Judgment — ECLI:EU:C:1997:500
Date: 1997-10-23
Language of the case: Italian
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Concepts: Public undertakings;General
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Italy

summary form, the legal and factual particulars on which those complaints are based (see in particular Commission v Greece, cited above, paragraph 28). In this case, the Commission confined itself essentially to purely legal arguments. 59. The terms of the dispute having thus been defined, the Court can judge only the merits of the pleas in law which the Commission has put forward. It is certainly not for the Court, on the basis of observations of a general nature made in the reply, to undertake an assessment, necessarily extending to economic, financial and social matters, of the means which a Member State might adopt in order to ensure the supply of electricity on national territory on the basis of costs and prices capable of guaranteeing the balanced economic development of the country. 60. In view of the foregoing and, in particular, of the fact that the Court has not accepted the legal approach on which both the Commission's reasoned opinion and its application were based, the Court is not in a position, in these proceedings, to consider whether, by maintaining ENEL's exclusive import and export rights, the Italian Republic has in fact gone further than was necessary to enable that establishment to perform, under economically acceptable conditions, the tasks of general economic interest assigned to it. 61. However, for ENEL's exclusive import and export rights to escape application of the Treaty rules under Article 90(2) of the Treaty, the development of trade must not be affected to such an extent as would be contrary to the interests of the Community. The effect on the development of intra-Community trade 62. As noted in paragraph 27 above, the Italian Government has explained, in its defence, that the level of imports of electricity into Italy has constantly increased in recent years and that Italy is at present the largest importer of electricity in the European Union. It has stated, without being contradicted by the Commission, that imports of electricity increased by 11.6% in 1993 as compared with 1992, attaining the level of almost 40 000 million kWh, which is equivalent to the total electricity production of Austria. 63. The Commission, on the other hand, has merely reiterated that, for certain measures to escape the application of the Treaty rules under Article 90(2), it is necessary not only that the application of those rules should directly or indirectly obstruct performance of the particular tasks concerned but also that the Community interest is not affected; it has, however, provided no explanation to demonstrate that, because of ENEL's exclusive import and export rights, the development of intra-Community trade in electricity has been and continues to be affected to an extent contrary to the interests of the Community. 64. In this case it should have done so. 65. Given the explanations offered by the Italian Government, it was incumbent on the Commission, in order to prove the alleged failure to fulfil obligations, to define, subject to review by the Court, the Community interest in relation to which the development of trade must be assessed. In that regard it must be borne in mind that Article 90(3) of the Treaty expressly requires the Commission to ensure the application of that article and, where necessary, to address appropriate directives or decisions to Member States. 66. In this case, such definition was particularly necessary since the only Community measure directly concerning trade in electricity, namely Council Directive 90/547/EEC of 29 October 1990 on the transit of electricity through transmission grids (OJ 1990 L 313, p. 30) expressly states, in the sixth recital in its preamble, that there is increasing trade in electricity from year to year between the high-voltage electricity grids of Europe. 67. Since the Commission has been careful to state expressly that its application is concerned only with exclusive import and export rights and not with other rights relating in particular to transmission and distribution, it was under an obligation, in particular, to show how, in the absence of a common policy in the area concerned, development of direct trade between producers and consumers, in parallel with the development of trade between major networks, would have been possible without, among other things, a right of access for such producers and consumers to the transmission and distribution networks. 68. It follows from all the foregoing that the Commission's application must be dismissed, without there being any need to examine the arguments put forward by the Italian Government on the basis of Articles 130a and 130b of the Treaty. Costs 69. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the other party's pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs. Under Article 69(4) of those rules, Member States and institutions which have intervened in the proceedings are to bear their own costs. On those grounds, THE COURT hereby: 1. Dismisses the application; 2. Orders the Commission of the European Communities to pay the costs; 3. Orders the United Kingdom of Great Britain and Northern Ireland, the French Republic and Ireland, as interveners, to bear their own costs. Rodríguez Iglesias Gulmannn Ragnemalm Wathelet Mancini Moitinho de Almeida Kapteyn Murray Edward Puissochet Hirsch Jann Sevón Delivered in open court in Luxembourg on 23 October 1997. R. Grass G.C. Rodríguez Iglesias Registrar President 1: Language of the case: Italian.