Commission of the European Communities v Kingdom of the Netherlands.
Date: 1997-10-23
14 Accordingly, without requiring the abolition of those monopolies, that provision prescribes in mandatory terms that they must be adjusted in such a way as to ensure that when the transitional period has ended the discrimination referred to has ceased to exist (Case 59/75 Pubblico Ministero v Manghera [1976] ECR 91, paragraph 5). Moreover, even before the expiry of the transitional period, it prohibited the Member States from introducing further discrimination of the kind referred to in Article 37(1).
15 As the Court held in Manghera, cited above (paragraph 12), and Case C-347/88 Commission v Greece [1990] ECR I-4747 (paragraph 44), exclusive import rights give rise to discrimination prohibited by Article 37(1) against exporters established in other Member States.  Such rights directly affect the conditions under which goods are marketed only as regards operators or sellers in other Member States.
18 It must also be observed that, for the prohibition of all discrimination between nationals of Member States provided for in Article 37(1) to be applicable, it is not necessarily a requirement that the exclusive rights to import a given product relate to all imports: it is sufficient if those rights relate to a proportion such that they enable the monopoly to have an appreciable influence on imports (see, to that effect, Commission v Greece, cited above, paragraph 41).  It is not disputed that the exclusive import rights held by SEP for electricity intended for public distribution fall into that category.
20 It is clear, however, from the case-law of the Court that Article 37 of the Treaty applies to situations in which the national authorities are in a position to control, direct or appreciably influence trade between Member States through a body established for that purpose or a delegated monopoly (Case C-387/93 Banchero [1995] ECR I-4663, paragraph 26, and case-law cited).  By their nature, exclusive import rights give rise to such a situation.
29 As the Court held in Joined Cases 188/80, 189/80 and 190/80 France, Italy and United Kingdom v Commission [1982] ECR 2545, paragraph 12, Article 90 concerns only undertakings for whose actions States must take special responsibility by reason of the influence which they may exert over such actions.  It emphasizes that such undertakings, subject to the provisions contained in paragraph 2, are subject to all the rules laid down in the Treaty and, further, requires the Member States to respect those rules in their relations with those undertakings.
32 Having regard to the scope just attributed to paragraphs 1 and 2 of Article 90, and to their combined effect, paragraph 2 may be relied upon to justify the grant by a Member State, to an undertaking entrusted with the operation of services of general economic interest, of exclusive rights which are contrary to, in particular, Article 37 of the Treaty, to the extent to which performance of the particular tasks assigned to it can be achieved only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community.
35 In that context, the Commission has stated that it is clear in particular from Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 16, Case C-393/92 Almelo and Others v Energiebedrijf Ijsselmij [1994] ECR I-1477, paragraph 49, that Article 90(2) of the Treaty authorizes measures contrary to the Treaty only to the extent to which they are necessary to enable the undertaking concerned to perform its task of general economic interest under acceptable economic conditions and, therefore, only if they are necessary for the financial equilibrium of the undertaking itself.  It has maintained, therefore, that it was incumbent on the Netherlands Government to establish that there would, in the event of elimination of the exclusive import rights at issue, be a risk of creaming-off by electricity importers, which would concentrate on their most lucrative activities, leaving the less lucrative to SEP, that such a risk would be liable to compromise SEP's economic viability and that there were no other measures less restrictive of trade which would also allow fulfilment of the relevant public-service obligations, such as in particular equalization of the costs associated with public service obligations as between SEP and importers.
39 Moreover, in Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 12, the Court held that, in allowing derogations to be made from the general rules of the Treaty in certain circumstances, Article 90(2) seeks to reconcile the Member States' interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Community's interest in ensuring compliance with the rules on competition and the preservation of the unity of the common market.
40 The Member States' interest being so defined, they cannot be precluded, when defining the services of general economic interest which they entrust to certain undertakings, from taking account of objectives pertaining to their national policy or from endeavouring to attain them by means of obligations and constraints which they impose on such undertakings.
41 It must also be borne in mind that, in Almelo, cited above (paragraph 48), the Court accepted, with respect to a regional undertaking entrusted with electricity distribution, that the uninterrupted supply of electricity throughout the territory in respect of which the concession is granted to all consumers, whether local distributors or end-users, in sufficient quantities to meet demand at any given time, at uniform tariff rates and on terms which may not vary save in accordance with objective criteria applicable to all customers, is a task of general economic interest within the meaning of Article 90(2).
52 However, as the Court has held in paragraphs 37 to 43 above, contrary to the Commission's contention, it is not necessary, in order for the conditions for the application of Article 90(2) of the Treaty to be fulfilled, that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened.  It is sufficient that, in the absence of the rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, defined by reference to the obligations and constraints to which it is subject.
53 Moreover, it follows from the Corbeau judgment, cited above (paragraphs 14 to 16), that the conditions for the application of Article 90(2) are fulfilled in particular if maintenance of those rights is necessary to enable the holder of them to perform the tasks of general economic interest assigned to it under economically acceptable conditions.
58 Whilst it is true that it is incumbent upon a Member State which invokes Article 90(2) to demonstrate that the conditions laid down by that provision are met, that burden of proof cannot be so extensive as to require the Member State, when setting out in detail the reasons for which, in the event of elimination of the contested measures, the performance, under economically acceptable conditions, of the tasks of general economic interest which it has entrusted to an undertaking would, in its view, be jeopardized, to go even further and prove, positively, that no other conceivable measure, which by definition would be hypothetical, could enable those tasks to be performed under the same conditions.
59 In proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether the obligation has not been fulfilled (see Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6).
60 In that regard, it must be borne in mind that the purpose of the prelitigation procedure provided for by Article 169 of the Treaty is to enable the Member State to comply of its own accord with the requirements of the Treaty or, if appropriate, to justify its position (see, to that effect, Case 85/85 Commission v Belgium [1986] ECR 1149, paragraph 11).  That is precisely what the Netherlands Government did by putting forward, in its reply to the Commission's letter of formal notice, a number of arguments to justify maintenance of the exclusive rights at issue under, in particular, Article 90(2) of the Treaty.
61 The reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question failed to fulfil one of its obligations under the Treaty (see in particular Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 16).  In this case, the reasons given by the Commission were essentially legal considerations in relation to which the explanations given by the Netherlands Government were not relevant.
62 The purpose of the application, if the Commission brings proceedings before the Court, is to specify, by reference to the prelitigation procedure, the complaints on which the Court is called upon to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see in particular Commission v Greece, cited above, paragraph 28).  In this case, the Commission confined itself essentially to purely legal arguments.