API (Judgment) [2014] EUECJ C-184/13 (04 September 2014)

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(Requests for a preliminary ruling - Road transport - Amount of the minimum operating costs determined by a body representing the operators concerned - Association of undertakings - Restriction of competition - Public interest objective - Road safety - Proportionality)

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Italy), made by decisions of 17 January 2013, received at the Court on 12 and 15 April 2013, in the proceedings

Confetra - Confederazione Generale Italiana dei Trasporti e della Logistica,

Fedespedi - Federazione Nazionale delle Imprese di Spedizioni Internazionali,

Assologistica - Associazione Italiana Imprese di Logistica Magazzini Generali Frigoriferi Terminal Operators Portuali,

Federagenti - Federazione Nazionale Agenti Raccomandatari Marittimi e Mediatori Marittimi,

Ministero delle Infrastrutture e dei Trasporti - Osservatorio sulle Attività di Trasporto,

Assocarta - Associazione Italiana Fra Industriali della Carta Cartoni e Paste per Carta,

Assografici - Associazione Nazionale Italiana Industrie Grafiche Cartotecniche e Trasformatrici,

composed of T. von Danwitz, President of the Chamber, E. Juhász, A. Rosas, D. Šváby (Rapporteur) and C. Vajda, Judges,

having regard to the written procedure and further to the hearing on 7 April 2014,

- ANCC-Coop - Associazione Nazionale Cooperative di Consumatori and Others, by G. Roderi and A. Turi, avvocati,

- Confetra - Confederazione Generale Italiana dei Trasporti e della Logistica and Others, by C. Scoca, F. Scoca and F. Vetrò, avvocati,

- Esso Italiana Srl and of Confindustria - Confederazione generale dell’industria italiana and Others, by F. Di Gianni and G. Coppo, avvocati,

- l’Autorità garante della concorrenza e del mercato, by B. Caravita di Toritto, avvocato,

- Semenzin Fabio Autotrasporti and of Conftrasporto, by I. Di Costa and M. Maresca, avvocati,

- the Italian Government, by G. Palmieri, acting as Agent, assisted by S. Fiorentino, avvocato dello Stato,

- the European Commission, by L. Malferrari, T. Vecchi, I.V. Rogalski and J. Hottiaux, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 These requests for a preliminary ruling concern the interpretation of Articles 49 TFEU, 56 TFEU, 96 TFEU and 101 TFEU and of Article 4(3) TEU.

2 The requests have been made in proceedings between, in Case C-184/13, API - Anonima Petroli Italiana SpA and Others and the Ministero delle Infrastrutture e dei Trasporti (Ministry for Infrastructure and Transport) and the Ministero dello Sviluppo economico (Ministry of Economic Development), in Case C-185/13, ANCC-Coop -,Associazione Nazionale Cooperative di Consumatori and Others and the Ministero delle Infrastrutture e dei Trasporti, the Ministero dello Sviluppo economico, the Consulta generale per l’autotrasporto e la logistica (General Council for Road Transport and Logistics; ‘the Consulta’), the Osservatorio sulle attività di autotrasporto (‘the Osservatorio’) and the Autorità garante della concorrenza e del mercato, in Case C-186/13, Air Liquide Italia SpA and Others and the Ministero delle Infrastrutture e dei Trasporti and the Ministero dello Sviluppo economico, in Case C-187/13, Confetra - Confederazione Generale Italiana dei Trasporti e della Logistica and Others and the Ministero delle Infrastrutture e dei Trasporti - Osservatorio sulle Attività di Trasporto and the Ministero dello Sviluppo economico, in Cases C-194/13, C-195/13 and C-208/13, Esso Italiana Srl, Confindustria - Confederazione generale dell’industria italiana and Others and the Autorità garante della concorrenza e del mercato and the Ministero delle Infrastrutture e dei Trasporti and the Ministero dello Sviluppo economico, respectively, concerning measures fixing minimum operating costs in the sector of carriage of goods by road for hire and reward.

3 Pursuant to Articles 1 and 2 of Council Regulation (EEC) No 4058/89 of 21 December 1989 on the fixing of rates for the carriage of goods by road between Member States (OJ 1989 L 390, p. 1), the rates for the carriage of goods by road between Member States for hire and reward are to be set by free agreement. According to the third recital in the preamble to that regulation, ‘the free fixing of rates for the carriage of goods by road is the tariff system best suited to the creation of the free transport market as decided upon by the Council, to internal market objectives and to the need for a tariff system applied uniformly throughout the Community’.

4 It is stated, at recital 4 in the preamble to Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ 2009 L 300, p. 72), that ‘[t]he establishment of a common transport policy implies the removal of all restrictions against the person providing transport services on the grounds of nationality or the fact that he is established in a different Member State from the one in which the services are to be provided’. Recital 6 in the preamble to that regulation states that ‘[t]he gradual completion of the single European market should lead to the elimination of restrictions on access to the domestic markets of Member States. Nevertheless, this should take into account the effectiveness of controls and the evolution of employment conditions in the profession, the harmonisation of the rules in the fields of, inter alia, enforcement and road user charges, and social and safety legislation’.

5 Article 8(1) of Regulation No 1072/2009 provides that ‘[a]ny haulier for hire or reward who is a holder of a Community licence and whose driver, if he is a national of a third country, holds a driver attestation, shall be entitled, under the conditions laid down in this Chapter, to carry out cabotage operations’.

‘The performance of cabotage operations shall be subject, save as otherwise provided in Community legislation, to the laws, regulations and administrative provisions in force in the host Member State with regard to the following:

7 EU law includes a number of acts relating to road safety. Thus, Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1) sets, in Articles 6 and 7 thereof, common rules relating to driving and rest periods for drivers. Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35) sets, in Articles 4 to 7 thereof, minimum requirements concerning the maximum weekly working time, breaks, rest and night work. Articles 13 to 16 of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8), as amended by Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 (OJ 2006 L 102, p. 1), lay down the obligations of employers and drivers in respect of the use of recording equipment and record sheets. Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18) and Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1) also lay down important common rules with respect to the protection of road safety.

8 In addition to the various items of legislation on traffic, in particular, those relating to the Highway Code, Law No 32 of 1 March 2005, delegating to the executive reform of the law on the carriage of passengers and goods by road (GURI No 57, of 10 March 2005, p. 5), laid down the principles and criteria governing the reorganisation of road transport. That law was intended, in particular, to introduce regulated liberalisation and to replace the previous system of compulsory bracket tariffs, which was introduced under Law No 298 of 6 June 1974, by a system based on free bargaining for setting prices for road transport services. The principles and criteria governing that delegation also included the adaptation of the law to EU legislation with a view to an open and competitive market, the protection of competition between undertakings and the protection of traffic safety and of social security.

9 Pursuant to the abovementioned delegation, the Italian Government adopted various legislative decrees aimed at implementing that reform.

10 Legislative Decree No 284 of 21 November 2005 entrusted the Consulta with carrying out proactive activities relating to research, monitoring and consultation with political authorities as regards the drawing up of action policies and government strategies in the road transport sector. The Consulta is composed of representatives of State authorities, of industry associations of road transport operators, of associations of customers and of undertakings and/or bodies in which the State holds a majority stake. At the material time, the Consulta had 102 permanent or substitute members, divided as follows:

- 60 members representing industry associations of road transport operators and associations of customers;

- 6 members representing undertakings/and or bodies in which the State holds a majority stake.

11 Legislative Decree No 284 of 21 November 2005 also set up, as a body of the Consulta, the Osservatorio, which carries out, inter alia, monitoring tasks concerning compliance with the provisions on road traffic safety and social security and updates the practices and customs applicable to haulage contracts concluded orally. Pursuant to Article 6(1)(g) of that decree, the Osservatorio is composed of 10 members chosen by the President of the Consulta from among members of the Consulta having specific competences in the field of statistics and economics. On the date on which the cases in the main proceedings were brought, the Osservatorio had 10 members, 8 of whom represented associations of road transport operators and of customers and 2 of whom represented State authorities.

12 Legislative Decree No 286 of 21 November 2005, which implements the regulated liberalisation, provides, in Article 4(1) thereof, that charges for road haulage services are to be determined by free bargaining between the parties to the haulage contract and, moreover, ensures, in paragraph 2 of that article, the protection of road safety by providing that ‘haulage contract terms which entail procedures or conditions for providing services which are contrary to road traffic safety provisions shall be null and void’. As regards contracts concluded orally, which are more liable to cause harm to the situation of the contractor who is in a weak position, that legislative decree has tempered the principle of freedom of contract by providing for the application of the practices and customs of the sector, as determined by the Osservatorio.

13 Article 83a of Decree-Law No 112 of 25 June 2008 reduced the scope of the tariff liberalisation introduced by Legislative Decree No 286 of 21 November 2005, by providing, as regards contracts concluded orally, that the charges payable by customers cannot be lower than the minimum operating costs which the Osservatorio was asked to fix.

(a) the average cost of fuel per kilometre, in respect of the various types of vehicle, set each month, and

(b) the proportion, expressed as a percentage, of the operating costs of haulage undertakings represented by fuel costs, fixed every six months.

15 The rules contained in Article 83a of Decree-Law No 112 of 25 June 2008 have been the subject of significant amendments, which have removed the distinction between written contracts and oral contracts, permitting the Osservatorio also to influence the fixing of charges in relation to written contracts, on grounds of the need to ensure compliance with safety standards.

16 Article 83a of Decree-Law No 112 of 25 June 2008 in the version applicable to the disputes in the main proceedings (‘Article 83a of amended Decree-Law No 112/2008’), entitled ‘Protection of road safety and of the proper functioning of the road haulage market for hire and reward’, provides:

‘1. The Osservatorio referred to in Article 9 of Legislative Decree No 286 of 21 November 2005 shall, on the basis of an appropriate sample survey and having regard to the findings made each month by the Ministry of Economic Development on the average price of road diesel, determine each month the average cost of fuel per kilometre, according to the various types of vehicle, and the related impact.

2. According to the types of vehicles, the Osservatorio shall determine, on the fifteenth day of June and December, the proportion, expressed as a percentage, of the operating costs of haulage undertakings for hire and reward which is represented by fuel costs.

3. The provisions of paragraphs 4 to 11 of this article are aimed at regulating the mechanisms for adjusting the charges payable by customers in respect of the fuel costs borne by carriers and shall be the subject of a review, according to their impact on the market, after a period of one year from the date of their entry into force.

4. In order to ensure the protection of road safety and the proper functioning of the market in the road haulage of goods for hire and reward, in a haulage contract concluded in written form for the purposes of Article 6 of Legislative Decree No 286 of 21 November 2005, the amount to be paid to the carrier must be such as at least to cover the minimum operating costs which ensure, in any event, compliance with the safety standards laid down by law. Those minimum costs shall be determined within the framework of voluntary sectoral agreements, concluded between haulage associations represented within the Consulta, referred to in paragraph 16, and customer associations. Those agreements may also provide for haulage contracts of guaranteed durations or quantities, pursuant to which it is possible to derogate from the provisions referred to in this paragraph, the provisions of Article 7(3) and (7a) of Legislative Decree No 286 of 21 November 2005, and the provisions on direct actions.

4a. If the voluntary agreements provided for under paragraph 4 are not concluded within a period of nine months from the date on which the present provision enters into force, the Osservatorio referred to in Article 6(1)(g) of Legislative Decree No 284 of 21 November 2005 shall determine the minimum costs, in accordance with what is provided for in paragraph 4. Where that first period has expired, if the Osservatorio has not adopted the calculation of the minimum costs within a further 30 days, paragraphs 6 and 7 shall apply also to haulage contracts concluded in written form, solely for the purposes of fixing the charge.

4b. If the invoice mentions a charge lower than that which is provided for in paragraph 4 or paragraph 4a, an action by the carrier vis-à-vis the customer for payment of the difference shall be time barred after one year, from the day on which the transport service has been completed, unless otherwise agreed on the basis of voluntary sectoral agreements concluded in accordance with paragraph 4.

4c. By derogation to what is provided for in paragraphs 4 and 4a, the amount of the charge to be paid to the carrier for transport services performed under a contract concluded in written form, for the purposes of Article 6 of Legislative Decree No 286 of 21 November 2005, may be freely negotiated between the parties where the abovementioned services are limited to 100 kilometres per day, unless otherwise agreed on the basis of the voluntary sectoral agreements under paragraph 4.

4d. At the time the contract is concluded, the carrier shall provide the customer with a certificate issued by the social protection bodies dated no more than three months previously, indicating that the undertaking has paid the requisite social security and insurance contributions.

5. If the contract relates to transport services to be performed over a period of more than thirty days, the proportion of the charge corresponding to the cost of the fuel borne by the carrier for the performance of the contractual services, as indicated in the contract or on invoices issued in relation to the services undertaken by the carrier during the first month of validity of that contract, shall be adjusted on the basis of the variations of the price of fuel determined in accordance with paragraph 1, if those variations exceed 2% of the reference value taken into consideration at the time that the contract is signed or of the latest adjustment.

6. If the haulage contract has not been concluded in written form, in accordance with Article 6 of Legislative Decree No 286 of 21 November 2005, the invoice issued by the carrier shall highlight, solely for legal and administrative purposes, the proportion of the charge payable by the customer corresponding to the cost of the fuel borne by the carrier for the performance of the contractual services. That amount must correspond to the result of the multiplication of the amount of the fixed cost per kilometre, in respect of the class to which the vehicle used for the transport belongs, for the purposes of paragraph 1, during the month preceding that of the performance of the transport, by the number of kilometres corresponding to the service indicated on the invoice.

7. The proportion of the charge payable to the carrier other than that indicated in paragraph 6 must correspond, subject to what is payable by the customer for the cost of the fuel, to a proportion of that charge which is at least equal to that identified as corresponding to costs other than the fuel costs referred to in paragraph 2.

8. If the proportion of the charge payable to the carrier other than the proportion referred to in paragraph 6 is an amount lower than that stated in paragraph 7, the carrier is entitled to ask the customer to pay the difference. If the haulage contract has not been concluded in written form, an action by the carrier shall be time barred five years from the day on which the transport service was completed. If the transport contract is concluded in written form, an action by the carrier shall be time barred after one year, in accordance with Article 2951 of the Civil Code.

9. If the customer does not effect payment within fifteen days, the carrier has a right to lodge an application in the following fifteen days -failing which that right lapses - for order for payment by means of an action before the court having jurisdiction, in accordance with Article 638 of the Code of Civil Procedure, by submitting the documentation relating to its entry in the register of carriers of goods by road for hire and reward, the registration document of the vehicle used for the performance of the transport service, the invoice indicating the charge relating to the transport service, the documentation showing that payment of the amount indicated has been made and the calculations by which the additional charge payable to the carrier in accordance with paragraphs 7 and 8 has been determined. Having ascertained that the documentation is in order and that the calculations are correct, the court shall request the customer, by means of a reasoned decision within the meaning of Article 641 of the Code of Civil Procedure, to pay the amount payable without delay to the carrier, and authorise the provisional enforcement of the decision within the meaning of Article 642 of the Code of Civil Procedure and fix the period during which an action may be brought, in accordance with the provisions referred to in Book IV, Title I, Chapter I, of that code.

14. Without prejudice to the penalties laid down by Article 26 of Law No 298 of 6 June 1974 and the subsequent amendments thereof and by Article 7 of Legislative Decree No 286 of 21 November 2005, if applicable, any breach of the rules referred to in paragraphs 6, 7, 8 and 9 shall result in exclusion, for a period of up to six months, from public tendering procedures for the provision of goods and services, and in ineligibility for a period of one year for tax, financial and welfare benefits of any type provided for by law.

15. The penalties stated in paragraph 14 shall be applied by the competent authorities.

16. The penalties referred to in paragraph 14 shall not be applied if the parties have concluded a transport contract which is in compliance with a voluntary agreement entered into between the majority of the member organisations of the road transport operators and of the users of transport services represented in the Consulta for the purpose of regulating the conduct of transport services in a specific commercial sector.

17 From 12 September 2012, the tasks of the Osservatorio were assigned by law to a department of the Ministry for Infrastructure and Transport.

The actions in the main proceedings and the questions referred for a preliminary ruling

18 In the absence of voluntary agreements provided for by Article 83a(4) and (4a) of amended Decree-Law No 112/2008, the Osservatorio adopted, on 21 November 2011, a series of tables fixing the minimum operating costs of road transport undertakings for hire and reward. Those tables were set out in the decree of the Director General of the Ministry for Infrastructure and Transport of 22 November 2011.

19 The items of expenditure in the abovementioned tables are calculated for five categories of vehicles according to the maximum total laden mass, by identifying average annual mileage and average fuel consumption per kilometre. The costs include those relating to road tractors, semi-trailers, maintenance, the employment of drivers on the basis of the collective agreement in force, insurance, services, road taxes, tyres, fuel, motorway tolls and administration. Thus, the European Commission mentions, by way of example, that, for vehicles not exceeding 3.5 tonnes and for journeys between 101 kilometres and 150 kilometres, the operating costs established pursuant to Article 83a(2) of amended Decree-Law No 112/2008 are EUR 0.999 per kilometre, whilst the minimum operating costs under Article 83a(4) and (4a) of that decree are EUR 0.909 per kilometre and the fuel costs EUR 0.122 per kilometre.

20 The Osservatorio also determined the formula for periodically adjusting operating costs and, consequently, haulage tariffs. That body adjusted the costs initially fixed, by adopting, on 14 and 21 December 2011, the acts entitled ‘Operating costs of road haulage companies for hire and reward and minimum operating costs which ensure compliance with safety standards’.

21 The cases in the main proceedings stem from a series of main and supplementary applications brought before the Tribunale amministrativo regionale per il Lazio for annulment of the acts by which the Osservatorio established the minimum costs under Article 83a of amended Decree-Law No 112/2008.

22 According to the referring court, the Italian legislation introduces a regulated system for the fixing of minimum operating costs, which constrains free bargaining and curtails the freedom to specify one of the essential elements of a contract, albeit for the purpose of ensuring compliance with safety standards.

23 The need to maintain road safety is expressed in EU law, but the referring court is uncertain whether the balance between conflicting interests as struck by Article 83a of amended Decree-Law No 112/2008 is consistent with EU law.

24 In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following questions - which are worded identically in Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13 - to the Court of Justice for a preliminary ruling:

‘(1) Is the protection of freedom of competition, free movement of undertakings, freedom of establishment and freedom to provide services (under Article 4(3) TEU, Article 101 TFEU, and Articles 49 TFEU, 56 TFEU and 96 TFEU) compatible - and, if so, to what extent - with statutory provisions adopted by EU Member States which lay down minimum operating costs for the road haulage sector which involve the fixing by bodies external [to the contracting parties] of a component of the charge for the service concerned and, accordingly, of the contract price?

(2) Are such limitations of those principles justifiable - and, if so, under what conditions - in the light of the need to safeguard the public interest in road traffic safety and, in terms of that functional consideration, is there a proper place for the fixing of minimum operating costs as provided for under Article 83a of [amended] Decree-Law No 112/2008?

(3) Can the determination of minimum operating costs, to the above end, be left - in the absence of criteria predetermined by the legislation - to voluntary agreements between the types of trader concerned, failing which to bodies whose composition is characterised by the strong presence of persons representing private traders in that sector?’

25 By decision of the President of the Court of 14 May 2013, Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13 were joined for the purposes of the written and oral procedure and the judgment.

26 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 101 TFEU, read in conjunction with Article 4(3) TEU, and Articles 49 TFEU, 56 TFEU and 96 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which the price of road haulage services for hire and reward cannot be lower than minimum operating costs, which are fixed by a body composed mainly of representatives of the economic operators concerned.

27 As a preliminary point, it should be noted that the national legislation at issue in the main proceedings provides that the minimum operating costs are established, primarily, in the framework of voluntary sectoral agreements, concluded by professional associations of carriers and customers, failing that, in the absence of such agreements, by the Osservatorio and, in the event of inaction by the latter, directly by the Ministry for Infrastructure and Transport. During the period between November 2011 and August 2012, to which the cases in the main proceedings relate, the minimum operating costs were in fact fixed by the Osservatorio.

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).

30 In particular, in the judgment in Centro Servizi Spediporto (EU:C:1995:308), faced with a similar question in relation to the Italian legislation in force at the time establishing a system of compulsory bracket tariffs involving a maximum limit and a minimum limit, the Court of Justice held, first, that, where legislation of a Member State provides 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 operators concerned and in its proposals must observe certain public interest criteria, the fixing of those tariffs cannot be regarded as an agreement, decision or concerted practice between private economic operators required or favoured by the public authorities or whose effects the latter have reinforced and, second, that the public authorities did not delegate their powers to private economic operators by taking into consideration, before the proposals were approved, the observations of other public and private bodies, or even by fixing tariffs ex officio.

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.

32 As regards, in the first place, whether it is possible to conclude on the basis of the legislation at issue in the main proceedings that an agreement, decision or concerted practice exists between private economic operators, it should be noted that the committee which established, in the cases in the main proceedings, the minimum operating costs, namely the Osservatorio, is composed principally of representatives of professional associations of carriers and customers. At the material time in the main proceedings, of the 10 members of the Osservatorio chosen by the President of the Consulta, 8 represented the views of associations of carriers and customers, the decree appointing those members stating moreover that they were appointed ‘as representatives’ of the association or the undertaking to which they belong.

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).

35 However, according to the information in the order for reference, the national legislation establishing the Consulta and the Osservatorio does not indicate the guiding principles which those bodies must observe and does not contain any provision such as to prevent the representatives of the professional organisations from acting in the exclusive interest of the profession.

36 Moreover, as regards the national provisions which establish the system of minimum operating costs and which confer the power to fix those costs on the Osservatorio, the Court observes that it is true that Article 83a(4) of amended Decree-Law No 112/2008, first, refers to the objectives of the protection of road safety and of the proper functioning of the road haulage market for hire and reward and, second, provides that those minimum operating costs must, in any event, ensure compliance with the safety standards laid down by law.

37 However, the legislation at issue in the main proceedings merely makes vague reference to the protection of road safety and, moreover, leaves a very large margin of discretion and independence to the members of the Osservatorio in the determination of the minimum operating costs in the interest of the professional organisations which appointed them. Thus, the Commission observes in that regard that the minutes of a meeting of the Osservatorio refer to the fact that, when its members disagreed with one another on the scope of the minimum operating costs, one of those members expressed his opposition on account of the interests of the professional association that he represented and not on account of public interests.

38 In those circumstances, the national legislation at issue in the main proceedings does not contain either procedural arrangements or substantive requirements capable of ensuring, that, when establishing minimum operating costs, the Osservatorio conducts itself like an arm of the State working in the public interest.

39 As regards, in the second place, whether the public authorities delegated their powers, in terms of setting tariffs, to private operators, the Court observes that Article 83a(1),(2) and (4a) of amended Decree-Law No 112/2008 merely provides that the Osservatorio ‘shall fix’ the various types of costs referred to by the national legislation at issue in the main proceedings. It is apparent from the case-file submitted to the Court of Justice that the public authorities do not exercise any review over the assessments of the Osservatorio regarding the criteria for fixing minimum operating costs or the rate set.

40 Similarly, it is not apparent that other bodies or public associations are consulted before those costs are set by decree and brought into force.

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).

45 In the light of the foregoing considerations, it must be held that the fixing of minimum operating costs for road transport, which is made mandatory by legislation such as that at issue in the main proceedings, is capable of restricting competition in the internal market.

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).

49 However, without there being any need to consider whether the case-law cited in paragraphs 47 and 48 of this judgment is applicable to national legislation prescribing a horizontal price agreement, it is sufficient to note that the legislation at issue in the main proceedings cannot, in any event, be justified by a legitimate objective.

50 According to Article 83a(4) of amended Decree-Law No 112/2008, the fixing of minimum operating costs is intended to protect, in particular, road safety.

51 Although it cannot be ruled out that the protection of road safety may constitute a legitimate objective, the fixing of minimum operating costs does not appear appropriate, either directly or indirectly, for ensuring that that objective is attained.

52 In that regard, the Court would point out that the legislation at issue in the main proceedings merely refers, in a general manner, to the protection of road safety, without establishing any link whatsoever between the minimum operating costs and the improvement of road safety.

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).

54 In that regard, the Court observes that although the ‘minimum cost’ under Article 83a of amended Decree-Law No 112/2008 is supposed to represent the minimum amount, determined objectively, below which it would not be possible to satisfy the obligations imposed by the legislation on the protection of road traffic safety, the legislation at issue in the main proceedings none the less provides for exceptions. Thus, pursuant to Article 83a(4)c of amended Decree-Law No 112/2008, the parties are free to negotiate the fixing of the charge where the provision of transport services is limited to 100 kilometres per day. Similarly, paragraph 16 of that article provides for the possibility of derogating, by means of sectoral agreements, from the minimum cost fixed by the Osservatorio.

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).

56 Second, there are a number of rules, including the rules of EU law, which are mentioned in paragraph 7 of this judgment, relating specifically to road safety, which constitute more effective and less restrictive measures, such as the EU rules on the maximum weekly working time, breaks, rest, night work and roadworthiness tests for vehicles. Rigorous compliance with those rules can indeed ensure an appropriate level of road safety.

57 It follows that the fixing of minimum operating costs cannot be justified by a legitimate objective.

58 It follows from all the foregoing considerations that the answer to the questions referred is that Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which the price of haulage services for hire and reward may not be lower than minimum operating costs, which are fixed by a body composed mainly of representatives of the economic operators concerned.

59 In the light of the reply above, it is not necessary to interpret Articles 49 TFEU, 56 TFEU and 96 TFEU.

60 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which the price of haulage services for hire and reward may not be lower than minimum operating costs, which are fixed by a body composed mainly of representatives of the economic operators concerned.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> API (Judgment) [2014] EUECJ C-184/13 (04 September 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C18413.html Cite as: [2014] EUECJ C-184/13, ECLI:EU:C:2014:2147, EU:C:2014:2147

Court of Justice of the European Communities (including Court of First Instance Decisions)