Criminal proceedings against Silvano Raso and Others.

• Jurisdiction: European Union
• Celex Number: 61996CC0163
• ECLI: ECLI:EU:C:1997:477
• Docket Number: C-163/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 09 October 1997

Important legal notice

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61996C0163

Opinion of Mr Advocate General Fennelly delivered on 9 October 1997. - Criminal proceedings against Silvano Raso and Others. - Reference for a preliminary ruling: Pretura circondariale di La Spezia - Italy. - Freedom to provide services - Competition - Special or exclusive rights - Undertakings holding a port terminal concession. - Case C-163/96.

European Court reports 1998 Page I-00533

Opinion of the Advocate-General

I - Introduction

1 This preliminary reference requires the Court once again to examine the compatibility with Community law of aspects of the legislation regulating activities at Italian ports. In Merci Convenzionali Porto di Genova (1) the Court held that Article 90(1) of the Treaty, in conjunction with Articles 30, 48 and 86 of the Treaty, precluded rules which conferred on undertakings established in Italy the exclusive right to organise dock work at Italian ports and required them to have exclusive recourse to the services of dock-work companies formed exclusively of dockers of Italian nationality. The present reference concerns the conformity with Community law of a fresh exclusive right conferred on a reconstituted version of those dock-work companies regarding the provision of temporary port labour only.

II - The legal context

2 The national legislative provisions are complex. In order to facilitate comprehension of the current ports legislation, I will, first, set out the legislative provisions in force prior to the Porto di Genova judgment; then I will examine in some detail the relevant aspects of the Court's judgment in that case before describing the general national legislation on employment procurement. Finally, I will summarise the relevant provisions of the new ports legislation, adopted by Italy largely in reaction to Porto di Genova.

A - The pre-Porto di Genova legislative context

3 The salient features of the pre-Porto di Genova legislation may be described as follows. First, as is apparent from the Report for the Hearing in Porto di Genova, Italian seaports were (as they remain) administered and regulated by public port authorities. (2) Secondly, under Article 110 of the Codice della Navigazione (3) (Shipping Code, hereinafter `the Code') workers employed for dock work were formed into companies or groups (compagnie portuali, hereinafter `dock-work company(ies)') having their own legal personality but subject to supervision by the port authority. All `loading, unloading, trans-shipment, storage and general movement of goods or material of any kind ...' was reserved, under Article 110 of the Code, to such dock-work companies. This monopoly was reinforced by Article 1172 of the Code, which prescribed penalties for any person who used for dock work a docker not affiliated to a dock-work company. (4) Thirdly, Articles 150, 152 and 156 of the Regolamento per la Navigazione Marittima (Maritime Shipping Regulation) (5) provided for the compulsory registration of dockers engaged by dock-work companies on appropriate temporary or permanent registers, a precondition for which was the possession of Italian nationality.

4 Article 111 of the Code empowered the relevant port authorities to grant concessions for `the carrying on by undertakings of port operations for third parties ...'. The undertakings granted such concessions were, as a rule, private undertakings (imprese portuali, hereinafter `dock-work undertaking(s)') which organised the provision of services, comprising, inter alia, dock work at Italian ports on behalf of third-party port users. (6) Dock-work undertakings were limited to using only the workforce provided by the dock-work companies. (7) The scale of fees and other rules governing the services performed by the dock-work companies were fixed, in accordance with Articles 112 of the Code and 203 of the Regulation, by the relevant port authorities. (8)

5 The compatibility with Community law of the above-described system of rules was impugned in the Porto di Genova case.

B - The Porto di Genova case

6 In Porto di Genova an Italian company, Siderurgica, imported a consignment of steel from Germany in a chartered vessel. (9) Although the ship was equipped for unloading by its own crew, the Code reserved such dock work to the relevant dock-work company at the Port of Genoa; viz. the Compagnia Unica Lavoratori Merci Varie del Porto di Genova (hereinafter `Compagnia'). (10) Accordingly, Siderurgica, in conformity with the Code, was obliged to call upon Merci Convenzionali Porto di Genova, the relevant dock-work undertaking (hereinafter `Merci'), to organise the unloading of its steel. Merci, in turn, was obliged to utilise the services of Compagnia.

7 The delivery of the goods was, however, delayed due to a series of strikes involving Compagnia's workforce. Siderurgica ultimately sought compensation for the damage thus caused and reimbursement of the charges levied for the compulsory, but unsolicited, use of Compagnia's dockers. The Tribunale di Genova (District Court, Genoa) took the view that the dispute (11) raised a problem of compatibility of the Italian rules with Community law and, consequently, referred two questions to the Court.

8 The decision of the Court combines two elements. Firstly, the principle of non-discrimination on grounds of nationality found in Article 7 of the EEC Treaty (now Article 6 of the EC Treaty) had been specifically applied to workers by Article 48 of the Treaty. For this purpose, the Court construed the Community-law concept of a `worker' as covering a person who `... whilst being linked to the undertaking by a relationship of employment, is linked to other workers by a relationship of association'. (12) Secondly, it considered Merci and the Compagnia to be in a dominant position on the market in respect of `the organisation on behalf of third persons of dock work ... and the performance of such work' in the Port of Genoa, which, for the purposes of the case, `[could] be regarded as constituting a substantial part of the common market'. (13) On the possible abuse of that dominant position, the Court, having referred both to its earlier decisions in Höfner and Elser (14) and ERT (15) and to the terms of subparagraphs (a), (b) and (c) of Article 86, held that it appeared `from the circumstances described by the national court ... that the undertakings enjoying exclusive rights in accordance with the procedures laid down by the national rules in question are, as a result, induced either to demand payment for services which have not been requested, to charge disproportionate prices, to refuse to have recourse to modern technology, which involves an increase in the cost of the operations and a prolongation of the time required for their performance, or to grant price reductions to certain customers and at the same time to offset such reductions by an increase in the charges to other customers'. (16) Consequently, the Court was satisfied `... that a Member State creates a situation contrary to Article 86 of the Treaty where it adopts rules of such a kind as those at issue before the national court, which are capable of affecting trade between Member States ...'. (17) It, therefore, advised the national court that: (18)

`Article 90(1) of the EEC Treaty, in conjunction with Articles 30, 48 and 86 of the Treaty, precludes rules of a Member State which confer on an undertaking established in that State the exclusive right to organise dock work and require it for that purpose to have recourse to a dock-work company formed exclusively of national workers.'

C - The general Italian labour-procurement legislation

9 The employment-procurement market in Italy is subject to a mandatory placement system administered by public employment agencies (sezioni circoscrizionali per l'impiego), which are regulated primarily by Law No 264 of 29 April 1949 (hereinafter the `1949 Law'), Article 11(1) of which prohibits any other persons from acting as employment intermediaries. Article 1(1) and (2) of Law No 1369 of 23 October 1960 (hereinafter the `1960 Law') prohibit, subject to criminal penalties, the management of any undertaking from arranging with intermediaries or subcontractors for the provision of labour, or from entrusting the execution of particular tasks to such persons or, indeed, to third parties. The objective of the rules is `... aimed at protecting employees against exploitation and loss of rights where the real employer is different from the person formally described as the employer, but who in reality is a mere intermediary'. (19) The present case is concerned with specific employment-procurement rules applicable in the ports sector. However, failure to respect those rules can expose those responsible to the penalties prescribed by the 1960 Law.

D - The relevant Italian ports legislation

10 The new national legislation referred to in the order for reference in the present case comprises Law No 84 of 28 January 1994 (hereinafter `the 1994 Law') amending the legislation applicable in respect of ports. (20) However, in response to a question posed at the hearing, counsel for the defendants in the main proceedings, who was not contradicted on this point by the agent representing Italy, stated that the amendments introduced by the 1994 Law merely codified the rules contained in certain emergency decrees adopted by the Italian Government in 1992 following the Porto di Genova judgment and which, by virtue of successive renewals, operated until the entry into force of the 1994 Law. Although it is for the national court to determine the effective temporal scope of the rules contained in the 1994 Law, it is reasonable to assume for the purposes of this reference that equivalent rules were in force for most of the period covered by the indictments at issue in the main proceedings. (21)

11 The new rules essentially restrict the monopoly of the...