Opinion of the Advocate-General
A - Introduction
1 This reference for a preliminary ruling once again concerns the question whether Community competition law precludes certain State provisions on the fixing of road transport tariffs. The problem arises in the following context.
2 Autotrasporti Librandi snc, the plaintiff in the main proceedings, was instructed by Cuttica Spedizioni e Servizi Internazionali srl, the defendant in the main proceedings, to carry out various container transport services on its behalf. The plaintiff issued an invoice for LIT 2 844 000, which is said to accord with the mandatory tariffs fixed by ministerial decrees. However, the defendant paid only LIT 2 300 000, which is said to be based on a collective agreement. The plaintiff then brought an action in the Magistrate's Court, Genoa, for payment of the difference.
3 The relevant Italian legislation is as follows.
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 introduces, in Title III, a system of mandatory tariffs for the carriage of goods by road.
4 Article 3 provides for a central committee which fixes a range of tariffs under the conditions laid down by Article 50 et seq. of the Law.
5 Under Article 52 of the Law, the tariff is calculated at regular intervals, having regard to the average cost of the relevant transport services, including business expenses, calculated for well-managed undertakings operating under normal conditions with regard to utilisation of their transport capacity, and having regard to the market situation, in such a manner as to enable transport undertakings to obtain a fair return.
6 In the measures implementing this article, the legislature then set out the characteristics of an average undertaking. These are listed in Articles 3 and 4 of Decree No 56 of the President of the Italian Republic of 9 January 1978.
7 Article 53 of the Law provides:
(a) that tariffs are to be proposed to the Minister of Transport by the central committee;
(b) that the Minister, after consulting the regions and the representatives of the trade associations in question (whose opinions are not binding and are given only in an advisory capacity),
- may approve the tariffs and bring them into force by ministerial decree;
- reject the central committee's proposals and refer them back to the committee with the Minister's observations. If new proposals are received, the Minister approves them or disregards them and, by decree, adopts tariffs differing from those proposed by the committee.
8 Tariffs fixed in this way were made compulsory for the first time by Ministerial Decree of 18 November 1982. Article 3 of this Decree also permitted carriers and users to enter into individual contracts on the basis of collective agreements signed by users and the most representative associations of carriers who have a seat on the central committee.
9 Law No 162 of 27 May 1993 declared illegal any contract for the carriage of goods by road for third parties at prices and on conditions differing from those laid down by Law No 298 and the measures implementing it and from those arising from the collective agreements provided for in Article 13 of the Ministerial Decree of 18 November 1982. This provision extends the system of mandatory tariffs to contracts other than haulage contracts and gives full effect to so-called `individual contracts'.
10 The Ministerial Decree of 2 February 1994 increased the number of representatives of hauliers' associations, i.e. the non-official bodies, on the central committee from 12 to 17, so that they now form the majority, as against the representatives of central and regional government, on the body entrusted with drawing up tariff proposals.
11 The abovementioned Italian provisions were the subject of a reference for a preliminary ruling in the Centro Servizi Spediporto case. (1) However, at that time the representatives of central and regional government formed the majority on the central committee.
In the earlier case the Court gave the following ruling:
`Neither Articles 3(g), 5, 85 [nor] 86 ... of the EC Treaty preclude 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 is composed of a majority of representatives of the public authorities and a minority of representatives of the economic agents concerned and in its proposals must observe certain public interest criteria, and where, moreover, the public authorities do not relinquish their rights and powers by taking into consideration, before the proposals are approved, the observations of other public and private bodies, or even by fixing tariffs ex officio.'
12 As the Italian legislation has been amended, the national court has been prompted to request a preliminary ruling on the following questions:
`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 C-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 legislation 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?'
B - Analysis
First question
13 With the first question, the national court asks whether the principles laid down in the Centro Servizi Spediporto judgment (see paragraph 11) apply to the present case.
14 In that case the Court found that there were three reasons why a restrictive practice did not exist. It observed, firstly, that the representatives of the public authorities formed the majority on the central committee. Secondly, the committee, in submitting its proposals concerning the tariff, had to take account of certain public interest criteria which were specified by law. Thirdly, the public authorities had not delegated their powers concerning the fixing of tariffs to private economic agents. (2) In this connection the Court stated that the central committee only submitted proposals to the Minister, who had power to approve or reject them, or amend them before bringing them into force. Furthermore, before approving the tariffs and bringing them into force, the Minister had to consult the regions and the representatives of the economic sectors concerned and to have regard to the guidelines issued by the Interministerial Committee on Prices. According to the Court, it followed that the public authorities had not delegated their powers concerning fixing tariffs to private economic agents. (3)
15 The question now raised by the national court is whether these conclusions are affected by the fact that the representatives of the public authorities no longer form the majority on the central committee.
16 The defendant in the main proceedings considers that the three criteria set out in the Centro Servizi Spediporto judgment must all be fulfilled at the same time and are not alternative to each other.
17 The defendant adds that there is a further difference from the Centro Servizi Spediporto case in so far as the Interministerial Committee on Prices, whose instructions the Minister had to follow when adopting tariffs, no longer exists. Furthermore, in practice the Minister was always guided by economic considerations when fixing tariffs and did not take account of observations such as those of the Price Committee (when it existed) and of the regions. According to the defendant, the public authorities fixed tariffs on the basis of models which no longer corresponded to the true situation.
18 In the course of the oral procedure the French Government made a statement to the effect that, in spite of the change in the majority on the central committee, it was perfectly conceivable that the national provisions conformed with the competition rules. However, this was possible only if the other objective criteria referred to in the judgment gave a sufficient guarantee that State interests were given primacy.
19 The Italian Government also observes that the principles laid down in the previous judgment apply to the present case. This was not altered by the change in the composition of the tariff committee in favour of the representatives of undertakings. The decisive factor was that the committee had only a right to make proposals and had to take account of the public interest when fixing tariffs. The regions and the representatives of the associations of the economic sectors concerned had to be consulted before the final tariffs were fixed by the Minister. It should also be observed that the proposals of the tariff committee were not binding on the Minister, who could on his own initiative alter tariffs which had already been fixed.
20 The Italian Government adds that, although the Price Committee no longer exists, its place has been taken by the Italian Price and Tariff Monitoring Body.
21 In the Commission's opinion, the criteria set out by the Court are not all to be fulfilled together. The meaning and purpose of the criteria are to provide parameters which can be used to judge the extent to which the public interest must be safeguarded. According to the Commission, the other Italian provisions concerning safeguarding the public interest, the exercise of the Minister's supervisory power and the obligation to consult the regions and the representatives of the associations of the economic sectors concerned had not been altered, so that the Court's basic findings in the previous judgment could be applied to the present case. However, this was subject to the proviso that the national courts exercised adequate supervision and ensured that the rules in force were obeyed.
22 It is clear from the Centro Servizi Spediporto judgment that, although both the Court and the Advocate General referred to the composition of the tariff committee as a criterion to be taken into account in relation to the question whether there was an agreement, decision or concerted practice, it was not the only criterion and it was associated with the obligation to observe the public interest and with the fact that the final decision had to be made by the public authorities.
23 The mere change in the majority on the central committee does not entail a contravention of Article 85 of the Treaty. It is true that, given the former composition of the committee, it could be presumed that the public authority representatives would, because they were in the majority, ensure observance of the public interest by the committee. After the change in the majority, therefore, the other criteria become all the more important. They aim to ensure that a Member State cannot adopt measures which could affect the full practical effectiveness of the competition rules applying to undertakings. Under their duty to cooperate sincerely with the Community (Article 5, paragraph 2 of the EC Treaty), the Member States must ensure fair, undistorted and effective competition. Consequently they must not require or favour the adoption of agreements, decisions or concerted practices or reinforce their effects. In this connection, the courts of the Member States have the task of scrutinising national law to determine whether it actually safeguards the abovementioned competition principles. This is why the criteria of public interest and fulfilment of the obligation of consultation are particularly important. Both these points must be formulated in such a way that can withstand scrutiny (which would be the task of the national court), that is to say, that they ensure the full effectiveness of the competition rules and that their application does not lead to the delegation of powers belonging to the public authorities.
24 Therefore the reply to the first question from the national court must be that Articles 3(f) and (g), 5, 85 and 86 of the Treaty do not preclude national legislation which provides for mandatory tariffs for the carriage of goods by road from being approved and brought into force by a public authority on the basis of a proposal from a committee on which representatives of the interested economic operators are in the majority, provided that it is ensured that those tariffs are fixed with due regard to the public interest criteria specified by law and provided that the public authorities do not delegate their powers to private economic operators.
The second question
25 With this question the national court asks whether the competition rules of the EC Treaty preclude a national provision which extends mandatory tariffs in the field of contracts for road haulage services to cover other types of contract relating to different services, in particular contracts whereby a contractor undertakes to achieve a particular result and/or contracts for hire.
26 In the order for reference the national court states that the automatic application of a tariff to sectors other than road haulage is likely to give rise to disparity of treatment which may distort not only the national market but also the Community market. The tariffs were calculated on the basis of costs which did not arise at all in the performance of certain contracts. Therefore different situations were being treated in the same way in that the same tariff system was imposed on all of them.
27 The defendant considers that it is necessary to take account of the fact that the representatives of a regulated sector fix the prices for sectors where there is normally free competition. Therefore the competition rules of the EC Treaty preclude the application of compulsory tariffs to other types of contract.
28 The Italian Government and the Commission see no reason why this problem should be treated differently from the national court's first question. They both observe that the Court has already considered the interpretation of the competition rules in relation to Article 3 of Ministerial Decree No 82/93 in the Centro Servizi Spediporto case. Firstly, they state that it is for the national court to determine the type of contract to which the facts of the case relate. Secondly, although tariffs had to be fixed by reference to public interest criteria and the public authorities were not to delegate to private operators their powers in relation to fixing tariffs, it was nevertheless for the national legislature to specify the types of contract to which the tariffs applied. The decisive factor was that there was no price-fixing by the undertakings concerned and there was no abuse of a dominant position.
29 First of all, it must be observed that the Court has already dealt with the present question in the Centro Servizi Spediporto case. (4)
30 With regard to the criteria which must be taken into account when fixing tariffs, the Court's observations in the previous judgment apply here in conjunction with the qualifications set out in paragraph 24 above, which arise from the change in the majority on the tariff committee.
31 In the previous judgment, the Court added that national legislation which provides for the fixing of road-haulage tariffs by the public authorities cannot be regarded as placing economic agents in a collective dominant position characterised by the absence of competition between them. (5)
32 There are no grounds for qualifying this statement of principle in the present case. It is true that the Italian provisions lay down tariffs also for types of contract which are not road-haulage contracts in the strict sense. However, the national legislature has deemed it expedient to include in the ambit of mandatory tariffs contracts whereby a contractor undertakes to achieve a particular result and contracts for hire, which are concluded in connection with transport. This procedure for fixing tariffs also provides for account to be taken of the public interest criteria laid down by law, permits the Minister to reject the central committee's proposals and requires consultation of the regions and of the trade associations concerned.
33 Articles 3(f) and (g), 5, 85 and 86 of the Treaty accordingly do not preclude legislation of a Member State 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 and contracts for hire, provided that the legislation takes account of the abovementioned public interest criteria and of the principle that the public authorities should not delegate their right to make the final decision.
The third question
34 The purpose of the national court's third question is to ascertain whether the concept of `general interest' referred to by the Court in the Reiff and Delta judgments (6) is the same as the concept of `public interest' used in a similar legal situation in the Centro Servizi Spediporto judgment.
35 The order for reference states that this question is relevant because the defendant in the main proceedings contends that the criteria for fixing tariffs did not ensure that the central committee's proposals served the general interest. The Court, however, in its interpretation of the competition rules of Community law used the term `public interest' as well as `general interest'.
36 The defendant argues that, as the meaning of the two terms may vary in national law, depending on the context in which they are used, a difference of interpretation is possible in Community law also.
37 In the Reiff case the tariff commission was not permitted to fix tariffs by reference only to the interests of the transport industry, but was required also to take account of the interests of the agricultural sector, medium-sized businesses and areas which are economically weak or have poor transport services. The Court observed that the German Law in question aimed to bring about an optimum transport service, the harmonisation of the conditions of competition between modes of transport and the economically judicious division of tasks between them. For this purpose the Law required harmonisation of the services and prices of the different modes of transport in order to avoid unfair competition, in particular between road, rail and inland waterway transport. If, nevertheless, the tariffs fixed by the commission were not in the general interest, the German minister responsible could himself fix the tariffs in lieu of the tariff commission. The Court finally ruled that the competition rules of the EC Treaty did not preclude national provisions for fixing tariffs if, inter alia, the members of the commission were independent experts who fixed the tariffs by reference to considerations of general interest. The term `general interest' can therefore only mean the interests of all sectors of the economy, particularly those other than transport undertakings, and the interests of less-favoured regions.
38 In the Delta case the Court reached the same conclusion, and on the same grounds, as in the Reiff case.
39 The judgment in the Centro Servizi Spediporto case also referred to these two earlier judgments. (7) The Court pointed out that the central committee, upon the adoption of its proposals, was obliged to observe various public interest criteria defined in the Law and specified in Decree No 56/78, but the Court did not go on to consider the extent to which the public interest criteria were defined in the Italian provisions. Articles 52 and 53 of Law No 298/74 provide that the tariffs should enable transport undertakings to obtain a fair return, having regard to the market situation, and that the Minister must consult the regions and the representatives of the trade associations of the sectors of the economy concerned.
40 A comparison of the three judgments shows that in each case the Court considered whether, in fixing tariffs, the tariff commission had to take account of interests other than those of the undertakings represented on the commission and whether, before adopting the tariffs, the minister in turn had once again to take account of the interests of the sectors of the economy concerned and of the regions. What was required was a basis for ensuring that the interests of the general public should prevail over the particular interests of certain sectors of the economy. The principle that the former should be taken into account and safeguarded was then, in each case, subsumed by the Court under the heading of `general interest' or `public interest'. In so far as the Court defined these two terms by reference to the same criteria, this must mean that they are identical.
41 Therefore the reply to be given to the third question is that the concept of `general interest' referred to by the Court in the Reiff and Delta judgments is the same as the concept of `public interest' used in a similar legal situation in the Centro Servizi Spediporto judgment.
The fourth question
42 With the fourth question the national court asks whether `general interest' and `public interest' are terms defined by Community law or whether their definition is a matter for the individual Member States.
43 The defendant in the main proceedings contends that they must be defined by Community law. The criteria by reference to which tariffs are to be fixed should not vary from one Member State to another. To ensure effective competition as between Member States, tariffs should be fixed in each State according to the same criteria. This is the only way of avoiding distortion in trade within the Community.
44 In the opinion of the French Government and the Commission, it is for the national legislature to define what is meant by `general interest' or `public interest'. However, the criteria laid down by the national legislature must be such that the public authorities can exercise effective control, in particular to avoid any infringement of Community law.
45 This view is substantially correct. Firstly, the Court has always used the terms `general interest' or `public interest' when considering restrictive practices. In finding that there was no restrictive practice, one of the Court's grounds was that the fixing of tariffs was subject to observance of the general interest or public interest criteria defined by the legislation of the Member States. However, when examining this question, the Court has never referred to Community law criteria for defining these terms in any of its judgments. Furthermore, neither `general interest' nor `public interest' are referred to or defined in any of the Community provisions relevant here. As I observed in paragraph 23 above, the Member States must ensure the practical effectiveness of the competition rules. Consequently, State measures must respect the aims and the policies laid down by the Community. State action must not lead to the prevention, restriction or distortion of fair, effective competition. However, if competition which in itself is free is regulated by State action, compliance with the relevant Community rules must be secured by means of suitable criteria. But a Community definition of these criteria (the public interest and the non-delegation of sovereign powers), going beyond the general principles of the competition rules, is not then necessary. The principle of subsidiarity also dictates that the Member States be left with responsibility in this area. A national definition may give rise to certain variations from one Member State to another, but at the same time it does enable particular national and regional interests to be taken into account. Therefore it is for the courts of the Member States to determine whether and, if so, to what extent the criteria of the public interest and the non-delegation of sovereign powers ultimately ensure the full effectiveness of the competition rules.
46 Therefore the reply to be given to the national court's fourth question is that the definition and appraisal of the terms `general interest' and `public interest' are the responsibility of the individual Member States.
The fifth question
47 The national court's fifth question seeks to establish whether the concept of public interest covers a situation where the statutory provisions are drawn up by reference to a typical undertaking which no longer corresponds to the realities of the market in question, where the statutory provisions have not been updated since 1978, where the competent authority examines the proposed tariff by reference to the economic and technical characteristics of a typical undertaking which is said not to be representative of the market in question, and where the tariff determined in that way is meant to provide a fair return for transport undertakings. In short, the national court is doubtful whether, in view of the abovementioned circumstances, it can be still be said that the tariffs are fixed on the basis of public interest criteria.
48 The Commission considers that, even if the situation described above justifies certain doubts as to whether the criteria described correspond to the actual situation on the relevant market, the fact remains that it is the task of the national legislature to determine the public interest criteria and the task of the national courts to ensure that they are observed.
49 According to the reply to the fourth question, the Member States are in principle responsible in the area in question for laying down the criteria to be taken into account when fixing tariffs. This means that the Member States can specify the interests which the trade association representatives on the central committee must take into account, other than their own. Likewise, in principle it is left to the Member States to specify the interests to which the authority responsible for fixing tariffs must in turn have regard after it receives the tariff committee's proposals. Therefore, in principle the Member State concerned retains complete legislative freedom to decide which concrete circumstances of the market will affect the fixing of tariffs and the factors for influencing the tariffs. If the legislation is worded by reference to a typical undertaking, the definition of such an undertaking must not relate to a single group of undertakings and their particular interests, but must by its representativeness reflect the interests of all the undertakings in the sector.
50 In the final analysis, it is the task of the competent national court to ascertain whether the national provisions are capable of precluding restrictive practices, whether the public interest is actually taken into account and whether the authorities have delegated their powers to private economic operators. The national court must then ensure that its decision lays down a framework for competition which conforms with national and Community law.
The sixth question
51 With the sixth question, the national court seeks clarification of the meaning of the term `collective agreement', so as to allow the national court to rule out the existence of a price-fixing practice, contrary to Article 85 of the Treaty.
52 The reason given for asking this question is that the defendant argued that the sum paid to the plaintiff was in accordance with a collective agreement entered into by associations and road hauliers represented on the central committee and by users' associations. However, since the plaintiff has argued that this agreement could not be relied upon because it was not a member of any of the signatory associations, the national court would like to be able to determine the cases where a collective agreement is permitted by Community law and is therefore binding even on a party which is not a member of any of the signatory associations.
53 The Commission submits that the question is not which collective agreement should be applied to the contractual relationship between the parties to the main proceedings, but whether collective agreements can bind undertakings which have not signed them. However, as this question has no connection with Community law, the Commission concludes that this aspect of the main proceedings must be judged solely in accordance with national law.
54 In paragraph 29 of its judgment in the Centro Servizi Spediporto case the Court considered the possibility of concluding collective agreements pursuant to Article 13 of the Ministerial Decree of 18 November 1982. The Court merely observed that this possibility did not have the effect of restricting competition but allowed certain derogations from the mandatory tariffs and therefore increased the possibility of competition. Advocate General Léger also observed, in paragraph 33 of his Opinion, that the collective agreements did not have the effect of restricting competition but, on the contrary, increased traders' leeway by providing for an exception to the application of bracket tariffs.
55 The concept of `collective agreement' must be defined and interpreted by the State bodies and they must ensure that it is applied in conformity with the law. Whether an undertaking which did not take part in the conclusion of a collective agreement may be bound by it is a question which can be answered only by reference to national law and one which the Court is not therefore required to answer.
C - Conclusion
56 I propose that the following replies be given to the questions referred to the Court:
(1) Articles 3(f) and (g), 5, 85 and 86 of the EC Treaty do not preclude national legislation which provides for mandatory tariffs for the carriage of goods by road from being approved and brought into force by a public authority on the basis of a proposal from a committee on which representatives of the interested economic operators are in the majority, provided that it is ensured that those tariffs are fixed with due regard to the public interest criteria specified by law and provided that the public authorities do not delegate their powers to private economic operators.
(2) Articles 3(f) and (g), 5, 85 and 86 of the EC Treaty do not preclude legislation of a Member State 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 and contracts for hire, provided that the legislation takes account of the public interest criteria referred to in the reply to the first question and of the principle that the public authorities should not delegate their right to make the final decision.
(3) The concept of `general interest' referred to by the Court in the Reiff and Delta judgments is the same as the concept of `public interest' used in a similar legal situation in the Centro Servizi Spediporto judgment.
(4) The definition and appraisal of the terms `general interest' and `public interest' are the responsibility of the individual Member States.
(5) It is the task of the competent national court to ascertain whether the national provisions are capable of precluding restrictive practices, whether the public interest is actually taken into account and whether the authorities have delegated their powers to private economic operators. The national court must then ensure that its decision lays down a framework for competition which conforms with national and Community law.
(1) - See the judgment in Case C-96/94 [1995] ECR I-2883.
(2) - Ibid., paragraph 26.
(3) - Ibid., paragraphs 26 to 30.
(4) - Ibid., paragraph 17.
(5) - Ibid., paragraph 34.
(6) - See the judgments in Case C-185/91 Reiff [1993] ECR I-5801 and Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517.
(7) - See the judgment in Case C-96/94, cited in footnote 1, paragraph 22.
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