First comments on the ruling of the European Court of Justice on the subject of minimum operating costs
– In the newsletter of April 2013 we reported that the Lazio Regional Administrative Court had requested a preliminary ruling of the Court of Justice of the European Union in order to have an assessment of the compatibility of the national provisions, which prescribe the minimum operating costs in the transport sector, with EU law. On September 4, 2014, the Court of Justice issued the awaited ruling. After a series of articulated reasons the Court, in its judgment, states that “Article 101 TFEU, read in conjunction with Article 4(3), TEU, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which the price of haulage services for hire and reward may not be lower than minimum operating costs, which are fixed by a body composed mainly of representatives of the economic operators concerned”. The first consequence of this decision is, therefore, the ascertained incompatibility with EU law of the provisions which identify the Observatory as the subject entrusted to fix minimum safety costs on a monthly basis. The Regional Administrative Court of Lazio (which originally raised the question, and before which the minimum safety costs determined by the Observatory were challenged) will now have to grant the applications filed by a large part of the contractors and cancel the various resolutions, which had been challenged, by means of which the Observatory had determined the minimum safety costs. That said, it should also be taken into account that the ordering part of the judgment filed on September 4 states the incompatibility with EU law of the sole minimum safety costs fixed by the Observatory, but the reasons of the judgment, which lead up to the ordering part, raise doubts also in respect of the compatibility between the entire regulatory framework governing minimum safety costs and EU law. In light of this, it is necessary, therefore, to consider whether the range of the effects of the judgment concern only the proceedings before the Administrative Court of Lazio, or whether it may be applied also outside of that proceeding, crushing the entire regulatory system of Art. 83-bis, and thus also the minimum safety costs fixed by the Ministry prior to the establishment of the Observatory, and after its removal. Article. 267 TFEU, the only specific regulation of the European Treaties in terms of reference for a preliminary ruling, is silent on this matter.
To answer this question it is, therefore, necessary to proceed with considerations of a systematic character, while bearing in mind that the Scholars who have dealt with this topic have not come to unequivocal conclusions. The following could be one of the possible interpretations:
– The ruling has a binding pan-procedural effectiveness: This means that different judges will be bound by the referring court, but only those judges called upon to judge the same dispute pending on the merits between the same parties in a substantial sense (thus, in the specific case, the judges who are being and will be asked to decide on the application of minimum safety costs for transport operations in the period in which the Observatory was active, will have to dis-apply the provision).
– The ruling has an extra-procedural effect, but it ‘has no binding force: In fact, a judge (other than the referring court) asked to face an interpretative ruling by the European Court of Justice, will first have to identify the ratio decidendi of the decision, remaining free to assess whether or not the ratio decidendi of his specific case is the same as the one of the dispute which gave rise to the preliminary ruling pursuant to Article 267 TFEU.
Every time a national judge deems that the ratio decidendi of the judgment of the Court of Justice arose from an event which does not coincide with that given to his scrutiny, he will not be required to comply with the decision of the European Court, but
-he will be entitled to make a reference for a preliminary ruling under Article. 267 TFEU;
– he may issue a judgment on the basis of the interpretation of the EU law which he believes appropriate.
These conclusions are also supported by a respectful reading of the provisions of Article. 102 of the Italian Constitution, as a result of which the court is subject only to the law: the court could not, therefore, be legally bound by a merely interpretative case-law precedent. The non-binding nature of the interpretative precedent of the Court of Justice would also be indirectly confirmed by the same art. 267 TFEU. This article, in fact, always allows a national court (not of last instance) to refer an exegetical question to the Court of Justice even in the presence of a previous final judgment on an identical or substantially similar matter. It is clear that, if the precedent were binding, the different judges would not have this option and should comply with what stated by the Court of Justice. This obviously does not exclude that the national Court, (as often happens) voluntarily applies the precedent of the Court of Justice: in this case, the various national courts, before which there are pending proceedings for the recognition of the minimum safety costs, fixed by the Ministry before and after the suppression of the Observatory, may decide whether to apply or disapply the rule on a case by case basis. It is obvious that such a scenario is open to future potentially different interpretations of similar cases by judges who, in various Italian courts, are dealing with disputes relating to the recognition of the minimum safety costs: with the result that the decision of the Court of Justice, rather than bringing clarity to the already difficult relations between carriers and clients, paradoxically, may end up generating new inconsistencies.
Let us also not forget that in a few months the legislation on the minimum safety costs will also be subject to a review by the Constitutional Court, which will be asked to rule on referral orders forwarded by the Courts of Lucca and Trento: this scenario appears to be complex enough to give reasons to hope that, for once, we can find our way to a discussion that allows to reach a shared revision of the legislation on the minimum safety costs.
(Bologna Office – Massimo Campailla – 051 2750020)
