Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 3 September 2026 (1)
Case C‑478/25
TECHNIKI PROSTASIAS PERIVALLONTOS A.E.
v
Ypourgos Anaptixis,
Ypourgos Perivallontos kai Energeias,
Ypourgos Naftilias kai Nisiotikis Politikis,
Ypourgos Esoterikon,
Ypourgos Ethnikis Oikonomias kai Oikonomikon,
interveners:
Organismos Limenos Peiraios A.E.,
HELLENIC ENVIRONMENTAL CENTER MONOPROSOPI ANONYMI ETAIREIA DIACHEIRISIS KAI EPEXERGASIAS PETRELAIOEIDON KATALOIPON A.E. (HEC A.E.),
ANTIPOLLUTION MONOPROSOPI ANONYMI NAFTILIAKI ETAIREIA (ANTIPOLLUTION)
(Request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece))
( Preliminary ruling – Directive (EU) 2019/883 – Port reception facilities for the delivery of waste from ships – Article 2(9) – Concept of ‘anchorage area within the jurisdiction of the port’ – Jurisdiction of the port operator )
Introduction
1. By this request for a preliminary ruling, the Symvoulio tis Epikrateias (Council of State, Greece) seeks an interpretation of Directive (EU) 2019/883 on port reception facilities for the delivery of waste from ships. (2) That directive requires the establishment of adequate facilities in ports for ships to deliver their waste, while providing for a system which encourages ship operators to make effective use of those facilities and which discourages them from any intention of discharging waste at sea.
2. Against that background, the dispute in the main proceedings is between TECHNIKI PROSTASIAS PERIVALLONTOS AE (‘TPP’), a company based in Piraeus (Greece) and active, in particular, in the sector for the reception and management of waste and cargo residues from ships, and five Greek ministries, concerning the annulment of a provision of a ministerial decision (3) which is intended to transpose that directive into national law.
3. In that regard, although the ministerial decision at issue in the main proceedings reproduces the definition of the concept of ‘port’ set out in that directive, which includes ‘the anchorage area within the jurisdiction of the port’, it also defines the term ‘anchorage’ as ‘a designated maritime area in the vicinity of a port, located outside the area of jurisdiction of the port operator and within the jurisdiction of the relevant port authority’. (4)
4. By its action before the referring court, TPP claims that that definition of the term ‘anchorage’ is too broad when compared to the scope of Directive 2019/883, since in TTP’s view, the latter applies only to anchorages located within the jurisdiction of the port operator. Without claiming that such a definition is substantively incompatible with the directive in question, TPP considers that, by adopting that definition, the national regulatory authority infringed the national enabling rules, which require it to confine itself to the content of the transposed directive. Accordingly, it is in order to be able to rule on the legality under national law of the regulatory authority’s action that the referring court seeks an interpretation of the term ‘anchorage area within the jurisdiction of the port’, contained in Article 2(9) of Directive 2019/883.
Legal Framework
European Union law
5. Recitals 10, 12, 14, 18, and 51 of Directive 2019/883 read as follows:
‘(10) Despite those regulatory developments, discharges of waste at sea still occur at substantial environmental, social and economic costs. This is due to a combination of factors, namely adequate port reception facilities not always being available in ports, enforcement often being insufficient and there being a lack of incentives to deliver the waste onshore.
…
(12) The REFIT Evaluation [(5)] has … demonstrated that Directive 2000/59/EC [(6)] has not been fully effective due to inconsistencies with the MARPOL Convention framework. [(7)] In addition, Member States have developed different interpretations of the key concepts in that Directive, such as adequacy of the facilities, advance waste notification, the mandatory delivery of waste to port reception facilities and exemptions for ships in scheduled traffic. The REFIT Evaluation called for more harmonisation of those concepts and full alignment with the [Marpol 73/78] Convention in order to avoid unnecessary administrative burden on both ports and port users.
…
(14) Union maritime policy should aim at a high level of protection of the marine environment taking into account the diversity of the maritime areas of the Union. It should be based on the principles that preventive action should be taken and that damage to the marine environment should, as a priority, be rectified at source and that the polluter should pay.
…
(18) Every year a substantial amount of plastic enters the seas and oceans in the Union. Although, in most sea areas, the majority of marine litter originates from land-based activities, the shipping industry, including the fishing and recreational sectors, is also an important contributor, with discharges of waste, including plastic and derelict fishing gear, going directly into the sea.
…
(51) The Union is characterised by regional differences at port level, as also demonstrated in the territorial impact assessment carried out by the Commission. Ports differ based on geographic location, size, administrative set-up and ownership, and are characterised by the type of ships that normally visit. In addition, waste management systems reflect the differences at municipal level and downstream waste management infrastructure.’
6. Article 1 of that directive, entitled ‘Subject matter’, provides:
‘This Directive aims to protect the marine environment against the negative effects from discharges of waste from ships using ports located in the Union, while ensuring the smooth operation of maritime traffic, by improving the availability and use of adequate port reception facilities and the delivery of waste to those facilities.’
7. Article 2 of that directive, entitled ‘Definitions’, provides, in point 9 thereof:
‘For the purpose of this Directive, the following definitions apply:
…
(9) “port” means a place or a geographical area made up of such improvement works and equipment designed principally to permit the reception of ships, including the anchorage area within the jurisdiction of the port.’
8. Article 3 of that directive, entitled ‘Scope’, provides, in the second subparagraph of paragraph 1 thereof:
‘For the purpose of this Directive, and to avoid undue delay to ships, Member States may decide to exclude the anchorage area from their ports for the purposes of the application of Articles 6, 7 and 8.’
9. Articles 6, 7 and 8 of Directive 2019/883 contain provisions governing, respectively, obligations concerning advance waste notification, delivery of waste from ships and cost recovery systems.
Greek law
10. Directive 2019/883 was transposed into Greek law by the ministerial decision at issue in the main proceedings.
11. Article 2(1) of that decision provides as follows:
‘1. For the purpose of this Ministerial Decision, the following definitions apply:
…
(i) “port” means a place or a geographical area made up of such improvement works and equipment designed principally to permit the reception of ships, including the anchorage area within the jurisdiction of the port’
…
(x) “anchorage” means a designated maritime area in the vicinity of a port, located outside the area of jurisdiction of the port operator and within the jurisdiction of the relevant port authority, where ships may be authorised to anchor for short periods and carry out operations such as refuelling, crew changes, receiving food supplies, etc.’
12. Under Article 3(3) of that ministerial decision:
‘By decision of the Ypourgos Naftilias kai Nisiotikis Politikis [Minister for Maritime Affairs and Island Policy, Greece], an anchorage may be exempted from the application of Articles 6, 7 and 8 [of Directive 2019/883]. That decision shall be taken at the request of the competent port operator, which request shall be duly examined only if the delivery of waste to the anchorage in question would cause undue delay to ships or pose a risk to the protection of the environment.’
13. Under Article 5(1) of that ministerial decision:
‘With respect to the abovementioned port reception facilities for waste, an appropriate waste reception and handling plan must be developed and implemented for each port, including anchorage areas, by and under the responsibility of the port operator …’
14. Finally, it is apparent from the order for reference that legislative acts adopted pursuant to the relevant enabling provisions and which transpose directives (such as the ministerial decision at issue in the main proceedings, which transposed Directive 2019/883) exceed the limits of the authorisation if they establish legal rules which are not intended to transpose the directive concerned but, rather, go beyond its provisions. Those legislative acts are, in that respect, unlawful.
The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
15. On 15 December 2021, TPP brought an action seeking the annulment of Article 2(1)(x) of the ministerial decision at issue in the main proceedings (‘the contested provision’). That action was brought against five ministries of the Greek State. (8)
16. Three companies were granted leave to intervene in the main proceedings in support of the validity of the contested provision. Their interest in intervening was established on the basis of the fact that they are active in the sector affected by that provision.
17. The first of those companies is Organismos Limenos Peiraios AE (‘OLP’), established in Piraeus. Subject to verification by the referring court, it is apparent from the case file that that company is the operator of the Port of Piraeus, on the basis of the concession agreement of 24 June 2016 concluded between OLP and the Greek State concerning the use and operation of certain areas and immoveable property in the Port of Piraeus, which was approved and came into force with the adoption of Law 4404/2016 (‘the concession agreement’). (9)
18. The other companies are HELLENIC ENVIRONMENTAL CENTER MONOPROSOPI ANONYMI ETAIREIA DIACHEIRISIS KAI EPEXERGASIAS PETRELAIOEIDON KATALOIPON AE (‘HEC’), established in Piraeus, and ANTIPOLLUTION MONOPROSOPI ANONYMI NAFTILIAKI ETAIREIA (‘Antipollution’), also established in Piraeus. Subject to verification by the referring court, it is apparent from the Greek Government’s observations that HEC is active in the field of liquid waste, while Antipollution is active in the field of solid waste. Those two companies provide their services to ships, in particular in the Port of Piraeus, pursuant to contracts awarded in the context of tendering procedures. (10) TPP operates in the same sector as HEC and Antipollution. Before the referring court, TPP argues that it is entitled to provide its services to ships using, inter alia, anchorages located in the vicinity of the Port of Piraeus.
19. By the first plea in its action before the referring court, TPP claims that the national regulatory authority exceeded the limits of the enabling legislation when, by means of the contested definition, it introduced rules going beyond the scope of Directive 2019/883, which could be done only by means of a law. It should be noted that TPP claims that the concept of ‘anchorage … within the jurisdiction of the port’, for the purposes of Article 2(9) of that directive, extends only to anchorages located within the jurisdiction of the port operator and not to anchorages outside that jurisdiction, contrary to what is provided for in the contested provision.
20. By another plea in its action before the referring court, TPP claims that, in extending the scope of the obligations introduced by that directive, the contested provision excessively restricts the freedom to conduct a business of operators such as TPP, that operate in the sector in question.
21. To place that claim in its context, I note that the contested provision implicitly establishes what I shall refer to here as an ‘intermediate area’, namely the area outside the jurisdiction of the port operator but within the jurisdiction of the port authority. It also follows from that provision that anchorages located in that area are, by definition, located outside the jurisdiction of the port operator.
22. That said, I understand the reference to that latter jurisdiction, set out in the contested provision, to be that defined by the concession agreement. It is apparent from the case file that the anchorages in question (located within the ‘intermediate area’) fall under the responsibility of the port operator ‘of the nearest port’. (11) However, that attribution of responsibility does not therefore seem to derive from the concession agreement (since the areas in question are defined by the fact that they are specifically located outside the jurisdiction of the port operator) and therefore seems to be the consequence of the national rules. (12) It is therefore on that basis that the port operator ‘of the nearest port’ seems to be responsible for developing and implementing an appropriate plan for the reception and handling of waste from ships using anchorages in the ‘intermediate area’.
23. OLP, as the port operator in question, appears to have exercised that regulatory responsibility by awarding the collection services for waste from ships in the ‘intermediate area’ concerned to HEC and Antipollution.
24. In that context, TPP’s claim set out in point 20 of this Opinion seems related to the fact that, as the referring court explains, operators of vessels using anchorages in the ‘intermediate area’ may enter into waste collection contracts only with the service providers so selected.
25. TPP is of the view that that situation is contrary, in particular, to Article 120 TFEU, (13) since, by establishing what that party describes by monopoly, it gives an undue advantage to port operators. (14)
26. For their part, OLP, HEC, and Antipollution argue before the referring court that anchorage areas are defined in Article 2(9) of Directive 2019/883 as being included in the concept of ‘port’ by reference to the concept of ‘jurisdiction of the port’, also contained in that provision, and not by reference to the jurisdiction of the port operator. Consequently, anchorage areas ‘under the jurisdiction of the relevant port authority’ (15) are, under that directive, included in the concept of ‘port’, even if they are not located within the jurisdiction of the port operator.
27. The referring court observes that, in order to rule on the first plea raised before it by TPP, concerning the claim that the national regulatory authority exceeded its statutory powers, summarised in point 19 of this Opinion, it is necessary to clarify the meaning of the term ‘anchorage … within the jurisdiction of the port’, contained in Article 2(9) of that directive.
28. It is in those circumstances that, by decision of 11 June 2025, received at the Court on 17 July 2025, the Symvoulio tis Epikrateias (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Should Directive [2019/883] be interpreted as meaning that:
– anchorages located outside the area of jurisdiction of the port operator but within the area of jurisdiction of the relevant port authority constitute anchorages located “within the jurisdiction of the port” within the meaning of Article 2(9) of the directive;
or, alternatively,
– it is for the national legislature to specify, when transposing the directive into national law, whether “jurisdiction of the port” means not only the jurisdiction of the port operator but also the jurisdiction of the relevant port authority;
or, alternatively,
– neither of these interpretations is correct, with the result that the anchorages in question do not fall within the scope of the directive?’
29. Written observations have been submitted by TPP, OLP, HEC, Antipollution, the Greek Government and the Commission.
Analysis
30. The issue to be clarified in the present case is whether the term ‘anchorage area within the jurisdiction of the port’, within the meaning of Article 2(9) of Directive 2019/883, must be defined by reference to the area of jurisdiction of the port operator, as set out in the concession agreement concluded between the particular operator (in this case OLP) and the Member State in question (in this case the Hellenic Republic), or whether it must be understood more broadly as also including the area located outside that area of jurisdiction, but still within the area of jurisdiction of the relevant port authority.
31. Before beginning my analysis, I shall first of all focus on some key aspects of Directive 2019/883. I shall then make a few remarks on certain elements of the present request which are relevant for a proper understanding of the matters at issue here. Finally, I shall explain that the term ‘anchorage … within the jurisdiction of the port’ for the purposes of Article 2(9) of that directive, refers to anchorages located within the jurisdiction of the authority (or authorities) exercising, under national law, powers relating to the functioning of the port concerned, irrespective of the definition, under national law, of the area of jurisdiction of the port operator to which the exercise of a part of those powers may have been entrusted on the basis of a concession agreement concluded with the State.
Preliminary observations on Directive 2019/883
32. As the referring court rightly points out, pursuant to Article 1 thereof, Directive 2019/883 aims to ‘protect the marine environment against the negative effects from discharges of waste from ships using ports located in the Union, while ensuring the smooth operation of maritime traffic, by improving the availability and use of adequate port reception facilities and the delivery of waste to those facilities’.
33. In that regard, that directive inter alia, implements, in EU law, the commitments of the Member States under the Marpol 73/78 Convention, drawn up under the aegis of the International Maritime Organisation (IMO), which establishes rules to combat pollution of the marine environment. It should be recalled that the Contracting Parties to the Marpol 73/78 Convention have undertaken to ‘prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances’, defined in several annexes attached to that convention. (16)
34. Without it being necessary to address here the details of the relationship between the Marpol 73/78 Convention regime and that directive, I note, first, that, in adopting that directive, the EU legislature has given concrete form to the objective of combating the negative effects of waste in the marine environment by laying down specific obligations regarding deliveries of waste from ships during port operations. It is those operations which therefore lie at the heart of the legal regime of Directive 2019/883. (17)
35. More specifically, the EU legislature seeks to achieve the abovementioned objective by requiring, pursuant to Article 4(1) of that directive, that Member States ensure ‘the availability of [adequate] port reception facilities’. To that end, Member States must ensure, in particular, ‘that an appropriate waste reception and handling plan is in place and has been implemented for each port’. (18) In that context, that directive establishes the specific arrangements under which waste must be delivered, setting out in detail the obligations imposed, as applicable, on the master, the ship operator or the agent to provide ‘advance waste notification’ and to deliver all waste before leaving the port. (19)
36. Second, in order to encourage the actual delivery of waste from ships and to prevent its discharge at sea, that directive provides for the establishment of a system of indirect fees, that is to say fees the amount of which does not depend, as a rule, on the actual delivery of the waste. (20)
37. Third, subject to certain conditions, Member States may derogate from the rules briefly described above.
38. Accordingly, although the obligations set out in Directive 2019/883 apply to all ships calling at, or operating within, a port of a Member State, with the exception of certain types of ships, (21) and to all ports of the Member States normally visited by those ships, Member States may decide to exclude the anchorage area from their ports for the purposes of the application of the notification, waste delivery and fee system obligations, in order to avoid undue delay to ships. (22)
39. Moreover, a ship may proceed without delivering the waste if certain conditions are met, in particular in the case of scheduled traffic with frequent port calls or if it is guaranteed that delivery of the waste and payment of the fees will take place in a port along the ship’s route. (23)
40. Finally, small non-commercial ports which are characterised by rare or low traffic from recreational craft only may be exempted from the obligations concerning the development of a waste reception and handling plans if their port reception facilities are integrated in the waste handling system managed by the relevant municipality. (24)
41. It is therefore bearing in mind that general regulatory context that I now turn to the legal framework of the case in the main proceedings and the specific issues arising from it.
Some remarks on the legal framework and on the subject matter of the present question
42. In order to better understand the issues which the Court is asked to examine in the present case, three types of clarifications are necessary, concerning, respectively, the national legal framework, the subject matter of the question referred for a preliminary ruling and an additional legal aspect raised by the referring court.
43. First, regarding the national legal framework, I would recall that the contested provision draws a distinction between the area of jurisdiction of the ‘port operator’, on the one hand, and the area of jurisdiction of the ‘relevant port authority’, on the other hand, when defining the term ‘anchorage’ for the purposes of the application of the ministerial decision at issue in the main proceedings and of the obligations laid down by Directive 2019/883. However, although it is apparent from the case file that it is OLP which, in the present case, is acting as the port operator and that its jurisdiction is established by the concession agreement (25) (as well as by the regulatory provision to which I have already referred), (26) the referring court does not specify the identity of the relevant port authority.
44. In that regard, it would appear from the Greek Government’s observations that that authority is the Greek State acting through certain ministries, (27) whereas TPP claims that the concept of ‘port authority’ refers more specifically to the port police (the Coast Guard). It is clearly for the referring court to make that determination.
45. That clarification allows me, second, to address the specific aspect of the dispute in the main proceedings which gave rise to the question referred for a preliminary ruling. TPP does not challenge, before the referring court, the fact that HEC and Antipollution are able to offer their services in ‘the intermediate area’. (28) When TPP claims that it is unable to offer its services, that claim seems to be identical to the objection to the inclusion of that area within the scope of Directive 2019/883, based on the claim that the national regulatory authority exceeded its statutory powers.
46. In other words, when TPP claims that the scope of that directive has been unlawfully extended by means of the contested provision, that claim raises no source of incompatibility with that directive but concerns only the alleged unlawfulness under national law of the action taken. It is therefore that aspect of the dispute in the main proceedings which has required the referring court to determine the scope of the term ‘anchorage … within the jurisdiction of the port’ for the purposes of Article 2(9) of that directive.
47. That said, further to the above explanation I would note, third, that the observations of the referring court reveal an additional legal aspect. I have already stated that, before the referring court, TPP complains that it is unable to offer its services in the light also of Article 120 TFEU, since, according to that party, the definition of the term ‘anchorage’ in the contested provision, in that that definition establishes a monopoly, grants an undue advantage to port operators, as I have explained in points 20 to 25 of this Opinion.
48. Although the referring court does not refer a question in that regard, it notes that the answer to the question referred should be modified in the light of that provision of primary law, as well as in the light of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (29) In order to best assist the Court, I shall briefly return to that aspect at the end of my analysis, which I shall now begin.
The concept of ‘anchorage area within the jurisdiction of the port’
49. I would recall that the question referred concerns the concept of ‘anchorage area within the jurisdiction of the port’, which is one of the constituent elements of the concept of ‘port’, defined in Article 2(9) of Directive 2019/883 as ‘a place or a geographical area made up of such improvement works and equipment designed principally to permit the reception of ships, including the anchorage area within the jurisdiction of the port’. (30) As I have already noted in this Opinion, the question which arises is, in essence, whether that anchorage area must be defined by reference to the area of jurisdiction of the port operator, as set out in the concession agreement, or whether it may be understood to include the area outside that contractual area of jurisdiction but located within the area of jurisdiction of the relevant port authority.
50. I agree with the view expressed by OLP, Antipollution, HEC, the Greek Government and the Commission that the scope of the term ‘anchorage area within the jurisdiction of the port’ and, ultimately, the scope of the concept of ‘port’ for the purposes of implementing the obligations set out in Directive 2019/883 cannot depend on the definition in national law of the area of jurisdiction of the port operator.
51. I note, first of all, that the difficulty in the present case does not lie in understanding the term ‘anchorage’, contained in Article 2(9) of that directive (31) which, in its usual meaning, refers to a place where ships may lie at anchor and carry out ship/port interface activities such as refuelling, crew changes and receiving supplies. (32)
52. The difficulty in this case concerns rather the concept of ‘jurisdiction of the port’, contained in the same provision of that directive. Once the latter concept is delineated, it becomes clear that anchorage areas located within the scope of that jurisdiction fall within the scope of Directive 2019/883. I shall now therefore focus on that term.
53. I note that that term is not defined. According to the settled case-law of the Court, ‘it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question’. (33)
54. Accordingly, with regard, first, to the wording of Article 2(9) of Directive 2019/883, it appears to me that the term ‘juridiction du port’ (34) refers, in its ordinary sense, to the general concept of competence as the ‘aptitude d’une autorité publique à effectuer certains actes’ (‘ability of a public authority to carry out certain acts’) (35) or ‘comme l’aptitude à exercer un pouvoir dans une situation définie à partir de ses caractères propres (nature, matière, localisation …)’ (‘as the ability to exercise power in a situation defined by its particular characteristics (nature, subject matter, location …)’). (36) The term ‘juridiction’ (‘jurisdiction’), understood in a broad sense, is ‘proche de celui du mot anglais similaire (jurisdiction), synonyme un peu vieilli d’autorité, de souveraineté’ (‘close to that of the similar English word (jurisdiction), a somewhat outdated synonym for authority or sovereignty’), and in international law it is often specifically used as a synonym of competence (of a State or an international organisation). (37)
55. It seems to me that it is also in that general sense, as a synonym for competence, that the term ‘jurisdiction’ is used in Article 2(9) of that directive, as is also clear from some language versions which use the term ‘competence’ instead of the term ‘jurisdiction’ in that provision. (38)
56. This leads me to suggest, in agreement with the Greek Government, that, in the absence of any clarification as to the nature of the body which is to exercise such jurisdiction in that directive and as to the nature of the powers which that body must have, it is for the Member States to determine those aspects, provided, of course, that the effectiveness of the directive in question is not undermined. (39)
57. It follows from that observation that anchorages located within the jurisdiction of the port for the purposes of Article 2(9) of that directive are anchorages located in the area within the jurisdiction of the authority, or authorities, to which the applicable national law confers responsibility for exercising powers relating to the functioning of the port, without that authority necessarily having to belong to a specific category of entities, such as port operator, and without, therefore, the scope of that responsibility having to correspond to the sphere of competence devolved to such a port operator pursuant, in particular, to the concession agreement concluded between it and the State.
58. The interpretation according to which the concept in question must be understood broadly, without being confined to a specific category of operators and to the delimitation of their competences, is supported, second, by consideration of the context of Article 2(9) of Directive 2019/883.
59. In that regard, I note, first of all, that the EU legislature recognised the existence of administrative differences between ports within the European Union, in observing in particular that ‘ports [in the European Union] differ based on geographic location, size, administrative set-up and ownership’. (40) It seems to me that this factor quite clearly militates against a conclusion which would limit the concept of ‘jurisdiction of the port’ (and of anchorages located within that jurisdiction) to the sphere of competence devolved to the port operator, since the organisation of responsibilities as regards the operation of ports may vary from one Member State to another.
60. The scope of the powers retained by the Member States in that regard is also reflected, as the Commission observes, in Article 4(4) of Directive 2019/883, pursuant to which it is ‘the port authorities concerned or, failing them, the relevant authorities [which] shall ensure that waste delivery or reception operations are carried out with sufficient safety measures to avert risks to persons and the environment at ports covered by this Directive.’ Those obligations regarding the safe use of port reception facilities are therefore not necessarily imposed on the port operator, which would appear to be the logical solution, at least as regards anchorages, if only the anchorages located within the jurisdiction of that port operator were to fall within the scope of the concept of ‘jurisdiction of the port’ and therefore of that directive as a whole.
61. Finally, third, the interpretation that the concept of ‘jurisdiction of the port’, for the purposes of the inclusion of anchorages within the scope of that directive, must be understood in a broad sense and does not depend on the definition of the contractual area of jurisdiction of the port operator is supported by consideration of Regulation (EU) 2017/352 establishing a framework for the provision of port services and common rules on the financial transparency of ports. (41) The latter applies, inter alia, to the collection of ship-generated waste and cargo residues (42) and identifies the ‘managing body of the port’ and the ‘competent authority’ as having, alternatively (or at the same time), the obligations which it defines, without linking the exercise of that responsibility to one or other. (43) That element of the broader legislative context therefore also confirms the legislature’s intention to leave the specific institutional organisation of the management of the collection of waste from ships to the Member States, without requiring that responsibilities in that area be assigned to a specific category of entities.
62. Finally, the proposed interpretation is supported by the objective pursued by that directive, namely the protection of the marine environment against the negative effects from discharges of waste from ships using ports located in the European Union.
63. To that end, it seems to me that the decision by the EU legislature to include anchorages within the concept of ‘port’ and therefore to subject them to the harmonised system for the delivery and collection of waste established by Directive 2019/883, by contrast with the situation which existed prior to the adoption of that directive, (44) indicates its intention to strengthen that protection, as is apparent in particular from certain recitals of that directive. (45)
64. That intention is particularly evident in the second paragraph of Article 3(1) of that directive, which provides that, by way of derogation from the general obligations arising from Directive 2019/883, Member States may decide to exclude the anchorage area from their ports for the purposes of the application of Articles 6 to 8 of that directive, as I noted in point 38 of this Opinion. (46) That possibility depends not on the relationship between the location of those anchorage areas and the area of jurisdiction of the port operator, but rather on whether the inclusion of anchorage areas within the scope of that directive may cause undue delay to ships.
65. In other words, anchorage areas are, in principle, included within the concept of ‘port’ for the purposes of the application of the provisions of that directive with a view to strengthening the protection of the marine environment. It is only in the situation referred to in the preceding point of this Opinion (which is therefore confined to the avoidance of undue delay) that anchorage areas may be excluded from the harmonised regime requiring Member States to establish a system for the collection of waste.
66. Contrary to the environmental objective described above, a restrictive reading which limits the concept of ‘jurisdiction of the port’ to the area of jurisdiction of the port operator would mean that ships lying at anchor in areas such as those at issue in the main proceedings would not be subject to the general obligation to deliver their waste to port facilities on land, since Member States would have no obligation to apply Directive 2019/883 to those areas, as noted in essence and in particular by HEC.
67. Such a situation would increase the risk that waste from ships lying at anchor in such areas would be discharged into the sea, whereas that directive specifically seeks to reduce that risk. Moreover, and similarly, such a reading of the concept of ‘jurisdiction of the port’ might encourage ship operators to favour the use of anchorages located in such areas, rather than to use other parts of the port concerned, in order to avoid having to pay fees for waste collection. (47)
68. Finally, and as the Commission observes, a restrictive interpretation of the concept of ‘jurisdiction of the port’ would mean that Member States could limit the scope of that directive by defining a more restrictive sphere of competence for port operators. However, the manner in which the jurisdiction of the port operator is defined under national law, in particular by means of a concession agreement such as that at issue in the main proceedings, should not affect the scope of that directive, otherwise the effectiveness of the harmonised regime would be undermined.
69. Those considerations are not affected by the argument put forward by TPP that, in essence, the position which I propose that the Court should adopt would lead, in the relevant national legal context, to the conclusion that all anchorages fall within the jurisdiction of a particular port operator, namely that of the nearest port, since, according to TPP, the concept of ‘relevant port authority’ corresponds, in casu and as I already stated in the present Opinion, to the port police (Coast Guard), whose jurisdiction covers the entire Greek coastline.
70. In that regard, I have already noted in the present Opinion that the referring court does not clarify the meaning of the term ‘relevant port authority’ used in the contested provision. That said, even if it were to be confirmed that all the anchorages located along the Greek coast fall within the jurisdiction of a particular port, I do not see how such a finding would in itself preclude the broad reading of the latter concept which I propose, provided that those anchorages meet the general criteria set out in the definition given in Article 2(9) of Directive 2019/883, namely that they constitute ‘a place or a geographical area made up of such improvement works and equipment designed principally to permit the reception of ships’. (48)
71. The latter consideration concludes, in principle, the examination of the question, as raised. However, I wish briefly to address, as I indicated in the present Opinion, the referring court’s observation that, if Directive 2019/883 were interpreted, in essence, as I propose here, the question would arise as to whether that reading is contrary to Article 120 TFEU and/or Article 16 of the Charter.
72. The referring court explains that if the interpretation of that directive were to lead to the conclusion that the concept of ‘anchorage … within the jurisdiction of the port’ also covers anchorages located outside the area of jurisdiction of the port operator, it would be necessary to favour the opposite reading so as to ensure an interpretative outcome consistent with the aforementioned provisions of primary law and to avoid a finding of invalidity.
73. It seems to me that the concerns of the referring court are unfounded.
74. First, neither Article 2(9) of Directive 2019/883 nor any other provision of that directive lays down a specific regime governing the actual organisation of collection services for waste from ships. In those circumstances, the EU legislature cannot be criticised for failing to respect, in particular, the principle of an open market economy, set out in Article 120 TFEU, or, more specifically, a specific operator’s fundamental right to conduct a business, referred to in Article 16 of the Charter, simply by opting for a broad definition of the concept of ‘jurisdiction of the port’ or, therefore, for a broad reading of the concept of ‘port’, in pursuing the objective of protecting the marine environment from the negative effects of waste from ships.
75. It seems to me that the field covered by that directive is a field in which the EU legislature is called upon to carry out complex assessments which translate a political orientation, in a context in which it is addressing environmental concerns of pollution of the marine environment, while seeking to reconcile those concerns with the smooth operation of maritime traffic, as is borne out by Article 1 of that directive. This is therefore an area in which the EU legislature enjoys broad discretion, (49) which means that the judicial review of the measures adopted must be limited to verifying the existence of manifest errors, such as the manifestly inappropriate nature of the measure in question in the light of the stated objective. However, the choice of a broad definition of the aforementioned concepts is, in my view, far from appearing manifestly inappropriate for achieving the objective pursued by Directive 2019/883.
76. Second, for the sake of completeness, I note that the issue of access to the market for the provision of port services in maritime ports is the subject matter of Regulation 2017/352 concerning, inter alia, the provision of port services, including, according to Article 1(2)(e) thereof, the collection of ship-generated waste and cargo residues. (50) It follows from the provisions of that regulation that access to the market for the provision of those services may be subject to limitations on the number of providers, provided that certain conditions are met, such as the existence of one of the listed reasons and the existence of a non-discriminatory and transparent selection procedure. (51)
77. That latter observation therefore allows me to conclude definitively the present analysis, at the end of which I consider that the term ‘anchorage area within the jurisdiction of the port’, within the meaning of Article 2(9) of Directive 2019/883, refers to anchorages located within the jurisdiction of the authority (or authorities) exercising, under national law, powers relating to the functioning of the port concerned, irrespective of the definition, under national law, of the area of jurisdiction of the port operator to which the exercise of a part of those powers may have been entrusted on the basis of a concession agreement concluded between that operator and the State.
Conclusion
78. In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Symvoulio tis Epikrateias (Council of State, Greece) as follows:
Article 2(9) of Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC,
must be interpreted as meaning that the term ‘anchorage area within the jurisdiction of the port’ refers to anchorages located within the jurisdiction of the authority (or authorities) exercising, under national law, powers relating to the functioning of the port concerned, irrespective of the definition, under national law, of the area of jurisdiction of the port operator to which the exercise of a part of those powers may have been entrusted on the basis of a concession agreement concluded between that operator and the State.