Keywords
Summary

Keywords

1. Preliminary rulings — Admissibility of references — Need to provide the Court with sufficient details of the factual and legal context — (Art. 234 EC; Statute of the Court of Justice, Art. 23)

2. Competition — Community rules — Scope ratione materiae — Anti-competitive conduct — Meaning — Conduct of an undertaking required by national law and limited to recovery procedures on behalf of the State of surcharges constituting tax measures — Excluded — (Arts 81 and 82 EC)

3. Acts of the institutions — Recommendations — Direct effect — Excluded — Consideration by the national court — Obligation — Scope — (Art. 249, fifth subpara., EC)

4. Industry — Tariff structures for electricity — Recommendation 81/924 — Scope ratione materiae — Surcharges on the supply of electricity — Excluded — (Council Recommendation 81/924)

Summary

1. 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. 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 paras 24-25

2. Articles 81 and 82 EC apply only to anti-competitive conduct engaged in by undertakings on their own initiative, they do not apply 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. In such a situation the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings. 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.

Therefore, when an undertaking must be considered to be acting as a tax collector that does not constitute anti-competitive conduct. That is the case where the undertaking is not acting as an economic operator and does not have any margin of discretion, but merely collects, on behalf of the State, those surcharges constituting tax measures which fall exclusively within the competence of the State, such as the surcharge for nuclear charges and the surcharge for new plants using renewable energy and other similar sources imposed on the supply of electricity by Italian law.

see paras 30-35

3. 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 where they are designed to supplement binding Community provisions.

see para. 41

4. It is clear, both from its title and from the principles that it lays down, that Recommendation 81/924 on electricity tariff structures in the Community applies only to the structure of the electricity tariff. It seeks to harmonise the principles forming the basis of the tariff structures in the different Member States and to improve transparency and public knowledge of electricity prices. Whilst the recommendation gives indications as to the different costs that the prices may include there is nothing in it to suggest that it can be interpreted as applying to the introduction of a tax on electricity consumption. Therefore, that recommendation does not prevent a Member State from levying surcharges on the supply of electricity.

see paras 42-43