Opinion of Mr Advocate General Van Gerven delivered on 19 September 1991

1 Original language: Dutch.

2 Under Anicie I of the Code this includes loading, unloading, transhipment, storage and general movement within the pon of goods and all other material.

3 Articles 152(2) and 156(6). That requirement applies also to temporary dock workers; see Article 194 of the Regulation.

4 In fact Siderurgica had been refused permission to unload the steel itself by using the equipment and crew of the vessel.

5 However, it may be noted that, according to Merci, Article 111 of the Code, under which it was granted a concession for the organization of dock work on behalf of third panics, ¡s not at issue in this case. See section 9 below

6 The only disagreement concerns the consequences which this incompatibility involves for Merci as regards the reimbursement of the sums paid by Siderurgica for the dock-work services.

7 Judgments in Case 244/81 Foglia v Novello [1981] ECR 3045 at paragraphs 14 and 15; and Case 338/85 Parami v Ministero del Commercio con l'Ellero [1988] ECR 2041 at paragraph 8; see also the Order of the Court in Case C-286/88 Falciola [1990] ECR I-191 at paragraph 7.

8 See the judgment in Case 338/85 Pardini, previously cited, paragraph 9.

9 Judgment in Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563 at paragraph 6 and the Order in Case C-286/88 Falciola, previously cited in footnote 6, at paragraph 8.

10 As may be seen from its observations submitted to the Court, the Commission too thinks that the Italian legislation in question is contrary to Community law. It is not clear, therefore, why the Commission did not bring this legislation before the Court under Article 169 of the EEC Treaty: as Mr Advocate General Darmon indicated in his Opinion in Case 229/83 Leclerc v An Blé Vert [1985] ECR 1, at page 16, proceedings under Article 169 would have made possible an examination of the legislation in question in concreto rather than an abstract review of compatibility with the Treaty in the context of proceedings under Article 177.

11 Sec Anieles 110, 111. 112 and 1172 of the Code, previously described.

12 Sec footnote 4.

13 In fact lhe questions mention expressly only the monopoly in loading and unloading goods, that is, the monopoly granted to Compagnia Nevertheless it may, in my opinion, be clearly seen from the remainder of the order for reference that m this case it is not solely the monopoly granted lo Compagnia which is at issue

14 Of course the position is that under Article 111 of the Code several undertakings enjoy the concession to organize dock ork for third persons. However, it is not disputed that Merci is the only undertaking which has received such a concession for ordinary freight in the Port of Genoa. In the case of containers, for example, there is another monopoly granted to the dock-work undertaking Terminal Contenitori di Genova

15 155/73 |1974] ECR 409 at paragraph 14

16 Case C-202/88 [1991] ECR I-1223 at paragraph 22

17 Case C-260/89 [1991] ECR I-2925 at paragraph 12

18 Merci points out that the dock workers are not employees but members of the dock-work companies; however, Merci does not deny that the dock-work companies nevertheless also appoint employees.

19 Sec, for example, as regards the concepi of employment in the public service, the judgment in Case 149/79 Commission v Belgium [1980] ECR 3881, at paragraph 9 et seq., whence it may be seen that it affects a limited number of posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities (paragraph 10)

20 See, for example, as regards the concept of activities connected with the exercise of official authority, the judgment in Case 2/74 Reyners v Belgium [1974] ECR 631 at paragraph 42 et seq , according to which these must be activities which in themselves involve a direct and specific connection with the exercise of official authority (paragraph 54)

21 With regard to Article 7 of the EEC Treaty sec, for example, the judgments in Case 1/78 Kenny v Iniurance Officer [1978] ECR 1489 at paragraph 12, and in Case 24/86 Blaizoti University of Liege and Olheri [1988] ECR 379 at paragraph 35. With regard to Article 48 of the EEC Treaty see, for example, the judgments in Case 41/74 van Duyn v Home Office [1974] ECR 1337 at paragraphs 4 to 8, and in Case 168/85 Commission v Italy [1986] ECR 2945 at paragraph 7. With regard to Article 52 of the EEC Treaty sec, for example, the judgments in Case 2/74 Reyners v Belgium [1974] ECR 631 at paragraphs 30 and 32 and in Case 81/87 The Queen v Treasury and Commissioners of Inland Revenue, ex pane Daily Mail and General Trull pk [1988] ECR 5483 at paragraph 15 With regard to Article 59 of the EEC Treaty see, for example, the judgments in Case 33/74 van Bmsbergen v Bedrijfsvereniging Metaalnijverheid [1974] LCR 1299 at paragraphs 18 to 17 and in Case C-49/89 Corsica Ferrses France v Direction Générale des Douanes [1989] LCR 4441 at paragraph 10.

22 The Court expressly confirmed this in Case 155/73 Sacchi, already cited (see footnote 14), as regards Articles 90 and 86. There does not seem to be any reason why that should not also apply to other provisions having direct effect Sec, inter alia, Wyatt, D and Dashwood, A. The Substantive Law of the EEC, London, 1987, p. 524 See also, earlier, Waclbroeck, M.. Le droit de la Communauté économique européenne, volume 4, Concurrence, Brussels, 1972. pp 86 and 87

23 See, for example, the judgments in Case 13/77 INNO v ATAB [1977] ECR 2115 at paragraph 33, in Case 231/83 CW/e/v Leclerc [1985] ECR 305 at paragraph 16, in Case 267/86 Van Eycke v ASPA [1988] ECR 4769 at paragraph 16, in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803 at paragraph 48, and in Case C-260/89 ERT, previously cited in footnote 16, at paragraph 35.

24 See, for example, the judgments mentioned in the previous footnote, INNO v ATAB, at paragraph 32, Ahmed Saeed, at paragraph 50 and ERT, at paragraph 36.

25 That is the case for example in the judgment in Case 30/87 Bodson v Pompes Funèbres des Régions Libérées [1988] ECR 2479, which rules that a communal authority which requires undertakings occupying a dominant position to charge especially high prices for the services they provide is acting in contravention of Article 90(1).

26 That is the position for example in the judgment in Ahmed Saeed (see footnote 22), which rules that the approval by the public authority of agreements on tariffs contrary to Article 85(1) is contrary to Article 5 and in that case to Article 90.

27 That is the case in the £RT judgment (already cited in footnote 16), which states that a Member State is infringing the combined provisions of Article 90 and 86 of the EEC Treaty when it grants an exclusive right to an undertaking and in so doing creates a situation in which that undertaking is led to infringe Article 86. The judgment in Case C-41/90 Hafner and ¿Vier [1991] ECR 1979 also relates to that category of measure.

28 See the judgment in Van Eycke (previously cited in footnote 22), in which the Court nevertheless found that that situation did not arise in that case.

29 See, for example, the judgments cited in footnotes 24, 26 and 27. For further details, see my Opinion due to be delivered at the sitting on 16 October 1991 in Joined Cases C-48/90 and C-66/90 Netherlands and Koninklijke PTT NV and PTT-Post BVv Commission.

30 I shall not consider further the special situation in which legislation delegates rule-making powers to undertakings.

31 The concepe of undertaking has always been widely interpreted, so that in the judgment in Hofner and Eiser, fireviously cited in footnote 26, the German Bundesanstalt tir Arbeit was itself regarded as an undertaking because, as a distinct entity, that public institution carried out the economic activity of employment procurement.

32 See footnote 1.

33 Sec the Communication of 19 March 1985 (OJ 1985 C 212) and the preamble to Regulations (EEC) No 4056/86 of 22 December 1986 (OJ 1986 L 378) and No 3975/87 of 14 December 1987 (OJ 1987 L 374).

34 Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378. p. 4).

35 On the analogous situation of air transport, cf the judgment in Ahmed Siieed. previously cued in footnote 22, at paragraphs 32 and 33

36 See, for example, the judgments in Case 322/81 Michelin v Commission [1983] ECR 3461 at paragraph 30 and in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261 at paragraph 16.

37 See, for example, the judgment in Case 26/75 General Motors v Commission [1975] ECR 1367 at paragraph 9, and the judgments, previously cited, in INNO v ATAB at paragraph 34, and in CBEM v CLT and IPB at paragraph 16.

38 See footnote 22.

39 See the judgment in Case 27/75 United Brands v Commission [1978] ECR 207 at paragraph 249. It may be seen from the judgment in General Motors, previously cited, at paragraph 12, that the Court considers that prices are to be regarded as unfair when they are excessive in relation to the economic value of the service provided (see also paragraph 250 of the judgment in United Brands}.

40 See the judgments in Sacchi, previously cited in footnote 14, at paragraph 17, in General Motors, previously cited in footnote 36, at paragraphs 11 and 12, and in Case 226/84 British Leyland v Commission [1986] ECR 3263 at paragraph 27, in which the Court refers to the judgment in General Motors.

41 As emerges from the facts previously mentioned (section 3 above), the dock work organized by Merci for Siderurgica and performed by Compagnia were in reality imposed on Siderurgica; in fact Siderurgica had wished to unload and organize transport for the consignment of steel itself.

42 In this connection Siderurgica refers to 1 study by Launa F.: Le Compagnie portuali nel diritto interno e comunitario. Edizione Giuffre, Milan, 1981, and to a statement by the Comitato Sezione Lavoro of the pori authority for the Port of Genoa in a report of 23 July 1987, which runs as follows ... taking the basic cost of labour at 100, the supplementary sums to be added to that cost to reach the final cost of the operation amount to 1194.26% (sic!!) (quoted in Siderurgica's observations, page 12).

43 On this subject the Commission refers to a study by Marconsult SpA of 1990 relating to the organization and cost of the transhipment of containers in the principal European ports. It emerges from that study, for example, that the cost of transhipment of one unit varied between LIT 110000 and 116000 in the Port of Antwerp, between LIT 180000 and 200000 in the Ports of Hamburg, Marseille and Naples and between LIT 230000 and 250000 in the Ports of Venice, Barcelona and Leghorn, whilst the cost of transhipment of one unit amounts to LIT 270000 in the Port of Genoa.

44 In the report of 23 July 1987, previously mentioned in footnote 41, the Comitato Sezione Lavoro of the port authority for the Port of Genoa stated: The system of charges applied in the Port of Genoa for dock-work services has for years been notorious for its complexity and lack of transparency and for the fact that it is always impossible to determine in advance what the final cost of the services will be (quoted in Sidcrurgica's observations at page 12).

45 Judgment in Case 30/87, previously cited, footnote 24.

46 See on this subject the Commission's observations, page 38, and Siderurgica's observations, page 15.

47 See the judgment in Michelin v Commission, already cued in footnote 35. at paragraphs 87 to 91, in which the Court took the view that there had been no abuse within the meaning of subparagraph (c) of the second paragraph of Article 86, because n had not been established that the differences in treatment between various dealers were due to the application of unequal criteria or that they were not justified by legitimate commercial reasons (paragraph 90)

48 That emerges from the report of 23 July 1987 by the Comitato Sezione Lavoro of the port authority for the Port of Genoa previously referred to (Siderurgica's observations, page 13).

49 See above, section 2.

50 See the judgment in Sacchi, previously cited in footnote 14, at paragraph 18.

51 See paragraph 29 of the judgment in ERT, , previously cued in footnote 16 Sec also the Opinion of Mr Advocate General Lenz, delivered on 23 January 1991 in that case [(1991) ECR I-2939 in section 32 of the Opinion)

52 Judgment in Case 48/69 ICI v Commission[1972] ECR 619 at paragraphs 64 and 66. see also the judgment in Joined Cases 40 to 48, 50. 54 to 56, III, 113 and 114/73 Suiker Unte v Commissio n[1975] LCR 1663 at paragraph 191

53 Judgment in Case 8/74 Daaonvilk [1974] ECR 837 at paragraph 5.

54 See, for example, the judgment in Case 127/73 BRT v SABAM and NV Fomor [1974] ECR 313 at paragraph 19

55 See the judgments in BRT v SADAM and NV Fonior, cited in the previous footnote, at paragraph 20, in Case 7/82 GVL v Comminon [1983] ECR 483, at paragraphs 29 to 32, and in Ahmed Saeed, previously cited in footnote 22, at paragraph 55.

56 See the judgment in Ahmed Saeed, previously cited in footnote 22, at paragraph 55. Hitherto the Court has regarded as activities of general economic interest inter alia: maintenance of the navigability of an important waterway (judgment in Case 10/71 Luxembourg v Muller [1971] ECR 723); distribution of water (judgment in Case 96/82 IAZ v Commission [1983] ECR 3369); provision of services m the field of telecommunications (judgment in Case 41/83 Italy v Commission [1985] ECR 873; and television broadcasts (judgment in Case 155/73 Sacchi [1974] ECR 409)

57 That seems to be the view also of the Tribunale Amministrativo Regionale which, in a judgment of 21 December 1988 relating to dock-work companies, stated. In fact it cannot be concluded that the object of the national rules in the field of dock-work companies was to entrust to them a service of general economic interest (Foro It. 89, part 3, p 98)

58 See the judgments in Hofner and Eller, previously cited in footnote 26, at paragraph 24, and in CBEM, previously cited in footnote 35, at paragraph 17

59 See the judgment in Muller, previously cited in footnote 55, at paragraphs 13 to 16.

60 See the judgments in Sacchi, previously cited in footnote 14, at paragraph 18, in BRT v SADAM, previously cited in footnote 53, at paragraph 22, in CBEM, previously cited in footnote 35, at paragraph 17, and in Ahmed Saeed, previously cited in footnote 22, at paragraphs 55 to 57.

61 See the judgment in Ahmed Saeed, previously cited in footnote 22, at paragraph 56.

62 Ibidem, at paragraph 57.

63 See the judgment in Case C-234/89 Delimilis [1991] ECR I-935 at paragraph 53.