C-185/91

(1) tariff boards made up of experts nomi- 6. If the price of a transport operation is nated by undertakings or associations in lower than the prescribed tariff, the haulier the industry and appointed by the Fed- must claim the difference. If it does not do eral Minister of Transport (Paragraphs so, the Bundesanstalt für den Güterfern- 20a and 21(2) of the GiiKG) fix the tar- verkehr ('the Bundesanstalt'), a federal office iffs. governed by public law, ' is subrogated to its rights and must claim that difference — by way of 'equalization' — from the undertak- (2) Advisory Committees made up of repre- ing for which the transport operation was sentatives of haulage undertakings issue carried out. 2 an opinion before each meeting of the tariff boards at which a decision on the 1 — Whose task under the law is to ensure observance of the tar iffs, the transport conditions and the provisions concerning permits (Paragraph 54 of the GuKG). * Original language: French. 2 — Paragraph 23(3) of the GÙKG.

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7. The facts underlying the main proceed- regulatory procedure undertaken by the ings are as follows: during an inspection the Minister of Transport and that Article Bundesanstalt ascertained that the haulage 85 applies also to private tariff agreements undertaking Neukirch and its customer, preceding an administrative approval. Reiff, a manufacturer of building materials, had not observed the applicable tariffs.

11. The national court has submitted a ques- tion the text of which is set out in the Report for the Hearing, 5 which seeks to determine 8. On 13 June 1989, the Bundesanstalt whether or not the procedure for fixing the claimed from the latter, by virtue of its sub- tariffs applicable in the Federal Republic of rogation, the difference between the agreed Germany, provided for in Paragraph 20 et price and the approved tariff. Since Reiff seq. of the GüKG, is compatible with the refused to comply, legal proceedings were second paragraph of Article 5 and Article commenced against it. 85(1) and (2) of the Treaty.

3 — Judgment of the national court, p. 7. 5 — Paragraph III-4. 4 — Ibid., p. 13. 6 — Case 223/78 Grosoli [1979] ECR 2621, paragraph 3.

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that where the Treaty seeks to remove cer- Member States. Therefore in such cases tain activities from the scope of the compe- recourse must be had to Article 5. tition rules it includes an express derogation to that effect. 7

19. Thus, the Court stated: 15. Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway, s adopted on the basis of 'Whilst it is true that the rules on compe- Articles 75 and 87 of the Treaty, applied the tition are concerned with the conduct of fundamental principles laid down by Articles undertakings and not with national legisla- 85 and 86 to the sphere of transport. Thus, tion, Member States are none the less obliged Articles 2 and 7 thereof incorporate the pro- under the second paragraph of Article 5 of hibition of restrictive arrangements in the the Treaty not to detract, by means of same terms as Article 85(1) and (2). national legislation, from the full and uni- form application of Community law or from the effectiveness of its implementing mea- sures; nor may they introduce or maintain in 16. In Asjes, 9 the Court held that the objec- force measures, even of a legislative nature, tives of the Treaty, which seeks in particular which may render ineffective the compe- to ensure that competition is not distorted in tition rules applicable to undertakings'. 10 the common market, apply also to the trans- port sector.

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market' (Article 2), the Treaty defines certain tural and integration policy ... implemented means of action for the Community, includ- by a public authority, which has no objec- ing 'the institution of a system ensuring that tion in principle to intervention in the mech- competition in the common market is not anisms of the market'. u distorted' (Article 3(f)). 12

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27. First, the first section of Chapter I of 31. Secondly, the Treaty contains a number Title I of the third part of the EEC Treaty of provisions addressed to the Member States lays down 'Rules applying to undertak­ which are also conducive to attainment of 2I ings'. the common market. Both Articles 30, 52 and 59 and the provisions on State aid, in particular, contribute to the establishment of a large market in which competition must 28. It has been consistently held by the not be distorted. Court that Articles 85 and 86 of the Treaty 'concern the conduct of undertakings and not laws or regulations of the Member States'. 2 2 The application of those articles presupposes evidence of specific anticompet­ 32. However, the Treaty contains no general itive conduct by undertakings, whether in the provision prohibiting the Member States form of restrictive arrangements or the abuse from laying down rules restricting compe­ of a dominant position, in an identifiable tition. Compared with other objectives, the market. establishment of an undistorted system of competition is secondary. Thus, Articles 37 and 90(1) recognize the right of Member States to set up national monopolies — the 29. The system of supervision and penalties most extreme form of restriction of compe­ established by Articles 87 to 89 of the Treaty tition — so that they cannot be denied the and the regulations adopted for their imple­ right to apply less radical restrictions. mentation is intended exclusively for under­ takings. Regulation No 1 7 2 3 provides for fines to be imposed only on undertakings. Only undertakings are required to notify the 33. That fundamental distinction derives Commission if they wish to avail themselves from the difference in the respective roles in of Article 85(3) (Article 4 of Regulation the marketplace of the State and undertak­ N o 17). ings.

38. That distinction also accounts for the fact that the agreement by which all the 42. It is for that reason that the Court con- supermarkets in a Member State decide on siders that Articles 3(f), 5 and 85 together the same weekly closing day, so that none of preclude State rules which require an agree- them will secure an advantage by trading ment to be concluded between undertakings seven days a week, falls within the scope of or favour or facilitate the conclusion thereof. Article 85. On the other hand, national rules prohibiting shops from opening on Sundays do not breach any Community competition rules. 25 43. In Asjes, cited earlier, the French Civil Aviation Code provided that proposed air transport tariffs could be presented to the administration for approval either direct by 39. Whilst there can be no confusion the air companies or through a trade associ- between the conduct of undertakings and the ation. Such proposals might have been the regulatory activity of Member States, it must result of concertation, or even cartels, within nevertheless be observed there may be a a trade organization. Thus, that Code, close relationship between them. That would although making no reference to tariff con- be the case, for example, where regulations certation, nevertheless had the effect of toler- endorsed a restrictive agreement or, con- ating, or indeed facilitating, and confirming versely, where an agreement between under- restrictive arrangements. takings took the place of a legislative provi- sion.

44. The same applied where the Minister of Agriculture adopted an order reinforcing the 40. It is therefore incumbent on the State effects of agreements concluded within the not to legitimize the anticompetitive conduct Bureau National Interprofessional du Cognac. 26 A Belgian royal decree reinforc- ing the effects of agreements between travel 24 — Sec the judgment in Case 231/83 Cutlet v Leclerc [1985] ECR 305, paragraph 13. 25 — Sec the judgment in Marchandise, cited above, paragraph 22. 26 — Judgment in BNIC v Allbert, cited above, paragraph 23.

45. The Court has emphasized that by embodying in regulations what was origi- nally a purely contractual measure contrary 49. Since the Van Eyckei2 and Marchan- to the competition rules, State rules reinforce dise 33 judgments, the Court applies a new agreements between the parties 'inasmuch as hypothesis: a Member State which deprives the rules acquire a permanent character and its own rules of their official character by can no longer be rescinded by the parties.' 28 delegating to private traders the responsibil- ity for taking decisions affecting the econ- omic sphere deprives the competition rules applicable to undertakings of their effective- 46. The Court did not exclude the possibil- ness. ity that other situations might be envisaged. Thus, in Leclerc v AH Blé Vert the Court raised, but did not answer, the question whether national legislation which makes it unnecessary for undertakings to engage in 50. The Court thus applies the 'delegation of conduct of the kind prohibited by Article State power test' mentioned above. In Van 85 undermines the effectiveness of that arti- Eycke, the Court takes the view that rules cle. " are of an official character where the public authorities have reserved the power them- selves to fix the maximum rates of return on 47. That question paved the way for the savings deposits and have not delegated that judgment in Van Eycke and recourse to the responsibility to any private agent. That offi- 'delegation of State power test' laid down cial character cannot be called in question by therein. 30 the fact that the rules were adopted after consultation with the representatives of the associations of credit institutions. 34 In Marchandise, the Court analysed the 48. Let us look again at the commentary on national rules prohibiting the employment of the Leclerc judgment by Professor Jolict: workers in retail shops on Sunday after mid- 'The Court did not disapprove of all legisla- day, finally coming to the conclusion that tion which, by eliminating competition nothing detracted from their official charac- between undertakings, renders the conclu- ter. 35 The Court had already expressed the sion of agreements superfluous. It simply view in Cullet,b that a public system of raised an objection in principle to the adop- compulsory prices which entrusted the direct tion of legislation whereby the State gives up fixing of prices to the public authority did its role and confers on undertakings the not lose its official character even if the

factors taken into account in fixing the retail 56. The rationale of the Court's case-law is prices included the ex-refinery prices fixed clear. Whenever, in breach of its obligations by the suppliers. under Article 3(f) and the second paragraph of Article 5, a Member State intervenes with regard to the conduct of undertakings in 51. The Court thus draws a distinction matters of competition, its action is liable to between two types of State rules. deprive individuals of such rights as they might have under the Treaty and the Com- munity institutions of the exercise of the 52. First, there is legislation which, even if powers vested in them by the Treaty. The adopted after concertation, does not involve protection of individuals' rights and the economic agents in the decision-making pro- application of the competition rules by the cess and does not have the effect of endors- Commission would be put in jeopardy if the ing, favouring or reinforcing agreements Member States were able to allow undertak- between undertakings (which are merely a ings to do what Articles 85 and 86 prohibit reflection of private interests). Such legisla- them from doing: 'The Treaty ... prohibits tion is incontestably of an official character any State from distorting the normal course and is not open to criticism under Article of competition by making it possible for 3(f), the second paragraph of Article 5 or traders to escape its provisions.' 3S Article 86 of the Treaty.

53. Secondly, there are two possibilities — distinguished from the present case — men- tioned in Van Eycke. 37 The first concerns 57. The approach taken in the case-law the reinforcement by a State measure of whereby Articles 3(f), 5 and 85 are read in agreements between undertakings antedating conjunction presupposes the existence of an that measure. The second concerns rules agreement between undertakings, otherwise which cover and authorize in advance an it would be legally inconsistent. If there is no agreement having a restrictive impact on agreement, is not Article 85 deprived of its competition. substance?

64. It does not follow that the Member 60. If all State regulations restricting compe- States are bound by the same prohibition in tition were, solely because of their effects, the case of rules applicable to an economic declared to be contrary to the Treaty, would sector in which private undertakings operate. there still be any raison d'être for Articles If that were the case, any State measure 30 and 59? Would not the prohibitions they applying restrictions to commercial activity contain thereby be subsumed in the more would be liable to be caught by Articles 3(f), general prohibition of restricting compe- 5 and 85. tition? Let us take the example of national rules prohibiting certain forms of advertis- ing, such as those at issue in the judgment in Yves Rocher.39 Having been declared con- trary to Article 30, would those rules not 65. Article 90 does not constitute the appli- have a restrictive effect on competition? cation to public undertakings of a general principle prohibiting restrictions of compe- tition by Member States — the latter, as indi- cated, are not subject to that prohibition. 61. How should Article 85 be applied in cir- And the RTT judgment 41 , which concerns cumstances where one of its essential ele- only an undertaking vested with exclusive ments — the existence of conduct on the rights, cannot, without being improperly part of an undertaking — is lacking? It docs stretched, be regarded as pointing in that not seem possible that it could. Article 85 is direction. de facto invoked only because it is clear that Articles 3(f) and 5 cannot by themselves cre- ate obligations for Member States. It is nev- ertheless necessary to demonstrate the exist- ence of an agreement. 66. Finally, whilst the existence of conduct by undertakings is a clear point of reference for the identification of State rules caught by 62. Moreover, I do not think that the rea- Articles 3(0, 5 and 85, what would be the soning adopted by the Court in relation to position in the absence of any such conduct? Articles 85 and 90 can be transposed to Arti- According to what criterion would it be cles 3(0, 5 and 85.

74. That is a further reason prompting me to consider that, taken together, Articles 3(f), 5 70. Admittedly, Article 104 of the Treaty, and 85 can and must relate only to State concerning the powers of Member States in rules that are incontestably linked with con- economic matters, can be invoked in order to duct on the part of undertakings. Only such render certain rules immune from those pro- a link can prove that those rules were visions. 42 adopted with a view to removing certain cat- egories of private traders from the con- straints of the competition rules.

71. It is true that the specificity of a product or the absence of a common sectoral policy may also be invoked in order to escape the 75. It is more in conformity both with the letter and with the spirit of the Treaty to examine State rules restricting competition in the absence of any conduct by undertakings 42 — Sec the Opinion of Advocate General Mancini in Van Eycke, in particular paragraph 3 ([1988] ECR 4784). by reference to Articles 30 and 36 or 56 and

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59. The Court thus has clear criteria for the public interest will not necessarily be determining whether or not a given instance contrary to Community law. 45 of State intervention is contrary to Commu- nity law. 43 78. Let us return to Reiff.

79. The central issue is therefore this: are we 76. To dissociate Articles 3(f), 5 and 85, dealing with a procedure whose official char- taken together, from any conduct on the part acter is not affected by the consultation of undertakings would, in my view, give rise undertaken with the representatives of the to legal uncertainty and open the way for economic sector concerned or with a pro- unintentional infringements of the Treaty by cedure which is a non-State procedure only the Member States. There could be system- in form, by means of which those represen- atic challenges as to whether rules on econ- tatives fix the applicable tariffs through a omic matters were in conformity with Com- restrictive agreement approved by the public munity law. authority?

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therefore a real risk of a cartel, which I shall negotiation and conclusion of the agree- consider first. ment'. 46

83. Rules which 86. The Court took account primarily of the factual situation and considered that the members nominated by those organizations (1) reserve to a Member State the right to were, first and foremost, representatives of determine the criteria for defining the them and consequently — let me add — the content of the decisions of tariff boards defenders of purely private interests of asso- and ensuring that those criteria are ciations of undertakings. observed by means of administrative and judicial supervision, and

(2) ensure that the State is in control at all 87. Under Paragraph 21(2) of the GüKG, stages of the procedure, the members of the tariff boards are tariff experts from the various branches of the long-distance haulage industry who are cho- sen by the Federal Minister of Transport from the list submitted to him by undertak- provide the State with the means of neutral- ings or associations of undertakings in the izing that risk. A procedure of that kind industry. The Minister may nevertheless take makes it possible to exclude the creation of a part in the meetings of the boards or arrange cartel. That is the second issue to be consid- to be represented at them. 47 ered.

89. It is true that the members of the boards 93. Finally, as I have indicated, those mem- are not legally the agents of the undertakings bers arc sometimes nominated by organiza- or associations which nominated them. Still tion which arc themselves made up of under- less do they act under a binding mandate. 52 takings. Does that mean that they arc independent of them?

94. As Advocate General Sir Gordon Slynn observed in his Opinion in BNIC v Clair,55

90. Here again it is appropriate to recall the terms of the judgment of the Bayerisches Oberlandcsgericht: 'It is, however, important not to overestimate the value (of Paragraph 21(2) of the GüKG) having regard to the 'Article 85(1) is not to be read rcstrictively as natural interests of each member of that referring only to "associations of undertak- board. By being appointed to the tariff board ings". It includes "associations of associa- by the Federal Minister of Transport, a tions of undertakings". If the position were group of hauliers is brought together in an otherwise it would be easy for undertakings organizational unit whose task is to draw up to sidestep the application of the competition regulations governing the development of rules'. 56 the market in an industrial sector'. 53

54 — O n this p o i n t , sec the C o m m i s s i o n ' s observations, p. 13. Sec also, to the same effect, Dolfen, 'Der Verkehr im euro- 50 — Which referred a question to the Court of Justice (Case päischen Wettbewerbsrecht', 1991, p . 163, who also points C-48/92 Wimmcr). out that the members of the tariff boards who cease to 51 — P. 9 of the Trench translation. belong to the associations which nominated them cease to 52 — They receive no mandate and no instructions (fourth sen- be members of the board. tence of Paragraph 21(2) of the GüKG). 55 — Judgment cited above. 53 — P. 9 of the French translation. 56 — [1985] ECR at 396.

100. By definition, the advantage of regula- 96. Let us consider the necessity of official tions is, in the present case, that they endow approval. with general and binding effect an agreement that previously had no such effect. The fact that a decision has no binding effect in itself does not therefore suffice to prevent its being 97. The Bundesanstalt observes that the classified as a restrictive agreement. 62 decision of the tariff boards does not in itself 58 have any binding force. N o r is the agree­ ment binding on the parties to it. It is specif­ ically the State measure approving it that 101. Far from being simple notices, the deci- gives it the force of law. 5 9 sions of the tariff boards are binding on the undertakings and associations of undertak- ings which nominated their members, as they are for the other undertakings in the indus- 98. That, moreover, was the position in try, subject to the condition precedent of Asjes, in which the arrangements agreed by their being approved by the competent min- the undertakings were binding on the parties isters. only upon official approval. 6 0 Similarly, in BNĪC v Aubert, the agreement on produc­ tion quotas had no raison d'être or effective- ness until extended by State decision to all 102. It follows that an agreement concluded the undertakings in the sector concerned. 61 within the tariff board is made binding and effective, by the official approval, vis-à-vis the undertakings and associations of under- takings in the sector concerned. 99. The Court does not require, for the combined application of Articles 3(f), 5 and 85, proof of a 'perfect' cartel: a cartel created subject to the condition precedent of official 103. Finally, since the staff and other operat- approval, the only way of making it binding, ing expenses of the tariff boards and the is still caught by the latter article. Indeed, it hauliers' committees are not borne by the Federal Government, 63 those organizations appear to enjoy a degree of independence from the latter. 57 — Judgment in Case 71/74 Fruho v Commission [1975] ECR 563, paragraph 30. 58 — See its observations, p. 10. 59 — Paragraph 20a(6) of the GÜKG. 60 — Sec the observations of L. Gyselcn in 'State action and the 62 — Sec the Bundesanstalt's observations, p. 16. effectiveness of the EEC Treaty's competition provisions', 63 — Sec the order of the Federal Minister of Transport of 1989 CMLR, paragraph 3.2.1. 21 November 1969, annex 2 to the Commission's observa- 61 — L. Gyselcn, op. cit., paragraph 3.2.3. tions.

— the State retains control over the content of tariff decisions by laying down the applicable criteria, and 112. State determination of transport prices should also make it possible to take account of the interests of the agricultural sector, medium-sized undertakings and economi- — there is supervision, both administrative cally weak regions or those which have inad- and judicial, to ensure the observance of equate transport facilities. 65 those criteria or penalize non-observance,

it cannot be considered that the public auth- 113. If the State docs not allow competition ority has delegated the decision to organiza- unlimited sway as regards prices and inter- tions made up of trade representatives. venes in the market to regulate them, it does

64 — Fmphasts added 108. Let us consider those two points. 65 - Paragraph 22(1) of ihc GuKG

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so in order to safeguard the interests of 116. Thus, in principle, there is no way in economic, social and environmental policy. which, in a procedure of that kind, private interests can prevail: one of the precondi- tions for a cartel is thus not fulfilled. The system is so designed that the board is an 114. Thus, decisions such as those taken by instrument of the State to be used for the the tariff boards cannot be agreements con- attainment of objectives set by the State. cluded at will by the 'representatives' of car- riers in a given sector so as to cause their own interests to prevail over the public inter- ests which are the raison d'être of rules of 117. Two cases may arise. that kind.

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of the Economy may themselves fix the tar- 127. By contrast with the position in Asjes iffs, acting in the stead of the tariff board if (in which the administration endorsed an the public interest so requires. 68 existing price agreement) or BNIC v Aubert (in which the administration reinforced by an order the effects of agreements concluded without its involvement, relating to trading 122. It will be for the national court to quotas contrary to Article 85) or BNIC v establish whether judicial remedies are avail- Clair (in which the representatives of two able in the event of ministerial approval of a families within the BNIC were empowered decision not in conformity with the legal cri- to conclude within that body a price agree- teria. ment in which the government commissioner had had no part), the State imposes tariffs which it has caused to be brought into being 123. If that is the case, a procedure for the and of which it verifies the conformity with fixing of tariffs of the kind under review will, the legal criteria. in all cases, enable its aim to be achieved: the regulation of conditions of competition on the basis of the criteria laid down by the Member State. 128. Price competition is restricted in the road haulage sector by reason of the rules themselves and not as a result of a private initiative. Whilst the application for exten- 124. If the tariff board were to depart from sion of the BNIC agreement came exclus- those criteria, approval would be refused. ively from undertakings represented within The Minister must withhold approval if the it, here the approval procedure is undertaken legal criteria arc not met. on the initiative of the State alone. There is no longer any question of a dialectical rela- tionship between the State and the undertak- 125. Finally, if the Minister were to endorse ings, in which the former takes over agree- a decision not conforming to the criteria, his ments concluded by the latter. approval might be the subject of an applica- tion to the courts.

131. I therefore propose that the C o u r t , in accordance with its consistent case-law, rule as follows:

Articles 3(f), 5 and 85 of the E E C Treaty do not preclude, for the fixing of road haulage tariffs, national rules which grant powers to boards made u p of members appointed b y the public authority on the basis of nominations from undertakings or associations of undertakings in the industry concerned, provided that the decisions of those boards are required to conform with criteria laid d o w n b y the public auth- ority, it being u n d e r s t o o d that, in the event of those criteria not being complied with, the decisions should n o t be approved b y that authority, they may be replaced b y an administrative decision and, in any event, may be subject to judicial review in court proceedings which may be b r o u g h t against the decision granting official approval.

70 — Sec Annex 3 to the Commission's observations. It should be added that the Minister of Transport fixes all the other important conditions of the transport contract (Paragraph 20a(5) of the GÜKG).

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