Minimum costs of transport: almost return to the the past

By ASLA - Associazione degli Studi Legali Associati

di Marco Cottone*

Milan - The question of the “minimum costs” of road transport continues to be debated by operators in the sector.

In fact, the directorial decree n. 206 of the Ministry of Infrastructure and Transport with which the indicative reference costs of road haulage have been reintroduced into national law.

As is known, with the sentence pronounced on 4 September 2014, the Court of Justice (Fifth Chamber) had judged the determination of the minimum costs for road haulage by the National Observatory, established in July 2010, contrary to the principle of free competition, as non-impartial third party body but representative of economic operators and business associations. As a result of this changed regulatory context, the possibility for the parties (client and carrier) to freely determine the cost of transport by reason of the abrogation of the mandatory minimum costs was introduced in the 2015 Stability Law, also providing for the publication, for work of the Ministry of Infrastructure and Transport, of the indicative reference values ​​of the operating costs of road haulage companies.

In fact, the free determination of transport tariffs already applied after the abrogation of the now historic "fork tariffs" was reintroduced.

Similarly to what happened in the transitional period between the abolition of the "fork tariff" system and the first introduction of minimum road transport costs, also following the aforementioned abrogation of 2015 by several authorities, the need to regulate the tariff market in a uniform manner because it is strictly connected and functional to the safety requirements of road traffic.

Thus, the Antitrust Authority, with the two opinions of April 15, 2015 and February 8, 2017, urged the Administration to carry out a survey of the operating costs in order to define a wider range of forks. possible, in order to ensure homogeneity in the reference market and avoid distortions to the detriment of road safety.

The Court of Justice also returned to the matter with the order of 21 June 2016 with which it specified that art. 101 TFEU, in conjunction with art. 4, paragraph 3, "must be interpreted in the sense that the same does not preclude national legislation according to which the price of road transport services for third parties cannot be lower than the minimum operating costs determined by a national administration."

Finally, the decision of the Constitutional Court is more recent, which with sentence no. 47 of 7 February 2018 clarified that the provisions of Article 83 bis of Law no. 133/2008 (in the matter of road safety) are not in contrast with the constitutional principles having regard to the principle that a general interest (the safety of road traffic and the road transport market) can legitimize a limitation to the negotiating freedom of the parties.

The adoption of the directorial decree no. 206 as well explained by the note issued by the Ministry of Infrastructure and Transport which states that the publication of the decree "takes place at the conclusion of a story that saw the decisive contribution of the Constitutional Court and the Antitrust Authority, with the involvement of the stakeholders and which led to a survey of the reference values ​​of operating costs that defines a system of ranges as broad as possible, avoiding the identification of detailed values ​​for each individual average cost item, instead aggregating the individual homogeneous cost items."

The methodological approach adopted by the Ministry consists in the distinction of four vehicle classes, with reference to the maximum total mass of each vehicle, and identifies four cost items to be associated with the minimum-maximum value ranges, distributed over 3 sections. Furthermore, with regard to vehicles with a total mass up to 3.5 tonnes, mostly used in last mile transport in urban areas and with a distance of less than 100 km, it is possible to quantify the remuneration of the service at the time taken. for the service.

Finally, but not least, in decree no. 206 the non-binding nature of the values ​​of the operating costs is expressly clarified and in any case reserves the right, where necessary, to proceed with any updates of these cost values, making the negotiating freedom regime of the parties still applicable in the determination of tariffs.

*Lawyer, Senior Associate - Department of Navigation and Transport Law, Legance - Avvocati Associati