C-266/96 CORSICA FERRIES FRANCE SAV. PORTO DI GENOVA- Article 102, special and exclusive rights ) Competition Law
Key case on C-266/96 CORSICA FERRIES FRANCE SAV. PORTO DI GENOVA.
This case involves a dispute between on the one side Corsica Ferries France SA and on the other side Gruppo Antichi Ormeggiatori del porto di Genova Coop. arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl and the ministero dei Trasporti e della Navigazione. Corsica Ferries sued both the mooring groups of Genova and La Spezia and the ministry of Transport and Shipping to recover mooring fees paid using an ex parte proceeding available under Italian law for the recovery of uncontested debts.
[...] Article 90(2) of the Treaty further provides that, in order for it to apply, the development of trade must not be affected to such an extent as would be contrary to the interests of the Community.” First, the Court considered that the mooring groups are obliged to provide at any time and to any user a universal mooring service, for reason of safety in harbour waters. Plus, the Italian Republic could have legitimately considered that granting exclusive rights to provide a universal mooring service to local group operators was absolutely necessary on the grounds of public safety. [...]
[...] Thus, the national court ask whether or not the mooring groups of Genova and La Spezia have been abusing of their dominant position on a substantial part of the Common market by virtue of the exclusive rights conferred upon them by the Italian authorities. Findings The Court's decision is a three part examination: the effect of this legislation on the importation of goods a possible abuse of dominant position on a substantial part of the market and agreement between undertakings an impediment to the freedom to provide services Nevertheless, for the purpose of the subject, I will only focus on the possibility of an abuse of dominant position within the meaning of article 86. [...]
[...] There are four conditions in order to fulfil article 86(2) EC: the undertaking must be in charge of a general economic interest service (existence of an express act from public authorities and of an operation of service of general economic interest), the application of competition rules must be impede the accomplishment of this particular operation (respect of the objectives pertaining to the public service activity concerned and others economic considerations), the proportionality between objectives and measures must be respected and the consequences on the trade must comply with the interest of the Community. In this case, the four conditions were fulfilled. Surprisingly, the Court did not leave the determination of whether the mooring groups could be considered as a service of general economic interest to the national court. [...]
[...] With regards to the volume of the traffic and its importance in the intra-Community trade it has been considered by the Court as a substantial part of the common market (cf. case C-179/90 Merci Convenzionali Porto di Genova and case C-163/96 Raso and Others) Considering the existence of exclusive rights, the Court starts by reminding that “an undertaking having a statutory monopoly in a substantial part of the common market may be regarded as having a dominant position within the meaning of Article 86 of the Treaty (cf. case C-41/90 Höfner and Elser v Macrotron and case C-260/89 ERT v DRP)”. [...]
[...] The Court recognized that restrictions to competition could be admitted by virtue of article 86 EC as long as they are necessary for the accomplishment of an operation of general economic interest by an undertaking in charge of it. Therefore, the Court decided that granting exclusive rights could be justified insofar as these restrictions were necessary to ensure the accomplishment of this particular operation that has been assigned to an undertaking. In this sense, Corsica Ferries case is in the continuity of Corbeau case (1993) and Almelo case (1994). [...]
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