C-202/88

Mr President, question of definite importance — inter alia Members of the Court, from its institutional point of view — which relates (a) to the scope of the Member States' obligations in connection with the existence and manner of operation of public undertakings or holders of exclusive or 1. The application in this case is concerned special rights — in this case, in the sector of with a directive which has already achieved telecommunications terminals — and (b) a certain amount of notoriety, namely, above all to the competence of the Commission Directive 88/301/EEC of Commission (and by implication of the 16 May 1988 on competition in the markets other institutions as well) with regard to in telecommunications terminal equipment, 1 public intervention in the economies of the the legal basis for which is Article 90(3) of Member States. In essence, the Court is the EEC Treaty. This is the second occasion called upon to interpret Article 90, in on which the Commission has used Article particular paragraphs (1) and (3), in such a 90(3) in order to adopt a directive, way as to overcome its manifest obscurity. following the 'transparency' directive which gave rise to the judgment in France, Italy and the United Kingdom v Commission. 2 Moreover, the Member States' unwillingness to sit back and see Article 90(3) used in this way is borne out, not only by the fact that Subject-matter of the dispute no less than four of the Member States (Belgium, Greece, Italy and Germany) have intervened in support of the views of the applicant Member State, but also by the opposition — which has been repeatedly reported in the press — of the Member States and the Council to a further directive 2. It was clear from the written procedure on telecommunications, and in particular and, above all, from the hearing that the telecommunication services, which the main concern of the States contesting the Commission adopted only a few months directive relates not so much to its after the directive at issue here, but which substantive content as to the Commission's has not yet been published. power to legislate on the subject on the basis of Article 90(3), and the manner in which that power is exercised. That does not mean, of course, that all the Member States agree with the Commission that it is This dispute plainly affords the Court an inconsistent with the Treaty that they opportunity to assess and resolve a legal should preserve, in their various laws, the special or exclusive rights vested in the * Original language Italian. bodies operating in the telecommunications 1 — OJ 1988 L 131, p. 73. sector. It merely means that each of the 2 — Joined Cases 188 to 190/80 French Republic, Italian Member States has indicated — some Republic and United Kingdom v Commission [1982] ECR 2545 overtly, some more circumspectly — that

the attempt to liberalize the market in tele- Commission of the measures taken or draft communications terminal equipment, which legislation introduced to that end. is at the root of the action taken by the Commission, is not a matter of indifference to them. Nevertheless, as regards the manner, the procedure and the legal basis Apart from Article 2, the applicant used by the Commission, all the Member government takes issue with Articles 6, 7 States — applicant and interveners alike — and 9 of the directive. It criticizes Article 6 seem to echo Dante's words: ‘ … i l modo for providing that the functions of regu- ancor m'offende …’. lating technical specifications and marketing goods and/or services must be separated. It objects to Article 7 for providing that the Member States must take the necessary steps to allow the termination, with 3. I shall therefore consider both the maximum notice of one year, of leasing or substance and the manner. Although the maintenance contracts for terminal Report for the Hearing sets out the facts, equipment which, at the time when the the relevant legislation and the arguments of contracts were concluded, was subject to the parties exhaustively, it seems useful to exclusive or special rights granted to specific review briefly the origin of the dispute. undertakings. It criticizes Article 9 for imposing the obligation to provide a yearly report allowing the Commission to monitor compliance with the provisions of the directive. 4. The starting point for the Commission's action is that, owing to technological devel- opments and in particular the impact of information technology in the telecommuni- However, as for the other articles, which it cations sector, the present situation on the regards as separable from the contested telecommunications market is unsatis- articles, the French Republic considers that factory. In order to achieve the single they might be retained, since in its view they internal market it therefore seems necessary do not exhibit the same defects inherent in to move towards more extensive liberali- the disputed articles. zation, especially as regards terminals giving access to the telecommunications network. In other words, although the Commission appears — for the time being at least — to acknowledge that public monopolies will The different pleas in law inevitably continue in being in the sector of télécommunications networks, it takes the view that any special or exclusive rights conferred by Member States on under- 5. The pleas in law submitted by the takings in relation to the importation, applicant government and reiterated by the marketing, connection, bringing into service intervening governments allege lack of or maintenance of telecommunications competence on the part of the Commission, terminal equipment are no longer acceptable. infringement of essential procedural Accordingly, the core of the disputed requirements in the form of an inadequate directive consists in the requirement in statement of reasons, infringement of the Article 2 to the effect that Member States general principle of proportionality and must withdraw such rights and inform the misuse of procedure.

In its first manifestation, the alleged lack of Lastly, it is claimed that the Commission competence takes the form more specifically exercised improperly even that — contested of the misapplication of a substantive — power to bring proceedings, by failing to provision, namely Article 90(1). The provide a precise statement of the reasons essential objection is that, in the contested for which the rights in question are alleged directive, the Commission declared special to have given rise to discrimination or, in and exclusive rights to be illegal (and any event, to situations inconsistent with the accordingly called for their withdrawal), provisions on competition and the common whereas Article 90(1) is based on the market. Consequently, the directive is also premise that they are lawful. In other words, vitiated by the absence of a proper the Commission misapplied Article 90(1) by statement of reasons. treating the granting of special and exclusive rights—which is lawful under Article 37 as well — as if it were the same thing as adopting measures contrary to the Treaty, 7. But the application of the French which is indeed prohibited by Article 90(1). Republic, like the observations submitted by Consequently, the assessment which the the intervening States, is not confined to Commission could (and should) have these issues. The Commission is also alleged undertaken in order to remain within the to lack competence in another respect and substantive limits of the provision, should this time lack of competence in the proper have been confined solely to the exercise of sense of the expression is meant. Contrary the rights in question with a view to deter- to the principle laid down in Article 4 of the mining whether it was compatible with the Treaty to the effect that institutions must other substantive provisions of the Treaty. act within the limits of their powers, the Commission evaded the difficult but obli- gatory task of determining on a case- by-case basis whether imported terminal equipment was discriminated against in the various Member States, by adopting a In point of fact, this fundamental question general measure of a legislative character, of principle links up with the claim as to a the basic object of which was to regulate an breach of the principle of proportionality, entire sector of the economy. Such a whereby it is alleged that the means used by measure clearly lies outside the range of the Commission — the abolition of the powers (namely the power and duty of rights — was manifestly disproportionate to supervision) conferred by Article 90(3), and the aim of keeping the exercise of such could, at most, have been the subject of a powers within the limits laid down by the proposal to the Council pursuant to Article Treaty. 100a.

8. The Commission, naturally, contests the subject of a Council directive under Article applicant's claim that it has no competence 100a. The two provisions have different in the two respects described above. fields of application. Article 100a aims to eliminate obstacles arising because of the existence of national laws and regulations; Article 90(3) puts the Commission under a duty to ensure that the Member States comply with the obligations imposed on In the first place, the Commission denies them by Article 90(1), and therefore that Article 90(1) presupposes that all empowers the Commission to adopt the special or exclusive rights are preserved. It decisions and directives necessary for that contends that in certain cases rights exist purpose. whose very existence is inseparable from their exercise. The only way of obviating the unlawful exercise of such a right is to abolish the right itself. Secondly, the Commission confirms that the contested General remarks directive is not simply a decision seeking to put an end to measures conflicting with the Treaty but a 'directive which takes account of the overall structure of the markets in telecommunications terminal equipment in 9. I would make a number of remarks the various Member States and sets out, on before turning to consider the various the basis of an overall approach and arguments before the Court. detailed appraisal of the situations obtaining in the Member States, the measures to be adopted in order to ensure that the Member States can comply with the rules of the (a) Article 90 Treaty which apply to them'. The Agent for the Commission reiterated this view at the hearing. The Commission argues that the directive does not represent the exercise of a legislative power going beyond the limits of 10. In the first place, I would observe that vigilance and supervision, let alone an the case-law of the Court to date, although action to legislate for an entire sector of the undoubtedly offering a number of inter- economy. The reality is much simpler: the esting pointers, does not provide answers to directive seeks on the one hand, to remedy all the questions before us today. It is true existing infringements and, on the other, to that the judgment on the 'transparency' forestall future infringements, and both directive in particular, together with the those aims fall fully within the powers more recent judgment in Case 226/87 conferred on the Commission by Article Commission v Hellenic Republic,3 have shed 90(3) of the Treaty. some light on the scope of the Commission's powers under Article 90(3) of the Treaty, inasmuch as they confirmed that 'the 'directives ' and 'decisions ' referred to in that provision of the Treaty [fall] within the general category of directives and decisions The Commission also rejects the argument referred to in Article 189' (paragraph 11 of that, instead of adopting the disputed the judgment). directive under Article 90(3), the aim which it sought to achieve should have been the 3 — Commission v Hellenic Republic [1988] ECR 3611.

Whereas, however, the question whether it the special features and delays permitted in is lawful to exercise the power provided for the banking and insurance sector. In in Article 90(3) as a means of bringing practical terms, therefore, the closer the proceedings against an infringement was left liberalizing aims of the Treaty affect the open in the judgment in Commission v choices left to the Member States to take Hellenic Republic, the lively controversy independently and of their own responsi- which has been brought to light in the bility, the less it can actually affect those present proceedings is indicative of the choices except 'to the extent to which' it is continuing uncertainty, among not only the indispensable in order to realize those aims. Member States but also the institutions, as Here, I would associate within that same to the nature and limits of the Commission's logical dimension (1) the phrase 'to the power under Article 90(3). extent necessary to ensure the proper func- tioning of the common market' which, in Article 67, defines and limits the Member States' duty to abolish restrictions on the movement of capital, (2) the cautious tone of Article 90(2), which subjects under- 11. From a more general angle, I would go takings entrusted with the operation of on to observe that the clear obscurity of services of general economic interest to the Article 90 to which I have just referred (like rules of the Treaty 'in so far as the the obscure clarity which has for some time application of such rules does not obstruct and with some authority surrounded Article the performance, in law or in fact, of the 37, which was also originally located in particular tasks assigned to them', and (3) Article 28 of the draft Treaty) is certainly the Court's ruling in the judgment in France, not due to chance or to an unexpected Italy and the United Kingdom v Commission difficulty in drafting but rather to the [1982] ECR 2545 that the power conferred objective difficulty of reconciling the actual on the Commission by Article 90(3) 'is idea of a monopoly or undertaking holding limited to the directives and decisions which exclusive rights with a system of free are necessary to perform effectively the duty competition and a common market. of surveillance imposed upon it by that paragraph' (at paragraph 13).

Court is on two separate levels, since the the category of the review of legality in the contested directive can be — and indeed has strict sense, since it reveals itself as essen- been — interpreted and assessed according tially an opportunistic choice, which is to two different interpretations. typical of the exercise of a legislative power in the true sense and which, of course, does not rule out the possibility that it was also dictated by the need to 'repress' and/or 'prevent' possible infringements of the Treaty. That is indeed the perspective suggested by the citation of Article 100a as 13. On the first interpretation, the directive, an alternative, legitimate legal basis for a in essence, declares that the Treaty (in measure having the aims of the contested particular Articles 37, 59 and 86) does not directive. This was suggested both by the admit of a system of exclusive rights which applicant State and by the interveners (in is in force in most of the Member States in particular the Belgian Government), and the sector of telecommunications terminals also — outside these proceedings — by the and requires all the Member States to European Parliament 4and the Council. 5In abolish that system, while at the same time fact, it is clear from the scheme of the laying down ancillary and consequential directive itself and in particular from its measures. In that light, the disputed power preamble and from the fact that the of the Commission appears to be exercised Commission heralded its adoption as an through a (normal) investigation of the important event in a series of legislative legality of Member States' conduct, by measures designed to 'develop' the market reference to the provisions on the common in telecommunications terminals and market (goods and services) and to the rules services. 6 on competition. The Commission itself, in the written procedure and at the hearing, claimed its own power in virtually those terms, although there are also certain divergent assertions in reply to the specific submissions of the applicant State and of the intervening parties.

Misapplication of Article 90(1) when the transitional period has ended such discrimination shall cease to exist' (paragraph 5) and proceeded to hold that 'Article 37(1) of the EEC Treaty must be interpreted as meaning that as from 16. It must first be considered whether a 31 December 1969 every national directive which requires the Member States monopoly of a commercial character must to abolish the system of exclusive rights in be adjusted so as to eliminate the exclusive right to import from other Member States' the sector of telecommunications terminals (paragraph 13). on the ground that it is contrary to particular provisions of the Treaty, is in keeping with the substantive and procedural limits laid down by Article 90. 19. The principle laid down by the Court in the Mangbera case therefore seems to be moving in the direction desired by the Commission. None the less, although it 17. Since the power of the Commission should not be overlooked that in that under Article 90(3) is limited as to its scope case — unlike the present one — the holder by Article 90(1), I consider that it is of the exclusive right of importation was necessary first to consider whether the mere also a producer and hence discrimination existence of a system of exclusive rights in against other traders in the Community favour of certain undertakings can be ident- might well be assumed, it must also be ified with the 'measures' contrary to the noted that the judgment is limited to the Treaty which the States are prohibited from exclusive right of importation and there is 'enacting' or 'maintaining in force' over nothing to say that the rulings contained which the power of supervision operates. As therein hold good in the same way for other has already been pointed out, the applicant exclusive or special rights. In that State argues that the abolition of a connection, it is not without significance monopoly or of a system of exclusive rights, that the Court made the point that Article whatever its merits, is not provided for 37 does not require the abolition of anywhere in the Treaty: on the contrary, commercial monopolies — which are Article 90 in particular actually assumes that regarded as lawful — but only the elimi- their existence is lawful. nation of discrimination, which arose in that case because of the very existence of an exclusive importation right (paragraphs 10 to 13).

referred to in Article 90 relating to public networks, an exclusive right for the undertakings and undertakings to which importation, marketing, connection, Member States grant special or exclusive bringing into service and maintenance of rights. The interpretation of Articles 86 and terminal equipment constitutes a measure 90 taken together leads to the conclusion falling within Article 90(1), and that the that the fact that an undertaking to which a actual existence of those rights constitutes Member State grants exclusive rights has a the infringement, since it is precisely from monopoly is not as such incompatible with the exclusive right itself that the discrimi- Article 86. It is therefore the same as nation and abuse arise (see in particular the regards an extension of exclusive rights Commission's rejoinder, at p. 11). following a new intervention by this State'. 8 The Court left to the national court the task of ascertaining in each case whether the conduct in question was compatible with the substantive provisions of the Treaty.

23. Indeed, I consider that, beyond the 22. However, basing itself in particular on statements relating specifically to the indi- the Court's statement in the Manghera case vidual cases, there emerges from the that every commercial monopoly had to be judgments of the Court noted above an adjusted so as to abolish the exclusive right unequivocal, consistent basic approach. On of importation from other Member States, the one hand, the need to attach a meaning the Commission reaches the conclusion that to the wording of Article 37 and Article the very fact of maintaining, for the benefit 90(1) stands out: there is an unmistakable of undertakings holding exclusive rights in existence {inter alia in the Manghera connection with telecommunications judgment, at paragraph 5) that a commercial monopoly or a system of 8 — Judgment of 30 April 1974 in Case 155/73 Sacchi [1974], exclusive rights per se is not contrary to the paragraph 14. Treaty (Articles 37 and 86) and it is not 9 — Judgment of 13 March 1979 in Case 91/78 Hansen GmbH & Co. v Hauptzollamt Flensburg [1979] ECR 935. therefore necessary to abolish them as such.

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26. In practice, consideration of an indi- vidual case may suggest a different answer. It is thus clear that the Treaty, in order to The essential meaning of Article 90, seen in accord (as it were) with Article 222 and the light of and with the help of the with the overall Community design, set out case-law of the Court, is that it seeks to to 'tolerate' monopolies and systems of prevent the Member States, although they exclusive or special rights by regarding them are free to opt for a particular economic as lawful in se, although it assigned to the policy on social grounds and to create or Commission the task of ensuring in any maintain a monopoly or a system of event the necessary compliance with the exclusive rights in a particular sector, from rules on the common market for goods and enjoying the same freedom to do so by taking the public undertaking or the holder 10 — Sec, in addition to the (udgmems referred to already, the of exclusive rights outside the rules of the ludgment of 9 May 1985 in Case 21/84 Commission v game altogether, particularly as regards the Frame [1985) ECR 1355, the ludgment of 3 October 1985 in Case 311/84 Telemarketing [1985] ECR 3261, common market in goods and services and paragraph 17; and the judgment of 4 May 1988 in Case 30/87 Bodum [1988] 2479. freedom of competition. This is like Article 11 — Case 78/82 Commission v /Wy[1983] ECR 1955. 37 which, according to the Court, 'is

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27. If that is so, it follows that it cannot be and services and freedom of competition. In completely ruled out, on the basis of the short, the reply must be specific to the case wording of Articles 90 and 37, that in the and cannot be given in the abstract. very creation of the legal situation and in the very act of conferring special or exclusive rights, an infringement of the Treaty has occurred, thereby falling foul of the prohibition set out in Article 90(1).

come into play. To date the Court has not favour the legality of a public undertaking yet given an express ruling on whether or a holder of exclusive rights as such. This, Article 37 or Article 90 involves the elimi- indeed, seems to me to be a useful, nation of 'potential' discrimination, that is reasonable interpretation of Article 90(1) to say, the mere possibility of discrimination which respects not only Article 222 but also due to the existence of exclusive rights, the rules protecting the common market and despite having been prompted on several free competition. To go no further than just occasions to do so (see the Opinion of Mr the wording of Article 90 so as to infer in Advocate General Warner in the Manghera the abstract that the words 'contrary to the case and the question referred by the Treaty' cover inter alia the mere existence national court). of a system of exclusive rights — as the French Government argues — seems to be to be frankly a partial view which reduces some of the 'effectiveness' of Article 90. Similarly, it would be a mistake to depart

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means certain whether a decision adopted namely that relating to the statement of under Article 90(3) can constitute a suitable reasons of the contested directive, and leave and lawful alternative to proceedings the question of principle to be resolved on brought under Article 169, the use of a more propitious occasions. As the issue directive seems even less appropriate, since concerns a procedure for an as an instrument it is inherently unsuited to infringement — and moreover a procedure bringing an infringement to an end, seeking to remove a legal situation whose especially when — as here — it is addressed existence, as such, the Treaty presumes to to the Member States en bloc. be lawful — in any event the Commission should have specifically and analytically established the existence of the infringement.

I therefore consider that, as a matter of principle, the Commission is not entitled to resort to a directive as provided for in In particular, with regard to Article 30 of Article 90(3) as a means of bringing the Treaty, it is stated that the grant of repressive proceedings as an alternative to special or exclusive rights to import and proceedings under Article 169. market goods 'can, and often does, lead to restrictions on imports' (paragraph 3 of the preamble). With regard to Article 37 of the Treaty it is stated that the rights at issue 'are exercised in such a way as, in practice, to Statement of reasons disadvantage equipment from other Member States, notably by preventing users from freely choosing the equipment that best suits their needs in terms of price and quality, regardless of its origin. The exercise of these 33. However, when it gives judgment in this rights is therefore not compatible with case, the Court may perhaps more Article 37 in all the Member States' profitably concentrate on the essential point, (paragraph 5 of the preamble).

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in se. In other words, I would reiterate that the ambit of the free movement of goods, the fact that a monopoly — and often, in since at least some of the 'terminals' may be practice, other similar arrangements — is indissociable from the telecommunications likely to impair the proper functioning of network and, in any event, more properly the common market and freedom of compe- come within the ambit of services. tition was duly considered by the draughtsmen of the Treaty, who none the less chose to tolerate it, so that the Commission directive, on the one hand, reveals nothing new and, on the other, by simply abolishing the monopoly or the system of exclusive rights without taking the trouble of providing an appropriate statement of reasons, radically alters the basic framework set out in Article 90(1).

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the market. The Commission further (which is also considered globally) of tele- observes that the exclusive or special rights communications terminal equipment. If the vested in the telecommunications bodies Court were to subscribe to those declar- have the effect of 'restricting users to ations that would not be the outcome of an renting such equipment' (without specifying appraisal of factual and legal data coupled which equipment is meant), when it would with a review of the legality of the contested be cheaper for them to purchase the directive, but purely and simply an act of equipment, which effectively means that faith, a course which in any event I cannot users have to accept additional services and commend to the Court. that outlets are limited and technical progress impeded, contrary to Article 86(b) and (d) (although the Commission does not specify how). 39. It cannot validly be objected that 'in a directive, which by its nature is a general measure addressed to all the Member States, there is no need to examine each individual situation in detail' (defence p. 27).

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infringements of the Treaty had occurred in Member States and thereby regulate the all the Member States, and if it therefore sector of telecommunications terminals by purported to be an exercise of the duty and virtue of powers conferred by Article 90(3), power of supervision, in the sense of the rather than to set in motion a normal legis- power to review the legality of the conduct lative procedure (say under Article 100a); of the Member States, then, even if all the furthermore, it is disputed, particularly by other problems are set aside, it is vitiated at the Belgian Government, whether the least by its inadequate statement of reasons. Commission made a genuine decision relating to industrial policy.

I am referring in particular to phrases such 42. This is the second key to the interpre- as ‘can, and often does, lead to restrictions tation of the contested directive, to which I on imports from other Member States’, and alluded at the beginning and which is to the statement that the grant of exclusive clearly put forward for appraisal by the or special rights over the management of the Court in so far as it is claimed — indepen- network and the telecommunications dently of the contested existence of the services ‘often’ extends to the supply of alleged infringements — that the terminal equipment. I am also thinking of Commission had no power to abolish the paragraph 2 of the preamble, where it is systems of exclusive rights throughout the observed that several Member States have,

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46. Equally significant is a Council Resolution of 30 June 1988 17 in which the Council, acting on a proposal from the 44. It is significant that the abolition of the Commission and on the basis of consider- systems of special or exclusive rights in the ations largely similar to those underlying the terminals sector has been followed by a directive contested in these proceedings, directive on telecommunications services invites the Commission 'to propose, where adopted in the same terms, having the same required, the measures necessary for general scheme and a similar statement of pursuing the achievement of these goals, to reasons, Article 2 of which is worded in be taken in priority areas on the basis of the virtually the same way as the article at issue appropriate Community procedures, in in these proceedings. 15 The fact would be particular for the creation of the common unusual, to say the least, had a mere market for telecommunications services and declaration of an infringement been equipment'. Prior to that it gives its general involved, as the Belgian Government rightly support to 'the objectives of the action observed at the hearing; in any event, programme set out in the communication of however, it does tend to cause one to 9 February 1988, which relates to the suspect the existence of a general opening of the common telecommunications perspective, which itself results from the market to competition up to 1992, having liberalizing pressure which has affected the regard also to Articles 8 a and 8 c of the Community institutions, and especially the Treaty, introduced by the Single European Council, in recent years. Act, and to the strengthening of European competitiveness, while safeguarding the public service goals of telecommunications administrations'.

A directive, which by nature is a general measure addressed to all Member States, 48. That last remark of the Commission does not need a detailed statement of appears to me correctly to reflect the reasons (defence, p. 27); perspective guiding its actions, which goes beyond, or even dispenses with the super- visory power envisaged by the Treaty. The aim is to lay down general, abstract rules for the sector ('define the obligations incumbent on the Member States'), and that The choice of a directive under Article exceeds the limits of Article 90(3) and falls 90(3) rather than proceedings under Article within the competence of the Council. 169 was triggered, on the assumption that 'measures contrary to the Treaty had been adopted or retained in force in most of the Member States' (but neither the measures nor the Member States are identified), by the need (which is, however, of a general During the hearing, moreover, in reply to nature) to 'incorporate all aspects of the the specific question whether, in the event market in telecommunications terminal of an infringement of Article 30 by a public equipment into a single coherent act so as to body holding an exclusive right, the enable the Commission to continue effec- Commission would respond by using the tively to carry out its duty of supervision' Article 169 procedure or by abolishing the (defence, p. 30); public body pursuant to Article 90(3), the agent for the Commission said that, in order to confer effet utile on Article 90(3), it was 'necessary to go beyond that which could be achieved by merely bringing proceedings for failure to fulfil obligations'; thus he did not rule out the adoption of a measure abol- Having regard to the important techno- ishing the public body holding exclusive or logical advances which have been made in special rights. the telecommunications sector in recent years and the growing number of complaints about 'possible infringements' of the rules on the free movement of goods and freedom of competition, the Commission 'did not intend to confine itself 49. That is consistent with the essence of to isolated measures designed merely to the Commission's position, which is that, far repress established or presumed infringements from exercising a regulatory or legislative but rather to define, on the basis of a power in the proper sense, it confined itself thorough examination of the market and to redressing existing infringements and

50. Consequently, the view that the contested directive is on a different plane to the mere repression of existing It may readily be inferred from the principle infringements and the prevention of future as set out in that judgment that the ones seems to me to be completely justified. Commission, unlike the Council, is not Moreover, the European Parliament has empowered to adopt all appropriate taken just that view (see, for example, the measures for the application of Article 90(1) resolution of 23 November 1989 (for present purposes), but only such concerning the 'parallel' directive on tele- measures as are necessary for the more communications services, reference effective performance of the duty of super- EP 136-784). This view has even been vision. This certainly does not enable the announced officially by the Commission Commission to be recognized as having itself in a communication of 9 February legislative powers whereby, proceeding on 1988 in the context of a series of legislative the premise that infringements may have measures. 18 occurred in a given sector and using a measure addressed without distinction to all 18 — Doc. COM(88)48 final. the Member States, it can define the limits

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of lawful conduct on the p a r t of the The set of rules on competition (Article 85 Member States and on that basis require at to Article 94) is structured in such a way the same time the abolition of a monopoly that the right to define, and possibly to or a system of exclusive rights. The Court supplement, the conditions for the held in fact that the Commission may adopt implementation of the Treaty provisions is such directives and decisions as are reserved to the Council whereas the necessary for the performance of the duty Commission, for its part, is vested with of supervision: it did not hold that the supervisory and executive powers. Commission may eliminate the very requirements for performing that duty.

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54. Finally, it is undisputed that the super- substantial disagreements as to the merits of visory power conferred by Article 90(3) is the liberalization — the directive adopted by connected with the first indent of Article the Commission in splendid isolation, which 155 ('shall ensure that the provisions of this 'sought, following a thorough examination Treaty . . . are applied') and not with the of the market and the observations made by third indent ('shall have its own power of the Member States, to specify the obli- decision . . . ' ) . It is therefore certain that the gations of the Member States in their power to adopt decisions and directives can relations with telecommunications under- only be strictly subservient to the duty of takings' appears to be an anomalous antici- supervision and cannot extend to a general pation of the legislative process, inasmuch as legislative measure serving to regulate the the obligations on the part of the Member structure of a given sector by means of the States had not previously been defined or abolition of a public system of special or 'specified' in the light of the general exclusive rights. provisions of the Treaty (and this also explains the inadequacy of the statement of reasons).

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