Opinion of the Advocate General — ECLI:EU:C:1998:52
Date: 1998-02-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary
I — Legal background I - 3856
A — Community legislation I - 3856
B — National legislation at issue I - 3857
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
B — Second plea of inadmissibility: substantive lacunae in the documents in the
pre-litigation procedure and the application I - 3864
V — Substance of the dispute I - 3866
A — Infringement of Article 85 by the CNSD I - 3866
(1) Does the occupation of customs agents constitute the activity of an
undertaking within the meaning of Article 85 of the Treaty I - 3866
(2) Does the CNSD constitute an association of undertakings for the
purposes of Article 85(1) of the Treaty? I - 3870
(3) Restriction of competition by the fixing of a compulsory tariff by the
CNSD I - 3875
(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
(2) Reinforcement by the Italian legislation of the effects of the CNSD's
decisions fixing a tariff for services provided by customs agents I-3881
(3) Delegation by the Italian legislation to private economic operatorsy
of the power of the public authorities with regard to the fixing of the
customs agents' tariff I - 3883
VI —Conclusion I - 3885
1. In this action brought pursuant to the sec­
ond paragraph of Article 169 of the Treaty,
the Commission asks the Court to hold that,
by adopting and maintaining in force a law
which requires the Consiglio Nazionale degli
Spedizionieri Doganali (National Council of
Customs Agents, hereinafter 'the CNSD') to
adopt a decision by an association of under­
takings contrary to Article 85 of the Treaty,
consisting in the fixing of the level of a com­
pulsory tariff for all customs agents, the Ital­
ian Republic is in breach of its obligations
under Articles 5 and 85 of the Treaty.
2. The case gives the Court an opportunity
to decide inter alia, first, whether those exer­
cising a professional occupation, in this case
customs agents, may be regarded as under­
takings under Community competition law
and are consequently subject to the restric­
tions laid down therein and, secondly,
whether a national professional organisation
with the status of a public body, which fixes
by decision the tariff (maximum and mini­
mum amounts) for services provided by its
members, may be regarded as constituting an
association of undertakings whose decision
fixing a tariff is contrary to Article 85 of the
Treaty.
I — Legal background
A — Community legislation
3. Under Article 85(1) of the Treaty:
'1 . The following shall be prohibited as
incompatible with the common market all ...
decisions by associations of undertakings ...
which may affect trade between Member
States and which have as their object or
I-3856
COMMISSION v ITALY
effect the prevention, restriction or distor­
tion of competition within the common mar­
ket, and in particular those which:
(a) directly or indirectly fix purchase or sell­
ing prices or any other trading condi­
tions;
…'
B — National legislation at issue
4. In Italy the activity of customs agent,
which is a professional occupation, is gov­
erned by Law No 1612 of 22 December 1960
(hereinafter 'Law No 1612/1960') 1 and the
implementing provisions contained in subse­
quent texts such as presidential and ministe­
rial decrees. A customs agent's activity
includes the provision of services in the con­
text of customs clearance procedures (the
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).
5. In order to pursue the activity of customs
agent, authorisation (patente) is required for
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
ian Republic (Articles 2 and 4 to 12 of Law
No 1612/1960).
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
of Law No 1612/1960).
7. The CNSD is a body governed by public
law. It is composed of nine members
appointed for three years by secret ballot
from among the members of the various
departmental councils of customs agents and
is presided over by a member elected by his
colleagues. Its members may be re-elected
(Article 13 of Law No 1612/1960).
8. Formerly the Director-General of Cus­
toms and Indirect Taxes was by law a mem­
ber of the CNSD and held the chair ex
1 — Law on the Legal Recognition of the Profession of Customs
Agent and the Establishment of Registers and Insurance
Funds for Customs Agents, Gazzetta Ufficiale della Repub­
blica Italiana (GURI) No 4 of 5 January 1961.
I-3857
OPINION OF MR COSMAS— CASE C-35/96
officio. However, Decreto legge (Decree-law)
No 331 of 30 August 1992 (Article 32) abol­
ished that rule.
9. Law No 1612/1960 (Article 14(d)) confers
on the CNSD principally the power to set
the tariff for the professional services pro­
vided by customs agents on the basis of pro­
posals from the departmental councils.
Under the second paragraph of Article 11 of
that Law, the tariff is mandatory.
10. Under a Decree of the Minister for
Finance of 10 March 1964, 2 those contraven­
ing the tariff face disciplinary measures
(Articles 38 and 40), ranging from reprimand
to temporary suspension from the register
where the offence is repeated (Article 40(d)),
and, in the case of temporary suspension
from the register by the departmental coun­
cil twice in five years, the penalty of defini­
tive removal from the register of customs
agents may be imposed.
11. At its meeting of 21 March 1988, the
CNSD adopted the tariff for services
provided by customs agents, stating as
follows:
(Article 1) 'This tariff lays down the mini­
mum and maximum amounts to be paid for
customs transactions and services provided
in the monetary, commercial and fiscal areas,
including fiscal litigation. In determining,
between the minimum and maximum
amounts, the price to be paid in a specific
case, the characteristics, nature and impor­
tance of the service are to be taken into con­
sideration.'
(Article 5) 'In relation to the provisions of
Article 1 above, this tariff shall always be
compulsory as regards the principal and
annuls any other agreement to the contrary
...'.
(Article 6) 'The National Council of
Customs Agents shall be empowered to
make specific and/or temporary derogations
from the minimum amounts laid down in
this tariff.'
(Article 7) 'The National Council of Cus­
toms Agents shall update the present tariff
according to the indexes supplied by Istat
(Central Statistics Institute) — Industrial
Sector — as from the date of the relevant
decision.'
2 — Decree on rules implementing Law No 1612 of 22 December
1960, Supplemento ordinario alla GURI, No 102, of 24 April
1964.
I-3858
COMMISSION v ITALY
12. Pursuant to that latter provision, at its
meeting of 15 March 1989 the CNSD
decided to increase the prices set by the tariff
by 8% from 1 January 1990. 3
13. The tariff drawn up by the CNSD at its
meeting of 21 March 1988 was approved by
the Italian Minister for Finance by a decree
of 6 July 1988. 4
II — Infringement procedure
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.
15. First, by application lodged at the Court
Registry on 24 March 1992, it brought an
action against the Italian Republic, seeking a
declaration that the latter had infringed
Articles 9 and 12 of the Treaty by approving,
and making mandatory, tariffs for customs
agents (Case C-119/92). The Court dis­
missed that action by judgment of 9 Febru­
ary 1994. 5
16. Subsequently, on 30 June 1993, the Com­
mission adopted Decision 93/438/EEC, 6
which states (Article 1): 'The tariff for ser­
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
Treaty'. 7
17. Lastly, taking the view that the provi­
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.
18. More precisely, pursuant to Article 169
of the Treaty, by letter of formal notice
dated 18 October 1993 8 the Commission
informed the Italian Republic of its reasons
for considering that State to be in breach of
Community law and invited it to present its
observations on the substance within two
months from receipt of the letter. The Com­
mission received no answer from the Italian
authorities.
3 — Communication from the Ministry of Finance published in
GURI No 299 of 23 December 1989.
4 — GURI No 168 of 19 July 1988, p. 19.
5 — Commission v Italy [1994] ECR I-393.
6 — Commission Decision relating to a proceeding pursuant to
Article 85 of the EEC Treaty, OJ 1993 L 203, p. 27.
7 — The CNSD brought an action before the Court of First
Instance (Case T-513/93) which is still pending, seeking the
annulment of that decision. The Court of First Instance
decided to postpone judgment until the Court had reached
its decision in this case.
8 — Reference SG(93) D/16736 93/2181.
I-3859
OPINION OF MR COSMAS —CASE C-35/96
19. On 21 June 1995, the Commission sent
the Italian Republic a reasoned opinion, call­
ing on it to adopt all the measures necessary
to comply with it within a period of two
months from notification. The Italian
authorities did not reply to the Commis­
sion's reasoned opinion.
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
was in breach of its obligations.
21. By document lodged on 15May 1996 at
the Court Registry, the Italian Government
asked that the action be declared inadmis­
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
defence to elapse. 9
III —Pleas in lawof the parties
22. The Commission asks the Court
(a) to declare that, by adopting and
maintaining in force a law which, in
granting the relative decision-making
power, requires the Consiglio Nazionale
Spedizionieri Doganali to adopt a
decision by an association of under­
takings contrary to Article 85 of the
Treaty establishing the European Com­
munity in that it sets a compulsory tariff
for all customs agents, the Italian
Republic has failed to fulfil its obliga­
tions under Articles 5 and 85 of the
Treaty, and
(b) to order the Italian Republic to pay the
costs.
23. The Italian Republic asks the Court to
hold the application inadmissible.
IV —Admissibility of the application
A — First plea of inadmissibility
(1) Initiation of a second procedure for
infringement in the course of the first
24. The Italian Republic maintains that the
Commission was not entitled, on the basis of
the same facts, to initiate a second procedure
9 — To be more exact, it sought to have the time-limit for sub­
mitting a defence extended, in reliance on force majeure, but
the Court dismissed its request.
I - 3860
COMMISSION v ITALY
against it for infringement of its obligations
under the Treaty, in particular Articles 5 and
85 thereof (the present case C-35/96), in
other words for reasons that are different
from and incompatible with those on which
it relied in its first action based on Articles 9
and 12 of the Treaty, without withdrawing
the first action (Case C-112/92). That is
because what is involved is either a customs
duty or an agreement by an association of
undertakings ratified by the Member State,
but not both at the same time. The Court of
Justice should first of all deliver judgment on
the substance of the dispute in the first case
and the Commission should then initiate the
procedure for infringement of other obliga­
tions by the same Member State, asking the
Court to find accordingly.
25. The Commission maintains that the Ital­
ian Government's argument to the effect that
it is not possible for the same national legis­
lation to be challenged on the basis of differ­
ent Treaty provisions is misconceived. In
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
one provision of the Treaty 10 or provisions
of the Treaty and of secondary Community
law. 1 1It maintains that no provision or gen­
eral principle of law indicates that one pro­
cedure for infringement is excluded in rela­
tion to another, in so far as the legal basis of
the second is fundamentally different from
the legal basis of the first. At the hearing the
Commission explained that by way of the
procedure against the CNSD based on
Council Regulation No 17 12 it reached the
conclusion that the legislation of the Italian
Republic was responsible for the infringe­
ment on the part of the CNSD of Article 85
and accordingly initiated infringement pro­
ceedings under Article 169. It emphasised
that there is no rule that requires the pro­
cedure of Regulation No 17 and that of
Article 169 to be initiated successively.
26. First of all I would point out that in
Case C-119/92 the Court dismissed the
Commission's action against the Italian
Republic,13 on the ground that importers
were not obliged in every case to have
recourse to the services of a customs agent
and consequently the compulsory tariff for
services provided by customs agents fixed by
the CNSD could not be regarded as a charge
10 — See Case 45/75 Rewe-Zentrale [19761 ECR 181, paragraphs
21 to 27, concerning infringement of Articles 37 ana 95 of
the Treaty; Case 78/76 Steinike & Weinlig [1977] ECR 595,
concerning Articles 92 and 95 of the Treaty; Case C-179/90
Merci Convenzionali Porto di Genova [1991] ECR I-5889,
concerning Articles 90(1), 86, 30 and 48 of the Treaty; and
Case C-484/93 Svensson and Gustavsson [1995] ECR
I-3955, concerning Articles 59 and 67 of the Treaty.
11 — Such as Article 30 of the Treaty and provisions of second­
ary Community law, for instance a regulation on the com­
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,
and Case C-228/91 Commission v Italy [1993] ECR I-2701
concerning health controls in the fisheries sector.
12 — Regulation No 17 of 6 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty (OJ, English
Special Edition 1959-1962, p. 87).
13 — Cited in footnote 5 above (in particular paragraphs 46 and
47).
I - 3861
OPINION OF MR COSMAS — CASE C-35/96
having effect equivalent to a customs duty
within the meaning of Articles 9 and 12 of
the Treaty.
27. Regardless of the decision reached by the
Court in Case C-119/92, Iconsider it impor­
tant to examine whether the Commission
was entitled, when the first infringement
procedure was pending, to initiate a second
procedure against the same Member State if
it considers that the same legislation
infringes other provisions of the Treaty as
well, or whether it is bound to conclude the
procedure under Regulation No 17 and then
initiate the procedure under Article 169.
28. According to Articles 155 and 169, the
Commission is the custodian of Community
legality since, in the general interest of the
Community, its function is to ensure that the
provisions of the Treaty are applied by the
Member States and to note the existence of
any failure to fulfil the obligations deriving
therefrom, with a view to bringing it to an
end. 14 Consequently, it is for the Commis­
sion to determine whether it is expedient to
take action against a Member State 15 and to
judge at what time it will initiate such an
action against a State 16 whose legislation it
considers to be contrary to Community leg­
islation, determining what provisions, in its
view, the Member State has infringed, and
consequently choosing the time to bring the
action. 17
29. In my view it is also for the Commission
to choose whether to proceed first against an
undertaking whose conduct it considers to
be affecting competition and subsequently
against the Member State whose legislation
requires or favours the conclusion of agree­
ments or cooperation contrary to Article 85
or, conversely, if it considers it expedient not
to take action against the undertaking, it pre­
fers to initiate proceedings under Article 169
against the Member State.
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
letter of formal notice and, principally, the
reasoned opinion, the subject-matter of the
dispute becomes entrenched. Consequently
the diagnosis of infringement is made prima­
rily in the reasoned opinion and conse­
quently the subject-matter of the case
brought against a Member State for infringe­
ment always follows from that set out in the
reasoned opinion. In other words, the rea­
soned opinion delimits the subject-matter of
the dispute before the Court, in so far as
both the application and the reasoned opin­
ion must be founded on the same grounds
and pleas in law; 18 the submission of new
complaints on the part of the Commission or
14 — Case 167/73 Commission v France [1974] ECR 359, para­
graph 15.
15 — See the analysis by Denis Simon 'Recours en constatation
de manquement' in Jurisclasseur, 1991, Fase. 380, § 46.
16 — Case 324/82 Commission v Belgium [1984] ECR 1861,
paragraph 12.
17 — Case C-317/92 Commission v Germany [1994] ECR I-2039,
paragraph 4.
18 — See, for instance, Case 166/82 Commission v Italy [1984]
ECR 459, paragraph 16; Case C-234/91 Commission v Den­
mark [1993] ECR I-6273, paragraph 16; and Case C-296/92
Commission v Italy [1994] ECR I-1, paragraph 11.
I - 3862
COMMISSION v ITALY
even an extension of its reasoning by relying
on new evidence in the context of the same
complaints is inadmissible. 19 Correspond­
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
application. 20
31. From the above it follows, in my view,
that the Commission may very well, on the
basis of its powers under Article 169, take
action, in the context of a new procedure,
against the Member State in question, where
it considers that the same legislation is con­
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
and against an undertaking or association of
undertakings in the second, the Commission
was not bound to carry out one procedure
before the other to ensure the admissibility
of the action brought under Article 169 if all
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.
(2) Infringement of the rights of defence in
the procedure against the Member State for
infringement
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
the hearing, it maintained that it was not in a
position to submit its observations on its
alleged infringement since, in adopting
Decision 93/438, the Commission presented
it with a fait accompli and its right to defend
itself was thus rendered nugatory.
33. According to the Commission, that
argument by the Italian Republic is
unfounded, since it did not react to the send­
ing of the documents in the pre-litigation
procedure; its sole reaction was to put for­
ward a plea of inadmissibility.
34. I consider that the question whether the
defendant Member State's rights of defence
were respected or not must be assessed sepa­
rately in the context of each proceeding for
infringement brought on the basis of Article
169. That requires examination as to whether
19 — See Case C-296/92 Commission v Italy, cited in footnote
18.
20 — Thus the Community Court cannot substitute a different
period for that laid down in the reasoned opinion; see Case
28/81 Commission v Italy [1981] ECR 2577, paragraph 6;
and Case 29/81 Commission v Italy [1981] ECR 2585, para­
graph 6.
I - 3863
OPINION OF MR COSMAS — CASE C-35/96
the Commission complied with all the pre-
litigation stages of the procedure, sending
successively to the defendant Member State
the letter of formal notice and reasoned
opinion as laid down, and whether, from
their content, the Member State was made
fully aware of the Commission's com­
plaints. 21 The fact of not replying to those
documents is clearly its own responsibility,
and it must assume the consequences implied
by that failure.
B — Second plea of inadmissibility: substan­
tive lacunae in the documents in the pre-
litigation procedure and the application
35. In the second and, in my view, more
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
85(1). Conversely, both the Commission's
letter of formal notice and the reasoned
opinion were formulated with exceptional
brevity on the points relevant to the case,
since they read as follows: 'By Decision of
28 June 1993, the Commission found that
the tariff adopted by the Consiglio Nazio­
nale degli Spedizionieri Doganali at its meet­
ing on 21 March 1988 constitutes an
infringement of Article 85(1) of the Treaty.'
That finding is not in accordance with the
criteria laid down in the case-law of the
Court, since the reasoned opinion did not
'contain a coherent and detailed statement of
the reasons which persuaded the Commis­
sion that the State concerned had failed to
fulfil one of its obligations under the
Treaty.' 22 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
30 June 1993 23 in which details of the rea­
sons underlying the Commission's view that
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
maintains.
36. The Commission maintains that the
grounds and reasoning supporting both the
reasoned opinion and the application are
wholly the same. Specifically it points out
that both the letter of formal notice and the
reasoned opinion contain express reference
to Commission Decision 93/438, which was
21 — See, for example, Case 274/83 Commission v Italy [1985]
ECR 1077, paragraphs 20 and 21: 'As the Court held in its
judgment of 11 July 1984 (Case 51/83 Commisńon v Italy
[1984] ECR 2793), the opportunity for the Member State
concerned to submit its observations constitutes an essential
guarantee required by the Treaty and, even if the Member
State does not consider it necessary to avail itself thereof,
observance of that guarantee is an essential formal require­
ment of the procedure under Article 169.' See also Case
C-289/94 Commission v Italy [1996] ECR 1-4405, para­
graph 15, and Case C-266/94 Commission v Spain [1995]
ECR I-1975, paragraphs 16 and 17.
22 — Reference is made, for example, to Case C-247/89 Commis­
sion v Portugal [1991] ECR I-3659, paragraph 22.
23 — More accurately reference was made to the decision of 28
June 1993, apparently inadvertently, instead of 30 June
1993, as is correct. Inasmuch, however, as it briefly
describes that decision as to its contents, even though nei­
ther the date nor the number of the decision are given cor­
rectly, there is not on that ground alone a defect in the
documents in the pre-litigation procedure preceding the
bringing of the present action.
I - 3864
COMMISSION v ITALY
published in the Official Journal of the Euro­
pean Communities, 24 and that that meant
that reference was made to the content of the
decision both as regards the facts and the
legal assessment which led to the adoption of
the decision that there was an infringement
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
to give additional emphasis to the responsi­
bility of the Italian Government.
37. I consider that the plea of inadmissibility
put forward by the Italian Government can­
not be upheld.
38. As the Court has consistently held: 'the
Commission must indicate, in any applica­
tion made under Article 169 of the Treaty,
the specific complaints on which the Court
is asked to rule and, at the very least in sum­
mary form, the legal and factual particulars
on which those complaints are based.' 25 I
consider that those conditions are satisfied in
this case.
39. The position maintained here is also
reinforced, in my opinion, by the case-law of
the Court concerning the legal effects of the
reasoned opinion, according to which, as
stated above, the latter delimits the subject-
matter of the dispute before the Court.
40. More specifically, I consider that in both
the letter of formal notice and, primarily, the
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
the Treaty ...'.26
41. In addition, given that there was an
express reference to the content of Decision
93/438, the only issue on which the Com­
mission's analysis should have been more
detailed, both in the letter of formal notice
and, primarily, the reasoned opinion, was
whether the Italian Republic was responsible
for the infringement of Community legisla­
tion by the CNSD. In fact, apart from the
express reference in Decision 93/438, the
Commission does indicate the specific com­
plaints on which the Court is called upon to
give a decision in relation to the responsibil­
ity of the Italian Republic.
24 — Commission Decision 93/438, cited above in footnote 6.
25 — See, for instance, Case C-375/95 Commission v Greece
[1997] ECR 1-5981, paragraph 35; and Case C-52/90 Com­
mission v Denmark [1992] ECR 1-2187, paragraph 17.
26 — See, for instance, Case 274/83 Commission v Italy, para­
graphs 20 and 21, and Case C-289/94 Commission v Italy,
paragraph 15, both cited in footnote 21.
I - 3865
OPINION OF MR COSMAS — CASE C-35/96
V — Substance of the dispute
42. In Decision 93/438/EEC of 30 June 1993
relating to a proceeding pursuant to Article
85 of the EEC Treaty, 27 the Commission
states that the tariff for services provided by
customs agents adopted by the CNSD con­
stitutes an infringement of Article 85(1) of
the Treaty.
43. Moreover, according to the Commission,
the CNSD's decision, which is prejudicial to
competition by reason of the imposition of a
compulsory tariff for all customs agents,
results directly from the abovementioned
provisions of Law No 1612/1960, which
provides for the adoption by the CNSD of a
decision by an association of undertakings
contrary to Article 85 of the Treaty; there­
fore, by adopting that law and maintaining it
in force, the Italian Republic has infringed its
obligations under Articles 5 and 85 of the
Treaty. 28
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
cise of the activities of the CNSD, Article 85
of the Treaty is infringed and, subsequently,
in the second section, the question of attri­
bution of responsibility to the Italian Repub­
lic will be examined. That is because only if
it is shown that the CNSD's activity in rela­
tion to the fixing of a tariff for the services
provided by customs agents constitutes an
infringement of Article 85(1) of the Treaty
will the question of the responsibility of the
Italian Republic have to be investigated.
A — Infringement of Article 85 by the
CNSD
45. I shall first examine the question
whether the occupation of customs agents
constitutes the activity of an undertaking for
the purposes of Article 85 of the Treaty and,
subsequently, whether the CNSD constitutes
an association of undertakings under that
same provision. I shall then deal with the
question whether the CNSD's decisions
imposing a compulsory tariff for the services
provided by all customs agents may be char­
acterised as decisions by an association of
undertakings restrictive of competition
under Article 85 of the Treaty, and lastly
whether those decisions might affect intra-
Community trade.
(1) Does the occupation of customs agents
constitute the activity of an undertaking
within the meaning of Article 85 of the
Treaty?
46. In the course of the hearing, the Italian
Government maintained that the occupation
27 — Cited in footnote 6.
28 — As stated above (footnote 7), in an application lodged in the
Court of First Instance, the CNSD sought the annulment
of that decision. That case (T-513/93) is still pending.
I - 3866
COMMISSION v ITALY
of customs agent is a liberal profession; cus­
toms agents are independent, autonomous
workers, like lawyers, surveyors, or inter­
preters, who cannot be regarded as undertak­
ings under Article 85, since the services they
provide are of an intellectual nature, and the
occupation may be exercised only provided
that the relevant permission has been granted
and certain conditions are satisfied. It main­
tained that the Treaty distinguishes between
independent workers and undertakings, and
between activity as an employee and self-
employed activity, and that it does not fol­
low from the Treaty that a self-employed
activity constitutes an undertaking. In addi­
tion, the organisational element which is nec­
essary to determine whether or not there is
an undertaking is lacking, in other words
there is no unitary organisation of personal,
tangible and intangible elements which pur­
sues a specific economic aim on a long-term
basis. 29 Lastly, the Italian Government
maintained that it was not possible, on the
basis of the law as it stands, to consider that
all self-employed activities are undertakings,
in accordance with Article 85 of the Treaty,
and that legislative amendment would be
necessary to extend application of the com­
petition rules to independent occupations.
47. The Commission pointed out at the
hearing that customs agents are undertak­
ings, according to Article 85, and that Com­
munity competition law is autonomous, not
solely in relation to national law but also in
relation to other rules of Community law.
48. I shall first examine the case-law of the
Court as regards which entities constitute
undertakings under Community competition
law and shall then go on to examine the
substance of the question whether the occu­
pation of customs agent and by extension a
liberal profession 30 may be regarded as an
undertaking. 31
29 — On this point it relics on Case T-11/89 Shell v Commission
[1992] ECR II-757, paragraph 311.
30 — According to Italian law, the organisation of the liberal pro­
fessions is based traditionally on the corporatist model
which seeks, on the one hand, to protect the interests of the
professional category in question and, on the other hand, to
ensure that the specific professional activity is exercised
lawfully. In other words, a distinction is drawn between
undertakings and independent workers with whom the lib­
eral professions arc classified.
31 — I would point out that the Commission has also taken
action subsequently in a decision against a professional
organisation which, by decision, fixes scales of charges for
services provided by the branch in question. Specifically, on
30 January 1995, the Commission adopted Decision
95/188/EC relating to a proceeding under Article 85 of the
EC Treaty (OJ 1995 L 122, p. 37). That decision was
addressed to the Colegio Oficial de Agentes de la Pro-
priedad Industrial (COAPI —Association of Industrial
Property Agents), a legal person governed by Spanish pub­
lic law. The Commission found that the fixing by the gen­
eral meeting of industrial property agents of a scale of
charges which are compulsory, on pain of sanctions, for all
persons requiring services concerning the performance of
the requisite formalities linked to a patent application, the
registering of a trademark or other industrial property
rights and all services concerning renewal and monitoring
of those rights constituted an infringement of Article 85.
The Commission reached that conclusion after first finding
that industrial property agents constitute undertakings for
the purpose of Article 85(1) and that the COAPI, which
incorporates all industrial patent agents, constitutes an asso­
ciation of undertakings under that provision, even though,
under Spanish law, it constitutes a legal person governed by
public law, and that its Regulations, concerning the setting
up of the COAPI and its functioning, constitute both an
agreement between undertakings and a decision by an asso­
ciation of undertakings for the purposes of Article 85(1) of
the Treaty. In addition, the decisions of the general meeting
(and of the administrative board of the COAPI) relating to
the fixing of charges, which are adopted pursuant to the
COAPI Regulations, constitute decisions by an association
of undertakings within the meaning of Article 85(1). Fur­
thermore, the Commission considered that by reason of the
restrictions on prices there was an appreciable restriction of
competition which could affect trade between the Member
States. The Commission emphasised, moreover, that the
COAPI could not disclaim liability by relying on the fact
that its conduct resulted from provisions of law, even if the
Kingdom of Spain could be rendered liable.
I - 3867
OPINION OF MR COSMAS — CASE C-35/96
49. The Court has consistently held that 'the
concept of an undertaking encompasses
every entity engaged in an economic activity,
regardless of the legal status of the entity and
the way in which it is financed'. 32 In other
words, according to that case-law, the con­
cept of an undertaking and consequently of
an economic activity is always given a broad
interpretation. Consequently it is a conditio
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
profit'. 33
50. It is worth pointing out that in order to
decide whether an activity is economic or
not, the Court examines its nature regardless
of the operator exercising the activity. It thus
recognises that 34 'the State may act either by
exercising public powers or by carrying on
economic activities of an industrial or com­
mercial nature by offering goods and services
on the market' 35 and that in order to classify
an activity as a public undertaking the lack
of legal personality separate from that of the
State is not a vital factor. It has stated that 'In
order to make such a distinction, it is there­
fore necessary in each case, to consider the
activities exercised by the State and to deter­
mine the category to which those activities
belong'. 36
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,
and whether they could, in principle, be car­
ried on by a private undertaking in order to
make a profit. It also examined the aims and
the rules to which they were subject. 37 The
Court took into consideration simulta­
neously a series of factors which, taken
alone, do not suffice to preclude an activity
32 — See, for example, Case C-41/90 Höfner and Eher [1991]
ECR I-1979, paragraph 21; in that case the Court consid­
ered that the German Bundesanstalt für Arbeit was an
undertaking, since that agency was engaged in an economic
activity as a separate entity in the employment procurement
sector, acting as an intermediary between job-seekers and
those recruiting staff. See also Case C-55/96 Job Centre
[1997] ECR I-7119 (paragraph 21), which repeated the
solution given in Höfner and Eber, and Case C-244/94
Fédération Française des Sociétés d'Assurances and Others
[1995] ECR I-4013, paragraph 14.
33 — See point 9 of the Opinion of Advocate General Tesauro in
the Eurocontrol case, Case C-364/92 SAT Fluggesellschaft v
Organisation Européenne pour la Sécurité de Ta Navigation
Aérienne (Eurocontrol), judgment in which was given on
19 January 1994 [1994] ECR I-43.
34 — See Case 118/85 Commission v Italy [1987] ECR 2599,
paragraph 7, in which the Court stated (in paragraph 8) that
the Italian Amministrazione Autonoma dci Monopoli di
Stato constituted a public undertaking; it did not have legal
personality separate from the State, but exercised an eco­
nomic activity offering goods and services on the market in
the processed tobacco sector.
35 — For example, in Case 107/84 Commission v Germany
[1985] 2655, in particular at paragraphs 14 and 15, the
Court held that only some of the postal activities exercised
by a public law body may be regarded as the activities of a
public authority in the strict sense.
36 — Case 118/85 Commission v Italy, cited in footnote 34, para­
graph 7. See also Case C-92/91 Taillandier [1993] ECR
I-5383, paragraph 14. In addition, in Case 41/83 Italy v
Commission [1985] ECR 873, paragraph 20, the Court con­
sidered that the schemes introduced by British Telecom, in
the exercise of its statutory powers, must be regarded as an
integral part of BT's business activity.
37 — See Case C-364/92 Eurocontrol, cited in footnote 33, at
paragraph 30, where the Court held that Eurocontrol's
activities relating to the control and supervision of air space,
did not constitute the activities of an undertaking but the
exercise of public powers. In Joined Cases C-159/91 and
C-160/91 Poucet and Fistre [1993] ECR I-637, the Court
held that sickness funds and auxiliary bodies do not exer­
cise an economic activity but 'fulfil an exclusively social
function' (paragraph 18), because their activity is subject to
control by the State (paragraph 14), and 'is based on the
principle of national solidarity and is entirely non-profit-
making' (paragraph 18).
I - 3868
COMMISSION v ITALY
being economic in character and hence not
falling under the competition rules. Specifi­
cally it assessed whether the entity whose
activities were under examination functioned
in compliance with rules laid down by the
administrative authorities, whether, in par­
ticular, it had the power to influence the level
of the consideration sought for the provision
of services to users and whether it aimed to
make a profit.
52. In addition the Court has held that 38 '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
persons, natural or legal ...'. 39 In that same
case, Advocate General Lenz, in his Opin­
ion, stated: 40 'It is clear that the term
"undertaking" must be construed in a func­
tional sense and for that reason unquestion­
ably covers natural persons in so far as they
carry on a business activity'.
53. Economic activity is any activity where
goods or services are offered on the given
market. 41 As the Commission rightly main­
tains, it is beyond all doubt that the activity
exercised by customs agents is of an eco­
nomic nature in the above sense, because it
consists in offering to the undertakings con­
cerned, in return for payment, services con­
cerning the completion of customs formali­
ties, mainly those connected with the import,
export and transit of goods, as well as other
services supplementary to the above, such as,
for instance, the supply of services in the
monetary, commercial and fiscal areas,
including tax litigation. 42
54. Furthermore, I would add that the car­
rying out of customs agents' activities clearly
38 — Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999,
paragraph 11. The case concerned an agreement between a
company (Hydrotherm) and three separate persons, specifi­
cally one natural person and two companies.
39 — It continued (paragraph 11): The requirement of Article
1(1) of Regulation No 67/67 is therefore fulfilled if one of
the parties to the agreement is made up of undertakings
having identical interests and controlled by the same natural
person, who also participates in the agreement. For in those
circumstances competition between the persons participat­
ing together, as a single party, in the agreement in question
is impossible.' Commission Regulation 67/67 of 22 March
1967 concerned the application of Article 85(3) of the
Treaty to certain categories of exclusive dealing agreements
(Official Journal, English Special Edition 1967, p. 10).
40 — See point B(1), sixth subparagraph, of his Opinion in Case
170/83 Hydrotherm, cited above in footnote 38.
41 — See, for instance, Case 118/85 Commission v Italy, cited
above in footnote 34, paragraph 7. It is also possible to find
examples in the Court's case-law where the term 'economic
activity' has been interpreted very broadly. That is the case
where value added tax is applied to the provision of ser­
vices, where it has been held (see Case 235/85 Commission
v Netherlands [1987] ECR 1471, paragraph 15), that 'inas­
much as they carry out independently economic activities
consisting in the supply of services to third parties, in
return for which they receive fees for their own account,
notaries and bailiffs in the Netherlands must be regarded as
taxable persons for VAT purposes, within the meaning of
Article 4(1) and (2) of the Sixth Directive.* The latter is
Directive 77/388/EEC of 17 May 1977 on the harmonisa­
tion of the laws of the Member States relating to turnover
taxes — Common system of value-added tax: uniform basis
of assessment (OJ 1977 L 145, p. 19). In addition the Court,
in the same judgment (Case 235/85), stated, at paragraph 22:
'Consequently, even assuming that in performing their offi­
cial services notaries and bailiffs exercise the powers of a
public authority by virtue of their appointment to public
office, it does not follow that they may enjoy the exemption
provided for in Article 4(5). The reason is that they pursue
those activities, not in the form of a body governed by pub­
lic law, since they are not part of the public administration,
but in the form of an independent economic activity carried
out in the exercise of a liberal profession'.
42 — That is mentioned in Chapter II, entitled 'the Tariff', of the
Annex to the decision of the Italian Minister for Finance of
6 July 1988 (referred to above in footnote 4), which ratified
the tariff for services provided by customs agents adopted
by the CNSD.
I - 3869
OPINION OF MR COSMAS — CASE C-35/96
requires a minimum organisational frame­
work of personal, tangible and intangible ele­
ments (for instance the existence of a fully
equipped office, communications, and so
forth) which have been set up for a certain
purpose, which is the offer of services to the
operators concerned with a view to profit. 43
55. In addition to the above, as the Commis­
sion maintains and as was not disputed by
the Italian Government, customs agents, in
the exercise of their duties, fully assume all
the economic risks involved therein, risks
inherent, moreover, in the exercise of any
economic activity which seeks to make a
profit. 44 That is the risk that the costs of the
various factors intervening in the process of
supplying the services will not be covered by
the payment for the services supplied to
carry out the customs operations. 45 As the
Commission points out, if there is an imbal­
ance between expenses and receipts, it is the
customs agent himself who is required to
make up the administrative deficit and run
the risk of insolvency. Consequently, from
the above factors, taken together, it follows,
in my view, that customs agents, who are
independent professionals exercising an
economic activity, constitute undertakings
for the purpose of Article 85 and the Italian
Government's submissions to the contrary at
the hearing should be rejected as unfounded.
(2) Does the CNSD constitute an associa­
tion of undertakings for the purposes of
Article 85(1) of the Treaty?
56. At the hearing, the Italian Government
maintained that since customs agents are not
undertakings under Article 85, a fortiori the
CNSD does not constitute an association of
undertakings under that article.
57. Again at the hearing, the Commission
stated that the special feature of this dispute
lies in the fact that the tariff for services pro­
vided in customs procedures is not deter­
mined directly and separately by customs
agents, who are undertakings, as provided by
Article 85, but that those tariffs are deter­
mined in common through the CNSD.
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
not incompatible with the special characteristics of the
liberal professions and, accordingly, that they may fall
under the competition rules; see the decision (delibera) of
1 January 1994 in 'Bolletino dell'Autorità Garante della
Concorrenza', No 47/94.
44 — See Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73,
111/73, 113/73 and 114/73 Suiker Unie and Others v Com­
mission [1975] ECR 1663.
45 — I would mention, for example, the cost of equipping and/or
renting and maintaining an office, the costs of telecommu­
nications and the payment of taxes.
I - 3870
COMMISSION v ITALY
58. Accordingly I shall now proceed to
examine the crucial question for the solution
of the dispute, which is whether a profes­
sional organisation, such as the CNSD in
this case, which under Italian law constitutes
a public-law body, 46 acted as an association
of undertakings, under Article 85(1), inas­
much as it is responsible for the determina­
tion of tariffs for services provided by cus­
toms agents.
59. In examining that question it is, I
believe, necessary to cite the pertinent case-
law of the Court. In Case 123/83 BNIC v
Clair, 47 the Court was called upon to rule
on the question whether there was an asso­
ciation of undertakings within the meaning
of Article 85 in the case of BNIC and held
that the members of the administrative board
of that body were 'persons who, although
appointed by the public authorities, were,
apart from the two appointed directly by the
Minister, proposed for appointment by the
trade organisations directly concerned and
who consequently must be regarded as in
fact representing those organisations in the
negotiation and conclusion of the agree­
ment.'
60. That idea of direct representation, as the
Commission appositely describes it, of the
interests of operators in a specific sector has,
let us note, been reiterated by the Court,
which has laid down the conditions in which
the members of certain committees given the
responsibility of fixing tariffs to be applied
to all undertakings exercising a certain activ­
ity may not be regarded as representatives of
the professional undertakings to which they
relate. 48
61. That is the case, according to the case-
law of the Court, where: (a) the members of
the committees in question (tariff commit­
tees) are not bound by orders or instructions
from the undertakings or associations which
proposed them, they cannot be regarded as
meetings of representatives of undertakings
in the sector in question and consequently
can be classified as independent experts 49
and (b) the members of those tariff commit­
tees are bound by law to set tariffs, 50 taking
into account not solely and exclusively the
interests of the undertakings or associations
of undertakings in the sector which
appointed them but of the general interest 51
46 — Under Italian legislation the task of the CNSD is to orga­
nise and coordinate the economic activities of the members
of the professional organisations of customs agents for the
purpose of facilitating the achievement of the aims of an
industrial or commercial character pursued by their mem­
bers.
47 — [1985] ECR 391, paragraph 19. BNIC stands for the Bureau
National Interprofessionnel du Cognac, which constituted
a joint-trade organisation in the cognac sector, whose mem­
bers were appointed by the Minister for Agriculture and
which fixed by decision the prices of distillarne white wines
and cognac.
48 — See, for instance, Case C-185/91 Reiff [1993] ECR I-5801;
Case C-153/93 Delta Schiffahrt*- und Speditionsgesellschaft
[1994] ECR I-2517; Case C-96/94 Spediporto [1995] ECR
I-2883; Joined Cases C-140/94, C-141/94 and C-142/94
DIP Spa and Others [1995] ECR I-3257.
49 — Case C-185/91 Reiff, paragraphs 17 and 24; Case C-153/93
Delta, paragraphs 16 and 18; and DIP, paragraphs 18 and
19.
50 — Or to formulate an opinion on the issue of trading licences
for operating shops (the DIP case).
51 — At the hearing the Commission referred to the example of
lawyers, where the competent minister fixes the tariff of
fees taking account of the public interest.
I-3871
OPINION OF MR COSMAS — CASE C-35/96
and the interests of undertakings in other
sectors or of the users of those services. 52
62. Consequently in view of the Italian leg­
islation in question, it is necessary to exam­
ine the conclusions to which the criteria for
interpretation laid down in that case-law
lead, when applied to this case, as regards the
issue of the classification of the CNSD as an
association of undertakings for the purpose
of Article 85(1). I consider that a bundle of
factors will help us answer the question
whether the CNSD constitutes an associa­
tion of undertakings under Article 85.
63. First, I consider it to be clear under the
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
ber of a national council for that profession,
he represents that profession both externally
and internally, in the relationship of the
council with its members. I would point out
that, according to Article 10 of Law No
1612/1960, the departmental councils of cus­
toms agents are elected by secret ballot from
among those registered in the register of each
department for a term of two years, whilst,
under Article 13 of the same law, the CNSD
is made up of nine members who are
appointed for a three-year term from among
the members of the departmental councils.
Moreover, that is made wholly clear both
from the provisions of the implementing
decree of the Minister for Finance of 10
March 1964, which sets out in detail the pro­
cedure for electing both the departmental
(Article 8 et seq.) and national (Article 22 et
seq.) councils laying down that only duly
registered customs agents may be elected
members of the departmental councils or the
CNSD. 53
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
departmental councils or the CNSD.
65. Consequently the principles of interpre­
tation given by the Court in BNIC v Clair
may a fortiori, as the Commission correctly
maintains, be applied in this case. In BNIC v
CUir the professional organisations simply
proposed the members of BNIC's general
meeting, who were subsequently appointed
by the competent Minister 54 and that did not
prevent the Court from classifying BNIC,
52 — See Case C-185/91 Reiff, paragraphs 18 and 24; Case
C-153/93 Delta, paragraphs 17 and 23; Case C-96/94 Spe-
diporto, paragraphs 24 and 42; and DIP, paragraphs 18 and
31, all cited in footnote 48.
53 — Articles 8, second paragraph, and 22, second paragraph, of
the Ministerial Decree or 10 March 1964 cited above in
footnote 2.
54 — The French Minister for Agriculture.
I - 3872
COMMISSION v ITALY
without hesitation, as an association of
undertakings.
66. Secondly, I consider that the link of rep­
resentation clearly binding the members of
the national councils of the professional
organisation in question with the customs
agents who elected them results by implica­
tion for a further reason. In the applicable
Italian legislation, in particular Article 14(d)
of Law No 1612/1960, the CNSD is
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
relating to the transport of goods by road, 55
the German law relating to river transport, 56
or the Italian law on the retail trade. 57 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
dent 'tariff experts' within the meaning of
the Reiff, 58 Delta 59 and DIP 60 cases.
67. Thirdly, I consider that a further factor
suggests that the CNSD constitutes an asso­
ciation of undertakings. In the Italian legisla­
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
'considerations of public interest' 61 and not
solely the interests of customs agents, by
whom the national councils of that profes­
sional organisation are elected. Conse­
quently, since the Italian law lays down that
the members of the CNSD are customs
agents and because there is no special rule, as
was the case in Reiff, Delta, Spediport and
DIP, we cannot conclude that the CNSD
sets the level of the tariff on the basis of
'considerations of public interest', as the
Commission rightly contends.
68. Another argument which the Commis­
sion uses to support its position lies in the
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,
since they wish to be re-elected and that that
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.
59 — Paragraphs 6 and 16.
60 — Paragraphs 5, 6 and 18.
61 — See, for instance, the cases cited in footnote 48, Reiff (at
paragraph 24), Delta (at paragraph 23) and Spediporto (at
paragraph 24).
I - 3873
OPINION OF MR COSMAS — CASE C-35/96
69. A fourth and last indication that the
CNSD constitutes an association of under­
takings under Article 85 is the fact that after
the recent amendment made by Legislative
Decree No 331/1992, the rule that the
Director-General of Customs and Indirect
Taxes automatically held the chair of the
CNSD has been repealed. That change
heightened the picture that the CNSD is the
direct and exclusive emanation of all those
exercising the profession of customs agent.
70. In view of the foregoing analysis it fol­
lows, in my view, that the CNSD should be
regarded by the Court as an association of
undertakings inasmuch as it is responsible
for determining the tariff for the services
provided by customs agents. In other words,
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
this case the professionals in question) would
be able, using the legal framework of an
association, to conduct themselves without
impediment in a manner restrictive of com­
petition.
71. Clarification of one last issue is, I
believe, necessary. The CNSD has, by law,
a number of other powers. In particular it
is responsible for keeping the national
register of customs agents and the imposition
of disciplinary sanctions on registered
members (Article 14(a) and (c) of Law No
1612/1960). 62 The feature characterising
those powers, however, is that they are not
aimed at laying down rules concerning the
conduct of customs agents on the market of
the supply of services in connection with the
carrying out of customs procedures, as the
Commission states. On the contrary, deci­
sions relating to the power to fix tariffs
undoubtedly involve choices of an economic
nature arrived at by customs agents in a spe­
cific market and, consequently, because it has
that type of power, the CNSD must be clas­
sified with associations of undertakings
under Article 85. 63 Moreover, I think that
the fixing of tariffs for customs agents in the
context of the services provided to their cus­
tomers does not constitute an indispensable
element of the fulfilment of the other powers
62 — The fact that in other Member States too professional
organisations are by law entrusted with similar powers does
not preclude the national legal systems from providing that
the competition rules apply to the fixing of tariffs by those
organisations. For example such fixing of tariffs is expressly
prohibited under French, Finnish and Swedish law. In other
Member States the competent authorities have adopted
decisions finding that national competition rules have been
infringed by professional organisations when fixing the
level of tariffs (that has been the case, for instance, in Ger­
many, Denmark, Spain, Portugal and Belgium).
63 — I would point out that in Case C-364/92 Eurocontrol, cited
above in footnote 33, the Court distinguished between the
powers conferred on that body, finding (in paragraph 28)
that Eurocontrol's activity in collecting route charges was
not an economic activity but could not be separated from
the other activities of public interest carried on by that
body, which acted in the exercise of public powers relating
to the control and supervision of air space. Moreover, in
Case C-343/95 Cab & Figli v SEPG [1997] ECR I-1547,
the Court used the same analytical method and found
(paragraph 25) that 'Article 86 of the EC Treaty is to be
interpreted as not being applicable to anti-pollution surveil­
lance with which a body governed by private law has been
entrusted by the public authorities in an oil port of a Mem­
ber State, even where port users must pay dues to finance
that activity.' Powers had, however, been conferred on that
legal person to intervene rapidly where there was pollution
of the port area (the petroleum port of Genoa). See also
Case 107/84 Commission v Germany, cited in footnote 35
(paragraphs 14 and 15).
I - 3874
COMMISSION v ITALY
conferred on the CNSD by the national leg­
islature. 64
(3) Restriction of competition by the fixing
of a compulsory tariff by the CNSD
72. I now come to examine the question
whether the CNSD's decisions concerning
the imposition of a compulsory tariff for all
customs agents have as their object or effect
the prevention, restriction or distortion of
competition in the context of a specific mar­
ket (that of the services provided by customs
agents in Italian territory), in the sector of
transport, and air transport, of goods.
73. My starting point will be that customs
agents are undertakings under Article 85(1)
of the Treaty and that the CNSD constitutes
an association of undertakings as regards its
decisions determining the conduct of cus­
toms agents in that market.
74. Furthermore, the classification of the
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.
75. In fact the drawing up of the tariff by the
CNSD by its decision of 21 March 1988
constitutes a typical case of direct fixing of
sale prices for the services provided by cus­
toms agents to their customs agents, as the
Commission indeed rightly points out. The
tariff in question provides, for each separate
type of activity (customs formalities or other
associated activities), maximum and mini­
mum amounts to be charged by the customs
agent to the customer. As is set out in detail
in Commission Decision 93/438 (recitals 24
to 36 and 45 to 48 in the preamble), that tar­
iff sets various scales on the basis of the value
or weight of the goods to be cleared or the
particular type of goods or, further, the par­
ticular type of professional service to be pro­
vided (for example services in monetary,
commercial and fiscal areas and any other
area related to customs clearance, including
fiscal litigation (see, in particular, recital 26)).
76. It is, I consider, worth recalling the
CNSD's decision in order to show that the
Commission's arguments are well founded.
64 — As stated above, these include, for example, the keeping of a
register, the imposition of disciplinary sanctions, the settle­
ment of differences in respect of the local powers of depart­
mental councils, etc.
I - 3875
OPINION OF MR COSMAS — CASE C-35/96
77. Under Article 1 of the CNSD'S decision,
'This tariff lays down the minimum and
maximum amounts to be paid for customs
transactions and services provided in the
monetary, commercial and fiscal areas,
including fiscal litigation.'
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
more than the minimum fixed tariff laid
down for a particular category of activity.
79. Lastly, under Article 6 of the CNSD's
decision, only 'the National Council of Cus­
toms Agents shall be empowered to make
specific and/or temporary derogations from
the minimum amounts laid down in this tar­
iff', in other words by a decision with a gen­
eral content concerning all customs agents
and compulsory for all registered customs
agents. Consequently, it follows a contrario
that no customs agent in question may
depart from the minimum prices laid down.
80. To sum up, we can therefore say that the
decision adopted by the CNSD on 21 March
1988 constitutes an agreement restricting
competition, since it is a decision adopted by
an association of undertakings (the CNSD)
for the purpose of laying down a tariff for
the provision of services by customs
agents. 65
(4) Effect on trade within the Community
81. The Commission maintains that because
of the compulsory character of the tariff
fixed by the CNSD trade between the Mem­
ber States is affected.
82. First of all, I would point out that in
accordance with the settled case-law of the
Court 'Article 85(1) of the Treaty does not
require that agreements referred to in that
provision have actually affected trade
between Member States, which, moreover, is
difficult to prove to a sufficient legal standard
in most cases, but requires that it be estab­
lished that the agreements are capable of
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
formulated by the Autorità following a study of profes­
sional organisations and councils of 3 October 1997, point
29 (in 'Guida al Dirito, il Sole — 24 Ore' of 8 November
1997, No 42, p. 102).
I - 3876
COMMISSION v ITALY
having that effect.' 66 Also according to con­
sistent case-law, 'in order that an agreement,
decision or concerted practice may affect
trade between Member States it must be pos­
sible to foresee with a sufficient degree of
probability on the basis of a set of factors of
law or fact that it may have an influence,
direct or indirect, actual or potential, on the
pattern of trade between Member States such
as to give rise to the fear that the realisation
of a single market between Member States
might be impeded.' 67
83. I would also point out that in accordance
with the Court's settled case-law, 68 '[a]n
agreement extending over the whole of the
territory of a Member State by its very
nature has the effect of reinforcing the com-
partmentalisation of markets on a national
basis, thereby holding up the economic inter-
penetration which the Treaty is designed to
bring about.'
84. As the Commission explained in more
detail (paragraph 12 of its application), the
compulsory tariff drawn up by the CNSD
and applicable without exception affects
trade between Member States, within the
meaning of Article 85(1), because there are
various types of import and export transac­
tions within the Community and also
imports and exports of goods between trad­
ers in the Community which require cus­
toms formalities to be completed and conse­
quently may necessitate the involvement of
an independent registered customs agent. 69
85. In particular the following operations
may be required:
(a) Internal transit operations 70 which cover
the sending of goods from Italy to
another Member State, that is to say
from one point in the customs territory
of the Community to another, via a third
country; 71 for example from Italy to
Germany, with transit through Switzer­
land. This is of great significance for
Italy, since a large proportion of goods
66 — See, for instance, Case 123/83 BN IC v CUir, cited above in
footnote 47 (paragraph 22); Case C-219/95 P Ferriere Nord
v Commission [1997] ECR 1-4411, paragraph 19; and the
older Case 19/77 Miller v Commission [1978] ECR 47,
paragraph 15.
67 — Sec, for example, Case C-219/95 P Ferriere Nord v Com­
mission, cited above in footnote 66 (paragraph 20); Case
C-399/93 Oude Luttikhuis and Others [1995] ECR 1-4545,
paragraph 18; and Case 56/65 Société Technique Minière v
Maschinenbau Ulm [1966] ECR 235; and Joined Cases
209/78 to 215/78 and 218/78 Van Landewyck and Others v
Commission [1980] ECR 3125, paragraph 170.
68 — See, for instance, Case 8/72 Vereniging van Cemen-
thandelaren v Commission [1972] ECR 977, and Case 42/84
Remia and Others v Commission [1985] ECR 2545, para­
graph 22.
69 — In recital 52 in the preamble to Commission Decision No
93/438, it is stated: 'Furthermore, in view of the fact that in
Italy in 1990 imports represented some 25% of goods con­
sumed, exports were equivalent to some 18% of gross
domestic product, some 58% of imports were of Commu­
nity origin and around 59% of exports were to other Mem­
ber States, it must be concluded that the effect on trade was
substantial.'
70 — See Articles 163 and 165 of the Community Customs Code
(Council Regulation (EEC) No 2913/92 of 12 October
1992, OJ 1992 L 302, p. 1, hereinafter 'the CCT*), and
Article 381 of the Commission's implementing regulation
(Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation
(EEC) No 2913/92, OJ 1993 L 253, p. 1).
71 — In this case the issue of a transit document (T2) is required
cither at the place of departure of the goods or at the
national customs border post
I-3877
OPINION OF MR COSMAS — CASE C-35/96
sent from the north-western part of the
country to Germany and the Nether­
lands go through Switzerland.
(b) External transit operations 72 which
cover the import into Italy of goods
from a third country and their despatch,
under the transit procedure, to another
Member State and their customs clear­
ance in the Member State of final desti­
nation. 73 The same occurs in a case of
external transit 'on entry', where cus­
toms clearance of the goods imported
into another Member State takes place in
Italy as the State of final destination.
(c) Import and export operations between
Italy and territories which, because of
the applicable provisions of the VAT 74
and excise duty 75 directives, do not con­
stitute part of the fiscal territory of the
Community even though they are part
of the customs territory, but are treated
for the purpose of import and export
operations and transit formalities as third
countries; 76 examples of these are the
islands of Aaland, the Canary Islands
and the French Overseas Departments.
Those formalities are a fortiori necessary
in trade between Italy and certain terri­
tories which are not part of the customs
territory of the Community, such as
Gibraltar and the cities of Ceuta and
Melilla.
(d) Operations relating to trade in goods
falling under the special arrangements of
Article 36 such as, for example, weapons
and drugs, in other words goods in
respect of which, because there is no rel­
evant Community regulation, the Mem­
ber States retain their entitlement to
require, primarily for reasons of public
order or public health, the completion of
customs formalities on entry, exit or
transit via national territory.
(e) Lastly the Commission refers to certain
'triangular' operations, as it describes
operations in which goods belonging to
a Community vendor but from a third
country are purchased by an Italian cus­
tomer to be imported and .cleared for
customs directly in Italy.
86. In the light of the settled case-law of the
Court cited above and the obviously large
number of cases where the services of cus­
toms agents may be needed, I consider it
clear that trade between the Member States
may be affected because of the compulsory
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
Directive, cited above in footnote 41.
75 — Article 2 of Council Directive 92/12/EEC of 25 February
1992 on the general arrangements for products subject to
excise duty and on the holding, movement and monitoring
of such products (OJ 1992 L 76, p. 1).
76 — Article 33a of the Sixth VAT Directive, as amended by
Council Directive 92/111/EEC of 14 December 1992, OJ
1992 L 384, p. 47.
I - 3878
COMMISSION v ITALY
nature of the tariff adopted by the CNSD. In
my view the fact that in its decision (Article
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.
B — Liability of the Italian Republic
87. We have reached the conclusion that the
decision of 21 March 1988 adopted by the
CNSD restricts competition, that is to say, it
falls under the prohibition in Article 85,
because it is a decision adopted by an asso­
ciation of undertakings (the CNSD) for the
purpose of fixing the tariff for the provision
of services by customs agents and that tariff
may affect intra-Community trade.
88. The CNSD was in breach of Article 85
when it exercised the powers conferred upon
it by the Italian legislation. For that reason
we must examine the Commission's argu­
ments to the effect that in addition the Italian
Republic incurs liability for infringement of
Articles 5 and 85 of the Treaty.
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
not intend to lay down rules relating to
undertakings.
90. I would point out in that connection that
the Court has repeatedly stated that Article 5
in conjunction with Article 85 requires the
Member States to comply with the compe­
tition rules. In particular it has held 77 that
'Articles 85 and 86 of the Treaty are con­
cerned solely with the conduct of undertak­
ings and not with measures adopted by
Member States by law or regulation. The
Court has consistently held, however, that,
read in conjunction with Article 5, Articles
85 and 86 of the Treaty require Member
States to refrain from introducing or main­
taining in force measures, even of a legisla­
tive nature, which may render ineffective
the competition rules applicable to undertak­
ings.'
77 — In particular with regard to Article 85 of the Treaty see, for
instance, DIP (paragraph 14), Case C-185/91 Reiff (para­
graph 14), and Case C-153/93 Delta (paragraph 14), all
cited in footnote 48. See also Case 267/86 Van Eycke v Aspa
[1988] ECR 4769, paragraph 16, and Case C-2/91 Meng
[1993] ECR I-5751, paragraph 14.
I - 3879
OPINION OF MR COSMAS — CASE C-35/96
91. Furthermore, as the Court has fre­
quently held, 78 'Articles 5 and 85 are
infringed where a Member State requires or
favours the adoption of agreements, deci­
sions or concerted practices contrary to
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
decisions affecting the economic sphere'. 79
92. I shall examine the Commission's argu­
ments concerning the liability of the Italian
Republic in the following order: First, the
question whether Italian legislation requires
the CNSD to adopt a decision on a compul­
sory tariff for the provision of professional
services by customs agents. Secondly,
whether the Italian legislation reinforces the
effects of the CNSD's decisions fixing that
tariff. Lastly, in the alternative, whether the
Italian legislation transfers to private under­
takings of public authority powers as regards
the fixing of a tariff.
(1) Requirement under the Italian legislation
that the CNSD fix a uniform tariff for the
provision of services by customs agents
93. Pursuant to Article 14(d) of Law No
1612/1960, the CNSD is to 'set the tariff for
the professional services provided by cus­
toms agents'. From that provision it follows
that the CNSD has no discretion but a man­
datory duty, 80 in other words is required, to
draw up the tariff, as the Commission cor­
rectly maintains, 81 even though the Italian
law does not provide for sanctions in the
case of failure to fix a tariff. Apart from that,
that obligation of the CNSD does not mean
that the Italian law does not allow it a wide
78 — Sec DIP (paragraph 15), Case C-185/91 Reiff (paragraph
14), and Case C-153/93 Delta (paragraph 14), all cited in
footnote 48, and Case 267/86 Van Eycke v Aspa, cited in
footnote 77, paragraph 16, and Case 311/85 VVR v Sociale
Dienst [1987] ECR 3801, paragraph 10.
79 — I would point out that in Joined Cases C-359/95 P and
C-379/95 P Commission and France v Ladbroke Racing
[1997] ECR I-6265, paragraph 33, the Court stated that
'Articles 85 and 86 of the Treaty apply only to anti­
competitive conduct engaged in by undertakings on their
own initiative .... If anti-competitive conduct is required of
undertakings by national legislation or if the latter creates a
legal framework which itself eliminates any possibility of
competitive activity on their part, Articles 85 and 86 do not
apply. In such a situation, the restriction of competition is
not attributable, as those provisions implicitly require, to
the autonomous conduct of the undertakings.' (see Joined
Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73
and 114/73 Suiker Unie and Others v Commission, cited in
footnote 44 (paragraphs 36 to 72, and more particularly
paragraphs 65, 66, 71 and 72)). The Court went on to state
(paragraph 34): 'Articles 85 and 86 may apply, however, if it
is found that the national legislation does not preclude
undertakings from engaging in autonomous conduct which
prevents, restricts or distorts competition ....' It concluded
as follows (paragraph 35): 'When the Commission is con­
sidering the applicability of Articles 85 and 86 of the Treaty
to the conduct of undertakings, a prior evaluation of
national legislation affecting such conduct should therefore
be directed solely to ascertaining whether that legislation
prevents undertakings from engaging in autonomous con­
duct which prevents, restricts or distorts competition.'
80 — The indicative 'redige' stands, I should say, for the impera­
tive 'deve redigere'.
81 — That conclusion is also borne out, as the Commission
moreover argues, by the fact that, under the Italian legisla­
tion in force (Article 14(a) and (c) of Law No 1612/1960),
the CNSD is to keep a national register of customs agents
and decide on appeals submitted to it against disciplinary
sanctions imposed by departmental councils. In other
words, the national council of a professional organisation
does not have a discretion but a mandatory duty to keep a
national register of persons who arc entitled to exercise the
particular profession and to decide on appeals against the
decisions of the departmental councils of the organisation
in question, because those are powers essential to its exist­
ence and functioning.
I-3880
COMMISSION v ITALY
margin of discretion. More accurately, Law
No 1612/1960 allows it, in my view, to
choose whether, for instance, it will set for
each operation effected by customs agents
maximum and minimum charges or will sim­
ply lay down certain criteria which the pro­
fessions concerned must comply with when
they determine their charges. Nor, moreover,
does Law No 1612/1960 impose on the
CNSD a certain method of invoicing, such as
individual charges. If the CNSD chose a cer­
tain method it no doubt did so in order to
ensure the effectiveness of the tariff which it
laid down.
94. In addition, according to the Commis­
sion, the power to draw up the tariff con­
ferred on the CNSD by Article 14(d) of Law
No 1612/1960 must be examined not only as
the conferral of a decision-making power on
a highest level of a professional organisation
but also as an obligation flowing from the
public-law status which Italian law ascribes
to the CNSD as a professional organisation.
95. In view of the foregoing, I consider that
it must be held that the Italian legislation in
question requires the CNSD to adopt a
decision relating to the fixing of a uniform
tariff for services provided by customs
agents, even though, under the CNSD's
decision at issue (Article 6), it is competent
to grant special and/or temporary exemp­
tions from the maximum amounts in the
tariff in force and those exemptions are not
subject to any restriction. 82
(2) Reinforcement by the Italian legislation
of the effects of the CNSD's decisions fixing
a tariff for services provided by customs
agents
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
customs agents are not allowed to deviate
from the tariff fixed by the CNSD is rein­
forced, consequently, by that same Law No
1612/1960, which, according to the Commis­
sion (paragraph 15 of its application) gives
legal force to the contractual relationship
under that professional association of those
registered in the register and consequently
can no longer be abolished by the will of the
parties. 83
97. Further, we should note that, pursuant
to the decree of the Minister for Finance of
10 March 1964, 84 those contravening the
82 — That does not, of course, mean that in exercising its powers
the CNSD does not have to comply with the provisions of
Article 85 of the Treaty and, more generally, with any pro­
vision ranking higher than Law No 1612/1960.
83 — As, moreover, was confirmed by Articles 5 and 6 of the
CNSD's decision of 21 March 1988.
84 — Decision cited in footnote 2.
I-3881
OPINION OF MR COSMAS — CASE C-35/96
tariff by charging less or (theoretically at
least) more face disciplinary measures
(Articles 38 and 40), ranging from reprimand
to temporary and definitive suspension from
the register of customs agents, in other
words this is a 'highly effective sanction' 85
against customs agents who are in breach of
their obligations under the law. Those rules
accordingly constitute the legal basis for the
disciplinary measures which the CNSD may
take against customs agents who do not
comply with the maximum and minimum
charges in the tariff fixed by the CNSD, as
laid down for each category of services pro­
vided.
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
force prior to the 1988 tariff was not the sub­
ject of any ministerial approval. 86 Since that
is the situation under Italian legislation and
the Italian Government does not contest that
point, it must be recognised that the Minis­
ter's approval of the tariff fixed by the
CNSD was clearly a formality and has no
special significance that would refute a find­
ing that that decision was taken solely and
exclusively by the CNSD, which was not
obliged to take account of 'considerations of
public interest' as I mentioned in a previous
point. Moreover, that would appear to be
supported by the last recital in the preamble
to the ministerial decree, which is formulated
as follows: 'whereas the relevant procedure
has been properly complied with'; in other
words, on the one hand that approval simply
confirmed that the appropriate procedure
had been followed and on the other hand the
binding effect of the CNSD's decisions pre­
dates that decree and is a direct result of Ital­
ian Law No 1612/1960.
99. As, however, the Commission empha­
sises, the existence of that ministerial decree
of 6 July 1988 gives the CNSD tariff the
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
Ufficiale della Repubblica Italiana, any third
party is presumed to have knowledge of the
tariff. Mainly, however, as the Commission
rightly points out, the fact that that there is a
ministerial decree approving the tariff lends
the tariff fixed by the CNSD an official char­
acter and reinforces its effects. That official
character on the one hand facilitates applica­
tion by customs agents of the charges fixed
in that tariff to all who have recourse to their
services and, on the other hand, has an
unquestionably deterrent effect on customers
who might wish to question the charges
85 — See on this point Case 311/85 VVR v Sociale Dienst, cited
in footnote 78 (end of paragraph 23). In that judgment the
national court raised the question inter alia whether the fact
that a State requires travel agents by law or regulation to
observe prices and tariffs set by tour operators (subject to
sanctions and in particular withdrawal of licences to carry
on business as a travel agent), prohibits agencies from shar­
ing their commission on sales of travel or to give customer
rebates and considers such practices as unfair competition
was incompatible with the obligations of the Member States
under Article 5, in conjunction with Articles 3(f) and 85, of
the Treaty. The Court held (paragraph 24), that it was in
fact incompatible with the obligations of the Member States
under those articles 'where the object or effect of such
national provisions is to reinforce the effects of agreements,
decisions or concerted practices which are contrary to
Article 85.'
86 — It maintains that it was not fortuitous that the tariff of 16
April 1970 was published in the series Foglio inserzioni,
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.
I - 3882
COMMISSION v ITALY
demanded by customs agents and, in conse­
quence, the legality of the uniform tariff
decided upon by the CNSD. 87
(3) Delegation by the Italian legislation to
private economic operators of the power of
the public authorities with regard to the fix­
ing of the customs agents' tariff
100. Lastly, the Commission also examines
the possibility that the fixing of the tariff
might require the intervention of a public
authority for the purpose of protecting some
public interest. Even on that hypothesis, it
maintains (point 18 of its application) that it
is a perfect example of a situation in which
the public authorities 'abandon their pre­
rogatives' 88 to a private professional organi­
sation.
101. Although we concluded previously that
the fixing of the tariff by the CNSD does not
require the intervention of a public authority
for the purpose of protecting some public
interest, nevertheless I shall now examine the
Commission's arguments on that point to
cover the eventuality that the Court decide
otherwise.
102. I shall start with the observation that,
as the Court has repeatedly held, 89 'Articles
5 and 85 are infringed where a Member State
... deprives its own rules of the character of
legislation by delegating to private economic
operators responsibility for taking decisions
affecting the economic sphere'. Conse­
quently it is necessary to examine whether it
could be considered, in the light of the
Court's case-law, that that is the case here.
To that end an assessment is required of a
number of factors in order to conclude with
certainty that in this case the responsibility
for taking decisions affecting the economic
sphere, belonging to the public authorities,
was delegated to private economic operators.
103. First, from the evidence in the file cited
by the Commission, which was not con­
tested by the Italian Government, it appears
that the CNSD has, under Law No
1612/1960 (Article 14(d)), its own decision­
making power rather than the power purely
and simply to formulate opinions or submit
observations, 90 as the Commission rightly
notes.
87 — In the case-law there are instances of measures, similar to
the ministerial decree, taken by competent national authori­
ties and approving agreements in respect of the fixing of air
ticket prices and in that way reinforcing their effects, which
the Court found to be contrary to Articles 5 and 85 of the
Treaty; sec Joined Cases 209/84 to 213/84 Asjes and Others
[1986] ECR 1425, principally paragraph 76, and Case 66/86
Ahmed Saeed Flugreisen and Others [1989] ECR 803, prin­
cipally paragraph 49.
88 — As was precisely held to be the case in Reiff, cited in foot­
note 48 (paragraph 24).
89 — See, for instance, Joined Cases C-140/94 to C-142/94 DIP
(paragraph 15), Case C-185/91 Reiff (paragraph 14) and
Case C-153/93 Delta (paragraph 14), all cited in footnote
48, and Van Eycke, cited in footnote 77 (paragraph 16).
90 — That was the case in Case C-96/94 Spediporto, cited in foot­
note 48 (paragraphs 24 and 25), concerning the fixing in
Italy of tariffs for the transport of goods by road, and in
Joined Cases C-140/94 to C-142/94 DIP, which was also
cited in footnote 48 (paragraphs 18 and 19), concerning the
issue, by mayors, to private undertakings in Italy of licences
tn trade.
I-3883
OPINION OF MR COSMAS — CASE C-35/96
104. Secondly, the Italian Minister for
Finance has no power to nominate the nine
members of the CNSD, who are elected by
the departmental councils. 91 In the light of
its formation and composition it is accord­
ingly more independent than the 'tariff com­
mittees' in Reiff and Delta 92 and the 'central
committee' in the Spediporto case. 93 Further­
more, the CNSD is made up completely of
members of the professional organisations of
customs agents, and that makes it fundamen­
tally different from the central committee in
Spediporto and the 'municipal committees' in
DIP, in which the Court took account of the
fact that the representatives of the traders'
organisations constituted a minority in rela­
tion to all the members of the above joint
bodies.
105. Thirdly, from the Italian legislation
cited it appears that neither the Italian Min­
ister for Finance nor any representative
could take part, even occasionally, in the
meetings of the CNSD as the German Min­
ister for Transport did in Reiff.
106. Fourthly, the Italian legislation at issue
shows that the Italian Minister for Finance
has no power to ensure that the CNSD fixes
the tariff taking 'considerations of public
interest' into account. 94 As already men­
tioned in the previous points, according to
evidence cited by the Commission and not
disputed by the Italian Government, apart
from not having a legal basis and conse­
quently not being a prerequisite of the valid­
ity and applicability of the CNSD's decision,
the Minister's decree approving the tariff
concerned only the legality of the procedure
followed by the CNSD and not the
substance of the measure. 95 In other words
it did not concern the question whether the
measure was in accordance with the require­
ments of public interest, compliance with
which, I would repeat, is not imposed on the
CNSD under the national legislation when it
draws up the tariff.
107. Lastly, as the Commission points out
and was not disputed by the Italian Govern­
ment, nowhere does it appear that the
Minister for Finance could intervene, and
refuse to approve or substitute his own
wishes for the expressed wishes of the
91 — I would reiterate that formerly the Director-General of
Customs and Excise was by law a member of the CNSD
and ex officio its chairman. However Decree-Law No
331/1992 (Article 32) abolished that arrangement. The
CNSD is elected for three years and its members may be
re-elected (Article 13(2) of Law No 1612/1960).
92 — Cited in footnote 48. In those cases the members of the tar­
iff committees were appointed by the German Minister for
Transport
93 — The Italian Minister for Transport appointed the members
of the central committee with which Case C-96/94 Spedi­
porto was concerned.
94 — See, for instance, Reiff (paragraph 24), Delta (paragraph 23)
and Spediporto (paragraph 24), all cited in footnote 48.
95 — As the Commission emphasises and was not contested by
the Italian Government, the previous tariff of 16 April 1970
was valid without a prior ministerial decision while the
CNSD decided on subsequent increases on its own initia­
tive without the involvement of the Minister (which took
place by way of the decision of 15 December 1989). Fur­
thermore, it decided, in complete independence, to allow
exemptions from the tariff to certain categories of users
(such as airmail services) as it had power to do under
Article 6 of the CNSD's decision of 21 March 1988.
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COMMISSION v ITALY
CNSD if he considered that the body was
not acting in compliance with the require­
ments of the public interest. 96
108. In view of the foregoing, should the
Court find that the intervention of a public
authority is required in fixing the tariff, it
should be held that under a system for deter­
mining the level of the maximum and mini­
mum charges for the provision of the ser­
vices of customs agents, such as that
contained in the Italian legislation in ques­
tion (Law No 1612/1960), there is a delega­
tion to private operators of the power of the
public authorities in the area of fixing
charges. Consequently the Italian Republic
has infringed its obligations under Articles 5
and 85 of the Treaty.
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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