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2010 EN Official Journal of the European Union C 134/25

Reference for a preliminary ruling from the Supremo Reference for a preliminary ruling from the Simvoulio tis
Tribunal Administrativo (Portugal) lodged on 10 March Epikratias (Greece) lodged on 11 March 2010 — Navtiliaki
2010 — FOGGIA — Sociedade Gestora de Participações Etairia Thasou AE v Ipourgos Emborikis Navtilias
Sociais, SA v Secretário de Estado dos Assuntos Fiscais
(Case C-128/10)
(Case C-126/10)
(2010/C 134/38)
(2010/C 134/37)
Language of the case: Greek
Language of the case: Portuguese

Referring court
Referring court
Simvoulio tis Epikratias (Council of State), Greece
Supremo Tribunal Administrativo

Parties to the main proceedings

Parties to the main proceedings
Applicant: Navtiliaki Etairia Thasou AE
Appellant: FOGGIA — Sociedade Gestora de Participações
Sociais, SA

Defendants: Ipourgos Emborikis Navtilias (Minister for Mercantile

Respondent: Secretário de Estado dos Assuntos Fiscais Marine)

Intervening Party: Ministério Público

Question referred
Do the provisions of Articles 1, 2 and 4 of Council Regulation
(EEC) No 3577/92 of 7 December 1992 applying the principle
Questions referred of freedom to provide services to maritime transport within
Member States (maritime cabotage) (OJ 1992 L 364, p. 7),
(a) What are the meaning and effect of Article 11(1)(a) of interpreted in accordance with the principle of freedom to
Directive 90/434/EEC (1) of 23 July 1990 and, in particular, provide services, allow national schemes to be adopted,
what is the meaning of ‘valid commercial reasons’ and whereby shipowners cannot provide cabotage services without
‘restructuring or rationalisation of the activities’ of a prior administrative authorisation, when: (a) the purpose of
companies participating in operations covered by Directive the authorisation system in question is to allow verification of
90/434/EEC ? whether, in light of the prevailing conditions in a specific port,
the schedules declared by the shipowner can be implemented
under conditions of safety for the ship and maintenance of
order in the port and verification of the ability of the
(b) Is the view taken by the tax authorities, that there are no scheduled vessel to enter a specific port unhindered at the
serious commercial reasons for the acquiring company’s time declared by the shipowner as the preferred time for a
request to transfer tax losses, leading them to conclude specific service without, however, determination in advance in
that, from the acquiring company’s point of view, there a legal rule of the criteria on the basis of which the authorities
was no apparent commercial interest in acquisition, since rule on such questions, especially in a case where more than
the acquired company had developed no activity as a one shipowner is interested in entering the same port at the
holding company and had no financial holdings, and same time; (b) at the same time, the authorisation system in
would consequently transfer only substantial losses, question constitutes a means of imposing public service obli­
although the merger might represent a positive effect in gations, inasmuch as it has in that respect the following
terms of the cost structure of the group, compatible with features: (i) it applies without exception to all scheduled
that provision of Community law? shipping routes to the islands, (ii) it grants the administrative
authority responsible for issuing authorisations the broadest
discretionary powers in terms of imposing public service obli­
gations, without determining in advance in a legal rule the
criteria for the exercise of those powers and without deter­
(1) Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on mining in advance the content of the public service obligations
the common system of taxation applicable to mergers, divisions, which may be imposed?
transfers of assets and exchanges of shares concerning companies
of different Member States (OJ 1990 L 225, p. 1).