Judgment — ECLI:EU:C:1997:501
Date: 1997-10-23
Language of the case: French
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;State monopolies of a commercial character
Concepts: Public undertakings;General
Procedure: Action for failure to fulfil obligations - unfounded
Origin: France

summary form, thelegal and factual particulars on which those complaints are based (see in particularCommission v Greece, cited above, paragraph 28). In this case, the Commissionconfined itself essentially to purely legal arguments. 106. The terms of the dispute having been thus defined, the Court can judge only themerits of the pleas in law which the Commission has put forward. It is certainlynot for the Court, on the basis of observations of a general nature made in thereply, to undertake an assessment, necessarily extending to economic, financial andsocial matters, of the means which a Member State might adopt in order to ensurethe supply of electricity and gas in its national territory, continuity of supply andequal treatment for all customers and consumers. 107. In view of the foregoing and, in particular, the fact that the Court has not acceptedthe legal approach on which both the Commission's reasoned opinion and itsapplication were based, the Court is not in a position, in these proceedings, toconsider whether, by maintaining exclusive import and export rights for EDF andGDF, the French Republic has in fact gone further than was necessary to enablethose establishments to perform, under economically acceptable conditions, thetasks of general economic interest assigned to them. 108. However, for the exclusive import and export rights of EDF and GDF to escapeapplication of the Treaty rules under Article 90(2) of the Treaty, the developmentof trade must not be affected to such an extent as would be contrary to theinterests of the Community. The effect on the development of intra-Community trade 109. In its defence, the French Government has explained, without being contradictedby the Commission, that, despite the existence of those rights, the French electricityindustry has been fully integrated into the European market and in particular hasparticipated, within the Union for the Coordination of the Production and Transport of Electric Power in Europe (UCPTE), since it was set up in 1951, in thedevelopment of trade in energy between major networks. It has stated that suchtrade between major networks accounted for about 10% of total consumption inthe Community of twelve and is the only trade covered by Community rules, underCouncil Directive 90/547/EEC of 20 October 1990 on the transit of electricitythrough transmission grids (OJ 1990 L 313, p. 30). 110. As regards gas, the French Government has observed that, in 1992, more than 90%of French consumption was accounted for by imports, of which 14% came from theNetherlands, and has maintained that it is not GDF's exclusive import rights whichprevent additional imports from other Member States of the Community but ratherthe limitation of resources and the position of the exporting countries. 111. The Commission has merely referred, in its application, to the existence of thatcondition for the application of Article 90(2) of the Treaty and has stated in itsreply, without further details, that the abolition of the exclusive import and exportrights would allow and foster the development of trade in the interests of theCommunity. 112. Those statements do not, however, prove that, as a result of EDF's and GDF'sexclusive import and export rights, the development of intra-Community trade inelectricity and gas has been and continues to be affected to an extent contrary tothe interests of the Community. 113. In view of the explanations given by the French Government, it was incumbent onthe 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 thedevelopment of trade must be assessed. In that regard it must be borne in mindthat Article 90(3) of the Treaty expressly requires the Commission to ensure theapplication of that article and, where necessary, to address appropriate directivesor decisions to Member States. 114. In this case, such definition was particularly necessary since the only Communitymeasures directly concerned with trade in electricity and gas, namely Directive90/547 and Council Directive 92/296/EEC of 31 May 1991 on the transit of naturalgas through grids (OJ 1991 L 147, p. 37), expressly state, in the sixth and eighthrecitals in their respective preambles, that there is increasing trade in electricity andnatural gas from year to year between the high-voltage electricity grids and high-pressure gas grids. 115. Since the Commission has been careful to state expressly that its application isconcerned only with exclusive import and export rights and not other rights relatingin particular to transmission or transport and distribution, it was under anobligation, in particular, to show how, in the absence of a common policy in thearea 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 andconsumers to the transmission and distribution networks. 116. It follows from all the foregoing that the Commission's application must bedismissed. Costs 117. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered 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 haveintervened 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, andIreland, as interveners, to bear their own costs. Rodríguez Iglesias Gulmann 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: French.