Kingdom of the Netherlands, Koninklijke PTT Nederland NV and PTT Post BV v Commission of the European Communities.
Date: 1992-02-12
25 Article 90(3) 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 two different legal instruments, namely directives and decisions.
26 With regard to directives, the Court declared, in the judgment in Case C-202/88 France v Commission, previously cited, 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).
27 The powers which Article 90(3) authorizes the Commission to exercise by means of decisions 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 the particular task assigned to an undertaking imposes upon it if it is entrusted with the operation of services of general economic interest.
28 If the power to adopt decisions, conferred on the Commission by Article 90(3), is not to be deprived of all practical effect, the Commission must be 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 the decision is addressed must adopt in order to comply with its obligations under Community law.
34 To the extent to which that argument represents a claim that the Commission has misused its power, it should be recalled, as has already been stated, that, like Article 93 of the Treaty, which envisages a constant review by the Commission of State aids, Article 90(3) allows it to make an assessment, by way of decision, of the compatibility with the Treaty of measures enacted or maintained in force by States as regards the undertakings referred to in Article 90(1).
35 Such a power of assessment on the one hand in no way encroaches upon the powers which Article 169 of the Treaty confers upon the Court; on the other hand it does not prejudice the rights of the defence which that provision guarantees for Member States.
36 In fact, as regards the first aspect, as the Court recognized in the judgment in Case 226/87 Commission v Greece [1988] ECR 3611, the Member State to which the Commission decision is addressed may bring before the Court an application for a declaration that the decision is void, whilst on the other hand the decision may form the basis for an application under Article 169 of the Treaty for failure to fulfil an obligation if the Member State to which it is addressed does not comply with it.
37 As regards the argument with regard to respect for the rights of the defence of the Member State addressed, it must be pointed out that the mere fact that Article 90(3) does not, unlike Article 93, provide for a procedure ensuring that these rights are observed is no reason for denying the Commission the power to adopt the contested decision; as the Court has consistently held, it is clear that even in the absence of express provisions, the general principle of respect for the rights of the defence is one which every Community institution must observe in adopting a measure capable of adversely affecting the addressee (see, for example, the judgment in Case C-301/87 France v Commission [1990] ECR I-307).
44 As regards the plea in law relating to an infringement of the rights of the defence in the case of the Kingdom of the Netherlands, it must be stressed that the Court has consistently held that respect for the rights of the defence, in all proceedings which are initiated against a person and which are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed even in the absence of any specific rules (see, for example, the judgment in Case C-301/87 France v Commission, previously cited).
45 That principle requires that, before the decision under Article 90(3) of the Treaty is adopted, the Member State in question must receive an exact and complete statement of the objections which the Commission intends to raise against it.