Keywords
Summary

Keywords

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1. Competition - Public undertakings - Undertakings to which Member States grant special or exclusive rights - Undertakings entrusted with the operation of services of general economic interest - Powers of the Commission - Adoption of decisions defining specifically the obligations of Member States - Permissibility

(EEC Treaty, Art. 90(3))

2. Competition - Public undertakings - Supervision of conduct of Member States as regards public undertakings - Rights of the defence of Member States and undertakings - Scope

(EEC Treaty, Art. 90(3))

Summary

1. Article 90(3) of the Treaty requires the Commission to ensure that Member States comply with their obligations with regard to public undertakings and undertakings entrusted with the operation of services of general economic interest and expressly empowers it to take action by means of directives and decisions.

A Commission decision may be 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 particular task assigned to an undertaking entrusted with the operation of services of general economic interest.

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.

Such powers are also essential to allow the Commission to discharge the duty imposed upon it by Articles 85 to 93 of the Treaty to ensure the application of the rules on competition and to contribute to the institution of a system of undistorted competition in the common market. It would be impossible for the Commission to discharge its duty completely if it could impose penalties only in respect of anti-competitive conduct of undertakings and could not take action directly, on the basis of Article 90(3) of the Treaty, against Member States enacting or maintaining in force, as regards public undertakings and undertakings to which they grant special or exclusive rights, measures having the same anti-competitive effect.

Such a power does not encroach upon the powers which Article 169 of the Treaty confers upon the Court.

2. Respect for the rights of the defence, in all proceedings initiated against a person 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. As applied to the procedure of supervision by the Commission of the conduct of Member States with regard to undertakings, that principle requires that, before a 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 and that it should be placed in a position in which it may make known its views on the observations submitted by interested third parties. An undertaking which is the direct beneficiary of the State measure at issue and which is expressly named therein is entitled to be heard prior to the adoption of a decision which relates expressly to it and the economic consequences of which will directly affect it.