Kingdom of Spain, Kingdom of Belgium and Italian Republic v Commission of the European Communities.
Date: 1992-11-17
12 That argument must be rejected. As the Court held in its judgment in Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 14, inasmuch as it makes it possible for the Commission to adopt directives, Article 90(3) of the Treaty empowers it to lay down general rules specifying the obligations arising from the Treaty which are binding on the Member States as regards the undertakings referred to in Article 90(1) and (2). The Commission' s power is not, therefore, limited to mere surveillance to ensure application of the existing Commission rules.
14 In that regard, it need merely be borne in mind that purpose of the powers conferred on the Commission by Article 90(3) is different from and more specific than that of the powers attributed to the Council by Article 100, on the one hand, and by Article 87, on the other, and that the possibility of rules being issued by the Council by virtue of the general power vested in it by other articles of the Treaty, involving provisions which touch upon the matters specific to Article 90, does not impede the exercise of the powers which the latter article confers on the Commission (France v Commission, cited above, paragraphs 25 and 26).
18 It must be borne in mind that, in its judgment in France v Commission, cited above, paragraph 21, the Court held that the supervisory power conferred on the Commission includes the possibility of specifying, pursuant to Article 90(3), obligations arising under the Treaty and that the extent of that power therefore depends on the scope of the rules with which compliance is to be ensured.
20 The Court has consistently held (see in particular the judgment in Case 279/80 Webb [1981] ECR 3305, paragraph 13) that Article 59 imposes an obligation to achieve a precise result, the fulfilment of which had to be made easier by, but not dependent upon, the implementation of a programme of progressive measures. It follows that the provisions of Article 59 of the Treaty became unconditional on the expiry of the transitional period (judgment in Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 24).
22 As far as Article 86 of the Treaty is concerned, it is sufficient to note that, contrary to the view of the Belgian Government, Directive 90/388 does not determine exhaustively the methods available to the Member States for the purpose of discharging their obligations under that provision. Thus, Article 7 of Directive 90/388, which at the hearing the Belgian Government took as an example of the constraints imposed on the Member States, merely prescribes, in accordance with the requirements of the system of undistorted competition envisaged by Article 3(f) of the Treaty (see in particular the judgment in France v Commission, cited above, paragraphs 51 and 52), that the body vested with the powers to authorize, control and monitor telecommunications services be independent of the telecommunications organizations. That provision lays down a rule of law and leaves the national authorities a wide choice as to the methods of implementing it. Consequently, the argument that the Commission exceeded its powers under Article 90(3) by laying down too rigid a framework for the elimination of infringements of Article 86 must likewise be rejected.
24 In its judgment in France v Commission, cited above, paragraph 55, the Court pointed out that Article 90 of the Treaty confers powers on the Commission only in relation to State measures and that anti-competitive conduct engaged in by undertakings acting on their own initiative can be called in question only by means of individual decisions adopted under Articles 85 and 86 of the Treaty.
29 In its judgment in France v Commission, cited above, paragraph 45, the Court held, in relation to the "terminal equipment" directive, that a directive must be regarded as not giving an adequate statement of the reasons on which it is based if, although providing for the withdrawal of special rights in a particular sector, it does not state either in its provisions or in its preamble either the type of special rights which are actually involved or in what respect the existence of such rights is contrary to the various provisions of the Treaty.
35 The Court has held that the mere fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not as such incompatible with Article 86 (see, in particular, the judgment in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 16).
36 However, the Court has also held that the extension of the monopoly on the establishment and operation of the telephone network to the market in telephone equipment, without any objective justification, was prohibited as such by Article 86, or by Article 90(1) in conjunction with Article 86, where that extension resulted from a State measure, thus leading to the elimination of competition (judgment in Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 24). The same conclusion necessarily follows where the monopoly on establishment and operation extends to the market in telecommunications services.