Case C-184/13 API v Ministero delle Infrastutture dei Trasporti: Minimum pricing in road haulage services

Case C-184/13 concerns the compatibility with EU law, and in particular with Article 101 TFEU, of national legislation pursuant to which the price of road haulage services for hire and reward cannot be lower than the minimum operating costs. These costs are fixed primarily in the framework of voluntary sectoral agreements concluded by professional associations of carriers and customers, or in the absence of such agreements by the Osservatorio (a national body in Italy carrying out, inter alia, monitoring tasks concerning compliance with the provisions on road safety and social security and updating the practices and customs applicable to haulage contracts concluded orally), and if not by the latter, directly by the Ministry of Infrastructure and Transport.

In the case at hand, in the absence of voluntary sectoral agreements, the Osservatorio adopted, in 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 a decree of the Director General of the Italian Ministry for Infrastructure and Transport.
A number of applications were brought before the Tribunale amministrativo regionale per il Lazio for annulment of the acts by which the Osservatorio established the minimum costs. According to the referring court, the Italian legislation was introducing a regulated system for the fixing of minimum operating costs, which constrained free bargaining and curtailed the freedom to specify one of the essential elements of a contract, albeit for the purpose of ensuring compliance with safety standards. Is that consistent with EU law, the referring court asked.
The Court of Justice (“CoJ”) departed from the fact that Article 101 TFEU is concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States. That article, however, read in conjunction with Article 4(3) TEU, which lays down a duty of cooperation between the European Union and the Member States, 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 Case C‑94/04 and C‑202/04 Cipolla and Others, EU:C:2006:758, paragraph 46).
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.
The CoJ recalled its previous case-law, and in particular, the judgment in Case C-96/94 Centro Servizi Spediporto (EU:C:1995:308), which stated that, where the 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; 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.
And also the judgment in Case C-38/97 Librandi (EU:C:1998:454), where the CoJ 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.
In the present case, it was noted that the committee which established the minimum operating costs, namely the Osservatorio, was composed principally of representatives of professional associations of carriers and customers. Moreover, decisions of the Osservatorio were 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.
A tariff established by a professional organisation such as the Osservatorio, the CoJ continues, may none the less have the character of legislation 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.
However, the national legislation establishing the Osservatorio did not indicate the guiding principles which those bodies must observe and did not contain any provision such as to prevent the representatives of the professional organisations from acting in the exclusive interest of the profession.
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.
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 is regarded as an association of undertakings within the meaning of Article 101 TFEU when it adopts decisions fixing minimum operating costs for road transport.
The subsequent question is whether that legislation is capable of restricting competition within the internal market.
The fixing of minimum operating costs, which are made mandatory by national legislation by preventing undertakings from setting tariffs lower than those costs, amounts to the horizontal fixing of mandatory minimum tariffs, said the CoJ.
As regards the adverse effect on intracommunity trade, 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.
Thus, the fixing of minimum operating costs for road transport, which is made mandatory by legislation is capable of restricting competition in the internal market.
Lastly, it was noted that the legislation at issue making mandatory a decision of an association of undertakings which had the object or effect of restricting competition or restricting the freedom of action of the parties or of one of them did not necessarily fall within the prohibition laid down in Article 101(1) TFEU, read in conjunction with Article 4(3) TEU.
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 is also 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.
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.
The CoJ pointed out that the legislation at issue 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.
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.
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. Second, there are a number of rules, including the rules of EU law 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.
Thus, the CoJ found that the fixing of minimum operating costs cannot be justified by a legitimate objective and, thus, it was not necessary to interpret Articles 49 TFEU, 56 TFEU and 96 TFEU.

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