Opinion of Advocate General Gulmann delivered on 6 October 1992

1 Original language: Danish.

2 Article 34 of the Law on radio and television broadcasting, adopted in 1990, maintains in force the 1983 rules until the allocation plan for which it provides has been adopted.

3 Two of the companies were also informed that it had been established that their television broadcasting was causing a certain amount of interference with the use of the frequencies in question by the army, police and the public concessionary undertaking RAI.

4 Decision No 102 of 2 March 1990.

5 This line of thought has found expression, inter alta, in die Court's judgment in Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041, paragraph 9 of which states that: ... the Court held in its judgment of 11 June 1987 (Case 14/86 Pretore di Salo v Persons unknown [1987] ECR 2545) that its jurisdiction to reply to a request for a preliminary ruling is subject to the requirement that the request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law. (emphasis added).

6 Judgment in Case 146/73 Rheinmuhlen-Dusseldorf v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel [1974] ECR 139.

7 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33.

8 Judgment in Case 338/85 Pardini, cited above, paragraph 11.

9 See, most recently, paragraph 20 of the Court's judgment in Case C-343/90 Lourenço Días v Director da Alfàndega do Porto [1992] ECR I-4673.

10 Judgment in Case 179/84 Bozzetti v Invernizzi and Ministero del Tesoro [1985] ECR 2301.

11 See, for example, paragraph 8 of the Court's judgment in Case 338/85 Pardini, cited above.

12 Judgment of the Court in Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871, paragraph 26.

13 See, for example, the judgments in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 17, in Joined Cases 98/85, 162/85 and 258/85 Benini and Others v Regione Lazio and Unità Sanitarie Locali [1986] ECR 1885, paragraph 6, and, most recently, that in Case C-343/90 Lourenço Dias, cited above, paragraph 19.

14 See judgment in Joined Cases 141/81—143/81 Holdijk andOthers [1982] ECR 1299, paragraph 6.

15 See, for example, the Court's judgment in Case 14/86 Pre-tore di Salo, cited above, paragraph 16.

16 There is, in my opinion, nothing in the documents on the cases to warrant an interpretation of the other prohibitive rules referred to in Article 90. It may be useful to point out that the allegedases (on this, see the conclusion of point 28 below).

17 Case C-260/89 ERT-AE v DEP [1991] ECR I-2925.

18 In addition to the above judgment in the ERT case, mention might also be made of the Court's judgments in Case C-41/90 Hofner and Eher v Macrotron [1991] ECR I-1979 and in Case C-179/90 Mera Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889.

19 At point 39 of his Opinion in Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, Advocate General Van Gerven gave the following summary of the Court's case-law:It appears, I think, from that case-law that the Court's view is that the provisions of Article 90, in conjunction with those of Articles 85 and 86, cover State measures... which encourage, require or make inevitable conduct by undertakings winch, whatever its nature, is prohibited by Articles 85 and 86, and measures which delegate to undertakings a duty of regulating competition such as ought to be performed by the authorities [emphasis added]. The [central] consideration [in this case-law is] that such State measures, in combination with one form or another of conduct by an undertaking, have the same effects with regard to tile structure of competition on the Community market as conduct by an undertaking which is unconnectedlink factor to make Article 90(1) applicable in conjunction with Article 85 or 86 need not necessarily precede action by the public authorities but may follow it, result therefrom or even be the inevitable consequence thereof. Nor is it necessary for the undertaking itself to have committed an inten-tional-infringement of the rules of competition (in other words, it is enough for it to be placed in a situation in which it cannot act otherwise than by restricting competition).

20 Judgment in Case C-260/89 ERT, cited above, at paragraph 37 of which the Court ruled as follows:In that respect it should be observed that Article 90(1) of the Treaty prohibits the granting of an exclusive right to retransmit television broadcasts to a single undertaking which has an exclusive right to transmit broadcasts, where those rights are liable to create a situation in which that undertaking is led to infringe Article 86 by virtue of a discriminatory broadcasting policy which favours its own programmes.

21 The Commission referred, inter alia, to the documentation submitted in the preliminary reference in Case C-170/90 Odeon Pubblicità and Others v Fininvest and Others, referred by the Tribunale Civile e Penale di Milano but withdrawn after the conclusion of the written and oral procedure before the Court. The case concerned conditions of competition on the Italian market in television advertising.

22 Sec paragraph 51 of the judgment in th at case.