From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9242.4.1 Competition                
Date: Tue, 22 Dec 92 19:52:23 +0100
Organization: VDJ Nuernberg

ENR   : 2523
HD    : 4. Competition
TI    : Judgment of the Court of Justice - Partial annulment of Directive
        90/388/EEC - Telecommunications
RF    : JUS 9242.4.1
AB    : In June 1990, the Commission adopted Directive 90/388/EEC (OJ 1990
        no L 192, p. 10) on the basis of Article 90 (3) of the EEC Treaty,
        on competition in the markets for telecommunication services. This
        directive notably requires the Member States to abolish exclusive
        or special rights for providers of telecommunication services other
        than the vocal telephone service and to ensure the right of any
        economic agent to provide these telecommunication services.
        Considering that by adopting Directive 90/388/EEC, the Commission
        had infringed Articles 90, 59, 100A, 85 and 86 of the EEC Treaty,
        Spain, Belgium and Italy brought an action before the Court of
        Justice for annulment of the directive. First, the Court of Justice
        had to rule on the power of the Commission to adopt the directive in
        question. On observing that the Commission has that power, the Court
        recalled that Article 90 (3) of the EEC Treaty gives the Commission
        the power to lay down general rules defining the obligations
        resulting from the Treaty which are binding on the Member States with
        regard to the undertakings referred to in Article 90 (1) and (2). The
        Court specified that the object of the powers given to the Commission
        by Article 90 (3) is different and more specific than those given to
        the Council by Articles 100A and 87 of the Treaty, and that the
        possibility that the Council may adopt a regulation, including
        provisions which concern the specific field of Article 90, in
        application of a general power it holds in virtue of other articles
        of the Treaty, does not preclude the exercise of the power this
        Article gives to the Commission. Moreover, the Court noted that
        Article 59 of the Treaty is directly applicable - the Commission
        could have defined obligations resulting from this article without
        any prior legislative action by the Council. Finally, the Court
        rejected the argument given by the petitioning States whereby the
        Commission had overstepped the powers it holds under Article 90 (3)
        by defining too rigid a framework for eliminating infringements of
        Article 86 of the Treaty. Subsequently, the Court examined whether
        the Commission was founded in requiring the abolishment of exclusive
        rights for the provision of telecommunication services.
        While the Court observed that simply creating a dominant position
        by granting exclusive rights in the meaning of Article 90 (1) of
        the Treaty is not incompatible with Article 86 of the Treaty per
        se, it recalled its judgment of 13 December 1991 (case 18/88 RTT
        v. GB-Inno-BM, ECR 1991, p. I-5941, item 24) in which it had ruled
        that the extension, without objective justification, of the
        monopoly for the establishment and exploitation of the telephone
        network to the market of telephone apparatus was prohibited by
        Article 86 when that extension is the result of a State measure
        leading to elimination of competition. According to the Court, the
        same conclusion must be drawn when the monopoly for establishment
        and exploitation extends to the telecommunication services market.
        On this question, the Court noted that in the words of the
        sixteenth item in the grounds of Directive 90/388/EEC, granting
        exclusive rights to telecommunications organizations leads those
        organizations to exclude competitors from the market for
        telecommunication services, or at the least, to restrict their
        access to the market. The Court added that, according to the same
        item, all of the services in question can, in principle, be
        provided by suppliers established in other Member States. Under
        these conditions, the Court concluded that the Commission had
        grounds to require the abolishment of exclusive rights for providing
        certain telecommunication services. Finally, the Court examined the
        argument put forward by the petitioners according to which the
        directive is not sufficiently reasoned with regard to special rights.
        Here the Court recalled its case law according to which a directive,
        the purpose of which is the elimination of special rights in a given
        sector, which does not specify the type of special rights concretely
        involved, nor why the existence of these rights is contrary to the
        various provisions of the Treaty, is insufficiently reasoned.
        The Court of Justice concluded that Directive 90/388/EEC must be
        annulled to the extent that its objective is to regulate special
        rights. Judgment of the Court of Justice of 17 November 1992, joined
        cases C-271/90, C-281/90, C-289/90 Kingdom of Spain, Kingdom of
        Belgium, Italian Republic v. Commission of the European Communities,
        not yet published.
CT    : Competition; Telecommunication
DT    : 921211
Newsgroups: de.soc.recht