Municipality of Almelo and others v NV Energiebedrijf Ijsselmij.
Date: 1994-04-27
9 For its part the local distributor requires the end-user to enter into an exclusive purchasing obligation.
14 Following the lodging of the complaint in 1988, the Commission adopted a decision of 16 January 1991 relating to a proceeding under Article 85 of the EEC Treaty (IV/37.732 - IJsselcentrale (IJC) and others, OJ 1991 L 28, p. 32, hereinafter "the 1991 Decision"). The Commission states in Article 1 of that decision that Article 21 of the OVS
"constitutes an infringement of Article 85(1) of the Treaty in so far as it has as its object or effect the restriction of imports by private industrial consumers and of exports of production outside the field of public supply, by distributors and private industrial consumers, including autogenerators".
15 The Commission observes that the ban on imports at the level of non-public distribution, that is to say, the ban imposed on consumers in their contracts with local distributors, cannot be justified under Article 90(2) of the Treaty.
16 Although the Commission did not express a view in the 1991 Decision on the ban on imports resulting from Article 2(2) of the general conditions, it notes that
"these provisions of the General Terms and Conditions together with Article 21 form a whole, operating both among generators and ultimately between them and their industrial consumers".
21 In order to answer the first question, it should be noted that, as the Court held in its judgment in Case 61/65 Vaassen-Goebbels [1966] ECR 377, the concept of a court or tribunal within the meaning of Article 177 of the Treaty necessarily implies that such a forum should satisfy a number of criteria; it must be established by law, have a permanent existence, exercise binding jurisdiction, be bound by rules of adversary procedure and apply the rule of law. The Court has extended those criteria, pointing out in particular the need for the court or tribunal in question to be independent (judgments in Case 14/86 Pretore di Salò [1987] ECR 2545, paragraph 7, Case 338/85 Pardini [1988] ECR 2041, paragraph 9 and Case C-24/92 Corbiau [1993] ECR I-1278).
22 With regard to arbitration, the Court held in its judgment in Case 102/81 Nordsee [1982] ECR 1095, paragraph 14, that the concept of a court or tribunal within the meaning of Article 177 of the Treaty covers an ordinary court reviewing an arbitration award in the case of an appeal or objection, in proceedings for leave to issue execution or by any other method of recourse available under the relevant national legislation.
27 First of all, as far as the scope of Article 37 is concerned, it is to be recalled that it follows both from the position which that article occupies in the chapter on the elimination of quantitative restrictions and from the use of the words "imports" and "exports" in the second indent of paragraph (1) and the word "products" in paragraphs (3) and (4) that it covers trade in goods (see the judgments in Case 155/73 Sacchi [1974] ECR 409, paragraph 10, and Joined Cases C-46/90 and C-93/91 Lagauche and Evrard [1993] ECR I-5267, paragraph 33).
28 In Community law, and indeed in the national laws of the Member States, it is accepted that electricity constitutes a good within the meaning of Article 30 of the Treaty. Electricity is thus regarded as a good under the Community' s tariff nomenclature (code CN 27.16). Furthermore, in its judgment in Case 6/64 Costa v ENEL [1964] ECR 1141 the Court accepted that electricity may fall within the scope of Article 37 of the Treaty.
29 As regards the situations covered by Article 37, it is to be recalled that the provision relates to State monopolies of a commercial character. In its judgment in Case 30/87 Bodson [1988] ECR 2479, at paragraph 13, the Court held that Article 37 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.
30 Where contracts are concluded in such circumstances, the Court has held that no agreement exists for the purposes of Article 85 if the effect on trade flows from concession contracts concluded between public authorities and undertakings entrusted with the operation of a public service (judgment in Bodson, cited above, paragraph 18).
37 In order to determine whether such an agreement has an appreciable effect on trade between Member States, it is necessary, as the Court observed in its judgments in Case 23/67 Brasserie de Haecht [1967] ECR 525 and Case C-234/89 Delimitis [1991] ECR I-935, to assess it in its economic and legal context and to take account of any cumulative effect resulting from the existence of other exclusivity agreements.
40 Article 86 of the Treaty prohibits abusive practices resulting from the exploitation by one or more undertakings of a dominant position on the common market or in a substantial part of it in so far as those practices may affect trade between Member States (judgment in Bodson, cited above, paragraph 22).
41 Although the conclusion cannot automatically be drawn that a dominant position is held in a substantial part of the common market by an undertaking which, like IJM, has a non-exclusive concession covering only part of the territory of a Member State, a different assessment must apply where that undertaking belongs to a group of undertakings which collectively occupy a dominant position.
42 However, in order for such a collective dominant position to exist, the undertakings in the group must be linked in such a way that they adopt the same conduct on the market (see the judgment in Bodson, cited above).
43 It is for the national court to consider whether there exist between the regional electricity distributors in the Netherlands links which are sufficiently strong for there to be a collective dominant position in a substantial part of the common market.
44 On the question of abuse, the Court has held that where an undertaking having a dominant position on the market ties buyers - even if at their request - by an obligation or promise on their part to obtain all or most of their requirements exclusively from that undertaking, this constitutes an abuse of the dominant position (see the judgments in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 89, and Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 149).
46 Article 90(2) of the Treaty provides that undertakings entrusted with the operation of services of general economic interest may be exempted from the application of the competition rules contained in the Treaty in so far as it is necessary to impose restrictions on competition, or even to exclude all competition, from other economic operators in order to ensure the performance of the particular tasks assigned to them (see the judgment in Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 14).
47 As regards the question whether an undertaking such as IJM has been entrusted with the operation of services of general interest, it should be borne in mind that it has been given the task, through the grant of a non-exclusive concession governed by public law, of ensuring the supply of electricity in part of the national territory.
48 Such an undertaking must ensure that throughout the territory in respect of which the concession is granted, all consumers, whether local distributors or end-users, receive uninterrupted supplies of electricity 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.
49 Restrictions on competition from other economic operators must be allowed in so far as they are necessary in order to enable the undertaking entrusted with such a task of general interest to perform it. In that regard, it is necessary to take into consideration the economic conditions in which the undertaking operates, in particular the costs which it has to bear and the legislation, particularly concerning the environment, to which it is subject.