API – Anonima Petroli Italiana SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Others.
Date: 2014-09-04
28. It should be noted, as is apparent from the Court’s settled case-law, that, although it is true that Article 101 TFEU is concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 4(3) TEU, which lays down a duty of cooperation between the European Union and the Member States, none the less requires the latter 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 (see judgments in Cipolla and Others , C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 46, and Sbarigia , C‑393/08, EU:C:2010:388, paragraph 31).
29. Article 101 TFEU, read in conjunction with Article 4(3) TEU, is infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see judgments in Centro Servizi Spediporto , C‑96/94, EU:C:1995:308, paragraph 21; Arduino , C‑35/99, EU:C:2002:97, paragraph 35; and Cipolla and Others , EU:C:2006:758, paragraph 47).
31. In the judgment in Librandi  (C‑38/97, EU:C:1998:454), the Court specified that those findings are not called in question by the fact that the representatives of the economic operators are no longer in the minority on that committee, provided that the tariffs are fixed with due regard for the public-interest criteria defined by law and the public authorities do not delegate their rights and powers to private economic operators in taking into consideration, before the approval of proposals, the observations of other public and private bodies, or even by fixing tariffs ex officio.
33. Moreover, decisions of the Osservatorio are approved by a majority of its members, without a State representative having a right of veto or a casting vote which might make it possible to rebalance power between the public authorities and the private sector, unlike the situation at issue in the judgments in Reiff  (C‑185/91, EU:C:1993:886, paragraph 22); Delta Schiffahrts- und Speditionsgesellschaft  (C‑153/93, EU:C:1994:240, paragraph 21); Centro Servizi Spediporto  (EU:C:1995:308, paragraph 27); and Librandi  (EU:C:1998:454, paragraph 35).
34. A tariff established by a professional organisation such as the Osservatorio may none the less have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are 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 public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgments in Reiff , EU:C:1993:886, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft , EU:C:1994:240, paragraphs 16 to 18 and 23; DIP and Others , C‑140/94 to C‑142/94, EU:C:1995:330, paragraphs 18 and 19; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 44; and Arduino , EU:C:2002:97, paragraph 37).
41. It follows from the foregoing considerations that, in the light of the composition and the method of operation of the Osservatorio, on the one hand, and of the absence both of any public-interest criteria laid down by law in a manner sufficiently precise to ensure that carriers’ and customers’ representatives in fact operate in compliance with the general public interest that the law seeks to achieve and of actual review and of the power to adopt decisions in the last resort by the State, on the other, the Osservatorio must be regarded as an association of undertakings within the meaning of Article 101 TFEU when it adopts decisions fixing minimum operating costs for road transport such as those at issue in the main proceedings.
42. Next, in order for European Union competition rules to apply to the legislation at issue in the main proceedings, which makes the minimum operating costs established by the Osservatorio mandatory, it is necessary for that legislation to be capable of restricting competition within the internal market.
43. It must be stated, in that regard, that the fixing of minimum operating costs, which are made mandatory by national legislation, such as that at issue in the main proceedings, by preventing undertakings from setting tariffs lower than those costs, amounts to the horizontal fixing of mandatory minimum tariffs.
44. As regards the adverse effect on intracommunity trade, it is sufficient to recall that an agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the TFEU is designed to bring about (see judgments in Commission v Italy , EU:C:1998:303, paragraph 48, and Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 45).
46. Lastly, it should however be noted that the legislation at issue in the main proceedings making mandatory a decision of an association of undertakings which has the object or effect of restricting competition or restricting the freedom of action of the parties or of one of them does not necessarily fall within the prohibition laid down in Article 101(1) TFEU, read in conjunction with Article 4(3) TEU.
47. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which a decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives (see judgments in Wouters and Others , C‑309/99, EU:C:2002:98, paragraph 97, and Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato , C‑136/12, EU:C:2013:489, paragraph 53).
48. In that context, it is important to verify whether the restrictions thus imposed by the rules at issue in the main proceedings are limited to what is necessary to ensure the implementation of legitimate objectives (see, to that effect, judgments in Meca-Medina and Majcen v Commission , C‑519/04 P, EU:C:2006:492, paragraph 47, and Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato , EU:C:2013:489, paragraph 54).
53. Furthermore, national legislation is appropriate to ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see judgments in Hartlauer , C‑169/07, EU:C:2009:141, paragraph 55, and Attanasio Group , C‑384/08, EU:C:2010:133, paragraph 51).
55. In any event, the measures in question go beyond what is necessary. First, they do not enable carriers to prove that, although they offer prices lower than the minimum tariffs fixed, they comply fully with the safety provisions in force (see, to that effect, judgments of 2 April 1998 in Outokumpu , C‑213/96, EU:C:1998:155, paragraph 39, and of 13 December 2005 in Marks & Spencer , C‑446/03, EU:C:2005:763, paragraphs 54 to 56).