C-96/94

OPINION OF MR LÉGER — CASE C-96/94

OPINION OF ADVOCATE GENERAL LÉGER delivered on 6 July 1995

1. The Court is faced once again with the (a) a member of the State Council, acting as question of anti-competitive national rules in chairman; this case, the background to which is as fol- lows.

(b)four representatives of the Ministry of Transport and Civil Aviation, one repre- 2. Italian Law N o 298 of 6 June 1974 estab- sentative each of the Ministries of Indus- lishing the national register of road-haulage try, Commerce and Crafts, State Hold- operators operating for hire or reward, ings, Foreign Trade, Agriculture and which lays down rules on the carriage of Forestry, the Interior, Public Works, goods by road and introduces a system of Finance and the Treasury; bracket tariffs for the carriage of goods by road, ' governs the manner in which those tariffs are to be fixed.

(c) four representatives of the regions, of whom one shall represent the regions having a special status and three the regions of central, northern and southern 3. The register (on which all road hauliers Italy, respectively. The manner of operating for hire or reward must be regis- appointment of these representatives shall tered) is kept by a central committee, the be laid down by the regulation imple- composition of which is as follows by virtue menting this law; of Article 3 of Law N o 298:

(d) twelve representatives of the national 'The central committee shall be composed of: associations most representative of road hauliers operating for hire or reward and of national associations representing, * Original language: French. assisting and safeguarding the cooperative 1 — GURI No 200 of 31 July 1974. movement ...

5. Article 52 provides as follows: Of the four representatives of the Ministry of Transport, two shall be selected from amongst the officials of the Directorate Gen- eral for Civil Traffic Control and Transport under the Concession Scheme (who shall be seconded) and two from amongst the offi- cials of the Directorate General for Coordi- nation and General Affairs. 'Each tariff shall be calculated using a basic price at the mid-point of the bracket. The basic price shall be determined having regard to the average cost of the relevant transport services, including commercial expenses, cal- culated for well-managed undertakings oper- The implementing regulation shall lay down ating under normal conditions as regards the requirements relating to the representa- utilization of their transport capacity and the tive nature of the relevant national associa- market situation in such a manner as to tions as regards the appointments referred to enable transport undertakings to obtain a fair in (d) above and Article 4(f). return.

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The tariffs may be differentiated according — the tariffs are proposed by the central to: committee to the Minister of Transport and Civil Aviation (hereinafter referred to as 'the Minister');

— the circumstances of the transport ser- vices, in particular on the basis of the technical and economic characteristics of the consignment; — the Minister consults the regions and the representative national trade associations of the economic sectors concerned;

— transport links;

CENTRO SERVIZI SPEDIPORTO v SPEDIZIONI MARITTIMA DEL GOLFO

10. In that case, the central committee either 15. Article 13 of the Ministerial Decree of makes new proposals or adheres to its origi- 18 November 1982 2 authorizes carriers to nal proposal while submitting counter- depart, in certain circumstances, from the observations. compulsory tariffs either by agreement between the consignor and the carrier or pursuant to a collective economic agreement concluded between the most representative carriers' associations on the central commit- tee and users.

11. If the Minister approves the proposals, he issues a decree to that effect within sixty days of receipt of the new proposals or counter-observations. 16. In 1993, Spedizioni Marittima del Golfo Sri (hereinafter referred to as 'Marittima del Golfo') entrusted to Centro Servizi Spedi- porto Sri (hereinafter 'Spediporto') freight forwarding work (including transport and customs formalities) consisting, in particular, 12. If the Minister refuses to endorse the of: new proposals or counter-observations (or if he does not receive them within the time- limit), he may disregard them and adopt, by means of a decree, a tariff differing from that proposed by the committee. — six road transport operations carried out entirely within Italy for the carriage of containers brought from China by sea;

13. The Minister may also, on his own ini- tiative, require tariffs to be amended. He — two road transport operations carried out must consult the central committee, but may entirely within Italy for the carriage of disregard its views provided that he has first containers brought from Indonesia b y consulted the representatives of the econ- sea; omic sectors direcdy affected.

— the imposition of contractual condi- tions which are the result of manda- tory tariffs being applied which are 20. The President of the Tribunale has not calculated by reference to the referred the following three questions to the actual cost of the service provided; Court for a preliminary ruling:

' 1 . Are Articles 3(f), 5, 30, 85, 86 (and possi- bly 90) of the EEC Treaty compatible with national legislation which: — the extension of the compulsory tariff to every other contract whereby a haulage service is rendered, thus removing that service from the system of free price formation; (a) Entrusts to a committee whose members (as guardians of the interests of their sec- tor) are representatives of the associations of road-haulage contractors and/or t o private agreements, the task of setting the tariffs for the road haulage of goods o n behalf of third parees, making those tar- — discrimination between users of trans- iffs compulsory for all economic opera- port services according to the tariff tors upon endorsement by the public adopted;

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— the application of different conditions 2. Does the statutory monopoly in the car- for the same services by permitting riage of goods by road on account of third hauliers to conclude contracts con- parties come within the ambit of Article taining non-standard conditions; 90 of the EEC Treaty?

— distortion of the contractual relation- ship between haulier and customer by If so, are the rights conferred on authorized exposing the latter to possible legal contractors capable of constituting abuse of a action brought by the road-haulage collective dominant position within the contractors for supplementary pay- meaning of Article 86 of the EEC Treaty? ment;

(a) Application of Articles 3(g), 5, 85 and 86 of the Treaty

21. O n e preliminary observation concerning admissibility: according to that which the Court has consistendy held, 3 a reference for a preliminary ruling made by an Italian judge 24. Since the judgment in GB-Inno-BM,b before whom an application for an injunc- anti-competitive State measures have been tion has been brought pursuant to Article prohibited by Article 3(g) and 5 read 633 et seq. of the Italian Code of Civil Pro- together with Article 86 (or 85) of the cedure is admissible. Moreover, as the Com- Treaty: mission points o u t , 4 the principle audi alterant partem has been complied with: Marittima del Golfo has been able to state its case in the preventive proceedings which it instituted. '... while it is true that Article 86 is directed at undertakings, nonetheless it is also true that the Treaty imposes a duty on Member States not to adopt or maintain in force any First question measure which could deprive that provision of its effectiveness'. 7

22. The first question essentially asks the 25. That case-law was refined by the Court to rule on the compatibility of the judgment in Van Eycke, 8 in which the Court Italian system for fixing road-haulage tariffs distinguished between two situations: a with Articles 3(g), 5 and 85, on the one hand, Member State infringes Articles 3(g), 5 and and Articles 3(g), 5 and 86, on the other, and 85 of the Treaty (i) where it requires or with Articles 30 and 90 of the EC Treaty.

5 _ Judgments in Joined Cases 209/84 to 213/84 Asjes [1986] ECR 1425 and Case C-185/91 Reiff [1993] ECR 1-5801, 3 — See, for example, the judgment in Joined Cases C-332/92, paragraph 12. C-333/92 and C-335/92 Eurico Italia and Others [1994] E C R 1-711, paragraph I I et seq. and the Opinion of Advo- 6 — Case 13/77 GB-Inno-BM [1977] ECR 2115. cate General Darmon in that case, paragraphs 19 and 20. 7 — Paragraph 31. 4 — Page 15 of the French translation of its observations. 8 — Case 267/86 Van Eycke [1988] ECR 4769.

27. Under hypothesis (i), Articles 3(g), 5 and 85 of the Treaty are infringed only if there is — the committee's powers are strictly con- an agreement, decision or concerted practice. fined to making proposals which are n o t In the judgments in Meng, n Ohra Schade- binding on the Minister; verzekeringen I2 and Reiff, the Court refused to extend the prohibition of anti-competitive State measures to cases in which the measure makes any agreement ineffective because it has the same effects. — the committee is bound to comply with a number of criteria laid down by Law N o 298 and specified by Decree N o 56 of the President of the Italian Republic of 9 Jan- uary 1978; 28. Accordingly, it is therefore absolutely decisive to identify and characterize an agreement. Does the proposal for road- haulage tariffs adopted by the central com- mittee constitute an agreement? — the committee is not the only advisory body available to the Minister. H e has t o 9 — Paragraph 16. take account of the observations of non- 10 — Cited in footnote 5. economic public bodies, such as the 11 — Case C-2/91 Meng [1993] ECR 1-5751. 12 — Case C-245/91 Ohra Schadeverzekeringen [1993] ECR regions, and of the guidelines of the 1-5851. Interministerial Committee on Prices.

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30. In the absence of an agreement, have the 33. As for the collective agreements con- public authorities delegated to private traders cluded pursuant to Article 13 of the Minis- their powers with regard to the fixing of terial Decree of 18 November 1982, it will be transport tariffs (hypothesis (ii))? noted that they do not have the effect of restricting competition, but, on the contrary, of increasing traders' leeway by providing for an exception to the application of the 'bracket' tariffs.

32. Moreover, the mere fact that measures are not adopted until representatives of the trade sector concerned have been consulted is insufficient to constitute a delegation of 35. In the judgment in Hoffmann-La Roche responsibility within the meaning of the v Commission, the Court defined an abuse of judgment in Van Eycke. In paragraph 19 of a dominant position as '... a position of econ- that judgment, the Court observed that: omic strength enjoyed by an undertaking which enables it to prevent effective compe- tition being maintained on the relevant mar- ket by affording it the power to behave to an appreciable extent independendy of its com- petitors, its customers and ultimately of the consumers'. 1 3 '... it is apparent from the legislation in ques- tion that the authorities reserved to them- selves the power to fix the maximum rates of interest on savings deposits and did not del- egate that responsibility to any private trader. That legislation thus has an official character which cannot be called in question by the mere fact, emphasized by the plaintiff 36. In accordance with the wording of in the main proceedings, that according to Article 86 of the Treaty, the Court has held the preamble to the Royal Decree of 13 March 1986 the decree was adopted fol- lowing consultations with the representatives 13 — Case 85/76 Hoffmann-La Roche v Commission [1979] ECR of associations of credit establishments.' 461, third subparagraph of paragraph 38.

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that a dominant position may be held by out, 200 000 undertakings are operating on 'one or more undertakings'. u that market, most of those undertakings are on a small scale and have a rudimentary organization ('padroncini' or one-man busi- nesses). They have given rise to numerous trade associations, some of which are repre- The Court confirmed this recently in the sented on the central committee, which are judgment in Almelo and Others: often at loggerheads with one another. I 7 This is borne out by the President of the Tri- bunale. IS

'... the undertakings in the group must be linked in such a way that they adopt the 38. In the order for reference, the President same conduct on the market'. 1 6 of the Tribunale maintains that Article 30 precludes the application of the Italian legislation on road-haulage tariffs, in particu- lar Article 3 of Law N o 298 of 1974.» 9 I dis- agree for two main reasons. 37. Such a situation is completely alien to the structure of the market in question in this case, namely the national road-haulage market in Italy. As the Commission points 39. In the first place, I consider that the legislation in question is concerned 14 — Judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 376 et seq. and judgment of the Court of First Instance in Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others [1992] ECR 17 — Observations of the Commission, second paragraph on 11-1403, paragraphs 340 et seq. page 22 of the French translation. 15 — Case C-393/92 Almelo and Others [1994] ECR 1-1477, 18 — Order for reference, second paragraph on page 7 of the paragraph 40. French translation. 16 — Ibid., paragraph 42. 19 — That provision is set out in section 3 above.

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with the provision of transport services issue, which is applicable, without distinc- and not with the free movement of goods. tion, to domestic and imported products alike, puts the latter at a disadvantage over domestic products. 21

43. I would observe that it has not been shown that the undertakings in question are 41. Secondly, it has not been shown in the instant case that the legislation on prices at

21 — See, in particular, the Commission's observations, last para- graph on page 24 and the first and second paragraphs on 20 — Paragraph 51 of the Opinion of Advocate General Lenz in page 25 of the French translation. Case C-379/92 Peralta [1994] ECR 1-3453. 22 — Paragraph 24 of the judgment, cited in footnote 20.

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44. In any event, even if the Italian State 47. In so far as the President of the Tribu- had granted special or exclusive rights to nale himself states that '... the existence of the aforementioned quota system ... is not

23 — Article 90(1). 24 — Article 90(2). 29 — The term 'measures' is to be construed as having its broad- 25 — Article 90(1). est possible meaning so as to cover not only measures in the 26 — Judgment in Case C-18/93 Coniai Ferries [1994] ECR nature of legislation or regulations and individual measures, 1-1783, paragraph 40. but also recommendations, incentives, administrative 27 — As has been seen, 200 000 traders are operating on this mar- instructions and so on. ket (see section 37 above). 30 — See sections 24 to 40 above. 28 — See, to this effect, the French translation of the Commis- 31 — Fourth paragraph on page 8 of the French translation of the sion's observations, p. 26. order for reference.

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O P I N I O N O F M R LÉGER — CASE C-96/94

relevant, per se, for the purposes of deciding tariffs to domestic road haulage carried out this case ...,' 32 I suggest that the Court by carriers established in the same Member should declare the second question inadmis- State following maritime transport between a sible. third country and that Member State.

50. I would first ascertain whether the 48. As the Court as consistently held, in dispute pending before the national court proceedings brought under Article 177 of the falls within the scope of those Community E C Treaty, it has no jurisdiction '... if [the] measures. questions bear no relation to the facts or the subject-matter of the main action and hence are not objectively required in order to settle the dispute in [the main] action ...'. "

'For the purpose of this Regulation, the fol- (b) third country traffic lowing shall be considered "maritime trans- port services between Member States and between Member States and third countries" where they are normally provided for remu- the carriage of passengers or goods by sea neration: between the ports of a Member State and ports or off-shore installations of a third country.'

(a) intra-Community shipping services: In other words, the maritime transport ser- vice ceases upon arrival at the port or off- shore installation. As a result, the Commu- the carriage of passengers or goods by sea nity regulation is not applicable in the between any port of a Member State and any instant case.

56. Consequently, I propose that the Court should rule as follows:

(1) Articles 3(g), 5, 30, 85, 86 and 90 of the EC Treaty do not preclude the appli- cation of national legislation which requires to be applied to national road- haulage operations tariffs fixed by the public authorities on the basis of pre- determined criteria at the proposal of a committee consisting of a majority of members representing the public authorities and a minority representing car- riers and which makes the possibility of derogating therefrom conditional on the application of collective economic agreements concluded between associa- tions of carriers and users.

(2) Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States and Council Regulation (EEC) N o 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime trans- port between Member States and between Member States and third countries do not preclude the application by a Member State of a system of compulsory tariffs for road-haulage operations performed by carriers established in that Member State, even if those operations follow maritime transport operations between a third country and that Member State.