Judgment — ECLI:EU:T:2000:91
Date: 2000-03-30
Language of the case: Italian
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Effect on trade between Member States;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Binding nature of the competition rules and measures taken by Member States, direct effect
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Undertaking — 
Concept 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
2. Competition — Agreements, decisions and concerted practices — Agreements between 
undertakings or associations of undertakings — National professional organisation 
comprising all customs agents — Setting of tariffs for professional services — 
Decisions of an association of undertakings 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
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SUMMARY — CASE T-513/93 
3. Competition — Community rules — Scope ratione materiae — Conduct imposed by 
State measures — Exclusion — Conditions — National legislation imposing the setting 
of a uniform tariff by an organisation comprising the representatives of customs agents 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
4. Competition — Agreements, decisions and concerted practices — Effect on trade 
between Member States — Setting by a national professional organisation of a single 
tariff binding on all customs agents 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
1. The concept of an undertaking within 
the meaning of Article 85 of the Treaty 
(now Article 81 EC) covers any entity 
engaged in an economic activity, 
regardless of its legal status and the 
way in which it is financed. Any 
activity consisting in offering goods 
and services on a given market is an 
economic activity. 
(see para. 36) 
2. Since the activity of customs agent is an 
economic activity and customs agents 
must therefore be regarded as under­
takings within the meaning of Arti­
cle 85 (now Article 81 EC), a profes­
sional organisation comprising the 
representatives of the profession must 
be regarded as an association of under­
takings within the meaning of that 
article and its application cannot be 
precluded by its public-law status. 
Moreover, since under national law the 
members of such an organisation can­
not be characterised as independent 
experts and are not required, under the 
law, to set tariffs taking into account 
the general interest and the interests of 
undertakings in other sectors or users 
of the services in question as well as the 
interests of the undertakings or asso­
ciations of undertakings which have 
appointed them, the decisions under 
which that organisation establishes the 
tariffs of professional services must be 
regarded not as State decisions by 
means of which that body performs 
public functions but as decisions of an 
association of undertakings capable of 
coming within the scope of Arti­
cle 85(1) of the Treaty. 
(see paras 39, 55-56) 
3. Articles 85 and 86 of the EC Treaty 
(now Articles 81 and 82 EC) apply 
only to anti-competitive conduct 
engaged in by undertakings on their 
own initiative. If anti-competitive con­
duct is required of undertakings by 
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CONSIGLIO NAZIONALE DEGLI SPEDIZIONIERI DOGANALI V COMMISSION 
national legislation or if the latter 
creates a legal framework which itself 
eliminates any possibility of competi­
tive activity on their part, Articles 85 
and 86 do not apply. In such a situa­
tion, the restriction on competition is 
not attributable, as those provisions 
implicitly require, to the autonomous 
conduct of the undertakings. However, 
Articles 85 and 86 may apply if it is 
found that the national legislation does 
not preclude undertakings from enga­
ging in autonomous conduct which 
prevents, restricts or distorts competi­
tion. Moreover, the possibility of 
excluding specific anti-competitive 
conduct from the scope of Arti­
cle 85(1), on the ground that it was 
required of the undertakings in ques­
tion by existing national legislation or 
that any possibility of competitive 
activity on their part has been elimi­
nated, has been applied restrictively by 
the Community judicature. 
In that connection, even though 
national legislation, which requires a 
professional organisation comprising 
all the representatives of customs 
agents to adopt a uniform and manda­
tory tariff, imposes major limitations 
on competition and makes it difficult in 
practice for there to be real competi­
tion in terms of prices between customs 
agents, it does not as such preclude the 
continued existence of a certain 
amount of competition capable of 
being prevented, restricted or distorted 
by the autonomous activity of customs 
agents, inasmuch as it does not lay 
down specific price levels or ceilings 
necessarily to be taken into account in 
establishing the tariff; nor does the 
national legislation define the criteria 
on the basis of which that professional 
organisation is to draw up the tariff. 
To the extent to which such an orga­
nisation has room for manœuvre in 
performing the obligations imposed on 
it by the national legislation within 
which it could and ought to have acted 
in such a way as not to restrict the 
existing level of competition, the 
restrictive effects on competition result­
ing from a tariff set by it may originate 
in its conduct. 
(see paras 58-62, 72) 
4. The decisions by which a professional 
organisation comprising all the repre­
sentatives of the customs agents of a 
Member State sets a uniform, compul­
sory tariff for all customs agents are 
capable of affecting intra-Community 
trade, even since attainment of the 
single market, because various types 
of import or export operations within 
the Community may still require cus­
toms formalities to be carried out. 
(see paras 81, 83) 
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