Keywords

Summary



Keywords

1 . COMMISSION - POWER TO LEGISLATE - POWER CONFERRED BY A PROVISION OF THE TREATY - LIMITS - CRITERIA - NO GENERAL PRINCIPLE - INTERPRETATION OF THE PROVISION IN QUESTION

( EEC TREATY , ARTS 4 , 145 , 155 AND 189 )

2 . COMPETITION - PUBLIC UNDERTAKINGS - TRANSPARENCY OF FINANCIAL RELATIONS BETWEEN MEMBER STATES AND PUBLIC UNTERTAKINGS - COMMISSION ' S POWER TO OBTAIN INFORMATION - SCOPE - NATIONAL PUBLISHED INFORMATION - POSSIBILITY FOR THE COMMISSION TO REQUIRE ADDITIONAL INFORMATION - DETERMINATION OF CRITERIA COMMON TO ALL THE MEMBER STATES

( EEC TREATY , ART . 90 ( 3 ); COMMISSION DIRECTIVE NO 80/723 )

3 . COMPETITION - PUBLIC UNDERTAKINGS - PRIVATE UNDERTAKINGS - TRANSPARENTLY OF FINANCIAL RELATIONS BETWEEN MEMBER STATES AND PUBLIC UNDERTAKINGS - DIFFERENCE IN TREATMENT AS COMPARED WITH PRIVATE UNDERTAKINGS - SITUATIONS NOT COMPARABLE - NO DISCRIMINATION

( EEC TREATY , ART . 90 ( 3 ); COMMISSION DIRECTIVE NO 80/723 )

4 . COMPETITION - PUBLIC UNDERTAKINGS - TRANSPARENCY OF FINANCIAL RELATIONS BETWEEN MEMBER STATES AND PUBLIC UNDERTAKINGS - DETERMINATION OF THE FINANCIAL RELATIONS COVERED - CRITERIA - FINANCIAL PARTICIPATION OF THE PUBLIC AUTHORITIES - POSITION OF THE PUBLIC AUTHORITIES IN THE MANAGEMENT OF THE UNDERTAKING

( EEC TREATY , ART . 90 ; COMMISSION DIRECTIVE NO 80/723 , ART . 2 )

Summary

1 . THERE IS NO BASIS IN THE TREATY PROVISIONS GOVERNING THE INSTITUTIONS FOR THE VIEW THAT , BY VIRTUE OF THE VERY PRINCIPLES WHICH GOVERN THE DIVISION OF POWERS AND RESPONSIBILITIES BETWEEN THE COMMUNITY INSTITUTIONS , ALL ORIGINAL LAW-MAKING POWER IS VESTED IN THE COUNCIL , WHILST THE COMMISSION HAS ONLY POWERS OF SURVEILLANCE AND IMPLEMENTATION . IT FOLLOWS THAT THE LIMITS OF THE POWERS CONFERRED ON THE COMMISSION BY A SPECIFIC PROVISION OF THE TREATY ARE TO BE INFERRED NOT FROM A GENERAL PRINCIPLE , BUT FROM AN INTERPRETATION OF THE PARTICULAR WORDING OF THE PROVISION IN QUESTION , ANALYSED IN THE LIGHT OF ITS PURPOSE AND ITS PLACE IN THE SCHEME OF THE TREATY .

2 . IN VIEW OF THE DIVERSE FORMS OF PUBLIC UNDERTAKINGS IN THE VARIOUS MEMBER STATES AND THE RAMIFICATIONS OF THEIR ACTIVITIES , IT IS INEVITABLE THAT THEIR FINANCIAL RELATIONS WITH PUBLIC AUTHORITIES SHOULD THEMSELVES BE VERY DIVERSE , OFTEN COMPLEX AND THEREFORE DIFFICULT TO SUPERVISE , EVEN WITH THE ASSISTANCE OF SOURCES OF NATIONAL PUBLISHED INFORMATION . IN THOSE CIRCUMSTANCES THERE IS AN UNDENIABLE NEED FOR THE COMMISSION TO SEEK ADDITIONAL INFORMATION ON THOSE RELATIONS BY ESTABLISHING COMMON CRITERIA FOR ALL THE MEMBER STATES AND FOR ALL THE UNDERTAKINGS IN QUESTION .

3 . THE PRINCIPLE OF EQUALITY BETWEEN PUBLIC AND PRIVATE UNDERTAKINGS IN GENERAL PRESUPPOSES THAT THE TWO ARE IN COMPARABLE SITUATIONS . WITHIN THE LIMITS LAID DOWN BY THE APPLICABLE LEGISLATION , PRIVATE UNDERTAKINGS DETERMINE THEIR INDUSTRIAL AND COMMERCIAL STRATEGY BY TAKING INTO ACCOUNT IN PARTICULAR REQUIREMENTS OF PROFITABILITY . DECISIONS OF PUBLIC UNDERTAKINGS , ON THE OTHER HAND , MAY BE AFFECTED BY FACTORS OF A DIFFERENT KIND WITHIN THE FRAMEWORK OF THE PURSUIT OF OBJECTIVES OF PUBLIC INTEREST BY PUBLIC AUTHORITIES WHICH MAY EXERCISE AN INFLUENCE OVER THOSE DECISIONS . THE ECONOMIC AND FINANCIAL CONSEQUENCES OF THE IMPACT OF SUCH FACTORS LEAD TO THE ESTABLISHMENT BETWEEN THOSE UNDERTAKINGS AND PUBLIC AUTHORITIES OF FINANCIAL RELATIONS OF A SPECIAL KIND WHICH DIFFER FROM THOSE EXISTING BETWEEN PUBLIC AUTHORITIES AND PRIVATE UNDERTAKINGS . AS DIRECTIVE NO 80/723 CONCERNS PRECISELY THOSE SPECIAL FINANCIAL RELATIONS , THE SUBMISSION THAT THERE IS DISCRIMINATION AGAINST PUBLIC UNDERTAKINGS IN FAVOUR OF PRIVATE UNDERTAKINGS CANNOT BE ACCEPTED .

4 . THE REASON FOR THE INCLUSION IN THE TREATY OF THE PROVISIONS OF ARTICLE 90 IS THE INFLUENCE WHICH THE PUBLIC AUTHORITIES ARE ABLE TO EXERT OVER THE COMMERCIAL DECISIONS OF PUBLIC UNDERTAKINGS . THAT INFLUENCE MAY BE EXERTED ON THE BASIS OF FINANCIAL PARTICIPATION OR OF RULES GOVERNING THE MANAGEMENT OF THE UNDERTAKING . BY CHOOSING THE SAME CRITERIA TO DETERMINE THE FINANCIAL RELATIONS ON WHICH IT MUST BE ABLE TO OBTAIN INFORMATION IN ORDER TO PERFORM ITS DUTY OF SURVEILLANCE UNDER ARTICLE 90 ( 3 ), THE COMMISSION HAS REMAINED WITHIN THE LIMITS OF THE DISCRETION CONFERRED UPON IT BY THAT PROVISION .