C-35/96

II — Infringement procedure I - 3859

III — Pleas in law of the parties I - 3860

IV — Admissibility of the application I - 3860

A — First plea of inadmissibility I - 3860

(1) Initiation of a second procedure for infringement in the course of the first I - 3860

(2) Infringement of the rights of defence in the procedure against the Mem­ ber State for infringement I - 3863

(4) Effect on trade within the Community I - 3876

* Original language: Greek.

I - 3855

OPINION OF MR COSMAS — CASE C-35/96

B — Liability of the Italian Republic I - 3879

(1) Requirement under the Italian legislation that the CNSD fix a uniform tariff for the provision of services by customs agents I - 3880

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COMMISSION v ITALY

effect the prevention, restriction or distor­ 5. In order to pursue the activity of customs tion of competition within the common mar­ agent, authorisation (patente) is required for ket, and in particular those which: an unlimited period as well as registration in the national register of customs agents, which is made up of all the departmental registers held by the departmental councils of customs agents (Consigli compartimen­ tali) for each customs department of the Ital­ (a) directly or indirectly fix purchase or sell­ ian Republic (Articles 2 and 4 to 12 of Law ing prices or any other trading condi­ No 1612/1960). tions;

…' 6. Supervision of the activity of customs agents is carried out by the departmental councils. They are elected by secret ballot from among the members entered in the reg­ ister of a departmental council, for a term of two years. Each council is presided over by a member elected by his colleagues (Article 10 B — National legislation at issue of Law No 1612/1960).

4. In Italy the activity of customs agent, which is a professional occupation, is gov­ 7. The CNSD is a body governed by public erned by Law No 1612 of 22 December 1960 law. It is composed of nine members (hereinafter 'Law No 1612/1960') 1 and the appointed for three years by secret ballot implementing provisions contained in subse­ from among the members of the various quent texts such as presidential and ministe­ departmental councils of customs agents and rial decrees. A customs agent's activity is presided over by a member elected by his includes the provision of services in the con­ colleagues. Its members may be re-elected text of customs clearance procedures (the (Article 13 of Law No 1612/1960). provision of services in the monetary, com­ mercial and fiscal areas and any other area related to customs clearance) (Article 1 of Law No 1612/1960).

11. At its meeting of 21 March 1988, the (Article 7) 'The National Council of Cus­ CNSD adopted the tariff for services toms Agents shall update the present tariff according to the indexes supplied by Istat (Central Statistics Institute) — Industrial 2 — Decree on rules implementing Law No 1612 of 22 December Sector — as from the date of the relevant 1960, Supplemento ordinario alla GURI, No 102, of 24 April 1964. decision.'

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12. Pursuant to that latter provision, at its 16. Subsequently, on 30 June 1993, the Com­ meeting of 15 March 1989 the CNSD mission adopted Decision 93/438/EEC, decided to increase the prices set by the tariff which states (Article 1): 'The tariff for ser­ by 8% from 1 January 1990. 3 vices provided by customs agents which was adopted by the Consiglio Nazionale degli Spedizionieri Doganali ("CNSD") at its meeting on 21 March 1988 and which entered into force on 20 July 1988 constitutes an infringement of Article 85(1) of the EEC 7 13. The tariff drawn up by the CNSD at its Treaty'. meeting of 21 March 1988 was approved by the Italian Minister for Finance by a decree 4 of 6 July 1988.

17. Lastly, taking the view that the provi­ II — Infringement procedure sions of Law No 1612/1960 are contrary to Articles 5 and 85 of the Treaty, the Commis­ sion initiated the pre-litigation procedure which resulted in the case now before the Court.

14. The Commission considered that the Italian legislation was in breach of Commu­ nity law and set in motion three different procedures against the Italian Republic.

20. Subsequently, by an application lodged at the Court Registry on 9 February 1996, the Commission brought the present action for a declaration that the Italian Republic (b) to order the Italian Republic to pay the was in breach of its obligations. costs.

21. By document lodged on 15 May 1996 at the Court Registry, the Italian Government 23. The Italian Republic asks the Court to asked that the action be declared inadmis­ hold the application inadmissible. sible. The Court decided to reserve its decision on that objection for the final judg­ ment. For the rest, the Italian Government allowed the time-limit for submitting a 9 defence to elapse. IV — Admissibility of the application

III — Pleas in law of the parties

A — First plea of inadmissibility

22. The Commission asks the Court

(1) Initiation of a second procedure for infringement in the course of the first (a) to declare that, by adopting and maintaining in force a law which, in granting the relative decision-making

26. First of all I would point out that in Case C-119/92 the Court dismissed the Commission's action against the Italian 13 Republic, on the ground that importers 25. The Commission maintains that the Ital­ were not obliged in every case to have ian Government's argument to the effect that recourse to the services of a customs agent it is not possible for the same national legis­ and consequently the compulsory tariff for lation to be challenged on the basis of differ­ services provided by customs agents fixed by ent Treaty provisions is misconceived. In the CNSD could not be regarded as a charge support of that contention, it relies on the Court's case-law where, in a large number of cases, the Court has held that national mea­ sures simultaneously infringed more than 11 — Such as Article 30 of the Treaty and provisions of second- 10 ary Community law, for instance a regulation on the com- one provision of the Treaty or provisions mon organisation of a market; see, for example, in the con- text of an action under Article 169, Case 127/87 Commission v Greece [1988] ECR 3333 concerning the common market in sheepmeat and goatmeat. See also Case C-280/89 Commission v Ireland [1992] ECR I-6185 con- cerning the common structural policy in the fisheries sector, 10 — See Case 45/75 Rewe-Zentrale [19761 ECR 181, paragraphs and Case C-228/91 Commission v Italy [1993] ECR I-2701 21 to 27, concerning infringement of Articles 37 ana 95 of concerning health controls in the fisheries sector. the Treaty; Case 78/76 Steinike & Weinlig [1977] ECR 595, concerning Articles 92 and 95 of the Treaty; Case C-179/90 12 — Regulation No 17 of 6 February 1962: First Regulation Merci Convenzionali Porto di Genova [1991] ECR I-5889, implementing Articles 85 and 86 of the Treaty (OJ, English concerning Articles 90(1), 86, 30 and 48 of the Treaty; and Special Edition 1959-1962, p. 87). Case C-484/93 Svensson and Gustavsson [1995] ECR 13 — Cited in footnote 5 above (in particular paragraphs 46 and I-3955, concerning Articles 59 and 67 of the Treaty. 47).

30. In addition to the above, I consider that from the point in time when the Commis­ sion decides to exercise its powers under Article 169, by sending the Member State a 28. According to Articles 155 and 169, the letter of formal notice and, principally, the Commission is the custodian of Community reasoned opinion, the subject-matter of the legality since, in the general interest of the dispute becomes entrenched. Consequently Community, its function is to ensure that the the diagnosis of infringement is made prima­ provisions of the Treaty are applied by the rily in the reasoned opinion and conse­ Member States and to note the existence of quently the subject-matter of the case any failure to fulfil the obligations deriving brought against a Member State for infringe­ therefrom, with a view to bringing it to an ment always follows from that set out in the 14 end. Consequently, it is for the Commis­ reasoned opinion. In other words, the rea­ sion to determine whether it is expedient to soned opinion delimits the subject-matter of 15 take action against a Member State and to the dispute before the Court, in so far as judge at what time it will initiate such an both the application and the reasoned opin­ 16 action against a State whose legislation it ion must be founded on the same grounds 18 considers to be contrary to Community leg­ and pleas in law; the submission of new islation, determining what provisions, in its complaints on the part of the Commission or

14 — Case 167/73 Commission v France [1974] ECR 359, para- 17 — Case C-317/92 Commission v Germany [1994] ECR I-2039, graph 15. paragraph 4. 15 — See the analysis by Denis Simon 'Recours en constatation 18 — See, for instance, Case 166/82 Commission v Italy [1984] de manquement' in Jurisclasseur, 1991, Fase. 380, § 46. ECR 459, paragraph 16; Case C-234/91 Commission v Den- 16 — Case 324/82 Commission v Belgium [1984] ECR 1861, mark [1993] ECR I-6273, paragraph 16; and Case C-296/92 paragraph 12. Commission v Italy [1994] ECR I-1, paragraph 11.

even an extension of its reasoning by relying (2) Infringement of the rights of defence in on new evidence in the context of the same the procedure against the Member State for complaints is inadmissible. Correspond­ infringement ingly, the competence of the Court when hearing the action under Article 169 is clearly defined; it is restricted to review of the legality of the evidence contained in the reasoned opinion and reproduced in the 20 application. 32. According to the Italian Government, the Commission was not entitled to initiate a second procedure for a declaration of infringement on grounds that were different from and incompatible with those on which it based its first action, since it is thus affect­ ing its right to develop its defence, obliging it to defend itself, at the same time, in two cases, whose subject-matter consists of exactly the same facts but which are based on different provisions. In addition, during 31. From the above it follows, in my view, the hearing, it maintained that it was not in a that the Commission may very well, on the position to submit its observations on its basis of its powers under Article 169, take alleged infringement since, in adopting action, in the context of a new procedure, Decision 93/438, the Commission presented against the Member State in question, where it with a fait accompli and its right to defend it considers that the same legislation is con­ itself was thus rendered nugatory. trary to rules other than those of the preced­ ing procedure, even if the latter has not yet reached its conclusion. Furthermore, given that the procedures under Article 169 and Regulation No 17 are independent of each other, and that the Commission is acting against a Member State in the first situation 33. According to the Commission, that and against an undertaking or association of argument by the Italian Republic is undertakings in the second, the Commission unfounded, since it did not react to the send­ was not bound to carry out one procedure ing of the documents in the pre-litigation before the other to ensure the admissibility procedure; its sole reaction was to put for­ of the action brought under Article 169 if all ward a plea of inadmissibility. the requirements set out in that provision are fulfilled. Consequently, the argument put forward by the Italian Government to the contrary must be rejected as unfounded.

the Commission complied with all the pre- 28 June 1993, the Commission found that litigation stages of the procedure, sending the tariff adopted by the Consiglio Nazio­ successively to the defendant Member State nale degli Spedizionieri Doganali at its meet­ the letter of formal notice and reasoned ing on 21 March 1988 constitutes an opinion as laid down, and whether, from infringement of Article 85(1) of the Treaty.' their content, the Member State was made That finding is not in accordance with the fully aware of the Commission's com­ criteria laid down in the case-law of the 21 plaints. The fact of not replying to those Court, since the reasoned opinion did not documents is clearly its own responsibility, 'contain a coherent and detailed statement of and it must assume the consequences implied the reasons which persuaded the Commis­ by that failure. sion that the State concerned had failed to fulfil one of its obligations under the 22 Treaty.' In the view of the Italian Govern­ ment, both the letter of formal notice and the reasoned opinion addressed to it by the Commission merely refer to the decision of 23 B — Second plea of inadmissibility: substan­ 30 June 1993 in which details of the rea­ tive lacunae in the documents in the pre- sons underlying the Commission's view that litigation procedure and the application the adoption of the tariff by the CNSD con­ stituted a breach of Article 85 are in fact given. Moreover, Decision 93/438 was expressly addressed to the CNSD and conse­ quently its binding effect could not be relied on against the Italian Republic, as the latter 35. In the second and, in my view, more maintains. important plea of inadmissibility, the Italian Government contends that there are substan­ tive lacunae in the letter of formal notice and the reasoned opinion and divergences between the application and the reasoned opinion. That is because only the application contained a full and detailed analysis of the factors constituting infringement of Article 36. The Commission maintains that the 85(1). Conversely, both the Commission's grounds and reasoning supporting both the letter of formal notice and the reasoned reasoned opinion and the application are opinion were formulated with exceptional wholly the same. Specifically it points out brevity on the points relevant to the case, that both the letter of formal notice and the since they read as follows: 'By Decision of reasoned opinion contain express reference to Commission Decision 93/438, which was

published in the Official Journal of the Euro- 39. The position maintained here is also pean Communities, and that that meant reinforced, in my opinion, by the case-law of that reference was made to the content of the the Court concerning the legal effects of the decision both as regards the facts and the reasoned opinion, according to which, as legal assessment which led to the adoption of stated above, the latter delimits the subject- the decision that there was an infringement matter of the dispute before the Court. of Article 85(1) of the Treaty. The applica­ tion simply reproduced the structure of Decision 93/438. The difference in the pre­ sentation of the letter of formal notice and the reasoned opinion on the one hand and the application on the other can be explained simply by the intention of the Commission 40. More specifically, I consider that in both to give additional emphasis to the responsi­ the letter of formal notice and, primarily, the bility of the Italian Government. subsequent reasoned opinion sent by the Commission to the Italian Republic, the subject-matter of the dispute was outlined with clarity, albeit succinctly; in other words it set out 'a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question [had] failed to fulfil one of its obligations under 26 the Treaty ...'. 37. I consider that the plea of inadmissibility put forward by the Italian Government can­ not be upheld.

43. Moreover, according to the Commission, 45. I shall first examine the question the CNSD's decision, which is prejudicial to whether the occupation of customs agents competition by reason of the imposition of a constitutes the activity of an undertaking for compulsory tariff for all customs agents, the purposes of Article 85 of the Treaty and, results directly from the abovementioned subsequently, whether the CNSD constitutes provisions of Law No 1612/1960, which an association of undertakings under that provides for the adoption by the CNSD of a same provision. I shall then deal with the decision by an association of undertakings question whether the CNSD's decisions contrary to Article 85 of the Treaty; there­ imposing a compulsory tariff for the services fore, by adopting that law and maintaining it provided by all customs agents may be char­ in force, the Italian Republic has infringed its acterised as decisions by an association of obligations under Articles 5 and 85 of the 28 undertakings restrictive of competition Treaty. under Article 85 of the Treaty, and lastly whether those decisions might affect intra- Community trade.

44. I shall examine the Commission's argu­ ments in two sections, as follows: in the first section, I shall examine whether, in the exer­ (1) Does the occupation of customs agents cise of the activities of the CNSD , Article 85 constitute the activity of an undertaking of the Treaty is infringed and, subsequently, within the meaning of Article 85 of the in the second section, the question of attri­ Treaty? bution of responsibility to the Italian Repub­ lic will be examined. That is because only if

of customs agent is a liberal profession; cus 48. I shall first examine the case-law of the toms agents are independent, autonomous Court as regards which entities constitute workers, like lawyers, surveyors, or inter undertakings under Community competition preters, who cannot be regarded as undertak law and shall then go on to examine the ings under Article 85, since the services they substance of the question whether the occu provide are of an intellectual nature, and the pation of customs agent and by extension a

29 basis. Lastly, the Italian Government professional category in question and, on the other hand, to ensure that the specific professional activity is exercised maintained that it was not possible, on the lawfully. In other words, a distinction is drawn between undertakings and independent workers with whom the lib- basis of the law as it stands, to consider that eral professions arc classified. all self-employed activities are undertakings, 31 — I would point out that the Commission has also taken action subsequently in a decision against a professional in accordance with Article 85 of the Treaty, organisation which, by decision, fixes scales of charges for and that legislative amendment would be services provided by the branch in question. Specifically, on 30 January 1995, the Commission adopted Decision necessary to extend application of the com 95/188/EC relating to a proceeding under Article 85 of the EC Treaty (OJ 1995 L 122, p. 37).

47. The Commission pointed out at the public law, and that its Regulations, concerning the setting up of the COAPI and its functioning, constitute both an hearing that customs agents are undertak agreement between undertakings and a decision by an asso- ciation of undertakings for the purposes of Article 85(1) of ings, according to Article 85, and that Com the Treaty. In addition, the decisions of the general meeting (and of the administrative board of the COAPI) relating to munity competition law is autonomous, not the fixing of charges, which are adopted pursuant to the solely in relation to national law but also in COAPI Regulations, constitute decisions by an association of undertakings within the meaning of Article 85(1).

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OPINION OF MR COSMAS — CASE C-35/96

49. The Court has consistently held that 'the on the market' and that in order to classify concept of an undertaking encompasses an activity as a public undertaking the lack every entity engaged in an economic activity, of legal personality separate from that of the regardless of the legal status of the entity and State is not a vital factor. It has stated that 'In 32 the way in which it is financed'. In other order to make such a distinction, it is there­ words, according to that case-law, the con­ fore necessary in each case, to consider the cept of an undertaking and consequently of activities exercised by the State and to deter­ an economic activity is always given a broad mine the category to which those activities 36 interpretation. Consequently it is a conditio belong'. sine qua non to determine whether the activ­ ity of a body or administrative authority constitutes the exercise of public power or the exercise of an economic activity of an industrial or commercial character, which is 'capable of being carried on, at least in prin­ ciple, by a private undertaking with a view to 33 profit'.

51. In order to reach those conclusions, the Court examined primarily the nature of the activities exercised, determining, in other words, whether they were economic or not, 50. It is worth pointing out that in order to and whether they could, in principle, be car­ decide whether an activity is economic or ried on by a private undertaking in order to not, the Court examines its nature regardless make a profit. It also examined the aims and of the operator exercising the activity. It thus 37 34 the rules to which they were subject. The recognises that 'the State may act either by Court took into consideration simulta­ exercising public powers or by carrying on neously a series of factors which, taken economic activities of an industrial or com­ alone, do not suffice to preclude an activity mercial nature by offering goods and services

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COMMISSION v ITALY

being economic in character and hence not market. As the Commission rightly main­ falling under the competition rules. Specifi­ tains, it is beyond all doubt that the activity cally it assessed whether the entity whose exercised by customs agents is of an eco­ activities were under examination functioned nomic nature in the above sense, because it in compliance with rules laid down by the consists in offering to the undertakings con­ administrative authorities, whether, in par­ cerned, in return for payment, services con­ ticular, it had the power to influence the level cerning the completion of customs formali­ of the consideration sought for the provision ties, mainly those connected with the import, of services to users and whether it aimed to export and transit of goods, as well as other make a profit. services supplementary to the above, such as, for instance, the supply of services in the monetary, commercial and fiscal areas, 42 including tax litigation.

38 52. In addition the Court has held that 'In competition law, the term "undertaking" must be understood as designating an eco­ nomic unit for the purpose of the subject- matter of the agreement in question even if in law that economic unit consists of several 39 persons, natural or legal ...'. In that same case, Advocate General Lenz, in his Opin­ 40 ion, stated: 'It is clear that the term "undertaking" must be construed in a func­ 54. Furthermore, I would add that the car­ tional sense and for that reason unquestion­ rying out of customs agents' activities clearly ably covers natural persons in so far as they carry on a business activity'.

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requires a minimum organisational frame­ make up the administrative deficit and run work of personal, tangible and intangible ele­ the risk of insolvency. Consequently, from ments (for instance the existence of a fully the above factors, taken together, it follows, equipped office, communications, and so in my view, that customs agents, who are forth) which have been set up for a certain independent professionals exercising an purpose, which is the offer of services to the economic activity, constitute undertakings 43 operators concerned with a view to profit. for the purpose of Article 85 and the Italian Government's submissions to the contrary at the hearing should be rejected as unfounded.

43 — The Italian competition monitoring authority (Autorità Garante della Concorrenza e del Mercato), basing itself on a functional criterion for defining an undertaking, that is to say on the nature of the activities exercised (whether economic or not) regardless of its legal status, expressly recognised that the activity of liberal professions, under which customs agents are included, constitutes the activity of an undertaking, that their classification as undertakings is 57. Again at the hearing, the Commission not incompatible with the special characteristics of the liberal professions and, accordingly, that they may fall stated that the special feature of this dispute under the competition rules; see the decision (delibera) of lies in the fact that the tariff for services pro­ 1 January 1994 in 'Bolletino dell'Autorità Garante della Concorrenza', No 47/94. vided in customs procedures is not deter­ 44 — See Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, mined directly and separately by customs 111/73, 113/73 and 114/73 Suiker Unie and Others v Com- mission [1975] ECR 1663. agents, who are undertakings, as provided by 45 — I would mention, for example, the cost of equipping and/or Article 85, but that those tariffs are deter­ renting and maintaining an office, the costs of telecommu- nications and the payment of taxes. mined in common through the CNSD .

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58. Accordingly I shall now proceed to 60. That idea of direct representation, as the examine the crucial question for the solution Commission appositely describes it, of the of the dispute, which is whether a profes­ interests of operators in a specific sector has, sional organisation, such as the CNSD in let us note, been reiterated by the Court, this case, which under Italian law constitutes which has laid down the conditions in which 46 a public-law body, acted as an association the members of certain committees given the of undertakings, under Article 85(1), inas­ responsibility of fixing tariffs to be applied much as it is responsible for the determina­ to all undertakings exercising a certain activ­ tion of tariffs for services provided by cus­ ity may not be regarded as representatives of toms agents. the professional undertakings to which they 48 relate.

48 — See, for instance, Case C-185/91 Reiff [1993] ECR I-5801; Case C-153/93 Delta Schiffahrt*- und Speditionsgesellschaft 46 — Under Italian legislation the task of the CNSD is to orga- [1994] ECR I-2517; Case C-96/94 Spediporto [1995] ECR nise and coordinate the economic activities of the members I-2883; Joined Cases C-140/94, C-141/94 and C-142/94 of the professional organisations of customs agents for the DIP Spa and Others [1995] ECR I-3257. purpose of facilitating the achievement of the aims of an industrial or commercial character pursued by their mem- 49 — Case C-185/91 Reiff, paragraphs 17 and 24; Case C-153/93 bers. Delta, paragraphs 16 and 18; and DIP, paragraphs 18 and 19. 47 — [1985] ECR 391, paragraph 19. BNIC stands for the Bureau National Interprofessionnel du Cognac, which constituted 50 — Or to formulate an opinion on the issue of trading licences a joint-trade organisation in the cognac sector, whose mem- for operating shops (the DIP case). bers were appointed by the Minister for Agriculture and 51 — At the hearing the Commission referred to the example of which fixed by decision the prices of distillarne white wines lawyers, where the competent minister fixes the tariff of and cognac. fees taking account of the public interest.

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64. In addition, the Italian Minister for Finance, by law the monitoring authority for that particular organisation, cannot intervene in the election of members of either the 63. First, I consider it to be clear under the departmental councils or the CNSD . provisions of Italian law that the CNSD's members represent a certain professional cat­ egory, that of customs agents, and their inter­ ests. We have, moreover, recognised that cus­ toms agents constitute undertakings under Community competition law. As the Com­ mission rightly states (paragraph 8(a) of the application), when someone becomes a mem­ 65. Consequently the principles of interpre­ ber of a national council for that profession, tation given by the Court in BNIC v Clair he represents that profession both externally may a fortiori, as the Commission correctly and internally, in the relationship of the maintains, be applied in this case. In BNIC v council with its members. I would point out CUir the professional organisations simply that, according to Article 10 of Law No proposed the members of BNIC's general 1612/1960, the departmental councils of cus­ meeting, who were subsequently appointed 54 toms agents are elected by secret ballot from by the competent Minister and that did not among those registered in the register of each prevent the Court from classifying BNIC ,

52 — See Case C-185/91 Reiff, paragraphs 18 and 24; Case 53 — Articles 8, second paragraph, and 22, second paragraph, of C-153/93 Delta, paragraphs 17 and 23; Case C-96/94 Spe- the Ministerial Decree or 10 March 1964 cited above in diporto, paragraphs 24 and 42; and DIP, paragraphs 18 and footnote 2. 31, all cited in footnote 48. 54 — The French Minister for Agriculture.

without hesitation, as an association of ciation of undertakings. In the Italian legisla­ undertakings. tion at issue it is not possible to find a rule expressly requiring the members of the CNSD to establish the tariff by reference to 61 'considerations of public interest' and not solely the interests of customs agents, by whom the national councils of that profes­ sional organisation are elected. Conse­ 66. Secondly, I consider that the link of rep­ quently, since the Italian law lays down that resentation clearly binding the members of the members of the CNSD are customs the national councils of the professional agents and because there is no special rule, as organisation in question with the customs was the case in Reiff, Delta, Spediport and agents who elected them results by implica­ DIP, we cannot conclude that the CNSD tion for a further reason. In the applicable sets the level of the tariff on the basis of Italian legislation, in particular Article 14(d) 'considerations of public interest', as the of Law No 1612/1960, the CNSD is Commission rightly contends. entrusted with the fixing of the tariff for the professional services provided by customs agents on the basis of the proposals submit­ ted by the departmental councils. In other words there is no rule in that legislation analogous to that found in the German law 55 relating to the transport of goods by road, 56 the German law relating to river transport, 57 or the Italian law on the retail trade. Con­ sequently, since they are not expressly for­ bidden to take account of any indications (directives or orders) given by those who elected them, accordingly the members of the CNSD may not be classified as indepen­ 68. Another argument which the Commis­ dent 'tariff experts' within the meaning of sion uses to support its position lies in the 58 59 60 the Reiff, Delta and DIP cases. fact that, under the last paragraph of Article 13 of Law No 1612/1960, 'the members of the CNSD are appointed for three years and may be re-elected'. It could, therefore, be argued that in that way the members of the CNSD , theoretically at least, are made more susceptible to pressure exerted by the professional organisations they represent, 67. Thirdly, I consider that a further factor since they wish to be re-elected and that that suggests that the CNSD constitutes an asso­ constitutes a further indication that the CNSD is an association of undertakings under Article 85. 55 — Case C-185/91 Reiff, cited in footnote 48. 56 — Case C-153/93 Delta, cited in footnote 48. 57 — DIP, cited in footnote 48. 58 — Paragraphs 4 and 17. 61 — See, for instance, the cases cited in footnote 48, Reiff (at 59 — Paragraphs 6 and 16. paragraph 24), Delta (at paragraph 23) and Spediporto (at 60 — Paragraphs 5, 6 and 18. paragraph 24).

69. A fourth and last indication that the 1612/1960). The feature characterising CNSD constitutes an association of under those powers, however, is that they are not takings under Article 85 is the fact that after aimed at laying down rules concerning the the recent amendment made by Legislative conduct of customs agents on the market of Decree No 331/1992, the rule that the the supply of services in connection with the Director-General of Customs and Indirect carrying out of customs procedures, as the Taxes automatically held the chair of the Commission states. On the contrary, deci CNSD has been repealed. That change sions relating to the power to fix tariffs heightened the picture that the CNSD is the undoubtedly involve choices of an economic direct and exclusive emanation of all those nature arrived at by customs agents in a spe exercising the profession of customs agent. cific market and, consequently, because it has that type of power, the CNSD must be clas sified with associations of undertakings

the national professional organisation of cus toms agents, in the context of the exercise of its power to fix the tariff, constitutes an asso ciation of undertakings under Article 85. Any other conclusion would deprive Article 85 of any useful effect, since undertakings (in 62 — The fact that in other Member States too professional this case the professionals in question) would organisations are by law entrusted with similar powers does be able, using the legal framework of an not preclude the national legal systems from providing that the competition rules apply to the fixing of tariffs by those association, to conduct themselves without organisations. For example such fixing of tariffs is expressly prohibited under French, Finnish and Swedish law.

71. Clarification of one last issue is, I the Court used the same analytical method and found (paragraph 25) that 'Article 86 of the EC Treaty is to be believe, necessary. The CNSD has, by law, interpreted as not being applicable to anti-pollution surveil- lance with which a body governed by private law has been a number of other powers. In particular it entrusted by the public authorities in an oil port of a Mem- is responsible for keeping the national ber State, even where port users must pay dues to finance that activity.' Powers had, however, been conferred on that register of customs agents and the imposition legal person to intervene rapidly where there was pollution of the port area (the petroleum port of Genoa).

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conferred on the CNSD by the national leg­ 74. Furthermore, the classification of the islature. CNSD's decisions fixing a compulsory tariff under the power conferred on by Article 14(d) of Law No 1612/1960 as decisions by an association of undertakings restrictive of competition under Article 85(1)(a) of the Treaty does not, in my opinion, present any particular difficulty.

(3) Restriction of competition by the fixing of a compulsory tariff by the CNSD

64 — As stated above, these include, for example, the keeping of a 76. It is, I consider, worth recalling the register, the imposition of disciplinary sanctions, the settle- CNSD's decision in order to show that the ment of differences in respect of the local powers of depart- mental councils, etc. Commission's arguments are well founded.

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77. Under Article 1 of the CNSD'S decision, competition, since it is a decision adopted by 'This tariff lays down the minimum and an association of undertakings (the CNSD) maximum amounts to be paid for customs for the purpose of laying down a tariff for transactions and services provided in the the provision of services by customs 65 monetary, commercial and fiscal areas, agents. including fiscal litigation.'

(4) Effect on trade within the Community

78. Under Article 5, '... this tariff shall always be compulsory as regards the princi­ pal and annuls any other agreement to the contrary ....' In other words, a customs agent may essentially demand neither less nor 81. The Commission maintains that because more than the minimum fixed tariff laid of the compulsory character of the tariff down for a particular category of activity. fixed by the CNSD trade between the Mem­ ber States is affected.

65 — I would point out that the Autorità Garante della Concor- renza del Mercato has repeatedly held, in connection with that question, that it regards the price-fixing system in force as not justified on grounds of public policy which might lead to those competition rules not being applied. Accord- ing to the Autorità, adapting the system of remuneration to those rules would necessitate both the abolition of the power of the CNSD to fix the level of the tariff and the abolition of the compulsory character of the tariff deter- mined by the CNSD; see Supplemento al Bolletino dell'Autorità Garante No 14/1995. See also the conclusions 80. To sum up, we can therefore say that the formulated by the Autorità following a study of profes- sional organisations and councils of 3 October 1997, point decision adopted by the CNSD on 21 March 29 (in 'Guida al Dirito, il Sole — 24 Ore' of 8 November 1988 constitutes an agreement restricting 1997, No 42, p. 102).

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COMMISSION v ITALY

69 — In recital 52 in the preamble to Commission Decision No 93/438, it is stated: 'Furthermore, in view of the fact that in 66 — See, for instance, Case 123/83 BN IC v CUir, cited above in Italy in 1990 imports represented some 25% of goods con- footnote 47 (paragraph 22); Case C-219/95 P Ferriere Nord sumed, exports were equivalent to some 18% of gross v Commission [1997] ECR 1-4411, paragraph 19; and the domestic product, some 58% of imports were of Commu- older Case 19/77 Miller v Commission [1978] ECR 47, nity origin and around 59% of exports were to other Mem- paragraph 15. ber States, it must be concluded that the effect on trade was 67 — Sec, for example, Case C-219/95 P Ferriere Nord v Com- substantial.' mission, cited above in footnote 66 (paragraph 20); Case 70 — See Articles 163 and 165 of the Community Customs Code C-399/93 Oude Luttikhuis and Others [1995] ECR 1-4545, (Council Regulation (EEC) No 2913/92 of 12 October paragraph 18; and Case 56/65 Société Technique Minière v 1992, OJ 1992 L 302, p. 1, hereinafter 'the CCT*), and Maschinenbau Ulm [1966] ECR 235; and Joined Cases Article 381 of the Commission's implementing regulation 209/78 to 215/78 and 218/78 Van Landewyck and Others v (Regulation (EEC) No 2454/93 of 2 July 1993 laying down Commission [1980] ECR 3125, paragraph 170. provisions for the implementation of Council Regulation 68 — See, for instance, Case 8/72 Vereniging van Cemen- (EEC) No 2913/92, OJ 1993 L 253, p. 1). thandelaren v Commission [1972] ECR 977, and Case 42/84 71 — In this case the issue of a transit document (T2) is required Remia and Others v Commission [1985] ECR 2545, para- cither at the place of departure of the goods or at the graph 22. national customs border post

72 — See Articles 91 to 97 of the CCT and Articles 341 to 380 of the Commission's implementing regulation, Regulation No 2454/93. 73 — In this case the issue of a transit document (T1) is required, principally to allow the transfer of goods imported from territory outside the Community under the arrangements whereby customs duty, VAT and excise duty are suspended. 74 — Article 3 of Council Directive 77/388/EEC, Sixth VAT 86. In the light of the settled case-law of the Directive, cited above in footnote 41. 75 — Article 2 of Council Directive 92/12/EEC of 25 February Court cited above and the obviously large 1992 on the general arrangements for products subject to number of cases where the services of cus­ excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1). toms agents may be needed, I consider it 76 — Article 33a of the Sixth VAT Directive, as amended by clear that trade between the Member States Council Directive 92/111/EEC of 14 December 1992, OJ 1992 L 384, p. 47. may be affected because of the compulsory

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COMMISSION v ITALY

nature of the tariff adopted by the CNSD . In Republic incurs liability for infringement of my view the fact that in its decision (Article Articles 5 and 85 of the Treaty. 3) the CNSD provides that the charges in the tariff should be calculated for each particular customs operation or professional service provided leads to that conclusion.

89. At the hearing the Italian Government contended that if the Italian Republic were held liable that would throw into question national legislation regulating the liberal pro­ fessions and that the national legislature, in laying down rules for those professions, did B — Liability of the Italian Republic not intend to lay down rules relating to undertakings.

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OPINION OF MR COSMAS — CASE C-35/96

91. Furthermore, as the Court has fre­ effects of the CNSD's decisions fixing that quently held, 'Articles 5 and 85 are tariff. Lastly, in the alternative, whether the infringed where a Member State requires or Italian legislation transfers to private under­ favours the adoption of agreements, deci­ takings of public authority powers as regards sions or concerted practices contrary to the fixing of a tariff. Article 85 or reinforces their effects, or where it deprives its own rules of the charac­ ter of legislation by delegating to private economic operators responsibility for taking 79 decisions affecting the economic sphere'.

(1) Requirement under the Italian legislation that the CNSD fix a uniform tariff for the provision of services by customs agents

80 14), and Case C-153/93 Delta (paragraph 14), all cited in datory duty, in other words is required, to footnote 48, and Case 267/86 Van Eycke v Aspa, cited in footnote 77, paragraph 16, and Case 311/85 VVR v Sociale draw up the tariff, as the Commission cor Dienst [1987] ECR 3801, paragraph 10. 81 rectly maintains, even though the Italian 79 — I would point out that in Joined Cases C-359/95 P and C-379/95 P Commission and France v Ladbroke Racing law does not provide for sanctions in the [1997] ECR I-6265, paragraph 33, the Court stated that 'Articles 85 and 86 of the Treaty apply only to anti- case of failure to fix a tariff. Apart from that,

. . .' It concluded sanctions imposed by departmental councils. In other as follows (paragraph 35): 'When the Commission is con- words, the national council of a professional organisation sidering the applicability of Articles 85 and 86 of the Treaty does not have a discretion but a mandatory duty to keep a to the conduct of undertakings, a prior evaluation of national register of persons who arc entitled to exercise the national legislation affecting such conduct should therefore particular profession and to decide on appeals against the be directed solely to ascertaining whether that legislation decisions of the departmental councils of the organisation prevents undertakings from engaging in autonomous con- in question, because those are powers essential to its exist- duct which prevents, restricts or distorts competition.' ence and functioning.

96. The Commission's basic argument con­ sists in the fact that Law No 1612/1960 first of all expressly prohibits customs agents (in Article 11), from charging an amount for their professional services lower or higher than those set by the CNSD . The fact that 94. In addition, according to the Commis­ customs agents are not allowed to deviate sion, the power to draw up the tariff con­ from the tariff fixed by the CNSD is rein­ ferred on the CNSD by Article 14(d) of Law forced, consequently, by that same Law No No 1612/1960 must be examined not only as 1612/1960, which, according to the Commis­ the conferral of a decision-making power on sion (paragraph 15 of its application) gives a highest level of a professional organisation legal force to the contractual relationship but also as an obligation flowing from the under that professional association of those public-law status which Italian law ascribes registered in the register and consequently to the CNSD as a professional organisation. can no longer be abolished by the will of the 83 parties.

97. Further, we should note that, pursuant 95. In view of the foregoing, I consider that to the decree of the Minister for Finance of 84 it must be held that the Italian legislation in 10 March 1964, those contravening the question requires the CNSD to adopt a decision relating to the fixing of a uniform tariff for services provided by customs 82 — That does not, of course, mean that in exercising its powers the CNSD does not have to comply with the provisions of agents, even though, under the CNSD's Article 85 of the Treaty and, more generally, with any pro- decision at issue (Article 6), it is competent vision ranking higher than Law No 1612/1960. 83 — As, moreover, was confirmed by Articles 5 and 6 of the to grant special and/or temporary exemp­ CNSD's decision of 21 March 1988. tions from the maximum amounts in the 84 — Decision cited in footnote 2.

98. The Commission further points out that neither Law No 1612/1960 nor any other Italian law empowers the Italian Minister for Finance to approve the tariff for services provided by customs agents, as was done in this case by way of the decree of 6 July 1988. It also notes that the 1970 tariff which was in 99. As, however, the Commission empha­ force prior to the 1988 tariff was not the sub­ sises, the existence of that ministerial decree ject of any ministerial approval. 86 Since that of 6 July 1988 gives the CNSD tariff the is the situation under Italian legislation and form of a public regulatory measure, which the CNSD'S decision of 21 March 1988 did not have per se. First, as a result of the pub­ lication in the Serie Generale of the Gazzetta 85 — See on this point Case 311/85 VVR v Sociale Dienst, cited Ufficiale della Repubblica Italiana, any third in footnote 78 (end of paragraph 23). In that judgment the national court raised the question inter alia whether the fact party is presumed to have knowledge of the that a State requires travel agents by law or regulation to observe prices and tariffs set by tour operators (subject to tariff. Mainly, however, as the Commission sanctions and in particular withdrawal of licences to carry rightly points out, the fact that that there is a on business as a travel agent), prohibits agencies from shar- ing their commission on sales of travel or to give customer ministerial decree approving the tariff lends rebates and considers such practices as unfair competition was incompatible with the obligations of the Member States the tariff fixed by the CNSD an official char­ under Article 5, in conjunction with Articles 3(f) and 85, of the Treaty. The Court held (paragraph 24), that it was in acter and reinforces its effects. That official fact incompatible with the obligations of the Member States character on the one hand facilitates applica­ under those articles 'where the object or effect of such national provisions is to reinforce the effects of agreements, tion by customs agents of the charges fixed decisions or concerted practices which are contrary to Article 85.' in that tariff to all who have recourse to their 86 — It maintains that it was not fortuitous that the tariff of 16 services and, on the other hand, has an April 1970 was published in the series Foglio inserzioni, unquestionably deterrent effect on customers GURI No 307 of 4 December 1970, and not in the usual GURI issue as was the case of the tariff of 21 March 1988. who might wish to question the charges

87 — In the case-law there are instances of measures, similar to 89 — See, for instance, Joined Cases C-140/94 to C-142/94 DIP the ministerial decree, taken by competent national authori- (paragraph 15), Case C-185/91 Reiff (paragraph 14) and ties and approving agreements in respect of the fixing of air Case C-153/93 Delta (paragraph 14), all cited in footnote ticket prices and in that way reinforcing their effects, which 48, and Van Eycke, cited in footnote 77 (paragraph 16). the Court found to be contrary to Articles 5 and 85 of the 90 — That was the case in Case C-96/94 Spediporto, cited in foot- Treaty; sec Joined Cases 209/84 to 213/84 Asjes and Others note 48 (paragraphs 24 and 25), concerning the fixing in [1986] ECR 1425, principally paragraph 76, and Case 66/86 Italy of tariffs for the transport of goods by road, and in Ahmed Saeed Flugreisen and Others [1989] ECR 803, prin- Joined Cases C-140/94 to C-142/94 DIP, which was also cipally paragraph 49. cited in footnote 48 (paragraphs 18 and 19), concerning the 88 — As was precisely held to be the case in Reiff, cited in foot- issue, by mayors, to private undertakings in Italy of licences note 48 (paragraph 24). tn trade.

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OPINION OF MR COSMAS — CASE C-35/96

105. Thirdly, from the Italian legislation 107. Lastly, as the Commission points out cited it appears that neither the Italian Min­ and was not disputed by the Italian Govern­ ister for Finance nor any representative ment, nowhere does it appear that the could take part, even occasionally, in the Minister for Finance could intervene, and meetings of the CNSD as the German Min­ refuse to approve or substitute his own ister for Transport did in Reiff. wishes for the expressed wishes of the

VI — Conclusion

109. In view of the foregoing analysis, I suggest that the Court :

(a) Declare that , by adopting and maintaining in force a law which , in granting it the relative decision-making power , requires the Consiglio Nazionale degli Spedizionieri Doganali ( CNSD ) to adopt a decision by an association of undertakings contrary to Article 85 of the Treaty establishing the European Community , consisting in the fixing of a compulsory tariff for services pro­ vided by customs agents , the Italian Republic is in breach of its obligations under Articles 5 and 85 of the Treaty ; and

(b) Order the Italian Republic to pay the costs .

96 — The German Minister for Transport had a power to substi­ tute, or at least amend, the proposed tariffs in Reiff (para­ graph 22) and Delta (paragraph 21), cited above.

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