C-392/93

O P I N I O N O F MR TESAURO — CASE C-392/93

OPINION OF ADVOCATE GENERAL TESAURO delivered on 28 November 1995 "

1. The questions referred to the Court by apply 'to activities of those entities which the Queen's Bench Division concern the either fall outside the sectors of water, interpretation of Article 8(1) of Council energy and transport services or outside the Directive 90/531/EEC of 17 September telecommunications sector, or which fall 1990 on the procurement procedures of enti- within those sectors but nevertheless are ties operating in the water, energy, transport directly exposed to competitive forces in and telecommunications sectors 1 ('the markets to which entry is unrestricted'. directive').

In particular, the national court seeks to ascertain the proper interpretation of the provision in question and, in the event that The provision whose interpretation is the national legislature transposed the direc- sought, that is, Article 8(1), constitutes in tive incorrectly, whether the conditions are fact a derogation from the provisions of the fulfilled for the undertaking which suffered directive, exempting from its scope contracts injury to claim compensation from the State relating to purchases intended to enable tele- in respect of the damage and loss sustained. 2 communications services to be supplied, pro- vided there is competition in the sector in question. In particular, Article 8 provides:

Community and national legislation

2. According to the 13th recital in the pre- '1. This directive shall not apply to contracts amble to the directive, the latter does not which contracting entities exercising an activity described in Article 2(2)(d) award for purchases intended exclusively to enable * Original language: Italian. them to provide one or more telecommuni- 1 — OJ 1990 L 297, p. 1. cations services where other entities are free 2 — In the latter respect, the present case is linked therefore to to offer the same services in the same geo- Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame III, as well as to Joined Cases C-178/94, graphical area and under substantially the C-179/94, C-188/94, C-189/94 and C-190/94, in which I am also delivering my Opinion today. same conditions.

Lastly, I would observe that, according to Article 33(1 )(d), contracting entities are to keep on each contract appropriate infor­ mation to permit them at a later date to jus­ tify decisions taken in connection with, inter alia, non-application of Titles II, III and IV (provisions on the criteria and procedures to 3. Article 2(2)(d) includes, among the activi­ be observed when awarding contracts), in ties which fall within the scope of the direc­ accordance with the derogations provided tive, the 'provision or operation of public for in Title I, which includes, so far as is rel­ telecommunications networks or the provi­ evant here, the derogation in Article 8(1). sion of one or more public telecommunica­ tions services'. According to Article 2(l)(b), the directive applies also to contracting enti­ ties which 'when they are not public author­ ities or public undertakings, have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State'. Article 2(3)(a) then specifies 4. The United Kingdom implemented the that, for the purpose of applying paragraph directive by means of the Utilities Supply 1(b), a contracting entity enjoys special or and Works Contracts Regulations 1992. In exclusive rights in particular where 'for the particular, the provisions of the directive purpose of constructing the networks or restricting its application, as stated in the facilities referred to in paragraph 2, it may 13th recital in the preamble thereto, to cases take advantage of a procedure for the expro­ involving the award of contracts intended priation or use of property or may place net­ exclusively to enable the provider to exercise work equipment on, under or over the pub­ one of the activities listed in the directive, are lic highway'. According to Article 2(6), 'the implemented by Regulations 5 and 6(a) of contracting entities listed in Annexes I to X the national legislation concerned.

Regulation 7(1), which is intended to give describing the public telecommunications effect to Article 8(1) of the directive, con- services provided by it which it considers are cerns, on the other hand, the exclusions spe- services specified in the Part of Schedule 2 in cifically regarding the telecommunications which the utility is specified. That provision sector and is thus the provision disputed by thus implements Article 8(2) of the directive. the applicant. It provides: 'These Regulations shall not apply to the seeking of offers in relation to a contract by a utility specified in Schedule 2 for the exclusive purpose of enabling it to provide one or more of the public telecommunications services specified in the Part of Schedule 2 in which the utility is specified'. Finally, I would observe that, pursuant to Article 33 of the directive, Regulation 25(1) provides that when a utility decides not to apply the provisions on exclusions contained in, inter alia, Regulation 7, it is required to keep appropriate information sufficient to justify that decision as regards contracts awarded according to procedures other than those provided for by the procurement Schedule 2 is in two parts. Part A concerns regime. all public telecommunications operators other than the applicant and Hull plc. As regards those operators, the services excluded from the scope of the Regulations are specifically 'all public telecommunica- tions services'. Part B, on the other hand, concerns exclusively the applicant and Hull Facts of the case and questions submitted pic, in respect of which the services referred for a preliminary ruling to are 'all public telecommunications ser- vices, other than the following services when they are provided within the geographical area for which the provider is licensed as a public telecommunications operator: basic voice telephony services, basic data transmis- sion services, the provision of private leased 5. The applicant is a company limited by circuits and maritime services'. shares set up on 1 April 1984 by the British Telecommunications Act 1984. Under that Act, the property, together with all the rights and obligations of the predecessor public corporation, also known as British Telecom- munications, were transferred to the appli- cant. Under the British Telecommunications Act 1981, British Telecommunications had in Regulation 7(2) provides, moreover, that all turn succeeded the Post Office which had, the utilities specified in Schedule 2 when until then, held the exclusive monopoly on requested are to send a report to the Minister the management of the telecommunications for onward transmission to the Commission systems.

The British Telecommunications Act (which includes voice telephony between ter­ 1984 provides that any person intending to minals which are not mobile), the United run a telecommunications system within the Kingdom granted the appropriate licences United Kingdom following the abolition of only to the applicant and Mercury which, in the monopoly is required to obtain a licence particular, had been authorized to intercon­ which must specify exhaustively the activi­ nect with the telecommunications systems of ties which he is authorized to exercise. Pur­ the applicant. This gave rise to a duopoly suant to that provision, the Secretary of State specifically in the fixed-link sector. for Trade and Industry granted to the appli­ cant in June 1984 a licence for 25 years. That licence, whereby the applicant is designated as a 'public telecommunications operator', authorizes it to run public telecommunica­ tions systems throughout the United King­ dom, but with limitations in relation to the geographical area in which Hull pic is licensed to operate. In particular, the appli­ cant is required to provide voice telephony The duopoly in that sector was abandoned in services to anyone who requires them, irre­ the early 1990s, giving way to a policy of spective of the fact that demand may be open competition. Accordingly, all licence insufficient to cover the costs of providing applications made by private undertakings them. Moreover, the applicant, uniquely which satisfy objective and transparent crite­ among licensees, is subject to regulation in ria are considered against a general presump­ respect of changes in the prices charged for tion in favour of allowing them unless there its services ('price cap'). Finally, it should be are 'specific reasons' to refuse them. In order noted that the State had gradually sold off by to ensure the proper functioning of such a July 1993 its shareholding in the applicant. complex system in which numerous licensed operators are active, the 1984 Act imposed an obligation on public telecommunications operators to agree to interconnect their net­ work with other operators' systems on request. This allows the customers of an operator to have access to the networks run by other operators and thus, ultimately, to communicate with users who benefit from the services provided by those operators.

(b) If the answer to Question 2(a) is in the negative:

8. In order to resolve the dispute before it, the national court therefore considered it (i) what other matters do the words appropriate to refer to the Court for a pre- refer to; and liminary ruling the following questions:

(ii) is a contracting entity's position in the market for a particular '1. On the proper interpretation of Council telecommunications service rele- Directive 90/531/EEC, does it fall vant to those matters; and

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(iii) if its position is relevant, how is national authorities charged with it relevant and, in particular, in the implementation of Article 8(1) what circumstances may it be in order to determine whether or conclusive? not a particular service is or is not covered by the exclusion, are such that it is impossible for the con­ tracting entity to ascertain whether a particular service is or is not so covered, has Directive 90/531/EEC (c) Are the answers to Questions (ii) and or any general principle of Commu­ (iii) in subparagraph (b) above nity law, in particular the require­ affected by the fact that the entity is ment of legal certainty, been subject to regulatory constraints and, infringed; if so, in what respects are they affected?

Question 1 The absence of any reference to the Member States would thus seem to suggest that it is a matter for the contracting entities them- selves, as the only ones mentioned in the provision, to decide which contracts are excluded. Such a conclusion is supported, at least at first sight, by the fact that other pro- 9. The first question seeks to ascertain visions of the directive, also included in Title whether, when transposing a directive into I thereof and thus relating to authorized der- national law, the Member States are autho- ogations, in fact make express provision for rized, bearing in mind the discretion which the role entrusted to the Member States in they enjoy under Article 189 of the Treaty, defining the contracts which are covered by to define and identify the telecommunica- the derogations concerned. 3 tions services which under Article 8(1) of the directive may be excluded therefrom, subject to certain conditions, or whether such a decision is a matter for the contracting enti- ties themselves.

11. Furthermore, according to Article 8(2), the contracting entities are entrusted with the task of notifying the Commission, at its request, of any services which 'they regard as To that end, it is appropriate first of all to covered by the exclusion referred to in para- refer to the actual wording of the provision graph 1'. The Commission then publishes in in question, to the context in which it is set the C Series of the Official Journal of the and to the rationale underlying it. European Communities, if only for infor- mation, the list of services 'which it consid- ers to be covered by this exclusion'.

provision is not to be seen as utterly mean­ imposed on all the Member States to which ingless, Article 8(2) must be acknowledged the directive is addressed, to adopt, in their to have a purpose to the extent that it is the national legal systems, all the measures nec­ contracting entities themselves which are to essary to ensure that the directive is fully decide which services provided by them are effective, in accordance with the objective of such a kind as to be covered by the exclu­ which it pursues'. 4 This means that the sion provided for in Article 8(1). Member States are required to adopt all the measures necessary to ensure that the provi­ sions of the directive are fully effective and thus to guarantee the outcome which it pre­ scribes. Furthermore, as the Court has itself held, the provisions of a directive must be implemented 'with unquestionable binding 12. That point of view is further confirmed force ... precision and clarity ... in order to by Article 33 of the directive, according to satisfy the requirement of legal certainty'. 5 which, I would recall, the contracting entities are to keep on each contract 'appropriate information ... which shall be sufficient to permit them at a later date to justify deci­ sions taken in connection with ... (d) non- application of Titles II, HI and IV in accord­ ance with the derogations provided for in Title I'.

However, it is only too clear that the trans- position of the directive effected by the United Kingdom prevents the Commission from carrying out such verification, since the lists notified to it by the contracting entities I consider that the answer to that question through the competent national authorities 7 cannot but be in the negative. The prelimi- will perforce coincide with those under nary definition of 'excluded' services, in the Schedule 2 of the national legislation in ques- terms set out above, is in my view such as to tion. The supervisory role accorded to the conflict with the rationale underlying the Commission by Article 8(2) of the directive provision in question, essentially because is therefore disregarded in the case of opera- such an a priori determination, by reflecting tors and services in the United Kingdom. the situation which exists in a Member State at a given moment, takes no account of any potential development in the sector in ques- tion or of the fact that the excluded services may vary in relation to a single operator. At the same time, such an approach prevents the Commission from exercising the supervision with which the directive itself has entrusted it in the matter. 16. However, in defending the way in which it transposed the directive into domestic law, the United Kingdom maintained that it would not have been appropriate to leave to the contracting entities themselves the power to identify the contracts covered by the exclusion inasmuch as this would, in all probability, have led to conflicting assess- 15. Although the contracting entities com- ments in similar cases and would inevitably municate to the Commission, at its request, have jeopardized the requirement of legal the contracts which they consider to be certainty. excluded and the Commission itself pub- lishes them for information, it is equally true that the list so published includes only those services which the Commission itself 7 — See Regulation 7(2) of the national implementing legislation.

18. Question 2(a), referred by the national court, asks whether the words 'where other entities are free to offer the same services in the same geographical area and under sub­ stantially the same conditions' in Article 8(1) 17. Finally, I can but observe that the inter­ should be interpreted as meaning that the pretation thus far provided of Article 8(1) of freedom which other contracting entities the directive shows that it is a provision enjoy and the conditions in question are of a which confers on individuals, in this case on legal or regulatory nature. the contracting entities, rights upon which they may rely directly in proceedings before the national courts; in other words, it is a provision with direct effect. From that point of view, it must be acknowledged that a pre­ liminary and detailed definition of the ser­ vices excluded, as applied by the national legislature, is necessarily contrary to the out­ come pursued by the directive itself. Essentially, the question is whether, in order to come within the exclusion in Article 8(1) of the directive, the freedom 'to offer the 8 — Council Directive 92/13/EEC of 25 February 1992 coordi- same services in the same geographical area' naling the laws, regulations and administrative provisions and the existence of 'substantially the same relating to the application of Community rules on the pro­ curement procedures of entities operating in the water, conditions' are to be established only de jure, energy, transport and telecommunications sectors (OJ 1992 I. 76, p. 14). as the applicant contends, or also de facto.

That is the applicant's argument, in support of which it claims that the directive is addressed not only to the public authorities and the public undertakings operating in the sectors covered by the directive, but also to those bodies which in any event enjoy, in respect of their activities, special or exclusive rights granted by the competent authorities In short, it is certainly not sufficient for of the Member States. The rationale behind access to the market not to be excluded by that extension of the directive is in fact law; there should also be genuine compe- based, according to the applicant, on the tition. The criteria mentioned in Article 8(1) assumption that the conferral of such rights of the directive must therefore be interpreted entails the closure of the market to compe- as meaning that they must be satisfied not tition, creating a 'reserved' market. It follows only de jure but also de facto. The first con- — in the applicant's view — that where dition may be considered to have been met domestic legislation has been brought into where entities other than the contracting force to remove such special or exclusive entity concerned are authorized to operate rights, as was the case in the United King- on the market in the services in question, dom as a result of the British Telecommuni- access to which is not restricted by law. The cations Act 1984, there is no longer any rea- second, on the other hand, may be regarded son to apply the directive by virtue of the as having been satisfied where the entities in exclusion under Article 8(1) thereof. The rel- question are not only formally authorized evant market is not 'reserved', within the but also actually able to provide the services meaning of Article 2(3) of the directive, but is a liberalized market, that is, open to com- petition from a variety of operators. 9 — Emphasis added.

In the applicant's opinion, other factors should instead be taken into consideration when assessing its position on the market, in particular the statutory constraints by which, 22. By Questions 2(b) and (c), the national court seeks to ascertain what factors are to be taken into account when assessing 10 — The United Kingdom takes the opposite view. According to whether the telecommunications market is in the observations submitted by the French Government, fact competitive in respect of a particular ser­ which have not been contested, it appears, moreover, that thefixed-linkmarket was shared out as follows: 90% to the vice. applicant, 7% to Mercury and 3% to the other operators.

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unlike the majority of the other licensees, it legislative constraints of the kind described is bound. 11 above, and any other condition which may be regarded as relevant in practice.

Question 3

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which I have arrived at in that respect, there national law incorrectly, albeit in due time. 1 5 is no need to answer this question. The applicant seeks reparation for the loss and damage which it claims to have suffered as a result of the incorrect transposition of Article 8(1) of the directive. Such loss and damage is equated by the applicant with the additional costs incurred in complying with Question 4 the (incorrect) national legislation imple- menting the directive, which, moreover, allegedly prevented it from concluding prof- itable transactions, and with the disadvan- tages suffered in commercial and competitive terms because of the requirement, which is not applicable to the other operators in the sector, to publish in the Official Journal its procurement plans and contracts. 16 26. The fourth question again raises before the Court the problem of the liability of and the obligation incumbent on the State to compensate individuals for loss or damage caused by a breach of Community law, a problem which is central to Brasserie du Pêcheur and Factortame III 12 and Dillen- kofer and Others, 1 3in which I will be deliv- ering my Opinion today. In the former case, I would observe, the infringement with which the Member State is charged is apply- ing national legislation contrary to the provi- sions of the Treaty; the latter case, on the 27. Even in these circumstances, as in those other hand, like Francovich,14 concerns fail- noted in the preceding section, the starting ure to transpose a directive within the period point cannot be other than the Francovich laid down for that purpose. judgment, in which the Court, it is worth bearing in mind, laid down that the State was under an obligation to make reparation for failure to transpose a directive, specifying the

conditions which must be satisfied, in such a therefore could well have been, as such, case, in order for a right to reparation to directly challenged before the national arise in favour of individuals. courts. In other words, the fact that an indi- vidual may in such a case secure protection of the right asserted before the national court is not per se such as to preclude any possibil- ity of protection in respect of his financial interests. 17 In the present case, therefore, it is necessary to establish whether: (a) the principle of State liability extends to the timeous but incorrect transposition of a directive; (b) the condi- tions laid down by the Court in Francovich are sufficient to impose on the State an obli- gation to make reparation even in circum- In that regard, I would point out, in partic- stances such as those of this case, or whether ular, that in its ruling in Francovich 18 the there must be something more; and (c) the Court, recalling the fundamental characteris- conditions have been satisfied in this case. tics of the Community system, arrived at the conclusion that 'the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system 28. Since I have fully discussed some of the of the Treaty' (paragraph 35). This is clearly abovementioned issues in my Opinion in a general affirmation of principle which Joined Cases C-46/93 (Brasserie du Pêcheur) holds good for any situation in which Com- and C-48/93 (Factortame III), I consider it munity law is infringed and not merely appropriate to refer, for the details where where there has been a failure to implement necessary, to that Opinion. I will therefore a directive. 19 As far as failure to implement a restrict myself in the present case to a few directive is concerned, the Court merely summary observations of a general nature, stated that the right to reparation is particu- dwelling more specifically upon only those larly indispensable, precisely because other- aspects which are of particular relevance to wise the individual would be deprived of any the case under consideration. protection, contrary to the rights conferred on him by the directive. However, this affir- mation does not preclude liability in dam- ages for injury caused by breaches of other types, particularly since the Court itself went

on to hold that the conditions under which 31. With regard to the conditions determin- liability gives rise to a right to reparation ing the financial liability of the State, it is depend on the »ature of the breach of Com­ worth noting first of all that, as pointed out munity law giving rise to the loss and dam­ in the aforementioned Opinion, in order for age (paragraph 38). protection in damages to be assured in all the Member States in at least a homogeneous — if not exactly uniform — manner, it is vital that it should be Community law itself which lays down the minimum conditions determining the right to compensation, in particular the criteria by which those condi- tions are established, and the 'Community' 30. On the other hand, as emphasized in the limits imposed on the 'national' conditions Opinion in Brasserie du Pêcheur and Factor- relating to compensation, be they procedural tame III, annulment of an unlawful measure or otherwise. or setting aside a law which is inconsistent with a superior parameter of legality may at times not be enough. In order to render the protection real and effective, it may be neces- sary to bring back into balance also the financial content of the right which has been impaired and hence to ensure that the dam- age is made good. This, moreover, was the solution adopted by the Court in Francovich, albeit with some particular features connected with the case at issue. There is no ground for considering that that solution should apply only in the event of failure to implement a directive and not to the infringement of provisions with direct effect or to the incorrect transposition of a directive. The principle of the State's financial liability must be applied as a remedy which is both alternative and additional to substantive pro- tection; consequently, it must be applied in the event of infringements both of provisions without direct effect, that is to say provisions which may not be directly relied upon before the national courts, and of provisions 32. In Francovich, I would recall, the liabil- which may be so relied upon. 20 This is also ity of the State was recognized by the Court, true, of course, where, as in this case, a direc- subject to finding that the following three tive has been incorrectly implemented. conditions were met: 'First, the purpose of the directive must be to grant rights to indi- viduals. Second, it must be possible to iden- 20 — To the same effect, moreover, the Court stated in its judg- tify the content of those rights on the basis ment in Case C-188/89 Foster [1990] ECR I-3313, para- of the provisions of the directive. Finally, graph 22, that Article 5(1) of Directive 76/207/EEC, a pro- vision with direct effect, 'may be relied upon in a claim for there must be a causal link between the damages against a body' entrusted with the task of provid- ing a public service. breach of the State's obligation and the

33. In that regard, widely divergent replies have been given in the course of these pro­ ceedings. According to most of the interven­ 34. Let me say at once that I cannot endorse ing Governments, the conditions laid down that position. N o r does it strike me as con­ by the Court in Francovich are not sufficient sistent with the view taken by that institu­ tion in Joined Cases C-46/93 and C-48/93. In those cases, I would recall, the Commis­ sion suggested that the same restrictive con­ 21 — However, the three conditions in question, which the Court ditions as those laid down by the Court in identified in Francovich (paragraph 40), are set out here ver­ batim in the form in which they were stressed and summa­ its case-law concerning Article 215 should be rized by the Court in Case C-91/92 Faccini Dori ν Reach [1994] ECR I-3325, paragraph 27. See, moreover, the judg­ applied as a minimum standard. ment in Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraphs 22 and 23. In the latter case, although the direc­ tive in question, the same one as in Francovich, had been transposed into national law, the problem concerned the failure, in the relevant national provisions, to take account of a specific category of workers, in respect of whom, 23 — The judgments in question, or rather the criteria developed therefore, the directive had not been implemented. therein by the Court, are discussed, in so far as is relevant, in points 61 to 69 of the Opinion in Joined Cases 22 — Judgment in Francovich, cited above, paragraph 41. C-46/93 Brasserie du Pêcheur and C-48/93 Factortame III.

35. Accordingly, the problem cannot be resolved exclusively on the basis of the type of obligation laid down, in particular whether or not it is an obligation as to the result. Instead, in my view, it must be acknowledged that a decisive factor, for the 36. More generally, as already stated in the purpose of setting a limit to the possibility of Opinion in Brasserie du Pêcheur and Factor- translating unlawfulness into liability, is not tame III, 27 there can be considered to have only the discretion which the States may been a manifest and serious breach where: enjoy in the sector concerned but also the greater or lesser degree of precision of the obligation imposed and ultimately the possi­ bility of identifying with a sufficient degree of precision the content of the right asserted by an individual in a particular situation. (a) obligations whose content is clear and Those factors, as I have made abundantly precise in every respect have not been clear in my Opinion in Brasserie du Pêcheur complied with; and Factortame III, 24 are the characteristic features of a manifest and serious breach. On the other hand, for the purpose of establish- 25 — Sec, to the same effect, points 85 to 90 ibid. ing the liability of a Member State in default, 26 — Sec, in particular, points 55 to 60 of the Opinion in Joined Cases C-46/93 Brasserie dit Pêcheur and C-48/93 Factor- tame 111, and point 28 of the Opinion in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others. 24 — Sec, in particular, points 74 to 84. 27 — Sec, in particular, point 84 of that Opinion.

38. As to the fact, also highlighted in these proceedings, that such an approach would ultimately 'encourage' timeous though (c) the national authorities' interpretation of totally incorrect implementation, it is suffi- the relevant Community provisions in cient to observe that the solution proposed their legislative activity (or inactivity) is here is such as to prevent abuses, which are manifestly wrong. unlikely moreover, on the part of the Mem- ber States. The fact remains that manifestly incorrect transposition or, to put it another way, clear and unambiguous provisions transposed incorrectly, should be regarded as constituting a manifest and serious breach of such a kind, therefore, as to render the Mem- 37. As regards the situation at issue here, it ber State concerned financially liable. seems to me that there can be no doubt, tak- ing into account the interpretation of Article 8(1) of the directive, that the implementation thereof in the national legal system by the Member State concerned cannot be regarded as manifestly incorrect. The fact that the United Kingdom itself determined which services were excluded from the scope of the directive, by virtue of a provision (Article Subject to an appropriate assessment by the 8(1)) whose content is far from being clear national court on the basis of the criteria set and unequivocal, leads me therefore to the out herein, I conclude that infringement of conclusion that in the present case there has Article 8(1) of the directive, in the terms set been no manifest and serious breach. out above, does not constitute a manifest and serious breach and is therefore not of such a kind as to render the Member State con- cerned financially liable vis-à-vis the con- tracting entity for any damage and loss which it may have sustained as a result of the incorrect implementation of the provision in In that respect Francovich was undoubtedly question. different. The Member State concerned had not transposed the directive in question into national law within the prescribed period, in 28 — See, in that regard, point 81 of the Opinion in Brasserie dil regard to which it clearly had no discretion Pêcheur and Factortame 111, and the Opinion in Dillen- kofer and Others, which correspond, in so far as is relevant at all. It is precisely that aspect which here, to the situation in Francovich.

The decision as to whether or not certain services may be covered by the exclusion, in compliance with the conditions of fact and law laid down in Article 8(1) of Directive 90/531/EEC, must have regard to all the characteris­ tics of the services concerned, the existence of alternative services, the price factor, the market position of competitors and the existence of any legislative constraints.

(3) The Member State concerned is not required to make reparation for any loss or damage which a contracting entity may have suffered as a result of the incorrect implementation of Article 8(1) of Directive 90/531/EEC, since in the present case the infringement may not be characterized as a manifest and seri­ ous breach.

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