C-343/95

CALÍ & FIGLI ν SEPG

OPINION OF ADVOCATE GENERAL COSMAS delivered on 10 December 1996

Table of contents

I — Preliminary observations I - 1550

II — Legislative framework I - 1550

A — Community provisions I - 1550

(1) Does SEPG constitute an undertaking? I - 1557

(a) The case-law of the Court of Justice I - 1558

(b) Are the activities of SEPG of an economic nature? I - 1562

(c) Prevention of pollution as a public authority activity 1-1565

(2) Has SEPG infringed Articles 86 and 90(2) of the Treaty? 1-1568

(a) Reply to the first question: determination of the relevant market and whether SEPG occupies a dominant position I - 1569

OPINION OF MR COSMAS — CASE C-343/95

(c) Reply to the third question: the effect on intra-Community trade ... I - 1575

(3) Is SEPG an undertaking entrusted with the operation of a service of general economic interest? I - 1576

VI — Conclusion 1-1579

I — Preliminary observations 3. It is important, in my view, because it affords the Court of Justice an opportunity to clarify to what extent protection of the environment is or is not a core public auth­ ority activity and, consequently, whether a body whose main task is preventing pollu­ tion is exercising an activity that constitutes 1. The Tribunale di Genova has submitted a State responsibility. to the Court of Justice, pursuant to Article 177 of the EC Treaty, a number of questions for a preliminary ruling concerning the com­ patibility with Community law of the monopoly established by the port authority in favour of a harbour company for the pro­ vision of anti-pollution surveillance and II — Legislative framework intervention services in the Port of Genoa.

A — Community provisions

(d) making the conclusion of contracts sub­ Β — The national legisUtion ject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the sub­ ject of such contracts.' 6. The Port of Genoa is managed by a public body, the Consorzio Autonomo del Porto (hereinafter 'the C A P ' ) , 2 upon which responsibilities for the management of the port of both an administrative and economic nature have been conferred by law. 5. Article 90 of the Treaty provides that:

7. By Order N o 14 of 1 July 1986, the President of the CAP approved regulations ' 1 . In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any 2 — On 30 December 1994 the CAP was replaced by the Autorità Portuale (Port Authority), pursuant to Law No 84 measure contrary to the rules contained in of 28 January 1994 reforming harbour legislation.

Ι-1551

OPINION OF MR COSMAS — CASE C-343/95

governing port police and security at the (b) in cases of pollution, whether from a Porto Petroli of Genoa-Multedo, that is to ship or from dry land, occurring during say the petroleum products terminal of the loading or unloading operations or any other Port of Genoa (hereinafter 'the Porto circumstances: Petroli').

11. By Decree N o 1191 of 30 August 1991, the President of the CAP approved the tar- 10. Under Article 1 of Order N o 32 of the iffs to be charged by SEPG for the provision President of the CAP, the following respon- of the relevant services to vessels using the sibilities have been entrusted to SEPG: installations of the Porto Petroli. The tariffs are calculated on the basis of the vessel's ton- nage and the quantities transported as well as the duration of the intervention when in fact required. Under that decree all vessels, regardless of their provenance or nationality, (a) constant surveillance of the waters on that use the Porto Petroli terminal installa- account of the presence of tankers laying tions to load or unload petroleum products alongside or berthed at quays in order to and petrochemicals are required to pay for identify at once any risk of spills of hydro- the pollution prevention/intervention ser- carbons or other pollutants arising from vice, according to the tariffs drawn up by criminal acts or negligence; SEPG.

I - 1552

CALÍ & FIGLI ν SEPG

12. However, the abovementioned decisions petrochemicals can be loaded and of the President of the CAP did not provide unloaded. for the fees to be applied to the harbour company, Porto Petroli di Genova SpA, which the CAP had made responsible for carrying out the technical operations of load­ ing and unloading petroleum, chemical and petrochemical products in the Porto Petroli.

15. The actual unloading operations were carried out not by Cali but by the harbour company, Porto Petroli di Genova SpA. Call's vessels, however, were equipped with their own anti-pollution equipment and sys­ HI — Facts tems.

5 — As the Commission points out (in paragraph 7 of its written observations), the Porto Petroli at Genoa is Italy's principal port both because of its strategic position and the large quantities of goods transported, given its proximity to tne 14. There are no other terminals in the major industrial regions of north-west Italy. According to the evidence produced, in 1993, the petroleum and chemical Ligurian Gulf in which chemicals and products handled accounted for more than 5 0 % of the total of goods transported through the Gulf of Genoa, making up 23 830 000 tonnes of a total of 43 225 000 tonnes. Moreover, the volume of those products passing through the port of Genoa was appreciably greater than the total volume of products in the same sector that passed through the ports of 3 — The national court has explained that berths West 2 and West La Spezia, Livorno and Savona. Finally, the Petroleum Port 3 arc used solely for loading and unloading chemical and of Genoa is Italy's principal port for petroleum products petrochemical products, whilst berths 1, 2, 3 and 4 of the accounting for 15% of the total volume of petroleum prod­ Porto Petroli are used for loading and unloading petroleum ucts handled in Italy as a whole. According to Cali, in 1995, products. more than 5 0 % of the products transported through the 4 — As the Commission points out (in paragraph 9 of its written Gulf of Genoa were petroleum, chemical and petrochemical observations), according to the Community legislation in products. To be precise: 27 417 550 tonnes of petroleum force, acetone is a hazardous chemical product because it is products and 1 387 tonnes of petroleum waste, and 745 553 highly flammable but it is not a pollutant of the marine envi­ tonnes of chemical products and 622 tonnes of chemical ronment. waste were carried.

18. In the course of the proceedings brought — which are compulsory and indepen- by Cali contesting that order to pay, the Tri- dent of the provision of an efficient bunale di Genova referred to the Court of surveillance and/or intervention ser- Justice, by decision of 12 October 1995, vice, merely because a vessel berths three questions for a preliminary ruling: in a mooring in the Porto Petroli and loads/unloads goods, whether petro- leum products or chemicals and pet- rochemicals, according to the con- '1. Can a "dominant position within the tractual terms imposed; common market or in a substantial part of it" be said to exist where a limited company, set up by a national port authority, is given responsibility for and does actually carry out, pursuant to an administrative concession from that — the amount of which depends solely authority, the task of providing, with on the tonnage of the vessel, the exclusive rights within a harbour sector amount of the product and also, in specializing in loading and unloading the event of any actual intervention, petroleum products, an "anti-pollution the duration thereof, but not on the surveillance" service, and where that product's nature, quality or capacity company collects the relevant fee, which to pollute; is set unilaterally by the port authority on the basis of the vessel's tonnage and the quantity of the product loaded or unloaded, from the users of that service, that is to say vessels which dock at the wharves to carry out those operations? — which, since they are imposed exclusively on the vessel (which is merely passively loaded and unloaded), affect a subject other than 2. Having regard to the situation set out in those whose responsibility it is to Question 1 and if there is a dominant carry out the necessary technical position within the common market or operations (in this case Porto Petroli

20. Specifically, according to Cali, were the Tribunale to accept that the CAP's decisions had to be interpreted as applying solely to vessels loading and unloading petroleum — which impose on the vessel a charge, products in the Porto Petroli but did not and an associated extra cost, in addi­ concern vessels engaged in similar operations tion to those provided for by the for petrochemicals, there would be no need landing contract between the carrier to refer to the Court of Justice for a prelimi­ and the company operating the nary ruling in order to resolve the dispute. wharves, and have no practical con­ Such a reference would, however, be neces­ nection with the subject-matter of sary were the Tribunale to accept that the the contract. fees charged for the provision of services by SEPG to vessels using the installations of the Porto Petroli apply without distinction to all vessels that dock at that port or load or unload petroleum or petrochemical prod­ ucts.

3. If, in the situations set out in Questions 1 and 2, there are one or more practices amounting to abuse of a dominant pos­ ition by an undertaking for the pur­ poses of Article 86 of the Treaty, does 21. The United Kingdom Government also this lead to a potential adverse effect on points out that since the national court has trade between Member States of the not resolved this important issue of national Union?' law, there is no need for the matter to be

I-1555

O P I N I O N OF MR COSMAS — CASE C-343/95

referred to the Court of Justice as the latter the Tribunale di Genova cannot be held to be would then be ruling on a hypothetical ques­ manifestly without relevance for the resolu­ tion; the United Kingdom Government cites tion of the dispute pending before that 10 the judgment in Meilicke in this connec­ court. Consequently, 'in so far as the quo­ 6 tion. tation of the provision in question is not incorrect on the face of it' the Court of Jus­ 1 tice should examine the questions referred. 1

23. In the light of the aforementioned case- law and given that the Court of Justice has before it 'the matters of fact or law necessary to give a useful answer to the questions sub­ 9 mitted to it', the questions submitted by 25. The first question that needs to be clari­ fied plainly concerns whether SEPG actually 6 — Case C-83/91 Meilicke ν ADV/ORGA [1992] ECR I-4871, constitutes an undertaking in terms of the paragraphs 29-32. Community rules on competition and, if it 7 — See, for instance, Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraph 25. does, the Court is then being asked to deter­ See also Case 83/78 Pigs Marketing Board ν Redmond [1978] mine the market within which it will con­ ECR 2347, paragraph 25 and Case C-127/92 Enderby ν Frenchay Health Authority and Secretary of State for Health sider whether SEPG holds a dominant pos­ [1993] ECR I-5535, paragraph 10. ition. 8 — See, in particular, Case C-348/89 Mecanarte ν Metalurgica da Lagoa [1991] ECR I-3277, paragraph 48 and prior to that Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others ν Government of Ireland and Others [1981] ECR 735, paragraph 5 et seq. and Case 338/85 Pardini ν Ministero del Commercio con l'Estero [1988] ECR 2041, 10 — See also Case 14/86 Pretore di Salò ν Persons Unknown paragraph 8. [1987] ECR 2545, paragraph 16. 9 — Meilicke, cited in footnote 6 above, paragraph 32. 11 — See Case 13/68 Salgou ν Italy [1968] ECR 453.

I-1556

CALÌ & FIGLI ν SEPG

(1) Does SEPG constitute an undertaking? in anti-pollution surveillance and is designed to guarantee port safety in order to protect the maritime environment (paragraph 3 of the Italian Government's observations).

30. It is therefore necessary to establish 28. According to the Italian Government, it whether, as regards its anti-pollution activity is clear from the aim and object of the ser- in the Porto Petroli, its principal activity, the vice administered by SEPG in the form of an exercise of which together with the issue of exclusive concession that this is an activity invoices has given rise to this case, SEPG is very different from the other harbour ser- engaged in an economic activity and is, con- vices to which the questions submitted to the sequently, subject to the rules on compe- Court of Justice in the Merci and Corsica tition, as maintained by the German Govern- Ferries cases related, as this activity consists ment, the Commission and Calì. The other possibility would be to consider this activity by SEPG to be bound up with the exercise of public authority powers, an argument put 12 — Cited in footnote 1 above. forward by the French Government and by 13 — Case C-18/93 Corsica Ferries Italia ν Corpo dei Piloti del Porto di Genova [1994] ECR I-1783. SEPG itself in their observations; that, more-

I - 1557

OPINION OF MR COSMAS — CASE C-343/95

over, is a possibility that the Commission of being carried on, at least in principle, by a too does not omit to mention in its written private undertaking with a view to profit'. 15 observations.

33. There are several examples in the case- 31. I shall begin by considering the case-law law of the Court of Justice. In Höfner and of the Court of Justice on entities which Elser the Court of Justice held the German constitute undertakings within the meaning Bundesanstalt für Arbeit to be an undertak- of the Community rules on competition, and ing because that public body is engaged in then go on to consider the crucial question economic activity as an independent unit in of whether SEPG itself constitutes an under- the employment sector in a broad sense. 16 taking.

I-1558

CALÌ & FIGLI ν SEPG

dock-work undertaking and/or company the meaning of Articles 86 and 90 of the could not be regarded 'as being entrusted Treaty, and, after considering the nature of with the operation of services of general those activities, their purpose and the rules economic interest', within the meaning of governing them, 2 2 the Court concluded that Article 90(2) of the Treaty. 18 the body in question was not an undertaking within the meaning of those articles.

22 — The responsibilities of Eurocontrol, which had the resources it needed for this, included in particular the col­ lection (and, where necessary, enforced collection), on behalf of the contracting parties and third States that had acceded to the Convention (Convention concluded in Brus­ sels on 13 December 1960, as subsequently amended), of the charges payable by users for the provision of air naviga­ tion services, as provided for under the Multilateral Agree­ ment on Route Charges. The subject-matter of the agree­ 36. In the SAT Fluggesellschaft case, 2 1 the ment included in particular the establishment of a common system for determining and collecting route charges payable Court of Justice had to ascertain whether the in respect of flights made in the air space of the contracting activities of that body, which is responsible States. 23 — SAT Fluggesellschaft judgment, cited in footnote 15 above, in particular for the common organization of paragraph 30. air navigation services in the air space of the 24 — Moreover, although the Court of Justice has not defined the concept of officiai authority, the interpretation provided by signatory States, constituted activities within Advocate General Mayras in Case 2/74 Keyners ν Belgian State [1974] ECR 631, 665, remains the locus classicus and is worded as follows: Official authority is that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the power of enjoying the preroga­ tives outside the general law, privileges of official power and 18 — Ibid., paragraph 28. powers of coercion over citizens. Connexion with the exer­ 19 — Cited above at footnote 13. cise of this authority can therefore arise only from the State 20 — Ibid., paragraphs 39 and 42. itself, either directly or by delegation to certain persons 21 — Cited in footnote 15 above. The dispute in that case was who may even be unconnected with the public administra­ tion.' See also points 22 and 23 of the Opinion of Advocate brought before the Belgian courts by Eurocontrol and con­ General Jacobs in Höfner and Riser (cited in footnote 14 cerned the recovery of route charges owed by an airline above). (SAT Fluggesellschaft) for the flights it had made during a certain period of time. 25 — Paragraph 28; see also paragraph 30.

context of its activity of collecting route economic management of the activity in charges which gave rise to the main action, question'. Eurocontrol did or did not constitute an undertaking entrusted with a revenue- producing monopoly, within the meaning of 29 Article 90(2) of the Treaty. 26 39. Moreover, in the judgment in Poucet the Court of Justice ruled that sickness •insurance funds or the bodies which act on their behalf in administering the social secu rity system provided by the State, are not engaged in economic activity but have an 'exclusively social function' because that

An almost identical approach was taken pointed out that 2 8 the pursuit of an activity by Advocate General Jacobs in point 64 of his Opinion in Joined Cases C-430/93 and C-431/93 Van Schijndel and that involves the exercise of official powers is Van Veen ν SPF [1995] ECR 1-4705, concerning the legal incompatible with the classification of an definition of an occupational pension fund as an undertak ing, but the Court of Justice did not in the end give a ruling entity as an undertaking, with the result that on that question. a body acting as a public authority is not 31 — Judgment in Poucet, cited in footnote 29 above, paragraph 18; see also paragraph 8. In its judgment in Case C-244/94 subject to the Treaty rules on competition.

not capital. It was considered (paragraph 12) that, even though it was non-profit-making and it managed a system established by law as an optional scheme, operating in keeping with the rules laid down by the authorities and presenting some aspects of solidarity (paragraphs 19 and 20), while the benefits it provided dependeď solely on the 26 — See also on this point the earlier judgment in Case 29/76 amount of the contributions, a body of that nature did con LTU ν Eurocontrol [1976] ECR 1541, paragraphs 4 and 5. stitute an undertaking within the meaning of Articles 85 27 — Point 13 of the Opinion in SAT Fluggesellschaft (cited in and 86 of the Treaty. footnote 15 above). 32 — Judgment in Poucet, cited in footnote 29 above, paragraph 28 — Ibid., point 9. 13.

40. It is worth pointing out that where the Court of Justice has to establish whether or not an activity is an economic activity, it looks at the nature of the activity, irrespec­ tive of the body that carries it out. The Court has thus recognized that 34 'the State may act either by exercising public powers or by carrying on economic activities of an industrial or commercial nature by offering goods and services on the market' 3 5 and that in order to classify such an activity as an 42. In reaching those conclusions, the Court activity carried out by a public undertaking of Justice has focused on the nature of the it is of no importance that the body in ques­ activity exercised, that is to say whether or tion does not have a legal personality distinct not it is of an economic nature and whether from that of the State. But the Court has it could, in principle, be performed by a pri­ made clear that 'in order to make such a dis­ vate profit-making undertaking. It has also tinction, it is therefore necessary, in each considered the aim of the activity and the case, to consider the activities exercised by rules to which it is subject. 3 7 In addition, the the State and to determine the category to Court has looked at a number, or bundle, of which those activities belong'. 3 6 indicators that on their own are not sufficient to rule out that an activity is of an economic nature and establish that it falls outside the scope of competition law. Basically, the 33 — Ibid., paragraph 15. 34 — See Case 118/85 Commission ν Italy [1987] ECR 2599, Court has assessed the extent to which the paragraph 7, in which the Court of Justice ruled that Italy's entity whose activities are under review Amministrazione Autonoma dei Monopoli di Stato (Autonomous State Monopolies Board) constituted a public operates in compliance with the rules laid undertaking that did not have legal personality distinct down by the administrative authorities and from that of the State but carried on economic activities by offering goods and services on the market in the manufac­ whether, more particularly, it has the power tured tobacco sector. 35 — For instance, in Case 107/84 Commission ν Germany [1985] to influence the level of the consideration ECR 2655, paragraphs 14 and 15 in particular, the Court of demanded in return for the services provided Justice ruled that only part of the postal activities carried out by a body governed by public law may be regarded as to users, and the extent to which it is profit- the activities of a public authority in the strict sense. making. 36 — Case 118/85, cited in footnote 34 above, paragraph 7. See also Case C-92/91 Taillandier [1993] ECR I-5383, para­ graph 14. Furthermore, in Case 41/83 Italy ν Commission [1985] ECR 873, paragraph 20, the Court of Justice took the view that the rules laid down by British Telecom, in the exercise of the rule-making powers conferred on it by stat­ 37 — See the judgments in SAT Fluggesellschaft, cited in footnote ute, should be considered to form an integral part of its 15 above, paragraph 30 and Poucet, cited in footnote 29 business activity. above, paragraph 18.

44. O n the question of whether or not the activity of SEPG is of an economic nature, 46. In point of fact, if the nature and pur- both the national court in its order for refer- pose of the activities of SEPG — as defined ence, SEPG itself and the Italian and French in Article 1 of Order N o 32 of the President Governments consider that the fundamental of the CAP, and consisting in antipollution aim of SEPG's anti-pollution activity is not surveillance, that is to say in protecting the only to guarantee the safety of users of the environment of the port and adjacent areas Porto Petroli, of the densely populated dis- — are analysed, they have clearly to be clas- tricts adjacent to the port and, more gener- sified differently, according to what they are ally, of those districts of Genoa close to the designed to achieve. Firstly, the maritime port where tourism is a growth industry, but zone of the Porto Petroli, that is to say a public asset, is being protected in the interest of the State and of citizens. Secondly, users 38 — As regards the area of SEPG's activities involving opera- of the Porto Petroli are being protected tions to neutralize the effects of pollution of the Porto against the risk of accidents and, thirdly, pro- Petroli in the event of an environmental accident, particu- larly spillages of petroleum, chemical or petrochemical tection is being provided for the areas sur- products, I consider it right that the polluted waters should be decontaminated by an operator which has specialist staff rounding the Porto Petroli, the inhabitants and the proper equipment. It has then a predominantly economic character and is based on the principle that, of those areas and undertakings established where identifiable, 'the polluter pays'. there which have a direct interest in the

48. Furthermore, it seems to me that the performance of the abovementioned tasks, that is to say SEPG's anti-pollution activi­ 50. A further element leading me to con­ ties, ought specifically to be recognized clude that SEPG's activity is not of an econ­ by the Court as constituting an essential omic nature is the fact that it is run accord­ ing to operating criteria that are not appropriate to a private undertaking, given 39 — It is certainly undeniable that the provision of those ser­ that, on the basis of Decree N o 1191 of the vices has incidental advantages, including advantages from an economic point of view. As the Italian Government President of the CAP, the CAP unilaterally points out, the mere fact of establishing the service has fixes the fees SEPG is to charge for provid­ meant that shipowners have been able to obtain better terms and lower rates from the insurance companies. ing its services to vessels which use the

I-1563

O P I N I O N OF MR COSMAS — CASE C-343/95

terminals of the Porto Petroli. That means by SEPG to every vessel using the facilities that SEPG is unable to take decisions inde- of the Porto Petroli and which SEPG is pendently of the CAP, that it acts on behalf responsible for collecting have to be consid- of the CAP, has no real power to influence ered to be purely fiscal in character. the process of setting the charges and is able only to determine the amount owed on each occasion 40 and collect it.

40 — In the SAT Fluggesellschaft case (cited in footnote 15 above), the Court of Justice pointed out, on the one hand, that the international organization 'acts in that capacity on behalf of the Contracting States without really having any influence over the amount of the route charges' (paragraph 29) and, on the other, that 'the charges are collected on behalf of the Contracting States to which they are paid 54. I would point out that, in this case, the over, after deduction of a proportion of the revenue corre- sponding to an "administrative rate" intended to cover col- sums collected by SEPG for anti-pollution lection costs' (paragraph 23). In the Poucet case (cited in footnote 29 above), the Court of Justice further pointed out surveillance of the Porto Petroli have to be that the social security bodies cannot influence the amount of the contributions, the use of assets and the fixing of the deemed to be a charge payable by an indi- level of benefits (paragraph 15). vidual for the benefit he has received as a

I-1564

CALÌ & FIGLI ν SEPG

result of a specific administrative activity car­ of protecting the environment is fundamen­ ried on chiefly in the interest of the commu­ tally valid as a preventive measure. 4 4 nity. 4 1

56. Analysis of the Treaty and secondary Community law seems to me to indicate that protection of the environment, particularly where based on prevention, constitutes a public authority activity 4 5that cannot be understood as anything other than a core (c) Prevention of pollution as a public auth­ State activity. 4 6 ority activity

of the environment. Clearly, then, the pre Environmental Law), editor A. N. Sakkoula, Athens- vention of pollution is crucially important, as Komotini, 1996 (397 pp.) The author argues that the whole complex of texts relating to the environment under interna- it serves the general interest not only of the tional, Community and national law point to 'the principle of a Public Environmental Order', as he describes it, and current generation but of future generations that, according to that principle, planning, regulating and also. 4 3 It can therefore be said that the aim monitoring the balance between man-made and eco- systems is basically a State responsibility that has to be assured by the State (pages 67 and 119); 'tne market clearly has a complementary role'; and the environment has to be protected 'in accordance with scientific criteria' (p. 119); the author concludes that this principle is binding on everyone 41 — See also the similar line of argument contained in point 14 (p. 67). of the Opinion of Advocate General Tesauro in the SAT 45 — The same conclusion emerges if we analyse international Fluggesellschaft case (cited in footnote 15 above). legislation in this field and, in particular the 1972 Stock- 42 — We have only to call to mind the environmental disasters holm Declaration on the Environment (principles 17 and caused from time to time by the spillage of petroleum prod 18) and the 1992 Rio Declaration (principles 4, 7 and 11) as ucts, such as occurred off the coasts of Brittany and Scot well as Agenda 21 of 1992 which restated the principles of land, for example, nuclear accidents (as in the case of Cher the Rio Declaration (see the guidelines contained in Chap- nobyl) or the escape of hazardous chemicals into the ter 8 on the organic merging of the environment and deve- atmosphere (dioxins in Seveso). lopment in the decision-taking process); see also M. Dekl- 43 — That was stressed in the 1992 Rio Declaration (principle 3) eris, op. cit., p. 122 et seq. and, in 1987, in the report of the World Commission on 46 — That, clearly, does not imply that if this objective is to be

I-1565

O P I N I O N OF MR COSMAS — CASE C-343/95

environment and the establishment of a into the definition and implementation of policy on the environment seem to me other Community policies. inconceivable unless the appropriate vigi- lance is exercised by the competent authori- ties, specifically by taking action to prevent incidents damaging to the environment. ...' 4 7 (emphasis added).

58. The growing interest in protecting the Under Article 130t, the protective measures adopted by the Council pursuant to Article environment is also apparent from the fact 130s 'shall not prevent any Member State that the whole of Title XVI of the Treaty from maintaining or introducing more strin- (Article 13 Or to Article 130t) is devoted to gent protective measures', but they must be the environment. compatible with the Treaty and notified to the Commission. 48

59. The basic provision on the protection of 60. In my view, various provisions of sec- the environment is Article 13 Or of the EC ondary Community law as well as the case- Treaty which reads as follows: law of the Court of Justice allow us to main- tain that protection of the environment and, more particularly, supervision and control of the extent to which legislation and practices designed to prevent accidents are actually being applied, constitute the exercise of pub- lic powers, that is to say of public authori- ties, given that 'the best environment policy

61. Accordingly, as regards Council Direc tive 84/631/EEC, 5 0 the Court held, 5 1 in relation to the transfrontier shipment of haz ardous waste, that 'the relevant national authorities are entitled to raise objections 62. A further argument supporting the view and are therefore able to prohibit a particular that the prevention of environmental disas shipment of dangerous waste . . . in order to ters is a public authority activity emerges if deal with the problems concerning, first, we consider, for instance, the provisions of protection of the environment and of health Council Directive 93/75/EEC. 5 4 To be more and, secondly, public policy and security'. 5 2 specific, according to the third recital in its Protection of the environment and of health preamble, the directive has set in place arrangements for providing the public authorities with information to enable them 49 — That statement is the first of the general principles of a to adopt the necessary precautions with Community policy on the environment approved by the Council meeting of Environment Ministers in Bonn on 31 regard to vessels carrying dangerous or pol

the risk of pollution and the risk of serious 50 — Council Directive 84/631/EEC of 6 December 1984 on the supervision and control within the European Community accidents resulting from the transport by sea of the transfrontier shipment of hazardous waste (OJ 1984 of dangerous or polluting goods is linked to L 326, p. 31), as amended by Council Directive 86/279/EEC of 12 June 1986 (OJ 1986 L 181, p. 13).

. .' Moreover, Article 15 establishes a sys for the transfer of all types of waste, whether hazardous or tem of control and supervision by the competent authori otherwise, not only between Member States but also ties. between the Community and non-member countries'. It 54 — Council Directive 93/75/EEC of 13 September 1993 con lays down (Article 30) the obligation to adopt the necessary cerning minimum requirements for vessels bound for or measures and, more especially, a system of checks to be car leaving Community ports and carrying dangerous or pol ried out by the competent authorities of the Member States luting goods (OJ 1993 L 247, p. 19). That directive imple to guarantee that the waste is transported as provided for ments the Solas and Marpol international conventions as under the regulation. well as IMO Resolution A 648 (16).

63. Furthermore, the case-law of the Court 65. Under Italian law, SEPG has the exclu- clearly indicates that protection of the envi- sive right to exercise surveillance (and under- ronment is recognized by the Court itself as an objective 'in the general interest' 56 justi- fying the restrictions on freedom of trade and freedom of competition. 57 58 — For example, following the European Council meeting held in Dublin in June 1990, the participants declared it to be the intention of the Heads of State and Government that action by the Community and its Member States will be devel- oped on a coordinated basis and on the principles of sus- tainable development and preventive and precautionary

paragraph 16. In its judgment in Joined Cases 372/85 to Documents, N o 1993, 10 July 1996) that: 'Member States 374/85 Ministère Public v Traen and Others [1987] ECR may impose public service obligations on undertakings 2141, paragraph 22, concerning criminal proceedings operating in the electricity sector relating to security of brought against three operators of private waste disposal supply, regularity, quality and price of supplies and to envi- undertakings and a driver of a vehicle carrying solid waste ronmental protection'. In other words, protection of the for having disposed of waste in various places without first environment is acknowledged to be a public service obliga- obtaining the permission of the competent authority, as tion and, therefore, a public authority responsibility. provided for by Council Directive 75/442/EEC of 15 July Finally, I would refer by way of illustration to the fifth 1975 on waste, the Court of Justice ruled that the power 'European Community programme of policy and action in vested in the Member States regarding organization of the relation to the environment and sustainable development' supervision provided for in the directive 'subject to the entitled 'Towards Sustainability', drawn up by the Com- usual limitations upon the exercise of a discretionary power mission (OJ 1993 C 138, p. 5). Significantly, Chapter 3,

I-1568

CALÍ & FIGLI ν SEPG

take rapid intervention) to protect the mari­ Merci, SEPG, which enjoys an exclusive time environment in the event of pollution right and is responsible for exercising super­ resulting from the spillage of petroleum vision to prevent pollution, has a dominant products. It therefore enjoys an exclusive position in a substantial part of the common right within the meaning of Article 90(1) of market. It further claims that the services the Treaty. provided by SEPG do not appear to repre­ sent a separate service additional to use of the port, as in the Merci case, but form an integral part of the running of the port. It points out that the element of 'surveillance' involved actually comprises surveillance exercised in the port for the rapid detection 66. The Court has consistently recognized of instances of pollution. Any intervention in that the 'the conduct of an undertaking the event of pollution is not so much a ser­ referred to in Article 90(1) of the Treaty vice provided for the benefit of the polluting must be assessed with regard to the provi­ vessel but constitutes an integral part of the sions of Articles 85, 86 and 90(2)'. 5 9 Thus, way in which the port is managed for the should the Court hold that SEPG does con­ benefit of all users and in the interest of the stitute an undertaking under Community proper functioning of the port installations competition law, then, once SEPG's conduct generally. has been reviewed in the light of Article 86, it would seem to me necessary to consider whether SEPG may be held to be an under­ taking entrusted with providing a service of general economic interest in accordance with Article 90(2), and to analyse the implications of that definition. 68. In the view of both the United Kingdom Government and the Commission, the domi­ nant position is held not by SEPG but by the port authority, the CAP, as a whole, which makes the port facilities available to users. The fees collected by SEPG are part of the whole range of charges levied for use of (a) Reply to the first question: determination the Porto Petroli. of the relevant market and whether SEPG occupies a dominant position

70. The Commission further claims that in order to answer the question whether there is a dominant position and whether the invoices issued by SEPG represent an unwarranted additional service, unconnected with the subject-matter of the contract and such as to constitute the abuse of a dominant market position, the making available to 72. In addition to the above considerations, users in the Porto Petroli of Genoa of instal- it is worth pointing out that it is clear from lations and equipment for loading and the judgment in Merci 62 that the Court is unloading petroleum, petrochemical and referring not to the CAP but specifically to chemical products has to be regarded as 'an undertaking' of a Member State 'such as being the activity of an undertaking. That, the Port of Genoa company'. 63 That is to according to the Commission, is because say that the Court did not in fact establish Calì asked to use the equipment and that ser- whether the CAP constituted an undertaking vice goes hand-in-hand with the obligation under Article 86 but whether two specific to use the surveillance and intervention ser- entities constituted an undertaking. 64 To be vice in the event of pollution that SEPG pro- precise, the Court found, with reference to vides. the market in the organization, on behalf of third parties, of dock work with regard to ordinary freight in the Port of Genoa 65 and

I - 1570

CALÌ & FIGLI ν SEPG

the actual performance of such dock work applied to the Porto Petroli in this case by a specific dock-work company, that because of its size (it is a part of the Port of that dock-work undertaking and/or com­ Genoa), the kind of products that it handles pany had a dominant position but could not (petroleum products and petrochemicals) be held to be 'entrusted with the operation and the alternative solutions offered under of services of general economic interest' the port system. within the meaning of Article 90(2) of the Treaty, 6 7 without ascertaining the extent to which the CAP as a whole constituted an undertaking. 6 8

I-1571

O P I N I O N OF MR COSMAS — CASE C-343/95

north-west Italy. O n the basis of the judg- (b) Reply to the second question: abuse of a ment in Merci, 72 the market in which SEPG dominant position operates (the provision of anti-pollution and intervention services in the Porto Petroli of Genoa) has to be held to constitute a sub- stantial part of the common market.

I -1572

CALÍ & FIGLI ν SEPG

therefore not strictly needed in order to 82. According to SEPG, its fees do not con­ decide the dispute in that action'. stitute an unfair trading condition, in so far as the carrier is able to include the cost in the freight charge. Given the type of activity that it carries on, the criteria applied to determine the sum payable, based on the vessel's ton­ nage and the quantities of the product, can­ not be regarded as constituting an unfair 80. Having made that preliminary distinc­ trading condition since, it is maintained, they tion, I shall consider to what extent the were fixed on the basis of a specific and CAP's approval of the fees charged by SEPG detailed study by experts in the field and fol­ creates the conditions that enable SEPG to lowing negotiations with the users of the abuse its dominant position within the Porto Petroli. Furthermore, in any event, meaning of subparagraphs (a), (c) and (d) of given the low level of the charges, they can­ the second paragraph of Article 86 of the not be considered disproportionate. Treaty.

(i) Infringement of subparagraph (a) of the second paragraph of Article 86

which is quite low, 79 so that it seems to me whose responsibility it is to carry out the difficult to envisage any infringement of sub- necessary technical operations, 81 inevitably paragraph (a) of the second paragraph of results in a discrepancy between the respon- Article 86. sibility for any pollution and the bearing of the cost of the anti-pollution service. Basi- cally, the national court is therefore raising the question of whether there is an abuse of a dominant position because dissimilar con- ditions are being applied to equivalent ser- 84. However, subparagraph (a) of the second vices, within the meaning of subparagraph paragraph of Article 86 could be held to have (c) of the second paragraph of Article 86 of been infringed in so far as SEPG, which the Treaty. holds a dominant position and has been granted exclusive rights under the national rules, is thereby requiring payment for ser- vices that Calì has not specifically requested. 80 The question is whether that 86. That argument cannot be accepted. I do 'abuse' of a dominant position is justified in not think that dissimilar conditions can be the light of Article 90(2), which I shall con- considered to be being applied to similar sider below (under (3)). transactions, in this case as between Porto Petroli di Genova SpA, which carries out the loading and unloading, and the laders- receivers of the product on the one hand and the tankers on the other, because it is not possible to collect the sums payable other (ii) Infringement of subparagraph (c) of the than from vessels that use the port installa- second paragraph of Article 86 tions and could, for one reason or another, trigger an environmental accident; and those sums are ultimately being collected from the operator on whose behalf the transport and related port operations are carried out.

88. According to the Commission, the CAP is in breach of subparagraph (d) of the sec­ ond paragraph of Article 86, via its subsid­ 90. According to Cali, the fees charged by iary SEPG, because it imposes on all vessels SEPG result in an unjustified additional cost berthing at the Porto Petroli, without dis­ to the carrier which is then reflected in the tinction, a service which, because of the prices of the products imported and nature of the product transported (in the exported. The monopoly enjoyed by SEPG case of non-polluting goods) is neither useful is therefore alleged to distort competition to nor justified. the detriment of other Italian undertakings and undertakings from the other Member States seeking to supply similar services in the Porto Petroli.

(3) Is SEPG an undertaking entrusted with the operation of a service of general economic interest? 95. In accordance with Article 90(2) of the Treaty, 'Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue- producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct 92. As the representative of the Italian the performance, in law or in fact, of the par- Republic emphasized in the written observa- ticular tasks assigned to them'. Given that tions and at the hearing, SEPG is entrusted that definition (undertaking entrusted with with a service for the benefit of the public. the operation of services of general economic This implies that SEPG may be held to be an interest) introduces a derogation from the undertaking entrusted with the operation of Community rules on competition, the Court a service of general economic interest within of Justice interprets it narrowly. 83 It is the meaning of Article 90(2) and that the within that framework that I shall consider rules on competition are not therefore appli- the extent to which the rules on competition cable in this case. apply to SEPG.

93. According to the United Kingdom Gov- ernment, in contrast with the approach taken 96. Certainly, undertakings entrusted with in the judgment in Merci, the port authority, the operation of services of general economic which forms a single entity with SEPG, has to be considered to be providing a service of general economic interest within the mean- 83 — See, in particular, Case 127/73 BRT v SABAM and Fonior ing of Article 90(2) of the Treaty. [1974] ECR 313, paragraph 20.

100. The Court has accepted the possibility 84 — The Court of Justice has on a number of occasions exam­ of restricting competition from other econ­ ined activities of general economic interest: that of main­ omic operators, 8 8 but only 'in so far as is taining the navigability of an important waterway, for instance (Case 10/71 Ministère Public of Luxembourg ν necessary in order to enable the undertaking " Muller and Others [1971] ECR 723); the provision of ser­ vices in the telecommunications sector (Case 155/73 Sacchi entrusted with such a task of general interest [1974] ECR 409); the operation of air routes that are not commercially viable (Case 66/86 Ahmed Saeed Flugreisen and Silverline Reisebüro ν Zentrale zur Bekämpfung unlau- teren Wettbewerbs [1989] ECR 803; and postal services (Case C-320/91 Corbeau [1993] ECR 1-2533). 87 — See Case 127/73 BRT (cited in footnote 83 above), para- 85 — As stated by Advocate General Van Gerven in point 27 of graph 20; Case 172/80 Ziichner ν Bayerische Vereinsbank his Opinion in the Mera case (cited in footnote 1 above). [1981] ECR 2021, paragraph 7; and Case 66/86 Ahmed See also point 137 of the Opinion of Advocate General Saeed Flugreisen (cited in footnote 84 above), paragraph 55. Darmon in Case C-393/92 Almelo (cited in footnote 59 88 — See the judgment in Almelo (cited in footnote 59 above), above). paragraph 49, which concerned an undertaking entrusted, in 86 — See the similar approach taken by the Court of Justice in the form of a non-exclusive concession under public law, the judgment in Merci (cited in footnote 1 above), para- with the task of supplying electricity in part of the national graph 27. territory only.

102. To summarize, only were the Court of Justice to find SEPG to be an undertaking under the Community rules on competition, would I have to conclude, given the nature 101. In the light of documents supplied and of the tasks entrusted to it (anti-pollution the written observations submitted, I con­ surveillance), that it is an undertaking sider that application of the rules on compe­ entrusted with a task of general economic tition contained in the Treaty could obstruct interest within the meaning of Article 90(2) SEPG in the performance of its task. Setting of the Treaty. Consequently, it is for the aside the fact that it is not, in reality, possible national court to assess, on the basis of the to envisage anti-pollution surveillance activi­ information provided by SEPG, the com­ ties being entrusted to several bodies that are pany in question, what requirements of pub­ in competition with each other and not, lic interest it has to meet which oblige it to therefore, very effective, were private under­ act in a manner incompatible with Articles takings to be authorized to compete with the 86 and 90 of the Treaty. 9 2 holder of the exclusive rights in the sectors of their choice corresponding to those rights, they could concentrate on the economically profitable operations concerning, for 91 — On a similar issue, see Corbeau (cited in footnote 84 above), paragraph 18. instance, surveillance of the loading and 92 — Clearly, if the national court concludes that the supplemen­ unloading operations of certain companies tary conditions of Article 90(2) arc in fact fulfilled, then, particularly on the point of establishing whether the task only, and offer more advantageous tariffs assigned by a Member State and its performance involve a form of trade development incompatible with the Commu­ nity interest, that court can, if it sees fit, contact the Com­ mission for an answer to that question and obtain the legal and economic information on which to base its ruling. That clearly accords with the findings of the Court of Justice on 89 — See, in particular, Almelo (cited in footnote 59 above), para­ the application of Articles 85 and 86 in, for example, Case graph 50, and Corbeau (cited in footnote 84 above), para­ C-234/89 Delimitis ν Henniger Brau [1991] ECR I-935, graphs 16 and 19. paragraph 53, and in the earlier order in Case C-2/88 Imm. 90 — See, in particular, Almelo (paragraph 50) and Corbeau Zwartveld and Others [1990] ECR I-3365, paragraph 18. (paragraph 20). See also Ahmed Saeed Flugreisen (cited in See also point 28 of the Opinion of Advocate General Van footnote 84 above), paragraphs 55 to 57. Gerven in Merci (cited in footnote 1 above).