CELEX: C1997/094/15
Language: en
Date: 1997-03-22 00:00:00
Title: Reference for a preliminary ruling by the Kammergericht, Berlin, by order of that court of 23 December 1996 in the cartel administration proceedings between 1. RWE Energie Aktiengesellschaft; 2. Stadt Nordhorn and the Bundeskartellamt (Case C-34/97)

22 . 3 . 97             EN                  Official Journal of the European Communities                                   No C 94/7
1 . Is a legal provision of a Member State whereby:                        adopted a common position (No 56/96 ) with a view to
                                                                           adopting Directive 96/.../EC of the European
     — the particulars required to be mentioned on                         Parliament and of the Council concerning common
           labelling and which are mandatory under national                rules for the internal market in electricity ( OJ No
           legislation;                                                    C 315 , 24 . 10 . 1996 , p. 18 ), mean that the competent
     — instructions for use;                                               authorities of a Member State under Article 9 ( 3 ) of
                                                                           Council Regulation No 17 of 6 February 1962 are
     — guarantee certificates;                                             precluded on the basis of the second paragraph of
                                                                           Article 5 of the Treaty, under which the Member
     must be given at least in the language or languages of                States are to abstain from any measure which could
     the territory where the products are placed on the                    prejudice the attainment of the objectives of the
     market, with the consequence that the packaging of                    Treaty, from applying Article 85 ( 1 ) of the Treaty by
     imported products must be altered, a 'technical                       administrative order to an agreement between an
     regulation' within the meaning of Directive 83/189/                   electricity supply undertaking and a local authority,
     EEC (')?                                                              under which the local authority grants to the
                                                                           electricity supply undertaking, for consideration, the
2 . ( a ) Where specific EC rules exist for products                       exclusive right to use the public roads in its area for
           concerning the particulars which must appear on                 the purpose of installation and operation of the mains
           the product, can a Member State require imported                necessary for the direct supply of electricity to end
           products to carry other information in the                      users and agrees not to undertake the public supply of
           language of the linguistic area in which the                    electricity, or cause it to be undertaken, in the area
           products are sold, or in a language readily                     covered by the concession (a concession agreement)?
           understood by the consumer ?
     ( b ) If the answer to Question ( a ) is in the affirmative,      2 . If Question 1 is answered in the negative:
           may such a requirement be made of all
                                                                           Do the competent authorities of a Member State under
           information on packaging or only of certain
           information and, if so, which ?                                 Article 9 ( 3 ) of Regulation No 17, by applying
                                                                           Article 85 ( 1 ) of the EC Treaty to a concession
     (c ) In respect of products for which there are no                    agreement in the terms described in Question 1
           specific EC rules, may a Member State require all               between an electricity supply undertaking in that State
           or certain ( and if so which ) information on the               and a local authority, when, in other Member States,
           imported products to be given in the language of                such undertakings have sales areas protected by
           the linguistic territory in which the products are              contract or de facto from competition or there are
           sold, or in a language readily understood by the                statutory monopolies over electricity supply, infringe
           consumer ?                                                      the obligation on the Member States which follows
                                                                           from the second paragraph of Article 5 in conjunction
(') OJ No L 109 , 20. 4 . 1983 , p . 8 .                                   with Article 3 ( g) of the EC Treaty to abstain from
                                                                           any measure which may jeopardize the Community
                                                                           objective of establishing a system ensuring that
                                                                           competition in the internal market is not distorted ?
                                                                       3 . If Question 2 is answered in the negative :
Reference for a preliminary ruling by the Kammergericht,
Berlin, by order of that court of 23 December 1996 in                      Is Article 9 ( 3 ) of Regulation No 17, under which the
the cartel administration proceedings between 1 . RWE                      authorities of the Member States remain competent to
Energie Aktiengesellschaft; 2. Stadt Nordhorn and the                      apply Article 85 ( 1 ) of the EC Treaty as long as the
                         Bundeskartellamt                                  Commission has not initiated any procedure, unlawful
                          ( Case C-34/97)                                  on the ground that Article 85 ( 1 ) ( prohibition ) and
                                                                           Article 85 ( 3 ) ( exemption ) form an indivisible whole
                            ( 97/C 94/15 )                                 for applying the law but the national authorities are
                                                                           not granted, in addition to the competence to prohibit,
Reference has been made to the Court of Justice                            the power to exempt, which is instead reserved
of the European Communities by order of the                                exclusively to the Commission ( Article 9 ( 1 ) of
Kammergericht, Berlin, — Kartellsenat ( Cartel Chamber                     Regulation No 17)?
of the Berlin Court of Appeal ) of 23 December 1996 ,
received at the Court Registry on 24 January 1997, for a               4 . If Question 3 is answered in the negative :
preliminary ruling in the cartel administration proceedings
between 1 . RWE Energie Aktiengesellschaft; 2 . Stadt                      ( a ) Are the competent authorities of a Member State
Nordhorn ( Municipality of Nordhorn ) and the                                    under Article 9 ( 3 ) of Regulation No 17 precluded
Bundeskartellamt ( Federal Cartel Office ) on the following                      from applying Article 85 ( 1 ) of the EC Treaty to
questions :                                                                      an agreement if that agreement has been duly
                                                                                 notified to the European Commission for
1 . Does the fact that the European Commission is                                exemption, the Commission has refused to initiate
     seeking to complete the internal market in the                              a procedure and the person who notified the
     electricity sector by legislation, and that as a result the                 agreement challenges that refusal by bringing an
     Council of the European Union has in the interim                            action for a declaration of failure to act, and the
 ---pagebreak--- No C 94/8                EN                  Official Journal of the European Communities                                       22 . 3 . 97
            agreement is of a type for which no precedents                         of a secure and reasonably-priced energy supply, to
            regarding whether it may be exempted are to be                         special control to prevent abuse with regard to
            found in either the practice of the Commission or                      pricing and terms of business ?
            the case-law of the Community judicature ?
                                                                                   If the provisions of German law on the energy
     ( b ) If, in the circumstances described in ( a ), the action                 industry cannot provide support, are there other
            for a declaration of failure to act is unsuccessful,                   considerations which justify regarding those supply
            are the national authorities nevertheless precluded                    undertakings as entrusted undertakings within the
            from applying Article 85 ( 1 ) of the EC Treaty                        meaning of Article 90 ( 2 ) of the EC Treaty and, if
            because the agreement is of a type whose                               so, what are they ?
            exemption has not as yet been dealt with at
            Community level ?                                                ( b ) If the electricity supply undertakings referred to
                                                                                   are entrusted undertakings within the meaning of
                                                                                   Article 90 ( 2 ) of the EC Treaty:
5 . If parts ( a ) and ( b ) of Question 4 are answered in the
     negative :                                                                    What are the criteria for interpretation of the
                                                                                   further requirements under Article 90 ( 2 ), that is
     Does a German municipal authority act as an                                   to say does the application of Article 85 ( 1 ) of the
     undertaking within the meaning of Article 85 ( 1 ) of                         EC Treaty to a concession agreement obstruct the
    the EC Treaty if it enters into a concession agreement                         performance, in law or in fact, of the particular
    with an electricity supply undertaking operating in                            tasks assigned to them and, if so, does the
     Germany, under which it grants to that undertaking,                           exemption from the rules on competition
    in return for a concession fee calculated on the basis                         contained in the EC Treaty affect the development
    of electricity sales in the area covered by the                                of trade to such an extent as is contrary to the
    concession, the exclusive right to use the public roads                        interests of the Community ?
    in the authority's area for the purposes of installation
    and operation of the mains necessary for the direct
    supply of electricity to end users and itself agrees not
    to undertake the public supply of electricity, or cause
    it to be undertaken, in the area covered by the
    concession ?                                                       Action brought on 24 January 1997 by the Commission of
                                                                          the European Communities against the French Republic
6 . If Question 5 is answered in the affirmative :                                                  Case C-35/97 )
                                                                                                     ( 97/C 94/ 16 )
    If the provision granting exclusive rights contained in
    a concession agreement with a local authority, as at               An action against the French Republic was brought before
    issue here, is found to be necessary in order to enable            the Court of Justice of the European Communities on
    the holder of the concession to undertake his supply               24 January 1997 by the Commission of the European
    operations, can that mean that there is no restriction             Communities, represented by Pieter Jan Kuyper and Pieter
    on competition within the meaning of Article 85 ( 1 ) of           Van Nuffel, acting as Agents, with an address for service
    the EC Treaty, or may that circumstance be taken into              in Luxembourg at the office of Carlos Gomez de la Cruz,
    account only when applying Article 90 (2 ) or                      Wagner Centre, Kirchberg.
    Article 85 ( 3 ) of the EC Treaty ?
                                                                       The Commission of the European Communities claims
7. If Article 85 ( 1 ) of the EC Treaty does apply:                    that the Court should :
    ( a ) Are the electricity supply undertakings operating in         1 . declare that, by excluding frontier workers residing in
           Germany which supply private and trade end users                 Belgium from qualifying for supplementary retirement
           undertakings entrusted with the operation of                     pension points after being placed in early retirement,
           services of general economic interest within the                 the French Republic has failed to fulfil its obligations
           meaning of Article 90 (2 ) of the EC Treaty, on the              under Article 48 ( 2 ) of the EC Treaty and Article 7 of
           grounds that, in the interests of the secure and                 Regulation ( EEC) No 1612/68 of 16 October 1968 on
           reasonably-priced supply of energy to consumers                  freedom       of   movement       for    workers within    the
           under the German Energiewirtschaftsgesetz ( Law                  Community ( J );
           on the Energy Industry 'EnWG'), they are subject
           to a series of special provisions, that is to say they      2 . order the French Republic to pay the costs .
           need authorization from the competent energy
           supervisory authority (paragraph 5 of the EnWG),            Pleas in law and main arguments adduced in support:
           are required under paragraph 6 of the EnWG to
           supply every person in the area covered by the              Infringement of Article 48 (2 ) of the EC Treaty and
          concession in accordance with published general              Article 7 of Regulation ( EEC ) No 1612/68 , Article 48 of
          conditions and price tariffs and, lastly, under              the EC Treaty and, in particular, Article 7 ( 1 ) of
          paragraph 103 ( 5 ) of the Gesetz gegen Wettbe­              Regulation ( EEC ) No 1612/68 prohibit discrimination
          werbsbeschrankungen ( Law Against Restriction on             against migrant workers in respect of conditions of
           Competition ), are subject, likewise in the interests       employment, in particular as regards remuneration and