Festschrift für Fritz W. Scharpf - MPIfG

114 II · Politik und Demokratie in Europa
to pay postal dues to the operator responsible for the universal postal service
(Nouvelles Europe 2001a: 2).
In the case of France Telecom, however, the Court found the French
government to be in the wrong for not conforming to the European directives
governing universal telecommunications service. The Commission had
objected to contributions imposed on new operators providing a universal
service while France Telecom enjoyed an almost total monopoly; it had also
objected to a lack of transparency in calculating the cost of universal service
(Nouvelles Europe 2001c: 4). The Court considered the grievances formulated
by the Commission to be justified.
The new element in ECJ rulings has given rise to considerable speculation.
One argument is that in the first phase of the liberalization of the utilities
the support of the ECJ was needed to bring about competition in the
face of opposition from the large state monopolies. Now that some headway
has been made – albeit unevenly in the different sectors – the negative external
effects of markets can also be tackled (personal communication by
Martin Shapiro, 1999).
What is remarkable is that the Court not only allows more latitude for
general interest services, but that it even limits its own right of hierarchical
intervention by restricting the Commission’s endeavours to seek judicial
action. In the Gas and Electricity Monopolies judgements, the Court, in addition
to recognizing the member states’ political, economic and financial
choices regarding the provision of public services, “indicates that if the
Commission refuses to use Art. 86 (3) EC, then the political arena in which
the liberalisation of the energy markets is to be carried out is the Council
and the European Parliament” (Héritier/Moral Soriano 2001: 19). By rejecting
the Commission’s judicial actions, the Court reinforces a political
process “that involves a large number of institutions – the Commission, the
Council and the European Parliament, and the member states via the Council”
(Héritier/Moral Soriano 2001: 19). Similarly, in the Almelo (1997)
case, the Court redefines its own scope of action and restricts its capacity to
be used as a political resource by the Commission for liberalization objectives.
It emphasizes that where no Community policy exists, the Commission
should refrain from singling out and attacking individual aspects of a
regulatory area. Instead, it invites the Commission to devise an overall solution
or to wait for the Council to act (Edward/Hoskins 1995). In its ambition
to use its legislative powers (Art. 86.2), the Commission is thus caught
between the devil and the deep blue sea. Informally, it needs the political
support of a majority of member states in order to use a Commission direc-