CELEX: C1996/095/09
Language: en
Date: 1996-03-30 00:00:00
Title: Action brought on 18 January 1996 by the Portuguese Republic against the Commission of the European Communities (Case C-12/96)

30 . 3 . 96             EN                  Official Journal of the European Communities                                        No C 95/5
         material time, the increase in that credit line was                 Directive 90/388/EEC with regard to the abolition of the
         consistent with the conduct of private investor in                  restrictions on the use of cable television networks for
         HSW acting on market economy principles, who had                    the provision of already liberalized telecommunications
         to   consider   that   his   substantial  loan   to  this           services ( 1 ),
         undertaking in liquidation would be regarded as
         replacing equity capital . In particular, the extent of       — order the defendant institution to pay the costs .
         the commitment to the company which was the
         predecessor of the new one is completely unsuited for         Pleas in law and main arguments adduced in support:
         use as a yardstick for assessing the nature as aid of the
         increase in the credit line granted in 1992 . A private       — lack of competence of the Commission : the Commission
         investor assesses whether in a crisis he should realize             is not specifying obligations already in existence under
         a large loss by terminating a large commitment or                   Article 90 ( 1 ), rather it is a new obligation to liberalize
         buy himself, by making a further limited capital                    the market outwith the relevant legislation in existence
         injection, a realistic prospect of avoiding or reducing             at that time, in turn giving rise to areas as yet unregulated
         his loss, still in the light of the circumstances at                which seriously affects the universal provision of
         the time . It always turns on which decision is the                 services, which may only be supervised by means of the
         most reasonable one commercially in the actual                      proper exercise of the Community's legislative power,
         circumstances . There is, however, no commercial                    that is, by means of the system of harmonization, which
         law which states that a successor company founded                   is a matter solely for the Council and the European
         to avoid the liquidation of a company should                        Parliament both under the Treaty ( specifically
         invariably be financed only to the extent to which the              Articles 87 and 100a of the EC Treaty ) and under
         company which became insolvent was financed,                        the resolutions adopted in this sphere . This is an
                                                                             encroachment of powers which may in no way be
    — the Commission further wrongly assumes that the                        considered to be sanctioned by Article 90 ( 3 ) or the
         extension and increase of the credit line in December               case-law of the Court of Justice interpreting it,
         1993 constitutes an aid : the measure is based on a
         recommendation of an independent firm of business             — misuse           of   powers :     by      imposing   the  direct
         consultants and had the aim of supporting HSW by                    interconnection of cable television networks, the
         means of a further, relatively small increase in the                Commission is in fact implementing a harmonization
         credit line until the business was sold and hence of                measure in breach of the principles of interinstitutional
         substantially reducing the losses feared in the event               balance enshrined in the Treaty and in the case-law.
         of   the  termination      of  the  commitment .    The
         subsequent actual sale shows that the overall loss            f 1 ) OJ No L 256 , 26 . 10 . 1995 , p . 49 .
         resulting from the privatization was markedly less
         than it would have been had the commitment been
         terminated in December 1993 .
— In the alternative : incorrect calculation of the amount of
    the aid .
                                                                       Action brought on 18 January 1996 by the Portuguese
                                                                       Republic against the Commission of the European
                                                                                                   Communities
                                                                                                   Case C-12/96
                                                                                                    ( 96/C 95/09 )
Action brought on 18 January 1996 by the Kingdom                       An action against the Commission of the European
of Spain against the Commission of the European                        Communities was brought before the Court of Justice of
                           Communities
                                                                       the European Communities on 18 January 1996 by the
                          Case C-ll /96 )                              Portuguese Republic, represented by Dr Paulo de Pitta e
                           ( 96/C 95/08 )                              Cunha, Dr Nuno Ruiz and Dr Luis Fernandes, acting as
                                                                       Agents, with an address for service in Luxembourg at the
                                                                       Portuguese Embassy, 33 Allee Scheffer.
An action against the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 18 January 1996 by the                         The applicant claims that the Court should :
Kingdom of Spain, represented by Gloria Calvo Diaz,
                                                                       — annul Article 1 ( 2 ) and Article 2 of Commission
Abogado del Estado, with an address for service in
Luxembourg at the Spanish Embassy, 4 and 6 Boulevard                         Directive 95/5 1 /EC of 18 October 1995 amending
E. Servais .                                                                 Directive 90/388/EEC with regard to the abolition of the
                                                                             restrictions on the use of cable television networks for
                                                                             the provision of already liberalized telecommunications
The applicant claims that the Court should :                                 services (');
— annul the second indent of Article 1 ( 2 ) of Commission             — order the Commission to pay all the costs of the
    Directive 95/5 1 /EC of 18 October 19 95 amending                        proceedings .
 ---pagebreak--- No C 95/6              EN                   Official Journal of the European Communities                                    30 . 3 . 96
Pleas in law and main arguments adduced in support:                           of the privatization process in general and has an
                                                                              adverse effect on the price of its shares with
                                                                              repercussions for the future as regards sources of
                                                                              funding for its activities. Inasmuch as they do not
— Lack of competence: The Commission has no                                   admit of any additional transitional period for
    competence under Article 90 ( 3 ) of the EC Treaty to                     Portugal, the obligations laid down in Article 1 ( 2 ) of
    require Member States, by means of Directives, to                         Directive 95/5 1/EC constitute a very serious obstacle
    abolish all types of restrictions on the provision of                     to the tasks assigned to Portugal Telecom and are,
    network transmission capacity for cable television, to                    therefore, incompatible with Article 90 ( 2 ) of the EC
    allow the use of those networks for the provision of                     Treaty,
   telecommunications services other than voice telephony
   and to authorize for that purpose the connection of cable
   television networks to public telecommunications
   networks, inasmuch as compliance with such an                          — infringement of the provisions of the Treaty relating
   obligation involves the need to amend or apply in a                       to cohesion and differentiation : by adopting the
   different way general legislation intended to regulate the                Directive at issue, the Commission has completely
   exercise of the activities of cable television operators .                upset the balance of the process which was politically
   Those powers belong exclusively to the European                           agreed in the Council and jeopardized the complex of
   Parliament      and the     Council    in  accordance    with             initiatives and measures intended to ensure supply of
   Article 100a and are regulated by Article 189b, which                     services and the installation and development of a
   adequately protect the prerogatives of both institutions,                 public network capable of adequately responding to
   the role of the Economic and Social Committee and the                     the needs of providing a universal service . Articles 1
   interests of the Member States .                                          ( 2 ) and 2 of Directive 95/51 /EC are thus in breach
                                                                             of the principles of cohesion and negative
                                                                             differentiation provided for in Articles 130a and 7c
                                                                             of the EC Treaty, on which was based the
   Having regard to Article 86 , it should be recalled that                  establishment by agreement at Council level,
   Article 90 of the EC Treaty only confers powers on the                    of the additional timetables provided for the
   Commission in respect of the measures adopted by                          liberalization of the installation and operation of
   Member States and not in respect of anti-competitive                      telecommunications infrastructures .
   conduct which undertakings themselves might adopt.
   No specific State measure imposes upon the
   telecommunications organizations or cable television
   network operators any obligation as regards the                    — Infringement of legislative rules relating to the
   organization of their respective accounting procedures .              application of the EC Treaty:
   The fact that operators do not treat them separately is
   due only to themselves and the fact that this makes it
   difficult to prove that there has been cross-subsidy does             — infringement of the principles of legal certainty and
   not, of itself, constitute a basis for the competence of the              legitimate expectations : since at the meeting of
   Commission under Article 90 ( 3 ). Nor, therefore, does                   17 November 1994 the Council had not been in
   the Commission have any power to impose the                               favour of liberalizing alternative infrastructure
   obligation contained in Article 2 of Directive                            before 1 January 1998 , having argued for the need
   95/51 /EC .
                                                                             for political agreement on the matter and pointed
                                                                             out, as the Commission itself did , the importance of
                                                                             defining beforehand the mechanisms to safeguard
                                                                            the existence of the universal service, the Directive at
— Infringement of essential procedural requirements : the
   statement     of   reasons    for   Directive   95/51 /EC   is            issue amended radically and unexpectedly the
                                                                            existing rules, whose effect was immediate or in the
   insufficient in various ways .
                                                                            extremely short term, was issued unaccompanied by
                                                                            essential measures of transition or adaption and
                                                                             seriously jeopardizing the strategies for development
— Infringement of the EC Treaty:                                            and adjustment laid down by some Member States
                                                                            and by the operators affected by them . Council
                                                                            resolutions such as that of 22 December 1994 ( on
                                                                            the principles and the timetable for liberalization
   — infringement of Article 90 ( 2 ) of the EC Treaty:                     of telecommunications infrastructures ) create
        the bringing forward of liberalization of the                       legitimate expectations and are significant for the
        infrastructure could lead to a significant reduction of             purpose of interpreting and analysing acts of the
        Portugal Telecom's revenue between 1996 and 2003 ,                  institutions giving effect thereto . It is unacceptable
        not taking into account the losses resulting from the               that the autonomy of each of the institutions should
        encouragement of traffic away from the telephone                    lead to inconsistencies between what one of them
        service to leased line networks. In addition to this,               advocates and another decides, thus hindering and
       changes to the regulatory framework — which were                     thwarting the defining of an economic policy by the
        not foreseeable at the time of the partial privatization            Member States and undermining the legal certainty
        of the undertaking — put in question the credibility                to which economic operators are entitled,
 ---pagebreak--- 30 . 3 . 96             EN                 Official Journal of the European Communities                                        No C 95/7
    — infringement of the principle of equal treatment and            Pleas in law and main arguments adduced in support:
         non-discrimination : by generally imposing the
         opening up of the alternative networks to operators          — the aim and the content of the contested act are part of
         who exploit them in very different national systems,             Title XII of the EC Treaty and Article 129d ( inasmuch as
         benefitting some and adversely affecting others as
                                                                          it is a procedural article ) is the only appropriate legal
         a result of being incompatible with the duty of
                                                                          basis . On the one hand, despite the procedural and
         non-discrimination and of equal treatment required,
                                                                          terminological changes made to the Commission's
         not only of the Member States, but also of the                   proposal, there are numerous 'policy' elements which
         Community institutions . This defect of the Directive            justify recourse to Article 129d ( 1 ). On the other, there
         is even more serious inasmuch as since the legal
                                                                          are also a number of 'interoperability' aspects ( second
         system governing the activity of cable television                indent of Article 129c ( 1 ) as basic Article ) which justify
         operators in Portugal is liberal as regards the issuing          of themselves recourse to Article 129d ( 3 ). Finally, since
         of licences, it magnifies the impact of liberalization,
                                                                          projects of common interest have been clearly identified,
         when in fact it would be desirable, having regard
                                                                          the Community contribution falls within the scope of
         to the comparative underdevelopment of the                       the third indent of Article 129c ( 1 ) and the correct legal
         Portuguese national network, that the effect of the              basis is in this case also Article 1 29d ( 3 ) . Given that there
         measure should be felt gradually and over time .
                                                                          are specific legal bases in the Treaty, Article 235 of the
                                                                          EC Treaty is not at all relevant,
— Misuse of powers : Directive 95/5 1/EC does not seem to
     be intended to promote fairness in greater competition
    with regard to the leasing of networks and,                       — in the alternative, lack of competence, misuse of powers
    consequently, to the liberalized telecommunications                   as regards Article 2 ( 2 ) of the contested Decision :
     services . Rather, it advances in a concealed manner the             that provision gives the contested Decision an
     total liberalization of the infrastructures and places in a          unascertainable scope, constitutes an arrogation of
     privileged position those cable television operators who             competence by the Council and, above all, is tantamount
     are already established in some of the Member States                 to disregarding ab initio the rights of Parliament to
     where they are not subject to any competition .                      intervene in the legislative process .
H OJ No L 256 , 26 . 10 . 19 95 , p . 49 .                            0 ) Decision 95/468/EC, published in OJ No L 269 , 11 . 11 . 1995 ,
                                                                          p. 23 .
  Action brought on 25 January 1996 by the European
  Parliament against the Council of the European Union
                         ( Case C-22/96 )                             Action brought on 26 January 1996 by the Commission of
                                                                       the European Communities against the French Republic
                           ( 96/C 95/ 10 )
                                                                                                ( Case C-23/96 )
                                                                                                  ( 96/C 95/ 11 )
An action against the Council of the European Union was
brought before the Court of Justice of the European
Communities on 25 January 1996 by the European                        An action against the French Republic was brought before
Parliament, represented by Johann Schoo and Jose Luis                 the Court of Justice of the European Communities on
Rufas Quintana, action as Agents, with an address for                 26 January 1996 by the Commission of the European
service in Luxembourg at the General Secretariat of the               Communities, represented by Michel Nolin and Jean­
Parliament, Batiment Tour, Kirchberg.                                 Francis Pasquier, acting as Agents, with an address for
                                                                      service in Luxembourg at the office of Carlos Gomez de la
                                                                      Cruz, of its Legal Service, Wagner Centre , Kirchberg.
The applicant claims that the Court should :
— annul, pursuant to Article 173 of the EC Treaty, the                The applicant claims that the Court should :
    Decision of the Council of 6 November 1995 on a
     Community contribution for telematic interchange of
     data between administrations in the Community                    — declare that, by failing to adopt and bring into force
     ( IDA )( 1 ),                                                        within the prescribed period the laws, regulations
                                                                          or administrative provisions necessary to comply
                                                                          with Commission Directive 91 /507/EEC ( J ) modifying
— annul, in any event, also pursuant to Article 173 of the                the Annex to Council Directive 75/318/EEC ( 2 ) on the
     EC Treaty, Article 2 ( 2 ) of that Decision,                         approximation of the laws of Member States relating
                                                                          to analytical , pharmacotoxicological and clinical
— order the defendant to pay the costs .                                  standards and protocols in respect of the testing of