACTION under Article 226 EC for failure to fulfil obligations, brought on 9 August 2002,

Commission of the European Communities, represented by K. Simonsson and M. Patakia, acting as Agents, with an address for service in Luxembourg,

applicant,

Hellenic Republic, represented by E.-M. Mamouna, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann and R. Schintgen, Judges,

Advocate General: A. Tizzano,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 March 2004,after considering the observations submitted by the parties,

after hearing the Opinion of the Advocate General at the sitting on 19 May 2004,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

By way of derogation, island cabotage in the Mediterranean and cabotage with regard to the Canary, Azores and Madeira archipelagoes, Ceuta and Melilla, the French islands along the Atlantic coast and the French overseas departments shall be temporarily exempted from the implementation of this Regulation until 1 January 1999.

3.For reasons of socioeconomic cohesion, the derogation provided for in paragraph 2 shall be extended for Greece until 1 January 2004 for regular passenger and ferry services and services provided by vessels less than 650 gt.

Under Article 9 of the Regulation:

‘Before adopting laws, regulations or administrative provisions in implementation of this Regulation, Member States shall consult the Commission. They shall inform the latter of any measures thus adopted.’

Article 10 of the Regulation provides:

‘The Commission shall submit to the Council, before 1 January 1995, and thereafter every two years, a report on the implementation of this Regulation and, if appropriate, shall also put forward any necessary proposals.’

National legislation

The Ipourgio Emborikis Naftilias (Ministry of the Merchant Navy) published three circulars addressed to the inland port authorities in August and December 1998.

Circular No 1151.65/1/98 of 4 August 1998 entitled ‘Activities of cargo vessels and tankers flying Community flags which carry out maritime cabotage’ states that the Regulation forms an integral part of Greek legislation and prevails over any conflicting provision. Furthermore, point 2.1.1 of that circular lists the ports of the Peloponnese as island ports.

Point 2.1.2 provides that, in order to be able to carry out cabotage in Greek waters, an operator using vessels entered in a second register or international register is required to furnish proof that the vessel in question is able to carry out transport activities in the flag country of origin.

Circular No 1151.65/2/98 of 18 December 1998 entitled ‘Activities of passenger and tourist vessels and cruise liners flying Community flags which operate tours (cruises) in Greek waters’ repeats the provisions of the previous circular so far as concerns the Peloponnese. Point 2.4.1 states:

‘In general, Greek legislation (as the legislation of the host State) is to apply to the composition of the crews of Community passenger and tourist vessels and cruise liners which are authorised to carry out cruises between mainland ports and the islands or between island ports of our country, whilst the legislation of the flag State is to apply to cruises between ports situated on the mainland.’

Circular No 2311.10/10/98 of 21 December 1998 entitled ‘Manning of cargo vessels, tankers and cruise liners flying Community flags which carry out maritime cabotage’ provides for the application of the provisions of the Greek navy as far as concerns manning conditions.

Pre-litigation procedure

After a first exchange of correspondence concerning the implementation of the Regulation by the Hellenic Republic after 1 January 1999 and taking the view that the latter had not fulfilled all the obligations flowing from that regulation, the Commission sent the Hellenic Republic a letter of formal notice on 3 May 2000, to which the Hellenic Republic replied by letter of 28 July 2000.

Believing the reply given and the information received at a work session organised on 16 February 2001 to be unsatisfactory, on 18 July 2001 the Commission sent the Hellenic Republic a reasoned opinion, to which the latter replied by letter of 12 October 2001.

Taking the view that the measures necessary to comply with the obligations arising from the Regulation had not been taken by the Greek authorities, the Commission decided to bring the present action.

Substance

In the light of certain clarifications provided by the Greek Government, the Commission withdrew the second part of the fourth complaint in the reply and the first complaint at the hearing.

In the light of that withdrawal, only the Commission’s second and third complaints and the first part of the fourth complaint will be examined.

The second complaint

Arguments of the parties

The Commission is of the opinion that, by requiring from Community ships entered in a second or international register a certificate issued by an authority of the flag State declaring that that ship is authorised to provide cabotage services, the Greek authorities are creating an obstacle to freedom to provide services.

Even if it is accepted that that restriction is justified by an overriding reason in the general interest, according to the Commission it constitutes a disproportionate measure going beyond what is strictly necessary to attain the objective sought.

The same result could be achieved by less restrictive means, such as an obligation to submit a copy of the legislation of the Member State authorising ships entered in an international register to provide inland services, or an annual communication of information to national authorities by their counterparts in the other Member States on the development of legislation in the maritime sector. Where there is uncertainty, the Greek authorities could also question the Commission in that regard.

In addition, the reports published every two years by the Commission for the attention of the Member States in accordance with Article 10 of the Regulation are a useful tool for checking whether the legal requirements for carrying out cabotage services in the flag State are fulfilled.

Moreover, their effectiveness is increased by the Commission’s undertaking to regularly inform the Member States of national legislative amendments relating to second registers, including those occurring between two reports, in so far as those amendments have been notified to the Commission pursuant to Article 9 of the Regulation.

The Greek Government states that in some Member States there are registers called, inter alia, second registers or international registers, in which ships are registered which cannot necessarily provide cabotage services within those Member States. Therefore, for the purposes of applying Article 1 of the Regulation correctly, the host State must satisfy itself that the ship wishing to carry out cabotage fulfils the conditions required to carry out cabotage in the flag State.

As regards ships, it disputes that there are measures which are less restrictive of freedom to provide services than the obligation to provide a certificate issued by the flag State declaring that the conditions required to carry out cabotage in that State are fulfilled.

Regarding Article 9 of the Regulation, the Greek Government observes that that provision refers to the Member States informing the Commission and not the other way around. That provision does not therefore really provide for continuous information by the Commission to the Member States.

As regards the report which must be drawn up under Article 10 of the Regulation, the Greek Government maintains that it is published over a year after expiry of the two-year period it covers. It follows that legislative amendments introduced at a certain time in a Member State making cabotage within that State possible are communicated to the other Member States by means of such a report only after a considerable delay.

Therefore, its certificate system is more consistent with freedom to provide services as it makes possible immediate notification of a legislative amendment made in another Member State.

Furthermore, the solution proposed by the Commission involving the submission of a copy of the legislation of the Member State authorising ships entered in international registers to carry out cabotage in that Member State is not proportionate to the objective sought. On the contrary, that solution is more complex, since the legislation must be translated in its entirety by an official authority and submitted to the port authorities of the host State.

Findings of the Court

It should be noted that Article 1 of the Regulation clearly establishes the principle of freedom to provide maritime cabotage services within the Community (Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 20).

A national measure which requires from Community ships entered in a second or international register a certificate issued by the competent authority of the flag State declaring that that ship is authorised to provide cabotage services is liable to impede or render less attractive the provision of those services and therefore constitutes a restriction on the freedom to provide them (see, to that effect, Analir, cited above, paragraph 22).

As regards the admissibility of that restriction, it should be noted, first, that the wording of Article 1(1) of the Regulation does not itself provide any indication as to whether a certificate may be demanded in order to determine whether, as that provision requires, a ship complies with all conditions for carrying out cabotage in the flag State (see, to that effect, Analir, cited above, paragraph 24).

Secondly, it is important to note that freedom to provide services, as a fundamental principle of the EC Treaty, may be restricted only by rules which are justified by overriding reasons in the general interest and are applicable to all persons and undertakings pursuing an activity in the territory of the host Member State. Furthermore, in order to be so justified, the national legislation in question 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 (see Analir, cited above, paragraph 25, and case-law cited).

The Commission’s second complaint falls within that context of the proportionality of the national legislation in question. The Commission complains that the Hellenic Republic requires from Community ships a certificate issued by the flag State while there are measures less restrictive of freedom to provide services in order to attain the objective, which is to determine whether that ship complies with all conditions for carrying out cabotage in that State.

However, as the Advocate General explains in paragraphs 27 to 37 of his Opinion, the alternative solutions proposed by the Commission either do not serve to fully attain the objective sought or in practice turn out to be more complex or more restrictive of freedom to provide services than the certificate system currently in existence.

In those circumstances, the Commission, which has the burden of proof in proceedings for failure to fulfil obligations (see, inter alia, Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 102, and case-law cited), has not been able to show that the Hellenic Republic, by requiring that certificate, has failed to fulfil its obligations under the Regulation.

It follows that the second complaint should be dismissed.

The third complaint

Arguments of the parties

The Commission submits that the Greek authorities wrongly contend, relying only on the etymology of the name, that the Peloponnese constitutes an island, thereby artificially extending the derogation in Article 6(3) of the Regulation to maritime cabotage services between the ports of the Peloponnese and between the ports situated on the mainland and the ports of the Peloponnese.

It notes that the Peloponnese was formerly linked to the Greek mainland, from which it was separated by a man-made canal. In addition, communication between the Peloponnese and Greece is by means of a railway line and a national road above the Corinth Canal.

The Greek Government submits that the Regulation applies criteria other than the fact of actually being surrounded by water for ports to be regarded as island ports. It refers in that connection to Ceuta and Melilla which are regarded as island ports by Article 2(1)(c) of the Regulation, although they are clearly mainland ports in so far as they are situated on the coast of mainland Africa.

Moreover, citing Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I-8855, the Greek Government contends that the decisive criterion for determining whether or not a geographic area constitutes an island lies in a statistical analysis of trade carried out by sea.

Finally, in the light of the spirit of tolerance and understanding towards certain economies in the Community having particular characteristics, shown by both the preamble to the Regulation and Article 6(3) of the Regulation which provides for a derogation for Greece for reasons of socioeconomic cohesion, that derogation should also be applied to the Peloponnese.

Findings of the Court

42Since the Regulation does not contain a definition of the term ‘island’, resort must be had to the common meaning of that term under which an island is defined, in a maritime context, as an area of dry land elevated permanently from the sea.

43As the Advocate General observes in paragraph 44 of his Opinion, there is no doubt that the Peloponnese is, from a geographical point of view, a peninsula. It was separated from the rest of Greece only by a man-made canal a few tens of metres wide. In those circumstances, it cannot be classified as an island for the purpose of the Regulation.

44Nor does the fact that Article 2 of the Regulation puts the ports of Ceuta and Melilla in the category of island ports run counter to such an interpretation.

45Those two ports constitute island ports solely because they have been categorised as island ports by Article 2 of the Regulation. They are not island ports by nature. Therefore, a comparison between Ceuta and Melilla, on the one hand, and the ports of the Peloponnese, which have not been categorised as island ports by Article 2 of the Regulation, on the other, invalidates rather than bears out the argument of the Greek Government that the Peloponnese constitutes an island.

46Moreover, as the Advocate General maintains in paragraph 45 of his Opinion, although in relation to mainland Africa the ports of those towns are mainland ports, the fact remains that in relation to mainland Europe and in particular to the Iberian peninsular, those ports are comparable to island ports because they have no land links with Spain.

47As far as concerns the judgment referred to by the Greek Government in Italy and Sardegna Lines v Commission, cited above, it suffices to state that in that case the Court did not express a view on the term ‘island’.

48Finally, the broad interpretation of Article 6(3) of the Regulation which the Greek Government suggests is at odds with the fact that that provision, as a derogation from the general rules provided for by the Regulation on freedom to provide maritime transport services within a Member State, must be interpreted strictly.

49It follows from the foregoing that the Commission’s third complaint is well founded.

The first part of the fourth complaint

50At the hearing, the Commission made it clear that the first part of the fourth complaint relates solely to the fact that, under point 2.4.1 of Circular No 1151.65/2/98, the Greek legislation on the manning of ships applies to Community cruise liners exceeding 650 gt which carry out island cabotage.

51It contends that the provision cited above infringes Article 3(1) of the Regulation, which provides that all matters relating to manning are to be the responsibility of the flag State, except for ships smaller than 650 gt, where host State conditions may be applied. According to the Commission, it is apparent from the wording of that provision that it applies to all cruise liners whether they carry out mainland cabotage or island cabotage.

52The Greek Government takes the view that, under Article 3(2) of the Regulation, all matters relating to manning, for all categories of ships carrying out cabotage between island ports, including cruise liners, are the responsibility of the host State.

53As follows from the wording of Article 3(1) of the Regulation, that provision applies to vessels carrying out mainland cabotage and to cruise liners. Article 3(2) applies to vessels carrying out island cabotage.

54It follows that the absence of any classification of ‘cruise liners’ in Article 3(1) of the Regulation means that that provision applies to all cruise liners, irrespective of the nature of the cabotage they carry out.

55That interpretation is borne out by the fact that, as the Advocate General notes in paragraph 54 of his Opinion, if cruise liners carrying out island cabotage were to be regarded as being covered by Article 3(2) of the Regulation, the reference to cruise liners in Article 3(1) would no longer have any meaning since the words ‘vessels carrying out mainland cabotage’ already cover cruise liners carrying out that type of cabotage.

56Therefore, as regards cruise liners exceeding 650 gt which carry out island cabotage, all matters relating to manning are the responsibility of the flag State. Since point 2.4.1 of Circular No 1151.65/2/98 provides the contrary, the Hellenic Republic has failed to fulfil its obligations under the Regulation.

57It follows that the first part of the fourth complaint is well founded.

Costs

58Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party’s pleadings. However, under the first paragraph of Article 69(3), the Court may order that the parties bear their own costs where each party succeeds on some and fails on other heads. Since the Commission and the Hellenic Republic have been partially unsuccessful, the parties must be ordered to bear their own costs.

On those grounds, the Court (Second Chamber) hereby:

Declares that, by regarding the Peloponnese as an island and applying to Community cruise liners exceeding 650 gt which carry out island cabotage its national rules as host State on manning conditions, the Hellenic Republic has failed to fulfil its obligations under Articles 1, 3 and 6 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);

Dismisses the remainder of the action;

Orders each party to bear its own costs.

Signatures.

Language of the case: Greek.