Italian Republic v Commission of the European Communities.
Date: 1985-03-20
16 THE ITALIAN REPUBLIC ARGUES THAT ARTICLE 86 OF THE TREATY APPLIES SOLELY TO THE ACTIVITIES OF BUSINESS CONCERNS CARRIED OUT UNDER PRIVATE LAW , AND NOT TO RULE-MAKING ACTIVITIES CARRIED OUT PURSUANT TO A STATUTE BY A PUBLIC BODY FUNCTIONING IN CONFORMITY WITH CONDITIONS LAID DOWN BY CENTRAL GOVERNMENT . INASMUCH AS THE CONTESTED DECISION IS DIRECTED , NOT TO BT ' S CONDUCT IN ITS CAPACITY AS A BODY RESPONSIBLE FOR THE OPERATION OF CERTAIN EQUIPMENT OR AS A SUPPLIER OF TELECOMMUNICATIONS SERVICES TO USERS , BUT RATHER TO ITS RULE-MAKING ACTIVITIES UNDER THE POST OFFICE ACT 1969 AND THE BRITISH TELECOMMUNICATIONS ACT 1981 , THE APPLICANT TAKES THE VIEW THAT THE COMMISSION HAS MISAPPLIED ARTICLE 86 . THE RULE-MAKING ACTIVITIES COMPLAINED OF CAN , AT MOST , PROVIDE THE BASIS FOR AN ACTION AGAINST THE UNITED KINGDOM UNDER ARTICLES 90 OR 169 OF THE TREATY .
17 THE COMMISSION , SUPPORTED IN ITS CONCLUSIONS AND ARGUMENTS BY THE UNITED KINGDOM , CONTENDS THAT THE PROVISION OF TELECOMMUNICATIONS SERVICES IS A BUSINESS ACTIVITY . ALTHOUGH UNITED KINGDOM STATUTE LAW EMPOWERED BT TO HAVE RECOURSE TO SCHEMES , IT DID SO SOLELY FOR THE PURPOSE OF ESTABLISHING THE CHARGES AND CONDITIONS SUBJECT TO WHICH SUCH SERVICES ARE OFFERED . THE SCHEMES AT ISSUE THEREFORE PERFORM THE SAME FUNCTION AS CONTRACTUAL TERMS , AND WERE FREELY ADOPTED BY BT PURSUANT TO THE POWERS VESTED IN IT AND WITHOUT ANY INTERVENTION ON THE PART OF THE UNITED KINGDOM AUTHORITIES . EVEN IF THE UNITED KINGDOM COULD BE HELD RESPONSIBLE IN THESE CIRCUMSTANCES , THAT WOULD HAVE THE EFFECT , AT MOST , OF DIMINISHING THE UNDERTAKING ' S RESPONSIBILITY FOR THE PURPOSES OF CALCULATING THE FINE , BUT WOULD NOT PREVENT THE COMMUNITY RULES ON COMPETITION FROM BEING APPLIED TO IT .
18 IT SHOULD BE NOTED IN THE FIRST PLACE THAT THE APPLICANT DOES NOT DISPUTE THAT , DESPITE BT ' S STATUS AS A NATIONALIZED INDUSTRY , ITS MANAGEMENT OF PUBLIC TELECOMMUNICATIONS EQUIPMENT AND ITS PLACING OF SUCH EQUIPMENT AT THE DISPOSAL OF USERS ON PAYMENT OF A FEE DO INDEED AMOUNT TO A BUSINESS ACTIVITY WHICH AS SUCH IS SUBJECT TO THE OBLIGATIONS IMPOSED BY ARTICLE 86 OF THE TREATY .
19 IN THE SECOND PLACE IT SHOULD BE OBSERVED THAT , BY VIRTUE OF SECTION 28 OF THE POST OFFICE ACT 1969 AND THEN OF SECTION 21 OF THE BRITISH TELECOMMUNICATIONS ACT 1981 , THE POWER CONFERRED ON BT TO INTRODUCE SCHEMES HAS BEEN STRICTLY LIMITED TO LAYING DOWN PROVISIONS RELATING TO THE SCALE OF CHARGES AND OTHER TERMS AND CONDITIONS UNDER WHICH IT PROVIDES SERVICES FOR USERS . IN THE LIGHT OF THE WORDING OF THOSE PROVISIONS IT MUST FURTHER BE ACKNOWLEDGED THAT THE UNITED KINGDOM LEGISLATURE IN NO WAY PREDETERMINED THE CONTENT OF THE SCHEMES , WHICH IS FREELY DETERMINED BY BT .
20 IN THOSE CIRCUMSTANCES , THE SCHEMES REFERRED TO BY THE CONTESTED DECISION MUST BE REGARDED AS AN INTEGRAL PART OF BT ' S BUSINESS ACTIVITY . THE SUBMISSION TO THE EFFECT THAT IT WAS NOT IN LAW OPEN TO THE COMMISSION TO APPRAISE THEM FOR THEIR COMPATIBILITY WITH ARTICLE 86 OF THE TREATY MUST THEREFORE BE REJECTED .

2 . THE QUESTION WHETHER THE COMMUNITY RULES ON COMPETITION ARE APPLICABLE IN VIEW OF THE MONOPOLY HELD BY BT
46 FIRST , IT SHOULD BE BORNE IN MIND THAT , ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , THE STATEMENT OF THE REASONS ON WHICH A DECISION HAVING ADVERSE EFFECT IS BASED MUST ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DECISION AND TO PROVIDE THE PARTY CONCERNED WITH DETAILS SUFFICIENT TO ALLOW THAT PARTY TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL-FOUNDED . THE REQUIREMENT OF A STATEMENT OF REASONS MUST BE VIEWED IN THE CONTEXT OF THE CIRCUMSTANCES OF THE CASE , AND IN PARTICULAR THE CONTENT OF THE MEASURE IN QUESTION , THE NATURE OF THE REASONS RELIED ON AND THE INTEREST WHICH ADDRESSEES , OR OTHER PERSONS TO WHOM THE MEASURE IS OF DIRECT AND INDIVIDUAL CONCERN , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY , MAY HAVE IN OBTAINING EXPLANATIONS .