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Publishers Abstract:
Article 86(1) EC addresses to Member States a prohibition to enact or maintain in force measures contrary to the Treaty and in particular Articles 12 and 81 to 89. Article 86(3) EC states that the Commission shall ensure the application of the provisions of that Article and shall address appropriate directives or decisions to Member States. These provisions do not confer for the application of Article 86 EC. The underlying legal problem in max.mobil was whether the procedure under Article 86 EC had a nature similar to that of other competition proceedings, or whether its nature was more similar to that of the action pursuant to Article 226 EC. For the Court of Justice Articles 86(3) EC and 226 EC have a similar nature and function in the Treaty. It would be impossible to regard Articles 226 EC and 86(3) EC as being subject to different rules regarding the obligation to examine complaints, because the Commission has a discretion as to whether to proceed on one basis or the other.
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