T-138/89

JUDGMENT OF 17. 9. 1992 — CASE T-138/89

1. The proceedings provided for in Arti- basis of the facts known to it there are no cle 173 of the Treaty may be instituted grounds for it to take action under Arti- only against an act adversely affecting a cle 85 or 86 of the Treaty satisfies the person's interests, in other words against applicant and, by its very nature, can nei- an act capable of affecting a given legal ther change his legal position nor position. adversely affect his interests. By contrast, the granting of negative clearance may prejudice the economic interests of a third Only the operative part of such an act is party who, if he demonstrates sufficient capable of producing legal effects and, as legal interest, is entitled to institute pro- a consequence, of adversely affecting such ceedings for annulment before the Court interests. O n the other hand the assess- of First Instance in accordance with the ments made in the recitals thereto are not conditions set out in Article 173 of the in themselves capable of forming the sub- Treaty. ject of an application for annulment and their legality might be open to review by the Community judicature only to the 3. An applicant who claims an interest con- extent to which they constituted the nec- cerning a future legal situation but with- essary support for the operative part. out being able to demonstrate that the prejudice to that situation is already cer- tain or who relies on a possible change in circumstances which, if it materialized, 2. A decision to grant negative clearance would not deprive him of the possibility pursuant to Article 2 of Regulation N o 17 of asserting his rights does not show a at the request of the undertakings and vested and present interest, which is a associations of undertakings concerned in necessary condition for the admissibility which the Commission states that, on the of his action for annulment.

NEDERLANDSE BANKIERSVERENIGING AND NEDERLANDSE VERENIGING VAN BANKEN v COMMISSION

V

Commission of the European Communities, represented by B. J. Drijber, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for the annulment in part of Commission Decision 89/512/EEC of 19 July 1989 relating to a proceeding under Article 85 of the E E C Treaty (IV/31.499-Dutch banks, OJ 1989 L 253, p. 1),

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Second Chamber),

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2 The first of the two applicants, namely Nederlandse Bankiersvereniging (Dutch Bankers' Association, hereinafter ' N B V ) , was set up in 1949 to promote the inter- ests of the Netherlands banking sector in the broadest sense of the expression. Any individual, company or institution registered in the official Netherlands register of credit institutions may be a member of the association.

3 Of the establishments providing financial services comparable to those of the so-called all-purpose banks, the cooperative banks affiliated to the Rabobank, the banks affiliated to the Nederlandse Spaarbankbond and the Postbank are not NBV members. Most NBV members are also members of the Vereniging van Deviezen- banken (Association of Foreign Exchange Banks, hereinafter 'VDB'), the purpose of which is to promote the optimum execution of payments between residents in the Netherlands and non-residents. The central body for coordination on matters jointly affecting the NBV, the Rabobank, the savings banks affiliated to the Ned- erlandse Spaarbankbond and the Postbank was, at the material time, the College van Overleg der Gezamenlijke Banken (Interbank Deliberation Committee, here- inafter 'CVO').

4 The second applicant, namely the Nederlandse Vereniging van Banken (Dutch Association of Banks, hereinafter referred to as 'NVB'), was established on 8 May 1989 and commenced operations on 1 June 1989. Its objectives are to promote the national and international interests of the credit institutions listed in the Wet toez- icht Kredietwezen (Law on the supervision of the credit system) and of the Neth- erlands banking sector in general. This association groups together several institu- tions in the financial sector, including the all-purpose banks which are members of the NBV. The NVB has taken over the tasks previously performed by the C V O and, in practice, the activities of the NBV and VDB.

9 O n 18 September and 4 December 1987, the NBV notified the Commission of the first part of the agreement dealing with technical cooperation and the second part relating to the reciprocal offsetting of handling costs. As with the other notifica- tions, the NBV asked the Commission to grant negative clearance or alternatively an exemption.

io The hearing provided for in Article 19(1) of Regulation N o 17 on the Commis- sion's objections to the rules notified in 1985 and 1986 was held on 25 November 1987.

n By letter of 2 February 1988 the parties to the agreement sent the Commission a copy of a notification addressed to the banks concerned indicating that the inter- bank commission had been retained at the level of H F L 1.10 but that the collecting

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banks would thenceforth be free to decide whether or not to pass the commission on to their customer. According to the statement of the applicant at the oral pro- cedure, that bank handüng charge is at present H F L 0.55.

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NEDERLANDSE BANKIERSVERENIGING AND NEDERLANDSE VERENIGING VAN BANKEN v COMMISSION

i7 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Sec- ond Chamber) decided to open the oral procedure without any preparatory inquiry.

is The oral procedure took place on 21 January 1992. Counsel for the parties pre- sented oral argument and replied to the questions put to them by the Court.

Forms of order sought by the parties

i9 The applicants claim that the Court of First Instance should:

JUDGMENT OF 17. 9. 1992 — CASE T-138/89

Admissibility

The decision

2i The decision states that the agreement lays down a uniform commission to be charged by the drawee bank to the payee bank for handling transfers by means of the forms referred to as 'actie-accepten'. Those transfers are of a predominantly voluntary nature with a mainly charitable objective (paragraph 43). After describ- ing the parties to the agreement as undertakings or associations of undertakings within the meaning of Article 85(1) of the Treaty, the Commission expresses the opinion that the provisions of the agreement restrict competition to an appreciable extent. According to the decision, the agreement restricts the scope for the banks concerned, which account for more than 90% of total deposits and assets of the banks operating in the Netherlands, to agree bilaterally on the reimbursement of costs in a more favourable manner and to pass the benefits on to their customers (paragraphs 56 and 57). Finally, the decision expresses the view that the agreement does not have any appreciable effect on intra-Community trade, since the services concerned may be provided only between banks established in the Netherlands. In that regard, the decision emphasizes that the proportion of such services provided by branches of banks from other Member States is insignificant and that the trans- fers concerned have little or no connection with trade in goods or services between Member States. Similarly very few of the final consumers of the interbank services in question are established in other Member States (paragraph 59). Finally, Article 1 of the operative part of the decision states that:

23 As regards the first plea in law, the Commission observes first that the application relates not to the operative part of the decision but to one of the recitals, which as such does not constitute an act within the meaning of Article 173 of the Treaty. Whilst it is true that negative clearance constitutes a decision within the meaning of Article 189 of the Treaty, it could never be the subject of an application for annulment on the part of the beneficiary but only on that of an interested third party.

24 The Commission maintains secondly that the applicants' claim that a decision is composed of 'interim conclusions' is unfounded. In the opinion of the Commis- sion, in Community law a number of conditions must often be met before an insti- tution adopts an act adversely affecting a person's interests. According to the Com- mission, it is ultimately the purpose of the decision which is important. If it were possible to institute proceedings with regard to what the applicants describe as interim conclusions, the decision would lose its purpose.

25 The Commission argues thirdly that the negative clearance which was granted does not alter the legal situation of the applicants. By contrast with an exemption pur- suant to Article 85(3) of the Treaty, it does not bind a national court. In this case, if a national court were to decide that the agreement was incompatible with Arti- cle 85(1) of the Treaty and to declare the agreement void in accordance with the second paragraph of that article, such an outcome would not be the consequence of the Commission's decision but that of the findings of the national court. It fol- lows, according to the Commission, that the disputed negative clearance is not capable of producing any binding legal effect in relation to the applicants.

28 The applicants acknowledge secondly that they are not challenging the operative part of the decision. However, they dispute the Commission's view that their appli- cation is inadmissible for the reason that a recital does not constitute an act within the meaning of Article 173 of the Treaty. They emphasize in this regard that the Commission fails to recognize the fact that they are not challenging the recital but an interim conclusion with regard to Article 85 of the Treaty. Indeed, in their opin- ion that article is constructed in the form of a syllogism such that a number of pre- mises (agreement, restriction of competition, effect on intra-Community trade) lead to a conclusion regarding the compatibility of the agreement in question with Arti- cle 85 of the Treaty. An interim conclusion is therefore a finding in respect of one of the constituent factors, motivated by reasoning which leads to that conclusion and stemming from a finding of fact. In the applicants' view an interim conclusion is not a preparatory act but constitutes a final assessment on the part of the Com- mission as to the nature of the agreement as restricting competition, an assessment which entails binding legal effects and which alters the legal situation of the per- sons to whom the decision is addressed.

29 The applicants maintain thirdly that they did not obtain that they had sought, since they were granted a negative clearance one of the recitals to which states that com- petition is restricted to an appreciable extent. They point out in this respect that they have a legal interest in bringing proceedings because the Commission's find- ing that the agreement restricts competition is capable of producing effects under civil law in relation to them. Although a national court is free to apply Articles 85 and 86 in an independent manner, such a finding might play an important part in the grounds of the judgment of a national court. If in regard to the effect on intra- Community trade the national court reached a conclusion other than that reached

3i In this regard, it should be pointed out that, as the Court of Justice has consistently held, the proceedings provided for in Article 173 of the Treaty can be instituted only against an act adversely affecting a person's interests, in other words against an act capable of affecting a given legal position (see for example the judgment in Case 60/81 IBM v Commission [1981] ECR 2639); whatever the grounds on which such an act is based, only its operative part is capable of producing legal effects and, as a consequence, of adversely affecting such interests. As regards the assessments made by the Commission in the recitals to the decision at issue, whilst it is acknowledged that they do not correspond completely to the applicants' opinion, they are not in themselves capable of forming the subject of an application for annulment. Their legality might be open to review by the Community judicature only to the extent to which, as grounds of an act adversely affecting a person's interests, they constituted the necessary support for its operative part. The Court of First Instance notes that in this case not only does the act not adversely affect the applicants' interests but also that the contested recital does not constitute the necessary support for the operative part of the act. Indeed, once it has found that the agreement notified is not capable of affecting intra-Community trade, the Com- mission can only conclude that there are no grounds for it to intervene, whatever its assessment of the purpose or effect of the agreement on competition.

33 Finally, the Court notes that a trader must show a vested and present interest in the annulment of the contested act and that is not the case in this instance, for two reasons. First, if the interest which an applicant claims concerns a future legal sit- uation he must demonstrate that the prejudice to that situation is already certain. In this instance the applicants rely only upon future and uncertain situations to justify their interest in applying for annulment of the contested act, namely the possibility that a national court, deciding as to the legality of the agreement in the light of Articles 85 and 86 of the Treaty, would make an assessment different from that of the Commission as to the effect on intra-Community trade whilst taking into account the Commission's assessment as to the agreement's restrictive effect on competition. Consequently, this argument must in any case be rejected without its being necessary for the Court of First Instance to consider the effects of the contested decision as far as national courts are concerned. Moreover, in case of doubt as to the scope of the Commission's decision, national courts would have the opportunity to apply to the Court of Justice for a preliminary ruling under Article 177 of the Treaty, so that in any case, in the event of a dispute, the appli- cants would by no means be deprived of the possibility of asserting their rights before the national court in the conditions specified in the judgment of the Court of Justice in Case 234/89 Delimitis v Henninger Bräu AG [1991] ECR 1-935.

Costs

36 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have failed in their submis- sions, they must be ordered to pay the costs.

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O n those grounds,

T H E C O U R T O F FIRST INSTANCE (Second Chamber)

H. Jung J. L. Cruz Vilaça

Registrar President

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