In Case C-393/92, the
subject-matter of a request addressed to the Court, pursuant to Article 177 of the EEC Treaty , by the Gerechtshof te Arnhem (Netherlands) and seeking, in the pending dispute before that court between
and Others and
Energiebedrijf IJsselmij NV,
a preliminary ruling on the interpretation of Articles 37 , 85 , 86 , 90 and 177 of the EEC Treaty,
composed of MM. O. Due, President, GF Mancini, JC Moitinho de Almeida and M. Díez de Velasco, Presidents of Chambers, CN Kakouris, R. Joliet, FA Schockweiler (rapporteur), GC Rodríguez Iglesias, M. Zuleeg, PJG Kapteyn and JL Murray , judges,
Advocate General: MM Darmon
Registrar: MH von Holstein, Deputy Registrar
considering the written observations submitted:
– for the municipality of Almelo and others, by CM Vinken-Geijselaers, lawyer at the bar of s’ Hertogenbosch,
– for NV Energiebedrijf IJsselmij, by Mes BH ter Kuile, lawyer at The Hague Bar, and EH Pijnacker Hordijk, lawyer at the Amsterdam Bar,
– for the Government of the Hellenic Republic, by MV Kontalaimos, Deputy Legal Adviser to the Legal Council of the State, acting as Agent,
– for the Government of the French Republic, by MP Pouzoulet, Deputy Director at the Directorate of Legal Affairs at the Ministry of Foreign Affairs, acting as Agent,
– for the Government of the Kingdom of the Netherlands, by MA Bos, Legal Adviser at the Ministry of Foreign Affairs, as Agent,
– for the Commission of the Economic Communities European, by MBJ Drijber, member of the Legal Service, acting as Agent,
having regard to the Report for the Hearing,
having heard the oral observations of the Municipality of Almelo and Others, of NV Energiebedrijf IJsselmij, of the Hellenic Government, of the Netherlands Government, represented by Mr. JW de Zwaan, Deputy Legal Adviser at the Ministry of Foreign Affairs, as Agent, and of the Commission, at the hearing of November 23, 1993,
having heard the Advocate General in his conclusions at the hearing of February 8, 1994,
delivers the present
1 By arbitration judgment of 3 November 1992, which was received by the Court on the following 10 November, the Gerechtshof te Arnhem referred, under Article 177 of the EEC Treaty, two questions for a preliminary ruling relating to the interpretation of Articles 37, 85, 86, 90 and 177 of the Treaty.
2 These questions were raised in the context of a dispute between the municipality of Almelo and other local distributors of electrical energy and NV Energiebedrijf IJsselmij (hereinafter “IJM”), a regional electrical energy distribution company , about an additional equalization that the latter charged to local distributors.
3 In the Netherlands, electrical energy is produced by four undertakings, shareholders of a joint venture, NV Samenwerkende Elektriciteits-Produktiebedrijven (hereinafter “SEP”), which is responsible for structuring the collaboration between the producers.
4 The distribution of electrical energy is organized at regional and local level: in the territory granted to them, the regional distribution companies supply the local distribution companies belonging to the municipalities and, where applicable, certain end consumers. The local distribution companies ensure the supply to customers in the municipalities. The production and distribution companies belong, directly or indirectly, to the provinces and municipalities.
5 IJM was granted, by a royal decree of 1918, a non-exclusive concession to ensure the distribution of electricity in the concessionary territory. IJM supplies electricity to local distributors, in particular the municipality of Almelo and the other plaintiffs in the main proceedings, and also provides direct supply to consumers in rural areas.
6 During the years 1985 to 1988, the importation of electricity was prohibited for local distributors by virtue of an exclusive purchase clause appearing in the general conditions for the delivery of electrical energy to municipalities having their own distribution company on the site. the territory of NV Electriciteits-Maatschappij IJsselcentrale (former name of IJM, hereinafter “IJC”). Article 2, paragraph 2, of these general conditions provides, in fact, that the municipality undertakes
“to obtain electrical energy exclusively from IJC for the distribution of electricity on its territory and not to use this energy only for its own use, or for deliveries to third parties,
7 The general conditions imposed by IJM are aligned with the standard general delivery conditions established by the association of operators of electricity distribution centers in the Netherlands.
8 This exclusive purchase clause from the local distributor corresponds to an exclusive sales commitment on the part of the regional distribution company.
9 The local distributor, for his part, imposes an exclusive purchase obligation on the final consumer.
10 At the level of relations between regional producers and distributors, a ban on the importation of electrical energy is also stipulated (article 21 of the Overeenkomst van Samenwerking – cooperation agreement – between the electricity producing companies and SEP of 22 March 1986, which replaced the general SEP convention of 1971, hereinafter “OVS agreement”).
11 From 1 January 1985, IJC invoiced local distribution companies for an additional equalization, that is to say an increase intended to compensate for the difference between the higher cost of distributing electricity to consumers in the rural self-insured and the lower cost of distribution to consumers in urban areas by local distributors.
12 In 1988, local distribution companies lodged a complaint with the Commission against IJC based on three points:
– the explicit ban on imports contained in the 1971 SEP general convention and in the OVS agreement;
– the exclusive purchase obligation resulting from the agreements concluded with IJC;
– the right of IJC to fix prices unilaterally and to impose the equalization supplement.
13 The Law of 16 November 1989 regulating the production, import, transport and sale of electricity (Staatsblad 535) reformed the system for the distribution of electric energy in the Netherlands. By virtue of article 34 of this law and of a ministerial decree of March 20, 1990 (Staatscourant of March 22, 1990), SEP is the only one able to import electricity intended for public distribution, unless it does not. is electricity with a voltage of less than 500 V.
14 Following the 1988 complaint, the Commission adopted the decision of 16 January 1991 relating to a procedure for the application of Article 85 of the EEC Treaty [IV / 32.732 – IJsselcentrale (IJC) and others, OJ L 28, p. 32, hereinafter “1991 decision”]. In Article 1 of this decision, the Commission finds that Article 21 of the OVS Agreement
“constitutes an infringement of Article 85 (1) of the EEC Treaty, in so far as the said Article 21 has the effect of ‘impede imports by private industrial consumers and exports of production outside the domain of public supply by distribution companies and private industrial consumers, and in particular autoproducers “.
15 The Commission noted that the import ban at the level of non-public distribution, that is to say that imposed on the consumer in his contractual relations with the local distributor, cannot be justified under Article 90, paragraph 2, of the Treaty.
16 In the 1991 decision, the Commission did not take an explicit position on the import ban resulting from Article 2 (2) of the general conditions while noting that
“these clauses of the general conditions and Article 21 (of the OVS agreement) form a whole which applies both mutually between producers and, finally, through the intermediary of distribution companies, between producers and private industrial consumers “.
17 The Commission refrained from commenting on the application of Article 90 (2) of the Treaty with regard to the import ban which is valid, under Article 21 of the OVS Agreement, for public electricity distribution; indeed, the ban on production and distribution companies importing electricity for public supply without going through SEP now falls, according to the Commission, under Article 34 of the Law of 1989 and a its position would prejudge the question of the compatibility of this law with the Treaty. The Commission has not ruled on the legality of the equalization supplement either.
18 The action brought by the complainants against the 1991 decision was dismissed by judgment of the Court of First Instance of 18 November 1992, Rendo and others v Commission (T-16/91, ECR II-2417). The appeal brought against this judgment by the complainant undertakings is pending before the Court (C-19/93 P, Rendo and others v Commission).
19 Before the referral to the Commission, the local distributors had, in application of the general conditions, initiated an arbitration procedure with a view to obtaining a decision on the legality of the additional equalization imposed by IJM.
20 Against the arbitration award rejecting the position of the local distributors, the latter brought an appeal before the Gerechtshof te Arnhem, ruling as amiable composer (als goede mannen naar billijkheid). Considering that it is plausible that IJM could not have imposed the additional equalization without the import ban, the national court asked the Court the following questions for a preliminary ruling:
“1) A national court, which, in a case provided for by law, ruling on an appeal against an arbitration award, should it be considered as a national court within the meaning of Article 177 of the EEC Treaty, when by virtue of the arbitration agreement concluded between the parties, this court must rule as amicable composer?
and, in the event of an affirmative answer to question 1:
2) How should Articles 37 and / or 85 and / or 86 and / or 90 of the EEC Treaty be interpreted in relation to a ban on the import of electrical energy intended for to the public distribution, contained, from 1985 to 1988 inclusive, in the general conditions of a regional electricity distribution company, possibly combined with an import ban contained in an agreement between the companies producing electricity in the Member State concerned? ”
On the first question
21 To answer the first question, it should be recalled that, in the judgment of 30 June 1966, Vaassen-Goebbels (61/65, ECR p. 377), the Court circumscribed the concept of jurisdiction within the meaning of Article 177 of the Treaty, by setting out a number of criteria that such a body must fulfill, such as legal origin, permanence, compulsory jurisdiction, adversarial proceedings and the application of the rule of law. The Court supplemented these criteria by emphasizing, in particular, the need for independence to which any judicial body must respond (judgments of 11 June 1987, Pretore di Salò, 14/86, ECR 2545, point 7, of 21 April 1988, Pardini, 338/85, Rec. p. 2041, point 9, and of March 30, 1993, Corbiau, C-24/92, Rec. p. I-1277).
22 As regards arbitration, the Court held, in the judgment of 23 March 1982, Nordsee Deutsche Hochseefischerei (102/81, ECR 1095, paragraph 14), that the concept of jurisdiction falls within meaning of article 177 of the treaty, the ordinary courts, exercising control over an arbitration award, in the event of a referral in appeal, opposition, for exequatur, or by any other means of recourse open by the applicable national legislation.
23 That interpretation given by the Court is not affected by the fact that a court, such as the Gerechtshof, rules, by virtue of the arbitration agreement concluded between the parties, on an amicable basis. In fact, by virtue of the principles of the primacy and uniformity of application of Community law, in combination with Article 5 of the Treaty, a court of a Member State is seised, in accordance with national law, of a. appeal of an arbitration award, even if it rules on an equitable basis, is bound to respect the rules of Community law, in particular those in matters of competition.
24 The answer to the first question must therefore be that a national court, which, in a case provided for by law, rules on an appeal against an arbitral award, must be regarded as a national court within the meaning of article 177 of the treaty, even when, by virtue of the arbitration agreement concluded between the parties, this court must rule as amiable compositeur.
On the second question
25 By the second question, the national court asks, in essence, whether Articles 37 and / or 85 and / or 86 and / or 90 of the Treaty preclude application by a regional electric energy distribution company. , an exclusive purchase clause, appearing in the general conditions of sale, which prohibits a local distributor from importing electricity intended for public distribution.
26 In order to answer that question, it is necessary to examine whether an import ban imposed on a local distributor of electricity by virtue of a contract concluded with the regional distributor is contrary to Articles 37, 85 or 86 of the treaty and to what extent exemptions from the prohibitions provided for in these provisions are permitted under Article 90,
With regard to Article 37 of the Treaty
27 As regards first the scope of this article, it should be remembered that it follows, both from its place in the chapter on the elimination of quantitative restrictions and from the use of the words “import” and “export” in the second subparagraph of paragraph 1 and of the word “product” in paragraphs 3 and 4, that it refers to trade in goods (see judgments of April 30, 1974, Sacchi, 155/73 , Rec. P. 409, paragraph 10, and judgment of 27 October 1993, Lagauche and Evrard, C-46/90 and C-93/91, Rec. P. I-5267, paragraph 33).
28 However, it is not disputed in Community law, or indeed in national law, that electricity constitutes a good within the meaning of Article 30 of the Treaty. Thus, electricity is considered as a commodity within the framework of the tariff nomenclature of the Community (CN code 27.16). Furthermore, the Court recognized, in the judgment of 15 July 1964, Costa (6/64, ECR p. 1141), that electricity may come within the scope of Article 37 of the Treaty.
29 Next, as regards the purpose of Article 37, it should be recalled that that provision relates to national monopolies of a commercial character. In the judgment of 4 May 1988, Bodson (30/87, ECR 2479, paragraph 13), the Court held that Article 37 presupposes a situation in which the national authorities are in a position to control or direct the authorities. exchanges between Member States, or to influence them appreciably, by means of a body set up for this purpose or of a delegated monopoly.
30 In the event that contracts are concluded within such a framework, the Court has held that the existence of an agreement within the meaning of Article 85 is excluded, if the effect on trade results from a contract of. concession concluded between the public authority and undertakings responsible for carrying out a public service (Bodson judgment, paragraph 18, cited above).
31 In that regard, it must first be observed that IJM was not vested with an exclusive concession conferring on it a monopoly for the supply of electricity to the concessionary territory. It should then be noted that the contracts which gave rise to the dispute before the referring court were concluded not between the public authority and IJM, but between a regional distribution undertaking and local distributors. It should also be emphasized that these contracts determine the conditions under which IJM supplies electrical energy to local distributors and do not transfer to them the public service concession with which the regional company has been invested. The conditions of supply, in particular the exclusive purchase clause,
32 It follows that the situation which is the subject of the main proceedings is not covered by Article 37 of the Treaty.
Articles 85, 86 and 90 (2) of the Treaty
33 It is settled case-law that the conduct of an undertaking referred to in Article 90 (1) of the Treaty must be assessed in the light of the provisions of Articles 85, 86 and 90, paragraph 2 (see judgment of 18 June 1991, ERT, C-260/89, Rec. P. I-2925).
Article 85 of the Treaty
34 It should be borne in mind that Article 85 of the Treaty applies, by its very terms, to agreements between undertakings which have a restrictive effect on competition and affect trade between Member States.
35 As regards the existence of an agreement between undertakings, it should be noted, as the Commission found in the 1991 decision, that the system of distribution of electric energy in the Netherlands is based on a set of contractual legal relationships between producers, between regional producers and distributors, between regional and local distributors and, finally, between local distributors and final consumers. The exclusive purchase clause, at issue before the referring court, appears in the general conditions for the delivery of electrical energy by a regional distributor to local distributors and therefore constitutes a clause of an agreement within the meaning of Article 85 of the Treaty.
36 An agreement containing such a clause has a restrictive effect on competition, in so far as that clause prohibits the local distributor from obtaining supplies from other electricity suppliers.
37 In order to establish whether such an agreement appreciably affects trade between Member States, it is necessary, as the Court emphasized in the judgments of 12 December 1967, Brasserie de Haecht (23/67, ECR p. 525), and of February 28, 1991, Delimitis (C-234/89, Rec. p. I-935), examine this agreement in its economic and legal context and take into account a cumulative effect resulting, possibly, from the existence of other agreements exclusive.
38 In that regard, it appears from the file that the general conditions governing relations between the parties to the main proceedings, which contain the exclusivity clause, are aligned with standard general conditions established by the association of operators of electricity distribution centers. in the Nederlands.
39 The cumulative effect of these contractual relationships is such as to effect a partitioning of the national market, in so far as they have the effect of preventing local distributors established in the Netherlands from obtaining electricity from distributors or producers. other Member States.
As to Article 86 of the Treaty
40 Article 86 of the Treaty prohibits abusive practices resulting from the exploitation by one or more undertakings of a dominant position in the common market, or in a substantial part of it, to the extent that trade between Member States are likely to be affected by those practices (Bodson judgment, cited above, paragraph 22).
41 If one cannot automatically conclude that there is a dominant position in a substantial part of the common market in the case of an undertaking which, such as IJM, holds a non – exclusive concession on a part only of the territory of a Member State, this assessment must be modified in the event that this undertaking belongs to a group of
42 Such a collective dominant position requires, however, that the undertakings of the group in question be sufficiently linked to one another to adopt the same course of action on the market (see Bodson, cited above).
43 It is for the national court to examine whether, between the undertakings for the regional distribution of electricity in the Netherlands, there are sufficiently important links which imply a collective dominant position in a substantial part of the common market.
44 As regards the abusive practice, the Court has already ruled that the fact that a company in a dominant position binds – even at their request – buyers by an obligation or a promise to supply, for the all or a considerable part of their needs, exclusively with that undertaking, constitutes an abuse of this position (see judgments of 13 February 1979, Hoffmann-La Roche / Commission, 85/76, ECR 461, paragraph 89 , and of 3 July 1991, AKZO / Commission, C-62/86, Rec. p. I-3359, point 149).
45 As stated in paragraphs 38 and 39, the exclusive purchasing clause appearing in the agreements concluded by regional distribution undertakings with local distributors is liable to affect trade between Member States.
Article 90 (2) of the Treaty
46 Article 90 (2) of the Treaty provides that undertakings entrusted with the management of services of general economic interest may escape the rules of the Treaty on competition, to the extent that where restrictions on competition, or even the exclusion of all competition, on the part of other economic operators, are necessary to ensure the accomplishment of the particular mission which has been assigned to them (see judgment of 19 May 1993, Corbeau, C -320/91, Rec. P. I-2533, point 14).
47 As regards the question of whether an undertaking, such as IJM, has been entrusted with the management of services of general interest, it should be recalled that it has been granted, by a concession of rights non-exclusive public, the mission of ensuring the supply of electrical energy in part of the national territory.
48 In that regard, it should be noted that such an undertaking must ensure the uninterrupted supply of electrical energy, over the entire concession area, to all consumers, local distributors or end users, in the quantities requested at all times. , at uniform prices and on conditions which can only vary according to objective criteria applicable to all customers.
49 Restrictions on competition on the part of other economic operators must be allowed, in so far as they are necessary to enable the undertaking entrusted with such a task of general interest to accomplish that task. In this regard, account must be taken of the economic conditions in which the undertaking is placed, in particular the costs which it has to bear and the regulations, particularly with regard to the environment, to which it is subject.
50 It is for the referring court to examine whether an exclusive purchase clause prohibiting the local distributor from importing electricity is necessary in order to enable the regional distribution undertaking to perform its task of general interest.
51 The answer to the second question put by the Gerechtshof te Arnhem must therefore be that (
a) Article 85 of the Treaty precludes the application, by a regional electricity distribution undertaking, of a exclusive purchase clause appearing in the general conditions of sale which prohibits a local distributor from importing electricity intended for public distribution and which, taking into account its economic and legal context, affects trade between Member States.
b) Article 86 of the Treaty precludes the application, by a regional electric energy distribution undertaking, in the event that the latter belongs to a group of undertakings holding a collective dominant position in a substantial part of the common market, an exclusive purchase clause appearing in the general conditions of sale which prohibits a local distributor from importing electricity intended for public distribution and which, given its legal and economic context, affects the market. trade between Member States.
(c) Article 90 (2) of the Treaty must be interpreted as meaning that the application, by a regional electric energy distribution undertaking, of such an exclusive purchase clause is exempt from the prohibitions of Articles 85 and 86 of the Treaty, in so far as that restriction on competition is necessary to enable that undertaking to fulfill its mission of general interest. It is for the referring court to examine whether that condition is fulfilled.
52 The costs incurred by the Greek, French and Netherlands Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since the proceedings are, as regards the parties to the main proceedings, an incident raised before the national court, it is for that court to rule on costs.
For these reasons,
ruling on the questions submitted to it by the Gerechtshof te Arnhem, by arbitral judgment of 3 November 1992
, ruled as follows: 1) A national court, which, in a case provided for by law, rules on an appeal against an arbitral award , must be regarded as a national court within the meaning of Article 177 of the EEC Treaty, even when by virtue of the arbitration agreement concluded between the parties, this court must rule as amicable compositeur.
2) a) Article 85 of the EEC Treaty precludes the application, by a regional electric energy distribution company, of an exclusive purchase clause appearing in the general conditions of sale which prohibits a distributor local authority to import electricity intended for public distribution and which, taking into account its economic and legal context, affects trade between Member States.
b) Article 86 of the EEC Treaty precludes the application, by a regional electric energy distribution company, in the event that the latter belongs to a group of companies holding a collective dominant position in a substantial part of the common market, an exclusive purchase clause appearing in the general conditions of sale which prohibits a local distributor from importing electricity intended for public distribution and which, given its legal and economic context, affects trade between Member States.
c) Article 90 (2) of the EEC Treaty must be interpreted as meaning that the application, by a regional electric energy distribution company, of such an exclusive purchase clause is exempt from the prohibitions in Articles 85. and 86 of the EEC Treaty, in so far as this restriction on competition is necessary to enable that undertaking to fulfill its mission of general interest. It is for the referring court to examine whether that condition is fulfilled.