C-38/97

LIBRANDI v CUTTICA

OPINION OF ADVOCATE GENERAL ALBER delivered on 5 March 1998 *

A — Introduction Law N o 298 of 6 June 1974 establishing the national register of road-haulage operators operating for hire or reward, laying down rules on the carriage of goods by road and introducing a system of bracket tariffs for the carriage of goods by road introduces, in Title 1. This reference for a preliminary ruling III, a system of mandatory tariffs for the car- once again concerns the question whether riage of goods by road. Community competition law precludes cer- tain State provisions on the fixing of road transport tariffs. The problem arises in the following context.

2. Autotrasporti Librandi snc, the plaintiff in 4. Article 3 provides for a central committee the main proceedings, was instructed by Cut- which fixes a range of tariffs under the condi- tica Spedizioni e Servizi Internazionali srl, the tions laid down by Article 50 et seq. of the defendant in the main proceedings, to carry Law. out various container transport services on its behalf. The plaintiff issued an invoice for LIT 2 844 000, which is said to accord with the mandatory tariffs fixed by ministerial decrees. However, the defendant paid only LIT 2 300 000, which is said to be based on a col- lective agreement. The plaintiff then brought an action in the Magistrate's Court, Genoa, for payment of the difference.

5. Under Article 52 of the Law, the tariff is calculated at regular intervals, having regard to the average cost of the relevant transport services, including business expenses, calcu- lated for well-managed undertakings oper- 3. The relevant Italian legislation is as fol- ating under normal conditions with regard to lows. utilisation of their transport capacity, and having regard to the market situation, in such a manner as to enable transport undertakings * Original language: German. to obtain a fair return.

— reject the central committee's pro- 10. The Ministerial Decree of 2 February posals and refer them back to the 1994 increased the number of representatives committee with the Minister's obser- of hauliers' associations, i. e. the non-official vations. If new proposals are received, bodies, on the central committee from 12 to the Minister approves them or disre- 17, so that they now form the majority, as gards them and, by decree, adopts tar- against the representatives of central and iffs differing from those proposed by regional government, on the body entrusted the committee. with drawing up tariff proposals.

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LIBRANDI v CUTTICA

11. The abovementioned Italian provisions 12. As the Italian legislation has been were the subject of a reference for a prelimi- amended, the national court has been nary ruling in the Centro Servizi Spediporto prompted to request a preliminary ruling on case. 1 However, at that time the representa- the following questions: tives of central and regional government formed the majority on the central committee.

' 1 . Is national legislation which provides for mandatory tariffs for the carriage of goods by road to be approved and brought into force by the public authority on the basis of a proposal from a committee on which interested economic operators are in the majority (Ministerial Decree of 2 Feb- In the earlier case the Court gave the fol- ruary 1994) compatible with Articles 3(f) lowing ruling: and (g), 5, 85 and 86 of the Treaty, as interpreted by the judgment of the Court of Justice of 5 October 1995 in Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo?

(c) the conditions for setting the manda- 5. In particular, can that concept cover a tory tariff are fixed in that way and, national situation such as that described more importantly, the public authori- in the main proceedings in 'which: ty's review of the legality of the tariff is restricted to checking whether the tariff proposed by the committee cor- responds to the economic and tech- nical data of a "typical undertaking" which is not representative of the (a) the tariff proposal is drawn up on the market in question; basis of criteria which are described by the national legislature as being in the public interest and defined in abstract terms by Law N o 298/74 and in detail by Presidential Decree N o 56/78, but in practice refer to the characteristics of a "typical under- taking" specified by Decree N o 56/78 (d) in that context the public authority is (Articles 3 and 4) which no longer given the task of ensuring that the corresponds to the realities of the tariff determined in that way enables market in question; haulage undertakings to obtain a return described as "fair" (Article 52 of Law N o 298/74) but based on rigid and totally obsolete legislative data which cannot be reviewed by the public authority even though they are (b) the public authority's powers (which now divorced from reality and con- have never been exercised) to refer sequently do not reflect the actual the committee's proposal back to it cost of the service provided by road- and to adopt tariffs ex officio if the haulage undertakings?

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LIBRANDI v CUTTICA

16. The defendant in the main proceedings considers that the three criteria set out in the Centro Servizi Spediporto judgment must all 14. In that case the Court found that there be fulfilled at the same time and are not alter- were three reasons why a restrictive practice native to each other. did not exist. It observed, firstly, that the rep- resentatives of the public authorities formed the majority on the central committee. Sec- ondly, the committee, in submitting its pro- posals concerning the tariff, had to take account of certain public interest criteria which 17. The defendant adds that there is a further were specified by law. Thirdly, the public difference from the Centro Servizi Spediporto authorities had not delegated their powers case in so far as the Interministerial Com- concerning the fixing of tariffs to private eco- mittee on Prices, whose instructions the Min- nomic agents. 2 In this connection the Court ister had to follow when adopting tariffs, no

2 — Ibid., paragraph 26. 3 — Ibid., paragraphs 26 to 30.

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longer exists. Furthermore, in practice the 20. The Italian Government adds that, Minister was always guided by economic con- although the Price Committee no longer exists, siderations 'when fixing tariffs and did not its place has been taken by the Italian Price take account of observations such as those of and Tariff Monitoring Body. the Price Committee (when it existed) and of the regions. According to the defendant, the public authorities fixed tariffs on the basis of models which no longer corresponded to the true situation.

19. The Italian Government also observes that the principles laid down in the previous judgment apply to the present case. This was not altered by the change in the composition of the tariff committee in favour of the rep- resentatives of undertakings. The decisive factor was that the committee had only a right 22. It is clear from the Centro Servizi Spedi- to make proposals and had to take account of porto judgment that, although both the Court the public interest when fixing tariffs. The and the Advocate General referred to the regions and the representatives of the associa- composition of the tariff committee as a cri- tions of the economic sectors concerned had terion to be taken into account in relation to to be consulted before the final tariffs were the question whether there was an agreement, fixed by the Minister. It should also be decision or concerted practice, it was not the observed that the proposals of the tariff com- only criterion and it was associated with the mittee were not binding on the Minister, who obligation to observe the public interest and could on his own initiative alter tariffs which with the fact that the final decision had to be had already been fixed. made by the public authorities.

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LIBRANDI v CUTTICA

26. In the order for reference the national court states that the automatic application of a tariff to sectors other than road haulage is likely to give rise to disparity of treatment 24. Therefore the reply to the first question which may distort not only the national from the national court must be that Articles market but also the Community market. The 3(f) and (g), 5, 85 and 86 of the Treaty do not tariffs were calculated on the basis of costs preclude national legislation which provides which did not arise at all in the performance for mandatory tariffs for the carriage of goods of certain contracts. Therefore different situ- by road from being approved and brought ations were being treated in the same way in

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O P I N I O N OF MR ALBER — CASE C-38/97

that the same tariff system was imposed on 29. First of all, it must be observed that the all of them. Court has already dealt with the present ques- tion in the Centro Servizi Spediporto case. 4

30. With regard to the criteria which must be taken into account when fixing tariffs, the 27. The defendant considers that it is neces- Court's observations in the previous judg- sary to take account of the fact that the rep- ment apply here in conjunction with the quali- resentatives of a regulated sector fix the prices fications set out in paragraph 24 above, which for sectors where there is normally free com- arise from the change in the majority on the petition. Therefore the competition rules of tariff committee. the EC Treaty preclude the application of compulsory tariffs to other types of contract.

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LIBRANDI v CUTTICA

undertakes to achieve a particular result and similar legal situation in the Centro Servizi contracts for hire, which are concluded in Sžediporto judgment. connection with transport. This procedure for fixing tariffs also provides for account to be taken of the public interest criteria laid down by law, permits the Minister to reject the cen­ tral committee's proposals and requires con­ sultation of the regions and of the trade asso­ ciations concerned. 35. The order for reference states that this question is relevant because the defendant in the main proceedings contends that the cri­ teria for fixing tariffs did not ensure that the central committee's proposals served the gen­ eral interest. The Court, however, in its inter­ pretation of the competition rules of Com­ 33. Articles 3(f) and.(g), 5, 85 and 86 of the munity law used the term 'public interest' as Treaty accordingly do not preclude legislation well as 'general interest'. of a Member State which extends mandatory tariffs in the field of contracts for road haulage services to cover other types of contract relating to different services such as, in par­ ticular, contracts whereby a contractor under­ takes to achieve a particular result and con­ tracts for hire, provided that the legislation 36. The defendant argues that, as the meaning takes account of the abovementioned public of the two terms may vary in national law, interest criteria and of the principle that the depending on the context in which they are public authorities should not delegate their used, a difference of interpretation is possible right to make the final decision. in Community law also.

transport in order to avoid unfair competi- did not go on to consider the extent to which tion, in particular between road, rail and inland the public interest criteria were defined in the waterway transport. If, nevertheless, the tar- Italian provisions. Articles 52 and 53 of Law iffs fixed by the commission were not in the N o 298/74 provide that the tariffs should general interest, the German minister respon- enable transport undertakings to obtain a fair sible could himself fix the tariffs in lieu of the return, having regard to the market situation, tariff commission. The Court finally ruled and that the Minister must consult the regions that the competition rules of the EC Treaty and the representatives of the trade associa- did not preclude national provisions for fixing tions of the sectors of the economy con- tariffs if, inter alia, the members of the com- cerned. mission were independent experts who fixed the tariffs by reference to considerations of general interest. The term 'general interest' can therefore only mean the interests of all sectors of the economy, particularly those other than transport undertakings, and the interests of less-favoured regions. 40. A comparison of the three judgments shows that in each case the Court considered whether, in fixing tariffs, the tariff commis- sion had to take account of interests other than those of the undertakings represented on the commission and whether, before adopting the tariffs, the minister in turn had once again to take account of the interests of the sectors of the economy concerned and of the regions. 38. In the Delta case the Court reached the What was required was a basis for ensuring same conclusion, and on the same grounds, as that the interests of the general public should in the Reiff case. prevail over the particular interests of certain sectors of the economy. The principle that the former should be taken into account and safeguarded was then, in each case, subsumed by the Court under the heading of 'general interest' or 'public interest'. In so far as the Court defined these two terms by reference to the same criteria, this must mean that they are identical.

42. With the fourth question the national court asks whether 'general interest' and 'pub- 45. This view is substantially correct. Firstly, lic interest' are terms defined by Community the Court has always used the terms 'general law or whether their definition is a matter for interest' or 'public interest' when considering the individual Member States. restrictive practices. In finding that there was no restrictive practice, one of the Court's grounds was that the fixing of tariffs was sub- ject to observance of the general interest or public interest criteria defined by the legisla- tion of the Member States. However, when examining this question, the Court has never referred to Community law criteria for 43. The defendant in the main proceedings defining these terms in any of its judgments. contends that they must be defined by Com- Furthermore, neither 'general interest' nor munity law. The criteria by reference to which 'public interest' are referred to or defined in tariffs are to be fixed should not vary from any of the Community provisions relevant one Member State to another. To ensure effec- here. As I observed in paragraph 23 above, tive competition as between Member States, the Member States must ensure the practical tariffs should be fixed in each State according effectiveness of the competition rules. Con- to the same criteria. This is the only way of sequently, State measures must respect the avoiding distortion in trade within the Com- aims and the policies laid down by the Com- munity. munity. State action must not lead to the pre- vention, restriction or distortion of fair, effec- tive competition. However, if competition which in itself is free is regulated by State action, compliance with the relevant Com- munity rules must be secured by means of suitable criteria. But a Community definition 44. In the opinion of the French Govern- of these criteria (the public interest and the ment and the Commission, it is for the national non-delegation of sovereign powers), going legislature to define what is meant by 'general beyond the general principles of the competi- interest' or 'public interest'. However, the cri- tion rules, is not then necessary. The principle teria laid down by the national legislature of subsidiarity also dictates that the Member must be such that the public authorities can States be left with responsibility in this area.

The fifth question 49. According to the reply to the fourth ques- tion, the Member States are in principle responsible in the area in question for laying down the criteria to be taken into account when fixing tariffs. This means that the 47. The national court's fifth question seeks Member States can specify the interests which to establish whether the concept of public the trade association representatives on the interest covers a situation where the statutory central committee must take into account, provisions are drawn up by reference to a other than their own. Likewise, in principle it typical undertaking which no longer corre- is left to the Member States to specify the sponds to the realities of the market in ques- interests to which the authority responsible tion, where the statutory provisions have not for fixing tariffs must in turn have regard after been updated since 1978, where the compe- it receives the tariff committee's proposals. tent authority examines the proposed tariff Therefore, in principle the Member State con- by reference to the economic and technical cerned retains complete legislative freedom to characteristics of a typical undertaking which decide which concrete circumstances of the is said not to be representative of the market market will affect the fixing of tariffs and the in question, and where the tariff determined factors for influencing the tariffs. If the leg- in that way is meant to provide a fair return islation is worded by reference to a typical for transport undertakings. In short, the undertaking, the definition of such an under- national court is doubtful whether, in view of taking must not relate to a single group of the abovementioned circumstances, it can be undertakings and their particular interests,

51. With the sixth question, the national court seeks clarification of the meaning of the term 'collective agreement', so as to allow the national court to rule out the existence of a price-fixing practice, contrary to Article 85 of the Treaty. 54. In paragraph 29 of its judgment in the Centro Servizi Spediporto case the Court con- sidered the possibility of concluding collec- tive agreements pursuant to Article 13 of the Ministerial Decree of 18 November 1982. The Court merely observed that this possibility 52. The reason given for asking this question did not have the effect of restricting competi- is that the defendant argued that the sum paid tion but allowed certain derogations from the to the plaintiff was in accordance with a col- mandatory tariffs and therefore increased the lective agreement entered into by associations possibility of competition. Advocate General and road hauliers represented on the central Léger also observed, in paragraph 33 of his committee and by users' associations. H o w - Opinion, that the collective agreements did ever, since the plaintiff has argued that this not have the effect of restricting competition agreement could not be relied upon because but, on the contrary, increased traders' leeway

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by providing for an exception to the applica- and they must ensure that it is applied in con- tion of bracket tariffs. formity with the law. Whether an undertaking which did not take part in the conclusion of a collective agreement may be bound by it is a question which can be answered only by 55. The concept of 'collective agreement' must reference to national law and one which the be defined and interpreted by the State bodies Court is not therefore required to answer.

(3) The concept of 'general interest' referred to by the Court in the Reiff and Delta judgments is the same as the concept of 'public interest' used in a similar legal situation in the Centro Servizi Spediporto judgment.

(4) The definition and appraisal of the terms 'general interest' and 'public interest' are the responsibility of the individual Member States.

(5) It is the task of the competent national court to ascertain whether the national provisions are capable of precluding restrictive practices, whether the public interest is actually taken into account and whether the authorities have del- egated their powers to private economic operators. The national court must then ensure that its decision lays down a framework for competition which conforms with national and Community law.

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