CJEC, 2nd chamber, October 1, 1998, No C-38/97

THE COURT (Second Chamber),

1 By order of 30 December 1996, which was received at the Court on 27 January 1997, the Giudice di Pace di Genova (Magistrates' Court, Genoa) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty six questions on the interpretation of Articles 3 (f) and (g), 5, 85 and 86 of the EC Treaty in order to enable it to rule on the compatibility with Community law of the Italian legislation relating to the fixing of road haulage tariffs.

2 Those questions have been raised in proceedings brought by Autotrasporti Librandi Snc di Librandi F. & C. (hereinafter `Librandi') against Cuttica Spedizioni e Servizi Internazionali Srl (hereinafter `Cuttica') for payment of the balance of the price of road transport services performed for Cuttica.

Legal background

3 In Italy, the road-haulage sector is governed by Law No 298 of 6 June 1974 establishing the national register of road-haulage operators operating for hire or reward, laying down rules on the carriage of goods by road and introducing a system of bracket tariffs for the carriage of goods by road (GURI No 200 of 31 July 1974, hereafter `the Italian Law'). That Law has been amended and supplemented several times.

4 The Italian Law established a national register of road-haulage operators operating for hire or reward (hereinafter `the register'), the keeping of which is entrusted to a central committee. Under Article 3 of that Law, this committee was originally composed of:

`(a) a member of the State Council, acting as chairman;

(b) four representatives of the Ministry of Transport and Civil Aviation; one representative of each of the Ministries of Industry, Commerce and Crafts, State Holdings, Foreign Trade, Agriculture and Forestry, the Interior, Public Works, Finance and the Treasury;

(c) four representatives of the regions ...;

(d) 12 representatives of the national associations most representative of road hauliers operating for hire or reward and of national associations representing, assisting and safeguarding the cooperative movement, as legally recognised by the Ministry of Labour and Social Welfare ...'.

5 The Ministerial Decree of 2 February 1994 (GURI No 34 of 11 February 1994) increased from 12 to 17 the number of representatives of national associations of road-haulage operators on the central committee for the register (hereinafter `the central committee').

6 The members of the central committee are appointed by decree by the Minister for Transport and Civil Aviation. Appointments are made upon nomination by:

`- the President of the Council of State for the member referred to in (a);

- the respective ministers for the members referred to in (b);

- the respective national associations for the members referred to in (d)'.

7 Under Articles 1 (3), 26 and 41 of the Italian Law, road haulage for hire or reward is subject to entry on the register and to the grant of a permit by the authorities.

8 Article 50 et seq. of the Italian Law lays down a system of compulsory bracket tariffs subject to maximum and minimum limits.

9 Article 52 of the Italian Law provides:

`Each tariff shall be calculated using a basic price at the mid-point of the bracket. The basic price shall be determined having regard to the average cost of the relevant transport services, including commercial expenses, calculated for well-managed undertakings operating under normal conditions as regards utilisation of their transport capacity, and to the market situation in such a manner as to enable transport undertakings to obtain a fair return.'

10 Article 53 of the Italian Law provides that the transportation tariffs and any special conditions governing their application, as well as any subsequent changes to them, are to be proposed by the central committee to the Minister for Transport and Civil Aviation. After consulting the regions and the representative national trade federations of the economic sectors directly concerned, the Minister approves the tariffs, the conditions governing them and any changes made to them and brings them into force by decree.

11 If the Minister does not approve the proposals, he refers them back to the central committee with a request for new proposals or counter-proposals. If the Minister does not consider those new proposals or counter-proposals to be satisfactory, he may amend the proposals originally submitted and bring them into force by decree.

12 Failure to comply with the tariffs laid down renders economic operators liable to administrative penalties and, where the offence is repeated, to disciplinary measures.

13 The criteria for calculating the bracket tariffs were specified, in particular, in Decree No 56 of the President of the Italian Republic of 9 January 1978 (GURI No 77 of 18 March 1978).

14 The Ministerial Decree of 18 November 1982 (Supplement to GURI No 342 of 14 December 1982), which brought into effect the initial determination of the bracket tariffs, authorised certain derogations from the compulsory tariff. Article 13 of that decree provides:

`special contracts may be concluded on different terms ... solely pursuant to collective economic agreements entered into between the most representative carriers' associations on the central registration committee and users ...'.

15 Article 3 of Decree-Law No 82 of 29 March 1993 concerning urgent measures in respect of the sector of road haulage for hire or reward (GURI No 73 of 29 March 1993), as transposed, following amendment, by Law No 162 of 27 May 1993 (GURI No 123 of 28 May 1993), then provided that any contractual term derogating from the tariffs laid down by the Italian Law and/or the collective agreements provided for by the Ministerial Decree of 18 November 1982 was not permissible.

16 The bracket tariffs have been amended several times by ministerial decrees. At the time of the facts in question, the applicable tariffs were those resulting from the adjustments made by the Ministerial Decrees of 24 March 1995 (GURI No 74 of 29 March 1995) and of 26 June 1995 (GURI No 151 of 30 June 1995).

The main proceedings

17 Librandi was commissioned by Cuttica to effect certain transport of containers. When the transport operations had been carried out, Cuttica paid to Librandi a sum lower than that resulting from the Italian Ministerial Decrees of 24 March and 26 June 1995 fixing the mandatory tariffs for the carriage of goods by road for hire or reward.

18 By summons of 18 June 1996 Librandi consequently asked the Guidice di Pace di Genova to order Cuttica to pay the difference between the sum paid and the sum due under the tariff made mandatory by the aforementioned ministerial decrees.

19 Cuttica contested that claim on the ground that Article 3 of Decree-Law No 82 of 29 March 1993, in so far as it covers different sectors of the tariff regime laid down for the transport of goods by road, was incompatible with the principles laid down by the Court in its judgment in Case C-320/91 Corbeau [1993] ECR I-2533 and that the tariffs laid down in the Ministerial Decrees of 24 March and 26 June 1995 following the increase in the number of representatives of national associations of road transport hauliers on the central committee were contrary to the principles laid down by the Court in its judgment in Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883.

20 The national court is not sure whether, in view of the judgment in Centro Servizi Spediporto, cited above, the Ministerial Decrees of 24 March and 26 June 1995, laying down the mandatory tariffs governing the transport services in question, should not be declared inapplicable on the ground that they were adopted on the basis of legislation incompatible with the rules of Community competition law.

21 The national court considers, in particular, that in Centro Servizi Spediporto the Court did not address the question of the compatibility with Community law of extending the mandatory tariff scheme to any contract under which a transport service is provided and that it had to determine whether Article 3 of Decree-Law No 82 of 29 March 1993, which has now become Law No 162-93, might cause unjustified unequal treatment.

22 The national court also points out that, following the judgment in Centro Servizi Spediporto, the Italian Government increased the number of road haulier representatives on the central committee. Since then, the body which makes proposals is no longer representative of the public authorities but of the interests of undertakings and associations of undertakings in the road transport sector. In those circumstances, it is necessary to clarify further the notion of `public interest' used by the Court in its judgment in Centro Servizi Spediporto.

23 Finally, the national court enquires whether the collective agreement in question is lawful in Community law, binding equally on the parties which are not members of the associations which are signatories to it, and not a restrictive agreement on tariffs prohibited by Article 85 of the Treaty.

24 Consequently, the Giudice di Pace di Genova has decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

`1. Is national legislation which provides for mandatory tariffs for the carriage of goods by road to be approved and brought into force by the public authority on the basis of a proposal from a committee on which interested economic operators are in the majority (Ministerial Decree of 2 February 1994) compatible with Articles 3 (f) and (g), 5, 85 and 86 of the Treaty, as interpreted by the judgment of the Court of Justice of 5 October 1995 in Case 96-94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo?

2. If the answer to Question 1 is in the affirmative: is a national provision (Article 3 of Decree Law No 82-93 transposed by Law No 162-93), which extends mandatory tariffs in the field of contracts for road haulage services to cover other types of contract relating to different services, such as, in particular, contracts whereby a contractor undertakes to achieve a particular result (contratti di appalto) and/or contracts for hire, compatible with Articles 3(f) and (g), 5, 85 and 86 of the Treaty?

3. Does the concept of "general interest" referred to by the Court of Justice in the judgments in Reiff and Delta correspond to the concept of "public interest" mentioned by the Court, in a similar legal situation, in the judgment in Centro Servizi Spediporto v Spedizioni Marittima del Golfo?

4. Is that concept ("general interest" and/or "public interest") defined by Community law or left to the competence of the individual Member States?

5. In particular, can that concept cover a national situation such as that described in the main proceedings in which:

(a) the tariff proposal is drawn up on the basis of criteria which are described by the national legislature as being in the public interest and defined in abstract terms by Law No 298/74 and in detail by Presidential Decree No 56-78, but in practice refer to the characteristics of a "typical undertaking" specified by Decree No 56-78 (Articles 3 and 4) which no longer corresponds to the realities of the market in question;

(b) the public authority's powers (which have never been exercised) to refer the committee's proposal back to it and to adopt tariffs ex officio if the committee's new proposal is not considered satisfactory are strictly confined to merely examining whether the proposal is in accordance with the criteria delegated by the legislature in 1974 (Article 53 of Law No 298-74) to secondary implementing legislation adopted in 1978 (Presidential Decree No 56-78) and never since updated;

(c) the conditions for setting the mandatory tariff are fixed in that way and, more importantly, the public authority's review of the legality of the tariff is restricted to checking whether the tariff proposed by the committee corresponds to the economic and technical data of a "typical undertaking" which is not representative of the market in question;

(d) in that context the public authority is given the task of ensuring that the tariff determined in that way enables haulage undertakings to obtain a return described as "fair" (Article 52 of Law No 298-74) but based on rigid and totally obsolete legislative data which cannot be reviewed by the public authority even though they are now divorced from reality and consequently do not reflect the actual cost of the service provided by road-haulage undertakings?

6. In the alternative, the Court is asked to clarify what concept of "collective agreement" allows the national court to decide that there is no restrictive tariff agreement, prohibited by Article 85 of the Treaty.'

The first two questions

25 By its first two questions, which should be examined together, the national court is asking essentially whether Articles 3 (f) and (g), 5, 85, 86 and 90 of the Treaty preclude legislation of a Member State which provides for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a central committee the majority of whose members are representatives of the economic operators concerned and which extends the mandatory tariffs applicable in the road-haulage sector to other types of contracts, relating to different services, such as, in particular, contracts under invitations to tender and contracts for hire.

26 It is established case-law that Articles 5 and 85 are infringed where a Member State requires or favours the adoption of restrictive agreements contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of State 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; Case C-185-91 Reiff [1993] ECR I-5801, paragraph 14; and Case C-153-93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 14).

27 The Court has held that Articles 3 (g), 5 and 86 of the Treaty could only apply to legislation of the kind contained in the Italian Law if it were proved that the legislation concerned placed an undertaking in a position of economic strength enabling it to prevent effective competition from being maintained on the relevant market by allowing it to behave to an appreciable extent independently of its competitors, of its customers and ultimately of the consumers (Case 85-76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38).

28 Finally, it should also be pointed out that in Centro Servizi Spediporto the Court was faced with a similar question in relation to the Italian legislation in force at the time, which differed essentially from that applicable in the main proceedings in one single respect: the national associations of road hauliers were represented on the central committee by 12 persons instead of 17.

29 In that judgment the Court ruled that neither Articles 3 (g), 5, 85, 86 or 90 of the EC Treaty nor Article 30 of that Treaty precluded the legislation of a Member State from providing for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a committee, where that committee was composed of a majority of representatives of the public authorities and a minority of representatives of the economic agents concerned and in its proposals had to observe certain public interest criteria, and where, moreover, the public authorities did not relinquish their rights and powers by taking into consideration, before the proposals were approved, the observations of other public and private bodies, or even by fixing tariffs ex officio.

30 In concluding, first of all, that under a system for determining road-haulage tariffs such as that established by the Italian Law, proposals discussed by the committee could not be regarded as restrictive agreements between economic agents which the public authorities imposed or favoured or the effects of which they reinforced, the Court, in paragraphs 22 to 24 of its judgment in Centro Servizi Spediporto noted that the central committee was composed of a majority of representatives of the public authorities and of a minority of representatives of associations of economic agents and that the central committee was obliged, when adopting its proposals, to observe a number of public interest criteria defined in the Italian Law.

31 Secondly, in holding that the public authorities had not delegated their tariff-fixing powers to private economic agents, the Court found, in paragraphs 26 to 28 of its judgment in Centro Servizi Spediporto, that, according to the Italian Law, the central committee proposes to the competent minister the road-haulage tariffs and any special conditions governing their application. The Italian Law also confers on the minister the power to approve them, to reject them or to amend them before bringing them into force and provides that, before approving the tariffs and bringing them into force, the minister must consult the regions and the representatives of the economic sectors concerned and must have regard to the guidelines issued by the Interministerial Committee on Prices.

32 Finally, in determining that national rules providing for the fixing of road-haulage tariffs by the public authorities do not bestow on economic operators a collective dominant position characterised by the absence of competition between them, the Court, in paragraphs 33 and 34 of its judgment in Centro Servizi Spediporto, found that they were not sufficiently linked to adopt the same conduct on the market.

33 Those findings are not called in question by the fact that, since the adoption of the Ministerial Decree of 2 February 1994, which increased the number of representatives of national road-haulier associations on the central committee from 12 to 17, the representatives of the economic agents are no longer in the minority on the central committee, or by the fact that, according to the information provided by the Italian Government, the `Inter-ministerial Price Committee', a consultative body, was replaced by a body called `the Italian Price and Tariffs Monitoring Authority', or by the fact that the Italian Law maintained the extension of tariffs to various services, such as contracts under invitation to tender and contracts for hire.

34 First, the change in the majority-minority relationship within the central committee does not warrant the conclusion that a restrictive agreement within the meaning of Article 85 of the Treaty exists when, under the national legislation in question, the central committee must continue to observe, in adopting its proposals, the public-interest criteria defined by the Italian Law.

35 Second, the amendment of the Italian Law does not entail a delegation by the public authorities of their powers to private economic agents since the power of the competent minister to reject or amend transport tariffs proposed to him by the central committee and his obligation to consult the regions and the representatives of the economic sectors concerned remain unchanged.

36 However, it is for the national court to determine, in the exercise of its jurisdiction, that in practice tariffs are fixed subject to observance of the public-interest criteria defined by the Italian Law and that the public authorities are not handing over their prerogatives to private economic agents.

37 The answer to be given to the first two questions must therefore be that Articles 3(f) and (g), 5, 85, 86 and 90 of the Treaty do not preclude legislation of a Member State which provides for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals of a central committee the majority of whose members are representatives of the economic agents concerned and which extends the mandatory tariffs applicable in the field of contracts for the carriage of goods by road to other types of contracts, relating to different services, such as, in particular, contracts under invitations to tender and contracts for hire, provided that the tariffs are fixed with due regard for the public-interest criteria defined by the Italian Law and the public authorities do not hand over their prerogatives to private economic agents in taking into account, before the approval of proposals, of the observations of other public and private bodies and even by fixing tariffs ex officio.

The third question

38 By its third question the national court asks whether the concept of general interest to which the Court referred in its judgments in the Reiff and Delta Schiffahrts- und Speditionsgesellschaft cases corresponds to the concept of public interest mentioned in its judgment in the Centro Servizi Spediporto case.

39 In this regard, it should be observed, as the Advocate General points out in point 40 of his Opinion, that in each of those three judgments the Court examined, in the light of the same criteria, whether the tariff committee in question had to fix tariffs by taking account of interests other than those of the economic agents represented on the committee and whether, before adopting tariffs, the minister had to request the opinion of third parties in relation to those agents.

40 In so doing, the Court was making it clear that the interests of the collectivity had to prevail over the private interests of individual operators.

41 In those circumstances, the conclusion must be that the concepts of general interest and public interest have the same meaning.

42 The answer to be given to the third question must therefore be that the concept of general interest to which the Court referred in its judgments in the Reiff and Delta Schiffahrts- und Speditionsgesellschaft cases corresponds to the concept of public interest mentioned in its judgment in Centro Servizi Spediporto.

The fourth and fifth questions

43 By its fourth and fifth questions, which should be examined together, the national court seeks to ascertain whether specific criteria to be used in fixing tariffs, such as those in force under Italian law, are in accord with the public interest within the meaning of the judgment in Centro Servizi Spediporto.

44 In order to give a helpful reply to that enquiry, it should be recalled that it is established case-law that Articles 85 and 86 of the Treaty, read together with Article 5 of the Treaty, require the Member States to refrain from introducing or maintaining in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (judgment in Centro Servizi Spediporto, paragraph 20).

45 Therefore, in order to ensure that their action does not prevent, restrict or distort the operation of competition, the Member States must necessarily take account of the public interest.

46 It is therefore for the Member States to determine the criteria which best allow the Community rules of competition to be observed.

47 It is then for the national courts to determine whether the public-interest criteria defined in the national legislation are observed in practice.

48 The answer to be given to the fourth and fifth questions must therefore be that it is for the Member States to determine the specific criteria to be used in fixing tariffs, such as those in force under Italian law, and for the national courts to determine whether the criteria thus defined are respected in practice.

The sixth question

49 By its final question, the national court asks whether the fact that it is possible for collective agreements to be concluded which under national law are enforceable against operators which have not signed them, as is the case with those in question in the main proceedings, is liable to constitute a breach of Article 85 of the Treaty.

50 In this regard, it must be recalled first of all that the Court has held that the fact that collective agreements, such as those provided for in Article 13 of the Ministerial Decree of 18 November 1982, may be concluded does not have the effect of restricting competition but allows certain derogations from the mandatory tariffs and therefore increases the scope for competition (judgment in Centro Servizi Spediporto, paragraph 29).

51 It must be observed, next, that, as the Commission has observed and the Advocate General has pointed out in paragraph 55 of his Opinion, it is for the State concerned to define the group of operators against which collective agreements may be enforced.

52 The answer to be given to the sixth question must therefore be that the fact that collective agreements such as those provided for in Article 13 of the Ministerial Decree of 18 November 1982 can be concluded and that they are even enforceable under national law against operators who have not signed them does not have the effect of restricting competition within the meaning of Article 85 of the Treaty.

Costs

53 The costs incurred by the Italian and French Governments, and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Second Chamber),

in answer to the questions referred to it by the Giudice di Pace di Genova by order of 30 December 1996, hereby rules:

54 Articles 3 (f) and (g), 5, 85, 86 and 90 of the Treaty do not preclude legislation of a Member State which provides for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals of a central committee the majority of whose members are representatives of the economic agents concerned and which extends the mandatory tariffs applicable in the field of contracts for the carriage of goods by road to other types of contracts, relating to different services, such as, in particular, contracts under invitations to tender and contracts for hire, provided that the tariffs are fixed with due regard for the public-interest criteria defined by Law No 298 and the public authorities do not hand over their prerogatives to private economic agents in taking into account, before the approval of proposals, of the observations of other public and private bodies and even by fixing tariffs ex officio.

55 The concept of general interest to which the Court referred in its judgments in Case C-185-91 Reiff and in Case C-153-93 Delta Schiffahrts- und Speditionsgesellschaft corresponds to the concept of public interest mentioned in its judgment in Case C-96-94 Centro Servizi Spediporto.

56 It is for the Member States to determine the specific criteria to be used in fixing tariffs, such as those in force under Italian law, and for the national courts to determine whether the criteria thus defined are respected in practice.

57 The fact that collective agreements such as those provided for in Article 13 of the Ministerial Decree of 18 November 1982 can be concluded and that they are even enforceable under national law against operators who have not signed them does not have the effect of restricting competition within the meaning of Article 85 of the Treaty.