C-22/98

* Original language: Spanish. 1 — Case C-179/90 Merci Convenzionali ν Porto di Cenová 2 — Staatsblad, 8 August 1972, p. 8826 [1991] ECR 1-5889 ('Merci'). 3 — Staatsblad, 15 January 1969, p. 267.

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4. The collective labour agreement relating are contained in the Royal Decree of to the Port of Ghent, of 20 February 1979, 21 April 1977 on the conditions and pro- was made mandatory by Royal Decree of cedures for the recognition of dockers in 11 May 1979. 4 It stipulates, inter alia, that the Ghent port area ('the 1977 Royal contracts of employment for the perfor- Decree'), 6 which lays down conditions for mance of dock work are not to be subject recognition such as the person's age, good to the obligation generally requiring con- character, state of health, and professional tracts of employment to be in writing. knowledge and ability.

9. NV SMEG, a Belgian company, operates the respective Royal Decrees is carried out a grain warehousing business in the Ghent on SMEG's premises. Accordingly, SMEG port area, as defined in Article 1 of the is subject to the 1972 Law on dock work. 1973 Royal Decree and in Article 2 of the Royal Decree of 12 August 1974 establish- ing and determining the appointment, powers and numbers of members of joint subcommittees for ports. 7

14. It is likewise clear, and has not been disputed, that, during the period at issue, SMEG had certain operations carried out by non-recognised dock workers, despite 10. SMEG's activities consist, on the one the fact that, under the 1972 Law, such hand, in the loading and unloading of grain work may be performed only by recognised boats and, on the other, in the storage of dockers. grain on behalf of third parties. Goods are transported to and from its premises by boat, rail or lorry.

15. The Openbaar Ministerie (Public Pro- secutor's Department) brought criminal 11. At the material time, Mr Becu, then a proceedings against Mr Becu and Mrs Ver- director of SMEG, had certain duties in the weire, and against the undertakings they Ghent port area performed by eight non- administer, on the ground that they had recognised workers. committed the offenses provided for in the 1972 Law (see point 7 above). The court of first instance (the Correctionele Rechtbank (Criminal Court), Ghent) acquitted the first two defendants and at the same time held that the undertakings managed by then had no case to answer. 12. At the same time, Mrs Verweire, then a manager of the company NV Adia Interim, had certain tasks in the Ghent port area carried out by five non-recognised workers.

' 1 . As Community law now stands, can The first question those subject to it, be they natural or legal persons, acquire rights under Article 90(1) of the EC Treaty, in conjunction with Articles 7, 85 and 86 thereof, which Member States must 17. As formulated, the first question seeks respect, where the loading and unload- only to ascertain whether Article 90(1), in ing in port areas of, in particular, goods conjunction with Articles 6, 8 85 and 86 of imported by sea from one Member the EC Treaty, is capable of creating State into the territory of another individual rights which are directly enforce- Member State and port work in general able by nationals, or, which amounts to the are reserved exclusively to "recognised same thing, whether those provisions dockers", the conditions and proce- dures for the recognition of whom are determined by the King on the advice 8 — Article 7 in the version prior to the Treaty on European of the joint committee having respon- Union.

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must protect'. 1 1There is no reason why The national court refers to the similarities that reasoning cannot also be applied to that exist between this case and the pro- Article 85. 1 2 ceedings which led to the judgment in Merci, cited above. I therefore consider it useful to take that precedent as the basis for my analysis.

22. In short, the answer to the first ques- tion referred by the Hof van Beroep should be that Article 90(1) of the Treaty, in conjunction with Articles 85 and 86, cre- The Porto di Genova case ates for individuals rights which national courts must protect.

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26. First of all, the Belgian legislation at 29. In those circumstances, I think it is issue, unlike the Italian, does not impose a necessary, first of all, to ascertain what nationality requirement. Indeed, apart from legal lessons can be drawn from the judg- a reference in the order from the national ment in Merci and, then, to determine court to Article 7 (read Article 6) of the which of them can be applied to this case. Treaty, which is probably explained by the fact that the Hof van Beroep, Ghent, based its question on the earlier question from the Tribunale di Genova, there is no evidence in the contested national legislation, in the file forwarded with the order, or even in the 30. Paragraphs 8 to 24 of the judgment in observations submitted by the various par- Merci seem to show that the Court con- ties, of any discrimination on grounds of sidered the maintenance of exclusive rights nationality in the recognition of dockers at in favour of a particular undertaking to be the Port of Ghent. It is not therefore incompatible with the Treaty in three relevant to examine the case from the point respects. of view of Article 6 or, for the same reasons, Article 48 of the Treaty.

31. First, the Court found that the rules governing the Port of Genoa, by which a Member State reserved to its own nationals the right to work in an undertaking estab- lished in its territory, were inherently contrary to Article 48 of the Treaty. 27. Secondly, as the referring court rightly points out, the legislation in the present case recognises only the occupation of dockers and entrusts the performance of all dock work exclusively to them; it does not grant any special or exclusive rights to undertakings or companies. 32. Second, the Court held that the under- takings which had been granted exclusive operating rights were induced by the national legislation to abuse their dominant position, and that that legislation therefore infringed Article 86 since it affected trade between Member States.

generally incompatible with Article 30 of 36. As I stated earlier, there is nothing in the Treaty, which prohibits quantitative the documents before the Court to show restrictions on imports and any other that pursuit of the activities covered by an measure having equivalent effect, since exclusive right is subject to a specific such legislation makes more difficult and nationality requirement. The grounds of hence impedes imports of goods from other challenge based on Article 48 of the Treaty Member States. The Court of Justice went must therefore be dismissed in this case. on to say that 'it may be seen from the national court's findings that the unloading of the goods could have been effected at a lesser cost by the ship's crew, so that compulsory recourse to the services of the two undertakings enjoying exclusive rights 37. However, the same does not appear to involved extra expense and was therefore be true of the other grounds of challenge. It capable, by reason of its effect on the prices is therefore appropriate to examine whe- of the goods, of affecting imports'. 13 ther considerations based on Article 86 of the Treaty are applicable. That is to say whether, as in Merci, the facts of this case reveal an infringement of the prohibition of abuse of a dominant position. If so, it will be necessary to determine whether the national rules at issue also infringe Arti- cle 30 of the Treaty in so far as they represent an obstacle to the free movement 34. That citation can be transposed almost of goods. It is appropriate, finally, to take word for word to the circumstances of the into account — albeit merely for analytical present case. It is clear from the referring purposes — Article 86, an interpretation of court's findings that the handling of the which has been requested by the national goods could have been effected at a lesser court. cost by non-recognised labour. Further- more, compulsory recourse to the recog- nised labour force, on the ground that it enjoys exclusive rights, must have involved extra costs capable of affecting imports.

39. The provisions of Community law 41. To my mind, the only category, if any, which the Belgian court seeks to have in which the situation in the Port of Ghent interpreted are indeed contained in Part could be placed is that of abuse of a Three, Title I, Chapter 1, Section 1 of the dominant position by an undertaking hold- EC Treaty, entitled 'Rules applying to ing special or exclusive rights. I do not, undertakings'. Furthermore, the provisions therefore, consider Article 85 to be rele- contained in Articles 85 and 86 are vant. expressly concerned with undertakings. They prohibit 'agreements between under- takings', 'decisions by associations of undertakings', and any 'abuse by one or more undertakings of a dominant position'. Also, Article 90(1) prohibits Member States from enacting or maintaining in 42. It is certainly true that the wages of force any measures contrary to the rules recognised dockers are laid down in agree- contained in the Treaty, in particular to ments concluded through collective-bar- those rules provided for in Articles 6 and gaining negotiations between employers' 85 to 94, 'in the case of public undertakings and employees' representatives. It could be and undertakings to which Member States argued in this respect that these are agree- grant special or exclusive rights'. ments which directly or indirectly fix prices or other trading conditions and that they fall within the scope of Article 85(2)(a). However, the agreements in question would be relatively innocuous if it were not for the combined effect of coercive provisions which, on the one hand, allow only duly recognised dockers to perform dock work, and, on the other, make the outcome of the aforementioned collective- In order for Articles 85, 86 and 90 to be bargaining negotiations binding erga applicable, therefore, it is essential that the omnes. obstacle to free competition should be attributable to one or more undertakings.

45. In relation to the harmonisation of The meaning of 'undertaking' in Commu- social legislation in the transport sector, nity competition law the Court again preferred an interpretation which placed primary emphasis on the legal and organisational autonomy of the entity in question. In that context, 'undertaking' was to be understood as 'an autonomous 44. The first definition of the term 'under- natural or legal person, irrespective of legal taking' given by the Court of Justice dates form, regularly carrying on a transport back to a judgment of 22 March 1961. 1 4 It business and empowered to organise and held then that the concept of an under- control the work of drivers and crew'. 18 taking within the meaning of the Treaty could be identified with a natural or legal person and that, consequently, several companies each having separate legal per- sonality could not constitute a single under- taking within the meaning of the Treaty, 46. The usefulness of such a definition in even if those companies were economically resolving the present dispute is, to say the integrated to the highest degree. 15 The least, limited, in my view, since both the judgment in Klöckner-Werke and Others context in which it was given and the emphasises similar criteria, although this purposes for which the interpretation was time it introduces the important economic intended bear no relation to this case. 19 dimension into the definition. 16 'An under- taking', the Court then held, 'is constituted by a single organisation of personal, tangi- ble and intangible elements, attached to an autonomous legal entity and pursuing a given long-term economic aim'. 17On both 47. The Court's first definition of the term occasions, the Court was at pains to high- 'undertaking' in the context of competition light the importance of the formal criterion law came in 1984. In answer to a reference of independent legal personality when 18 — Case C-7/90 Vandevenne and Others [1991] ECR 1-4371, paragraph 9. 14 — Joined Cases 42/59 and 49/59 SNUPAT [1961] ECR 53). 19 — It is thus not surprising that, when interpreting Article 85 15 — ECR 54. of the Treaty, for example, the Court of First Instance has preferred to adopt a form of words which draws more on 16 — Joined Cases 17/61 and 20/61 Klöckner-Werke and economics and is less concerned with the legal foundation Others[1962] ECR 325. See also the judgment of the same of the entity concerned. See, in this connection, the date in Case 19/61 Mannesmann [1962] ECR 357, based judgment of the Court of First Instance in Case T-11/89 on the same legal grounds. Shell ν Commission [1992] ECR II-757, paragraphs 311 17 — ECR 341. and 315.

More recently, the Court held — in what was to become a standard form of words — that, in the context of competi- tion law, 'the concept of an undertaking 49. I do not consider, however, that classi- encompasses every entity engaged in an fication of the dock work at issue in the economic activity, regardless of the legal present case as an economic activity can status of the entity and the way in which it reasonably be called in question. 'Any is financed.' 21 activity consisting in offering goods and services on a given market is an economic activity'. 26 Dockers offer, for remunera- tion, services consisting in various dock duties: loading, unloading, trans-shipment, storage. The question is whether such dockers may be regarded as a significant In relation to competition, the key feature entity for the purposes of applying the of the definition thus shifts from criteria Community competition rules. associated with the entity's autonomy to considerations of economic unity. None- theless, as I shall explain further later, the entity in question must at the same time enjoy a certain degree of — essentially economic — autonomy. 50. The only precedent capable of provid- ing any guidance in this respect is — in my 20 — Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11. 21 — Regarding the term 'undertaking' within the meaning of 22 — Höfner and Elser, cited above. Articles 85 and 86 of the Treaty, see, inter alia, 23 — Poucet and Pistre, cited above. Case C-41/90 Höfner and Elser [1991] ECR I-1979, 24 — Eurocontrol, cited above. paragraph 21; Joined Cases C-159/91 and C-160/91 Pou- cet and Pistre [1993] ECR I-637, paragraph 17; 25 — Federation Française des Sociétés d'Assurances, cited Case C-364/92 Eurocontrol [1994] ECR 1-43, para- above. graph 18; and Case C-244/94 Fédération Française des 26 — Case 118/85 Commission ν Italy [1987] ECR 2599, para­ Sociétés d'Assurances [1995] ECR I-4013, paragraph 14. graph 7.

view — the judgment in Commission ν should have sufficient unity or autonomy, Italy,27 in which the Court held that Italy the Court of Justice held that customs had failed to fulfil its obligations under agents assume the financial risks involved Articles 5 and 85 of the Treaty by permit­ in the exercise of that activity and, if there ting the adoption of a compulsory tariff for is an imbalance between expenditure and all customs agents. I shall refer only to receipts, they have to bear the deficit those aspects of that judgment which I themselves. Consequently, the Court con­ consider relevant to this case. cluded that 'the fact that the activity of customs agent is intellectual, requires authorisation and can be pursued in the absence of a combination of material, non- material and human resources, is not such as to exclude it from the scope of Arti­ 51. In support of the argument that Arti­ cles 85 and 86 of the Treaty'. 2 8 cle 85 was not applicable, the Italian Government maintained in that case that, although, since they exercise a liberal profession like lawyers, surveyors or inter­ preters, customs agents were independent 53. It is that ability to take on financial workers, they nevertheless could not be risks which gives an operator sufficient regarded as being undertakings because the significance to be capable of being regarded services they provide are of an intellectual as an entity genuinely engaged in trade, nature and because the practice of their that is to say to be regarded as an under­ profession requires authorisation and taking. In other words, recognition as an entails compliance with certain conditions. 'undertaking' requires, at least, the exis­ It stated that the Treaty distinguishes tence of an identifiable centre to which between independent workers and under­ economically significant decisions can be takings, so that not all self-employed activ­ attributed. ity is necessarily carried on in the context of an undertaking. In addition, the indispen­ sable organisational element is lacking, that is to say the combination of human, material and non-material resources per­ manently assigned to the pursuit of a 54. For that reason, employees do not specific economic goal. constitute undertakings. An undertaking and its auxiliary organs together form an economic unit. 2 9

tion of undertaking within the meaning of classified under Belgian law as contracts of the competition rules contained in the employment, and are more akin to con- Treaty. Classification as such under tracts for the provision of independent national law must be seen only as a further services. factor to be taken into account by the Community judicature. Negative classifica- tions under national law are likewise inconclusive. That is to say that an entity which pursues an economic activity does not cease to be an undertaking for our purposes here because national law does not recognise it as such. Accordingly, that From the information available to the fact that, under a particular system of law, Court, it does not seem possible to infer a legal relationship is classified as a con- that dockers at the Port of Ghent, consid- tract of employment is not sufficient to ered individually, operate in such a way as exempt it from the Community rules relat- to support the presumption that there is in ing to undertakings. As with the very each of them an identifiable centre to which meaning of 'undertaking', regard must be economic decisions can be attributed. had to the service actually provided and its Although they offer their services to various specific characteristics, rather than to the customers, they receive orders from them legal form it takes. and do not bear any commercial risk. It must therefore be concluded that, from a social point of view, dockers perform a functionally different activity from that of any undertaking engaged in the provision of services.30 The concept of a worker presupposes that for a certain period of 56. The rules governing recognised dockers time a person performs services for and in the Port of Ghent exhibit certain specific under the direction of another person in characteristics which set them apart from return for which he receives remuneration. what could be called a standard employ- That was the finding reached by the Court ment relationship. First of all, the dockers specifically with respect to Italian dock- in question are casual workers attached to ers. 31 I see no evidence to support a the employer by — what are classified different conclusion with regard to Belgian under national law as - contracts of dockers. employment for short or even very short periods. Secondly, those contracts do not have to be in writing (see paragraph 4 above).

when considered individually is the ques- contracts for their services, recognised tion whether, collectively, they conduct dockers have ad hoc employment offices. themselves in matters of trade like an entity These, however, are merely branches of the capable of being regarded as an undertak- public employment procurement agency ing for the purposes of Community compe- (namely, the Vlaamse Dienst voor Arbeids- tition law. That would be the case, for bemiddeling). example, if a worker, whilst being linked to an undertaking by a relationship of employment, were linked to the other workers of that undertaking by a relation- ship of association. 32 Nor do recognised dockers appear to have constituted or to be capable of constituting an independent body for the purposes of managing or administering the services they are called upon to provide. Although they are members of trades union associations, 58. The order for reference clearly does not like any other worker, their participation in contain any evidence of the existence of an management or administrative activities is association between the dockers. The Court confined to electing delegates to represent therefore put to the parties a question to be them on the joint committees and subcom- answered in writing. They were asked to mittees. The joint (sub)committees are in explain precisely how dockers at the Port of turn responsible for exercising discipline, in Ghent organised themselves for the pur- so far as such discipline relates to matters poses of offering, concluding contracts for, extending beyond the framework of an and providing their services and, in parti- individual employment relationship, it cular, whether they had a joint manage- being otherwise a matter for the relevant ment or administrative structure or whe- employer. ther they took the form of associations or corporations for the purposes of perform- ing the tasks entrusted to them or ensuring discipline.

62. For the foregoing reasons, I propose that the Court's reply to the reference for a preliminary ruling from the Hof van Beroep, Ghent, should be as follows:

(1) Article 90(1) of the Treaty, in conjunction with Articles 85 and 86, creates for individuals rights which national courts must protect.

(2) The documents before the Court contain nothing to show that the legal relationship under which the recognised dockers in the Ghent port area provide their services is anything other than an employment relationship, nor any evidence of a form of organisation capable of being regarded as an undertaking for the purposes of the Community competition rules. Arti- cles 85, 86 and 90(1) are not therefore applicable.

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