Case C-509/12, IPTM – Portuguese rules restricting recreational boat licences [judgment 2014, ECLI:EU:C:2014:54]

To skipper a recreational boat in Portugal requires a licence but gaining admission to the exam that entitles a person to hold a licence also requires proof of them living in Portugal.

Facts
Portuguese statute states that recreational boats can only be skippered by those with a recreational boat licence. To gain a licence, it is necessary to follow a course. The type of course depends on how far out to sea the skipper wishes to take the boat. There are courses for skippers wishing to take boats up to 3 miles off-shore, 5 miles off-shore, 25 miles off-shore, and even go onto the high seas. Prospective skippers can follow the appropriate course at any number of Portuguese maritime schools.

The official Portuguese boating licence is actually issued by the IPTM (Instituto Portuário e dos Transportes Marítimos), which is a branch of the transport ministry. The IPTM is also in charge of organising the exams and it controls admission to the exams.

The problem which has given rise to this reference to the CJEU is that since 1997, the ‘NZ’ and ‘NL’ maritime schools in Portugal have been accepting Spanish and French people onto their courses. Spanish and French skippers have been passing the Portuguese exams too.

In May 2004, however, the relevant Portuguese statute was changed: the IPTM could only issue a recreational boat licence to a person who could prove that they lived on Portuguese territory. And for the seven months until the end of that year, Spanish and French skippers who passed the 25 miles off-shore exam, or indeed, passed the test for the high seas, were only being issued with a temporary licence that attested to their competence. From December 2004, the IPTM was refusing candidates entry to the exams unless they could prove that they lived in Portugal.

As a result of this statutory requirement, the ‘NZ’ and ‘NL’ maritime schools noticed the dwindling number of Spanish and French people signing up for their courses. The schools brought an action in public law against the IPTM to stop EU citizens from being refused entry to the exam on the basis that they did not live in Portugal. The schools also requested that those EU citizens who had passed the relevant exams should be granted the right to skipper craft in the relevant areas. They also put in a claim for damages relating to the harm suffered as a result of the allegedly tortious acts of the IPTM.

Question Referred
An unofficial translation of the question asked by the Tribunal Central Administrativo Norte reads:

Given the ban on discrimination between citizens of differing Member States [Article 18 TFEU, formerly Article 12 EC]; given the free movement of persons inside the EU and the exceptions thereto [Article 45(3) TFEU, formerly Article 39 EC]; and given the freedom to provide services and the possible restrictions thereto [Article 52 TFEU, formerly Article 46 EC which is applicable by dint of Article 62 TFEU, formerly Article 55 EC]; is EU law to be interpreted as meaning that it precludes a provision of national law whereby a recreational boat licence may only be issued to a person living inside that nation’s territory?