Opinion of the Advocate General — ECLI:EU:C:2013:807
Date: 2013-12-05
Language of the case: Greek
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - successful
Origin: Greece

Summary of the arguments of the parties 30. By its first ground, directed against paragraphs 94 to 118 of the judgment under appeal, the Commission claims that the General Court erred in law with regard to the interpretation and application of Article 86(1) EC in conjunction with Article 82 EC, in finding that the Commission was required to identify and establish the conduct constituting abuse of a dominant position to which the State measure in question led, or could have led, DEI. 31. According to the Commission, that State measure constituted in itself an infringement of Article 86(1) EC and Article 82 EC. It was therefore sufficient to prove that it had indeed created inequality of opportunity by favouring the public undertaking — which was already privileged — and had thereby affected the structure of the market by allowing that undertaking to maintain, strengthen or extend its dominant position to another, neighbouring or downstream market, for example, by preventing new competitors from entering that market. 32. Accordingly, the Commission criticises the General Court for applying incorrectly the case-law of the Court of Justice to the facts of the present case and distorting the basis of the contested decision. It states in that regard that, contrary to what the General Court held, that decision was not based on the finding that the mere fact that DEI found itself in an advantageous situation in comparison with its competitors, by reason of the State measures at issue, constituted in itself an abuse of a dominant position. On the contrary, that decision gave details of the infringement, stating that the State measures at issue had created inequality of opportunity between DEI and its competitors and that, by the mere exercise of the rights they had conferred on DEI, that undertaking was able to extend its dominant position from the (upstream) lignite market to the (downstream) wholesale electricity market in Greece. That extension to the downstream market had the effect of restricting competition on it by excluding new entrants to that market, even after the adoption of measures to liberalise it. Moreover, despite requests to that effect, no right over a significant lignite deposit was granted to competitors of DEI. 33. Since the contested decision explained how, in the first place, the maintenance in force of the contested State measures and, in the second place, the mere exercise of the preferential rights granted to DEI, and the latter’s conduct on the downstream market, led to the risk of abuse of its dominant position on that market by preventing or restricting access by new competitors, the Commission met all the criteria laid down by the case-law of the Court concerning the application of Article 86(1) EC in conjunction with Article 82 EC. 34. DEI and the Hellenic Republic consider that that ground of appeal is unfounded. According to them, it is clear from the case-law of the Court of Justice that, in order to be able to apply Article 86(1) EC in conjunction with Article 82 EC, the Commission must establish the conduct constituting abuse to which the State measure in question led, or could lead, the undertaking concerned. The fact that the State measure at issue led to a situation of inequality of opportunity was a necessary but not sufficient precondition for applying those articles. The Commission is seeking in essence to transform Article 86(1) EC into an autonomous, higher-ranking provision. The General Court for its part correctly applied that case-law to the facts of the present case. 2. Analysis 35. While formally dividing this ground of appeal into three interlinked parts, the Commission contends, in essence, that the case-law of the Court of Justice does not require the identification of specific conduct constituting abuse within the meaning of Article 82 EC on the part of the public or privileged undertaking in a dominant position where a State measure creates inequality of opportunity between that undertaking and its competitors which distorts competition. 36. First, I shall go back to the relevant passages of the judgment under appeal on that question. 37. In paragraph 86 of its judgment, the General Court holds that ‘[i]t should first be noted that the prohibitions laid down by Article 86(1) EC are addressed to Member States, whereas Article 82 EC is addressed to undertakings, prohibiting them from abusing a dominant position. In the case of the combined application of those two provisions, infringement of Article 86(1) EC by a Member State cannot be established unless the State measure is contrary to Article 82 EC. The question therefore arises as to the extent to which an abuse, even if only potential, of the dominant position by an undertaking must be identified, that abuse having a link with the State measure’ (emphasis added). 38. Then, in paragraph 93 of the judgment under appeal, the General Court finds that ‘the Commission has neither identified nor established to a sufficient legal standard to what abuse, within the meaning of Article 82 EC, the State measure in question has led or could lead [DEI]’. 39. Lastly, in paragraph 118 of the judgment under appeal, the General Court holds that the case-law relied on by the Commission does not permit it ‘to ignore the case-law cited in paragraph 94 [of that judgment (11)] and to base its argument solely on the question whether the inequality of opportunities between economic operators, thereby distorting competition, is the result of a State measure’. 40. In my view, the position of the General Court, which requires identification and proof of abuse within the meaning of Article 82 EC (paragraphs 118, second sentence, and 105 in fine of the judgment under appeal) as a precondition for the application of Article 86(1) EC in conjunction with Article 82 EC, does not correspond to the interpretation dictated by the case-law of the Court of Justice which I shall analyse below. 41. It is interesting to note that there are not many cases relating to Article 86 EC and they have for the most part been initiated by references for a preliminary ruling. What is more, unless I am mistaken, this is the first time that the General Court has been called on to give its view on a Commission decision based on the application of that article read in conjunction with Article 82 EC. 42. The theory of ‘the extension of a dominant position’ (or ‘effects doctrine’) (12) — so called because a State measure which causes the extension of that position from one market to another has effects similar to those produced by abuse of that dominant position — made its appearance in the case-law of the Court of Justice with the judgment in GB-Inno-BM, (13) which dates back to 1991. 43. In that case, the Régie des télégraphes et des téléphones (RTT) contended that ‘there could be a finding of an infringement of Article [86(1) EC] only if the Member State had favoured an abuse that the RTT itself had in fact committed, for example by applying the provisions on type-approval in a discriminatory manner’. It emphasised, however, that ‘the order for reference [did] not state that any abuse [had] actually taken place, and that the mere possibility of discriminatory application of those provisions by reason of the fact that the RTT is designated as the authority for granting approval and is competing with the undertakings that apply for approval cannot in itself amount to an abuse within the meaning of Article [82 EC]’ (paragraph 23 of that judgment). 44. The Court of Justice did not accept the RTT’s argument, ruling that ‘it is the extension of the monopoly in the establishment and operation of the telephone network to the market in telephone equipment, without any objective justification, which is prohibited as such by Article [82], or by Article [86(1)] in conjunction with Article 82], where that extension results from a measure adopted by a State’ (emphasis added) (paragraph 24 of that judgment). 45. In addition, the Court of Justice explains in paragraph 20 of that judgment that ‘[u]nder Article [86(1) EC], Member States must not, by laws, regulations or administrative measures, put public undertakings and undertakings to which they grant special or exclusive rights in a position which the said undertakings could not themselves attain by their own conduct without infringing Article [82] EC’. 46. The Court of Justice also held, in paragraph 25 of that judgment, that ‘a system of undistorted competition, as laid down in the [EC] Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators’. I would point out that in the present case the Commission criticised the Hellenic Republic for creating inequality of opportunity between economic operators and thus distorting competition, thereby reinforcing the dominant position of DEI (see point 12 above). 47. In Spain and Others v Commission (‘telecommunications services’ (14)), the Court of Justice held that the same conclusion necessarily follows where the monopoly on establishment and operation of the network extends to the market in telecommunications services. 48. In Raso and Others, the Court of Justice held that ‘a legal framework such as that which results from the [State measure] must be regarded as being in itself contrary to Article [86(1) EC] in conjunction with Article [82 EC] of the Treaty. In that regard, it is therefore immaterial that the national court did not identify any particular case of abuse by the reconstituted former dock-work company’ (15) (emphasis added). 49. As is clear from that judgment (paragraph 27), although merely creating a dominant position by granting exclusive rights within the meaning of Article 86(1) EC is not in itself incompatible with Article 82 EC, a Member State is in breach of the prohibitions contained in those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or when such rights are liable to create a situation in which that undertaking is led to commit such abuses. 50. The Court of Justice added, in paragraph 28 of that judgment, that ‘it is clear that in so far as the scheme laid down by the 1994 Law does not merely grant the former dock-work company now reconstituted the exclusive right to supply temporary labour to terminal concessionaires and to other undertakings authorised to operate in the port but also enables it, as stated in paragraph 17 of [that] judgment, to compete with them on the market in dock services, such former dock-work company now reconstituted will have a conflict of interest’ (emphasis added). (16) 51. By merely exercising its monopoly, the dock-work company in question in Raso and Others was able to distort to its advantage the equal conditions of competition between the various operators on the market in dock-work services and was led to abuse its monopoly by imposing on its competitors in the dock-work market unduly high costs for the supply of labour or by supplying them with labour less suited to the work to be done (paragraphs 29 and 30 of that judgment). There is therefore no evidence in that judgment of any requirement to establish specific conduct constituting abuse within the meaning of Article 82 EC, even though the Court of Justice identifies likely consequences constituting abuse that might result from the State measure (see point 62 below). 52. Nor did the Court of Justice establish specific, actual or potential conduct constituting abuse within the meaning of Article 82 EC alone on the part of Poste Italiana in TNT Traco. (17) 53. I cannot but agree with Advocate General Alber when he states in point 65 of his Opinion in that case that ‘[r]eading Articles [82 EC] and [86 EC] together leads to the conclusion that not all the requirements of Article [82 EC] must be satisfied in the person of the dominant undertaking. Specifically, there is also abuse if a national measure — in particular the grant of exclusive rights — results in a competition situation that is an abuse by reason of its very structure’. 54. In MOTOE, also in connection with Articles 82 EC and 86(1) EC, the Court of Justice held, in paragraphs 49 to 51, that ‘a Member State will be in breach of the prohibitions laid down by those two provisions if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses. [ (18)] In this respect, it is not necessary that any abuse should actually occur. [(19)] In any event, Articles 82 EC and 86(1) EC are infringed where a measure imputable to a Member State, and in particular a measure by which a Member State confers special or exclusive rights within the meaning of Article 86(1) EC, gives rise to a risk of an abuse of a dominant position. [(20)] A system of undistorted competition, such as that provided for by the [EC Treaty (21)], can be guaranteed only if equality of opportunity is secured as between the various economic operators. [(22)] To entrust to a legal person such as ELPA, [(23)] which itself organises and commercially exploits motorcycling events, the task of giving the competent administration its consent to applications for authorisation to organise such events, is tantamount de facto to conferring upon it the power to designate the persons authorised to organise those events and to set the conditions in which those events are organised, thereby placing that entity at an obvious advantage over its competitors. [(24)] Such a right may therefore lead the undertaking which possesses it to deny other operators access to the relevant market. That situation of unequal conditions of competition is also highlighted by the fact, confirmed at the hearing before the Court, that, when ELPA organises or participates in the organisation of motorcycling events, it is not required to obtain any consent in order that the competent administration grant it the required authorisation’ (emphasis added). 55. I think that it may be concluded from the above that ‘irrespective of whether any abuse actually exists’ it is sufficient, for the purposes of establishing an infringement of Article 86(1) EC in conjunction with Article 82 EC, that a State measure merely creates a risk of abuse. 56. Lastly, in Connect Austria, the Court of Justice held, in paragraph 84, that ‘[i]f inequality of opportunity between economic operators, and therefore distorted competition, results from a State measure, such a measure constitutes an infringement of Article 86(1) EC in conjunction with Article 82 EC’. Moreover (paragraph 87), ‘national legislation such as that at issue in the main proceedings, under which additional frequencies in the DCS 1800 band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas the new entrant to the market at issue has had to pay a fee for its DCS 1800 licence, is likely to lead the public undertaking in a dominant position to breach Article 82 EC by extending or strengthening its dominant position, depending on how the market at issue is defined, by distorting competition. Given that the distorted competition would therefore result from a State measure which creates a situation where equality of opportunity for the various economic operators concerned cannot be ensured, it may amount to a breach of Article 86(1) EC in conjunction with Article 82 EC’ (emphasis added). 57. I note, moreover, that although, in paragraph 94 of its judgment, the General Court cites several of the judgments of the Court of Justice referred to above, strangely it does not include the point made in them that ‘it is not necessary that any abuse should actually occur’ or ‘it is therefore immaterial that the national court did not identify any particular case of abuse’. (25) 58. There is therefore a substantial difference between, on the one hand, the obligation to identify and prove specific conduct constituting abuse within the meaning of Article 82 EC alone and, on the other hand, the obligation with a view to the application of Article 82 EC in conjunction with Article 86(1) EC to identify a potential or actual anti-competitive consequence that might result from a State measure which grants preferential rights. 59. That distinction moreover preserves the ‘effectiveness’ (26) of the application of Article 86(1) EC in conjunction with Article 82 EC. If there was a requirement to establish specific conduct constituting abuse within the meaning of Article 82 EC alone in the event of the extension of a dominant position, which has been made possible by a State measure, it would be difficult to know what scope would remain for the application of Article 82 EC in conjunction with Article 86(1) EC. 60. It is clear from the above, in my view, that it follows from the case-law of the Court of Justice that a State measure will be in breach of Article 86(1) EC in conjunction with Article 82 EC if the undertaking to which the State measure has granted special or exclusive rights, by the mere exercise of the preferential rights it holds, is led to, or cannot avoid, abusing its dominant position. (27) 61. In other words, according to the case-law of the Court of Justice, Article 82 EC in conjunction with Article 86(1) EC are infringed whenever a State measure granting preferential rights (to a public undertaking or an undertaking already holding special or exclusive rights) creates inequality of opportunity between economic operators and allows the undertaking in a dominant position to distort competition by the mere exercise of those rights, for example, by maintaining or extending its dominant position to a downstream market, thereby restricting the access of potential competitors, without there being any need to prove specific conduct constituting abuse within the meaning of Article 82 EC. (28) 62. In that context, it should be noted that when, in certain cases, the Court of Justice does mention or identify probable consequences constituting an abuse, it is only in order to identify anti-competitive effects that might result from the State measure, where that measure has not been held to be contrary to Article 86(1) EC in conjunction with Article 82 EC. (29) 63. On the other hand, in the absence of a State measure granting preferential rights, Article 82 EC would apply only if deliberate and autonomous conduct constituting abuse on the part of the dominant undertaking had allowed it to extend its dominant position to a market other than its own. (30) 64. Since the General Court therefore committed an error of law by finding in the present case that it was necessary to establish specific conduct constituting abuse within the meaning of Article 82 EC, and that it was not sufficient to identify anti-competitive effects that might result from the State measure in order to conclude that there was a breach of Article 86(1) EC in conjunction with Article 82 EC, the Commission’s first ground of appeal appears to me to be well founded. 65. I therefore propose that the Court of Justice should set aside the judgment of the General Court. 66. I also propose that the Court should find in that regard that the state of the proceedings permit final judgment to be given in the matter, since the case-file before it contains all the material needed for it to assess whether the Commission identified any anti-competitive effects that might result from the State measure at issue, a precondition for finding a breach of Article 86(1) EC in conjunction with Article 82 EC. 67. Without claiming at this stage that the Commission has actually established the existence of specific conduct constituting abuse by DEI, I consider that it has identified anti-competitive effects that might result from the State measure at issue. 68. The effects in question are those of exclusion of potential competitors caused by the extension of DEI’s dominant position on the primary lignite supply market to the secondary wholesale electricity market in Greece. Those effects existed before, and even continued after, the measures taken to liberalise the market for the production and supply of electricity in Greece, and after May 2005, (31) the date of the creation of the wholesale electricity market. (32) At all levels of the markets concerned, namely, the lignite supply market and the production of electricity, and also the (wholesale) electricity market in Greece, those effects remained unchanged after market liberalisation. 69. DEI remained in a position to maintain and strengthen its dominant position on the downstream market in question, first, by the mere exercise of its preferential rights in respect of lignite (both before and after the adoption of the market liberalisation measures), secondly, due to the effects of its own conduct on the downstream market (33) and, thirdly, by the Hellenic Republic’s refusal to grant any new lignite exploration or exploitation licences, even though DEI’s (potential) competitors had shown an interest (and attempted to enter both the upstream and downstream markets) (34) and Greece had around 2 000 million tonnes of lignite which had not yet been exploited. (35) 70. In that context, I would add that both the Hellenic Republic and DEI could have prevented or reduced the effects of the exclusion of new competitors from entering the secondary market if — either by the State measure, or through the actions of DEI (36) — they had made a varied range of energy sources (including significant quantities of lignite) available to new competitors appearing on the downstream market. 71. Those exclusionary effects were further strengthened by DEI’s policy with regard to feed-in and pricing of electricity on the compulsory daily market. 72. I agree with the Commission that, in terms of the law, those anti‑competitive effects on the structure of the market differ little from those that were evident in GB-Inno-BM, Connect Austria, ‘Telecommunications services’ and MOTOE. 73. DEI, by the mere exercise of its preferential rights on the upstream lignite market where it occupied a dominant position, extended its position (without objective justification (37)) to the downstream wholesale electricity market and, as a result, excluded or hindered any new entry of potential competitors to that market. The preferential rights granted to DEI, a public undertaking, had already affected the structure of the market by creating inequality of opportunity and distorting competition on the upstream market and DEI exploited that situation by using its dominant position on the upstream lignite market as leverage with a view to extending or maintaining its position on another market closely linked to the first, situated vertically downstream, the electricity production market, thereby excluding the entry of new competitors to that downstream market and thus restricting competition. 74. An intervener in the case, Mytilinaios AE, described itself at the hearing before the Court of Justice, as being, through its subsidiary Protergia AE, the largest private electricity producer and the largest private importer of gas in Greece, and through its subsidiary Alouminion, the largest consumer of baseload capacity representing 6% of electricity consumption in Greece, that is to say, at one and the same time, DEI’s largest competitor and its largest customer. Those undertakings contended that the contested decision provided the cornerstone for the development and normal operation of the Greek electricity market which, more than 10 years after its liberalisation, remained under DEI’s control since, during the period in question and still today, DEI’s market share has been 97% of lignite extraction, 100% of lignite-based electricity production, and 100% of retail electricity sales. (38) 75. According to the interveners, in the absence of any pressure from competitors, DEI supplies industrial customers with the most expensive electricity in the European Union, thereby contributing to Greek industry’s lack of competitiveness. In addition, there were at least 17 decisions of the Greek Regulatory Authority for Energy (RAE) issued in the course of 2012 (39) in response to complaints by DEI’s competitors which demonstrate, according to the interveners, that everything the Commission stated in the contested decision in terms of potential abuse has proved to be the case. The interveners also contend that only if DEI’s competitors are able to have access to the production of lignite and the generation of electricity using lignite will they be able to be true competitors, which would enable consumers to enjoy competitive prices. (40) 76. The Commission has therefore, in my view, adequately demonstrated that the State measure at issue was capable of distorting competition since, by granting DEI preferential rights in respect of lignite deposits and maintaining those rights after the liberalisation of the electricity market in Greece, it placed that public undertaking in a situation in which not only did it control the lignite supply market, it was also in a position to use such control in order to exclude its competitors on the wholesale electricity market from having access to lignite, which is, as is clear from the documents submitted to the Court of Justice, necessary in order to be able to enter, and be competitive on, the wholesale electricity market. In exercising its preferential rights and choosing to reserve for its own electricity production lignite extracted under those rights, DEI was able to protect its dominant position on the wholesale electricity market even after the latter’s liberalisation. 77. More generally, in cases such as the present case, the Commission, with a view to the application of Article 86(1) EC in conjunction with Article 82 EC, is not required to provide evidence of specific conduct constituting abuse within the meaning of Article 82 EC alone by the dominant undertaking as a result of the State measure. It is, however, required to identify anti-competitive effects that might result from the State measure at issue. 78. I therefore propose that the Court of Justice should reject the second complaint raised by DEI in the context of the second and fourth parts of the first plea before the General Court, alleging an error of law in the application of Article 86(1) EC in conjunction with Article 82 EC, and refer the case back to the General Court for it to examine the other pleas raised by DEI. B – The second ground of appeal (in the alternative) 79. I am examining this ground of appeal only in case the Court of Justice should decide, rejecting the Commission’s first ground of appeal, that application of Article 86(1) EC in conjunction with Article 82 EC requires the identification and proof of specific conduct constituting abuse by the dominant undertaking within the meaning of Article 82 EC alone. 1. Summary of the arguments of the parties 80. By its second ground of appeal, which is formally also composed of several interlinking parts, the Commission contends that paragraphs 85 to 93 of the judgment under appeal are based on incorrect, defective and insufficient reasoning, an incorrect characterisation and distortion of the evidence and a misinterpretation of the basis of the contested decision. 81. It contends in essence that even if — contrary to what it claimed in its first ground of appeal — application of Article 86(1) EC in conjunction with Article 82 EC required proof of the existence of specific conduct constituting abuse by an undertaking in a dominant position, the contested decision established the existence of such abuse in the present case. 82. The Commission contends that in paragraphs 79 to 93 of the judgment under appeal the General Court’s findings are based on incorrect reasoning, incorrect characterisation of the evidence and distortion of the basis of the Commission decision, because the General Court failed to examine, despite what it stated in paragraphs 87 to 91, the crucial importance of certain points, namely, first, not only did the Hellenic Republic adopt the contested measures before the liberalisation of the country’s electricity market, it maintained them even after liberalisation and, second, the anti-competitive effects continued even after May 2005 on the secondary wholesale electricity market. 83. DEI and the Hellenic Republic contend primarily that the second ground of appeal is inadmissible in its entirety on the ground that it is only at the appeal stage that the Commission is seeking for the first time to establish conduct constituting abuse on the part of DEI. The Commission, moreover, distorts the findings of the General Court and its assessment of the evidence. 84. In the alternative, DEI and the Hellenic Republic contend that the second ground of appeal is without basis in law or in fact. In particular, DEI’s ability to submit lower offers under the compulsory daily market system due to the lower variable cost of lignite is not conduct constituting abuse on the wholesale electricity market. The Commission fails to mention that DEI’s competitors generate electricity profitably by means of natural gas power stations and that the electricity market is evolving towards a reduction in the share of lignite and an increase in the share of natural gas in electricity production overall. DEI’s ability to generate profits as a result of its access to lignite cannot be regarded as being conduct constituting abuse or as hindering effective entry to the wholesale electricity market when its competitors are also generating profits on that market and continually increasing their share of it. In addition, the low variable cost of lignite is offset by its higher investment cost. 2. Analysis a) Admissibility 85. Contrary to what DEI and the Hellenic Republic contend, it is clear that this ground of appeal cannot be rejected in its entirety as being inadmissible. The reason is simple: the Commission criticises the reasoning of the judgment under appeal and asserts that the true facts have been distorted and given an incorrect legal classification by the General Court. b) Substance 86. As regards first of all the findings made by the General Court in paragraph 91 of the judgment under appeal, I can agree with the Commission that they do not take into account the fact that it is immaterial that DEI was present on the market for the generation and supply of electricity before its liberalisation and that it must comply with the operating rules of the compulsory daily market. 87. First, the anti-competitive effects which stem from the State measures at issue, and from the conduct of DEI, before liberalisation, continued even after May 2005 on the secondary wholesale electricity market and, secondly, the relevant question is not whether DEI complies with those rules but the extent to which, whilst complying with them, it has the capacity to use its dominant position and its competitive advantage on the upstream market as leverage in order to engage in conduct constituting abuse on the downstream market, inter alia by means of the offers it submits on the compulsory daily market. 88. More fundamentally, the judgment under appeal is based on the premise that only the State measures at issue could have anti-competitive effects (repercussions and consequences on competitors — existing or potential) and that no conduct constituting abuse on the part of DEI which may have contributed to it has been identified. 89. The contested decision, the judgment under appeal and the proceedings before the Court of Justice have each highlighted different aspects of DEI’s conduct — on both the upstream and downstream markets — which go beyond mere exercise of the rights that were conferred on it by the State. The fact that the entry of potential competitors to the downstream electricity market was excluded or hindered is not therefore solely the result of the State measure (as, for example, in Dusseldorp and Others), but is also the result (at least in part) of DEI’s conduct. 90. Thus, on the upstream market, DEI chose to reserve lignite for its own electricity production and was thus able to protect its dominant position on the wholesale electricity market (the downstream market) even after the latter’s liberalisation. Entry to the downstream electricity production and supply market depends, inter alia, on access on the upstream market to significant quantities of lignite in order for a new entrant to be able to compete with DEI on equal terms. Potential competitors, however, have encountered obstacles on two fronts: on one, refusal by the Hellenic Republic to grant new rights to exploit other lignite deposits and, on the other, control by DEI of the supply of lignite available on the Greek market. In deciding to reserve the supply of lignite for its own electricity production instead of selling at least part of it on that market, DEI effectively excluded potential competitors from having access to lignite and thus to the least expensive energy source in Greece, needed in order to generate electricity profitably and, hence, enter the downstream electricity production and supply market. 91. On the downstream market, in the context of the compulsory daily market for wholesale electricity, DEI was feeding into the interconnected network (wholesale system or pool), at prices which it set, the largest quantities of electricity at the lowest prices, which enabled it not only to cover its fixed and variable costs, but also to make significant profits (41) and, consequently, to exclude or hinder the entry of all new competitors to the downstream market in question. (42) 92. It is apparent from the documents submitted to the Court of Justice that, contrary to what the General Court held in paragraph 89 of its judgment, DEI was not the passive participant that the judgment under appeal describes, since it was able to define its own course of action, both as regards the exploitation of its preferential rights in respect of lignite and as regards the feed-in and pricing of electricity on the compulsory daily market. 93. Moreover, as the Commission states, the General Court totally failed to take into account the inseparable link and the unavoidable ‘risk’ of ‘abuse’ which stem from the State measures at issue, merely as a result of DEI exercising its preferential rights on the downstream market, when DEI was able to predict the causal link between its conduct, both on the upstream market and on the downstream market, and the unavoidably negative effects on its existing and potential competitors on that market. 94. In addition to the fact that the General Court did not examine all the evidence mentioned in the contested Commission decision, or the evidence provided by the parties during the proceedings before it (the Commission submitted a wealth of files, statistics and reports on DEI’s conduct after 1995), inter alia, the specific evidence supplied at its request and mentioned in paragraphs 49 and 87 to 91 of the judgment under appeal, I cannot find in the judgment under appeal any reasoning (43) to justify a finding that the conduct described above did not constitute abuse, especially since in my view an undertaking in a dominant position, irrespective of the causes for such a position, has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market. (44) 95. I consider that even though the concept of special responsibility has been developed and applied to undertakings occupying a dominant position on the basis of Article 82 EC, that concept may also, in the context of the application of Article 82 EC in conjunction with Article 86(1) EC, have a role to play for public or privileged undertakings having special or exclusive rights by virtue of State measures. 96. In that context and in particular as regards the obligation on Member States, I agree with Advocate General da Cruz Vilaça (45) that: ‘Article [86 EC] concerns only undertakings for whose actions States must take special responsibility by reason of the influence which they may exert over such actions. It is necessary, in substance, to ensure that action taken by the State (meaning “the public authorities”, as interpreted by the Court) in relation to those undertakings does not have the purpose or effect either of restricting or distorting competition or of introducing distortions in the relationship between those undertakings and private undertakings’. 97. It follows from the above considerations that in paragraphs 85 to 93 of the judgment under appeal the findings of the General Court are based on incorrect and insufficient reasoning. That is because, even though the General Court states the contrary, the Commission did, in the contested decision, criticise DEI, and in my view even proved that DEI had extended, without objective justification, its dominant position from the lignite supply market to the downstream wholesale electricity market in Greece. 98. I therefore propose that the Court of Justice should uphold the Commission’s second ground of appeal, set aside the judgment of the General Court on the ground of incorrect and insufficient reasoning and refer the case back to that Court in order for it to examine the other pleas. IV – Conclusion 99. In the light of the foregoing considerations, I propose that the Court: (1) Primarily: – set aside the judgment of the General Court of the European Union of 20 September 2012 in Case T‑169/08 DEI v Commission; – reject the second complaint put forward by Dimosia Epicheirisi Ilektrismou AE (DEI) in the context of the second and fourth parts of the first plea before the General Court, alleging an error of law in the application of Article 86(1) EC in conjunction with Article 82 EC; – refer the case back to the General Court; and – reserve the costs. (2) In the alternative: – set aside the judgment of the General Court of the European Union of 20 September 2012 in Case T‑169/08 DEI v Commission; – refer the case back to the General Court; and – reserve the costs. 1 – Original language: French. 2 – Case T‑169/08 DEI v Commission [2012] ECR (‘the judgment under appeal’). 3 – Commission Decision C(2008) 824 final of 5 March 2008 (‘the contested decision’). 4 – The public electricity company whose English name is the Public Power Corporation, sometimes referred to also as PPC. 5 – I shall use the old numbering in this Opinion since the contested decision was adopted under the EC Treaty. 6 – For a description of how the compulsory daily market operates, see paragraphs 12 to 14 of the judgment under appeal. 7 – Pursuant to Greek Legislative Decree No 4029/1959 of 12 and 13 November 1959 (FEK A’ 250), and Greek Law No 134/1975 of 23 and 29 August 1975 (FEK A’ 180). 8 – Case C‑163/96 Raso and Others [1998] ECR I‑533; Case C‑41/90 Höfner and Elser [1991] ECR I‑1979; Case C‑179/90 Merci convenzionali porto di Genova [1991] ECR I‑5889; Case C‑55/96 Job Centre [1997] ECR I‑7119; and Case C‑49/07 MOTOE [2008] ECR I‑4863. 9 – Case C‑202/88 [1991] ECR I‑1223; Case C‑18/88 [1991] ECR I‑5941; and Case C‑462/99 [2003] ECR I‑5197, respectively. 10 – Case C‑203/96 [1998] ECR I‑4075. 11 – Namely, Raso and Others, paragraph 27; Höfner and Elser, paragraph 29; Merci convenzionali porto di Genova, paragraph 17; Job Centre, paragraph 31; and MOTOE, paragraphs 50 and 51. 12 – See recitals 180 to 183 and 191 to 199 of the contested decision (for the arguments concerning the framework for analysis of that theory). See also recitals 200 to 237 of that decision (in which the Commission examined and ultimately refuted the additional arguments concerning, inter alia, the competitiveness of lignite). 13 – That theory had already been used by the Commission in two decisions based on Article 86 EC in respect of express delivery services in Spain (Decision 90/456/EEC of 1 August 1990, OJ 1990 L 233, p. 19), and in the Netherlands (Decision 90/16/EEC of 20 December 1989, OJ 1989 L 10, p. 47). 14 – Joined Cases C‑271/90, C‑281/90 and C‑289/90 [1992] ECR I‑5833, paragraph 36. 15 – See paragraph 31 of the judgment. See also GB-Inno-BM, paragraphs 23 to 25. 16 – A parallel may be drawn with DEI, which, as a result of the quasi-monopolistic rights for the exploitation of lignite granted to it by the Hellenic Republic, had the means, by reserving that lignite for its own electricity production, of excluding all new entrants to the wholesale electricity market. 17 – Judgment of 17 May 2001 in Case C‑340/99 [2001] ECR I‑4109. 18 – See, the judgments cited by the Court in that paragraph: Höfner and Elser, paragraph 29; Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 37; Case C‑179/90 Merci convenzionali porto di Genova [1991] ECR I‑5889, paragraphs 16 and 17; Case C‑323/93 Centre d’insémination de la Crespelle [1994] ECR I‑5077, paragraph 18; Raso and Others, paragraphs 27 and 28; Case C‑67/96 Albany [1999] ECR I‑5751, paragraph 93; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 127; Case C‑475/99 Ambulanz Glöckner [2001] ECR Ι-8089, paragraph 39; and Case C‑380/05 Centro Europa 7 [2008] ECR I‑349, paragraph 60. See also, to that effect, Connect Austria, paragraph 80. 19 – The Court states in that paragraph that paragraph 36 of its judgment in Job Centre is to the same effect. The latter reads: ‘[t]hat does not mean that the abusive conduct in question must actually have affected such trade. It is sufficient to establish that it is capable of having such an effect’. 20 – See, to that effect, the judgments cited by the Court in that paragraph: ERT, paragraph 37; Merci convenzionali porto di Genova, paragraph 17; and Centro Europa 7, paragraph 60. 21 – In addition to being expressly stated in Article 3(1)(g) EC, the requirement of undistorted competition also underlies the rules on competition contained in Articles 81 EC to 89 EC. 22 – See, in that paragraph, the judgments cited by the Court in paragraph 51 of MOTOE, and Telecommunications terminals, paragraph 51; GB-Inno-BM, paragraph 25; and, to the same effect, ERT, paragraph 37; and Raso and Others, paragraphs 29 to 31. 23 – Elliniki Leschi Aftokinitou kai Perigiseon (Automobile and Touring Club of Greece; ‘ELPA’). 24 – See, by analogy, Telecommunications terminals, paragraph 51, and GB-Inno-BM, paragraph 25, cited by the Court. 25 – See Raso and Others, paragraph 31, MOTOE, paragraph 49, and the judgments cited in footnotes 18 to 20 and 22 above. 26 – The Court of Justice has held in several cases that although the mere fact that a Member State has created a dominant position by the grant of exclusive rights is not as such incompatible with Article 86 EC, the EC Treaty none the less requires the Member States not to adopt or maintain in force any measure which might deprive that provision of its effectiveness. See, for example, Joined Cases C‑147/97 and 148/97 Deutsche Post [2000] ECR I‑825, paragraph 39, and Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 35. As Advocate General da Cruz Vilaça correctly explained in point 65 of his Opinion in Case 30/87 Corinne Bodson v SA Pompes funèbres des régions libérées [1988] ECR 2497, the aim of Article 86(1) EC ‘is to prevent the public authorities from using the special relationship whereby certain kinds of undertakings are subordinated to them either to compel those undertakings to act in a manner prohibited by the [EC] Treaty or to grant them certain advantages which are incompatible with the common market’. The reason for the inclusion in the [EC] Treaty of the provisions of Article [86] is precisely the influence which the public authorities are able to exert over the commercial decisions of those undertakings. For that reason, Article [86] concerns only undertakings for whose actions States must take special responsibility by reason of the influence which they may exert over such actions. It is necessary, in substance, to ensure that action taken by the State in relation to those undertakings does not have the purpose or effect either of restricting or distorting competition or of introducing distortions in the relationship between those undertakings and private undertakings. 27 – See, for example, MOTOE, paragraphs 49 to 51. 28 – See ‘Telecommunications services’, paragraph 36, and Connect Austria, paragraphs 80 to 84. See also ‘Telecommunications terminals’, paragraph 51; Dusseldorp and Others ‘Telecommunications services’ paragraphs 35 and 36, and GB-Inno-BM, paragraphs 20 and 21. See, also, Debegioti, S., ‘I paravasi ton arthron 106(1) kai 102 SynthLEE enopsei ton apofaseon tou Genikou Dikastiriou tis Enosis gia ton elliniko ligniti’ (The infringement of Articles 106(1) and Article 102 TFEU in the light of the General Court judgments on Greek lignite), Dikaio Epicheiriseon & Etairion (Company Law), 2012, pp. 900 to 914. According to that author, the judgment under appeal misinterpreted the Court’s case-law. 29 – In Connect Austria, the Court of Justice described potential practices of the public or privileged undertaking which were not necessarily unlawful within the meaning of Article 82 EC. Consequently, the General Court’s finding in paragraph 111, in fine, of the judgment under appeal, that ‘[t]us, the Court also took into consideration the conduct of the public undertaking on the market’, constitutes an error of law since, in Connect Austria, no specific conduct had been established. 30 – See, for example, Case 85/76 Hoffmann-La Roche [1977] ECR Ι‑461, paragraph 91, and Case T‑51/89 Tetra Pak I [1990] ECR II‑47, paragraph 23 and paragraph 24, in fine. 31 – The Hellenic Republic had been required to take measures to liberalise the electricity market since February 2001, but had failed to do so (see recitals 61 and 62, 85, 109, 136.3, 147, 150 and 235 of the contested decision). 32 – The General Court itself acknowledges, in paragraph 87 of the judgment under appeal, that the effects of the measures taken by the Hellenic Republic, namely the privileges granted to DEI before 2001, continued after 2001. 33 – See, for example, recitals 164, 182, 188 and 189, 191, 193, 195 to 197, 199, 214 and 215, footnotes 237 and 255, and recitals 223 to 225, 228 and 229, 233 and 238 of the contested Commission decision. 34 – See, for example, recitals 185, 225 and 237 of the contested decision. 35 – The General Court mentions that reason why the anti-competitive effects were strengthened in paragraph 88 of the judgment under appeal. 36 – Once extracted by the undertaking which holds the privileged exploitation rights, as a product, lignite may either (i) be sold or disposed of on the local market (or be exported), or (ii) be used by that undertaking as a fuel for the production of electricity. DEI chose the second option and uses lignite only to generate electricity itself. See, for example, recitals 126 and 127 of the contested decision. 37 – During the administrative procedure and the procedure before the General Court, the Hellenic Republic did not contend that extension of DEI’s dominant position from the primary lignite supply market to the secondary (upstream) wholesale electricity market ‘was objectively justified’. See, for example, recital 240 of the contested decision. 38 – See Decision No 822/2012 of the Greek Regulatory Authority for Energy (RAE), which states that ‘[t]here is no electricity market operating profitably, since DEI owns all the gas and lignite power stations and more than 65% of the electricity production market, whilst its competitors use more recent natural gas production units’, consequently, RAE states quite simply that it is not possible to have a market operating normally either on the production side or on the supply side. 39 – See, inter alia, Decision No 822/2012 of the RAE of 17 October 2012 on Complaint RAE I‑153708/22.03.202 lodged by the company ‘G.M.M.LARKO AE’ against DEI, paragraph 23: ‘it is clear that there is no electricity market operating efficiently; that is shown, without any need for a specific analysis, since [DEI] alone owns all the country’s lignite and hydroelectric power stations and continues to own over 65% of the electricity market, whilst all its competitors operate new, unamortised, natural gas power stations in the face of mature — that is to say amortised — lignite, natural gas or hydroelectric stations. No well-functioning market can exist in the supply sector since the whole of that market is controlled, de facto and in essence by [DEI]’ (emphasis added). See, also, by way of example, Decision 831/2012 and Decisions 346/2012 and 822/2012 of the RAE (the latter highlight DEI’s abuse of its dominant position, especially to the detriment of its industrial customers). 40 – See recitals 255, 215 and 244 of the contested decision, which refer to the operation of the electricity supply market and the situation of small-scale producers. 41 – See recitals 83 to 90 of the contested decision, and paragraph 90 of the judgment under appeal. 42 – See recitals 84 to 98, 199, 215, (footnotes 237 and 255), 222 to 225, 228 and 229 and 237 of the contested decision. See, also, the Commission’s written observations of 7 March 2011, submitted to the General Court at its special request as mentioned in paragraph 49 of the judgment under appeal. It is also clear from the Hellenic Republic’s answer of 1 February 2011 to the questions of the General Court. 43 – An appeal is admissible where the reasons stated for a judgment are contradictory or inadequate. See, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 25; Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 77; Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR Ι‑6513, paragraph 90; and Case C‑385/07 P Der grüne Punkt — Duales System Deutschland v Commission [2009] ECR Ι‑6155, paragraph 71. In addition, the General Court must provide reasons for its judgments which will make it possible for the Court to review any distortion of the evidence submitted to it. See, also, Case C‑198/03 P Commission v CEVA [2005] ECR I‑6357, paragraph 50, and Case C‑237/98 P Dorsch Consult v Council and Commission [2000] ECR I‑4549, paragraphs 50 and 51. 44 – See, inter alia, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 57. See, also, Joined Cases C‑395/96 P and C‑396/96 P Compagniemaritime belge Transports and Others v Commission [2000] ECR I‑1365, paragraph 34, and ERT, paragraph 35. 45 – See his Opinion in Corinne Bodson v SA Pompes funèbres des régions libérées, paragraphs 67 and 68.