Opinion of Advocate General Tesauro Tesauro delivered on 14 July 1993

1 Original language: Italian.

2 Three measures are in force: the order of 8 March 1934, con cerning life assurance, which repealed and replaced an order of 10 August 1923; the order of 5 June 1934 on health insur ance; and finally the regulation of 17 August 1982 which concerns all indemnity insurance and therefore repealed and replaced all the previous orders covering specific branches of insurance: accident and civil liability (order of 14 May 1924), property insurance (order of 8 March 1934) and legal expenses insurance (order of 24 January 1967).

3 Sec, most recently. Case C 332/89 Marchandise [1991] ECR I - 1027, paragraph 22.

4 It goes without saying that any conflicts between Community and national competition law will be resolved by applying the principle of the primacy of Community law (sec the well-known judgment in Case 14/68 Wilhelm [1969] ECR I and Joined Cases 253/78 and I-3/79 Giry and Guerlain [1980] ECR 2327, in which the Court restated that the parallel application of national competition law can only be permitted in so far as it docs not prejudice the uniform application, throughout the common market, of the Community rules or the full effects of the measures adopted in implementation of those rules (paragraph 16).

5 It is clear that such a wide definition will cover every type of State rule: it will thus extend to all measures, legislative or otherwise, within the sphere of administrative law, which, in the public interest, regulate the activities of undertakings, and in particular measures regulating markets, including rules on prices and tariffs, environmental measures, economic and monetary policy measures and so forth, and those in the fields of taxation, employment, social security and so on.

6 Case 13/77 [1977] ECR 2115. It should be borne in mind, however, that the Court was confronted with a problem of that kind in Case 78/70 Deutsche Grammophon [1971] ECR 487. It was asked to rule on the compatibility of a provision of national copyright law with the second paragraph of Article 5 and Article 85(1). However, on that occasion the Court confined itself to saying that where the exercise of the exclusive right in question docs not exhibit the elements of contract or concerted practice referred to in Article 85(1) it is necessary ... to consider whether the exercise of the right in question is compatible with other provisions of the Treaty, in particular those relating to the free movement of goods (paragraph 7).

7 In that case the company INNO, which claimed that it should not be bound, for the purpose of retail sales, by a price fixed by tobacco manufacturers and importers, contended that the national legislation on prices was only in appearance part of tax law but in reality should be seen as national competition legislation providing legal cover for a restrictive agreement. It claimed, therefore, that it should be held to be unlawful for a Member States to require private undertakings to engage in conduct which, in the absence of a State provision, would be contrary to Article 85 or 86.

8 Sec in llut connection Case 82/77 Van Tlggelc [1978] ECR 25 (minimum price rules); Case 5/79 Buys [1979] ECR 3203 (rules freezing prices); Case 181/82 Roussel [1983] ECR 3849 (system of imposed prices); Case 238/82 Duphar [1984] ECR 523 (scheme for reimbursements in respect of medicinal preparations by socia! security bodies).

9 Joined Cases 177 and 178/82 [1984] ECR 1797. To the same clfcct, sec Case 188/86 Letivrc [1987] ECR 2963 (system of controlled prices for wholesale trade in beef and veal)

10 Case 123/83 [1985] ECR 391.

11 Case 136/86 [1987] ECR 4789.

12 Joined Cases 209-213/84 Asjes and Others [1986] ECR 1425.

13 Case 66/86 [1989] ECR 803.

14 Case 311/85 [1987] ECR 3801.

15 In the later judgment of 3 December 1987 in BNIC v Allbert — concerning circumstances wholly analogous to those in BNĪC v Clair — the Court, having reaffirmed that the agreement between undertakings was still subject to the prohibitions laid down by Article 85(1), made it clear that a State measure which makes the agreement binding on third parties as well is in turn incompatible with Articles 5 and 85.

16 The Court gave judgment on the same subject in Ahmed Saced, cited above, in which it confirmed that the approval by the aeronautical authorities of tariff agreements contrary to Article 85(1) is not compatible with Community law and in particular with Article 5 of the Treaty. It also follows that the aeronautical authorities must refrain from taking any measure which might be construed as encouraging airlines to conclude tariff agreements contrary to the Treaty. (paragraph 49).

17 Case 229/83 [1985] ECR 1.

18 Case 231/83 [1985] ECR 305.

19 The same view underlies the case-law of the Supreme Court of the United States, which raises no objections to measures which provide for active control by the State (see for example Bates v State Bar of Arizona 97 US 2691, 1977), whilst it regards as unconstitutional those measures which entrust entirely to economic agents the responsibility of regulating the market (see for example Goldfarb v Virginia State Bar 421 U. S., 1975, in which legislation allowing a bar association to fix minimum fees was held to be unlawful).

20 Case 267/86 [1988] ECR 4769. That case concerned a State measure on tax exemption for income from savings deposits adopted in a sector in which inter-bank agreements existed for the specific purpose of limiting income from savings deposits. The Court nevertheless considered that it had not been proved that the contested legislation was intended to require or facilitate the conclusion of new agreements or the implementation of new practices or that it had incorporated wholly or in part the elements of agreements entered into between economic agents requiring or encouraging compliance on the part of those undertakings (paragraph 18); it also held that the fact that the legislation had been adopted after consultation with representatives from the sector in question did not deprive it of its official character.

21 flic same tticlitm was repeated in later judgments in which the examination undertaken by the Court snowed that none of those conditions was satisfied and that the legislation in question was therefore not open to criticism from that standpoint (sec Case C-339/89 Ahlbom Atlantique [1991] ECR 1 107, paragraph 11 and Case C-332/89 Marchandise [1991] LCR I-1027, paragraph 22). Sec also Case C-60/91 Aloran [1992] ECR I 2085, paragraphs 11 and 12, in which the Court did not even enquire whether the con tested measure came within the scope of cither of the cases mentioned because it was not liable to undermine trade between Member States and therefore was not, in any event, likely to produce effects comparable to those of an agreement incompatible with Article 85(1).

22 Opinion of 13 December 1977 in Case 82/77 [1978] ECR 42, in particular at p. 48.

23 I refer to the Nouvelles Fronttères. BNIC v Aubert, Ahmed Saeed and Vlaamse Reisbureaus judgments, in which the Court concluded that the contested national measures were illegal.

24 Of particular importance in that connection arc the ŕ/e Haar and Leclerc petrol judgments.

25 This applies not only to the Van Tiggele judgment but also to those in Leclerc books and Van Eycke. The facts were similar in INNO v ÄTAB.

26 It will be remembered that in Van Eycke, cited above, the Court stated that the official character of legislation cannot be put in doubt by the mere fact that it was adopted after consultation with representatives of the associations in the sector concerned (paragraph 19).

27 Cilcd above.

28 That applies to agreements which, as pointed out by the Commission, fall within the scope of block exemption regulations.

29 Deutsche Grammophon, cited above, paragraph 5.

30 Sec, inter alia, INNO v ATAB, cited above, paragraph 29.

31 Order in Case 229/86 Brother [1987] ECR 3757, in particular at p. 3763.

32 See the judgment in Joined Cases C-89, 104, 114, 116, 117 and 125-129/85 Ahlströhm and Others v Commission [1993] ECR I-1307.

33 Case C-18/88 [1991] ECR I-5941, paragraph 20.

34 Since the verv fact of regulating the market involves, by dclinition, a limitation of competition, it is rare for Stale measures on the exercise of economic activities not to have anti competitive effects.

35 INNO v ATAB, cited above, paragraph 35.

36 Sec for example the judgments, cited above, in Van Tiggele, Buys, Roussel and Duphar, as well as in INNO itself and, to some extent, the Leclerc books' judgment.

37 Sec for example Ulrich, State intervention and EEC com petition law. World Comperinoti, 199C, p. 79 et seq