C-96/94

JUDGMENT OF 5. 10. 1995 — CASE C-96/94

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 5 October 1995 *

In Case C-96/94,

R E F E R E N C E to the Court under Article 177 of the E C Treaty by the Tribunale di Genova (Italy) for a preliminary ruling in the proceedings pending before that court between

Centro Servizi Spediporto Sri

and

composed of: F. A. Schockweiler (Rapporteur), President of the Chamber, G. F. Mancini, J. L. Murray, G. Hirsch and H . Ragnemalm, Judges,

Advocate General: P. Léger, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Centro Servizi Spediporto Sri, by P. Schiaffino, of the Genoa Bar,

— Spedizioni Marittima del Golfo Sri, by A. Dani, G. Conte and G. Giacomini, of the Genoa Bar,

— the Italian Government, by U. Leanza, Head of the Legal Affairs Department in the Ministry of Foreign Affairs, acting as Agent, assisted by P. G. Ferri, Avvocato dello Stato,

after hearing the Opinion of the Advocate General at the sitting on 6 July 1995,

gives the following

Judgment

1 By order of 7 March 1994, which was received at the Court on 21 March 1994, the Tribunale di Genova (District Court, Genoa) referred to the Court for a prelimi- nary ruling under Article 177 of the E C Treaty three questions on the interpreta- tion of Articles 3(g), 5, 30, 85, 86 and 90 of the E C Treaty, of Council Regulation (EEC) N o 4055/86 of 22 December 1986 applying the principle of freedom to pro- vide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p . 1), and of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for cer- tain types of combined transport of goods between Member States (OJ 1992 L 368, p. 38), in order to enable it to rule on the compatibility with those provisions of Italian legislation on the fixing of tariffs for the transport of goods by road.

2 Those questions arose in proceedings between the transport company Centro Servizi Spediporto Sri (hereafter 'Centro Servizi') and Spedizioni Marittima del Golfo Sri (hereafter 'Marittima del Golfo') in which the former seeks payment of the price of road transport services rendered to the latter.

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(d) 12 representatives of the national associations most representative of road hauliers operating for hire or reward and of national associations representing, assisting and safeguarding the cooperative movement, as legally recognized by the Ministry of Labour and Social Welfare ... .

Members of the committee shall be appointed by order of the Minister of Trans- port and Civil Aviation. They shall be nominated by:

— the President of the State Council in the case of the member referred to in (a) above;

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— the relevant ministers in the case of the members referred to in (b) above;

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9 If the Minister does not approve the proposals, he refers them back to the central committee with a request for new proposals or counter-proposals. If the Minister does not consider those new proposals or counter-proposals to be satisfactory, he may amend the proposals originally submitted and bring them into force b y decree.

10 Failure to comply with the tariffs laid down renders economic operators liable to administrative penalties and, where the offence is repeated, disciplinary measures.

1 1 The criteria for calculating the bracket tariffs were specified, in particular, in Decree N o 56 of the President of the Italian Republic of 9 January 1978 (GURI N o 77 of 18 March 1978).

12 The Ministerial Decree of 18 November 1982 (Supplement to G U R I N o 342 of 14 December 1982), which brings into effect the initial determination of the bracket tariffs, authorizes certain derogations from the compulsory tariff. Article 13 of that decree provides that

i6 Centro Servizi applied to the Tribunale di Genova for an order requiring Marit- tima del Golfo to pay the transport costs.

i7 The Tribunale di Genova stayed the proceedings and referred to the Court the fol- lowing questions for a preliminary ruling:

' 1 . Is national legislation compatible with Articles 3(f), 5, 30, 85, 86 (and possibly 90) of the Treaty where it:

(a) leaves the fixing of tariffs for the carriage of goods by road on account of third parties to a committee which includes representatives of associations of road- haulage contractors (as representing the interests of their particular trade) and/or to private agreements, and makes those tariffs mandatory for all traders once they have been approved by the public authorities in accordance with the rules laid down in Law N o 162/93, Law N o 298/74 and in the Ministerial Decree of 18 November 1982;

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— changes in the contractual relationship between carrier and customer ren- dering the latter hable to legal proceedings brought by the road carrier for payment of the amount owed;

— a restriction of any reorganization of the supply of road transport designed to meet the needs of customers?

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2. Does the statutory monopoly of the carriage of goods by road for the account of third parties come within the ambit of Article 90 of the E E C Treaty?

If so, are the rights conferred on authorized contractors capable of constituting abuse of a collective dominant position within the meaning of Article 86 of the E E C Treaty?

Articles 85, 86 and 90 of the Treaty

i9 The rules on competition laid down in the Treaty apply to the transport sector (judgments in Case C-185/91 Reiff'[1993] ECR1-5801, paragraph 12, and in Case C-153/93 Delta Schiffahrts-und Speditionsgesellschaft [1994] ECR 1-2517, para- graph 12).

20 Articles 85 and 86 of the Treaty are, in themselves, concerned solely with the con- duct of undertakings and not with laws or regulations adopted by Member States. However, it is settled law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (as to Article 85 of the Treaty, see the judgments in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; in Reiff, paragraph 14, and in Delta Schiffahrts-und Speditionsgesellschaft, paragraph 14; as to Article 86 of the Treaty, see the judgment in Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 31).

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2i The Court has held that Articles 5 and 85 are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators respon- sibility for taking decisions affecting the economic sphere (see the judgments in Wan Eycke, paragraph 16, in Reiff, paragraph 14, and in Delta Schiffahrts- und Spe- ditionsgesellschaft, paragraph 14).

26 The next matter to be considered, as the Court stated in its judgments in Reiff (paragraph 20) and in Delta Schiffahrts- und Speditionsgesellschaft (paragraph 19), is whether the public authorities have delegated their powers, concerning the fixing of tariffs, to private economic agents.

27 It is to be noted here that the Italian Law provides that the central committee is to propose to the competent minister the transportation tariffs and any special con- ditions governing their application and it confers on the minister the power to approve them, to reject them or to amend them before bringing them into force.

28 F u r t h e r m o r e , before a p p r o v i n g the tariffs a n d b r i n g i n g t h e m i n t o force, t h e m i n - ister m u s t consult the regions and t h e representatives of the e c o n o m i c sectors con- cerned and m u s t have regard t o t h e guidelines issued b y the Interministerial C o m - mittee o n Prices.

29 The fact that collective agreements may be concluded pursuant to Article 13 of the aforesaid Ministerial Decree of 18 November 1982 does not have the effect of restricting competition but allows certain derogations from the mandatory tariffs, and therefore increases the possibility of competition.

30 It follows from the foregoing considerations that, in a system for fixing road- haulage tariffs such as that established by the Italian Law, the public authorities have not delegated their powers to private economic agents.

3i Articles 3(g), 5 and 86 of the Treaty could only apply to legislation of the kind contained in the Italian Law if it were proved that the legislation concerned placed an undertaking in a position of economic strength enabling it to prevent effective

35 It follows from the foregoing considerations that legislation such as the Italian Law is not contrary to Article 86, read in conjunction with Articles 3(g) and 5 of the Treaty.

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36 T h e national c o u r t also inquires as t o t h e compatibility of the Italian L a w w i t h Article 90 of the Treaty.

37 Article 90(1) refers t o p u b l i c u n d e r t a k i n g s a n d u n d e r t a k i n g s t o w h i c h M e m b e r States grant special o r exclusive rights, and Article 90(2) concerns u n d e r t a k i n g s e n t r u s t e d w i t h the o p e r a t i o n of services of general e c o n o m i c interest o r having t h e character of a r e v e n u e - p r o d u c i n g m o n o p o l y .

38 However, national rules such as those laid down by the Italian Law merely deter- mine the conditions governing access to the market and certain aspects of the con- duct of undertakings, particularly as regards prices, without turning them into public undertakings, granting them special or exclusive rights or entrusting them with the operation of services of general economic interest.

42 The answer to be given to the first question must therefore be that neither Articles 3(g), 5, 85, 86 or 90 of the Treaty, nor Article 30 of the Treaty, preclude the legis- lation of a Member State from providing for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a com- mittee, where that committee is composed of a majority of representatives of the public authorities and a minority of representatives of the economic agents con- cerned and in its proposals must observe certain public interest criteria, and where, moreover, the public authorities do not relinquish their rights and powers by tak- ing into consideration, before the proposals are approved, the observations of other public and private bodies, or even by fixing tariffs ex officio.

The second question

43 By its second question, the national court inquires whether national legislation establishing a statutory monopoly in relation to the carriage of goods by road by means of a system for the grant of transport permits based on quotas is compatible with Articles 30, 86 and 90 of the Treaty.

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CENTRO SERVIZI SPEDIPORTO v SPEDIZIONI MARITTIMA DEL GOLFO

44 I n its o r d e r m a k i n g the reference, the national c o u r t states, however, t h a t the q u o t a s y s t e m t o w h i c h the t r a n s p o r t p e r m i t s are subject is irrelevant for the p u r p o s e s of deciding the p r o c e e d i n g s , w h i c h c o n c e r n p a y m e n t of the price of the t r a n s p o r t ser- vices rendered.

JUDGMENT OF 5. 10. 1995 — CASE C-96/94

49 According to Article 1(1) of Regulation N o 4055/86, that regulation concerns mar- itime transport services between Member States and between Member States and third countries.

so The term 'maritime transport services', as defined in Article 1(4), covers the car- riage of passengers or goods by sea between any port of a Member State and any port or off-shore installation of another Member State or of a third country.

si It follows from that definition that maritime transport services, within the meaning of that regulation, cease upon the goods' arrival at the port or off-shore installation and d o not therefore extend to the transportation by road of goods unloaded from the vessel.

52 The answer to be given to the third question must therefore be that Directive 92/106 does not apply to combined transport of goods between third countries and Member States and that Regulation N o 4055/86 does not apply to the trans- portation by road of goods unloaded from the vessel.

Costs

1) Neither Articles 3(g), 5, 85, 86 or 90 of the EC Treaty, nor Article 30 of that Treaty, preclude the legislation of a Member State from providing for road- haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a committee, where that committee is com- posed of a majority of representatives of the public authorities and a minor- ity of representatives of the economic agents concerned and in its proposals must observe certain public interest criteria, and where, moreover, the pub- lic authorities do not relinquish their rights and powers by taking into con- sideration, before the proposals are approved, the observations of other pub- lic and private bodies, or even by fixing tariffs ex officio.

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 does not apply to combined transport of goods between third countries and Member States and Council Regulation (EEC) N o 4055/86 of 22 December 1986 applying the principle of freedom to pro- vide services to maritime transport between Member States and between Member States and third countries does not apply to the transportation by road of goods unloaded from the vessel.

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Schockweiler Mancini Murray

Hirsch Ragnemalm