On 12 December 2013, the Court of Justice of the European Union published its judgment in Ministero dello Sviluppo economico v. SOA Nazionale Costruttori (C-327/12). This case, referred by the Italian State Council, concerned the question of whether EU law prevents a Member State from adopting legislation that imposes a scheme of compulsory minimum tariffs on attestation organizations.
At issue are the Società Organismi di Attestazione ("SOAs") that supply certification services to undertakings seeking to participate in procedures for the award of public works contracts. National law imposed upon the SOAs the obligation to participate in a scheme of compulsory minimum tariffs for these services from which they could not derogate. This scheme thus prevented them from setting prices below a certain level, thereby potentially reducing competition.
The Court of Justice judgment first of all shows that an obligation under national law to participate in minimum price schemes does not necessarily breach EU competition law. In this particular case, the Court of Justice did not find any evidence that the national legislation at issue encourages practices contrary to Article 101 and 102 TFEU. In addition, it ruled that the SOAs cannot be considered to be undertakings to which Italy has granted special or exclusive rights under Article 106(1) TFEU. The reason for this is that all SOAs have the same rights and competences in the context of the relevant certification service market and new SOAs are able to enter this market. The Court of Justice thus concluded that EU competition law does not preclude the adoption of the national legislation at issue.
At the same time, the obligation to participate in this scheme must also be assessed in relation to other aspects of the EU's internal market. Even though it is in line with EU competition law, the obligation as such could still violate the EU's rules on free movement. In this case, the Court of Justice determined that the obligation to participate in the scheme forms a restriction on the freedom of establishment (Article 49 TFEU), because it makes it harder for undertakings from other Member States to compete with the SOAs in Italy. The Court of Justice however found that this restriction is justified, because the scheme ensures the quality of the certification services. It also held that the restriction is suitable for attaining that objective, but left it up to the Italian State Council to determine whether the measure does not go beyond what is necessary. The obligation to participate in the scheme could thus still violate the EU's freedom of establishment, despite the fact that it does not breach EU competition rules.
