DIP SpA v Comune di Bassano del Grappa, LIDL Italia Srl v Comune di Chioggia and Lingral Srl v Comune di Chiogga.
Date: 1995-10-17
14 It should be recalled that, strictly speaking, Articles 85 and 86 of the Treaty are concerned solely with the conduct of undertakings 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 maintaining in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings (as regards Article 85 of the Treaty, see the judgments in Case 267/86 Van Eycke v Aspa [1988] ECR 4769, paragraph 16, Case C-185/91 Reiff [1993] ECR I-5801, paragraph 14 and Case C-153/93 Germany v Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 14; as regards Article 86 of the Treaty, see the judgment in Case 13/77 NV GB-INNO-BM v ATAB [1977] ECR 2115, paragraph 31).
15 The Court has held that Articles 5 and 85 are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see the judgments in Van Eycke, paragraph 16, Reiff, paragraph 14 and Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14).
16 In Reiff (paragraph 15) and Delta Schiffahrts- und Speditionsgesellschaft (paragraph 15), the Court held that, in order to give a helpful answer to the national court, it should first be considered whether the existence of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty could be inferred from rules such as those in question in the main proceedings.
18 Moreover, as expressly indicated in that law, the members appointed or nominated by traders' organizations are present as experts on distribution problems and not in order to represent their own business interests, and in drawing up its opinions the municipal committee is to observe the public interest.
19 It follows from the foregoing considerations that in a trading licence system such as that established by the Italian Law, the opinions adopted by the municipal committee cannot be regarded as agreements between traders which the public authorities have required or favoured or the effects of which they have reinforced.
20 It must next be considered, as the Court stated in Reiff (paragraph 20) and Delta Schiffahrts- und Speditionsgesellschaft (paragraph 19), whether the public authorities have delegated their powers in the matter of trading licences to private economic operators.
24 Articles 3(g), 5 and 86 of the Treaty could apply to rules such as those contained in the Italian Law only if it were proved that that law creates a position of economic strength for 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, the consumers (judgment in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38).
25 The Court has held that 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, in so far as those practices may affect trade between Member States (judgment in Case C-393/92 Almelo and Others v Energiebedrijf IJsselmij [1994] ECR I-1477, paragraph 40).
26 In order to find that a collective dominant position exists, the undertakings in question must be linked in such a way that they adopt the same conduct on the market (judgment in Almelo, paragraph 42).
29 On this point, it is sufficient to observe that rules such as those contained in the Italian Law make no distinction according to the origin of the goods distributed by the businesses concerned, that their purpose is not to regulate trade in goods with other Member States and that the restrictive effects which they might have on the free movement of goods are too uncertain and indirect for the obligation which they impose to be regarded as being capable of hindering trade between Member States (judgment in Case C-379/92 Peralta [1994] ECR I-3453, paragraph 24, and the decisions cited above).