61994CC0096_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President, Members of the Court,
1 The Court is faced once again with the question of anti-competitive national rules in this case, the background to which is as follows.
2 Italian Law No 298 of 6 June 1974 establishing the national register of road-haulage operators operating for hire or reward, which lays down rules on the carriage of goods by road and introduces a system of bracket tariffs for the carriage of goods by road, (1) governs the manner in which those tariffs are to be fixed.
3 The register (on which all road hauliers operating for hire or reward must be registered) is kept by a central committee, the composition of which is as follows by virtue of Article 3 of Law No 298:
`The central committee shall be composed of:
(a) a member of the State Council, acting as chairman;
(b) four representatives of the Ministry of Transport and Civil Aviation, one representative each of the Ministries of Industry, Commerce and Crafts, State Holdings, Foreign Trade, Agriculture and Forestry, the Interior, Public Works, Finance and the Treasury;
(c) four representatives of the regions, of whom one shall represent the regions having a special status and three the regions of central, northern and southern Italy, respectively.
The manner of appointment of these representatives shall be laid down by the regulation implementing this law;
(d) twelve representatives of the national associations most representative of road hauliers operating for hire or reward and of national associations representing, assisting and safeguarding the cooperative movement ...
Members of the committee shall be appointed by order of the Minister of Transport and Civil Aviation.
They shall be nominated by:
- the President of the State Council in the case of the member referred to in (a) above;
- the relevant ministers in the case of the members referred to in (b) above;
- the relevant national associations in the case of the members referred to in (d) above.
Of the four representatives of the Ministry of Transport, two shall be selected from amongst the officials of the Directorate General for Civil Traffic Control and Transport under the Concession Scheme (who shall be seconded) and two from amongst the officials of the Directorate General for Coordination and General Affairs.
The implementing regulation shall lay down the requirements relating to the representative nature of the relevant national associations as regards the appointments referred to in (d) above and Article 4(f).
The committee shall elect from amongst its members two vice-chairmen, at least one of whom shall be chosen from among the representatives mentioned in (d) above.
The term of office of members of the central committee shall be five years.'
4 The central committee fixes a bracket of compulsory tariffs on the following terms as laid down in Article 50 et seq. of the Law.
5 Article 52 provides as follows:
`Each tariff shall be calculated using a basic price at the mid-point of the bracket.
The basic price shall be determined having regard to the average cost of the relevant transport services, including commercial expenses, calculated for well-managed undertakings operating under normal conditions as regards utilization of their transport capacity and the market situation in such a manner as to enable transport undertakings to obtain a fair return.
The tariffs may be differentiated according to:
- the circumstances of the transport services, in particular on the basis of the technical and economic characteristics of the consignment;
- transport links;
- delivery times;
- the various tonnage conditions;
- the categories of goods.
In addition, special conditions and prices may be fixed for transport operations depending on the overall tonnage of goods carried by a given undertaking for a given consignor over a given period of time.'
6 The procedure laid down by Article 53 of Law No 298 for setting the tariffs is made up of the following steps:
- the tariffs are proposed by the central committee to the Minister of Transport and Civil Aviation (hereinafter referred to as `the Minister');
- the Minister consults the regions and the representative national trade associations of the economic sectors concerned;
- the Minister consults the Interministerial Committee on Prices.
7 At this point, the Minister has a choice.
8 He may either approve the tariffs and bring them into force by a decree published in the Official Gazette within sixty days of his having received the proposal.
9 Alternatively, he may withhold approval of the committee's proposal and refer it back to the committee, with his observations, within the same sixty-day period.
10 In that case, the central committee either makes new proposals or adheres to its original proposal while submitting counter-observations.
11 If the Minister approves the proposals, he issues a decree to that effect within sixty days of receipt of the new proposals or counter-observations.
12 If the Minister refuses to endorse the new proposals or counter-observations (or if he does not receive them within the time-limit), he may disregard them and adopt, by means of a decree, a tariff differing from that proposed by the committee.
13 The Minister may also, on his own initiative, require tariffs to be amended.
He must consult the central committee, but may disregard its views provided that he has first consulted the representatives of the economic sectors directly affected.
14 The tariffs published specify the maximum and minimum limits of the brackets.
Failure to comply with them makes carriers liable to administrative penalties.
15 Article 13 of the Ministerial Decree of 18 November 1982 (2) authorizes carriers to depart, in certain circumstances, from the compulsory tariffs either by agreement between the consignor and the carrier or pursuant to a collective economic agreement concluded between the most representative carriers' associations on the central committee and users.
16 In 1993, Spedizioni Marittima del Golfo Srl (hereinafter referred to as `Marittima del Golfo') entrusted to Centro Servizi Spediporto Srl (hereinafter `Spediporto') freight forwarding work (including transport and customs formalities) consisting, in particular, of:
- six road transport operations carried out entirely within Italy for the carriage of containers brought from China by sea;
- two road transport operations carried out entirely within Italy for the carriage of containers brought from Indonesia by sea;
- one road transport operation carried out entirely within Italy for the carriage of goods brought from Spain by road.
17 The transport operations were carried out by Italian undertakings.
18 Marittima del Golfo refused to pay the invoice for the freight forwarding and transport services, which had been drawn up in accordance with the provisions of Law No 298, on the ground that it was excessive.
19 Spediporto brought an application for an injunction before the President of the Tribunale di Genova (District Court, Genoa) seeking payment of the sum of LIT 9 839 611. Marittima del Golfo brought preventive proceedings before the President of the Tribunale in order to defend itself against the injunctive proceedings.
20 The President of the Tribunale has referred the following three questions to the Court for a preliminary ruling:
`1. Are Articles 3(f), 5, 30, 85, 86 (and possibly 90) of the EEC Treaty compatible with national legislation which:
(a) Entrusts to a committee whose members (as guardians of the interests of their sector) are representatives of the associations of road-haulage contractors and/or to private agreements, the task of setting the tariffs for the road haulage of goods on behalf of third parties, making those tariffs compulsory for all economic operators upon endorsement by the public authorities in accordance with the procedures prescribed by Laws Nos 162/93 and 298/74 and by the Ministerial Decree of 18 November 1982;
(b) Permits:
- impediments to free price formation;
- the imposition of contractual conditions which are the result of mandatory tariffs being applied which are not calculated by reference to the actual cost of the service provided;
- the extension of the compulsory tariff to every other contract whereby a haulage service is rendered, thus removing that
service from the system of free price formation;
- discrimination between users of transport services according to the tariff adopted;
- the application of different conditions for the same services by permitting hauliers to conclude contracts containing non-standard conditions;
- distortion of the contractual relationship between haulier and customer by exposing the latter to possible legal action brought by the road-haulage contractors for supplementary payment;
- discrimination against users of road transport services depending on the tariff adopted;
- the application of unlike conditions to equivalent services, since road carriers may conclude contracts with derogating terms;
- changes in the contractual relationship between carrier and customer rendering the latter liable to legal proceedings brought by the road carrier for payment of the amount owed;
- a restriction of any reorganization of the supply of road transport designed to meet the needs of customers?
2. Does the statutory monopoly in the carriage of goods by road on account of third parties come within the ambit of Article 90 of the EEC Treaty?
If so, are the rights conferred on authorized contractors capable of constituting abuse of a collective dominant position within the meaning of Article 86 of the EEC Treaty?
Alternatively, is such a monopoly, as regulated by national legislation in the manner described in Question 1, and in so far as it may affect the cost of imported products, capable of constituting a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 30 of the Treaty?
3. Is the definition of "combined transport of goods between Member States" within the meaning of Article 1 of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States, to be interpreted as not detracting from the "effectiveness" of the principle of freedom to provide services applied to maritime transport between Member States and between Member States and third countries, referred to in Article 1 of Council Regulation (EEC) No 4055/86 of 22 December 1986; in other words has the carriage of goods been liberalized even where the maritime journey on a vessel flying a Community flag, between a port of a third country and a port of a Member State, forms part of a combined transport between that country and the Member State?'
21 One preliminary observation concerning admissibility: according to that which the Court has consistently held, (3) a reference for a preliminary ruling made by an Italian judge before whom an application for an injunction has been brought pursuant to Article 633 et seq. of the Italian Code of Civil Procedure is admissible.
Moreover, as the Commission points out, (4) the principle audi alteram partem has been complied with: Marittima del Golfo has been able to state its case in the preventive proceedings which it instituted.
First question
22 The first question essentially asks the Court to rule on the compatibility of the Italian system for fixing road-haulage tariffs with Articles 3(g), 5 and 85, on the one hand, and Articles 3(g), 5 and 86, on the other, and with Articles 30 and 90 of the EC Treaty.
23 There is no doubt that the competition rules laid down in the EC Treaty, in particular those set out in Articles 85 to 90, apply to the transport sector. (5)
(a) Application of Articles 3(g), 5, 85 and 86 of the Treaty
24 Since the judgment in GB-Inno-BM, (6) anti-competitive State measures have been prohibited by Article 3(g) and 5 read together with Article 86 (or 85) of the Treaty:
`... while it is true that Article 86 is directed at undertakings, nonetheless it is also true that the Treaty imposes a duty on Member States not to adopt or maintain in force any measure which could deprive that provision of its effectiveness'. (7)
25 That case-law was refined by the judgment in Van Eycke, (8) in which the Court distinguished between two situations: a Member State infringes Articles 3(g), 5 and 85 of the Treaty (i) where it requires or favours the adoption of agreements, decisions or concerted practices or (ii) where it deprives its legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere. (9)
26 In Reiff (10) the Court applied that dual test to the German legislation on compulsory road-haulage tariffs.
I shall now apply it to the Italian legislation.
27 Under hypothesis (i), Articles 3(g), 5 and 85 of the Treaty are infringed only if there is an agreement, decision or concerted practice.
In the judgments in Meng, (11) Ohra Schadeverzekeringen (12) and Reiff, the Court refused to extend the prohibition of anti-competitive State measures to cases in which the measure makes any agreement ineffective because it has the same effects.
28 Accordingly, it is therefore absolutely decisive to identify and characterize an agreement.
Does the proposal for road-haulage tariffs adopted by the central committee constitute an agreement?
29 The answer is in the negative for at least four reasons:
- the actual composition of the committee, which is made up of seventeen representatives of the public authorities and twelve representatives of the most representative associations of road hauliers, rules out the existence of an agreement: representatives of undertakings in the transport sector are in the minority on the committee;
- the committee's powers are strictly confined to making proposals which are not binding on the Minister;
- the committee is bound to comply with a number of criteria laid down by Law No 298 and specified by Decree No 56 of the President of the Italian Republic of 9 January 1978;
- the committee is not the only advisory body available to the Minister.
He has to take account of the observations of non-economic public bodies, such as the regions, and of the guidelines of the Interministerial Committee on Prices.
30 In the absence of an agreement, have the public authorities delegated to private traders their powers with regard to the fixing of transport tariffs (hypothesis (ii))?
31 In this case, it is not possible to consider that the State has delegated its decision-making power to private traders, since the central committee merely has the power to make proposals and the Minister may substitute his own assessment for that of the committee.
32 Moreover, the mere fact that measures are not adopted until representatives of the trade sector concerned have been consulted is insufficient to constitute a delegation of responsibility within the meaning of the judgment in Van Eycke.
In paragraph 19 of that judgment, the Court observed that:
`... it is apparent from the legislation in question that the authorities reserved to themselves the power to fix the maximum rates of interest on savings deposits and did not delegate that responsibility to any private trader.
That legislation thus has an official character which cannot be called in question by the mere fact, emphasized by the plaintiff in the main proceedings, that according to the preamble to the Royal Decree of 13 March 1986 the decree was adopted following consultations with the representatives of associations of credit establishments.'
33 As for the collective agreements concluded pursuant to Article 13 of the Ministerial Decree of 18 November 1982, it will be noted that they do not have the effect of restricting competition, but, on the contrary, of increasing traders' leeway by providing for an exception to the application of the `bracket' tariffs.
34 In the same way that Article 85 of the Treaty is applicable only if proof is adduced of an agreement, Article 86 cannot be validly relied upon unless an abuse of a dominant position is proved.
35 In the judgment in Hoffmann-La Roche v Commission, the Court defined an abuse of a dominant position as `... a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers'. (13)
36 In accordance with the wording of Article 86 of the Treaty, the Court has held that a dominant position may be held by `one or more undertakings'. (14)
The Court confirmed this recently in the judgment in Almelo and Others:
`Article 86 of the Treaty prohibits abusive practices resulting from the exploitation by one or more undertakings of a dominant position on the common market or in a substantial part of it ... '. (15)
However, the Court pointed out that such a case - a collective dominant position - presupposed that:
`... the undertakings in the group must be linked in such a way that they adopt the same conduct on the market'. (16)
37 Such a situation is completely alien to the structure of the market in question in this case, namely the national road-haulage market in Italy.
As the Commission points out, 200 000 undertakings are operating on that market, most of those undertakings are on a small scale and have a rudimentary organization (`padroncini' or one-man businesses).
They have given rise to numerous trade associations, some of which are represented on the central committee, which are often at loggerheads with one another. (17)
This is borne out by the President of the Tribunale. (18)
Since the existence of an economic link between the various undertakings operating on the market in question is ruled out, there is no point in considering whether an abuse within the meaning of Article 86 of the Treaty is involved.
(b) Application of Article 30 of the Treaty
38 In the order for reference, the President of the Tribunale maintains that Article 30 precludes the application of the Italian legislation on road-haulage tariffs, in particular Article 3 of Law No 298 of 1974. (19)
I disagree for two main reasons.
39 In the first place, I consider that the legislation in question is concerned with the provision of transport services and not with the free movement of goods.
40 According to Article 61(1) of the EC Treaty, `Freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport'.
Consequently, to review national legislation on the carriage of goods on the basis of the provisions of Article 30 of the Treaty would deprive the provisions of Article 59 et seq. of the Treaty of any effectiveness.
In order to avoid that pitfall, I would adopt the analysis set out by Mr Advocate General Lenz in Peralta and his proposal that the scope of the provisions relating to the movement of goods and the movement of services, respectively, should be defined so as `... to connect to the provisions governing the movement of services all situations in which the barrier to the movement of goods is merely the reflection of a barrier to ... services'. (20)
41 Secondly, it has not been shown in the instant case that the legislation on prices at issue, which is applicable, without distinction, to domestic and imported products alike, puts the latter at a disadvantage over domestic products. (21)
Consequently, in accordance with the judgment in Peralta and after observing that the legislation at issue `... makes no distinction according to the origin of the substances transported, its purpose is not to regulate trade in goods with other Member States and the restrictive effects which it might have on the free movement of goods are too uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member States ...', (22)
I propose that the Court should rule that Article 30 of the Treaty does not preclude national legislation of the type at issue in this case.
(c) Application of Article 90 of the Treaty
42 The national court also inquires about the compatibility of the national provisions at issue with Article 90.
43 I would observe that it has not been shown that the undertakings in question are public undertakings, undertakings with special or exclusive rights within the meaning of the Treaty or undertakings entrusted with the operation of services of general economic interest.
Of course, this is a matter for the national court to decide in the light of the criteria laid down by the Court of Justice.
However, it appears from the case file that the undertakings in question in the main proceedings:
- may not be confused with public undertakings (23) or with undertakings entrusted with the operation of services of general economic interest, (24) and
- have not been granted special or exclusive rights within the meaning of the Treaty. (25)
Consequently, the situation of a road haulier in Italy is not comparable to that in which the legislator grants an undertaking a monopoly in a substantial part of the common market. (26) The action taken by the legislator in this case does not eliminate competition on the market by restricting it to one trader, (27) but merely governs access to the market itself and some aspects of the conduct of the undertakings operating on that market. (28)
44 In any event, even if the Italian State had granted special or exclusive rights to road-haulage operators, the Member State or the public authorities in question would have had to have enacted or maintained in force `measures' (29) contrary to the other Treaty provisions which are applicable jointly with Article 90.
45 However, it has proved that there has been no infringement of the competition rules or of any other of the Treaty provisions mentioned by the President of the Tribunale. (30)
Consequently, the provisions of Article 90 of the Treaty are inoperative in this case.
Second question
46 This question on which a preliminary ruling is sought is not clearly put.
I would seem that the national court is asking about the compatibility of the national provisions laid down by statute and regulation which create a `legal monopoly' in road transport (system for the grant of transport licences subject to a quota (31)) with Articles 30, 86 and 90 of the Treaty.
47 In so far as the President of the Tribunale himself states that `... the existence of the aforementioned quota system ... is not relevant, per se, for the purposes of deciding this case ... _' (32) I suggest that the Court should declare the second question inadmissible.
48 As the Court as consistently held, in proceedings brought under Article 177 of the EC Treaty, it has no jurisdiction `... if [the] questions bear no relation to the facts or the subject-matter of the main action and hence are not objectively required in order to settle the dispute in [the main] action ... '. (33)
Third question
49 This question is concerned with the interpretation of the principle of the freedom to supply transport services as implemented by Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States (34) and Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries. (35) Essentially, the Court is asked if that principle precludes the application by a Member State of a system of obligatory tariffs to domestic road haulage carried out by carriers established in the same Member State following maritime transport between a third country and that Member State.
50 I would first ascertain whether the dispute pending before the national court falls within the scope of those Community measures.
51 Directive 92/106 applies solely to combined goods transport operations between Member States. (36)
52 The combined sea/road transport operations which are the subject of the main proceedings originated solely in third countries. (37)
53 It follows that the directive is not applicable in this case.
54 According to Article 1(1) of Regulation No 4055/86, it applies solely to maritime transport, on the one hand, between Member States and, on the other, between Member States and third countries.
55 However, Article 1(4) specifies the definition of maritime transport as follows:
`For the purpose of this Regulation, the following shall be considered "maritime transport services between Member States and between Member States and third countries" where they are normally provided for remuneration:
(a) intra-Community shipping services:
the carriage of passengers or goods by sea between any port of a Member State and any port or off-shore installation of another Member State;
(b) third country traffic
the carriage of passengers or goods by sea between the ports of a Member State and ports or off-shore installations of a third country.'
In other words, the maritime transport service ceases upon arrival at the port or off-shore installation.
As a result, the Community regulation is not applicable in the instant case.
56 Consequently, I propose that the Court should rule as follows:
`1. Articles 3(g), 5, 30, 85, 86 and 90 of the EC Treaty do not preclude the application of national legislation which requires to be applied to national road-haulage operations tariffs fixed by the public authorities on the basis of predetermined criteria at the proposal of a committee consisting of a majority of members representing the public authorities and a minority representing carriers and which makes the possibility of derogating therefrom conditional on the application of collective economic agreements concluded between associations of carriers and users.
2. Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States and Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries do not preclude the application by a Member State of a system of compulsory tariffs for road-haulage operations performed by carriers established in that Member State, even if those operations follow maritime transport operations between a third country and that Member State.'
(1) - GURI No 200 of 31 July 1974.
(2) - Ordinary Supplement to GURI No 342 of 14 December 1982.
(3) - See, for example, the judgment in Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 11 et seq. and the Opinion of Advocate General Darmon in that case, paragraphs 19 and 20.
(4) - Page 15 of the French translation of its observations.
(5) - Judgments in Joined Cases 209 to 213/84 Asjes [1986] ECR 1425 and Case C-185/91 Reiff [1993] ECR I-5801, paragraph 12.
(6) - Case 13/77 GB-Inno-BM [1977] ECR 2115.
(7) - Paragraph 31.
(8) - Case 267/86 Van Eycke [1988] ECR 4769.
(9) - Paragraph 16.
(10) - Cited in footnote 5.
(11) - Case C-2/91 Meng [1993] ECR I-5751.
(12) - Case C-245/91 Ohra Schadeverzekeringen [1993] ECR I-5851.
(13) - Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, third subparagraph of paragraph 38.
(14) - Judgment in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 376 et seq. and judgment of the Court of First Instance in Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others [1992] ECR II-1403, paragraphs 340 et seq.
(15) - Case C-393/92 Almelo and Others [1994] ECR I-1477, paragraph 40.
(16) - Ibid., paragraph 42.
(17) - Observations of the Commission, second paragraph on page 22 of the French translation.
(18) - Order for reference, second paragraph on page 7 of the French translation.
(19) - That provision is set out in section 3 above.
(20) - Paragraph 51 of the Opinion of Advocate General Lenz in Case C-379/92 Peralta [1994] ECR I-3453.
(21) - See, in particular, the Commission's observations, last paragraph on page 24 and the first and second paragraphs on page 25 of the French translation.
(22) - Paragraph 24 of the judgment, cited in footnote 20.
(23) - Article 90(1).
(24) - Article 90(2).
(25) - Article 90(1).
(26) - Judgment in Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 40.
(27) - As has been seen, 200 000 traders are operating on this market (see section 37 above).
(28) - See, to this effect, the French translation of the Commission's observations, p. 26.
(29) - The term `measures' is to be construed as having its broadest possible meaning so as to cover not only measures in the nature of legislation or regulations and individual measures, but also recommendations, incentives, administrative instructions and so on.
(30) - See sections 24 to 40 above.
(31) - Fourth paragraph on page 8 of the French translation of the order for reference.
(32) - Fourth paragraph on page 9 of the French translation of the order for reference.
(33) - Paragraph 14 of the judgment in Corsica Ferries, cited in footnote 26, and the case-law cited in that paragraph.
(34) - OJ 1992 L 368, p. 38.
(35) - OJ 1986 L 378, p. 1.
(36) - See the second paragraph of Article 1 of the directive.
(37) - See section 16 above.