C-179/90

Facts and legal background

According to Article 111 of the Code, the right to organize dock work on behalf of 2. Article 110 of the Italian Codice della third persons in Italian ports is granted to Navigazione (hereinafter referred to as 'the 'imprese portuali' (hereinafter referred to as Code') provides that all dock work 1 in 'dock-work undertakings'), which are as a rule companies established under private law * Original language: Dutch. 1 — Under Anicie I of the Code this includes 'loading, 2 — Articles 152(2) and 156(6). That requirement applies also unloading, transhipment, storage and general movement to temporary dock workers; see Article 194 of the Regu­ within the pon of goods and all other material'. lation.

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and are wholly or largely controlled by the of steel concerned, called upon the port authorities. It is important to note that dock-work company of the Port of Genoa, under the final paragraph of Article 111 of the Compagnia Unica Lavoratori Merci the Code and in accordance with the Varie del Porto di Genova (hereinafter aforesaid provisions such undertakings may, referred to as 'Compagnia') and the dock for the dock work which they organize on workers affiliated to it. behalf of third persons, call only upon the said dock-work companies and the dock workers affiliated to them.

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order for delivery but solely to Siderurgica's damage thereby caused and for reimbur­ claim for compensation and reimbursement. sement of the sums wongfully charged for the dock work.

6. Although Merci relies on the relevant 5. In its defence before the court of Italian legislation to justify its conduct, it reference Merci argues that it does not nevertheless thinks, like Siderurgica, that, in operate with its own workforce but that so far as that legislation provides for a under the Italian legislation it is obliged to monopoly for the dock-work companies rely on the labour supplied by Compagnia, (Article 110 of the Code), it is incompatible which has sole authority for moving goods with Community law. 4 However, Merci within the Port of Genoa. It further states, maintains that in its opinion that incompati­ without being challenged, that it was unable bility would (at least in theory) actually to deliver the steel to Siderurgica by reason justify the claim for damages for the delay of a long series of strikes by the workforce in delivery but not the claim for reimbur­ of the said dock-work company. It was sement of the sums paid by Siderurgica for therefore temporarily prevented from the performance of unsolicited dock-work complying with its commitments and was services which were imposed upon it, thus not liable for the damage resulting because Merci itself did not gain from the from the delay in delivery. Moreover, the performance of such services. defence continues, Merci cannot be liable either for the sums, considered unfair by Siderurgica, which were charged for the dock work carried out, because they had been calculated on the basis of the scale of The questions raised and the jurisdiction of charges laid down by the port authorities the Court which, as a dock-work undertaking, it was required to apply in accordance with Article 112 of the Code and Article 203 of the Regulation.

the Community are imported by sea as has already been mentioned, the parties into the territory of another Member to the main action are to a considerable State, does Article 90 of the EEC extent in agreement as to the incompatibility Treaty, together with the prohibitions of the relevant Italian legislation with contained in Articles 7, 30, 85 and 86 Community law, 5 the Court nevertheless thereof, confer on persons subject to has jurisdiction under Article 177 of the Community law rights which the EEC Treaty to answer the questions Member States must respect, where a referred to it. In fact it is for the national dock-work undertaking and / or court to assess the relevance of the company formed solely of national questions of law raised by the dispute before dock workers enjoys the exclusive right it and the necessity for a preliminary ruling to carry out at compulsory standard so as to enable it to give judgment. 6The rates the loading and unloading of Court could declare itself without juris goods in national ports, even when it is diction only if there were no longer any possible to perform those operations dispute in the main action 7 or if the with the equipment and crew of the questions raised bore no relation to the

economic interest and liable to be 6 _ Judgments in Case 244/81 Foglia v Novello [1981] ECR obstructed in the performance by the 3045 at paragraphs 14 and 15; and Case 338/85 Parami v Ministero del Commercio con l'Ellero [1988] ECR 2041 at workforce of the particular tasks paragraph 8; see also the Order of the Court in Case assigned to it by the application of C-286/88 Falciola [1990] ECR 1-191 at paragraph 7. 7 — See the judgment in Case 338/85 Pardini, previously cited, Article 90(1) or the prohibitions under

It is not clear, therefore, why the Commission did not bring this legislation before the Court under Article 169 of the EEC Treaty: as Mr Advocate General Darmon indicated in his Opinion in Case 229/83 Leclerc v An Blé Vert [1985] ECR 1, at page 16, proceedings under Article 169 would have made possible an examination of the legislation in question i'» concreto rather than an abstract review of compatibility 8.

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9. The court of reference asks for an inter­ freight. In other words there are two pretation of the combined provisions of interrelated monopolies: a first granted to Articles 7, 30, 85 and 86 of the EEC Treaty the dock-work company Compagnia on the one hand and Article 90 on the relating to the actual performance of dock other. In fact it cannot be denied that the work, which, in so far as it concerns dock 10 Italian legislation confers exclusive rights, work for ordinary freight, Merci alone has within the meaning of Article 90(1), on both to 'endure', and a second monopoly granted the dock-work company Compagnia and to the dock-work undertaking Merci, the dock-work undertaking Merci. In its relating to the organization on behalf of third observations submitted to the Court, Merci persons of the aforesaid dock work, points out that the monopoly in dock work performed by Compagnia, which applies to provided for by the said Article 110 of the users of the Port of Genoa. In this case both Code is granted to the dock-work monopolies must necessarily be considered. companies and not to dock-work under­ takings like itself. The dock-work under­ takings, on the other hand, have to 'endure' that monopoly owing to the final paragraph of the said Article 111 of the Code.

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public policy, public security or public should be mentioned that the Court has health. In addition, Article 48(4), the first consistently held that all the provisions to paragraph of Article 55 and the combined which I have referred have direct effect. provisions of Article 66 and the first In conjunction with these provisions having paragraph of Article 55 of the EEC Treaty direct effect, Article 90(1) of the EEC 21 provide that the provisions relating to Treaty itself also has direct effect. freedom of movement of workers, the right of establishment and freedom to provide services are not applicable to employment in the public service or activities connected with the exercise of official authority.

Infringement of the Treaty provisions on competition

13. Finally, with regard to the infringement Reyners v Belgium [1974] ECR 631 at paragraphs 30 and of the prohibition of discrimination, it 32 and in Case 81/87 The Queen v Treasury and Commis- sioners of Inland Revenue, ex pane Daily Mail and General Trull pk [1988] ECR 5483 at paragraph 15 With regard to 18 — Sec, for example, as regards the concepi of 'employment in Article 59 of the EEC Treaty see, for example, the the public service', the judgment in Case 149/79 judgments in Case 33/74 van Bmsbergen v Bedrijfsvere- Commission v Belgium [1980] ECR 3881, at paragraph 9 et niging Metaalnijverheid[1974] LCR 1299 at paragraphs 18 seq., whence it may be seen that it affects a limited number to 17 and in Case C-49/89 Corsica Ferrses France v of posts 'which involve direct or indirect participation in Direction Générale des Douanes [1989] LCR 4441 at the exercise of powers conferred by public law and duties paragraph 10. designed to safeguard the general interests of the State or 21 — The Court expressly confirmed this in Case 155/73 Sacchi, of other public authorities' (paragraph 10) already cited (see footnote 14), as regards Articles 90 and 19 — See, for example, as regards the concept of 'activities 86. There does not seem to be any reason why that should connected with the exercise of official authority', the not also apply to other provisions having direct effect Sec, judgment in Case 2/74 Reyners v Belgium [1974] ECR 631 inter alia, Wyatt, D and Dashwood, A. The Substantive at paragraph 42 et seq , according to which these must be Law of the EEC, London, 1987, p. 524 See also, earlier, activities 'which in themselves involve a direct and specific Waclbroeck, M.. 'Le droit de la Communauté économique connection with the exercise of official authority' européenne', volume 4, Concurrence, Brussels, 1972. pp 86 (paragraph 54) and 87

measures adopted by the public authorities of Article 90(1) in conjunction with Article 85 or 86, that Article 90 relates to any action taken by the public authorities with regard to the undertakings referred to in that article which either imposes on an undertaking a practice forbidden by Article 24 25 85 or 86, or encourages such a practice, 26 or makes it inevitable, or grants to under­ 16. I shall first consider, in the context of 22 — See, for example, the judgments in Case 13/77 INNO v Article 86, whether the national legislation ATAB [19771 ECR 2115 at paragraph 33, in Case 231/83 CW/e/v Leclerc [1985] ECR 305 at paragraph 16, in Case in question in this case imposes such a 267/86 Van Eycke v ASPA [19881 ECR 4769 at paragraph practice restricting competition, facilitates 16, in Case 66/86 Ahmed Saeed Flugreisen and Others v 29 Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] such a practice or makes it inevitable. For ECR 803 at paragraph 48, and in Case C-260/89 ERT, previously cited in footnote 16, at paragraph 35. this purpose two points must be considered: 23 — See, for example, the judgments mentioned in the previous first, whether Merci or Compagnia or both footnote, INNO v ATAB, at paragraph 32, Ahmed Saeed, at committed acts which, irrespective of any paragraph 50 and ERT, at paragraph 36. 24 — That is the case for example in the judgment in Case 30/87 action by the authorities, represent the Bodson v Pompes Funèbres des Régions Libérées [1988] ECR abuse of a dominant position in a substantial 2479, which rules that a communal authority which requires undertakings occupying a dominant position to part of the common market which may charge especially high prices for the services they provide is affect trade between Member States and, acting in contravention of Article 90(1). 25 — That is the position for example in the judgment in Ahmed secondly, whether the national legislation in Saeed (see footnote 22), which rules that the approval by the public authority of agreements on tariffs contrary to Article 85(1) is contrary to Article 5 and in that case to 27 — See the judgment in Van Eycke (previously cited in Article 90. footnote 22), in which the Court nevertheless found that that situation did not arise in that case. 26 — That is the case in the £RT judgment (already cited in footnote 16), which states that a Member State is infringing 28 — See, for example, the judgments cited in footnotes 24, 26 the combined provisions of Article 90 and 86 of the EEC and 27. For further details, see my Opinion due to be Treaty when it grants an exclusive right to an undertaking delivered at the sitting on 16 October 1991 in Joined Cases and in so doing creates a situation in which that under­ C-48/90 and C-66/90 Netherlands and Koninklijke PTT taking is led to infringe Article 86. The judgment in Case NV and PTT-Post BVv Commission. C-41/90 Hafner and ¿Vier [1991] ECR 1979 also relates to 29 — I shall not consider further the special situation in which that category of measure. legislation delegates rule-making powers to undertakings.

Of course it is for the national court to Nor is it open to doubt that both the decide whether these markets may be organization on behalf of third parties and regarded as constituting a substantial part of the performance of dock work described in the common market. However, it is clear Article 108 of the Code 31 fall within the from the documents before the Court that, field of application of Article 86 (and of in view of the scale of dock work with Article 85). In fact, as the Council has regard to ordinary freight organized on repeatedly stated, 32 dock work must be behalf of third parties and performed there, distinguished from actual maritime transport the Port of Genoa is amongst the most properly so called (even though it may be important in the Community and is the most complementary to it); however, even if it important in Italy and that, in view of its were to be classified as maritime transport, situation and infrastructure, users of the the general rules on competition laid down port often have no other choice than to use in Articles 85 and 86 were applicable in that the Port of Genoa. These are, in my view, sphere even before Regulation (EEC) No serious indications that the two markets 4056/86 of 22 December 1986» came into referred to, which are, moreover, closely force. 34 linked together since they relate to the same dock work, are sufficiently important to be 30 -— The concepe of 'undertaking' has always been widely regarded as a substantial part of the interpreted, so that in the judgment in Hofner and Eiser, common market. ireviously cited in footnote 26, the German Bundesanstalt f tir Arbeit was itself regarded as an undertaking because, as a distinct entity, that public institution carried out the economic activity of employment procurement. 31 — See footnote 1. 32 — Sec the Communication of 19 March 1985 (OJ 1985 C 212) and the preamble to Regulations (EEC) No 4056/86 of 22 December 1986 (OJ 1986 L 378) and No 3975/87 of M December 1987 (OJ 1987 L 374). 33 — Regulation (EEC) No 4056/86 of 22 December 1986 It is indisputable that Merci occupies on the laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L market for dock work for third parties a 378. p. 4). dominant position, that is to say, a situation 34 — On the analogous situation of air transport, cf the 'which enables it to hinder the maintenance judgment in Ahmed Siieed. previously cued in footnote 22, at paragraphs 32 and 33 of effective competition on the relevant

38 — See the judgment in Case 27/75 United Brands v Commission [1978] ECR 207 at paragraph 249. It may be seen from the judgment in General Motors, previously cited, According to subparagraph (a) of the second at paragraph 12, that the Court considers that prices are to be regarded as unfair when they are excessive in relation to paragraph of Article 86, abuse of a dominant the economic value of the service provided (see also paragraph 250 of the judgment in United Brands}. 39 — See the judgments in Sacchi, previously cited in footnote 35 — See, for example, the judgments in Case 322/81 Michelin v 14, at paragraph 17, in General Motors, previously cited in Commission [1983] ECR 3461 at paragraph 30 and in Case footnote 36, at paragraphs 11 and 12, and in Case 226/84 311/84 CBEM v CLT and IPB [1985] ECR 3261 at British Leyland v Commission [1986] ECR 3263 at paragraph 16. paragraph 27, in which the Court refers to the judgment in 36 — See, for example, the judgment in Case 26/75 General General Motors. Motors v Commission [1975] ECR 1367 at paragraph 9, and 40 — As emerges from the facts previously mentioned (section 3 the judgments, previously cited, in INNO v ATAB at above), the dock work organized by Merci for Siderurgica paragraph 34, and in CBEM v CLT and IPB at paragraph and performed by Compagnia were in reality imposed on 16. Siderurgica; in fact Siderurgica had wished to unload and 37 — See footnote 22. organize transport for the consignment of steel itself.

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41 — In this connection Siderurgica refers to .1 study by Launa F.: 'Le Compagnie portuali nel diritto interno e comunitario'. Edizione Giuffre, Milan, 1981, and to a statement by the 'Comitato Sezione Lavoro' of the pori authority for the Port of Genoa in a report of 23 July 1987, which runs as follows' '. . . taking the basic cost of labour at 100, the supplementary sums to be added to that cost to reach the final cost of the operation amount to 1 194.26% (sic!!)' (quoted in Siderurgica's observations, 20. Finally it is appropriate to point out page 12). that, under subparagraph (c) of the second 42 — On this subject the Commission refers to a study by paragraph of Article 86, abuse of a dominant Marconsult SpA of 1990 relating to the organization and cost of the transhipment of containers in the principal position may also consist in applying European ports. It emerges from that study, for example, that the cost of transhipment of one unit varied between dissimilar conditions to equivalent trans­ LIT 110 000 and 116 000 in the Port of Antwerp, between actions with other trading parties, thereby LIT 180 000 and 200 000 in the Ports of Hamburg, Marseille and Naples and between LIT 230 000 and placing them at a competitive disad­ 46 250 000 in the Ports of Venice, Barcelona and Leghorn, vantage. It appears that that is the position whilst the cost of transhipment of one unit amounts to LIT 270 000 in the Port of Genoa. 43 — In the report of 23 July 1987, previously mentioned in 45 — See on this subject the Commission's observations, page footnote 41, the 'Comitato Sezione Lavoro' of the port 38, and Siderurgica's observations, page 15. authority for the Port of Genoa stated: 'The system of 46 — See the judgment in Michelin v Commission, already cued charges applied in the Port of Genoa for dock-work in footnote 35. at paragraphs 87 to 91, in which the Court services has for years been notorious for its complexity took the view that there had been no abuse within the and lack of transparency and for the fact that it is always meaning of subparagraph (c) of the second paragraph of impossible to determine in advance what the final cost of Article 86, because n had not been established that the the services will be' (quoted in Sidcrurgica's observations differences in treatment between various dealers were due at page 12). to the application of unequal criteria or that they were not 44 — Judgment in Case 30/87, previously cited, footnote 24. justified by legitimate commercial reasons (paragraph 90)

in this case since, after negotiations and in can be little doubt about this. In fact, the 'derogation' from the scale of charges, a scale of charges and other, presumably preferential charge is made by Merci to unfair, contractual conditions applied by certain port users by reducing the Merci and Compagnia are made possible, if supplementary costs and setting that not inevitable, by the national legislation reduction off by an increase in the charges applicable and are facilitated, if not made to other users without any objective compulsory, by the port authorities under 47 consideration justifying such a step. That the powers conferred on them by national 48 practice is facilitated by the complexity and legislation. The other abuses too are made lack of transparency of the scale of charges possible by that legislation. But for the applicable. monopoly for the performance of dock work conferred on it by the Italian legis­ lation, Compagnia could certainly not have afforded to abstain from using modern tech­ nology, and it is clear also that the dissimilar treatment of trading parties was possible only as a result of the monopoly granted to Merci and the complexity and lack of transparency of the scale of charges 21. In my view the foregoing factors justify devised by the authority. the deduction that there is compelling evidence for the national court to conclude that, by imposing unfair prices and trading conditions, both Merci and Compagnia abused the monopolies granted them by Italian legislation in a substantial part of the common market, that by refusing to use modern technology Compagnia abused its dominant position and that, by agreeing to dissimilar conditions to trading parties as From the foregoing considerations it follows compared with their competitors, Merci here too that there is serious evidence that abused its dominant position. the national legislation in question in the main proceedings enacts or maintains in force measures contrary to Article 90(1) in conjunction with Article 86 of the EEC Treaty. In view of the fact that Article 90(1), together with a provision of the Treaty having direct effect, such as Article 49 86, itself has direct effect, this means that, in so far as the national court agrees with 22. In those circumstances we must now the arguments I have already put forward, consider whether these abuses of a individuals may, under those provisions, dominant position within the meaning of derive direct rights with regard to the Article 86 — in so far as the national court Member State concerned, just as they may regards them as established — are imposed, of course assert directly their rights against or facilitated, or made inevitable by the Merci and Compagnia by reason of the relevant national legislation. I think there abuses which they have committed.

As I have already said (section 16), there can be no doubt that Merci and Compagnia are undertakings within the meaning of Article 85, that that article applies to the performance and organization of dock work and that in this case, as is made clear by the questions referred to the Court, trade Those cases related to undertakings which between Member States may be affected by were in direct competition. However, it is the legislation under review and by the established that vertical agreements, that is, measures based thereon. In the judgment in agreements between undertakings which are ER T however, the Court stressed that the not in direct competition, and hence also application of Article 85 of the EEC Treaty concerted practices by such undertakings, pre-supposes that there is in fact an are also covered by Article 85 because they agreement restricting competition, or rather restrict competition as against third parties. 50 an agreement between undertakings. In this respect it is for the national court to judge whether Merci and Compagnia knowingly adopted concerted practices which, as has previously been shown in the examination of the improper conduct of the undertakings considered separately, have the effect of restricting competition. The 24. From the information available to the fact that these concerted practices may have Court it does not appear that agreements 51 — Judgment in Case 48/69 ICI v Commission[1972] ECR 50 — See paragraph 29 of the judgment in ERT, , previously cued 019 at paragraphs 64 and 66. see also the judgment in in footnote 16 Sec also the Opinion of Mr Advocate Joined Cases 40 to 48, 50. 54 to 56, III , 113 and 114/73 General Lenz, delivered on 23 Januars 1991 in that case Suiker Unte v Commission[1975] LCR 1663 at paragraph [(1991) ECR I-2939 in section 32 of the Opinion) 191

25. The Court has consistently held that all trade rules capable of hindering intra- 26. Article 90(2) of the EEC Treaty Community trade, directly or indirectly, provides that undertakings entrusted with actually or potentially, are to be considered the operation of services of general as measures having an effect equivalent to economic interest or having the character of quantitative restrictions within the meaning 52 a revenue-producing monopoly are to be of Article 30 of the EEC Treaty. Is that subject to the rules contained in the Treaty, the case with the monopolies in dock work in particular to the rules on competition, in at issue in this case? According to the so far as the application of such rules does Commission, Article 30 is not relevant in not obstruct the performance, in law or in this case since, at least in the light of the fact, of the particular tasks assigned to facts brought to its notice, the said them. That derogation from the Treaty monopolies do not have the effect of provisions in favour of certain undertakings hindering the marketing in Italy of imported does not apply, however, if the development products as compared with domestic of trade is affected to such an extent as products. On the other hand, according to would be contrary to the interests of the Siderurgica, the monopolies and the Community. resulting unfair charges for dock work have repercussions above all on imported products so that the aforesaid monopolies must be regarded as trade rules within the meaning of Article 30. The court of reference asks, in its second question, whether Merci and Compagnia 52 — Judgment in Case 8/74 Daaonvilk [1974] ECR 837 at paragraph 5. are undertakings entrusted with the

operation of services of general economic are entrusted by the authorities with the interest, and, if so, whether the application activities they pursue. However, that fact in particular of Articles 7, 85 and 86 of the does not, in itself, imply that these activities EEC Treaty would obstruct the are of general economic interest within the performance of the particular tasks assigned meaning of Article 90(2). Although the to them. If that is the case and if the other organization of a port is undoubtedly, as conditions of Article 90(2) are also met, it such, an activity of general economic must, in my view, be accepted, as far as the interest, the same cannot be said, in my points dealt with in the foregoing part of view, of the activities of the dock-work my Opinion are concerned, that national companies and undertakings consisting in legislation requiring, encouraging or making the performance of dock-work and in inevitable such a practice on the part of organizing it on behalf of third persons undertakings, which is authorized under respectively. In fact dock work is taken to Article 90(2), is nevertheless not contrary to mean the loading, unloading, transhipment the provisions of Article 90(1), in and storage of goods. If such operations conjunction with other provisions of the also fall within the concept of services of Treaty. general interest, then that concept can cover

54 performs, and for such operations to be be shown that observance of the aforesaid necessary for reasons of the general rules of the Treaty and in particular of 55 interest. It appears from the national legis Articles 7, 85 and 86 is incompatible with lation in question that both the dock-work the performance of the public tasks, or in undertakings and the dock-work companies other words that in carrying out such tasks an infringement of the rules of the Treaty is 53 — See, for example, the judgment in Case 127/73 BRT v 57 unavoidable. Further, it must still be SABAM and NV Fomor [1974] ECR 313 at paragraph 19 54 — See the judgments in BRT v SADAM and NV Fonior, cited shown that the application of the derogation in the previous footnote, at paragraph 20, in Case 7/82 from the rules of the Treaty is not contrary GVL v Comminon [1983] ECR 483, at paragraphs 29 to 32, and in Ahmed Saeed, previously cited in footnote 22, at to the interests of the Community. paragraph 55. 55 — See the judgment in Ahmed Saeed, previously cited in 56 — That seems to be the view also of the Tribunale Amminis footnote 22, at paragraph 55. Hitherto the Court has regarded as activities of general economic interest inter trativo Regionale which, in a judgment of 21 December alia: maintenance of the navigability of an important 1988 relating to dock-work companies, stated. 'In fact it waterway (judgment in Case 10/71 Luxembourg v Muller cannot be concluded that the object of the national rules [1971] ECR 723); distribution of water (judgment in Case in the field of dock-work companies was to entrust to 96/82 IAZ v Commission [1983] ECR 3369); provision of them a service of general economic interest' (Foro It. 89, services m the field of telecommunications (judgment in part 3, p 98) Case 41/83 Italy v Commission [1985] ECR 873; and tele 57 — See the judgments in Hofner and Eller, previously cited in

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58 Community'. However, that did not undertaking to act contrary to provisions of prevent the Court from stating in the Treaty such as Articles 7, 85 or 86. That subsequent judgments, in the context of the implies that the burden of proof lies on the first criterion mentioned in that quotation, undertakings concerned and that they must that it is for the national court to consider show before the national court that the whether an undertaking which relies upon prior conditions of Article 90(2) are met. the provisions of Article 90(2) so as not to apply the provisions of the Treaty is actually entrusted with the operation of services of

61 case. power, in relation to the second criterion mentioned in the quotation given at the beginning of this section (that is, the question whether the task assigned by the Member State and its performance does or does not affect the development of trade to such an extent as would be contrary to the interests of the Community), to contact the This case-law therefore leads me to the Commission, if it sees fit, with a view to the inescapable conclusion that it is for the answer to be given to that question, by analogy with what the Court has accepted 58 — See the judgment in Muller, previously cited in footnote 55, at paragraphs 13 to 16. with regard to the application of Articles 85

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Conclusion

29. Having regard to the foregoing considerations, I suggest that the Court should give the following answer to the questions referred to it for a preliminary ruling:

'(1) (a) National legislation which imposes on undertakings referred to in Article 90(1), which are entrusted with the performance or organization of dock work, the obligation to have recourse, for such work, to dock workers having the nationality of the Member State concerned is incompatible with Article 90(1) in conjunction with Article 7, and Article 48 or Articles 52 and 59 of the EEC Treaty and cannot be justified either on grounds of public policy or public security or as work in the public service or involving the exercise of official authority. Article 90(1) in conjunction with the abovementioned provisions of the Treaty has direct effect.

(b) National legislation which encourages, requires or inevitably induces an undertaking referred to in Article 90(1) to abuse a dominant position held by it in a substantial part of the common market or to engage with another concern or undertaking in a concerted practice or abuse or a practice consisting, in the case of dock work which may or may not be solicited and on occasion may not even be carried out, in imposing unfair prices or other unfair conditions or limiting markets or technical devel­ opment, to the prejudice of users, or in applying dissimilar conditions to equivalent transactions to the disadvantage of other trading parties is incompatible with Article 90(1) in conjunction with Article 86 or 85 of the EEC Treaty.