Merci convenzionali porto di Genova SpA contra Siderurgica Gabrielli SpA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Schockweiler
• ECLI: ECLI:EU:C:1991:464
• Docket Number: C-179/90
• Date: 10 December 1991
• Celex Number: 61990CJ0179
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court of 10 December 1991. - Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA. - Reference for a preliminary ruling: Tribunale di Genova - Italy. - Dock-work undertakings - Statutory monopoly - Competition rules - Prohibition of discrimination ongrounds of nationality - Free movement of goods. - Case C-179/90.

European Court reports 1991 Page I-05889
Swedish special edition Page I-00507
Finnish special edition Page I-00537

Summary Parties Grounds Decision on costs Operative part

Keywords

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1. Free movement of persons - Workers - Concept - Existence of relationship of association between workers of the same undertaking - No effect

(EEC Treaty, Art. 48)

2. Competition - Public undertakings and undertakings to which Member States grant special or exclusive rights - Monopoly of performance of dock work - Monopoly resulting in abuse of a dominant position - Not permissible

(EEC Treaty, Arts 86 and 90(1) )

3. Free movement of goods - Quantitative restrictions - Measures having equivalent effect - National rules facilitating abuse of a dominant position resulting in obstacles to the importation of goods from other Member States

(EEC Treaty, Art. 30)

4. Competition - Public undertakings and undertakings to which Member States grant special or exclusive rights - Rules of the Treaty - Direct effect

(EEC Treaty, Arts 30, 48, 86 and 90)

5. Competition - Undertakings entrusted with the operation of services of general economic interest - Identification based on the specific nature of the activity - Subject to the rules of the Treaty - Derogation - Conditions

(EEC Treaty, Art. 90(2) )

Summary

1. The concept of worker within the meaning of Article 48 of the Treaty pre-supposes that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. That description is not affected by the fact that the worker, whilst being linked to the undertaking by a relationship of employment, is linked to other workers by a relationship of association.

2. Although the simple fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not as such incompatible with Article 86 of the Treaty, a State is in breach of those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, cannot avoid abusing its dominant position or when such rights are liable to create a situation such that it is induced to commit such abuses.

Such is the case when an undertaking to which a monopoly to perform dock work has been granted is induced either to demand payment for services which have not been requested, to charge disproportionate prices, to refuse to have recourse to modern technology or to grant price reductions to certain consumers and at the same time to offset such reductions by an increase in the charges to other consumers.

3. A national measure which has the effect of facilitating the abuse of a dominant position capable of affecting trade between Member States is normally incompatible with Article 30 of the Treaty in so far as it has the effect of making more difficult and hence of impeding the importation of goods from other Member States.

4. Even within the framework of Article 90 of the Treaty, the provisions of Articles 30, 48 and 86 of the Treaty have direct effect and give rise for individuals to rights which the national courts must protect.

5. Dock work is not, in principle, a service of general economic interest exhibiting special characteristics, as compared with the general economic interest of other economic activities, which might bring it within the field of application of Article 90(2) of the Treaty. In any case, the fact that the public authorities have entrusted an undertaking with the operation of services of general economic interest does not, by virtue of the aforesaid provision, absolve it from compliance with the rules of the Treaty unless the application of those rules may obstruct the performance of the particular tasks assigned to it and unless the interests of the Community are not affected.

Parties

In Case C-179/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by theTribunale di Genova (District Court, Genoa) Italy, for a preliminary ruling in the proceedings pending before that court between

Merci Convenzionali Porto di Genova SpA

and

Siderurgica Gabrielli SpA

on the interpretation of Articles 7, 30, 85, 86 and 90 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Díez de Velasco, Judges,

Advocate General: W. Van Gerven,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Merci Convenzionali Porto di Genova SpA, by Sergio Medina and Giuseppe Ferraris, of the Genoa Bar,

- Siderurgica Gabrielli SpA, by Giuseppe Conte and Giuseppe Michele Giacomini, of the Genoa Bar,

- the Commission of the European Communities, by Enrico Traversa, a member of the Legal Service, acting as Agent, assisted by Renzo Maria Morresi, of the Bologna Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Merci Convenzionali Porto di Genova SpA, Siderurgica Gabrielli SpA and the Commision at the hearing on 30 May 1991,

after hearing the Opinion of the Advocate General at the sitting on 19 September 1991,

gives the following

Judgment

Grounds

1 By order dated 6 April 1990, which was received at the Court on 7 June 1990, the Tribunale di Genova (District Court, Genoa) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 7, 30, 85, 86 and 90 of the Treaty.

2 The questions arose in the course of proceedings between Merci Convenzionali Porto di Genova SpA (hereinafter referred to as "Merci") and Siderurgica Gabrielli SpA (hereinafter referred to as "Siderurgica") concerning the unloading of goods in the port of Genoa.

3 It appears from the documents sent to the Court that in Italy the loading, unloading, transhipment, storage and general movement of goods or material of any kind within the port are reserved, under Article 110 of the Codice della Navigazione (Navigation Code), to dock-work companies whose workers, who are also members of these companies, must, under Articles 152 and 156 of the Regolamento per la Navigazione Marittima (Regulation on Maritime Navigation), be of Italian nationality. Any failure to respect the exclusive rights vested in the dock-work companies results in the imposition of the penalties laid down by Article 1172 of the Codice della...