12.

In order to assess the conformity with Community law of legislation of the kind described, which is not, as such, specifically provided for in the Treaty, guidance must be sought in the primary sources of law and in the previous decisions of the Court. The powers of the Community in connection with free competition in the Common Market are fundamental: the fourth recital in the preamble to the EEC Treaty and Articles 2 and 3 (f) clearly indicate that free competition is a crucial aim for the building of a Community economic area. That the Member States are subject to the principle of free competition is apparent, in particular, from Article 90 and Articles 92 and 94 of the Treaty, even as regards the exercise of their powers in connection with national defence (Article 225). The principle was laid down as early as the Court's judgment in Wilhelm v Bundeskartellamt: by virtue of the primacy of Community law the Member States may not ‘introduce or ... retain measures capable of prejudicing the practical effectiveness of the Treaty’ inasmuch as ‘the binding force of the Treaty and of measures taken in application of it must not differ from one state to another as a result of internal measures, lest the functioning of the Community system should be impeded and the achievement of the aims of the Treaty placed in peril.’ ( 36 ) Accordingly, a national measure which deprived of practical effectiveness the prohibitions directed to undertakings by Articles 85 and 86 or frustrated action by the Commission under Article 87 would be in direct conflict with the second paragraph of Article 5 inasmuch as it would prejudice the objective assigned to the Community by Article 3 (f), which aims at the institution of a system of effective competition in the Common Market, involving: ‘the degree of competition necesssary to ensure the observance of the basic requirements and the attainment of the objectives of the Treaty, in particular the creation of a single market achieving conditions similar to those of a domestic market.’ ( 37 ) Such a breach of a principle as fundamental to the Community as that of free competition in the Common Market would constitute a frontal attack on the initial division of responsibilities laid down in the Treaty: were it to become systematic, it would in time threaten the Member States' reciprocal duties of solidarity with regard to the obligations that they have entered into, and would thus become a potential source of economic disintegration. That risk, which one trusts is merely hypothetical, must stimulate particular vigilance with regard to public intervention in the field of competition. In my view, those considerations bring closer to its proper proportions the objection that Article 3 (f) merely outlines an aim while the second paragraph of Article 5 is too general. It is true that Article 3 (f) lays down an objective for the Community, but it also sets forth a principle, the fundamental nature of which I have just emphasized. As for the second paragraph of Article 5, it makes the transfer of powers effected by the Treaty irreversible. The Member States must comply with the provisions in question, so as not to render nugatory the rules of the Treaty which provide for its implementation. Every time a Member State prevents those provisions from being applied, its action is liable to deprive individuals of the rights that they might derive therefrom and prevent the Community institutions from exercising the prerogatives that the Treaty confers on them. I consider that to be the sense of the Court's judgment in Inno v ATAB: a national measure which encourages behaviour in restraint of competition or, more generally, deprives of practical effect the prohibitions laid down in Articles 85 and 86 of the Treaty, is incompatible with Article 3 (f) and the second paragraph of Article 5, read together with Articles 85 and 86. ( 38 )