–

Vlaams Gewest, by J. Joos and J. Stuyck, advocaten,

–

P&O North Sea Ferries Limited and P&O Ferries Limited, by A. Vroninks, advocate,

–

the Belgian Government, by C. Jacob, S. Baeyens and C. Pochet, acting as Agents,

–

the European Commission, by A. Bouquet and J.L. Buendía Sierra, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1), Article 56 TFEU, and Article 191 of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10; ‘the TCA’).

2

The request has been made in two sets of proceedings between Vlaams Gewest (Flemish Region, Belgium), on the one hand, and P&O North Sea Ferries Limited and P&O Ferries Limited (together, ‘the P&O companies’), on the other, concerning the payment of invoices in respect of a charge for the mandatory use of the services of a vessel traffic services system, due from vessels that are bound for ports of the Flemish Region covered by that system (‘Flemish ports’) and that depart from a port situated in a Member State other than the Kingdom of Belgium.

3

Articles 126 and 127 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’) provide:

‘Article 126

Transition period

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020 [(“the transition period”)].

Article 127

Scope of the transition

1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom [of Great Britain and Northern Ireland] during the transition period.

…’

4

Article 4 of the TCA, entitled ‘Public international law’, provides:

‘1.   The provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 [(United Nations Treaty Series, Vol. 1155, p. 331)].

2.   For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either Party.

3.   For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other Party.’

5

Under Article 5 of the TCA, entitled ‘Private rights’:

‘1.   Without prejudice to Article SSC.67 of the Protocol on Social Security Coordination [of the present Agreement] and with the exception, with regard to the [European] Union, of Part Three of this Agreement, nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.

2.   A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement or any supplementing agreement.’

6

Article 191 of the TCA, entitled ‘Obligations’, provides:

‘1.   Without prejudice to non-conforming measures or other measures referred to in Articles 133 and 139, each Party shall implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis …

…’

7

Article 1 of Regulation No 4055/86 provides:

‘1.   Freedom to provide maritime transport services between Member States and between Member States and third countries shall apply in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

2.   The provisions of this Regulation shall also apply to nationals of the Member States established outside the [European] Community and to shipping companies established outside the Community and controlled by nationals of a Member State, if their vessels are registered in that Member State in accordance with its legislation.

3.   The provisions of Articles 55 to 58 and 62 of the Treaty shall apply to the matters covered by this Regulation.

4.   For the purpose of this Regulation, the following shall be considered maritime transport services between Member States and between Member States and third countries where they are normally provided for remuneration:

8

Article 8 of that regulation provides:

‘Without prejudice to the provisions of the Treaty relating to right of establishment, a person providing a maritime transport service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.’

9

Article 37 of the decreet betreffende de begeleiding van de scheepvaart op de maritieme toegangswegen en de organisatie van het Maritiem Reddings- en Coördinatiecentrum (Decree on the guidance of shipping on maritime access routes and the organisation of the Maritiem Reddings- en Coördinatiecentrum (Maritime Rescue and Coordination Centre)) of 16 June 2006 (Belgisch Staatsblad, 26 October 2006, p. 57703), in the version applicable to the disputes in the main proceedings (‘the Decree of 16 June 2006’), provides:

‘Article 37

§ 1 The use of the [Verkeersbegeleidingssysteem (vessel traffic services system; “VTS”)] by vessels bound for a port, waterway, mooring or anchorage located in the operational area of the VTS or in an area managed by a waterway authority or a port authority in Belgium shall be subject to the payment of a VTS fee.

…’

10

Article 37bis of the decree of 16 June 2006 provides:

‘§ 1   For the purposes of the present Decree, the following definitions shall apply:

…

§ 2.   A [VTS] charge shall be payable for each vessel arriving from sea and bound for a Flemish port covered by the [VTS]; it serves as a charge in respect of both entry and exit.

If the vessel enters the tariff area more than once during one calendar day, the tariff shall be payable only once.

The [VTS] charge is not payable in respect of shipping traffic between Flemish ports. …

§ 3.   No fee shall be payable by the following categories of vessels:

…’

11

The Decree of 16 June 2006 lays down a number of rules applicable to maritime transport bound for Flemish ports. Article 37 of that decree requires the payment of a charge for the mandatory use of the services of the VTS by the vessels concerned. That charge is payable in respect of all vessels of a length of 41 metres or more that are bound for a port situated in that system’s operational area. It is applicable on a one-off basis to the vessels concerned if they enter Flemish ports more than once during the same calendar day. However, it is not payable for those vessels if they sail solely between Flemish ports.

12

The VTS includes, inter alia, radar monitoring, telecommunications, an advanced data-processing system and an automatic identification system. All of those services are intended, in essence, to provide the command of the vessels concerned with all the necessary advice and comprehensive information on obstacles to navigation so that they can reach or leave the port in question safely and without hindrance.

13

P&O North Sea Ferries is, according to the request for a preliminary ruling, a company incorporated under English law which is active in Belgium in the maritime passenger and freight transport sector between the United Kingdom and continental Europe. It serves, inter alia, the route between the port of Zeebrugge (Belgium) and the United Kingdom.

14

Since 1996, the Flemish Region has issued the P&O companies with invoices in respect of the charge payable for the mandatory use of the services of the VTS. The P&O companies have systematically refused to pay those invoices in respect of maritime traffic to or from Zeebrugge.

15

The Flemish Region brought an action before the ondernemingsrechtbank Gent, afdeling Oostende (Business Court, Ghent, Ostend Division, Belgium), which is the referring court, seeking an order requiring the P&O companies to pay those invoices, which have remained outstanding since 30 April 1996, together with statutory interest where applicable. The amount claimed by the Flemish Region totals more than EUR 13 million.

16

The P&O companies claim, in essence, that the charge payable under the Decree of 16 June 2006 for the mandatory use of the services of the VTS is contrary to the freedom to provide transport services in respect of maritime traffic to or from the port of Zeebrugge in the light of Article 56 TFEU and Article 1 of Regulation No 4055/86. According to the P&O companies, the exemption from that charge enjoyed by vessels serving a route between Flemish ports constitutes prohibited discrimination. Moreover, that charge was not designed in such a way as to take account of the actual use of the services of the VTS. Lastly, the P&O companies submit that they may rely on that fundamental freedom under Article 191 of the TCA even after the end of the transition period during which EU law had remained applicable, that is to say, after 1 January 2021.

17

The Flemish Region submits that EU law authorises justified restrictions on the freedom to provide services, as held by the Court in the judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen (C‑430/99 and C‑431/99, EU:C:2002:364). Furthermore, according to the Flemish Region, the exemption from that charge enjoyed by traffic between Flemish ports is intended to prevent the payment of the charge several times where a vessel first crosses the sea, bound for a Flemish port, and sails from that Flemish port to another Flemish port. The Flemish Region states that the VTS is intended, in essence, to ensure the safety and fluidity of navigation on the maritime access routes to and from Flemish maritime ports.

18

In those circumstances the ondernemingsrechtbank Gent, afdeling Oostende (Business Court, Ghent, Ostend Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

19

By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1 of Regulation No 4055/86, read in conjunction with Article 56 TFEU, must be interpreted as precluding national legislation which provides that maritime traffic that is bound for designated ports of a Member State and that departs from ports situated in other Member States is subject to the payment, in respect of the mandatory use of the services of a vessel traffic services system, of a charge which is calculated solely on the basis of the length of the vessel, to the exclusion of any other factor, and from which maritime traffic between those designated ports is exempt.

20

As a preliminary point, it must be recalled that Regulation No 4055/86, adopted on the basis of Article 84(2) of EEC Treaty (now Article 100 TFEU), lays down measures for the application in the maritime transport sector of the principle of freedom to provide services laid down in Article 59 of the EEC Treaty (now Article 56 TFEU). The Court held that Article 1(1) of that regulation defines the beneficiaries of freedom to provide maritime transport services between Member States and between Member States and third countries in terms which are substantially the same as those in Article 59 of the EEC Treaty (judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 30).

21

Moreover, it follows from Article 1(3) and Article 8 of Regulation No 4055/86 that the regulation makes applicable to the matters covered by the regulation the whole of the Treaty rules relating to freedom to provide services (judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 31).

22

In that regard, it should be borne in mind that, according to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against a person providing services on the ground of his or her nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when it is 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 (judgments of 25 July 1991, Säger, C‑76/90, EU:C:1991:331, paragraph 12, and of 5 June 1997, SETTG, C‑398/95, EU:C:1997:282, paragraph 16).

23

The Court held that Article 1(1) of Regulation No 4055/86 prohibits a Member State from applying different tariffs for identical piloting services, 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 (judgment of 17 May 1994, Corsica Ferries, C‑18/93, EU:C:1994:195, paragraph 35).

24

In the present case, it is apparent from the request for a preliminary ruling that, pursuant to the legislation at issue in the main proceedings, the charge payable for the mandatory use of the services of the VTS is imposed on vessels of a length of 41 metres or more, departing from a Member State other than the Kingdom of Belgium, whereas vessels sailing between Flemish ports are exempt from it. Thus, the services of the VTS are provided free of charge to any vessel sailing a domestic route between Flemish ports, whereas they are paid for a vessel of a certain length sailing between a port situated in a Member State other than the Kingdom of Belgium and a Flemish port.

25

Therefore, by imposing that charge solely on vessels of a certain length that sail between a port situated in a Member State other than the Kingdom of Belgium and a Flemish port, that national legislation provides for a difference in treatment depending on whether or not the route taken by the vessel concerned is domestic. Thereby, it applies less favourable rules to transport services between a Flemish port and the port of a Member State other than the Kingdom of Belgium than those applied to transport services between Flemish ports.

26

It must be specified in that regard that even if traffic on those domestic maritime routes consisted only of a limited number of vessels, as the Flemish Region maintains, that would have no bearing on the applicability of Article 56 TFEU. To make the applicability of Article 56 TFEU dependent on a quantitative criterion would jeopardise the uniform application of that article within the European Union, which means that such a criterion cannot be accepted (judgment of 3 December 2020, BONVER WIN, C‑311/19, EU:C:2020:981, paragraph 29).

27

Consequently, it should be stated that legislation of a Member State, such as that described in paragraph 24 above, is 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 (see, to that effect, judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 38 and the case-law cited).

28

Freedom to provide services, as a fundamental principle of the Treaty, may be restricted only by rules which are justified by overriding reasons in the general interest and are applicable to all persons or 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 (judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 39).

29

In the present case, the Flemish Region has stated that the VTS, the use of which is mandatory and is subject to the payment of the charge at issue in the main proceedings, is intended, in essence, to ensure the safety and fluidity of navigation on the maritime access routes to and from Flemish maritime ports.

30

In that regard, first of all, it must be recalled that the Court has held, on several occasions, that the aim of ensuring safety in port waters constitutes an overriding reason in the public interest (judgments of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraphs 41 and 42, and of 17 March 2011, Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia, C‑128/10 and C‑129/10, EU:C:2011:163, paragraph 45 and the case-law cited).

31

Next, as the Advocate General observed in point 33 of his Opinion, 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, appears, in principle, to be such as to contribute to the objective of general interest regarding security in port waters.

32

Lastly, as regards the proportionality of that charge, which is dependent solely on the length of the vessels concerned, it must be borne in mind that the Court held that national legislation that requires the payment of a charge by sea-going vessels longer than 41 metres is proportionate in so far as there is in fact a correlation between the cost of the service from which those vessels benefit and the amount of that charge, but that that would not be the case where that amount included cost factors chargeable to categories of ships other than sea-going vessels longer than 41 metres (judgment of 13 June 2002, Sea-Land Service and Nedlloyd Lijnen, C‑430/99 and C‑431/99, EU:C:2002:364, paragraph 43).

33

In the light of that case-law, the view should be taken that, although the length of the vessels concerned may be a criterion for imposing an obligation to use the VTS subject to the corresponding charge, the amount of that charge should also have an actual link with the cost of the services rendered so as to achieve the objective pursued.

34

In the present case, the referring court notes, in that regard, that there are significant regional disparities, stating that access to the port of Antwerp (Belgium) and access to the port of Zeebrugge are fundamentally different in nature and complexity, since the port of Zeebrugge is easily accessible from the open sea, while access to the port of Antwerp requires a difficult crossing of the Western Scheldt estuary and, therefore, greater use of the VTS.

35

In those circumstances, tariffs that differ depending on the port concerned and the objective difficulties specific to navigation and docking in that port would be more commensurate with the objective pursued. It should therefore be stated 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.

36

In the light of all the foregoing considerations, the answer to the first and second questions is that Article 1 of Regulation No 4055/86, read in conjunction with Article 56 TFEU, must be interpreted as precluding national legislation which provides that maritime traffic that is bound for designated ports of a Member State and that departs from ports situated in other Member States is subject to the payment, in respect of the mandatory use of the services of a vessel traffic services system, of a charge which is calculated solely on the basis of the length of the vessel, to the exclusion of any other factor, and from which maritime traffic between those designated ports is exempt, unless there is in fact a correlation between the cost of the services provided and the amount of that charge.

37

By its third question, the referring court asks, in essence, whether Article 191 of the TCA must be interpreted as meaning that, even after the withdrawal of the United Kingdom from the European Union, service providers established in the United Kingdom may legitimately rely on EU law, in particular on Article 1 of Regulation No 4055/86, read in conjunction with Article 56 TFEU.

38

It should be noted, as a preliminary point, that Articles 126 and 127 of the Withdrawal Agreement provided for the transition period. During that period, the United Kingdom had to be regarded as a Member State and, consequently, relations between the European Union and that future former Member State were governed by EU law, unless otherwise specified. The parties to that agreement had therefore provided for the continued application of a significant part of the EU acquis, in order to reduce uncertainty and, to the extent possible, minimise disruption caused by the fact that, on the date of the departing State’s withdrawal from the European Union, the Treaties cease to apply to that State (see, to that effect, judgments of 16 November 2021, Governor of Cloverhill Prison and Others, C‑479/21 PPU, EU:C:2021:929, paragraph 51, and of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 43).

39

Since the end of the transition period, legal relations between the United Kingdom and the European Union have been governed by the TCA.

40

Article 191(1) of the TCA provides that ‘each Party shall implement the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis’.

41

According to the P&O companies, it follows from that provision that maritime traffic to the European Union from the United Kingdom may not be treated less favourably than maritime traffic between Member States. The P&O companies submit that, in the light of that provision, the freedom to provide services continues to apply after the United Kingdom’s withdrawal from the European Union and that the referring court should therefore apply Regulation No 4055/86 to the part of the invoices relating to the period following that withdrawal.

42

It must, nevertheless, be stated that, pursuant to Article 4(1) of the TCA, the provisions of that agreement must be ‘interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties’. Article 4(2) of the TCA specifies that ‘[the TCA] [does not establish] an obligation to interpret [its] provisions in accordance with the domestic law of either Party’. Furthermore, Article 5(1) of the TCA provides that, subject to any exception, ‘nothing in this Agreement … shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement … to be directly invoked in the domestic legal systems of the Parties’.

43

It must, in that regard, be stated that, in conformity with the principles of international law, European Union institutions which have power to negotiate and conclude an international agreement are free to agree with the third States concerned what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. Only if that question has not been settled by the agreement does it fall to be decided by the courts having jurisdiction in the matter, and in particular by the Court of Justice, in the same manner as any question of interpretation relating to the application of that agreement in the European Union (judgment of21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 49). Nevertheless, as is clear from paragraph 42 above, the question of the application of Article 191 of the TCA is governed by that agreement.

44

It follows that, as the Advocate General observed in point 53 of his Opinion, from the date of application of the TCA, the EU acquis ceased to regulate relations between the European Union and the United Kingdom. The P&O companies cannot therefore rely directly on either EU law or the TCA before the referring court.

45

In the light of all the foregoing considerations, the answer to the third question is that Article 191 of the TCA, read in conjunction with Article 5 thereof and Article 127 of the Withdrawal Agreement, must be interpreted as meaning that, after the withdrawal of the United Kingdom from the European Union, service providers established in the United Kingdom may no longer rely on EU law before the national courts of the Member States, in particular on Article 1 of Regulation No 4055/86, read in conjunction with Article 56 TFEU, as regards facts or legal situations arising after 31 December 2020.

46

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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