Opinion of the Advocate General — ECLI:EU:C:2001:74
Date: 2001-02-01
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Questions which are 
manifestly irrelevant and hypothetical questions in a context precluding a useful 
answer — Questions bearing no relation to the purpose of the main action 
(Art. 234 EC) 
I-4109 
SUMMARY — CASE C-340/99 
2. Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Undertakings entrusted with the operation of services of 
general economic interest — National legislation making the supply of express mail 
services by undertakings other than the one responsible for operating the universal 
service subject to payment of postal dues — Allocation of the proceeds of those dues 
to the undertaking with the exclusive right to operate the universal service — Not 
permissible — justification — Need for that undertaking to secure the universal 
postal service — Proof — National procedural rules — Conditions governing their 
application 
(EC Treaty, Arts 86 and 90 (now Arts 82 EC and 86 EC)) 
1. In the context of the cooperation 
between the Court of Justice and the 
national courts provided for by Arti­
cle 234 EC, it is solely for the national 
court before which the dispute has been 
brought, and which must assume 
responsibility for the subsequent judi­
cial decision, to determine in the light 
of the particular circumstances of the 
case both the need for a preliminary 
ruling in order to enable it to deliver 
judgment and the relevance of the 
questions which it submits to the 
Court. Consequently, where the ques­
tions submitted by the national court 
concern the interpretation of Commu­
nity law, the Court of Justice is, in 
principle, bound to give a ruling. 
Nevertheless, in exceptional circum­
stances, it may examine the conditions 
in which the case was referred to it by 
the national court, in order to deter­
mine whether it has jurisdiction. The 
Court may refuse to rule on a question 
referred for a preliminary ruling by a 
national court only where it is quite 
obvious that the interpretation of Com­
munity law that is sought bears no 
relation to the facts of the main action 
or its purpose, where the problem is 
hypothetical, or where the Court does 
not have before it the elements of fact 
or law necessary to enable it to give a 
useful answer to the questions submit­
ted to it. 
Far from preventing a national court 
from referring questions to the Court 
under Article 234 EC, the case-law as 
stated in Case 283/81 Cilfit gives the 
national court sole responsibility for 
determining whether the correct appli­
cation of Community law is so obvious 
as to leave no scope for any reasonable 
doubt and for deciding, as a result, to 
refrain from referring to the Court of 
Justice a question concerning the inter­
pretation of Community law which has 
been raised before it. 
(see paras 30-31, 35) 
I-4110 
TNT TRACO 
2. In so far as trade between Member 
States may be affected, Article 86 of 
the EC Treaty, read in conjunction with 
Article 90 thereof (now Articles 82 EC 
and 86 EC), precludes legislation of a 
Member State which grants a private-
law undertaking the exclusive right to 
operate the universal postal service 
from making the right of any other 
economic operator to provide an 
express mail service not forming part 
of the universal service subject to 
payment of postal dues equivalent to 
the postage charge normally payable to 
the undertaking responsible for the 
universal service, unless it can be 
shown that the proceeds of such pay­
ment are necessary to enable the under­
taking to operate the universal postal 
service in economically acceptable con­
ditions and that the undertaking is 
required to pay the same dues when 
itself providing an express mail service 
not forming part of the universal 
service. 
That may be proved in accordance 
with the rules of the domestic legal 
system of the Member State concerned, 
provided that those rules are not less 
favourable than those governing simi­
lar domestic actions and do not render 
virtually impossible or excessively dif­
ficult the exercise of rights conferred by 
Community law. 
(see para 63 and operative part 1-2) 
I-4111