Corsica Ferries France SA v Gruppo Antichi Ormeggiatori del porto di Genova Coop. arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl and Ministero dei Trasporti e della Navigazione.
Date: 1998-06-18
19 The tariffs for the ports of Genoa and La Spezia were published by decrees of 20 October and 27 September 1994 respectively.
23 In that respect, it should be borne in mind that the Court has already held that the President of an Italian district court, adjudicating on an application in ex parte summary proceedings for which provision is made in the Italian Code of Civil Procedure, performs a judicial function within the meaning of Article 177 of the Treaty and that that article does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling (Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 12, and the case-law cited therein).
25 In this case the description of the factual and legal context does indeed appear inadequate in some respects, thus preventing the Court from replying to certain of the questions raised with the precision desired. Nevertheless, the information in the file enables the Court to give a ruling although it will leave open certain aspects of the questions raised.
31 Consequently, legislation such as that at issue in the main proceedings makes no distinction according to the origin of the goods 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 imposes to be regarded as being capable of hindering trade between Member States (Case C-379/92 Peralta [1994] ECR I-3453, paragraph 24, and Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883, paragraph 41).
34 The rules on competition laid down in the Treaty apply to the transport sector (Case C-185/91 Reiff [1993] ECR I-5801, paragraph 12, and Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 12).
35 Articles 85 and 86 of the Treaty are, in themselves, concerned solely with the conduct of undertakings and not with laws or regulations adopted by Member States. However, it is settled law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (Centro Servizi Spediport, cited above, paragraph 20, and the case-law cited therein).
Articles 86 and 90 of the Treaty
36 The national court asks whether there is an abuse, on the part of the Genoa and La Spezia mooring groups, of their dominant position on a substantial part of the common market by virtue of the exclusive rights conferred upon them by the Italian public authorities.
38 As regards the definition of the market in question, it appears from the order for reference that it consists in the performance on behalf of third persons of mooring services relating to container freight in the ports of Genoa and La Spezia. Having regard inter alia to the volume of traffic in those ports and their importance in intra-Community trade, those markets may be regarded as constituting a substantial part of the common market (Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 15, and Case C-163/96 Raso and Others [1998] ECR I-0000, paragraph 26).
39 As far as the existence of exclusive rights is concerned, it is settled law that an undertaking having a statutory monopoly in a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DRP [1991] ECR I-2925, paragraph 31; Merci Convenzionali Porto di Genova, cited above, paragraph 14; and Raso and Others, cited above, paragraph 25).
40 Next, it should be pointed out that although merely creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or if such rights are liable to create a situation in which that undertaking is led to commit such abuses (Case C-41/90 Höfner and Elser v Macrotron, cited above, paragraph 29; Case C-260/89 ERT v DRP, cited above, paragraph 37; Merci Convenzionali Porto di Genova, cited above, paragraph 17; Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077, paragraph 18; Raso and Others, cited above, paragraph 27).
41 It follows that a Member State may, without infringing Article 86 of the Treaty, grant exclusive rights for the supply of mooring services in its ports to local mooring groups provided those groups do not abuse their dominant position or are not led necessarily to commit such an abuse.
44 It must therefore be considered whether the derogation from the rules of the Treaty provided for in Article 90(2) of the Treaty may fall to be applied. To that end, it must be determined whether the mooring service can be regarded as a service of general economic interest within the meaning of that provision and, if so, first, whether performance of that particular task can be assured only through services for which the charge is higher than their actual cost and for which the tariff varies from one port to another, and, secondly, whether the development of trade is not affected to such an extent as would be contrary to the interests of the Community (see, to that effect, Case C-157/94 Commission v Netherlands [1997] ECR I-5699, paragraph 32).
45 It is evident from the file on the case in the main proceedings that mooring operations are of general economic interest, such interest having special characteristics, in relation to those of other economic activities, which is capable of bringing them within the scope of Article 90(2) of the Treaty. Mooring groups are obliged to provide at any time and to any user a universal mooring service, for reasons of safety in port waters. At all events, the Italian Republic could properly have considered that it was necessary, on grounds of public security, to confer on local groups of operators the exclusive right to provide a universal mooring service.
49 The Court has already 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 the responsibility for taking decisions affecting the economic sphere (Centro Servizi Spediporto, cited above, paragraph 21, and the case-law cited therein).
56 According to settled case-law, Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when that restriction is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, and Case C-398/95 SETTG [1997] ECR I-3091, paragraph 16).
60 With regard to the possible existence of a restriction on freedom to provide maritime transport services, it must be observed that the mooring service constitutes a technical nautical service which is essential to the maintenance of safety in port waters and has the characteristics of a public service (universality, continuity, satisfaction of public-interest requirements, regulation and supervision by the public authorities). Accordingly, provided that the price supplement in relation to the actual cost of the service does indeed correspond to the additional cost occasioned by the need to maintain a universal mooring service, the requirement to have recourse to a local mooring service, even if it were capable of constituting a hindrance or impediment to freedom to provide maritime transport services, could be justified, under Article 56 of the EC Treaty, by the considerations of public security relied on by the mooring groups, on the basis of which the national legislation on mooring was adopted.