Altair Chimica SpA v ENEL Distribuzione SpA.
Date: 2003-09-11
24. It must be recalled that according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, in particular, Joined Cases C-115/97 to C-117/97  Brentjens '  [1999] ECR I-6025, paragraph 38).
25. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice.  It is the Court ' s duty to ensure that the possibility to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (see, in particular, the orders in Joined Cases C-128/97 and C-137/97  Testa and Modesti  [1998] ECR I-2181, paragraph 6, and Case C-325/98  Anssens  [1999] ECR I-2969, paragraph 8).
30. As regards, first, the interpretation of the articles of the Treaty, it must be recalled that Articles 81 and 82 EC apply only to anti-competitive conduct engaged in by undertakings on their own initiative.  If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 81 and 82 EC do not apply.  In such a situation the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (Joined Cases C-359/95 P and C-379/95 P  Commission and France  v  Ladbroke Racing  [1997] ECR I-6265, paragraph 33).
31. Articles 81 and 82 EC may apply, however, if it is found that the national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition ( Commission and France  v  Ladbroke Racing , cited above, paragraph 34).
33. Moreover, that classification is in accordance with that accepted by the Court in Case 73/79  Commission  v  Italy  [1980] ECR 1533, paragraph 22, concerning a surcharge on the price of sugar also introduced by the CIP and paid to an equalisation fund for redistribution to the Italian sugar industry.
41. As regards, third, the interpretation of Recommendation 81/924, it must be recalled that, according to the case-law of the Court, even if recommendations are not intended to produce binding effects and are not capable of creating rights that individuals can rely on before a national court they are not without any legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or w here they are designed to supplement binding Community provisions (Case C-322/88  Grimaldi  [1989] ECR 4407, paragraphs 7, 16 and 18).