61991CC0185_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. Does Community competition law prevent a Member State from rendering obligatory, through approval by ministerial order, road haulage tariffs fixed by boards whose members are appointed by the public authority on the basis of nominations from the hauliers?
2. That is the substance of the question referred to the Court in the present case, the background to which is as follows.
3. The Gueterkraftverkehrsgesetz (Law on the carriage of goods by road, hereinafter "the GueKG") introduced a procedure for the fixing of tariffs comprising three stages:
(1) tariff boards made up of experts nominated by undertakings or associations in the industry and appointed by the Federal Minister of Transport (Paragraphs 20a and 21(2) of the GueKG) fix the tariffs.
(2) Advisory Committees made up of representatives of haulage undertakings issue an opinion before each meeting of the tariff boards at which a decision on the fixing of tariffs is to be taken (Paragraph 21a(3) of the GueKG).
(3) The tariffs are officially approved by the Federal Minister of Transport, acting in agreement with the Federal Minister for Economic Affairs. They are made generally applicable and binding by ministerial order (Paragraph 20a(2), (3) and (6) of the GueKG).
4. The abovementioned ministers may act in the stead of the tariff boards if the public interest so requires (Paragraph 20a(4) of the GueKG).
5. The tariffs thus fixed (with their minimum and maximum charges) are binding on undertakings (Paragraph 22 of the GueKG).
6. If the price of a transport operation is lower than the prescribed tariff, the haulier must claim the difference. If it does not do so, the Bundesanstalt fuer den Gueterfernverkehr ("the Bundesanstalt"), a federal office governed by public law, (1) is subrogated to its rights and must claim that difference ° by way of "equalization" ° from the undertaking for which the transport operation was carried out. (2)
7. The facts underlying the main proceedings are as follows: during an inspection the Bundesanstalt ascertained that the haulage undertaking Neukirch and its customer, Reiff, a manufacturer of building materials, had not observed the applicable tariffs.
8. On 13 June 1989, the Bundesanstalt claimed from the latter, by virtue of its subrogation, the difference between the agreed price and the approved tariff. Since Reiff refused to comply, legal proceedings were commenced against it.
9. The Bundesanstalt, whose claim for payment was rejected at first instance, appealed to the Landgericht Koblenz. Reiff contends that Paragraph 20 et seq. of the GueKG are in breach of Article 85(1) and the second paragraph of Article 5 of the EEC Treaty and that the prescribed tariffs are therefore automatically void. The German Government, in its view, infringed the second paragraph of Article 5 of the EEC Treaty by confirming a price agreement prohibited by Community law and thereby depriving Article 85 of its effectiveness. (3)
10. The Landgericht Koblenz, considers that the tariffs are not fixed solely by decision of the Federal Minister of Transport but also by the tariff boards which work independently from any public organization: "in principle, the power to fix tariffs is vested in the tariff boards". (4) It considers that a distinction should be drawn between decisions under private law taken by the tariff boards and the regulatory procedure undertaken by the Minister of Transport and that Article 85 applies also to private tariff agreements preceding an administrative approval.
11. The national court has submitted a question the text of which is set out in the Report for the Hearing,(5) which seeks to determine whether or not the procedure for fixing the tariffs applicable in the Federal Republic of Germany, provided for in Paragraph 20 et seq. of the GueKG, is compatible with the second paragraph of Article 5 and Article 85(1) and (2) of the Treaty.
12. It is appropriate to recall at this stage that, whilst it is not for the Court, in proceedings under Article 177, to give a ruling on the compatibility of rules of internal law with Community law, it nevertheless has jurisdiction
"to supply the national court with all the criteria for interpretation coming within Community law so as to enable that court to determine whether such rules are compatible with Community rules".(6)
13. First, it is necessary to see whether the Community competition rules apply to transport.
14. Title IV of the Treaty, dealing with transport, contains no special provisions on competition. However, it is an established fact that where the Treaty seeks to remove certain activities from the scope of the competition rules it includes an express derogation to that effect.(7)
15. Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway,(8) adopted on the basis of Articles 75 and 87 of the Treaty, applied the fundamental principles laid down by Articles 85 and 86 to the sphere of transport. Thus, Articles 2 and 7 thereof incorporate the prohibition of restrictive arrangements in the same terms as Article 85(1) and (2).
16. In Asjes,(9) the Court held that the objectives of the Treaty, which seeks in particular to ensure that competition is not distorted in the common market, apply also to the transport sector.
17. It follows that both Article 85 of the Treaty and Article 2 of the abovementioned regulation are in principle applicable to the transport sector.
18. National rules, which restrict competition, cannot however be appraised directly and solely by reference to Articles 85 and 86, which relate only to the conduct of undertakings and create no direct obligation for Member States. Therefore in such cases recourse must be had to Article 5.
19. Thus, the Court stated:
"Whilst it is true that the rules on competition are concerned with the conduct of undertakings and not with national legislation, Member States are none the less obliged under the second paragraph of Article 5 of the Treaty not to detract, by means of national legislation, from the full and uniform application of Community law or from the effectiveness of its implementing measures; nor may they introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings".(10)
20. In order to establish whether the rules at issue fall within the terms of that dictum bringing together Article 3(f),(11) Article 5 and Article 85, it is necessary first to define their precise scope ratione materiae. Moreover, that issue was central to the written and oral procedure, in particular when the oral phase was reopened.
21. In order to achieve the aim assigned to it, namely "the establishment of a common market" (Article 2), the Treaty defines certain means of action for the Community, including "the institution of a system ensuring that competition in the common market is not distorted" (Article 3(f)).(12)
22. The Court has emphasized the importance of the link between the competition rules and the objective of integration and unification of the market: "Article 85 ... should be read in the context of the provisions of the preamble to the Treaty which clarify it".(13) In particularly clear terms, the Court had already held in Consten and Grundig v Commission(14) that:
"The Treaty, whose preamble and content aim at abolishing the barriers between States, and which in several provisions gives evidence of a stern attitude with regard to their reappearance, could not allow undertakings to reconstruct such barriers".(15)
23. It has frequently been observed(16) that freedom of competition is not, for the Community, an end in itself but one of the components of "an overall economic policy which includes elements of industrial, structural and integration policy ... implemented by a public authority, which has no objection in principle to intervention in the mechanisms of the market".(17)
24. That in turn has prompted reference to the European tradition of a benevolent attitude towards industrial concentration and government intervention.(18)
25. The Commission' s powers to grant exemptions under Article 85(3), the neutrality of the Treaty as regards conditions of ownership (19) and the considerable room for government intervention determine the balance between Articles 85 and 86.
26. As the Italian Government has emphasized,(20) there is no unitary normative system applicable to competition which imposes the same rules and the same obligations on undertakings and the Member States but, on the contrary, two "sub-systems".
27. First, the first section of Chapter I of Title I of the third part of the EEC Treaty lays down "Rules applying to undertakings". (21)
28. It has been consistently held by the Court that Articles 85 and 86 of the Treaty "concern the conduct of undertakings and not laws or regulations of the Member States". (22) The application of those articles presupposes evidence of specific anticompetitive conduct by undertakings, whether in the form of restrictive arrangements or the abuse of a dominant position, in an identifiable market.
29. The system of supervision and penalties established by Articles 87 to 89 of the Treaty and the regulations adopted for their implementation is intended exclusively for undertakings. Regulation No 17(23) provides for fines to be imposed only on undertakings. Only undertakings are required to notify the Commission if they wish to avail themselves of Article 85(3) (Article 4 of Regulation No 17).
30. A Member State may be concerned by the prohibitions laid down in Articles 85 and 86 if it is the owner of undertakings or is vested with certain powers of control over them. It is essentially as regards its involvement in the economic sphere and not simply as a regulatory authority that it must ensure that public undertakings do not carry out, on the basis of the rights granted to them, agreements or concerted practices in breach of those articles (Article 90(1)).
31. Secondly, the Treaty contains a number of provisions addressed to the Member States which are also conducive to attainment of the common market. Both Articles 30, 52 and 59 and the provisions on State aid, in particular, contribute to the establishment of a large market in which competition must not be distorted.
32. However, the Treaty contains no general provision prohibiting the Member States from laying down rules restricting competition. Compared with other objectives, the establishment of an undistorted system of competition is secondary. Thus, Articles 37 and 90(1) recognize the right of Member States to set up national monopolies ° the most extreme form of restriction of competition ° so that they cannot be denied the right to apply less radical restrictions.
33. That fundamental distinction derives from the difference in the respective roles in the marketplace of the State and undertakings.
34. The State determines its social, economic and monetary policy. It thus necessarily takes measures which restrict competition: for example, the fixing of the discount rate by the central bank, which causes the banking institutions of the Member State to bring their interest rates into line, or regulations concerning the protection of workers, consumers or the environment. Those rules are intended to serve the public interest.
35. Undertakings take an entirely different approach: they seek to achieve profits and promote private interests.
36. That distinction goes to the root of the Treaty.
37. It accounts for the fact that national rules which fix a minimum retail price for petrol are not reviewed under Articles 85 and 86, which concern restrictions of competition, whereas a price agreement between oil companies is.(24) However, those rules must conform to the requirements of Article 30.
38. That distinction also accounts for the fact that the agreement by which all the supermarkets in a Member State decide on the same weekly closing day, so that none of them will secure an advantage by trading seven days a week, falls within the scope of Article 85. On the other hand, national rules prohibiting shops from opening on Sundays do not breach any Community competition rules.(25)
39. Whilst there can be no confusion between the conduct of undertakings and the regulatory activity of Member States, it must nevertheless be observed there may be a close relationship between them. That would be the case, for example, where regulations endorsed a restrictive agreement or, conversely, where an agreement between undertakings took the place of a legislative provision.
40. It is therefore incumbent on the State not to legitimize the anticompetitive conduct of undertakings and not to facilitate any breach of Article 85 or 86 by economic agents.
41. Article 5 requires the Member States to refrain from any measure which might jeopardize the attainment of the aims of the Treaty. It does not follow that they may never restrict competition in any circumstances. Article 5 merely requires them not to undermine the prohibitions laid down by the Treaty with respect to undertakings.
42. It is for that reason that the Court considers that Articles 3(f), 5 and 85 together preclude State rules which require an agreement to be concluded between undertakings or favour or facilitate the conclusion thereof.
43. In Asjes, cited earlier, the French Civil Aviation Code provided that proposed air transport tariffs could be presented to the administration for approval either direct by the air companies or through a trade association. Such proposals might have been the result of concertation, or even cartels, within a trade organization. Thus, that Code, although making no reference to tariff concertation, nevertheless had the effect of tolerating, or indeed facilitating, and confirming restrictive arrangements.
44. The same applied where the Minister of Agriculture adopted an order reinforcing the effects of agreements concluded within the Bureau National Interprofessional du Cognac.(26) A Belgian royal decree reinforcing the effects of agreements between travel agents and tour operators was also contrary to that provision.(27)
45. The Court has emphasized that by embodying in regulations what was originally a purely contractual measure contrary to the competition rules, State rules reinforce agreements between the parties "inasmuch as the rules acquire a permanent character and can no longer be rescinded by the parties."(28)
46. The Court did not exclude the possibility that other situations might be envisaged. Thus, in Leclerc v Au Blé Vert the Court raised, but did not answer, the question whether national legislation which makes it unnecessary for undertakings to engage in conduct of the kind prohibited by Article 85 undermines the effectiveness of that article.(29)
47. That question paved the way for the judgment in Van Eycke and recourse to the "delegation of State power test" laid down therein.(30)
48. Let us look again at the commentary on the Leclerc judgment by Professor Joliet: "The Court did not disapprove of all legislation which, by eliminating competition between undertakings, renders the conclusion of agreements superfluous. It simply raised an objection in principle to the adoption of legislation whereby the State gives up its role and confers on undertakings the powers they require in order to give effect to their policy".(31)
49. Since the Van Eycke(32) and Marchandise(33) judgments, the Court applies a new hypothesis: a Member State which deprives its own rules of their official character by delegating to private traders the responsibility for taking decisions affecting the economic sphere deprives the competition rules applicable to undertakings of their effectiveness.
50. The Court thus applies the "delegation of State power test" mentioned above. In Van Eycke, the Court takes the view that rules are of an official character where the public authorities have reserved the power themselves to fix the maximum rates of return on savings deposits and have not delegated that responsibility to any private agent. That official character cannot be called in question by the fact that the rules were adopted after consultation with the representatives of the associations of credit institutions.(34) In Marchandise, the Court analysed the national rules prohibiting the employment of workers in retail shops on Sunday after midday, finally coming to the conclusion that nothing detracted from their official character.(35) The Court had already expressed the view in Cullet(36) that a public system of compulsory prices which entrusted the direct fixing of prices to the public authority did not lose its official character even if the factors taken into account in fixing the retail prices included the ex-refinery prices fixed by the suppliers.
51. The Court thus draws a distinction between two types of State rules.
52. First, there is legislation which, even if adopted after concertation, does not involve economic agents in the decision-making process and does not have the effect of endorsing, favouring or reinforcing agreements between undertakings (which are merely a reflection of private interests). Such legislation is incontestably of an official character and is not open to criticism under Article 3(f), the second paragraph of Article 5 or Article 86 of the Treaty.
53. Secondly, there are two possibilities ° distinguished from the present case ° mentioned in Van Eycke.(37) The first concerns the reinforcement by a State measure of agreements between undertakings antedating that measure. The second concerns rules which cover and authorize in advance an agreement having a restrictive impact on competition.
54. Can the latter case include rules which delegate to an economic agent the right to determine prices unilaterally, without any agreement?
55. The Van Eycke judgment is based on the combination of Articles 3(f), 5 and 85 of the Treaty. It can therefore cover only conduct by undertakings of the kind referred to in the latter provision and therefore excludes unilateral conduct.
56. The rationale of the Court' s case-law is clear. Whenever, in breach of its obligations under Article 3(f) and the second paragraph of Article 5, a Member State intervenes with regard to the conduct of undertakings in matters of competition, its action is liable to deprive individuals of such rights as they might have under the Treaty and the Community institutions of the exercise of the powers vested in them by the Treaty. The protection of individuals' rights and the application of the competition rules by the Commission would be put in jeopardy if the Member States were able to allow undertakings to do what Articles 85 and 86 prohibit them from doing: "The Treaty ... prohibits any State from distorting the normal course of competition by making it possible for traders to escape its provisions."(38)
57. The approach taken in the case-law whereby Articles 3(f), 5 and 85 are read in conjunction presupposes the existence of an agreement between undertakings, otherwise it would be legally inconsistent. If there is no agreement, is not Article 85 deprived of its substance?
58. As we have seen, there are numerous State rules having a restrictive effect on competition. Must they, even in the absence of any agreement and solely by reason of their effects, be subject to the test under Articles 3(f), 5 and 85? In the absence of any identifiable agreement, is it appropriate to speculate as to whether an agreement could, in the abstract, have had the same effects as the rules at issue?
59. The question whether Articles 3(f), 5 and 85, read in conjunction, apply to State rules adopted in the absence of any agreement but having a restrictive effect on competition must, without any doubt, be answered in the negative.
60. If all State regulations restricting competition were, solely because of their effects, declared to be contrary to the Treaty, would there still be any raison d' être for Articles 30 and 59? Would not the prohibitions they contain thereby be subsumed in the more general prohibition of restricting competition? Let us take the example of national rules prohibiting certain forms of advertising, such as those at issue in the judgment in Yves Rocher.(39) Having been declared contrary to Article 30, would those rules not have a restrictive effect on competition?
61. How should Article 85 be applied in circumstances where one of its essential elements ° the existence of conduct on the part of an undertaking ° is lacking? It does not seem possible that it could. Article 85 is de facto invoked only because it is clear that Articles 3(f) and 5 cannot by themselves create obligations for Member States. It is nevertheless necessary to demonstrate the existence of an agreement.
62. Moreover, I do not think that the reasoning adopted by the Court in relation to Articles 85 and 90 can be transposed to Articles 3(f), 5 and 85.
63. Article 90(1) prohibits the Member States from adopting any measures which place public undertakings and those to which special or exclusive rights have been granted in a situation which they could not attain themselves by independent action without infringing Article 86.(40)
64. It does not follow that the Member States are bound by the same prohibition in the case of rules applicable to an economic sector in which private undertakings operate. If that were the case, any State measure applying restrictions to commercial activity would be liable to be caught by Articles 3(f), 5 and 85.
65. Article 90 does not constitute the application to public undertakings of a general principle prohibiting restrictions of competition by Member States ° the latter, as indicated, are not subject to that prohibition. And the RTT judgment(41), which concerns only an undertaking vested with exclusive rights, cannot, without being improperly stretched, be regarded as pointing in that direction.
66. Finally, whilst the existence of conduct by undertakings is a clear point of reference for the identification of State rules caught by Articles 3(f), 5 and 85, what would be the position in the absence of any such conduct? According to what criterion would it be possible to distinguish, among the State rules having the same anticompetitive effect as an unlawful restrictive agreement, between State measures offending against Articles 3(f), 5 and 85 and those, justified by a superior interest, which would not be unlawful under those articles?
67. Where an agreement between undertakings exists, an exemption may be granted by the Commission under Article 85(3).
68. Article 85(1) is inapplicable to State rules. So is Article 85(3). Furthermore, how could the condition in Article 85(3)(b) be fulfilled where the State rules eliminate competition as regards all the products concerned?
69. If rules cannot be "exempted", how can they be "saved" in relation to Articles 3(f), 5 and 85?
70. Admittedly, Article 104 of the Treaty, concerning the powers of Member States in economic matters, can be invoked in order to render certain rules immune from those provisions.(42)
71. It is true that the specificity of a product or the absence of a common sectoral policy may also be invoked in order to escape the effect of competition rules, as is apparent from Leclerc v Au Blé Vert.
72. But it would be pointless to seek, in relation to State rules, any justifying provisions operating in the area of competition in the same way as Articles 36 and 56 operate in relation to the free movement of goods and the freedom to provide services.
73. It does not seem to me that the Court, in the sphere of competition, can impose its own criteria and, in some degree, become a legislator. Here again, in the event that the Court considered that Article 85 might be applicable to State rules in the absence of agreements between undertakings, I do not think that it could nevertheless hold that rules laying down road haulage tariffs could escape the application of the second paragraph of Article 5 and Article 85 in the name of a superior interest yet to be defined by the Court.
74. That is a further reason prompting me to consider that, taken together, Articles 3(f), 5 and 85 can and must relate only to State rules that are incontestably linked with conduct on the part of undertakings. Only such a link can prove that those rules were adopted with a view to removing certain categories of private traders from the constraints of the competition rules.
75. It is more in conformity both with the letter and with the spirit of the Treaty to examine State rules restricting competition in the absence of any conduct by undertakings by reference to Articles 30 and 36 or 56 and 59. The Court thus has clear criteria for determining whether or not a given instance of State intervention is contrary to Community law.(43)
76. To dissociate Articles 3(f), 5 and 85, taken together, from any conduct on the part of undertakings would, in my view, give rise to legal uncertainty and open the way for unintentional infringements of the Treaty by the Member States. There could be systematic challenges as to whether rules on economic matters were in conformity with Community law.
77. To conclude my observations on this point, a last comment is called for. I do not think that two legal situations having the same effect should necessarily be subject to the same legal requirements. Thus, the Court of First Instance has held that it is not incumbent on an undertaking holding a dominant position to take measures on its own initiative in order to eliminate products which, rightly or wrongly, it considers to be dangerous or at least inferior in quality to its own products. Such conduct is regarded as contrary to the competition rules.(44) On the other hand, State regulations containing provisions to that effect would not be caught by those rules. Similarly, horizontal price agreements between undertakings could not be concluded without infringing Article 85, whilst legislation introducing price control in the public interest will not necessarily be contrary to Community law.(45)
78. Let us return to Reiff.
79. The central issue is therefore this: are we dealing with a procedure whose official character is not affected by the consultation undertaken with the representatives of the economic sector concerned or with a procedure which is a non-State procedure only in form, by means of which those representatives fix the applicable tariffs through a restrictive agreement approved by the public authority?
80. In other words, does the procedure under review display the features of an agreement between undertakings within the meaning of Article 85? Is the role played by the State in that procedure such that it can be regarded as having relinquished its powers in favour of private traders?
81. Let us consider the practical importance of the question before the Court. Does a procedure for the adoption of tariffs, such as that provided for by the GueKG, involve private traders to greater extent than mere "consultation", which the Court regarded as compatible with Articles 3(f), 5 and 85 in Van Eycke?
82. Two factors might be indicative of a cartel: the composition of the tariff boards and the fact that an agreement between undertakings which is not enforceable until it has been approved may be restrictive. There is therefore a real risk of a cartel, which I shall consider first.
83. Rules which
(1) reserve to a Member State the right to determine the criteria for defining the content of the decisions of tariff boards and ensuring that those criteria are observed by means of administrative and judicial supervision, and
(2) ensure that the State is in control at all stages of the procedure,
provide the State with the means of neutralizing that risk. A procedure of that kind makes it possible to exclude the creation of a cartel. That is the second issue to be considered.
84. Let us look at the way in which the members of tariff boards are appointed.
85. In BNIC v Clair, the Court held that
"... Article 85 must be interpreted as covering such an agreement, since it was negotiated and concluded by persons who, although appointed by the public authorities, were, apart from the two appointed directly by the minister, proposed for appointment by the trade organization directly concerned and who consequently must be regarded as in fact representing those organizations in the negotiation and conclusion of the agreement".(46)
86. The Court took account primarily of the factual situation and considered that the members nominated by those organizations were, first and foremost, representatives of them and consequently ° let me add ° the defenders of purely private interests of associations of undertakings.
87. Under Paragraph 21(2) of the GueKG, the members of the tariff boards are tariff experts from the various branches of the long-distance haulage industry who are chosen by the Federal Minister of Transport from the list submitted to him by undertakings or associations of undertakings in the industry. The Minister may nevertheless take part in the meetings of the boards or arrange to be represented at them.(47)
88. What do we understand by the term "tariff expert" here? It is the Bundesverband Deutscher Fernverkehr (BDF),(48) under whose auspices the undertakings in the industry hold meetings, which submits nominations to the minister for appointments to the board. It is not insignificant that between 1988 and 1991 several of those members discharged functions within the BDF and that the others were exclusively owners, managers and senior executives of haulage undertakings.(49) In a judgment of 24 January 1992,(50) the Bayerisches Oberstes Landesgericht stated that "they are not in fact neutral experts who, by reason of their special knowledge are proper persons, for example, to discharge the function of judicial expert, but, rather, they are persons who are nominated to the Federal Minister of Transport by members or groups within the road-haulage industry and are regarded as experts solely by reason of their activities as hauliers".(51)
89. It is true that the members of the boards are not legally the agents of the undertakings or associations which nominated them. Still less do they act under a binding mandate.(52) Does that mean that they are independent of them?
90. Here again it is appropriate to recall the terms of the judgment of the Bayerisches Oberlandesgericht: "It is, however, important not to overestimate the value (of Paragraph 21(2) of the GueKG) having regard to the natural interests of each member of that board. By being appointed to the tariff board by the Federal Minister of Transport, a group of hauliers is brought together in an organizational unit whose task is to draw up regulations governing the development of the market in an industrial sector".(53)
91. The Commission considers(54) that, by virtue of their composition, the tariff boards are "bound" to represent the interests of the road haulage industry.
92. Those are considerations that the national court will take into account when defining the term "tariff expert" under its national law.
93. Finally, as I have indicated, those members are sometimes nominated by organization which are themselves made up of undertakings.
94. As Advocate General Sir Gordon Slynn observed in his Opinion in BNIC v Clair,(55)
"Article 85(1) is not to be read restrictively as referring only to 'associations of undertakings' . It includes 'associations of associations of undertakings' . If the position were otherwise it would be easy for undertakings to sidestep the application of the competition rules".(56)
95. The Court has held that an agreement between associations of undertakings falls within Article 85(1) in so far as their own activity or that of the undertakings that are members of them tends to produce the effects to which that article refers.(57)
96. Let us consider the necessity of official approval.
97. The Bundesanstalt observes that the decision of the tariff boards does not in itself have any binding force.(58) Nor is the agreement binding on the parties to it. It is specifically the State measure approving it that gives it the force of law.(59)
98. That, moreover, was the position in Asjes, in which the arrangements agreed by the undertakings were binding on the parties only upon official approval.(60) Similarly, in BNIC v Aubert, the agreement on production quotas had no raison d' être or effectiveness until extended by State decision to all the undertakings in the sector concerned.(61)
99. The Court does not require, for the combined application of Articles 3(f), 5 and 85, proof of a "perfect" cartel: a cartel created subject to the condition precedent of official approval, the only way of making it binding, is still caught by the latter article. Indeed, it would be illogical for concertation between undertakings, made binding by a State decision, to escape Articles 3(f), 5 and 85 merely because it did not produce effects in itself.
100. By definition, the advantage of regulations is, in the present case, that they endow with general and binding effect an agreement that previously had no such effect. The fact that a decision has no binding effect in itself does not therefore suffice to prevent its being classified as a restrictive agreement.(62)
101. Far from being simple notices, the decisions of the tariff boards are binding on the undertakings and associations of undertakings which nominated their members, as they are for the other undertakings in the industry, subject to the condition precedent of their being approved by the competent ministers.
102. It follows that an agreement concluded within the tariff board is made binding and effective, by the official approval, vis-à-vis the undertakings and associations of undertakings in the sector concerned.
103. Finally, since the staff and other operating expenses of the tariff boards and the hauliers' committees are not borne by the Federal Government,(63) those organizations appear to enjoy a degree of independence from the latter.
104. Are the decisions of those boards therefore decisions of associations of undertakings within the meaning of Article 85(1) of the Treaty? Is not the State' s role here preponderant to such an extent that the rules continue to be State rules, with the result that Articles 3(f), 5 and 85 are inapplicable?
105. I consider that such a procedure for the adoption of tariffs provides the State with the means of obviating the risk of a cartel. That, indeed, is one of the aims of rules of that kind, since they make it possible to render ineffective any tariff board decision which takes account of private interests and vest in the State a genuine power of supervision and of decision.
106. That is the issue which I shall consider now.
107. So long as
° the State retains control over the content of tariff decisions by laying down the applicable criteria, and
° there is supervision, both administrative and judicial, to ensure the observance of those criteria or penalize non-observance,
it cannot be considered that the public authority has delegated the decision to organizations made up of trade representatives.
108. Let us consider those two points.
109. Defining its objectives in Paragraph 7(1) and (2), the GueKG provides that "the Federal Minister shall endeavour to ... provide for an economically judicious distribution of tasks on the basis of prices which are in conformity with the market and fair competition between different types of transport" (Paragraph 7(1)). "The Federal Minister of Transport shall harmonize services and prices for the different modes of transport ..." (Paragraph 7(2)).(64)
110. It is noteworthy that, by introducing a system of price brackets for road haulage, thus reducing price competition between hauliers, a State is in this case pursuing the aim of regulating competition between means of transport.
111. It regulates and rearranges the conditions of competition in order to safeguard the interests of river or rail transport, in particular.
112. State determination of transport prices should also make it possible to take account of the interests of the agricultural sector, medium-sized undertakings and economically weak regions or those which have inadequate transport facilities. (65)
113. If the State does not allow competition unlimited sway as regards prices and intervenes in the market to regulate them, it does so in order to safeguard the interests of economic, social and environmental policy.
114. Thus, decisions such as those taken by the tariff boards cannot be agreements concluded at will by the "representatives" of carriers in a given sector so as to cause their own interests to prevail over the public interests which are the raison d' être of rules of that kind.
115. That is why the GueKG requires the tariff boards to observe a number of rules laid down in Paragraphs 7 and 22(1) thereof:
° prices to be in conformity with market trends,
° prices to be consonant with the requirements of the public interest,
° prices to be consistent with the provision of optimum facilities in the locality concerned,
° prices to be in harmony with the economic situation of the transport undertakings concerned,
° the interests of agricultural enterprises and small and medium-sized undertakings to be safeguarded,
° account to be taken of the situation of economically weak regions and those not easily accessible.
116. Thus, in principle, there is no way in which, in a procedure of that kind, private interests can prevail: one of the preconditions for a cartel is thus not fulfilled. The system is so designed that the board is an instrument of the State to be used for the attainment of objectives set by the State.
117. Two cases may arise.
118. Either the decisions are in conformity with the criteria laid down by the State regulations. They must then be approved.
119. Or they are not in conformity with those criteria and give preference to private interests. Observance of the legal principles is then assured if there is twofold supervision, administrative, on the one hand, and judicial, on the other.
120. The approval procedure is specifically intended to ensure that the tariff board has complied with the legal criteria. The Minister must withhold approval of any decision which does not meet those criteria. Thus, a number of non-approvals have related to decisions that were detrimental to small undertakings.(66)
121. In addition to the possibility of refusal,(67) the Federal Ministers of Transport and of the Economy may themselves fix the tariffs, acting in the stead of the tariff board if the public interest so requires.(68)
122. It will be for the national court to establish whether judicial remedies are available in the event of ministerial approval of a decision not in conformity with the legal criteria.
123. If that is the case, a procedure for the fixing of tariffs of the kind under review will, in all cases, enable its aim to be achieved: the regulation of conditions of competition on the basis of the criteria laid down by the Member State.
124. If the tariff board were to depart from those criteria, approval would be refused. The Minister must withhold approval if the legal criteria are not met.
125. Finally, if the Minister were to endorse a decision not conforming to the criteria, his approval might be the subject of an application to the courts.
126. Rules of that kind do not endorse an agreement between undertakings which antedates them. They do not render enforceable an agreement concluded without the involvement of the administrative authorities. They organize, regulate and impose tariffs under a State procedure. There is thus, without any doubt, an active State policy underlying the procedure, not simply a private initiative.
127. By contrast with the position in Asjes (in which the administration endorsed an existing price agreement) or BNIC v Aubert (in which the administration reinforced by an order the effects of agreements concluded without its involvement, relating to trading quotas contrary to Article 85) or BNIC v Clair (in which the representatives of two families within the BNIC were empowered to conclude within that body a price agreement in which the government commissioner had had no part), the State imposes tariffs which it has caused to be brought into being and of which it verifies the conformity with the legal criteria.
128. Price competition is restricted in the road haulage sector by reason of the rules themselves and not as a result of a private initiative. Whilst the application for extension of the BNIC agreement came exclusively from undertakings represented within it, here the approval procedure is undertaken on the initiative of the State alone. There is no longer any question of a dialectical relationship between the State and the undertakings, in which the former takes over agreements concluded by the latter.
129. Finally, a tariff-setting procedure cannot lose its official character where the involvement of the authorities starts in the essential phase of negotiations and determination of the tariff. It will be remembered that the Federal Minister of Transport is entitled to take part in the meetings of the tariff boards and their advisory committees or to be represented at them. He may delegate authority in that regard to officials of the Bundesanstalt.(69) Moreover, the role of the State in the determination of tariffs is clear from the letter of 19 April 1991 in which the Federal Ministers of Transport and of the Economy called on the tariff boards to introduce greater flexibility into the tariffs and to extend both the upper and lower limits of the bracket of rates. (70)
130. There is thus nothing to indicate that rules of the kind under review are contrary to the combined provisions of Articles 3(f), 5 and 85 of the Treaty, although that cannot of course prejudge the applicability of other provisions of Community law.
131. I therefore propose that the Court, in accordance with its consistent case-law, rule as follows:
Articles 3(f), 5 and 85 of the EEC Treaty do not preclude, for the fixing of road haulage tariffs, national rules which grant powers to boards made up of members appointed by the public authority on the basis of nominations from undertakings or associations of undertakings in the industry concerned, provided that the decisions of those boards are required to conform with criteria laid down by the public authority, it being understood that, in the event of those criteria not being complied with, the decisions should not be approved by that authority, they may be replaced by an administrative decision and, in any event, may be subject to judicial review in court proceedings which may be brought against the decision granting official approval.
(*) Original language: French.
(1) ° Whose task under the law is to ensure observance of the tariffs, the transport conditions and the provisions concerning permits (Paragraph 54 of the GueKG).
(2) ° Paragraph 23(3) of the GueKG.
(3) ° Judgment of the national court, p. 7.
(4) ° Ibid., p. 13.
(5) ° Paragraph III-4.
(6) ° Case 223/78 Grosoli [1979] ECR 2621, paragraph 3.
(7) ° See the judgment in Joined Cases 209/84 to 213/84 Asjes [1986] ECR 1425, paragraph 40.
(8) ° OJ, English Special Edition 1968 (I), p. 302.
(9) ° Judgment cited in note 7 above, paragraphs 36 and 42. Regarding air transport, see also the judgment in Case 66/86 Ahmed Saeed v Zentrale zur Bekaempfung unlauteren Wettbewerb [1989] ECR 803. See also the judgment in Case 167/73 Commission v France [1974] ECR 359, paragraph 32.
(10) ° Judgment in Case 229/83 Leclerc v Au Blé Vert [1985] ECR 1, paragraph 14. Cases consistent therewith: Case 13/77 INNO v ATAB [1977] ECR 2115, paragraph 31; Asjes, cited above, paragraph 71; Case 311/85 VVR [1987] ECR 3801, paragraph 10; Case 136/86 BNIC v Aubert [1987] ECR 4789, paragraph 23; Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16.
(11) ° That article is not in fact mentioned in the preliminary question.
(12) ° That article does not impose a general obligation on the Member States not to restrict competition (see in that regard G. Marenco, Le Traité CEE interdit-il aux États membres de restreindre la concurrence?, CDE 1986, p. 285, and D. Waelbroeck, Application des règles de concurrence du traité de Rome à l' autorité publique, Revue du marché commun, January 1987, No 303, p. 25).
(13) ° Judgments in Case 32/65 Italy v Council and Commission [1966] ECR 389, at 405) and in Joined Cases 100-103/80 Pioneer [1983] ECR 1825, paragraph 107.
(14) ° Joined Cases 56/64 and 58/64 [1966] ECR 299.
(15) ° Ibid., at 340.
(16) ° See, for example, G. Wils, La rule of reason en droit de la concurrence de la CEE, CDE, 1990, p. 19, paragraph 16, or G. Marenco, op. cit., p. 289.
(17) ° G. Wils, op. cit. paragraph 16. See also the introduction to the Fourteenth report on competition policy, 1984, p. 11: The objective of competition policy is thus to ensure that competition is allowed to have these beneficial effects, and, in the process, help mould the Community into a genuine common market. This does not mean that the market must always be given a free rein in regulating economic activity: in some circumstances untrammelled market forces could stifle or even eliminate competition. Competition policy must strike a balance between reliance on market forces to maintain competition and selective intervention where necessary ° cited by G. Wils, op. cit., p. 37.
(18) ° E. Fox, Monopolization and Dominance in the U.S. and the E.C. Efficiency, Opportunity and fairness, Notre Dame Law Review, 1986, p. 982, cited by G. Wils, cited above, paragraph 15.
(19) ° See the commentary on Article 222 in V. Constantino and Others, Commentaire du traité, article par article .
(20) ° Answers to the questions put by the Court.
(21) ° Emphasis added.
(22) ° Judgment in VVR, cited above, paragraph 10.
(23) ° The first regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition 1959-62, p. 87.
(24) ° See the judgment in Case 231/83 Cullet v Leclerc [1985] ECR 305, paragraph 13.
(25) ° See the judgment in Marchandise, cited above, paragraph 22.
(26) ° Judgment in BNIC v Aubert, cited above, paragraph 23.
(27) ° Judgment in VVR, cited above, paragraph 23.
(28) ° Ibid.
(29) ° Judgment cited above, paragraph 16.
(30) ° Hoffman, Anti-competitive State legislation condemned under Articles 5, 85 and 86 of the EEC Treaty: how far should the Court go after Van Eycke?, (1990) 1 ECLR, p. 22.
(31) ° Fordham International Law Journal, Vol. 12, p. 163, at 172.
(32) ° Judgment cited above, paragraph 16.
(33) ° Judgment in Case C-332/89 [1991] ECR I-1027.
(34) ° Judgment in Van Eycke, paragraph 19.
(35) ° Paragraph 23.
(36) ° Cited above, paragraph 17.
(37) ° See paragraph 16.
(38) ° My Opinion in Leclerc v Au Blé Vert, [1985] ECR 2, paragraph 8.
(39) ° Case C-126/91 [1993] ECR I-2361. The provision at issue was Paragraph 6 of the German Law on unfair competition.
(40) ° Case C-18/88 RTT v GB-INNO-BM [1991] ECR I-5941, paragraph 20.
(41) ° Cited above, note 40.
(42) ° See the Opinion of Advocate General Mancini in Van Eycke, in particular paragraph 3 ([1988] ECR 4784).
(43) ° See to that effect U. Ehricke, State intervention and EEC competition law: opportunities and limits of the European Court of Justice' s approach ° a critical analysis of four key cases World Competition, 1990, No 1, pp. 79-102.
(44) ° Paragraph 118 of the judgment in Case T-30/89 Hilti [1991] II-1439. That judgment is the subject of an appeal to the Court of Justice.
(45) ° Paragraph 30 of the judgment in Case 5/79 Buys [1979] ECR 3203.
(46) ° Paragraph 19, emphasis added.
(47) ° Paragraph 21(b)(3) of the GueKG ° see below.
(48) ° German Federation of Road Hauliers.
(49) ° Ibid., annex 6.
(50) ° Which referred a question to the Court of Justice (Case C-48/92 Wimmer).
(51) ° P. 9 of the French translation.
(52) ° They receive no mandate and no instructions (fourth sentence of Paragraph 21(2) of the GueKG).
(53) ° P. 9 of the French translation.
(54) ° On this point, see the Commission' s observations, p. 13. See also, to the same effect, Dolfen, Der Verkehr im europaeischen Wettbewerbsrecht, 1991, p. 163, who also points out that the members of the tariff boards who cease to belong to the associations which nominated them cease to be members of the board.
(55) ° Judgment cited above.
(56) ° [1985] ECR at 396.
(57) ° Judgment in Case 71/74 Fruho v Commission [1975] ECR 563, paragraph 30.
(58) ° See its observations, p. 10.
(59) ° Paragraph 20a(6) of the GueKG.
(60) ° See the observations of L. Gyselen in State action and the effectiveness of the EEC Treaty' s competition provisions, 1989 CMLR, paragraph 3.2.1.
(61) ° L. Gyselen, op. cit., paragraph 3.2.3.
(62) ° See the Bundesanstalt' s observations, p. 16.
(63) ° See the order of the Federal Minister of Transport of 21 November 1969, annex 2 to the Commission' s observations.
(64) ° Emphasis added.
(65) ° Paragraph 22(1) of the GueKG.
(66) ° See applications Nos 1361/64 and 1434/85 referred to in Annex 2 to the German Government' s observations.
(67) ° Paragraph 20a(3) of the GueKG.
(68) ° Paragraph 20a(4) of the GueKG. The Ministers of Transport and the Economy may also, on their own initiative, cancel orders fixing tariffs if the public interest so requires (Ibid.).
(69) ° Paragraph 21b(3) of the GueKG.
(70) ° See Annex 3 to the Commission' s observations. It should be added that the Minister of Transport fixes all the other important conditions of the transport contract (Paragraph 20a(5) of the GueKG).