Opinion of Mr Advocate General Darmon delivered on 8 February 1994

1 Original language: French.

2 See, for example, Council Directive 90/377/EEC of 29 June 1990 concerning a Community procedure to improve the transparency of gas and electricity prices charged to industrial end-users (OJ 1990 L 185, p. 16) and Council Directive 90/547/EEC of 29 October 1990 on the transit of electricity through transmission grids (OJ 1990 L 313, p. 30).

3 The Internal Energy Market (Commission Working Document) of 2 May 1988, COM(88)238.

4 92/C 65/04 (OJ 1992 C 65, p. 4). It was not approved in that form by the Council.

5 Ibid., third recital of the preamble.

6 SEP's objects, as laid down in its statutes, include in particular the operation of the high voltage grid, the conclusion of agreements with foreign electricity undertakings concerning imports and exports of electricity and the use of international interconnections (judgment in Case T-16/91 Rendo and Others [1992] ECR II-2417, paragraph 4).

7 According to the Netherlands Government, that prohibition is justified by the fact that imports are carried out solely on a centralized — and planned — basis by SEP (Observations of the Netherlands Government, paragraph 10).

8 General conditions for the supply of electric power to municipalities with their own distributors in the territory of IJsselcentrale's concession, drawn up at Zwolle on 17 December 1964, which came into force on 1 April 1965.

9 The Municipality undertakes to obtain electric power for supply in its territory exclusively from IJsselcentrale, and to use that power only for its own consumption or for supply to third parties for consumption in the territory of the Municipality.

10 Staatsblad 535. The Law on electricity of 16 November 1989 opened up the Netherlands market, within strict limits: distribution companies can choose their Netherlands supplier (cross-shopping) and industrial consumers may import electricity for their own consumption, since it does not make use of the public supply network.

11 Sec paragraph 5.11 of the order of the national court.

12 See Commission Decision 91/50/EEC of 16 January 1991 relating to a proceeding under Article 85 of the EEC Treaty (OJ 1991 L 28, p. 32, point 1).

13 Article 1 of the operative part, emphasis added.

14 Judgment in Rendo, cited above.

15 Point 1, penultimate paragraph.

16 Judgment in Rendo, paragraphs 58 and 61. As regards the ban on imports applied by the distributors and prohibited by Article 34 of tne 1989 Electricity Law, the Commission refrained from reaching any conclusion on the question whether that ban was justified having regard to Article 90(2) of the Treaty, anticipating that Treaty infringement proceedings would be brought in that regard (point 50 of the decision and paragraphs 46 and 47 of the judgment of the Court of First Instance).

17 Ibid., paragraph 27.

18 On the ground that the letter was not in the nature of a decision and had no legal effect.

19 Written observations of the Commission, paragraphs 16 and 17. See also paragraph 26 of the Rendo judgment.

20 Case 61/65 [1966] ECR 261.

21 See the judgments in Case 14/86 Pretore di Salò [1987] ECR 2545. paragraph 7, and Case 338/85 Pardim [1988] ECR 2041, paragraph 9.

22 Judgment in Case 102/81 Nordsee [1982] ECR 1095, paragraph 13.

23 See the observations of IJM on p. 8 of the French translation.

24 See Article 647 of the former Netherlands Code of Procedure, which applied at the time in question to the action brought before the court making the reference, and Article 16 of the GC agreed between the parties.

25 See, as regards this point, the judgment in Case 109/88 Danfoss [1989] ECR 3199, paragraph 8.

26 Cited above (footnote 21), paragraph 14.

27 Case 246/80 [1981] ECR 2311.

28 Judgment in Nordsee, paragraph 14.

29 See the judgment in Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 40, emphasis added.

30 See the judgment in Case 229/83 Leclere [1985] ECR 1, paragraph 14.

31 Sec, on this point, paragraph 19 of my Opinion in Case C-24/92 Corbiau [1993] ECR I-1277.

32 See the paragraph reiterated in several of the Court's judgments: Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 25, Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paragraph 36, Joined Cases 97, 98 and 99/87 Dow Ibérica and Others v Commission [1989] ECR 3165, paragraph 22, and Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 19, hereinafter quoted with emphasis added: The function of those (competition) rules, as is apparent from the fourth recital in the preamble to the Treaty, Article 3(0 and Articles 85 and 86, is to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers. The exercise of the powers given to the Commission by Regulation No 17 contributes to the maintenance of the system of competition intended by the Treaty which undertakings have an absolute duty to comply with.

33 Decision given on 24 April 1990 by the court making the reference.

34 Page 24 of the French translation of its observations.

35 Case 155/73. [1974] ECR 409, paragraph 10, emphasis added. Since that judgment was delivered, the Court's case-law has been consistent: sec paragraph 8 of the judgment in Case 271/81 Amélioration de l'Elevage [1983] ECR 2057 and paragraph 33 of the judgment in Joined Cases C-46/90 and C-93/91 Lagauche and Evrard [1993] ECR I-5267.

36 P. Sablière: comment on the judgment of the Cour d'Appel d'Angers (Court of Appeal, Angers) of 16 December 1987, in: Cahiers juridiques ac l'électricité et du gaz, May 1988, p. 2.

37 See paragraph 30 of the observations of the Netherlands Government.

38 Observations submitted before the question referred for a preliminary ruling was withdrawn.

39 Page 7.

40 See Article 3(t) of the EC Treaty and the declaration on civil protection, energy and tourism annexed to the Final Act of the Maastricht Treaty.

41 See, in that regard, U. Everling: Der Binnenmarkt nach der Rechtsprechung des Gerichthofs der Europäischen Gemeinschaften, in: Ein EWG-Binnenmarkt für Elektrizität — Realität oder Utopie, herausgegeben von Rudolf Lukes, 1988, p. 142.

42 Case 6/64 [1964] ECR 585, at p. 597.

43 See, for example, the judgment in Case C-347/88 Commission v Greece [1990] ECR I-4747, concerning imports of crude oil and petroleum products.

44 Case 30/87 [1988] ECR 2479, paragraph 13.

45 As Advocate General Da Cruz Vilaça points out in his Opinion in Bodson, Article 37 does not refer to any territorial dimension in the list of conditions for its application, which are defined instead by reference to the effects of the monopoly on intra-Community trade' ([1988] ECR, p. 2494, paragraph 41).

46 Judgment in Bodson, paragraph 13.

47 See in that regard paragraph 1.1 of IJM's observations and Article 2(1) of the concession. See also Decision 91/50 of the Commission, paragraph 9.

48 Sec that decision and Royal Order No 54 of 13 June 1918 (Staatscourant of 15 June 1918, No 138). Sec also IJM's observations, pp. 21 and 22: the Netherlands legislation docs not prohibit imports of electricity, provided a licence is obtained.

49 Point 21.

50 Ibid.

51 Law of 22 October 1938, Staatsblad 523. Sec the final part of paragraph 3.2 of IJM's observations.

52 Paragraphs 14 and 15.

53 Sec also the judgment in Case 65/86 Bayer tinti Henneke [1988] ECR 5249, paragraph 12.

54 Sec paragraph 25 of the observations of the Netherlands Government.

55 Judgments in Joined Cases 209/84, 210/84, 211/84, 212/84 and 213/84 Asjes and Others [1986] ECR 1425, paragraph 40, and Case 45/85 Verband der Sachversicherer [1987] ECR 405, paragraph 12.

56 See the definitive judgment in Case T-61/89 Dansk Pelsdryavlerforening [1992] ECR II-1931, paragraph 54.

57 Case 136/86 [1987] ECR 4789, paragraph 18.

58 Judgment in Case 72/83 Campus Oil and Others [1984] ECR 2727.

59 Paragraph 1.2 of IJM's observations.

60 Judgment in Case C-234/89 Delimiti s [1991] ECR I-935, paragraph 14.

61 The term used is that applied by J. L. de Guièze in his commentary on Commission Decision 91/50 in: Cahiers juridiques de l'électricité et du gaz , January 1992, p. 34.

62 Decision 91/50, point 11.

63 Ibid., point 12. According to the Commission Working Document on the energy market, the EEC has one of the most fully integrated international high-voltage networks in the world (p. 69, footnote 2 above).

64 Cited above (footnote 1). The directive acknowledges that, within a Member State, a single entity may be responsible for a large high-voltage electricity grid. In relation to the Netherlands, it designates SEP.

65 Point 16.

66 See, in particular, the final part of point 3 (p. 30) of the French translation of IJM's observations.

67 As appears to be the case in the Netherlands. See point 27 of Decision 91/50.

68 See in that regard point 25 et seq. of Decision 91/50.

69 Decision 91/50, point 28.

70 Ibid., points 25 and 28.

71 Ibid., point 32.

72 Case 23/67, [1967] ECR 407.

73 Sec paragraph 14 of the judgment in Dehnutis.

74 Sec points 6 and 28 of Decision 91/50.

75 See, for example, the judgment in Michelin v Commission [1983] ECR 3461, paragraphs 23 to 28.

76 Judgment in Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22.

77 See Commission Decision 91/50, point 53, in relation to the OvS.

78 Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution agreements (OJ 1983 L 173, p. 1) is inapplicable to the GC, by virtue of Article 3(c) thereof.

79 Judgment in Case C-260/89 ERT [1991] ECR I-2925, paragraph 31.

80 Judgment in Bodson, cited above, paragraph 35.

81 Joined Cases T-68/89, T-77/89 and T-78/89 [1992] ECR II-1403, paragraph 357 et seq.

82 Paragraph 358, emphasis added.

83 Point 28 of Decision 91/50.

84 This was stated most recently in the judgment in Case T-65/89 BPB Industries v Commission [1993] ECR II-389, paragraph 68. See also the judgments in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 89, and Case C-62/86 AKZO v Commission [1991] ECR 3359, paragraph 149.

85 Judgment in Case 10/71 Muller [1971] ECR 723.

86 See the judgments in the Port of Mertért case, cited above (paragraph 16), and in Case 41/83 Italy v Commission [1985] ECR 873, paragraph 30, as well as paragraph 16 of Commission Decision 90/16/EEC of 20 December 1989 concerning the provision in the Netherlands of express delivery services (OJ 1990 L 10, p. 47). That decision was annulled by the judgment in Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565.

87 Judgment in Case 127/73 BRT [1974] ECR 313, paragraphs 19 to 23. See also the judgment in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 27.

88 Case 66/86 [1989] ECR 803.

89 L'application du droit communautaire de la concurrence par les autorités françaises, RTDE, 1991, p. 1, 5.

90 Paragraph 55 of the judgment in Ahned Saeed, cited above.

91 Paragraph 56.

92 Paragraph 57.

93 Cited in footnote 78 above. See also paragraph 99 of the judgment of 18 November 1992 in Rendo, cited above.

94 Paragraph 34.

95 Case C-320/91 [1993] ECR I-2533.

96 Paragraph 17.

97 Paragraph 19.

98 Case C-202/88 [1991] ECR I-1223.

99 Joined Cases C-271/90, C-281/90 and C-289/90 [1992] ECR I-5833.

100 Paragraph 55 of the judgment in France v Commission and paragraph 24 of the judgment in Spain and Others v Commission. The Court held that Article 90(2) applies not only to undertakings but also to States which derive from it the power to confer on undertakings entrusted by them with the operation of services of general economic interest exclusive rights which hinder the application of the competition rules (judgment in Corbeau, cited above, paragraph 14). This demonstrates the practical importance of that provision.

101 See Notice 93/C 39/05 on cooperation between national courts and the Commission in applying Articles 85 and 86 of the Treaty (OJ 1993 C 39, p. 6).

102 See the judgment in BRT II, cited above, paragraph 19.

103 Paragraph 27 of the Opinion of Advocate General Van Gerven in Merci Convenzionali Porto di Genova (cited in footnote 86 above).

104 Judgments in Italy v Commission (cited in footnote 85 above, paragraphs 28 to 33) and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 16.

105 Judgment in Corbeau, cited above, paragraph 15.

106 Point 40.

107 Point 41.

108 Relating to a proceeding under Article 85 of the EEC Treaty and Article 65 of the ECSC Treaty (jahrhundertvertrag) (OJ 1993 L 50, p. 14).

109 Point 28.

110 As in the case of IJM, the holder of a concession granted by the State.

111 Paragraph 33 of the judgment in ERT, cited above, emphasis added. Sec also the judgment in Sacchi (cited above, paragraph 15) and those in Case 311/84 CBEM [1985] ECR 3261, paragraph 17, and Case C-41/90 Hofncr and Eher [1991] ECR I-1979, paragraph 24.

112 This interpolation represents, I think, a reappraisal by the Court of the contents of paragraph 19 of its judgment in Campus Oil and Others (cited in footnote 57 above), in which it declared:Article 90(2) does not, however, exempt a Member State which has entrusted such an operation to an undertaking from the prohibition on adopting, in favour of that undertaking and with a view to protecting its activity, measures that restrict imports from other Member States contrary to Article 30 of the Treaty. It hardly needs to be pointed out that that qualification, which was expressed in an obiter dictum, has never been confirmed in the Court's subsequent case-law, and that it referred only to State measures.

113 Paragraph 14.

114 Paragraph 16.

115 Paragraph 17.

116 Paragraph 18.

117 Paragraph 19.

118 F. Hamon: Commentary on the Corbeau judgment (cited in footnote 94 above), AJDA, 20 December 1993, p. 866, 869.

119 Cited in footnote 103 above, paragraph 22.

120 Point 44(c).

121 Paragraph 50.

122 See, with regard to these points. Notice 90/C 191/04 given pursuant to Article 19(3) of Council Regulation No 17/62 concerning the reorganization of the electricity industry in England and Wales (OJ 1990 C 191, p. 9). Consumers may conclude option contracts or contracts for differences with generators, which permit hedging against fluctuations in the pool price. The electricity produced by a given generator is not supplied to any specific consumer.

123 Second and sixth recitals.

124 Tenth recital.

125 Article 21(2) of the proposal.

126 Seventeenth recital.

127 See Agence Europe, 19 November 1993, p. 13, and the answer given by Mr Marutes on behalf of the Commission to a written question (No 827/93) by a Member of the European Parlament (OJ 1993 C 333, p. 14).

128 Paragraph 15 of the judgment in Corbeau.

129 See Agence Europe, 20 January 1994, p. 8.