Procedimento penal entablado contra Silvano Raso y otros.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 12 February 1998

Avis juridique important

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61996J0163

Judgment of the Court (Fifth Chamber) of 12 February 1998. - 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

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

Competition - Public undertakings and undertakings granted special or exclusive rights by a Member State - Monopoly in the supply of temporary labour to port users - Monopoly leading to abuse of a dominant position - Not permissible

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

Summary

Although merely creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or when such rights are liable to create a situation in which that undertaking is led to commit such abuses.

That is the case where a national law does not merely grant a dock-work company the exclusive right to supply temporary labour to terminal concessionaires and to other undertakings authorised to operate in the port but also enables it to compete with them on the market in dock services. That is because merely exercising its monopoly will enable it to distort in its favour the equal conditions of competition between the various operators on the market in dock-work services and it is led to abuse its monopoly by imposing on its competitors in the dock-work market unduly high costs for the supply of labour or by supplying them with labour less suited to the work to be done.

Parties

In Case C-163/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale, La Spezia (Italy), for a preliminary ruling in the criminal proceedings pending before that court against

Silvano Raso and Others

on the interpretation of Articles 59, 86 and 90(1) of the EC Treaty,

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet (Rapporteur), J.C. Moitinho de Almeida, P. Jann and L. Sevón, Judges,

Advocate General: N. Fennelly,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Silvano Raso and Others, by Sergio Carbone, Camillo Paroletti and Francesco Munari, of the Genoa Bar,

- the Italian Government, by Umberto Leanza, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato,

- the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent,

- the French Government, by Régine Loosli-Surrans, Chargée de Mission in the Legal Directorate of the Ministry of Foreign Affairs, and Catherine de Salins, Head of Sub-Directorate in the same Directorate, acting as Agents,

- the United Kingdom Government, by Lindsey Nicoll, of the Treasury Solicitor's Department, acting as Agent, and Christopher Vajda, Barrister,

- the Commission of the European Communities, by Laura Pignataro and Richard Lyal, of its Legal Service, acting as Agents,

having regard to the report for the hearing,

after hearing the oral observations of Silvano Raso and Others, the Italian Government, the French Government and the Commission at the hearing on 10 June 1997,

after hearing the Opinion of the Advocate General at the sitting on 9 October 1997,

gives the following

Judgment

Grounds

1 By order of 12 April 1996, received at the Court on 10 May 1996, the Pretura Circondariale, La Spezia, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions concerning Articles 59, 86 and 90 of that Treaty.

2 The questions arose during criminal proceedings against Mr Raso and 10 other persons, the legal representatives of La Spezia Container Terminal SRL (hereinafter `LSCT'), the concessionaire for a terminal within the port of La Spezia, and four other undertakings authorised to carry out dock work there, who were accused of having unlawfully used and supplied labour in breach of Article 1(1) of Law No 1369 of 23 October 1960 (hereinafter `the 1960 Law').

The Italian legislation

3 Prior to the judgment of 10 December 1991 in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889 Italian seaports were administered by public port authorities.

4 Under Article 110 of the Codice della Navigazione (Shipping Code, hereinafter `the Code'), dock workers were formed into companies or groups (hereinafter `dock-work companies') having their own legal personality, to whom all dock work was reserved. This monopoly was reinforced by Article 1172 of the Code, which prescribed penalties for any person who used for dock work labour not affiliated to a dock-work company.

5 Article 111 of the Code empowered the relevant port authorities to grant concessions for `the carrying on of port operations for third parties'. The undertakings granted such concessions were, as a rule, private undertakings which organised the provision of services, including dock work, for users of Italian ports. In order to do so they were obliged to use labour supplied by the dock-work companies. The scale of fees and other rules governing the services performed by the dock-work companies were fixed by the port authorities, in accordance with Article 112 of the Code and Article 203 of the Regolamento per la Navigazione Marittima (Maritime Shipping Regulation).

6 In the judgment referred to above the Court held that Article 90(1) of the EC Treaty, in conjunction with Articles 30, 48 and 86 of the Treaty, precluded rules of a Member State which required an undertaking established in that State, to which the exclusive right to organise dock work had been granted, to have recourse for that purpose to a dock-work company formed exclusively of national workers.

7 As a result of that judgment the Italian Government adopted legislation in the form of decree laws which were applied, by virtue of successive renewals, until the entry into force of Law No 84/94 of 28 January 1994 amending the legislation applicable in respect of ports (Gazzetta Ufficiale della Repubblica Italiana No 21 of 4 February 1994, `the 1994 Law'), which in effect codified the rules contained in certain emergency decrees.

8 The new rules essentially restrict the monopoly of the former dock work companies to the supply of temporary labour.

9 Article 18(1) of Law No 84/94 provides that for the...