Keywords
Summary

Keywords

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1. Preliminary rulings ° Referral to the Court ° National court or tribunal within the meaning of Article 177 of the Treaty ° Definition ° Court determining an appeal from an arbitration award according to what appears fair and reasonable

(EEC Treaty, Arts 5 and 177)

2. State monopolies of a commercial character ° Definition ° Control by national authorities of patterns of trade between Member States ° Grant to a regional distributor of a concession for the distribution of electricity ° Exclusive purchasing clause agreed between regional and local distributors ° Excluded

(EEC Treaty, Art. 37)

3. Competition ° Undertakings entrusted with the operation of services of general economic interest ° Subject to the rules contained in the Treaty ° Limits ° Distribution of electricity ° Regional distributor imposing on local distributors an exclusive purchasing clause excluding all imports ° Whether permissible ° Condition

(EEC Treaty, Arts 85(1), 86 and 90(2))

Summary

1. A national court which, in a case provided for by law, determines an appeal against an arbitration award must be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, even if under the terms of the arbitration agreement made between the parties that court must give judgment according to what appears fair and reasonable. In accordance with the principles of the primacy of Community law and of its uniform application, in conjunction with Article 5 of the Treaty, such a court must observe the rules of Community law, in particular those relating to competition, even where it gives judgment having regard to fairness.

2. Article 37 of the Treaty, relating to State monopolies of a commercial character, applies to situations in which the national authorities are in a position to control, direct or appreciably influence trade between Member States through a body established for that purpose or a delegated monopoly.

Where a regional electricity distributor holding a non-exclusive concession for the distribution of electricity in the territory covered by the concession prohibits local electricity distributors, by means of an exclusive purchasing clause, from importing electricity, the situation is covered not by that article but by Article 85 of the Treaty. The contracts in question were concluded not between the public authorities and the regional distributor but between the latter and the local distributors. Those contracts determine the conditions governing the supply of electric power and do not have the effect of transferring to the local distributors the public service concession granted to the regional undertaking, since those conditions, in particular the exclusive purchasing clause, stem from the contracts made between the distributors and are not inherent in the territorial concession granted by the public authorities.

3. Article 85 of the Treaty precludes the application, by a regional electricity distributor, of an exclusive purchasing clause contained in its general conditions of sale which prohibits a local distributor from importing electricity for public supply purposes and which, having regard to its economic and legal context, namely the existence of other exclusivity agreements of a similar kind and their cumulative effect, affects trade between Member States.

Article 86 of the Treaty likewise precludes the application of such a clause where the undertaking in question belongs to a group of undertakings occupying a collective dominant position in a substantial part of the common market.

Under Article 90(2) of the Treaty, however, the application of the clause in question is not caught by that twofold prohibition, in so far as the restriction of competition which it brings about is necessary in order to enable the undertaking to perform its task of general interest. In that regard, the national court, whose task it is to decide whether such necessity exists, must take into consideration the economic conditions in which the undertaking is forced to operate by virtue of the constraints imposed on it, in particular the costs which it has to bear and the legislation, particularly concerning the environment, to which it is subject.