In his Opinion of 5 September 2013 in case C-327/12 Soa Nazionale Costruttori (not available in English), AG Cruz Villalon analyses the compatibility with EU free movement (ie freedom of establishment as per art 49 TFEU) and competition rules (arts 101, 102 and 106 TFEU) of the Italian system of tenderers' certification whereby private certification bodies are legally required to charge minimum mandatory tariffs to the companies seeking to obtain certificates of viability in order to participate in public tenders (as foreseen in art 52 dir 2004/18).
The most controversial aspect of the system is that it includes a tariff calculation formula that automatically multiplies the rate payable for the certification activities according to the number of tenders for public works for which the applicant company seeks verification. This system was challenged under both competition and free movement rules.
Under the competition analysis, AG Cruz Villalon considers that art 106 TFEU is inapplicable, given that the private certification bodies are not entrusted with 'special or exclusive rights', as defined in Ambulanz Glockner (C-475/99). According to the AG, in Italy, private certification bodies
operate in a market strongly limited, in the sense that there is no cross competition with similar services. That is, the certification of public works companies is a service that, as such, does not compete directly or indirectly with any other, since there are no similar services that a company can use in order to compete in a tender for Italian public works. In such a context, that of a market that could be qualified as "captive", the fact that all [private certification bodies] exercise the special powers that the legislature has decided to entrust the private sector with, excludes any risk of competitive advantage over another market operator. There is no sector that is harmed by allotting ex lege to the [private certification bodies] the power to issue certifications as raised here. Thus, it is not possible to conclude that the Italian State has attributed to [private certification bodies] "special or exclusive rights" within the meaning of Article 106 TFEU. This conclusion implies, obviously, that that provision is inapplicable to the present case (para 35, own translation from Spanish).
In my view, the argument is rather counterintuitive (since, precisely only private certification bodies can carry out these activities and, consequently, the system does have an element of protection granted to a limited? number of companies that can substantially affect the ability of other undertakings to perform the economic activity in question in the same territory in conditions essentially equivalent, as required in Ambulanz Glockner) but it makes sense (only) on the working condition that any undertaking can request and obtain authorisation to act as a private certification body (as is indeed the case, see para 57 of the Opinion).
In this scenario, it is the absence of a numerus clausus, rather than the inexistence of an impact on potential competition (which can be highly doubted, as the inexistence of substitutive services is a mere artificial result of the reserve of activity to the benefit of the private certification bodies), that would justify the non-existence of an exclusive or special right under Article 106 TFEU. In my view, hence, the analysis carried out by the AG is blurred and should have been limited to the fact that there is no predetermined (limited) number of authorisations to act as a private certification body and, as a consequence, that market can be considered open and (somehow) competitive.
The AG equally dismisses that the setting of minimum tariffs runs contrary to the State action doctrine on the basis of Articles 4(3) TEU and 101, 102 and 106 TFEU (as described in Arduino C-35/99, and Cipolla C-94/04), given that there is no trace of active involvement of the private certification bodies in the setting of those tariffs (which, in my view, tends to perpetuate the lack of teeth of this theory and continues to significantly restrict the ability of the CJEU to set limits on anticompetitive market behaviour imposed by public authorities--such as setting floors to price competition by way of minimum tariffs...).
In any case, the AG moves past the analysis from the competition law perspective and engages in an assessment of the Italian rules on minimum tariffs for public procurement certification purposes under Article 49 TFEU. After dismissing that private certification bodies exercise public powers (or public authority, which would activate the derogation in art 51 TFEU, but is excluded on the basis of the case law in Commission v Portugal C-438/08, and Commission v Germany C-404/05), the AG clearly considers the minimum tariff system as a restriction of the freedom of establishment and assesses its compatibility with the internal market on the basis of its potential justification on grounds of general public interest (which is accepted) and its proportionality. It is interesting to note that the AG takes into consideration the specific circumstances of the market in order to accept the suitability of the tariffs
the adequacy of mandatory minimum rates must be determined, in this case, in the context of a small size market and in which it is necessary to safeguard the [private certification bodies'] decisional autonomy against possible requirements or interests of their clients. Seen this way, the imposition of a binding mandatory minimum tariff regime by the State is a measure consistent with the purpose of ensuring the quality of the service and the independence of the companies responsible for the certification (para 58, own translation from Spanish).
The analysis of necessity and proportionality of the minimum tariffs as measures designed to ensure the quality and independence of the certification service is then carried out in somehow surprising terms. The AG considers (at paras 61 and 62) that the requirement of independence of the private certification bodies is of such a nature that it justifies the coexistence of a very strict oversight and disciplinary regime enforced by the public contracts authority (Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture) AND the minimum tariffs--which, in my view, is clearly excessive, because the element of price negotiation should not affect the regulatory controls in any relevant manner. In my view, the considerations of the AG would justify the existence of minimum tariffs in a multiplicity of markets (such as audit services, for instance), and this should not be accepted as a matter of principle.
However, the AG does take issue with the proportionality of the tariffs and, more specifically, with the fact that they are automatically multiplied (i.e. collected) every time the undertaking seeks to participate in a public contract. According to the AG
65. [...] this system raises serious questions concerning the need of the measure, where certification is requested for various public work tenders. As I said, it is justified that bidders pay a minimum fee required at the time of undergoing certification [...] What does not seem to have enough explanation [...] is that [a private certification body] can automatically multiply the amount of its fees simply because a firm aims to participate in different tenders. The structure, activities, staff, physical, and other features of the company are usually the same, and it is normal that a company with sufficient resources is able to perform various public works at a time, either of low or high values.
66. It is true that in the event that a company aims to participate in several public works the [private certification body] should appreciate its individual situation in the light of the several contracts. Logically the workload of the [private certification body] is increased and it is acceptable that in such circumstances the required minimum rate reflects this increased responsibility. However, a system that automatically multiplies the amount of the required minimum rate depending on the number of works for which undertakings are competing does not respond objectively to the greater burden borne by the [private certification bodies]. On the contrary, the [...] system allows for an evaluation of a single company but applying a mandatory minimum rate much higher than required in the event that it had aimed to submit a single bid.
67. Therefore, and in view of the above, a calculation formula as presented, which in the case of an application for certification for various public works automatically multiplies the amount of the fee depending by the number of intended bids, goes beyond what would be necessary to achieve the pursued objectives of quality and independence. Consequently, I understand that in this specific point the mandatory minimum tariff regime applicable to [private certification bodies], and in particular the calculation formula applicable in case of seeking certification for various public work tenders is not justified by overriding reasons of general interest and therefore not compatible with Article 49 TFEU (paras 65 to 67, own translation from Spanish).
In my view, the conclusion that the AG reaches is appropriate. However, I would rather have the CJEU determining that, in the presence of a sound oversight and disciplinary regime, no minimum tariffs are justifiable, regardless of the proportionality or lack thereof in their calculation.