CJEC, July 14, 1971, No 10-71

THE COURT

1 By judgment of 20 february 1970, received at the court registry on 17 march 1971, the tribunal d' arrondissement of luxembourg, ( criminal division ), has referred, pursuant to article 177 of the eec treaty, two questions concerning the interpretation of that treaty in relation to national laws governing the setting up and development of a river port on the moselle ( port de mertert ).

2 The first question asks " generally, whether in this field rights are conferred directly by community law on individuals subject to national law and, in particular, whether such is the case in the matter dealt with by the luxembourg law of 22 july 1963 governing the establishment and operation of a river port on the moselle, as amended by the law of 26 june 1968 on the same subject ".

3 In the event of the first question' s being answered in the affirmative, it is then asked " whether the provisions of the abovementioned laws are, and to what extent, incompatible either with the letter and spirit of the treaty of rome, or with regulations or other obligations imposed by the competent organs established by the said treaties ".

4 Despite the imprecise nature of the questions, the grounds of judgment of the national court clearly show the subject-matter of this reference.

5 In particular, the national court observes that, by reason of the advantages and privileges conferred by legislation on the societe du port de mertert, the body entrusted with the operation of the said port, and the resultant unfavourable competitive position of other port undertakings on the moselle, it doubts whether those laws are in conformity with the community rules relating to competition.

6 Before imposing on individuals the criminal sanctions prescribed by article 2 of the law of 26 june 1968 for cases of infringement of the provisions restricting the activities of third parties in this field, the national court considered it necessary to refer the matter to the court of justice in order to obtain an interpretation which would enable it to resolve the problem of the compatibility with the community' s rules on competition of subsequent rules of domestic law.

7 Although the court, in applying article 177 of the treaty, is not competent to decide on the compatibility of a national provision with community law, it can infer from the wording of the questions formulated by the national court, in the light of the facts as found by the latter, the matters involving interpretation of the treaty.

8 From the information supplied by the tribunal d' arrondissement it appears that the questions raised fall within the sphere of application of article 90 of the treaty.

9 Article 90 ( 1 ) imposes a general prohibition on member states, in respect of public undertakings and undertakings to which they grant special or exclusive rights, against enacting or maintaining in force any measure contrary to the rules contained in the treaty, in particular to those rules provided for in article 7 and articles 85 to 94.

10 However, article 90 ( 2 ) provides that undertakings entrusted with the operation of services of general economic interest shall be subject to these rules, and in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to those undertakings, but subject to the condition that the development of trade must not be affected to such an extent as would be contrary to the interests of the community.

11 An undertaking which enjoys certain privileges for the accomplishment of the task entrusted to it by law, maintaining for this purpose close links with the public authorities, and which is responsible for ensuring the navigability of the state' s most important waterway, may fall within this provision.

12 To answer the questions referred, therefore, it is necessary to consider whether article 90 ( 2 ) is of such a nature as to create individual rights which the national courts must protect.

13 Article 90 ( 2 ) does not lay down an unconditional rule.

14 Its application involves an appraisal of the requirements, on the one hand, of the particular task entrusted to the undertaking concerned and, on the other hand, the protection of the interests of the community.

15 This appraisal depends on the objectives of general economic policy pursued by the states under the supervision of the commission.

16 Consequently, and without prejudice to the exercise by the commission of the powers conferred by article 90 ( 3 ), article 90 ( 2 ) cannot at the present stage create individual rights which the national courts must protect.

17 The costs incurred by the government of the grand duchy of luxembourg and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

The court

In answer to the questions referred to it by the tribunal d' arrondissement of luxembourg ( criminal division ) by judgment of that court of 20 february 1970, hereby rules :

Without prejudice to the exercise by the commission of the powers conferred by article 90 ( 3 ), article 90 ( 2 ) cannot at the present stage create individual rights which the national courts must protect.