[1]Important legal notice
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                                   61990C0179

   Opinion of Mr Advocate General Van Gerven delivered on 19 September
   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

Opinion of the Advocate-General

   ++++

   Mr President,

   Members of the Court,

   1. This case concerns a reference from the Tribunale di Genova (Italy)
   for a preliminary ruling under Article 177 of the EEC Treaty on the
   interpretation of Articles 7, 30, 85, 86 and 90 of the Treaty. The
   questions put to the Court 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 a claim for compensation for damage suffered
   owing to delay in the delivery of a consignment of steel and for the
   reimbursement of allegedly unfair amounts paid for services in the Port
   of Genoa. In those proceedings the court of reference is dealing
   essentially with the question whether the rules laid down by Italian
   legislation on dock work in Italian ports is compatible with the EEC
   Treaty and whether the relevant provisions of the Treaty have direct
   effect.

   Facts and legal background

   2. Article 110 of the Italian Codice della Navigazione (hereinafter
   referred to as "the Code") provides that all dock work (1) in Italian
   ports is reserved to "compagnie portuali" or corporate bodies of dock
   workers (hereinafter referred to as "dock-work companies").

   This monopoly is guaranteed by Article 1172 of the Code, which
   prescribes penalties for any person who uses for dock work any dock
   workers who are not affiliated to a dock-work company. Under Articles
   152 and 156 of the Regolamento della Navigazione Marittima (hereinafter
   referred to as "the Regulation") regarding enrolment in and deletion
   from the register of members of dock-work companies, dock workers must
   satisfy certain conditions, one of which is the possession of Italian
   nationality. (2)

   According to Article 111 of the Code, the right to organize dock work
   on behalf of third persons in Italian ports is granted to "imprese
   portuali" (hereinafter referred to as "dock-work undertakings"), which
   are as a rule companies established under private law and are wholly or
   largely controlled by the port authorities. It is important to note
   that under the final paragraph of Article 111 of the Code and in
   accordance with the aforesaid provisions such undertakings may, for the
   dock work which they organize on behalf of third persons, call only
   upon the said dock-work companies and the dock workers affiliated to
   them.

   Under Article 112 of the Code and Articles 202 and 203 of the
   Regulation, the scale of charges and other conditions relating both to
   the performance of dock work by the dock-work companies and to the
   organization of dock work on behalf of third persons by dock-work
   undertakings are laid down by the port authorities.

   3. On 2 December 1988, Siderurgica, the respondent in the main
   proceedings, purchased a consignment of Brazilian steel in Hamburg to
   the value of roughly LIT 6 000 million and despatched it by sea to
   Genoa. On arrival in the Port of Genoa on 22 to 23 December 1988 the
   crew of the ship, in accordance with the Italian legislation already
   mentioned, were not authorized to unload the cargo themselves although
   the ship on which the steel had been sent was equipped for that
   purpose. Under the aforementioned Article 111 of the Code, Siderurgica
   was obliged to call upon Merci, the dock-work undertaking holding the
   concession to organize on behalf of third persons dock work involving
   ordinary freight in the Port of Genoa, and under the final paragraph of
   that article Merci, for the actual performance of the dock work, the
   unloading and subsequent transport within the port of the consignment
   of steel concerned, called upon the dock-work company of the Port of
   Genoa, the Compagnia Unica Lavoratori Merci Varie del Porto di Genova
   (hereinafter referred to as "Compagnia") and the dock workers
   affiliated to it.

   However, for some months after the unloading of the steel, Merci failed
   to deliver the steel to Siderurgica and also prevented Siderurgica from
   collecting the steel itself.

   4. On 10 April 1989 the President of the Tribunale di Genova, on the
   application of Siderurgica, ordered Merci to deliver forthwith the
   consignment of steel in question. On 28 April Merci appealed against
   the order to the Tribunale di Genova, the court of reference, and in
   the course of those proceedings Siderurgica lodged a claim for
   compensation for the damage it had suffered and for the reimbursement
   of the sums it alleged had been wongfully charged for the dock workers'
   services which it had been required to use but had not requested. (3)
   With regard to the damage, Siderurgica claimed that for lack of
   delivery of the consignment of steel it had had to stop production
   temporarily and had been unable to deliver to its customers the
   finished products they had ordered. Moreover it had made a considerable
   loss because funds equivalent to the purchase price of the steel had
   been tied up for months. As Merci has in the meantime delivered the
   steel to Siderurgica, the main proceedings now no longer relate to the
   order for delivery but solely to Siderurgica' s claim for compensation
   and reimbursement.

   5. In its defence before the court of reference Merci argues that it
   does not operate with its own workforce but that under the Italian
   legislation it is obliged to rely on the labour supplied by Compagnia,
   which has sole authority for moving goods within the Port of Genoa. It
   further states, without being challenged, that it was unable to deliver
   the steel to Siderurgica by reason of a long series of strikes by the
   workforce of the said dock-work company. It was therefore temporarily
   prevented from complying with its commitments and was thus not liable
   for the damage resulting from the delay in delivery. Moreover, the
   defence continues, Merci cannot be liable either for the sums,
   considered unfair by Siderurgica, which were charged for the dock work
   carried out, because they had been calculated on the basis of the scale
   of charges laid down by the port authorities which, as a dock-work
   undertaking, it was required to apply in accordance with Article 112 of
   the Code and Article 203 of the Regulation.

   On the other hand, Siderurgica states that the Italian legislation on
   which Merci relies to justify its conduct is contrary to Articles 90,
   86, 85 and 37 of the EEC Treaty and that the national court is bound to
   refuse to apply provisions of national law which conflict with
   Community law. In this case that would lead to the conclusion that
   Merci is nevertheless liable for the delay in the delivery of the goods
   and for the damage thereby caused and for reimbursement of the sums
   wongfully charged for the dock work.

   6. Although Merci relies on the relevant Italian legislation to justify
   its conduct, it nevertheless thinks, like Siderurgica, that, in so far
   as that legislation provides for a monopoly for the dock-work companies
   (Article 110 of the Code), it is incompatible with Community law. (4)
   However, Merci maintains that in its opinion that incompatibility would
   (at least in theory) actually justify the claim for damages for the
   delay in delivery but not the claim for reimbursement of the sums paid
   by Siderurgica for the performance of unsolicited dock-work services
   which were imposed upon it, because Merci itself did not gain from the
   performance of such services.

   The questions raised and the jurisdiction of the Court

   7. In view of these proceedings the Tribunale di Genova is referring to
   the Court for a preliminary ruling the two following questions on the
   interpretation of Articles 7, 30, 85, 86 and 90 of the EEC Treaty:

   "(1) In the present state of Community law, where goods from a Member
   State of the Community are imported by sea into the territory of
   another Member State, does Article 90 of the EEC Treaty, together with
   the prohibitions contained in Articles 7, 30, 85 and 86 thereof, confer
   on persons subject to Community law rights which the Member States must
   respect, where a dock-work undertaking and/or company formed solely of
   national dock workers enjoys the exclusive right to carry out at
   compulsory standard rates the loading and unloading of goods in
   national ports, even when it is possible to perform those operations
   with the equipment and crew of the vessel?

   (2) Does a dock-work undertaking and/or company formed solely of
   national dock workers, which enjoys the exclusive right to carry out at
   compulsory standard rates the loading and unloading of goods in
   national ports constitute, for the purposes of Article 90(2) of the EEC
   Treaty, an undertaking entrusted with the operation of services of
   general economic interest and liable to be obstructed in the
   performance by the workforce of the particular tasks assigned to it by
   the application of Article 90(1) or the prohibitions under Articles 7,
   30, 85 and 86 thereof?"

   8. Before dealing with these questions I should like to say, in
   passing, that although, as has already been mentioned, the parties to
   the main action are to a considerable extent in agreement as to the
   incompatibility of the relevant Italian legislation with Community law,
   (5) the Court nevertheless has jurisdiction under Article 177 of the
   EEC Treaty to answer the questions referred to it. In fact it is for
   the national court to assess the relevance of the questions of law
   raised by the dispute before it and the necessity for a preliminary
   ruling so as to enable it to give judgment. (6) The Court could declare
   itself without jurisdiction only if there were no longer any dispute in
   the main action (7) or if the questions raised bore no relation to the
   actual nature of the case or to the subject-matter of the main action.
   (8) In this case there is indeed a dispute in the main action and the
   questions do bear a relation to the actual nature of the case and to
   the subject-matter of the action. The fact that the parties are agreed
   on the answer to be given to the questions raised does not mean that
   the court of reference cannot be in any doubt as to the correct
   interpretation of Community law and does not therefore need the
   interpretation of the Court of Justice. (9)

   9. The court of reference asks for an interpretation of the combined
   provisions of Articles 7, 30, 85 and 86 of the EEC Treaty on the one
   hand and Article 90 on the other. In fact it cannot be denied that the
   Italian legislation (10) confers exclusive rights, within the meaning
   of Article 90(1), on both the dock-work company Compagnia and the
   dock-work undertaking Merci. In its observations submitted to the
   Court, Merci points out that the monopoly in dock work provided for by
   the said Article 110 of the Code is granted to the dock-work companies
   and not to dock-work undertakings like itself. The dock-work
   undertakings, on the other hand, have to "endure" that monopoly owing
   to the final paragraph of the said Article 111 of the Code.

   I do not intend to contest the latter point. However, contrary to
   Merci' s statements (11) and to what the insufficiently precise wording
   of the questions from the national court might lead one to believe,
   (12) it must not be forgotten that it is not only the monopoly granted
   to Compagnia under Article 110 of the Code which is at issue here but
   also the concession granted under Article 111 of the Code to Merci, and
   to it alone, to organize on behalf of third persons dock work
   concerning ordinary freight. (13) In other words there are two
   interrelated monopolies: a first granted to the dock-work company
   Compagnia relating to the actual performance of dock work, which, in so
   far as it concerns dock work for ordinary freight, Merci alone has to
   "endure", and a second monopoly granted to the dock-work undertaking
   Merci, relating to the organization on behalf of third persons of the
   aforesaid dock work, performed by Compagnia, which applies to users of
   the Port of Genoa. In this case both monopolies must necessarily be
   considered.

   10. It is already clear from the judgment in Sacchi (14) and more
   recently from the judgments in France v Commission (15) and ERT (16)
   that a monopoly granted by a Member State to an undertaking within the
   meaning of Article 90(1) is compatible with the Treaty only if "the
   manner in which such a monopoly is organized and exercised does not
   infringe the provisions of the Treaty". I shall therefore presently
   discuss whether the organization and exercise of the monopolies granted
   to Compagnia and Merci infringe the articles mentioned in the question
   referred to the Court (Articles 7, 30, 85 and 86) or, in conjunction
   therewith, other articles of the Treaty (Articles 48, 52 and 59). I
   shall now consider these articles: first of all Articles 7, 48, 52 and
   59, with regard to possible discrimination based on nationality, then
   Articles 85 and 86 with regard to a possible infringement of the rules
   on competition, and finally Article 30 with regard to a possible
   restriction on intra-Community trade.

   Infringement of the prohibition of non-discrimination on grounds of
   nationality

   11. As has already been mentioned, Articles 152 and 156 of the
   Regulation, which concern dock-work companies such as Compagnia,
   prescribe the possession of Italian nationality as a condition for
   membership of these dock-work companies and, as regards dock-work
   undertakings such as Merci, the final paragraph of Article 111 of the
   Code provides that for the performance of dock work such undertakings
   may call only upon the members of the said dock-work companies. Is that
   condition of nationality compatible with the Treaty?

   As the Commission rightly points out, it is not possible to establish,
   on the basis of the information contained in the documents before the
   Court, whether the performance of services by dock workers within the
   framework of a dock-work company must be regarded as employment or as
   work in a self-employed capacity. (17) However, that point is of little
   relevance in this case because a condition of nationality such as that
   prescribed by the Italian legislation at issue is incompatible with
   Community law whether the dock workers are workers within the meaning
   of Article 48 of the EEC Treaty or, as members of the dock-work
   company, are self-employed persons established in a Member State within
   the meaning of Article 52 or are providing services in a Member State
   within the meaning of Article 59 of the EEC Treaty. In fact Article 7
   of the EEC Treaty prohibits any discrimination on grounds of
   nationality within the scope of application of the Treaty; that
   prohibition is specifically applied, for workers, in Article 48(2) of
   the Treaty and, for self-employed persons, in Articles 52 and 59, and
   is recognized as constituting one of the basic provisions of the
   Treaty. In this case the nationality requirement prevents nationals of
   other Member States from performing dock work in the Port of Genoa,
   whether as workers or self-employed persons.

   As may be seen from the facts in the main proceedings, that condition
   also prevents persons providing services from other Member States,
   other than dock workers, from performing dock work in Italian ports. In
   this case the German shippers who had consigned the steel for
   Siderurgica from Hamburg to Genoa could not unload the consignment
   themselves although the ship was equipped to do so. That too is
   contrary to Article 59 of the EEC Treaty.

   12. Under Articles 48(3) and 56(1) and the combined provisions of
   Articles 66 and 56(1) of the EEC Treaty, restrictions of a
   discriminatory nature applying to freedom of movement of workers, to
   the right of establishment and the freedom to provide services may be
   justified on grounds of public policy, public security or public
   health. In addition, Article 48(4), the first paragraph of Article 55
   and the combined provisions of Article 66 and the first paragraph of
   Article 55 of the EEC Treaty provide that the provisions relating to
   freedom of movement of workers, the right of establishment and freedom
   to provide services are not applicable to employment in the public
   service or activities connected with the exercise of official
   authority.

   The nationality requirement laid down by the legislation under
   consideration does not however relate to the protection of public
   policy, public security or public health. It is not aimed at the
   general interest but solely at promoting the individual interests of
   the Italian dock workers and cannot therefore be justified on the
   grounds referred to. Nor does this constitute employment in the public
   service within the meaning of Article 48(4) (18) or activities
   connected with the exercise of official authority within the meaning of
   Article 55, (19) regard being had to the strict interpretation given to
   these concepts in accordance with the case-law of the Court.

   13. Finally, with regard to the infringement of the prohibition of
   discrimination, it should be mentioned that the Court has consistently
   held that all the provisions to which I have referred have direct
   effect. (20) In conjunction with these provisions having direct effect,
   Article 90(1) of the EEC Treaty itself also has direct effect. (21)

   Infringement of the Treaty provisions on competition

   14. Although Articles 85 and 86 of the EEC Treaty concern the conduct
   of undertakings and not laws or regulations adopted by Member States,
   the Court has consistently held that, under the second paragraph of
   Article 5, the Treaty none the less requires them "not to adopt or
   maintain in force any measure which could deprive those provisions of
   their effectiveness". (22) In the case of undertakings to which Member
   States have granted a monopoly, Article 90(1) of the EEC Treaty
   represents a specific application of the aforesaid second paragraph of
   Article 5 of the Treaty. (23)

   Are we dealing in this case with national legislation which might
   undermine the effectiveness of Articles 85 and 86 of the EEC Treaty in
   contravention of Article 90(1)?

   15. It may be seen from the case-law of the Court relating to the
   application to measures adopted by the public authorities of Article
   90(1) in conjunction with Article 85 or 86, that Article 90 relates to
   any action taken by the public authorities with regard to the
   undertakings referred to in that article which either imposes on an
   undertaking a practice forbidden by Article 85 or 86, (24) or
   encourages such a practice, (25) or makes it inevitable, (26) or grants
   to undertakings power to act in place of the public authorities for the
   purpose of controlling the markets. (27) That hinges particularly on
   the consideration that such action by the public authorities, in
   conjunction with any one the of the practices by undertakings (which
   are actually adopted by the undertakings concerned) referred to in
   Article 85 or 86, has the same effect on the structure of competition
   in the common market as a practice by an undertaking not dependent on
   action by the public authorities. In addition it may be seen from the
   case-law that conduct by an undertaking which is required as a
   "starting factor" for the applicability of the combined provisions of
   Article 90(1) and either Article 85 or Article 86 applicable need not
   necessarily precede action by the public authorities but may follow it
   or be its consequence or inevitable effect. (28)

   16. I shall first consider, in the context of Article 86, whether the
   national legislation in question in this case imposes such a practice
   restricting competition, facilitates such a practice or makes it
   inevitable. (29) For this purpose two points must be considered: first,
   whether Merci or Compagnia or both committed acts which, irrespective
   of any action by the authorities, represent the abuse of a dominant
   position in a substantial part of the common market which may affect
   trade between Member States and, secondly, whether the national
   legislation in question facilitates such abuse or makes it compulsory
   or inevitable.

   As regards the first point, I should like to make it clear straight
   away that it is incontestable that both Merci and Compagnia are
   undertakings within the meaning of Article 86 (and Article 85) (30)
   nor, in view of the actual situation described in the first question
   referred to the Court, can it be contested, either, that the practices
   engaged in by Merci and Compagnia in the framework of the Italian
   legislation affect trade between Member States.

   Nor is it open to doubt that both the organization on behalf of third
   parties and the performance of dock work described in Article 108 of
   the Code (31) fall within the field of application of Article 86 (and
   of Article 85). In fact, as the Council has repeatedly stated, (32)
   dock work must be distinguished from actual maritime transport properly
   so called (even though it may be complementary to it); however, even if
   it were to be classified as maritime transport, the general rules on
   competition laid down in Articles 85 and 86 were applicable in that
   sphere even before Regulation (EEC) No 4056/86 of 22 December 1986 (33)
   came into force. (34)

   17. Under Article 86 of the EEC Treaty, any abuse by one or more
   undertaking of a dominant position within the common market or in a
   substantial part of it is prohibited as incompatible with the common
   market in so far as it may affect trade between Member States. In this
   case, as far as Merci is concerned, the market in question is the
   market of organizing for third parties dock work with regard to
   ordinary freight in the Port of Genoa, whilst for Compagnia the market
   in question is that of the actual performance of such dock work.

   Of course it is for the national court to decide whether these markets
   may be regarded as constituting a substantial part of the common
   market. However, it is clear from the documents before the Court that,
   in view of the scale of dock work with regard to ordinary freight
   organized on behalf of third parties and performed there, the Port of
   Genoa is amongst the most important in the Community and is the most
   important in Italy and that, in view of its situation and
   infrastructure, users of the port often have no other choice than to
   use the Port of Genoa. These are, in my view, serious indications that
   the two markets referred to, which are, moreover, closely linked
   together since they relate to the same dock work, are sufficiently
   important to be regarded as a substantial part of the common market.

   It is indisputable that Merci occupies on the market for dock work for
   third parties a dominant position, that is to say, a situation "which
   enables it to hinder the maintenance of effective competition on the
   relevant market by allowing it to behave to an appreciable extent
   independently of its competitors and customers and ultimately of
   consumers". (35)

   It is also incontestable that Compagnia occupies a dominant position on
   the market for the actual performance of dock work. The fact that, as
   in this case, the absence of competition on these markets is caused or
   facilitated by the provisions of laws or regulations by no means
   prevents the application of Article 86. (36) In the ERT judgment (37)
   the Court stated that an undertaking to which a statutory monopoly has
   been granted may be regarded as having a dominant position within the
   meaning of Article 86 of the Treaty.

   18. Have Merci or Compagnia or both conducted themselves in a manner
   which amounts to abuse of a dominant position within the meaning of
   Article 86? As I have said, I shall first consider the actual conduct
   of Merci and Compagnia, irrespective of the national legislation
   concerned.

   According to subparagraph (a) of the second paragraph of Article 86,
   abuse of a dominant position may consist in directly or indirectly
   imposing unfair purchase or selling prices or other unfair trading
   conditions, and in this connection prices and conditions which are
   appreciably less favourable for the user than the prices and conditions
   which he might have negotiated if there had been normal and
   sufficiently effective competition must be regarded as unfair. (38)

   Once again, it is for the national court to judge whether Compagnia or
   Merci, or both, have imposed unfair prices or contractual conditions
   for the dock-work services concerned. However, it must be said that the
   Court has already repeatedly found that an undertaking having a factual
   or statutory monopoly has imposed unfair prices or conditions, (39) and
   there might be a question in this case of unfair prices or other
   contractual conditions in so far as a dock-work company charges a
   dock-work undertaking or a dock-work undertaking charges users of the
   port, or both, for services which have not been demanded (40) or even
   for services not provided, or in so far as the scale of charges on the
   basis of which the prices are calculated are quite out of proportion to
   the services actually performed. (41) It appears from the data
   available that the dock-work services concerned not only can be but
   actually are performed in other European ports at a price much lower
   than that charged by Compagnia to Merci and by Merci to users of the
   port. (42) However, the complicated nature of the scale of charges
   makes it practically impossible to determine the criteria used for
   calculating the price of an operation; that may be a further indication
   that the price invoiced bears no relation to the real cost of
   performing the service. (43)

   It should also be observed that, as appears from the judgment in
   Bodson, the imposition, by holders of concessions, of unfair prices is
   also contrary to Article 86 of the EEC Treaty even where the level of
   prices has been fixed by the public authorities in the context of the
   contract for the concession. (44) However, in such a case the sanctions
   laid down by Community law may well not be applied to the undertaking
   concerned.

   19. Under subparagraph (b) of the second paragraph of Article 86, abuse
   of a dominant position may also consist in limiting production, markets
   or technical development, to the prejudice of consumers. As the
   Commission and Siderurgica point out, there is certainly such an abuse
   where a dock-work company having a monopoly for the performance of dock
   work refuses - even for the purpose of protecting employment - to have
   recourse to modern technology, thus considerably increasing the cost of
   dock work for the dock-work undertaking and through that undertaking
   for users of the port and giving rise to long waiting periods before
   the work can be performed. (45)

   20. Finally it is appropriate to point out that, under subparagraph (c)
   of the second paragraph of Article 86, abuse of a dominant position may
   also consist in applying dissimilar conditions to equivalent
   transactions with other trading parties, thereby placing them at a
   competitive disadvantage. (46) It appears that that is the position in
   this case since, after negotiations and in "derogation" from the scale
   of charges, a preferential charge is made by Merci to certain port
   users by reducing the supplementary costs and setting that reduction
   off by an increase in the charges to other users without any objective
   consideration justifying such a step. (47) That practice is facilitated
   by the complexity and lack of transparency of the scale of charges
   applicable.

   21. In my view the foregoing factors justify the deduction that there
   is compelling evidence for the national court to conclude that, by
   imposing unfair prices and trading conditions, both Merci and Compagnia
   abused the monopolies granted them by Italian legislation in a
   substantial part of the common market, that by refusing to use modern
   technology Compagnia abused its dominant position and that, by agreeing
   to dissimilar conditions to trading parties as compared with their
   competitors, Merci abused its dominant position.

   22. In those circumstances we must now consider whether these abuses of
   a dominant position within the meaning of Article 86 - in so far as the
   national court regards them as established - are imposed, or
   facilitated, or made inevitable by the relevant national legislation. I
   think there can be little doubt about this. In fact, the scale of
   charges and other, presumably unfair, contractual conditions applied by
   Merci and Compagnia are made possible, if not inevitable, by the
   national legislation applicable and are facilitated, if not made
   compulsory, by the port authorities under the powers conferred on them
   by national legislation. (48) The other abuses too are made possible by
   that legislation. But for the monopoly for the performance of dock work
   conferred on it by the Italian legislation, Compagnia could certainly
   not have afforded to abstain from using modern technology, and it is
   clear also that the dissimilar treatment of trading parties was
   possible only as a result of the monopoly granted to Merci and the
   complexity and lack of transparency of the scale of charges devised by
   the authority.

   From the foregoing considerations it follows here too that there is
   serious evidence that the national legislation in question in the main
   proceedings enacts or maintains in force measures contrary to Article
   90(1) in conjunction with Article 86 of the EEC Treaty. In view of the
   fact that Article 90(1), together with a provision of the Treaty having
   direct effect, such as Article 86, itself has direct effect, (49) this
   means that, in so far as the national court agrees with the arguments I
   have already put forward, individuals may, under those provisions,
   derive direct rights with regard to the Member State concerned, just as
   they may of course assert directly their rights against Merci and
   Compagnia by reason of the abuses which they have committed.

   23. The next question asks whether the national legislation at issue is
   also contrary to the provisions of Article 90(1) in conjunction with
   Article 85.

   Under Article 85, all agreements between undertakings, decisions by
   associations of undertakings and concerted practices which may affect
   trade between Member States and which have as their object or effect
   the prevention, restriction or distortion of competition within the
   common market are prohibited as incompatible with the common market.

   As I have already said (section 16), there can be no doubt that Merci
   and Compagnia are undertakings within the meaning of Article 85, that
   that article applies to the performance and organization of dock work
   and that in this case, as is made clear by the questions referred to
   the Court, trade between Member States may be affected by the
   legislation under review and by the measures based thereon. In the
   judgment in ERT however, the Court stressed that the application of
   Article 85 of the EEC Treaty pre-supposes that there is in fact an
   agreement restricting competition, or rather an agreement between
   undertakings. (50)

   24. From the information available to the Court it does not appear that
   agreements were concluded between the dock-work undertaking Merci and
   the dock-work company Compagnia. On the other hand the possibility
   cannot be excluded - quite the contrary - that there are practices
   concerted between them which are caused, encouraged or made inevitable
   by the national legislation applicable. In fact the Court has defined a
   concerted practice as "a form of coordination between undertakings
   which, without having reached the stage where an agreement properly so
   called has been concluded, knowingly substitutes practical cooperation
   between them for the risks of competition". According to the Court,
   "although parallel behaviour may not by itself be identified with a
   concerted practice, it may however amount to strong evidence of such a
   practice if it leads to conditions of competition which do not
   correspond to the normal conditions of the market". (51)

   Those cases related to undertakings which were in direct competition.
   However, it is established that vertical agreements, that is,
   agreements between undertakings which are not in direct competition,
   and hence also concerted practices by such undertakings, are also
   covered by Article 85 because they restrict competition as against
   third parties. In this respect it is for the national court to judge
   whether Merci and Compagnia knowingly adopted concerted practices
   which, as has previously been shown in the examination of the improper
   conduct of the undertakings considered separately, have the effect of
   restricting competition. The fact that these concerted practices may
   have been prompted or made inevitable by the national legislation in
   question does not provide an excuse here (although it is a factor which
   may be taken into account in respect of the imposition of fines). On
   the other hand that fact means that individuals may contest the
   national legislation under the combined provisions of Articles 90(1)
   and 85, since the provisions of Article 90(1), taken in conjunction
   with those of Article 85, do have direct effect.

   Breach of the prohibition contained in Article 30 of the EEC Treaty

   25. The Court has consistently held that all trade rules capable of
   hindering intra-Community trade, directly or indirectly, actually or
   potentially, are to be considered as measures having an effect
   equivalent to quantitative restrictions within the meaning of Article
   30 of the EEC Treaty. (52) Is that the case with the monopolies in dock
   work at issue in this case? According to the Commission, Article 30 is
   not relevant in this case since, at least in the light of the facts
   brought to its notice, the said monopolies do not have the effect of
   hindering the marketing in Italy of imported products as compared with
   domestic products. On the other hand, according to Siderurgica, the
   monopolies and the resulting unfair charges for dock work have
   repercussions above all on imported products so that the aforesaid
   monopolies must be regarded as trade rules within the meaning of
   Article 30.

   It may appear from the facts put before the Court that the monopolies
   granted to Merci and Compagnia do in fact result in unfair prices and
   the unsatisfactory performance of services and that the importation of
   products from other Member States is thereby made dearer and more
   difficult, which is sufficient to bring Article 30 into play.
   Nevertheless, it seems to me that such an effect cannot be ascribed to
   the national legislation itself but to the actions taken by Merci and
   Compagnia under that legislation in pursuance of the monopolies granted
   to them. It follows, in my view, that, with regard to the national
   legislation in question, it is Article 90 in conjunction with Articles
   85 and 86, rather than Article 30, which is the provision applicable.

   Article 90(2) of the EEC Treaty

   26. Article 90(2) of the EEC Treaty provides that undertakings
   entrusted with the operation of services of general economic interest
   or having the character of a revenue-producing monopoly are to be
   subject to the rules contained in the Treaty, in particular to the
   rules on competition, in so far as the application of such rules does
   not obstruct the performance, in law or in fact, of the particular
   tasks assigned to them. That derogation from the Treaty provisions in
   favour of certain undertakings does not apply, however, if the
   development of trade is affected to such an extent as would be contrary
   to the interests of the Community.

   The court of reference asks, in its second question, whether Merci and
   Compagnia are undertakings entrusted with the operation of services of
   general economic interest, and, if so, whether the application in
   particular of Articles 7, 85 and 86 of the EEC Treaty would obstruct
   the performance of the particular tasks assigned to them. If that is
   the case and if the other conditions of Article 90(2) are also met, it
   must, in my view, be accepted, as far as the points dealt with in the
   foregoing part of my Opinion are concerned, that national legislation
   requiring, encouraging or making inevitable such a practice on the part
   of undertakings, which is authorized under Article 90(2), is
   nevertheless not contrary to the provisions of Article 90(1), in
   conjunction with other provisions of the Treaty.

   27. It must be observed first of all that the concept of "undertakings
   entrusted with the operation of services of general economic interest"
   has a special Community significance. According to the case-law of the
   Court, which has always insisted that that concept must be strictly
   interpreted, (53) it is essential for the public authorities to have
   entrusted the undertaking with the operation of the services which it
   performs, (54) and for such operations to be necessary for reasons of
   the general interest. (55) It appears from the national legislation in
   question that both the dock-work undertakings and the dock-work
   companies are entrusted by the authorities with the activities they
   pursue. However, that fact does not, in itself, imply that these
   activities are of general economic interest within the meaning of
   Article 90(2). Although the organization of a port is undoubtedly, as
   such, an activity of general economic interest, the same cannot be
   said, in my view, of the activities of the dock-work companies and
   undertakings consisting in the performance of dock-work and in
   organizing it on behalf of third persons respectively. In fact dock
   work is taken to mean the loading, unloading, transhipment and storage
   of goods. If such operations also fall within the concept of services
   of general interest, then that concept can cover practically all
   economic activities. (56) In my view only activities of direct benefit
   to the public fall within the concept, as appears also from the
   judgments cited in footnote 55 below.

   Even if it is accepted that the dock work referred to is to be
   considered a service of general economic interest, it still remains to
   be shown that observance of the aforesaid rules of the Treaty and in
   particular of Articles 7, 85 and 86 is incompatible with the
   performance of the public tasks, or in other words that in carrying out
   such tasks an infringement of the rules of the Treaty is unavoidable.
   (57) Further, it must still be shown that the application of the
   derogation from the rules of the Treaty is not contrary to the
   interests of the Community.

   28. With regard to Article 90(2), the Court indicated in a judgment of
   1971 that that provision did not have direct effect in view of the fact
   that "its application involves an appraisal of the requirements, on the
   one hand, of the particular task entrusted to the undertaking concerned
   and, on the other hand, the protection of the interests of the
   Community". (58) However, that did not prevent the Court from stating
   in subsequent judgments, in the context of the first criterion
   mentioned in that quotation, that it is for the national court to
   consider whether an undertaking which relies upon the provisions of
   Article 90(2) so as not to apply the provisions of the Treaty is
   actually entrusted with the operation of services of general economic
   interest, (59) which is unlikely in this case, as has already been
   mentioned. Even on the supposition that, in this case, the undertakings
   are entrusted with the operation of services of general economic
   interest, they can rely on the derogation in Article 90(2) only if they
   succeed in showing before the national court the exact nature of the
   needs of general economic interest in question and their impact on the
   conduct of the undertakings concerned. (60) That is not the case for
   example with tariffs, approved by the public authorities, the structure
   of which is not transparent - which, as I have already pointed out,
   seems also to apply in this case. (61)

   This case-law therefore leads me to the inescapable conclusion that it
   is for the national court to consider whether an undertaking which is
   relying on the derogation in Article 90(2) has actually been entrusted
   with a service of general economic interest within the meaning attached
   to that expression in Community law and, if so, whether and to what
   precise extent the needs of general interest require the said
   undertaking to act contrary to provisions of the Treaty such as
   Articles 7, 85 or 86. That implies that the burden of proof lies on the
   undertakings concerned and that they must show before the national
   court that the prior conditions of Article 90(2) are met.

   If the national court comes to the conclusion that these prior
   conditions are indeed satisfied (which seems to me very improbable in
   this case) it still has the power, in relation to the second criterion
   mentioned in the quotation given at the beginning of this section (that
   is, the question whether the task assigned by the Member State and its
   performance does or does not affect the development of trade to such an
   extent as would be contrary to the interests of the Community), to
   contact the Commission, if it sees fit, with a view to the answer to be
   given to that question, by analogy with what the Court has accepted
   with regard to the application of Articles 85 and 86, (62) so as to
   obtain the economic and legal information to enable it to answer that
   question.

   Conclusion

   29. Having regard to the foregoing considerations, I suggest that the
   Court should give the following answer to the questions referred to it
   for a preliminary ruling:

   "(1) (a) National legislation which imposes on undertakings referred to
   in Article 90(1), which are entrusted with the performance or
   organization of dock work, the obligation to have recourse, for such
   work, to dock workers having the nationality of the Member State
   concerned is incompatible with Article 90(1) in conjunction with
   Article 7, and Article 48 or Articles 52 and 59 of the EEC Treaty and
   cannot be justified either on grounds of public policy or public
   security or as work in the public service or involving the exercise of
   official authority. Article 90(1) in conjunction with the
   abovementioned provisions of the Treaty has direct effect.

   (b) National legislation which encourages, requires or inevitably
   induces an undertaking referred to in Article 90(1) to abuse a dominant
   position held by it in a substantial part of the common market or to
   engage with another concern or undertaking in a concerted practice or
   abuse or a practice consisting, in the case of dock work which may or
   may not be solicited and on occasion may not even be carried out, in
   imposing unfair prices or other unfair conditions or limiting markets
   or technical development, to the prejudice of users, or in applying
   dissimilar conditions to equivalent transactions to the disadvantage of
   other trading parties is incompatible with Article 90(1) in conjunction
   with Article 86 or 85 of the EEC Treaty.

   Article 90(1), in conjunction with Article 86 or 85 of the EEC Treaty,
   has direct effect.

   (2) Undertakings entrusted with the performance or organization of dock
   work, meaning the work of loading, unloading, transhipment and storage
   of goods in the port, cannot normally be regarded as undertakings
   entrusted with the operation of services of general economic interest
   within the meaning of Article 90(2) of the EEC Treaty, namely services
   which are of direct benefit to the public. It is for the national court
   to make specific findings in that regard. If that court reaches a
   different conclusion, it is for the undertakings concerned to show to
   the national court, if they intend to rely on the derogation provided
   for in Article 90(2), the precise nature of the needs of general
   interest which require them to act in breach of Article 7, 85 or 86 of
   the EEC Treaty. It is only where the latter factor can also be shown to
   the national court and where it can also be proved, if necessary after
   contact with the Commission, that the condition referred to in the last
   sentence of Article 90(2) is also met, that it is appropriate to take
   the view that national legislation such as that described in the
   foregoing paragraph (1)(a) and (b) is nevertheless not contrary to
   Article 90(1) in conjunction with one of the Treaty provisions
   mentioned in the said paragraph (1)(a) and (b)."

   (*) Original language: Dutch.

   (1) - Under Article 1 of the Code this includes loading, unloading,
   transhipment, storage and general movement within the port of goods and
   all other material .

   (2) - Articles 152(2) and 156(6). That requirement applies also to
   temporary dock workers; see Article 194 of the Regulation.

   (3) - In fact Siderurgica had been refused permission to unload the
   steel itself by using the equipment and crew of the vessel.

   (4) - However, it may be noted that, according to Merci, Article 111 of
   the Code, under which it was granted a concession for the organization
   of dock work on behalf of third parties, is not at issue in this case.
   See section 9 below.

   (5)

   - The only disagreement concerns the consequences which this
   incompatibility involves for Merci as regards the reimbursement of the
   sums paid by Siderurgica for the dock-work services.

   (6) - Judgments in Case 244/81 Foglia v Novello [1981] ECR 3045 at
   paragraphs 14 and 15; and Case 338/85 Pardini v Ministero del Commercio
   con l' Estero [1988] ECR 2041 at paragraph 8; see also the Order of the
   Court in Case C-286/88 Falciola [1990] ECR I-191 at paragraph 7.

   (7) - See the judgment in Case 338/85 Pardini, previously cited,
   paragraph 9.

   (8) - Judgment in Case 126/80 Salonia v Poidomani and Giglio [1981] ECR
   1563 at paragraph 6 and the Order in Case C-286/88 Falciola, previously
   cited in footnote 6, at paragraph 8.

   (9) - As may be seen from its observations submitted to the Court, the
   Commission too thinks that the Italian legislation in question is
   contrary to Community law. It is not clear, therefore, why the
   Commission did not bring this legislation before the Court under
   Article 169 of the EEC Treaty: as Mr Advocate General Darmon indicated
   in his Opinion in Case 229/83 Leclerc v Au Blé Vert [1985] ECR 1, at
   page 16, proceedings under Article 169 would have made possible an
   examination of the legislation in question in concreto rather than an
   abstract review of compatibility with the Treaty in the context of
   proceedings under Article 177.

   (10) - See Articles 110, 111, 112 and 1172 of the Code, previously
   described.

   (11) - See footnote 4.

   (12) - In fact the questions mention expressly only the monopoly in
   loading and unloading goods, that is, the monopoly granted to
   Compagnia. Nevertheless it may, in my opinion, be clearly seen from the
   remainder of the order for reference that in this case it is not solely
   the monopoly granted to Compagnia which is at issue.

   (13) - Of course the position is that under Article 111 of the Code
   several undertakings enjoy the concession to organize dock work for
   third persons. However, it is not disputed that Merci is the only
   undertaking which has received such a concession for ordinary freight
   in the Port of Genoa. In the case of containers, for example, there is
   another monopoly granted to the dock-work undertaking Terminal
   Contenitori di Genova.

   (14) - 155/73 [1974] ECR 409 at paragraph 14.

   (15) - Case C-202/88 [1991] ECR I-1223 at paragraph 22.

   (16) - Case C-260/89 [1991] ECR I-2925 at paragraph 12.

   (17) - Merci points out that the dock workers are not employees but
   members of the dock-work companies; however, Merci does not deny that
   the dock-work companies nevertheless also appoint employees.

   (18) - See, for example, as regards the concept of employment in the
   public service , the judgment in Case 149/79 Commission v Belgium
   [1980] ECR 3881, at paragraph 9 et seq., whence it may be seen that it
   affects a limited number of posts which involve direct or indirect
   participation in the exercise of powers conferred by public law and
   duties designed to safeguard the general interests of the State or of
   other public authorities (paragraph 10).

   (19) - See, for example, as regards the concept of activities connected
   with the exercise of official authority , the judgment in Case 2/74
   Reyners v Belgium [1974] ECR 631 at paragraph 42 et seq., according to
   which these must be activities which in themselves involve a direct and
   specific connection with the exercise of official authority (paragraph
   54).

   (20) - With regard to Article 7 of the EEC Treaty see, for example, the
   judgments in Case 1/78 Kenny v Insurance Officer [1978] ECR 1489 at
   paragraph 12, and in Case 24/86 Blaizot v University of Liège and
   Others [1988] ECR 379 at paragraph 35. With regard to Article 48 of the
   EEC Treaty see, for example, the judgments in Case 41/74 van Duyn v
   Home Office [1974] ECR 1337 at paragraphs 4 to 8, and in Case 168/85
   Commission v Italy [1986] ECR 2945 at paragraph 7. With regard to
   Article 52 of the EEC Treaty see, for example, the judgments in Case
   2/74 Reyners v Belgium [1974] ECR 631 at paragraphs 30 and 32 and in
   Case 81/87 The Queen v Treasury and Commissioners of Inland Revenue, ex
   parte Daily Mail and General Trust plc [1988] ECR 5483 at paragraph 15.
   With regard to Article 59 of the EEC Treaty see, for example, the
   judgments in Case 33/74 van Binsbergen v Bedrijfsvereniging
   Metaalnijverheid [1974] ECR 1299 at paragraphs 18 to 27 and in Case
   C-49/89 Corsica Ferries France v Direction Générale des Douanes [1989]
   ECR 4441 at paragraph 10.

   (21) - The Court expressly confirmed this in Case 155/73 Sacchi,
   already cited (see footnote 14), as regards Articles 90 and 86. There
   does not seem to be any reason why that should not also apply to other
   provisions having direct effect. See, inter alia, Wyatt, D. and
   Dashwood, A.: The Substantive Law of the EEC , London, 1987, p. 524.
   See also, earlier, Waelbroeck, M.: Le droit de la Communauté économique
   européenne , volume 4, Concurrence, Brussels, 1972, pp. 86 and 87.

   (22) - See, for example, the judgments in Case 13/77 INNO v ATAB [1977]
   ECR 2115 at paragraph 33, in Case 231/83 Cullet v Leclerc [1985] ECR
   305 at paragraph 16, in Case 267/86 Van Eycke v ASPA [1988] ECR 4769 at
   paragraph 16, in Case 66/86 Ahmed Saeed Flugreisen and Others v
   Zentrale zur Bekaempfung unlauteren Wettbewerbs [1989] ECR 803 at
   paragraph 48, and in Case C-260/89 ERT, previously cited in footnote
   16, at paragraph 35.

   (23) - See, for example, the judgments mentioned in the previous
   footnote, INNO v ATAB, at paragraph 32, Ahmed Saeed, at paragraph 50
   and ERT, at paragraph 36.

   (24) - That is the case for example in the judgment in Case 30/87
   Bodson v Pompes Funèbres des Régions Libérées [1988] ECR 2479, which
   rules that a communal authority which requires undertakings occupying a
   dominant position to charge especially high prices for the services
   they provide is acting in contravention of Article 90(1).

   (25) - That is the position for example in the judgment in Ahmed Saeed
   (see footnote 22), which rules that the approval by the public
   authority of agreements on tariffs contrary to Article 85(1) is
   contrary to Article 5 and in that case to Article 90.

   (26) - That is the case in the ERT judgment (already cited in footnote
   16), which states that a Member State is infringing the combined
   provisions of Article 90 and 86 of the EEC Treaty when it grants an
   exclusive right to an undertaking and in so doing creates a situation
   in which that undertaking is led to infringe Article 86. The judgment
   in Case C-41/90 Hoefner and Elser [1991] ECR 1979 also relates to that
   category of measure.

   (27) - See the judgment in Van Eycke (previously cited in footnote 22),
   in which the Court nevertheless found that that situation did not arise
   in that case.

   (28) - See, for example, the judgments cited in footnotes 24, 26 and
   27. For further details, see my Opinion due to be delivered at the
   sitting on 16 October 1991 in Joined Cases C-48/90 and C-66/90
   Netherlands and Koninklijke PTT NV and PTT-Post BV v Commission.

   (29) - I shall not consider further the special situation in which
   legislation delegates rule-making powers to undertakings.

   (30) - The concept of undertaking has always been widely interpreted,
   so that in the judgment in Hoefner and Elser, previously cited in
   footnote 26, the German Bundesanstalt fuer Arbeit was itself regarded
   as an undertaking because, as a distinct entity, that public
   institution carried out the economic activity of employment
   procurement.

   (31) - See footnote 1.

   (32) - See the Communication of 19 March 1985 (OJ 1985 C 212) and the
   preamble to Regulations (EEC) No 4056/86 of 22 December 1986 (OJ 1986 L
   378) and No 3975/87 of 14 December 1987 (OJ 1987 L 374).

   (33) - Regulation (EEC) No 4056/86 of 22 December 1986 laying down
   detailed rules for the application of Articles 85 and 86 of the Treaty
   to maritime transport (OJ 1986 L 378, p. 4).

   (34) - On the analogous situation of air transport, cf. the judgment in
   Ahmed Saeed, previously cited in footnote 22, at paragraphs 32 and 33.

   (35) - See, for example, the judgments in Case 322/81 Michelin v
   Commission [1983] ECR 3461 at paragraph 30 and in Case 311/84 CBEM v
   CLT and IPB [1985] ECR 3261 at paragraph 16.

   (36) - See, for example, the judgment in Case 26/75 General Motors v
   Commission [1975] ECR 1367 at paragraph 9, and the judgments,
   previously cited, in INNO v ATAB at paragraph 34, and in CBEM v CLT and
   IPB at paragraph 16.

   (37) - See footnote 22.

   (38) - See the judgment in Case 27/75 United Brands v Commission [1978]
   ECR 207 at paragraph 249. It may be seen from the judgment in General
   Motors, previously cited, at paragraph 12, that the Court considers
   that prices are to be regarded as unfair when they are excessive in
   relation to the economic value of the service provided (see also
   paragraph 250 of the judgment in United Brands).

   (39) - See the judgments in Sacchi, previously cited in footnote 14, at
   paragraph 17, in General Motors, previously cited in footnote 36, at
   paragraphs 11 and 12, and in Case 226/84 British Leyland v Commission
   [1986] ECR 3263 at paragraph 27, in which the Court refers to the
   judgment in General Motors.

   (40) - As emerges from the facts previously mentioned (section 3
   below), the dock work organized by Merci for Siderurgica and performed
   by Compagnia were in reality imposed on Siderurgica; in fact
   Siderurgica had wished to unload and organize transport for the
   consignment of steel itself.

   (41) - In this connection Siderurgica refers to a study by Lauria F.:
   Le Compagnie portuali nel diritto interno e comunitario , Edizione
   Giuffré, Milan, 1981, and to a statement by the Comitato Sezione Lavoro
   of the port authority for the Port of Genoa in a report of 23 July
   1987, which runs as follows: ... taking the basic cost of labour at
   100, the supplementary sums to be added to that cost to reach the final
   cost of the operation amount to 1 194.26% (sic!!) (quoted in
   Siderurgica' s observations, page 12).

   (42) - On this subject the Commission refers to a study by Marconsult
   SpA of 1990 relating to the organization and cost of the transhipment
   of containers in the principal European ports. It emerges from that
   study, for example, that the cost of transhipment of one unit varied
   between LIT 110 000 and 116 000 in the Port of Antwerp, between LIT 180
   000 and 200 000 in the Ports of Hamburg, Marseille and Naples and
   between LIT 230 000 and 250 000 in the Ports of Venice, Barcelona and
   Leghorn, whilst the cost of transhipment of one unit amounts to LIT 270
   000 in the Port of Genoa.

   (43) - In the report of 23 July 1987, previously mentioned in footnote
   41, the Comitato Sezione Lavoro of the port authority for the Port of
   Genoa stated: The system of charges applied in the Port of Genoa for
   dock-work services has for years been notorious for its complexity and
   lack of transparency and for the fact that it is always impossible to
   determine in advance what the final cost of the services will be
   (quoted in Siderurgica' s observations at page 12).

   (44) - Judgment in Case 30/87, previously cited, footnote 24.

   (45) - See on this subject the Commission' s observations, page 38, and
   Siderurgica' s observations, page 15.

   (46) - See the judgment in Michelin v Commission, already cited in
   footnote 35, at paragraphs 87 to 91, in which the Court took the view
   that there had been no abuse within the meaning of subparagraph (c) of
   the second paragraph of Article 86, because it had not been established
   that the differences in treatment between various dealers were due to
   the application of unequal criteria or that they were not justified by
   legitimate commercial reasons (paragraph 90).

   (47) - That emerges from the report of 23 July 1987 by the Comitato
   Sezione Lavoro of the port authority for the Port of Genoa previously
   referred to (Siderurgica' s observations, page 13).

   (48) - See below, section 2.

   (49) - See the judgment in Sacchi, previously cited in footnote 14, at
   paragraph 18.

   (50) - See paragraph 29 of the judgment in ERT, previously cited in
   footnote 16. See also the Opinion of Mr Advocate General Lenz,
   delivered on 23 January 1991 in that case ([1991] ECR I-2939 in section
   32 of the Opinion).

   (51) - Judgment in Case 48/69 ICI v Commission [1972] ECR 619 at
   paragraphs 64 and 66; see also the judgment in Joined Cases 40 to 48,
   50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR
   1663 at paragraph 191.

   (52) - Judgment in Case 8/74 Dassonville [1974] ECR 837 at paragraph 5.

   (53) - See, for example, the judgment in Case 127/73 BRT v SABAM and NV
   Fonior [1974] ECR 313 at paragraph 19.

   (54) - See the judgments in BRT v SADAM and NV Fonior, cited in the
   previous footnote, at paragraph 20, in Case 7/82 GVL v Commission
   [1983] ECR 483, at paragraphs 29 to 32, and in Ahmed Saeed, previously
   cited in footnote 22, at paragraph 55.

   (55) - See the judgment in Ahmed Saeed, previously cited in footnote
   22, at paragraph 55. Hitherto the Court has regarded as activities of
   general economic interest inter alia: maintenance of the navigability
   of an important waterway (judgment in Case 10/71 Luxembourg v Muller
   [1971] ECR 723); distribution of water (judgment in Case 96/82 IAZ v
   Commission [1983] ECR 3369); provision of services in the field of
   telecommunications (judgment in Case 41/83 Italy v Commission [1985]
   ECR 873; and television broadcasts (judgment in Case 155/73 Sacchi
   [1974] ECR 409).

   (56) - That seems to be the view also of the Tribunale Amministrativo
   Regionale which, in a judgment of 21 December 1988 relating to
   dock-work companies, stated: In fact it cannot be concluded that the
   object of the national rules in the field of dock-work companies was to
   entrust to them a service of general economic interest (Foro It. 89,
   part 3, p. 98).

   (57) - See the judgments in Hoefner and Elser, previously cited in
   footnote 26, at paragraph 24, and in CBEM, previously cited in footnote
   35, at paragraph 17.

   (58) - See the judgment in Muller, previously cited in footnote 55, at
   paragraphs 13 to 16.

   (59) - See the judgments in Sacchi, previously cited in footnote 14, at
   paragraph 18, in BRT v SADAM, previously cited in footnote 53, at
   paragraph 22, in CBEM, previously cited in footnote 35, at paragraph
   17, and in Ahmed Saeed, previously cited in footnote 22, at paragraphs
   55 to 57.

   (60) - See the judgment in Ahmed Saeed, previously cited in footnote
   22, at paragraph 56.

   (61) - Ibidem, at paragraph 57.

   (62) - See the judgment in Case C-234/89 Delimitis [1991] ECR I-935 at
   paragraph 53.

References

   1. http://europa.eu.int/eur-lex/lex/en/editorial/legal_notice.htm