European Commission v Dimosia Epicheirisi Ilektrismou AE (DEI).
Date: 2014-07-17
41. It should be noted that, according to the case-law, a Member State is in breach of the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights, merely by exercising the preferential rights conferred upon it, is led to abuse its dominant position or when those rights are liable to create a situation in which that undertaking is led to commit such abuses (see, to that effect, the judgments in Connect Austria , EU:C:2003:297, paragraph 80, and MOTOE , EU:C:2008:376, paragraph 49 and the case‑law cited). In that respect, it is not necessary that any abuse should actually occur (judgments in GB-Inno-BM , EU:C:1991:474, paragraphs 23 to 25; Raso and Others , EU:C:1998:54, paragraph 31; and MOTOE , EU:C:2008:376, paragraph 49).
42. Thus, a Member State will be in breach of those provisions where a measure imputable to a Member State gives rise to a risk of an abuse of a dominant position (see the judgment in MOTOE , EU:C:2008:376, paragraph 50 and the case-law cited).
43. It is clear from the Court’s case-law that a system of undistorted competition, such as that provided for by the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (see the judgments in GB-Inno-BM , EU:C:1991:474, paragraph 25; MOTOE , EU:C:2008:376, paragraph 51; and Connect Austria , EU:C:2003:297, paragraph 83 and case‑law cited).
44. It follows that if inequality of opportunity between economic operators, and thus distorted competition, is the result of a State measure, such a measure constitutes an infringement of Article 86(1) EC read together with Article 82 EC (see the judgment in Connect Austria , EU:C:2003:297, paragraph 84).
45. The Court has moreover had occasion to state in that regard that, although the mere fact that a Member State has created a dominant position by the grant of exclusive rights is not as such incompatible with Article 82 EC, the EC Treaty none the less requires the Member States not to adopt or maintain in force any measure which might deprive that provision of its effectiveness (judgments in ERT , C‑260/89, EU:C:1991:254, paragraph 35; Corbeau , C‑320/91, EU:C:1993:198, paragraph 11; and Deutsche Post , C‑147/97 and C‑148/97, EU:C:2000:74, paragraph 39).
59. It is sufficient that the measure at issue creates a situation in which a public undertaking or an undertaking on which the State has conferred special or exclusive rights is led to abuse its dominant position (see, to that effect, the judgment in Connect Austria , EU:C:2003:297, paragraph 80 and case-law cited).
66. It is settled case-law that practices by an undertaking in a dominant position which tend to extend that position to a neighbouring but separate market by distorting competition amount to abuse of a dominant position within the meaning of Article 82 EC (see, to that effect, the judgment in Connect Austria , EU:C:2003:297, paragraphs 81 and 82 and case-law cited).
67. Similarly, the Court has previously stated that the extension of a dominant position, without any objective justification, is prohibited ‘as such’ by Article 86(1) EC in conjunction with Article 82 EC, where that extension results from a State measure. As competition may not be eliminated in that manner, it may not be distorted either (see, to that effect, the judgments in Spain and Others  v Commission , C‑271/90, C‑281/90 and C‑289/90, EU:C:1992:440, paragraph 36, and GB‑Inno‑BM , EU:C:1991:474, paragraphs 21, 23 and 24).
68. It is therefore not necessary, as claimed by DEI, for the Commission to show, in every case, that the undertaking concerned enjoys a monopoly or that the State measure at issue awards it exclusive or special rights over a neighbouring and separate market, or that it has any regulatory powers. Having regard to the case‑law referred to in paragraphs 41 to 44 above, the claim that there is an obligation on the Commission to show the impact of the infringement of the combined provisions of Articles 86(1) EC and 82 EC on the interests of consumers must also be rejected; Article 82 EC may moreover cover practices which are harmful as a result of their impact on an effective competition structure (see, to that effect, the judgment in Europemballage and Continental Can  v Commission , 6/72, EU:C:1973:22, paragraph 26). Finally, DEI’s argument that the Commission defined lignite as an essential facility is based on a false premiss, as the Commission only referred to DEI’s situation of ‘quasi-monopoly’ on the electricity wholesale market.