Geha Naftiliaki EPE, Total Scope NE and Mr Charalambis jointly with others
are the owners of three vessels used for day trips from the port of Rhodes to
Turkey and back. In June 1996 they carried 4 067 daytrippers and 3 703 transit
passengers. In August 1996, the Dodecanese Harbour Fund found that there was
a shortfall in the harbour dues payable and the question was brought before
the Administrative Court of Rhodes.
Greek legislation imposes harbour dues payable to the public body operating
the port, which are collected by tourist shipping agencies, borne by all passengers
who board a vessel in a Greek port and vary according to the destination of
the vessel. The dues comprise a percentage of the price of the ticket or a fixed
sum. They are unrelated to the nationality of passengers or the flag flown by
the vessels. They are higher for passengers travelling to a port that is
not in Greece.
The Administrative Court of Rhodes referred to the Court of Justice of the
EC the question whether the 1986 Community regulation applying the principle
of the freedom to provide services to maritime transport between Member States
and from Member States to third countries permits
. national legislation which restricts the provision
of maritime transport services between Member States and third countries
. different harbour dues for passengers travelling
to third countries
. for journeys to ports in third countries, that harbour
dues be calculated according to the distance or geographical location of the
port.
The Dodecanese Harbour Fund stated that the harbour dues are payable not by
maritime transport companies but by the passengers and that they therefore do
not fall within the scope of the regulation on maritime transport services.
It claimed that the dues are intended to cover the construction and maintenance
expenses of harbour facilities and the provision of harbour services in general.
The Court points out first of all that increasing harbour dues in
the way that the Greek legislation does affect the price of the journey
in a direct and mechanical way, so that a difference in the fees borne by
passengers automatically affects the cost of the journey.
It further finds that the Dodecanese Harbour Fund has not demonstrated that
the actual costs of journeys differ according to destination in the same proportions
as the harbour dues to Europe or Turkey, or, therefore, that they are objectively
justified, in particular by the provision of services to passengers that vary
according to the journey undertaken.
The 1986 regulation rendered applicable to the sphere of maritime transport
between Member States the principle of the freedom to provide services
and extended it to journeys between a Member State and a third country.
By virtue of that principle, the regulation precludes the application of different
harbour dues for domestic or intra-Community traffic and traffic between a Member
State and a third country if that difference is not objectively justified.
Accordingly, harbour dues that vary according to the destination, where
there is no correlation between that difference and the cost of the harbour
services, amount to a restriction on the freedom to provide services which
is therefore incompatible with the 1986 regulation.
It follows that maritime transport services between Rhodes and Turkey
cannot be subject to more onerous conditions than those to which maritime
transport services between Rhodes and ports in Greece or other Member States
are subject.
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