Judgment of the Court (Third Chamber) of 6 March 2008 -

   Commission v Spain

   (Case C-196/07)

   (Failure of a Member State to fulfil obligations - Competition policy -
   Concentrations - Failure to comply with obligations imposed by the
   Commission - E.ON/Endesa

   1.                     Actions for failure to fulfil obligations -
   Examination of merits by the Court - Situation to be taken into
   consideration - Situation on expiry of the period laid down in the
   reasoned opinion (Art. 226 EC) (see paras 25-26)

   2.                     Actions for failure to fulfil obligations -
   Subject-matter of the dispute - Determined by the reasoned opinion -
   Time-limit communicated to the Member State - Default subsequently
   remedied - Interest in continuing the proceedings - Possible liability
   of the Member State (Art. 226 EC) (see paras 27-28)

   3.                     Actions for failure to fulfil obligations -
   Failure to comply with a Commission decision relating to a
   concentration - Defences - Absolute impossibility of implementation -
   Criteria for assessment - Difficulties in implementing - Obligation on
   the Commission and the Member State to cooperate in seeking a solution
   consistent with the Treaty (Arts 10 EC and 226 EC) (see para. 30)

   4.                     Actions for failure to fulfil obligations -
   Failure to comply with a Commission decision relating to a
   concentration - Defences - Legality of the decision called in question
   - Inadmissibility - Limits - Non-existent measure (Arts 226 EC, 227 EC,
   230 EC and 232 EC) (see paras 34-38)

   Re:

   Failure of a Member State to fulfil obligations - Failure to comply
   with Article 2 of Commission Decision of 26 September 2006 (Case
   No COMP/M.4197 - E.ON/Endesa - C(2006) 4279 final) and Article 2 of
   Commission Decision of 20 December 2006 (Case No COMP/M.4197 -
   E.ON/Endesa - C(2006) 7039 final).

   Operative part

   The Court:

   1)         declares that by not withdrawing:

   -        the conditions 1 to 6, 8 and 17 imposed by the decision of the
   National Energy Committee which were declared incompatible with
   Community law by Article 1 of the Commission Decision of 26 September
   2006 (Case No COMP/M.4197 - E.ON/Endesa - C(2006) 4279 final), and

   -        conditions 1, 10, 11 and 15, as amended, imposed by decision
   of the Ministry of Industry, Tourism and Trade which were declared
   incompatible with Community law by Article 1 of the Commission Decision
   of 20 December 2006 (Case No COMP/M.4197 - E.ON/Endesa - C(2006) 7039
   final),

   the Kingdom of Spain has failed to fulfil its obligations under Article
   2 of each of those decisions;

   2)         Orders the Kingdom of Spain to pay the costs.