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The Maritime Cabotage Prohibition

The Maritime Cabotage Prohibition. Presentation by Claire Bradley-Director- European Law Monitor,UK.

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The Maritime Cabotage Prohibition

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  1. The Maritime Cabotage Prohibition Presentation by Claire Bradley-Director- European Law Monitor,UK

  2. Council Regulation No 3577/92/EEC of 7 December 1992 was the EU legislative measure that introduced the principle of freedom to provide services to maritime transport within Member States (maritime cabotage).

  3. Background to Council Regulation 3577/92/EEC • Under Article 61 of the Treaty freedom to provide services in the field of maritime transport is to be governed by the provisions of the Title relating to transport; • The justification for abolishing restrictions on the provision of maritime transport services within Member States was that this was necessary for the establishment of the internal market; • Therefore freedom to provide services should be applied to maritime transport within Member States; • The beneficiaries of this freedom should be Community shipowners operating vessels registered in and flying the flag of a Member State whether or not it has a coastline;

  4. Council Regulation 3577/92/EEC • This Regulation grants freedom to provide maritime transport services within a Member State (maritime cabotage) for Community shipowners operating ships registered in a Member State and flying the flag of that Member State, subject to these ships complying with all the conditions for carrying out cabotage within that Member State.

  5. What is meant by maritime cabotage? • Maritime cabotage includes • 'maritime transport services within a Member State (maritime cabotage)' shall mean services normally provided for remuneration and shall in particular include: • (a) mainland cabotage: the carriage of passengers or goods by sea between ports situated on the mainland or the main territory of one and the same Member State without calls at islands; • (b) off-shore supply services: the carriage of passengers or goods by sea between any port in a Member State and installations or structures situated on the continental shelf of that Member State; • (c) island cabotage: the carriage of passengers or goods by sea between: • - ports situated on the mainland and on one or more of the islands of one and the same Member State, • - ports situated on the islands of one and the same Member State;

  6. The Regulation defines "maritime transport services within a Member State (maritime cabotage)", "Community shipowners", "public service contract", "public service obligations", and "serious disturbance of the internal transport market".

  7. Depending on the kind of transport service, matters relating to manning are the responsibility either of the Member State of registration or of the Member State in which the cabotage service is performed.

  8. The Council Regulation specifically provided that • the implementation of this freedom should be gradual and not necessarily provided for in a uniform way for all services concerned, taking into account the nature of certain specific services and the extent of the effort that certain economies in the Community showing differences in development will have to sustain; • the introduction of public services entailing certain rights and obligations for the shipowners concerned may be justified in order to ensure the adequacy of regular transport services to, from and between islands, provided that there is no distinction on the grounds of nationality or residence;

  9. Safeguard measures • These may be taken by the Commission where • the internal market is seriously disrupted by the liberalization of cabotage • Problems specific to that market appear which: • are likely to lead to a serious and potentially lasting excess of supply over demand, • are due to, or aggravated by, maritime cabotage operations, and • pose a serious threat to the financial stability and survival of a significant number of Community shipowners, • provided that the short-term and medium-term forecasts for the market in question do not indicate any substantial and lasting improvements.

  10. What options are available to a Member State concerned about the effects of maritime cabotage?

  11. Four options • A Member State may request the Commission to adopt safeguard measures. • After consulting the other Member States, the Commission shall decide where appropriate on the necessary safeguard measures, within 30 working days of receipt of the relevant request from a Member State. • Such measures may involve the temporary exclusion, not exceeding 12 months, of the area concerned from the scope of this Regulation. • If after the period of 30 working days the Commission has taken no decision on the subject, the Member State concerned shall be entitled to apply the measures requested until the Commission has taken its decision. • The Commission may also adopt safeguard measures on its own initiative, after consulting the Member States, and this was done from the outset in the case of Greece.

  12. The case of Greece • Maritime cabotage was liberalized on 1 January 1993. In the case of Greece mainland cabotage was gradually liberalized according to a specific timetable for each type of transport service. The Greek maritime cabotage exemption was prolonged until 2004 for scheduled passenger and lighter services and services involving vessels of less than 650 gross tonnage.

  13. Case law relating to maritime cabotage and Greece • This is a contentious topic for Greece, and there have been several cases on the subject.

  14. Case C-288/02 • This was an action bought by the Commission against the Hellenic Republic under Article 226 EC for failure to fulfil obligations. The Commission claimed that • by requiring 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 the Greek authorities were failing to correctly implement Regulation 3577/92; NOT UPHELD

  15. Case C-288/02 continued • by considering that the Peloponnese constitutes an island; The Commission submitted that the Greek authorities wrongly contended, 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. • The Commission understood 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 was by means of a railway line and a national road above the Corinth Canal. • The Greek Government submitted that the Regulation applies criteria other than the fact of actually being surrounded by water for ports to be regarded as island ports. It referred 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. COMMISSION POSITION UPHELD

  16. Case C-288/02 • by applying to Community tankers, freighters, passenger ships and tourist ships, and to Community cruise liners which carry out maritime transport by way of cabotage its national rules as host State relating to manning conditions, the Commission took the view that the Greek authorities were not correctly applying 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 was apparent from the wording of that provision that it applied to all cruise liners whether they carried out mainland cabotage or island cabotage. • The Greek Government took 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.

  17. Findings of the Court • The court held that 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 had failed to fulfil its obligations under the Regulation.

  18. C-251/04 • The Commission of the European Communities asked the Court to declare that, by allowing only vessels flying the Greek flag to provide towage services on the open sea, the Hellenic Republic had failed to fulfil its obligations under Article 1 of Council Regulation (EEC) No 3577/92.

  19. Findings of the Court • The single issue on which the present application stands or falls is therefore whether towage services on the open sea fall within the scope of Regulation No 3577/92, as defined by Article 2(1) thereof. • Court took the view that towage did not come under the scope of the Regulation.

  20. Conclusion • Maritime cabotage has been a highly contentious issue for the Greek authorities • Safeguard measures may be applied by the Commission if it believes that it is appropriate to do so. • However, these will only delay the application of the Regulation. • In time, the Regulation is likely to be progressively introduced

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