Case C-508/08
European Commission
v
Republic of Malta
(Failure of a Member State to fulfil obligations – Freedom to provide maritime transport services – Regulation (EEC) No 3577/92 – Articles 1 and 4 – Cabotage services within a Member State – Obligation to conclude public service contracts on a non-discriminatory basis – Conclusion of an exclusive contract, without a prior call for tenders, before the date of accession of a Member State to the European Union)
Summary of the Judgment
1.Actions for failure to fulfil obligations – Subject-matter of the dispute – Alteration once proceedings have been started – Not allowed
2.Actions for failure to fulfil obligations – Action for a declaration that a Member State has failed to fulfil its obligations as a result of conduct before its accession to the European Union – Regulation No 3577/92 – Signature of a public service maritime cabotage contract without a prior call for tenders
(Council Regulation No 3577/92, Arts 1 and 4)
1.It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection.
When it is quite clear both from the wording of the reasoned opinion and from the form of order sought in the Commission’s application that the failure of the Member State concerned to fulfil obligations arising under Regulation No 3577/92 – applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) – alleged by the Commission, consists in having signed, before that Member State’s accession to the European Union, a public service maritime cabotage contract without a prior call for tenders, the contention, in the reply and at the hearing, that that Member State had not complied with its obligations under that regulation as from the date of its accession to the European Union does not correspond to the form of order sought in the application. Consequently, after examining its merits, the Court cannot adjudicate on such a contention without ruling ultra petita.
(see paras 12, 15-19)
2.An action for a declaration that a Member State has failed to fulfil obligations arising under Regulation No 3577/92 – applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) – as a result of signing a public service maritime cabotage contract on 16 April 2004 without a prior call for tenders could succeed only if that regulation nevertheless required the Member State to fulfil certain obligations before the date of its accession, namely, 1May 2004. Such obligations would require, in particular, the Member States to refrain from concluding a public service contract in a manner inconsistent with Articles 1 and 4 of Regulation No 3577/92 during the period before that regulation was applicable to them.
Since the Commission has in no way based the pleas put forward in support of its action on the possible existence of such obligations, its action for failure to fulfil obligations cannot succeed.
(see paras 20-22)