Portuguese Republic v Commission of the European Communities.
Date: 2001-03-29
19 It should be observed that Article 90(3) of the Treaty requires the Commission to ensure that Member States comply with their obligations as regards the undertakings referred to in Article 90(1) and expressly empowers it to take action for that purpose by way of directives and decisions. The Commission is thus empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law (see Netherlands and Others v Commission, cited above, paragraphs 25 and 28, and Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947, paragraph 23).
20 It is, moreover apparent from the wording of Article 90(3) and from the scheme of Article 90 as a whole that the Commission enjoys a wide discretion in the matters covered by paragraphs (1) and (3) as regards both the action which it considers necessary to take and the means appropriate for that purpose (Netherlands and Others v Commission, paragraph 27, and Bundesverband der Bilanzbuchhalter, paragraph 27).
22 In the first place, the Portuguese Republic's argument that a directive of this type was the only way to bring about the simultaneous harmonisation of national systems of airport charges similar to the Portuguese system is immaterial. The effect of that argument is merely to deny that that Member State has an obligation to amend its system of landing charges to bring it into conformity with the Treaty whilst systems of a similar type remain in force in other Member States. It is settled law, however, that a Member State may not rely on the fact that other Member States have also failed to perform their obligations in order to justify its own failure to fulfil its obligations under the Treaty. In the Community legal order established by the Treaty, the implementation of Community law by the Member States cannot be made subject to a condition of reciprocity. Articles 226 EC and 227 EC provide the appropriate remedies in such cases (see Case C-38/89 Blanguernon [1990] ECR I-83, paragraph 7).
23 In the second place, the possibility that rules containing provisions which impinge upon the specific sphere of Article 90 might be laid down by the Council by virtue of its general power under other articles of the Treaty does not preclude the exercise of the power which Article 90 confers on the Commission (Joined Cases 188/80 to 190/80 France and Others v Commission [1982] ECR 2545, paragraph 14, and Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 26).
26 With regard to directives, the Court noted that in Case C-202/88 France v Commission, cited above, it held that the Commission was empowered to specify in general terms the obligations arising for Member States under the Treaty with regard to the undertakings referred to in Article 90(1) (Netherlands and Others v Commission, paragraph 26).
27 With regard to the powers which Article 90(3) authorises the Commission to exercise by means of decisions, the Court of Justice also held that they differ from those which it may exercise by means of directives. A decision is adopted in respect of a specific situation in one or more Member States and necessarily involves an appreciation of that situation in the light of Community law; it specifies the consequences arising for the Member State concerned, regard being had to the requirements which the performance of that particular task assigned to an undertaking imposes upon it if it is entrusted with the operation of services of general economic interest (Netherlands and Others v Commission, paragraph 27).
34 Consequently, the Commission does not commit an abuse of process where it assesses, by way of a decision, the compatibility with the Treaty of measures enacted or maintained in force by States as regards the undertakings referred to in Article 90(1) (see Netherlands and Others v Commission, paragraphs 34 to 37).
38 It is settled case-law that the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable those concerned to ascertain the reasons for the measure and the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I-88555, paragraph 65).
46 It should also be noted that subparagraph (c) of the second paragraph of Article 86 of the Treaty prohibits any discrimination on the part of an undertaking in a dominant position which consists in the application of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, irrespective of whether such discrimination is linked to nationality.
66 In that connection, the Court of Justice has expressly held that where national legislation, though applicable without discrimination to all vessels whether used by national providers of services or by those from other Member States, operates a distinction according to whether those vessels are engaged in internal transport or in intra-Community transport, thus securing a special advantage for the domestic market and the internal transport services of the Member State in question, that legislation must be deemed to constitute a restriction on the freedom to provide maritime transport services (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 21). There is no disputing that a measure of this type also confers an advantage on carriers who operate more than others on domestic rather than international routes and so leads to dissimilar treatment being applied to equivalent transactions, thereby affecting free competition. In this case, the discrimination results from the application of a different tariff system for the same number of landings of aircraft of the same type.