Commission of the European Communities v Italian Republic.
Date: 1998-06-18
11 The Commission has instituted three separate sets of proceeding against the Italian legislation.
12 On 24 March 1992 it applied to the Court for a declaration that the Italian Republic had infringed Articles 9 and 12 of the EC Treaty by approving the tariff. That claim was dismissed by judgment of 9 February 1994 in Case C-119/92 Commission v Italy [1994] ECR I-393, on the ground that there was no obligation on the importer to have recourse in all circumstances to the services of a professional customs forwarding agent (paragraph 46).
23 Secondly, it is clear from the general scheme of the rules relating to the action for failure to fulfil obligations that, once the Court has been seised, it has inevitably to deliver a judgment on the merits of the dispute unless the applicant discontinues the action. Accordingly, if the Commission is persuaded that the State has not failed to fulfil the obligations with the breach of which it was charged in the reasoned opinion issued in the context of the first procedure, but has failed to fulfil other obligations incompatible with the former obligations, it cannot simultaneously continue to ask the Court to adjudicate on the said reasoned opinion and initiate a fresh procedure concerning a separate allegation incompatible with the first.
26 With regard to the first plea, apart from the fact that only the sending of the letter of formal notice preceded the delivery by the Court of its judgment in Case C-119/92, it must be pointed out that, by virtue of Articles 155 and 169 of the Treaty, the Commission is the custodian of Community legality. In that capacity, its task is to ensure, in the general interest of the Community, that the Treaty is properly 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 (Case 167/73 Commission v France [1974] ECR 359, paragraph 15).
27 It is therefore for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to judge at what time it will bring an action for failure to fulfil obligations; the considerations which determine its choice of time cannot affect the admissibility of the action (see Case C-317/92 Commission v Germany [1994] ECR I-2039, paragraph 4).
28 Moreover, since the subject-matter of the proceedings brought before the Court is delimited by the reasoned opinion, inasmuch as the application must be founded on the same grounds and pleas (Case 166/82 Commission v Italy [1984] ECR 459, paragraph 16; Case C-234/91 Commission v Denmark [1993] ECR I-6273, paragraph 16; and Case C-296/92 Commission v Italy [1994] ECR I-1, paragraph 11), there is no course of action open to the Commission, where it considers that the national legislation of which it complains infringes other rules of Community law and it wishes to obtain from the Court a declaration to that effect as well, other than to initiate a fresh procedure for a declaration of failure to fulfil obligations in order fully to discharge the duties assigned to it under Articles 155 and 169 of the Treaty.
35 Since independent customs agents are not undertakings, a fortiori the CNSD cannot constitute an association of undertakings within the meaning of Article 85 of the Treaty.
36 It must first be noted that, according to settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétés d'Assurances and Others v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, paragraph 14; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 21), and that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7).
37 The activity of customs agents has an economic character. They offer, for payment, services consisting in the carrying out of customs formalities, relating in particular to the importation, exportation and transit of goods, as well as other complementary services such as services in monetary, commercial and fiscal areas. Furthermore, they assume the financial risks involved in the exercise of that activity (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 [1975] ECR 1663, paragraph 541). If there is an imbalance between expenditure and receipts, the customs agent is required to bear the deficit himself.
38 In those circumstances, the fact that the activity of customs agent is intellectual, requires authorisation and can be pursued in the absence of a combination of material, non-material and human resources, is not such as to exclude it from the scope of Articles 85 and 86 of the EC Treaty.
40 In this connection, it must be borne in mind that the public law status of a national body such as the CNSD does not preclude the application of Article 85 of the Treaty. According to its wording, that provision applies to agreements between undertakings and decisions by associations of undertakings. Accordingly, the legal framework within which such agreements are made and such decisions are taken and the classification given to that framework by the various national legal systems are irrelevant as far as the applicability of the Community rules on competition, and in particular Article 85 of the Treaty, are concerned (Case 123/83 BNIC v Clair [1985] ECR 391, paragraph 17).
44 It follows that the members of the CNSD cannot be characterised as independent experts (see, to that effect, Case C-185/91 Reiff [1993] ECR I-5801, paragraphs 17 and 19; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraphs 16 and 18; and Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19) and that they are not required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the general interest and the interests of undertakings in other sectors or users of the services in question (judgments cited above, Reiff, paragraphs 18 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 17; and DIP and Others, paragraph 18).
48 As regards the question whether intra-Community trade is affected, it need merely be pointed out that an agreement extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the compartmentalisation of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29, and Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22).
53 Although Article 85 of the Treaty is, in itself, concerned solely with the conduct of undertakings and not with measures adopted by Member States by law or regulation, the fact nevertheless remains that Article 85 of the Treaty, in conjunction with Article 5, requires the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings (for Article 85 of the Treaty, see Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; Reiff, cited above, paragraph 14; and Delta Schiffahrts-und Speditionsgesellschaft, cited above, paragraph 14; for Article 86 of the Treaty, see Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 31).
54 Such would be the case if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; Reiff, paragraph 14; and Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14).