Opinion of Advocate General Tesauro delivered on 9 February 1993

1 Original language: Italian.

2 [1991] ECR I-1979.

3 See the judgments in Case 311/84 CBEM [1985] ECR3261 and, most recently, ¡n Case C-260/89 ERT [1991] ECR I-2925.

4 Spain v Commission [1992] ECR I-5833.

5 Ministère Public Luxembourgeois v Madeleine Hein, née Muller [1971] ECR 723.

6 Mera Convenzionali Porto di Genova [1991] ECR I-5889.

7 It should be stated that in the Port de Merten judgment, as in the Inter-Huües judgment (Case 172/82 [1983] ECR 555), the Court takes as its starting point the principle that Article 90(2) is not a provision which is direcdy applicable. That interpretation, already contradicted by other judgments delivered more or less at the same time as the two abovementioned judgments, appears by now to have been entirely overruled in the light ofmore recent decisions (see in particular the judgments in ERT and Porto di Genova).

8 Judgment in Case 155/73 [1974] ECR 409.

9 Judgment in Case 90/76 van Ameyde v U. C. I. [1977] ECR 1091.

10 In the main proceedings the loss adjuster had asked the court to declare illegal UCI's claim to entrust investigation and settlement of accident claims solely to insurance companies which were members of the UCI itself, and consequently to declare illegal any action taken by UCI with regard to third persons intended to restrict the plaintiff's freedom of action and to take over its customers.

11 Case 13/77 [1977] ECR 2115.

12 The fact that the formula of a situation necessarily leading to an abuse is ambiguous (a rather confusing formula according to L. Gyselen in CMLR 1992, p. 1238) and therefore capable of arousing some uncertainties in application is confirmed by the rather divergent results arrived at by national courts called upon to apply, in individual cases, the Porto di Genova judgment. In fact according to some courts (Tribunale di Genova, order of 9 July 1992; Pretura di Genova, orders of 19 June, 22 June, 20 July and 12 August 1992, reported in Foro Italiano, 1992, I, 2811), the Court did not determine the illegality as such of the exclusive right conferred on the port companies but restricted itself to condemning misuse of them: it follows, according to that case-law, that the statutory reservation granted to the port companies could be regarded as void only if it appeared that the monopoly rights had actually been exercised in an abusive manner. Other courts on the other hand (Pretura de La Spezia, order of 3 June 1992; Pretura di Massa, order of 2 June 1992, also reported in Foro Italiano, cit.) have thought that, under the judgment of the Court, the statutory reservation must be considered, as such, to be incompatible with Community law. Both the Italian Government, in the circular issued to give effect to the judgment in Porto di Genova and the Consiglio di Stato in an opinion given on that circular (Parere 13 May 1992, No 598, reported in Foro Italiano, 1992, III, 425) have taken the second view. Both took the view that the judgment of the Court decided that the last paragraph of Article 110 of the Codice della Navigazione was illegal so that the companies' monopoly in the performance of dock work was void. It is abo worth pointing out that, in the said opinion, the Consiglio di Stato, taking a different point of view from that expressed in the ministerial circular, thought that the judgment of the Court not only involved the elimination of the port monopolies but also had repercussions on the system of administrative franchise for the performance of dock work referred to in Article 111 of the Codice della Navi-tazione. The Consiglio in fact deduced from the Court's ecision a series of criteria which the administrative authority was to observe in granting franchises. Those obligations are based on the statement that, in accordance with the principles of Community legislation, the system of administrative franchise must not result in the de facto establishment of illegal monopoly situations owing to a mistaken use of administrative power arising from the issue of a single authorization or a restricted number thereof. According to the Consiglio di Stato, the implementation of Community rules involves the grant of a number of franchises so as to guarantee the free market and a system of effective competition between undertakings. It follows that, in granting franchises, the administrative authority is required to assess the economic details of the relationship between the number of undertakings and the requirements of port traffic and the legal details of the requirement to implement the principles derived from Community rules on the subject of the free market and free competition. It is also pointed out in the opinion that the administrative provisions adopted in this matter must contain a proper statement of the reasons on which they are based.

13 [1991] ECRI-4069.

14 In the Höfner and Eher judgment the Court had stated that Article 59 was not applicable to that case in view of the fact that both the undertaking possessing the exclusive right and the person for whom the service was intended were nationals of one and the same Member State.

15 Case C-18/88 [1991] ECR I-5973.

16 In the Green Paper on the single market in postal services — COM (91) 476 final, of 11 June 1992 — the Commission stresses the need to guarantee the provision throughout the Community of the universal postal service at prices accessible to all. That objective must be attained through the establishing (inasmuch as it was needed in Member States individually) of a set of reserved services which would confer some special and exclusive rights, in order to maintain the resources necessary for the undertaking the public service mission in sound conditions; at the same time, consistent with this objective, to have largest possible part of the sector operating in free competition (sic) (Executive Summary, p. 10).

17 The fact that such services are those which most frequently characterize the rapid delivery service may be seen not only from the Green Paper but also from the decisions adopted by the Commission under Article 90(3) in relation to the scheme for the operations of the rapid delivery service in Spain (Decision 90/456/EEC of 1 August 1990, OJ 1990 L 10, p. 19) and in the Netherlands (Decision 90/16ÆEC of 20 December 1989, OJ 1989 L 10, p. 47).

18 As regards the provision of rapid delivery services in a territorially restricted area, see Commission Decision 90/16/EEC in which it was stated that on 1 January 1989 the undertakings providing such services in the Netherlands were to a large extent small and medium-sized undertakings employing for that service some 4000 persons mostly engaged in distributing the correspondence within the country.

19 Judgment in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803 at paragraph 54 et seq. of the grounds of judgment.

20 In Decision 90/16/EEC the Commission considered the Netherlands legislation providing for a minimum tariff for express delivery services. In that case the Commission, without calling in question the minimum tariff as such, was critical of the fact that the tariff applied to the private operators and not to the postal administration, which reserved to itself the power to carry out the rapid delivery service even below the minimum tariff. It should also be noted that the adoption of a tariff system to provide a legal distinction between the province of the rapid delivery service (liberalized) and the basic postal service (subject to a monopoly) is recommended in the Commission Green Paper (see pp. 43, 201, 359 and 360).