Opinion of the Advocate General — ECLI:EU:C:2003:151
Date: 2003-03-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Taxation;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Preliminary rulings — Admissibility of references — Need to provide the Court with 
sufficient details of the factual and legal context 
(Art. 234 EC; Statute of the Court of Justice, Art. 23) 
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SUMMARY — CASE C-207/01 
2. Competition — Community rules — Scope ratione materiae — Anti-competitiv e 
conduct — Meaning — Conduct of an undertaking required by national law and 
limited to recovery procedures on behalf of the State of surcharges constituting tax 
measures — Excluded 
(Arts 81 and 82 EC) 
3. Acts of the institutions — Recommendations — Direct effect — Excluded — Con­
sideration by the national court — Obligation — Scope 
(Art. 249, fifth subpara., EC) 
4. Industry — Tariff structures for electricity — Recommendation 81/924 — Scope 
ratione materiae — Surcharges on the supply of electricity — Excluded 
(Council Recommendation 81/924) 
1. The need to provide an interpretation 
of Community law which will be of use 
to the national court makes it necessary 
that the national court define the fac­
tual and legal context of the questions 
it is asking or, at the very least, explain 
the factual circumstances on which 
those questions are based. The infor­
mation provided in orders for reference 
must not only be such as to enable the 
Court to reply usefully but must also 
enable the governments of the Member 
States and other interested parties to 
submit observations pursuant to 
Article 23 of the Statute of the Court 
of Justice. It is the Court's duty to 
ensure that the possibility to submit 
observations is safeguarded, bearing in 
mind that, by virtue of the abovemen¬ 
tioned provision, only the orders for 
reference are notified to the interested 
parties. 
(see paras 24-25) 
2. Articles 81 and 82 EC apply only to 
anti-competitive conduct engaged in by 
undertakings on their own initiative, 
they do not apply if anti-competitive 
conduct is required of undertakings by 
national legislation or if the latter 
creates a legal framework which itself 
eliminates any possibility of competi­
tive activity on their part. In such a 
situation the restriction of competition 
is not attributable, as those provisions 
implicitly require, to the autonomous 
conduct of the undertakings. Articles 81 
and 82 EC may apply, however, if it is 
found that the national legislation does 
not preclude undertakings from engag­
ing in autonomous conduct which pre­
vents, restricts or distorts competition. 
Therefore, when an undertaking must 
be considered to be acting as a tax 
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ALTAIR CHIMICA 
collector that does not constitute anti­
competitive conduct. That is the case 
where the undertaking is not acting as 
an economic operator and does not 
have any margin of discretion, but 
merely collects, on behalf of the State, 
those surcharges constituting tax meas­
ures which fall exclusively within the 
competence of the State, such as the 
surcharge for nuclear charges and the 
surcharge for new plants using renew­
able energy and other similar sources 
imposed on the supply of electricity by 
Italian law. 
(see paras 30-35) 
3. Even if recommendations are not 
intended to produce binding effects 
and are not capable of creating rights 
that individuals can rely on before a 
national court they are not without any 
legal effect. The national courts are 
bound to take recommendations into 
consideration in order to decide dis­
putes submitted to them, in particular 
where they cast light on the interpre­
tation of national measures adopted in 
order to implement them or where they 
are designed to supplement binding 
Community provisions. 
(see para. 41) 
4. It is clear, both from its title and from 
the principles that it lays down, that 
Recommendation 81/924 on electricity 
tariff structures in the Community 
applies only to the structure of the 
electricity tariff. It seeks to harmonise 
the principles forming the basis of the 
tariff structures in the different 
Member States and to improve trans­
parency and public knowledge of elec­
tricity prices. Whilst the recommen­
dation gives indications as to the dif­
ferent costs that the prices may include 
there is nothing in it to suggest that it 
can be interpreted as applying to the 
introduction of a tax on electricity 
consumption. Therefore, that recom­
mendation does not prevent a Member 
State from levying surcharges on the 
supply of electricity. 
(see paras 42-43) 
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