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By providing that the price of haulage services may not be lower than minimum operating costs, Italian legislation infringes EU law

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By providing that the price of haulage services may not be lower than minimum operating costs, Italian legislation infringes EU law

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By providing that the price of haulage services may not be lower than minimum operating costs, Italian legislation infringes EU law *

As previously argued in two legal opinions for our clients, the EU Court stated that the application of such a minimum price is capable of restricting competition in the internal market; as such it can no loner be applied. As a consequence, there is also room to believe that who paid more is now entitled to ask for damages. Italian legislation on the carriage of goods by road provides that charges payable by customers may not be lower than minimum operating costs. Those minimum costs include the average cost of fuel per kilometre and the operating costs of the haulage company.

Minimum costs are determined by sectorial agreements concluded between haulage associations and associations of customers of transport services. At the material time, the Osservatorio sulle attività di autotrasporto (a body composed of representatives of the State, haulage associations and associations of customers of transport services) was charged with fixing minimum costs in the event that no agreement was concluded. Accordingly, in 2011, the Osservatorio adopted a series of tables in order to fix the minimum costs.

In today’s judgment, the Court recalls, first, that, although the TFEU rules on prohibited agreements between undertakings are not binding on Member States, those states are nevertheless subject to a duty of cooperation with the European Union, so that they may not adopt measures which may render those rules ineffective. Such rules are therefore infringed where a Member State requires or encourages the adoption of prohibited agreements, decisions or concerted practices, reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for decisions affecting the economic sphere.

Second, with respect to the legislation at issue in the main proceedings, the Court finds that the Osservatorio, composed for the most part of representatives of professional organisations and empowered to act in the exclusive interest of the profession, must be regarded as an association of undertakings subject directly to the rules of competition. In that regard, the Court observes that the fixing of minimum operating costs prevents undertakings from setting tariffs lower than those costs.
Thus, by limiting market operators’ freedom to determine the price of haulage services, the Italian legislation is capable of restricting competition in the internal market.

Third, the Court finds that the fixing of minimum costs is not appropriate, either directly or indirectly, for ensuring the attainment of the legitimate objective invoked in the present case by Italy (namely the maintenance of road safety) in order to justify the restriction of competition. The national legislation merely refers to road safety in a general manner, without establishing any link whatsoever between road safety and minimum costs. Moreover, the contested measure goes beyond what is necessary for the improvement of road safety.

In those circumstances, the Court finds that the Italian legislation at issue is not compatible with EU law.

* Judgment in Joined Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13 .

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