Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA.
Date: 1991-12-10
9 To answer this question, as it has been reformulated, it should be noted in limine that a dock-work undertaking enjoying the exclusive right to organize dock work for third parties, as well as a dock-work company having the exclusive right to perform dock work must be regarded as undertakings to which exclusive rights have been granted by the State within the meaning of Article 90(1) of the Treaty.
11 As regards, in the first place, the nationality condition imposed on the workers of the dock-work company, it should be recalled, to begin with, that according to the case-law of the Court, the general prohibition of discrimination on grounds of nationality laid down in Article 7 of the Treaty applies independently only to situations governed by Community law in regard to which the Treaty lays down no specific prohibition of discrimination (see for example Case 305/87 Commission v Greece [1989] ECR 1461, paragraphs 12 and 13; Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraph 12).
13 In this respect it should be recalled that Article 48 of the Treaty precludes, first and foremost, rules of a Member State which reserve to nationals of that State the right to work in an undertaking of that State, such as the Port of Genoa company which is at issue before the national court. As the Court has already declared (see, for example, the judgment in Case 66/85 Lawrie-Blum v Land Baden-Wuerttemberg [1986] ECR 2121, paragraph 17) the concept of "worker" within the meaning of Article 48 of the Treaty pre-supposes that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. That description is not affected by the fact that the worker, whilst being linked to the undertaking by a relationship of employment, is linked to other workers by a relationship of association.
14 In the second place, as to the existence of exclusive rights, it should be stated first that with regard to the interpretation of Article 86 of the Treaty the Court has consistently held that an undertaking having a statutory monopoly over a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (see the judgments in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979, paragraph 28; Case C-260/89 ERT v DEP [1991] ECR I-2925, paragraph 31).
15 As regards the definition of the market in question, it may be seen from the order for reference that it is that of the organization on behalf of third persons of dock work relating to ordinary freight in the Port of Genoa and the performance of such work. Regard being had in particular to the volume of traffic in that port and its importance in relation to maritime import and export operations as a whole in the Member State concerned, that market may be regarded as constituting a substantial part of the common market.
16 It should next be stated that the simple fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not as such incompatible with Article 86.
17 However, the Court has had occasion to state, in this respect, that 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, cannot avoid abusing its dominant position (see the judgment in Case C-41/90 Hoefner, cited above, paragraph 29) or when such rights are liable to create a situation in which that undertaking is induced to commit such abuses (see the judgment in Case C-260/89 ERT, cited above, paragraph 37).
21 As regards the interpretation of Article 30 of the Treaty requested by the national court, it is sufficient to recall that a national measure which has the effect of facilitating the abuse of a dominant position capable of affecting trade between Member States will generally be incompatible with that article, which prohibits quantitative restrictions on imports and all measures having equivalent effect (see the judgment in Case 13/77 GB-INNO-BM v ATAB [1977] ECR 2115, paragraph 35) in so far as such a measure has the effect of making more difficult and hence of impeding imports of goods from other Member States.
23 It should be emphasized in the third place that even within the framework of Article 90, the provisions of Articles 30, 48 and 86 of the Treaty have direct effect and give rise for interested parties to rights which the national courts must protect (see in particular, as regards Article 86 of the Treaty, the judgment in Case 155/73 Sacchi [1974] ECR 409, paragraph 18).
26 For the purpose of answering that question it should be borne in mind that in order that the derogation to the application of the rules of the Treaty set out in Article 90(2) thereof may take effect, it is not sufficient for the undertaking in question merely to have been entrusted by the public authorities with the operation of a service of general economic interest, but it must be shown in addition that the application of the rules of the Treaty obstructs the performance of the particular tasks assigned to the undertaking and that the interests of the Community are not affected (see the judgments in Case 311/84 CBEM v Compagnie Luxembourgeoise [1985] ECR 3261, paragraph 17, and in Case C-41/90 Hoefner, cited above, paragraph 24).
27 In that respect it must be held that it does not appear either from the documents supplied by the national court or from the observations submitted to the Court of Justice that dock work is of a general economic interest exhibiting special characteristics as compared with the general economic interest of other economic activities or, even if it were, that the application of the rules of the Treaty, in particular those relating to competition and freedom of movement, would be such as to obstruct the performance of such a task.