JUDGMENT OF THE COURT (Fifth Chamber)

18 June 1998 (1)

(Action for failure to fulfil obligations — Agreements, decisions and concertedpractices — Fixing of business tariffs — Customs agents — Legislation reinforcingthe effects of an agreement)

In Case C-35/96,

Commission of the European Communities, represented by Enrico Traversa, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Umberto Leanza, Head of the LegalDepartment in the Ministry of Foreign Affairs, acting as Agent, assisted by PierGiorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg atthe Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by adopting and maintaining in force a lawwhich, in granting the relative decision-making power, requires the ConsiglioNazionale degli Spedizionieri Doganali (National Council of Customs Agents) toadopt a decision by an association of undertakings contrary to Article 85 of the ECTreaty in that it sets a compulsory tariff for all customs agents, the Italian Republichas failed to fulfil its obligations under Articles 5 and 85 of the 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: G. Cosmas,

Registrar: R. Grass,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 4 December 1997,

after hearing the Opinion of the Advocate General at the sitting on 12 February1998,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 9 February 1996, the Commissionof the European Communities brought an action under Article 169 of the ECTreaty for a declaration that, by adopting and maintaining in force a law which, ingranting the relative decision-making power, requires the Consiglio Nazionale degliSpedizionieri Doganali (National Council of Customs Agents, hereinafter 'theCNSD‘) to adopt a decision by an association of undertakings contrary to Article85 of the EC Treaty in that it sets a compulsory tariff for all customs agents, theItalian Republic has failed to fulfil its obligations under Articles 5 and 85 of theTreaty.

2.

    In Italy, the activity of customs agents is regulated by Law No 1612 of 22 December1960 on the legal recognition of the profession of customs agent and theestablishment of registers and insurance funds for customs agents (GURI No 4 of5 January 1961, hereinafter 'Law No 1612/1960‘) and by implementing provisionscontained principally in Presidential and Ministerial Decrees.

3.

    The activity involves the provision of services relating to customs clearanceprocedures (Article 1 of Law No 1612/1960). To pursue it, customs agents mustpossess authorisation (patente) and be entered in the national register of customsagents. This is made up of all the departmental registers held by the Consiglicompartimentali (Departmental Councils of Customs Agents) for each customsdepartment (Articles 2 and 4 to 12 of Law No 1612/1960).

4.

    Supervision of the activity of customs agents is carried out by the DepartmentalCouncils of Customs Agents. Their members are elected by secret ballot by thecustoms agents entered in the registers of the various departmental directorates fora renewable term of two years. A chairman is elected by the members from amongtheir number (Article 10 of Law No 1612/1960).

5.

    The Departmental Councils of Customs Agents are headed by the CNSD, a bodygoverned by public law, composed of nine members elected by secret ballot by themembers of the Departmental Councils of Customs Agents and presided over bya member elected from among their number (Article 12 of Law No 1612/1960).Until 1992 the Director-General of Customs and Indirect Taxes was automaticallya member and held the chair. That rule was, however, abolished by Article 32 ofDecree-Law No 331 of 30 August 1992 (hereinafter 'Decree-Law No 331/1992‘).The members of the CNSD are appointed for three years and may be re-elected(Article 13(2) of Law No 1612/1960).

6.

    Only registered customs agents may be elected as members of the DepartmentalCouncils or of the CNSD (second paragraph of Articles 8 and 22 of the Decree ofthe Minister for Finance of 10 March 1964).

7.

    The CNSD is responsible in particular for setting the tariff for the services providedby customs agents, on the basis of proposals from the Departmental Councils(Article 14(d) of Law No 1612/1960). The tariff is compulsory (second paragraphof Article 11 of Law No 1612/1960). Those contravening the tariff are liable to facedisciplinary measures, ranging from a reprimand to temporary suspension from theregister where the offence is repeated, or removal from the register if suspendedtwice in five years by the Departmental Council (Articles 38 to 40 of the Decreeof the Minister for Finance of 10 March 1964 on rules implementing Law No1612/1960 (Ordinary Supplement to GURI No 102 of 24 April 1964)).

8.

    At its meeting on 21 March 1988, the CNSD adopted the tariff for servicesprovided by customs agents (hereinafter 'the tariff‘) in the following terms:

'This tariff lays down the minimum and maximum amounts to be paid for customstransactions and services provided in the monetary, commercial and fiscal areas,including fiscal litigation. In determining, between the minimum and maximumamounts, the price to be paid in a specific case, the characteristics, nature andimportance of the service are to be taken into consideration‘ (Article 1).

'In relation to the provisions of Article 1 above, this tariff shall always becompulsory as regards the principal and annuls any other agreement to the contrary...‘ (Article 5).

'The National Council of Customs Agents shall be empowered to make specificand/or temporary derogations from the minimum amounts laid down in this tariff‘(Article 6).

'The National Council of Customs Agents shall update the present tariff accordingto the indexes supplied by Istat (Central Statistics Institute) — Industrial Sector —as from the date of the relevant decision‘ (Article 7).

9.

    The tariff was approved by the Italian Minister for Finance by a decree of 6 July1988 (GURI No 168 of 19 July 1988, p. 19).

10.

    Pursuant to Article 7 of the tariff, at its meeting of 15 December 1989 the CNSDdecided to increase the prices set by the tariff by 8% from 1 January 1990(Communication from the Ministry of Finance published in GURI No 299 of 23December 1989).

11.

    The Commission has instituted three separate sets of proceeding against the Italianlegislation.

12.

    On 24 March 1992 it applied to the Court for a declaration that the ItalianRepublic had infringed Articles 9 and 12 of the EC Treaty by approving the tariff.That claim was dismissed by judgment of 9 February 1994 in Case C-119/92Commission v Italy [1994] ECR I-393, on the ground that there was no obligationon the importer to have recourse in all circumstances to the services of aprofessional customs forwarding agent (paragraph 46).

13.

    On 30 June 1993 the Commission adopted Decision 93/438/EEC relating to aproceeding pursuant to Article 85 of the EEC Treaty (IV/33.407 — CNSD, OJ 1993L 203, p. 27), in which it found that the tariff constituted an infringement of Article85(1) of the Treaty. The CNSD brought an action for annulment of that decisionwhich is at present pending before the Court of First Instance of the EuropeanCommunities (Case T-513/93), which decided to postpone its examination of thecase until the Court had delivered judgment in this case (order of the Court of FirstInstance of 6 May 1996, not published in the ECR).

14.

    Lastly, taking the view that the national legislation in question infringed Articles 5and 85 of the Treaty, the Commission initiated the pre-litigation procedure whichgave rise to this action.

15.

    By letter of 18 October 1993 it issued a letter of formal notice to the ItalianGovernment, requesting it to present its observations on the matter within a periodof two months.

16.

    In the absence of a reply, on 21 June 1995 the Commission issued a reasonedopinion, calling on the Italian Republic to adopt the measures required to complywith it within two months from its notification.

17.

    Since the Italian Government did not respond to the reasoned opinion, theCommission has brought this action before the Court.

18.

    By document lodged on 15 May 1996, the Italian Government raised an objectionof inadmissibility in accordance with Article 91(1) of the Rules of Procedure.

19.

    The Court decided to reserve its decision on that objection for the final judgment.

20.

    The Italian Government has not lodged a defence.

Objection of inadmissibility

21.

    The Italian Government first submits a plea to the effect that the Commission wasnot entitled to initiate a second procedure for a declaration of failure to fulfilobligations, in respect of complaints based on Articles 5 and 85 of the Treaty,without withdrawing its first action, inasmuch as it concerned breach of Articles 9and 12 of the Treaty.

22.

    It contends that this is so, first because the practices complained of consist eitherin the imposition of a tax, or in the conclusion of an agreement by an associationof undertakings ratified by the Member State concerned, but cannot constitute bothat the same time.

23.

    Secondly, it is clear from the general scheme of the rules relating to the action forfailure to fulfil obligations that, once the Court has been seised, it has inevitably todeliver a judgment on the merits of the dispute unless the applicant discontinuesthe action. Accordingly, if the Commission is persuaded that the State has notfailed to fulfil the obligations with the breach of which it was charged in thereasoned opinion issued in the context of the first procedure, but has failed to fulfilother obligations incompatible with the former obligations, it cannot simultaneouslycontinue to ask the Court to adjudicate on the said reasoned opinion and initiatea fresh procedure concerning a separate allegation incompatible with the first.

24.

    Lastly, in so acting, the Commission has infringed the Italian Government's rightsof defence, since it constrained the Italian Government to defend itselfsimultaneously in two cases founded on the same facts but on different provisions.

25.

    In a second plea the Italian Government alleges that there are lacunae in the letterof formal notice and the reasoned opinion. Thus only the application contains adetailed analysis of the factors constituting the first alleged infringement of Article

85(1) of the Treaty. However, both in the letter of formal notice and in thereasoned opinion the Commission confined itself, as far as infringement of Article85(1) was concerned, to a reference to Decision 93/438. According to settled case-law, the reasoned opinion must contain a coherent and detailed statement of thereasons which persuaded the Commission that the State concerned had failed tofulfil one of its obligations under the Treaty (Case C-247/89 Commission v Portugal[1991] ECR I-3659).

26.

    With regard to the first plea, apart from the fact that only the sending of the letterof formal notice preceded the delivery by the Court of its judgment in Case C-119/92, it must be pointed out that, by virtue of Articles 155 and 169 of the Treaty,the Commission is the custodian of Community legality. In that capacity, its task isto ensure, in the general interest of the Community, that the Treaty is properlyapplied by the Member States and to note the existence of any failure to fulfil theobligations deriving therefrom, with a view to bringing it to an end (Case 167/73Commission v France [1974] ECR 359, paragraph 15).

27.

    It is therefore for the Commission to determine whether it is expedient to takeaction against a Member State and what provisions, in its view, the Member Statehas infringed, and to judge at what time it will bring an action for failure to fulfilobligations; the considerations which determine its choice of time cannot affect theadmissibility of the action (see Case C-317/92 Commission v Germany [1994] ECRI-2039, paragraph 4).

28.

    Moreover, since the subject-matter of the proceedings brought before the Court isdelimited by the reasoned opinion, inasmuch as the application must be foundedon the same grounds and pleas (Case 166/82 Commission v Italy [1984] ECR 459,paragraph 16; Case C-234/91 Commission v Denmark [1993] ECR I-6273,paragraph 16; and Case C-296/92 Commission v Italy [1994] ECR I-1, paragraph11), there is no course of action open to the Commission, where it considers thatthe national legislation of which it complains infringes other rules of Communitylaw and it wishes to obtain from the Court a declaration to that effect as well, otherthan to initiate a fresh procedure for a declaration of failure to fulfil obligations inorder fully to discharge the duties assigned to it under Articles 155 and 169 of theTreaty.

29.

    From the foregoing considerations, it is evident that the fact that a Member Stateis constrained to defend itself in two separate cases in which the facts are the samebut which are based on different provisions cannot per se constitute a breach ofrights of defence. Moreover, the Italian Government has not put forward any otherfactor capable of showing that the course taken by the two procedures, viewedseparately or even cumulatively, gave rise to a breach of its rights of defence.

30.

    As far as the second plea is concerned, it is sufficient to point out that the reasonedopinion contains a coherent and precise statement of the reasons which persuaded

the Commission that the State concerned had failed to fulfil one of its obligationsunder the Treaty.

31.

    The letter of formal notice and the reasoned opinion clearly determine, albeitsuccinctly, the subject-matter of the dispute. Moreover both refer expressly toDecision 93/438, in which the Commission described in detail the factual and legalcontext in which customs agents and the CNSD operate ('I. The facts‘, pp. 27 to31) and then set out its legal assessment in an equally detailed manner ('II. Legalassessment‘, pp. 31 to 33). Lastly the letter of formal notice and the reasonedopinion contain a detailed account of the sole question which was not dealt within Decision 93/438, namely how the infringement of Community law alleged to havebeen committed by the CNSD could be attributed to the Italian Republic.

32.

    The application is therefore admissible.

Substance

33.

    In order to give judgment on the Commission's application for a declaration offailure to fulfil obligations, the question whether the tariff constitutes a decision ofan association of undertakings within the meaning of Article 85 must first beexamined.

34.

    At the hearing, the Italian Government contended that although, since they exercisea liberal profession like lawyers, surveyors or interpreters, customs agents areindependent workers, they nevertheless cannot be regarded as being undertakingswithin the meaning of Article 85 of the Treaty because the services that theyprovide are of an intellectual nature and because the practice of their professionrequires authorisation and entails compliance with certain conditions. Moreover, theTreaty makes a distinction between independent workers and undertakings, so thatnot all self-employed activity is necessarily carried on in the context of anundertaking. In addition, the indispensable organisational factor is lacking, that isto say, the combination of human, material and non-material resources permanentlyassigned to the pursuit of a specific economic goal.

35.

    Since independent customs agents are not undertakings, a fortiori the CNSD cannotconstitute an association of undertakings within the meaning of Article 85 of theTreaty.

36.

    It must first be noted that, according to settled case-law, the concept of anundertaking covers any entity engaged in an economic activity, regardless of itslegal status and the way in which it is financed (Case C-41/90 Höfner and Elser[1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétésd'Assurances and Others v Ministère de l'Agriculture et de la Pêche [1995] ECRI-4013, paragraph 14; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph

21), and that any activity consisting in offering goods and services on a givenmarket is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599,paragraph 7).

37.

    The activity of customs agents has an economic character. They offer, for payment,services consisting in the carrying out of customs formalities, relating in particularto the importation, exportation and transit of goods, as well as othercomplementary services such as services in monetary, commercial and fiscal areas.Furthermore, they assume the financial risks involved in the exercise of that activity(Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 541). If thereis an imbalance between expenditure and receipts, the customs agent is requiredto bear the deficit himself.

38.

    In those circumstances, the fact that the activity of customs agent is intellectual,requires authorisation and can be pursued in the absence of a combination ofmaterial, non-material and human resources, is not such as to exclude it from thescope of Articles 85 and 86 of the EC Treaty.

39.

    The next point to be considered is the extent to which a professional body such asthe CNSD is acting as an association of undertakings, within the meaning of Article85(1) of the Treaty, when compiling the tariff.

40.

    In this connection, it must be borne in mind that the public law status of a nationalbody such as the CNSD does not preclude the application of Article 85 of theTreaty. According to its wording, that provision applies to agreements betweenundertakings and decisions by associations of undertakings. Accordingly, the legalframework within which such agreements are made and such decisions are takenand the classification given to that framework by the various national legal systemsare irrelevant as far as the applicability of the Community rules on competition,and in particular Article 85 of the Treaty, are concerned (Case 123/83 BNIC v Clair[1985] ECR 391, paragraph 17).

41.

    Moreover, the members of the CNSD are the representatives of professionalcustoms agents and nothing in the national legislation concerned prevents theCNSD from acting in the exclusive interest of the profession.

42.

    On the one hand, the members of the CNSD can only be registered customsagents, since they are elected from among the members of the DepartmentalCouncils on which only customs agents sit (second paragraph of Article 13 of LawNo 1612/1960 and second paragraph of Article 22 of the Decree of the Minister forFinance of 10 March 1964). On that point it should be noted that, since theamendment introduced by Decree-Law No 331/1992, the Director-General ofCustoms no longer acts as chairman of the CNSD. Lastly, the Italian Minister forFinance, who is responsible for the supervision of the professional organisation in

question, cannot intervene in the appointment of the members of the DepartmentalCouncils and the CNSD.

43.

    On the other hand, the CNSD is responsible for setting the tariff for theprofessional services of customs agents on the basis of proposals from theDepartmental Councils (Article 14(d) of Law No 1612/1960). In that respect thereis no rule in the national legislation in question obliging, or even encouraging, themembers of either the CNSD or the Departmental Councils to take into accountpublic-interest criteria.

44.

    It follows that the members of the CNSD cannot be characterised as independentexperts (see, to that effect, Case C-185/91 Reiff [1993] ECR I-5801, paragraphs 17and 19; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECRI-2517, paragraphs 16 and 18; and Joined Cases C-140/94 to C-142/94 DIP andOthers [1995] ECR I-3257, paragraphs 18 and 19) and that they are not required,under the law, to set tariffs taking into account not only the interests of theundertakings or associations of undertakings in the sector which has appointedthem but also the general interest and the interests of undertakings in other sectorsor users of the services in question (judgments cited above, Reiff, paragraphs 18and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 17; and DIP andOthers, paragraph 18).

45.

    Secondly, it must be held that the decisions by which the CNSD set a uniform,compulsory tariff for all customs agents restrict competition within the meaning ofArticle 85 of the Treaty and are capable of affecting intra-Community trade.

46.

    The tariff directly sets the prices for customs agents' services. It provides, for eachseparate type of operation, the maximum and minimum prices which can becharged to customers. Furthermore, the tariff lays down various scales on the basisof the value or the weight of the goods to be cleared through customs or of thespecific type of goods, or type of professional service (Article 1).

47.

    Lastly, the tariff is mandatory (Article 5), so that a customs agent may not departfrom it on his own initiative. Only the CNSD is empowered to provide forderogations (Article 6).

48.

    As regards the question whether intra-Community trade is affected, it need merelybe pointed out that an agreement extending over the whole of the territory of aMember State has, by its very nature, the effect of reinforcing thecompartmentalisation of markets on a national basis, thereby holding up theeconomic interpenetration which the Treaty is designed to bring about (Case 8/72Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29,and Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22).

49.

    That effect is all the more appreciable in this case because the various types ofimport or export operations within the Community, as well as transactions betweenCommunity traders, require customs formalities to be carried out and may, inconsequence, make it necessary for an independent registered customs agent to beinvolved.

50.

    That is true of so-called 'internal transit‘ operations, covering the dispatching ofgoods from Italy to a Member State, that is to say from one point in the customsterritory of the Community to another, by way of transit through a non-Membercountry (for example, Switzerland). That type of operation is particularly importantfor Italy, since a large proportion of goods dispatched from regions in the north-east of the country to Germany and the Netherlands transit through Switzerland.

51.

    From the foregoing considerations, it follows that, in adopting the tariff, the CNSDinfringed Article 85(1) of the Treaty.

52.

    Thirdly, the question of the extent to which that infringement can be attributed tothe Italian Republic must be considered.

53.

    Although Article 85 of the Treaty is, in itself, concerned solely with the conduct ofundertakings and not with measures adopted by Member States by law orregulation, the fact nevertheless remains that Article 85 of the Treaty, inconjunction with Article 5, requires the Member States not to introduce or maintainin force measures, even of a legislative nature, which may render ineffective thecompetition rules applicable to undertakings (for Article 85 of the Treaty, see Case267/86 Van Eycke [1988] ECR 4769, paragraph 16; Reiff, cited above, paragraph14; and Delta Schiffahrts-und Speditionsgesellschaft, cited above, paragraph 14; forArticle 86 of the Treaty, see Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph31).

54.

    Such would be the case if a Member State were to require or favour the adoptionof agreements, decisions or concerted practices contrary to Article 85 or toreinforce their effects, or to deprive its own rules of the character of legislation bydelegating to private economic operators responsibility for taking decisions affectingthe economic sphere (see Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16;Reiff, paragraph 14; and Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14).

55.

    By adopting the national legislation in question, the Italian Republic clearly notonly required the conclusion of an agreement contrary to Article 85 of the Treatyand declined to influence its terms, but also assists in ensuring compliance with thatagreement.

56.

    First, Article 14(d) of Law No 1612/1960 requires the CNSD to compile acompulsory, uniform tariff for the services of customs agents.

57.

    Secondly, as is clear from paragraphs 41 to 44 of this judgment, the nationallegislation in question wholly relinquished to private economic operators the powers of the public authorities as regards the setting of tariffs.

58.

    Thirdly, the Italian legislation expressly prohibits registered customs agents fromderogating from the tariff (Article 11 of Law No 1612/1960) on pain of exclusion,suspension or removal from the register (Articles 38 to 40 of the Decree of theMinister for Finance of 10 March 1964).

59.

    Fourthly, although no provision laid down by law or regulation confers on theMinister for Finance the power to approve the tariff, it remains the case that theDecree of the Minister for Finance of 6 July 1988 bestowed upon it the appearanceof a public regulation. First, publication in the 'General Series‘ of the GazzettaUfficiale della Repubblica Italiana gave rise to a presumption of knowledge of thetariff on the part of third parties, to which the CNSD's decision could never havelaid claim. Second, the official character thus conferred on the tariff facilitates theapplication by customs agents of the prices that it sets. Lastly, its nature is such asto deter customers who might wish to contest the prices demanded by customsagents.

60.

    In the light of the foregoing considerations, it must be held that, by adopting andmaintaining in force a law which, in granting the relative decision-making power,requires the CNSD to adopt a decision by an association of undertakings contraryto Article 85 of the EC Treaty, consisting of setting a compulsory tariff for allcustoms agents, the Italian Republic has failed to fulfil its obligations under Articles5 and 85 of the Treaty.

Costs

61.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the Italian Republic has failed in its submissions, it must beordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1.    Declares that, by adopting and maintaining in force a law which, ingranting the relative decision-making power, requires the National Councilof Customs Agents (Consiglio Nazionale degli Spedizionieri Doganali —CNSD) to adopt a decision by an association of undertakings contrary toArticle 85 of the EC Treaty, consisting of setting a compulsory tariff for allcustoms agents, the Italian Republic has failed to fulfil its obligationsunder Articles 5 and 85 of the Treaty;

2.    Orders the Italian Republic to pay the costs.    

GulmannWathelet Moitinho de Almeida Jann Sevón

Delivered in open court in Luxembourg on 18 June 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: Italian.