Judgment of the Court (Sixth Chamber) of 11 September 2003 in Case C-207/01 (Reference for a preliminary ruling from the Corte d'appello di Firenze): Altair Chimica SpA v ENEL Distribuzione SpA (Competition — Dominant position — Supply of electricity — Imposition of a "sovrapprezzo")
Date: 2003-11-01
Institutions: Court of Justice
Subjects: EU law - national law, Italy, excise duty, free movement of goods, interpretation of the law

1.11.2003

EN

Official Journal of the European Union

C 264/9

JUDGMENT OF THE COURT

of 9 September 2003

in Case C-198/01 (Reference for a preliminary ruling from
the Tribunale amministrativo regionale per il Lazio):
Consorzio Industrie Fiammiferi (CIF) v Autorità Garante
della Concorrenza e del Mercato (1)

2.

(Competition law — National legislation anti-competitive
— National competition authority’s power to declare such
legislation inapplicable — Circumstances in which undertak-
ings not answerable for anti-competitive conduct)

— may impose penalties on the undertakings concerned in
respect of past conduct where the conduct was merely
facilitated or promoted by the national legislation, whilst
taking due account of the specific features of the legislative
framework in which the undertakings acted;

It is for the referring court to assess whether national legislation
such as that at issue in the main proceedings, under which
competence to fix the retail selling prices of a product is
delegated to a ministry and power
to allocate production
between undertakings is entrusted to a consortium to which the
relevant producers are obliged to belong, may be regarded,
for the purposes of Article 81(1) EC, as precluding those
undertakings from engaging in autonomous conduct which
remains capable of preventing, restricting or distorting compe-
tition.

(2003/C 264/14)

(1) OJ C 227 of 11.8.2001.

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-198/01: Reference to the Court under Article 234
EC by the Tribunale amministrativo regionale per il Lazio
(Italy) for a preliminary ruling in the proceedings pending
before that court between Consorzio Industrie Fiammiferi (CIF)
and Autorità Garante della Concorrenza e del Mercato, on the
interpretation of Article 81 EC, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
(Rapporteur) and C.W.A. Timmermans (Presidents of Cham-
bers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann,
V. Skouris, S. von Bahr and J.N. Cunha Rodrigues, Judges;
F.G. Jacobs, Advocate General; L. Hewlett, Principal Adminis-
trator, for the Registrar, has given a judgment on 9 September
2003, in which it has ruled:

1. Where undertakings engage in conduct contrary to Article 81(1)
EC and where that conduct is required or facilitated by national
legislation which legitimises or reinforces the effects of the
conduct, specifically with regard to price-fixing or market-
sharing arrangements, a national competition authority, one of
whose responsibilities is to ensure that Article 81 EC is
observed:

— has a duty to disapply the national legislation;

— may not impose penalties in respect of past conduct on
the undertakings concerned when the conduct was required
by the national legislation;

— may impose penalties on the undertakings concerned in
respect of conduct subsequent to the decision to disapply
the national legislation, once the decision has become
definitive in their regard;

JUDGMENT OF THE COURT

(Sixth Chamber)

of 11 September 2003

in Case C-207/01 (Reference for a preliminary ruling from
the Corte d’appello di Firenze): Altair Chimica SpA v
ENEL Distribuzione SpA (1)

(Competition — Dominant position — Supply of electricity
— Imposition of a ‘sovrapprezzo’)

(2003/C 264/15)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-207/01: Reference to the Court under Article 234
EC by the Corte d’appello di Firenze (Italy) for a preliminary
ruling in the proceedings pending before that court between
Altair Chimica SpA and ENEL Distribuzione SpA on the
interpretation of Articles 81, 82 and 85 EC, Council Directive
92/12/EEC of 25 February 1992 on the general arrangements
for products subject to excise duty and on the holding,
movement and monitoring of such products (OJ 1992 L 76,
p. 1), as amended by Council Directive 96/99/EC of 30 Decem-
ber 1996 (OJ 1997 L 8, p. 12), and Council Recommendation
81/924/EEC of 27 October 1981 on electricity tariff structures
in the Community (OJ 1981 L 337, p. 12), the Court (Sixth
Chamber), composed of:
J.-P. Puissochet, President of the
Chamber, R. Schintgen (Rapporteur), V. Skouris, F. Macken

C 264/10

EN

Official Journal of the European Union

1.11.2003

and J.N. Cunha Rodrigues,
Jacobs, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-
trar, has given a judgment on 11 September 2003, in which it
has ruled:

Judges; F.G.

Articles 81, 82 and 85 EC and Council Directive 92/12/EEC of
25 February 1992 on the general arrangements for products subject
to excise duty and on the holding, movement and monitoring of
such products, as amended by Council Directive 96/99/EC of
30 December 1996, must be interpreted as meaning that they do
not preclude a national rule providing for the levy of surcharges on
the price of electricity such as those at issue in the main proceedings
when the electricity is used in an electro-chemical process and that
Council Recommendation 81/924/EEC of 27 October 1981 on
electricity tariff structures in the Community is not capable of
preventing a Member State from levying such surcharges.

(1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 11 September 2003

in Case C-211/01: Commission of the European Communi-
ties v Council of the European Union (1)

lishing certain conditions for the carriage of goods by road
and the promotion of combined transport (OJ 2001 L 108,
p. 27), but only in so far as they are based on Article 93 EC
and without altering their effects, which should be maintained,
the Court (Fifth Chamber), composed of: M. Wathelet (Rappor-
teur), President of
the Chamber, C.W.A. Timmermans,
D.A.O. Edward, A. La Pergola and S. von Bahr, Judges; S. Alber,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 11 September 2003, in
which it:

conclusion of

1. Annuls Council Decision 2001/265/EC of 19 March 2001
concerning the
the agreement between the
European Community and the Republic of Bulgaria establishing
certain conditions for the carriage of goods by road and the
promotion of combined transport and 2001/266/EC of
19 March 2001 concerning the conclusion of the agreement
between the European Community and the Republic of Hungary
establishing certain conditions for the carriage of goods by road
and the promotion of combined transport;

2. Declares that the effects of the decisions are to be maintained
until the measures necessary to implement the present judgment
have been adopted;

3. Orders the Council of the European Union to pay the costs;

4. Orders the Federal Republic of Germany and the Grand Duchy

of Luxembourg to bear their own costs.

(1) OJ C 212 of 28.7.2001.

(EC/Bulgaria and EC/Hungary Agreements — Carriage of
goods by road and combined transport — Taxation — Legal
basis — Articles 71 EC and 93 EC)

JUDGMENT OF THE COURT

of 9 September 2003

(2003/C 264/16)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-211/01, Commission of the European Communities
(Agent: initially by M. Wolfcarius, subsequently by W. Wils) v
Council of the European Union (Agents: A. Lopes Sabino and
E. Karlsson) supported by Federal Republic of Germany
(Agents: W.-D. Plessing and M. Lumma) and by Grand Duchy
of Luxembourg (Agents: J. Falts and N. Mackel): Application
for the annulment of Council Decisions 2001/265/EC of
19 March 2001 concerning the conclusion of the agreement
between the European Community and the Republic of
Bulgaria establishing certain conditions for the carriage of
goods by road and the promotion of combined transport (OJ
2001 L 108, p. 4), and 2001/266/EC of 19 March 2001
concerning the conclusion of the agreement between the
European Community and the Republic of Hungary estab-

in Case C-236/01 (Reference for a preliminary ruling
from the Tribunale amministrativo regionale del Lazio):
Monsanto Agricoltura Italia SpA and Others v Presidenza
del Consiglio dei Ministri and Others (1)

(Regulation (EC) No 258/97 — Novel foods — Placing on
the market — Safety assessment — Simplified procedure —
Substantial equivalence to existing foods — Foods produced
from genetically modified maize — Presence of residues of
transgenic protein — Measure by a Member State tempor-
arily restricting or suspending the trade in or use of a novel
food in its territory)

(2003/C 264/17)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-236/01: Reference to the Court under Article 234
EC by the Tribunale amministrativo regionale del Lazio (Italy)