C-327/91

1. By the present application, the French Republic seeks the annulment under Arti­ cle 33 of the ECSC Treaty and the first para­ graph of Article 173 of the EEC Treaty of the Agreement between the Commission and Certain Council of the OECD recommenda­ the Government of the United States regard­ tions, 1 concerning the application of proce­ ing the application of their competition laws dural machinery for notification and consul­ (hereinafter 'the Agreement'), which was tation which the Member States have used 2 signed in Washington on 23 September 1991 on several occasions, have a bearing on the and entered into force on the same date. issue of the so-called extra-territorial appli­ cation of the rules of competition and the problems which may arise therefrom as regards the relationship between different kinds of legislation of different origin. In particular, it is necessary to bear in mind the Recommendation of 21 May 1986, which amended and replaced the previous Recom­ mendation of 25 September 1979 concerning The French Government's action, which is cooperation between Member countries on also supported by the Netherlands and Span­ restrictive business practices affecting inter­ ish Governments, is based essentially on the national trade. 3 Equally significant is the contention that the Agreement was entered later Recommendation of 23 October 1986 into in breach of the Community rules on concerning cooperation between member the power to conclude agreements, and in particular of Article 228 of the Treaty. In addition, the French Government alleges 1 — On this matter, and for an analysis of the relevant recom­ failure to state reasons and breach of the mendations issued, see the OECD publication Mise en principle of legal certainty, as well as œuvre dn droit de lit concurrence. Coopération internationale pour la collecte de renseignements, Paris, 1984. infringement of Community competition 2 —• For an analysis of those problems, see Picone: law. 'L'applicazione extraterritoriale delle regole sulla concor­ renza e il diritto internazionale' in II fenomeno delle concen- trazioni di imprese nel diritto interno e internazionale, Padova, 1989, p. 80 et seq. 3 — The Recommendation of 25 September 1979 had in turn amended and replaced the Recommendations of 5 Octo­ * Original language: Italian. ber 1967 and 3 July 1973.

It is precisely the OECD's 1979 recommen­ dation, as amended in 1986, which served, according to the Commission itself, as a frame of reference for the definition of some of the issues relating to the extra-territorial application of the rules of competition which frequently arose between the United States and the EEC and were subsequently resolved under the contested Agreement. 4. At the meeting on 5 September 1991, organized by the Commission in order to enable the representatives of the Member States to submit their observations, certain States expressed reservations regarding the legal basis of the Agreement and in particular the Commission's power to conclude it, as well as on the need for a negotiating brief from the Council also concerning the 3. Noting that the changes which had responsibility of the Communities. They also occurred in the international economy in raised questions concerning other aspects of recent years called for more ambitious objec­ the Agreement, such as the protection of the tives, in particular the drawing up of a 'legal­ principle of confidentiality and the consulta­ ly binding document rather than a non- tion procedures, and therefore asked for binding recommendation', with a more another meeting to be held so as to enable 4 incisive and innovatory content, the Com­ the working party of national experts to dis­ mission suggested to the United States cuss the act in question. However, the Com­ authorities, in the course of meetings held at missioner responsible for competition ruled the end of 1990, the possibility of negotiating out that possibility so far as matters of prin­ an agreement formalising relations between ciple were concerned, in particular as to them, hitherto founded on a voluntary basis whether it was advisable to conclude a coop­ within the context of OECD recommenda­ eration agreement with the United States in tions, with a view to establishing closer the chosen form; he agreed to a further meet­ cooperation based on a binding act. ing only on condition that the national experts confined themselves exclusively to the technical aspects. At the meeting on 9 September, the national experts accord­ 4 — As stated by the Commission in its 'Explanatory note on the draft agreement between the Government of the United ingly confined themselves to technical con­ States and the Commission of the European Communities regarding the application of their competition laws', for­ siderations, some of which were subse­ warded to the Member States together with the draft agree­ quently incorporated in the draft agreement. ment. Emphasis added.

Cooperation regarding anti-competitive activities in the territory of one party that adversely affect the interests of the other party also entails — an innovation in respect of similar agreements — 'positive comity' (Article 5). In particular, the Agreement lays down that each contracting party may request the other to consider its interests and to initiate an investigation in relation to anti­ competitive activities which are carried out 5. The stated purpose of the Agreement is to 'promote cooperation and coordination and lessen the possibility or impact of differences 5 — So far as concerns the Community, those rules include Arti­ between the parties in the application of cles 85, 86, 89 and 90 of the EEC Treaty, Council Regulation their competition laws' (Article 1(1)). Its aim (EEC) No 4064/89 on the control of concentrations between undertakings, Articles 65 and 66 of the ECSC Treaty and is therefore to avoid, through prevention, their implementing regulations, including High Authority Decision No 24/54, as well as such other laws or regulations any conflicts arising from the extra­ jointly agreed in writing by the parties to be 'competition territorial application of the rules of compe­ law' for the purposes ofthe Agreement (Article 1(2)(a)(ii)). 6 — Explanatory note to the Member States, annexed to the draft tition. agreement.

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on the territory where the authority to Agreement by giving two months' notice whom the request is addressed has its seat (Article 11(2)) and for the obligation of and which may affect the market protected reviewing its operation two years from the by the authority making the request. date of its entry into force, especially with a view to determining whether the parties' interests could be better served through closer cooperation (Article 11(3)).

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Admissibility so far as concerns the admissibility of the application under consideration, to turn to the question whether an agreement may be regarded as an 'act of the institutions' within the meaning of Article 173, and, if not, whether the application may be regarded, as the French Government maintained at the 7. As we know, under the first paragraph of hearing, as aimed by implication against the Article 173, the Court reviews the legality of Community 'decision' which authorized the acts of the institutions 'other than recom­ conclusion of the Agreement. mendations or opinions'. According to the relevant case-law, however, for the purposes of judicial review, it is not the form of the act which matters but its effects and its content 7 which must be verified. The Court pointed 8 out in the AETR judgment that an action The Commission, for its part, while raising for annulment must be available against 'all the question whether the French Govern­ measures adopted by the institutions, what­ ment should have challenged, not the Agree­ ever their nature or form, which are intended ment as such, but the decision of 10 Septem­ to have legal effect'. ber 1991 which authorized it to conclude the Agreement with the United States, has not expressly raised any objection of inadmissi­ bility, leaving the matter to the discretion of the Court.

10. Still more important for the purposes of this case is the fact that the Court's jurisdic­ tion to carry out an a posteriori review of legality in relation to international agree­ ments concluded by the Communities has Let us remember that in justifying its juris­ already been affirmed by the Court unequiv­ diction to interpret by way of a preliminary ocally, albeit in an obiter dictum-, in Opin­ 13 ruling agreements concluded by the Com­ ion 1/75. In that Opinion, the Court stated mission with non-member countries, the that the question whether the conclusion of Court has equated such agreements with acts a given agreement is within the power of the of the institutions. Thus, in its judgment in Community and whether, in a given case, 1 Haegeman, 1the Court expressly stated that such power has been exercised in conformity an agreement concluded under Article 228 of with the provisions of the Treaty is, in prin­ the Treaty constitutes 'so far as concerns the ciple, a question which may be submitted to Community, an act of one of the institutions the Court of Justice, either directly, under of the Community within the meaning of Article 169 or Article 173 of the Treaty, or in subparagraph (b) of the first paragraph of accordance with the preliminary proce­ 14 Article 177' and that 'the provisions of the dure'. agreement, from the coming into force thereof, form an integral part of Community law'.

exercised in accordance with the provisions 12. So far as concerns the consequences, of the Treaty. with regard to the existence of an agreement, of a finding that the authority of one of the parties lacks jurisdiction, a problem which in academic writings has frequently been viewed in conjunction with that just consid­ 6 ered, 1 and wrongly so in my opinion, a few comments will suffice. Let me point out first of all that it constitutes another matter, 11. Admittedly, the Court has not so far had which is regulated to a sufficient extent by occasion to exercise that power of a posteri- international law and, in particular, by ori review in a specific case, although it has Article 46 of the Vienna Convention already ruled on the legality of a Commu­ of 21 March 1986 on the law of treaties con­ nity act relating to the conclusion of an cluded by international organizations; sec­ 15 agreement. The question remains, there­ ondly, it is a problem which normally arises fore, for the purposes of this case, whether — and this has never been disputed in any such review is permissible only indirectly, way — in most legal systems in which the that is to say where it is carried out as a management of external relations by the result of an action challenging the regulation executive does not escape judicial review, at or decision relating to the conclusion of the least so far as concerns the legality of the 17 agreement, or also where the agreement is procedures for concluding agreements. challenged directly.

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From that point of view, I consider it appro­ 14. The decision to conclude the Agreement priate to summarize the relevant factors in was therefore simply recorded in the minutes that regard: of the Commission meeting of 10 Septem­ ber 1991 and was not published, notified or brought to the attention of the Member States in any other way. It is far from clear, therefore, how the applicant could have chal­ lenged a decision when it was not aware of — the negotiations between the Commis­ its existence, and which finally came to light sion and the United States were not pre­ only subsequently when, with a view to ceded by any act of the Council, nor by completing the inquiry preparatory to these overt contacts with the Member States; proceedings, the Court asked for it to be produced.

— the draft agreement was forwarded to the Member States, accompanied by an In order to overcome that obstacle, the Explanatory Note; Commission contends that France could and in any event should have presumed the exist- ence of a decision of the type in question, both because it could not have been unaware of the relevant internal rules of procedure, — the draft agreement was subsequently and because the decision in question was approved (on 10 September 1991) by the 'announced' — it is unclear in what form — Commission which, at the same time, to the competent authorities of the Member authorized its vice-president to sign it States before its adoption. and to conclude it; that decision, how­ ever, is recorded only in the minutes of the meeting, which were not communi­ cated to the Member States;

In other words, let us be quite clear, such a declaration would be utterly ridiculous. To 15. So far as concerns the Commission's endorse the argument under consideration other argument, that the applicant could also would be tantamount to authorizing any have challenged the letter of 7 October 1991 procedural device, which would thus be the which was sent together with the Agreement, best way to shield an act from the risk of any it is sufficient to note that it is merely a cov­ challenge to it. ering letter which, moreover, is not from an institution but only from one of its officials; accordingly, it constitutes a 'document' which is not intended to, nor can it, adversely affect the addressee in any way and which, in any event, cannot be regarded as a In my view, however, even if we were to decision or, in any event, as an act capable of start from the premise that an agreement being challenged as such in accordance with cannot be challenged as such under Arti­ the relevant case-law of the Court referred to 19 cle 173, the application in question should earlier. nevertheless be held to be admissible. As it is 'physically' impossible to challenge the usual Community act 'relating to the conclusion of the Agreement', which in this case has not come into being or in any event has not been brought to the attention of the applicant, the only solution would be to treat the applica­ tion as being directed by implication against 16. That being so, it seems to me that it the decision, whatever it may be, which would, in a case such as this, be excessively enabled the Agreement to be concluded. formalistic to declare that the application is inadmissible and would amount to stating, paradoxically to say the least, that it is impossible to review the legality of the Agreement itself in the light of the rules on the power to conclude agreements, as laid Substance down in the Treaty, in a situation in which

19. Against that background, it should be Definition of the Agreement noted first of all that, although the Commis­ sion is expressly referred to as a party, it is clear from certain provisions of the Agree­ ment that it is the Community which has committed itself at international level. In that regard, it is sufficient to consider the provi­ sions of the Agreement which refer to the 'party's territory' (Article 2(2)(b)), to the 18. In order to dispel any possible ambigu­ party's 'States or Member States' (Arti­ ity, and for the sake of the argument that fol­ cle 2(2)(c)) and, in particular, to the fact that lows, therefore, I consider it appropriate to the Commission is designated as the compe­ begin by defining the Agreement under con­ tition authority for the European Communi- sideration on the basis of international law. ties (Article l(2)(b)(i)), and that competition law for the purposes of the Agreement is defined once again in relation to the Euro­ pean Communities (Article l(2)(a)(i)).

Finally, so far as concerns the penalty factor, the absence of an express provision in that regard is hardly surprising for the simple reason that an international agreement is subject to the rule pacta sunt servanda and there is clearly no need to recall this every time in an appropriate clause. Nor, in my 20. The will of the parties to bind them­ opinion, can too much importance be selves is also quite clear. It is scarcely neces­ attached to the fact that the only permissible sary to recall that the Commission itself reaction in the event of a breach is non­ expressly stated that the conclusion of such performance: that is a feature of many bilat­ an Agreement was dictated by the intention eral agreements and, in particular, of those of going beyond the recommendations of the concluded by international organizations OECD , not only by envisaging more far- whose 'standing' to be subjected to the nor­ reaching forms of cooperation and coordina­ mal penalties laid down by international law tion but also, and above all, by providing for is questionable to say the least. At most, eco­ fixed and obligatory forms of conduct in a nomic reprisals may be contemplated which, legally binding act. as we know, are not generally acknowledged to be penalties in the proper sense.

So far as concerns the nature of the obliga­ In conclusion, I do not believe there can be tions set out in the Agreement, it is sufficient any doubts as to the fact that the Agreement to reiterate that they are, as stated earlier, concluded by the Commission is, and is instrumental and procedural obligations, that meant to be, an international agreement, is to say obligations binding on the parties which imposes at the very least instrumental and therefore on the Community, and which and procedural obligations on the Commu­ undoubtedly make up an international agree­ nity and is therefore governed by interna­ ment. tional law.

Finally, there are certain arrangements brought into being by specific administrative entities with a view to establishing forms of In conclusion, it is necessary to determine whether Article 228 allows the Commission to conclude international agreements, what­ 21 — See, on that point, Schachter: 'The twilight existence of non-binding international agreements' in American Journal ever their designation. of International Law, 1977, p. 296 et seq. 22 — It is sufficient to recall the agreements on security and cooperation in Europe, set out in the Final Act of the 1975 Helsinki inter-governmental conference. 23 — In that regard, reference should be made to the Memoran­ 24 — See, in that regard, the provisional report of the Institut de dum of Understanding between the United States and Can­ Droit International, Virally: 'La distinction entre textes ada of 9 March 1984 (see American Journal of International internationaux de portée juridique et textes internationaux Law, 1984, p . 659 et seq.), which expressly provides in Arti­ dépourvus de portée juridique', in Annuaire de VIOI, Cam­ cle 12 that it 'does not constitute an international agree­ bridge Session, Vol. 60-1, 1983, p . 166 et seq. at p . 212 ment'. et seq.

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25 — It has also been argued that the sentence in question could also help to define the scope of the terms 'negotiation' and 'conclusion' in relation to one another in view of the diffi­ culty of establishing where to draw the line between the The Commission therefore infers from the two. See, for that view, Louis and Bruckner: 'Relations extérieures' in Megret, Le droit de la Communauté wording of the limb of sentence in question économique européenne. Vol. XII, 1980, p. 20 et seq.

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Under Article 228(4) of the EC Treaty, the Commission may now conclude certain agreements in a simplified form. The condi­ tions for the exercise of that power bear wit­ ness, however, to the extreme caution of the After empowering the Commission to nego­ Member States in acceding to the Commis­ tiate and conclude, subject to the Council's sion's claims in that regard. That possibility approval, agreements or contracts with non- is limited to the amendment of pre-existing member countries, 26 Article 101 provides in agreements concluded by the Council in the its third paragraph that 'agreements or con­ usual form, and only where the agreement in tracts whose implementation does not question provides for the amendments in require action by the Council and can be question to be adopted by a simplified pro­ effected within the limits of the relevant bud­ cedure or by a body set up by the agreement. get shall, however, be negotiated and con­ Furthermore, the Council may attach further cluded solely by the Commission; the Com­ specific conditions to its authorization. mission shall keep the Council informed'.

26. I cannot endorse the Commission's view that the power to conclude international In that regard, the Commission argued at the agreements is based on the criteria listed in hearing that the new wording of Article 228, in so far as it confers on the Commission the power to modify the technical 'aspects of pre-existing agreements concluded by the 26 — In other words, this procedure is completely different from that laid down in Article 228 of the EEC Treaty. In that Council, does not concern or encroach on regard, see Raux: 'La procédure de conclusion des accords the power, already vested in it, to conclude externes de la Communauté européenne de l'énergie atom­ ique' in Revue générale de droit international public, 1965, administrative arrangements. Hence the p. 1019 et seq.

28. That said, it must be acknowledged that 27. In conclusion, it does not seem to me the Commission has brought into being acts that the actual wording of Article 228 and, in in the nature of agreements in other fields as particular, the limb of sentence at issue, can well. 27 Agreements have been concluded on support the Commission's view that it has the subject of the privileges and immunities been vested with the power to conclude agreements of a certain type, or that refer­ ence can be made to Article 101 of the Eura­ tom Treaty so far as concerns the limits of 27 — In its pleadings, the Commission had referred in particular to 25 instances of bilateral cooperation with non-member and the conditions for the exercise of that countries, all of which were subsequent to 1974. However, only the contested Agreement was formally designated as power, in view of the fact that the two pro­ an agreement. On other occasions, the designation has var­ visions in question are quite different so fai­ ied: exchange of letters (18), memorandum of understand­ ing (two), administrative understanding (three), agreed as concerns the power to conclude agree­ minute (one). No fewer than eight of those agreements were concluded with the United States, some directly with ments. the Government, others with specific departments.

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28 — In that regard, it should be noted that, on the one hand, the establishment of delegations in non-member countries may be deemed to fall within the Commission's power to orga­ nize its own departments and, on the other, there is in any event tacit approval by the budgetary authorities (Council and Parliament) which can be inferred from the adoption of the appropriations necessary for them to function. The 'administrative' agreements hitherto 29 — The agreements concluded by the Commission in that sec­ concluded are distinguished, according to the tor, in the form of an exchange of letters and relating to the closure of the Panel, are in any event the subject of prelim­ inary discussions within the Council's 113 Committee. 30 — In this case, the agreements form part of legislation already in force, in that they supplement or define other agreements or acts of secondary legislation adopted by the competent 31 — Judgement in Case 68/86 United Kingdom v Council [1988] authorities of the Community. ECR 855, at paragraph 24.

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Commission, by the following characteris­ ment is implemented within the limits set by tics: the budget.

32. The possibility cannot be excluded, hav­ ing regard to the conditions set out above, that by the term 'administrative' arrange­ 31. In view of the considerations set out in ment, the Commission is in fact referring to paragraphs 18 to 22, it is sufficient to point the agreements in a simplified form, which, out, once again, that the Agreement under on the basis of the internal law of most consideration imposes a set of instrumental States, are concluded by the executive, with­ and procedural obligations on the Commu­ out parliamentary action, and normally con­ nity: even if those obligations were described cern — if we exclude secret arrangements — as 'limited', the terms of the problem would technical and administrative matters, whose nevertheless remain unchanged, in that the implementation does not entail legislative Agreement still constitutes an international amendments or which supplement or define agreement. Nor is it of any significance, pre-existing agreements concluded in accor­ from that angle, whether or not the Agree­ dance with the usual procedures, when they

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34. It is scarcely necessary to add, in that regard, that 'each institution shall act within 33. If the problem were expressed in those the limits of the powers conferred on it by terms, it would be necessary to determine this Treaty' (Article 4(1)) and that Arti­ whether the power of the Commission to cle 228 confers on the Council in general conclude an agreement can be made to terms the power to conclude international depend on the designation of such an institu­ agreements after consultation — where tion as the Community executive. required — of the European Parliament, which, it is worth emphasizing, would have been necessary had the Agreement been con­ cluded by the Council. Instead the Commis­ sion is merely accorded responsibility for negotiations and a limited power to conclude agreements in certain situations specified, as Even if were generally acknowledged that we have seen, by the Treaty itself. the executive function comprises the conclu­ sion of treaties, the theory in question can­

Parallel internal and external powers

36. The Commission itself has acknowl­ edged, however, that the aforesaid judgment 34 is not relevant to this case, in so far as it con­ 35. The AETR judgment, as we know, is cerns the division of powers between the the frame of reference for identifying the Community and the Member States and not, external powers of the Community, the as is the case here, between the various insti­ Court having stated that the possibility of tutions. concluding international agreements exists not only in the situations exhaustively listed in the Treaty but also whenever the Commu­ 35 nity has internal powers.

ultimately that its power to conclude agree­ which concern the powers of the Commis­ ments in the field of competition constitutes sion in the field of competition and which a ramification of the internal legislative pow­ invariably coincide with the complaints of ers conferred on it by the Treaty. the French Government and the interveners concerning the alleged breach of the rules of competition.

37. The power to assume obligations at international level is thus vested in the same bodies as are empowered to exercise (Com­ munity) legislative powers internally, with the result that the Commission could be seen as having autonomous powers in areas in To begin with, independent decision-making which it has its own legislative powers. 38 powers in the field of competition are con­ ferred on the Commission exclusively by Article 89 of the Treaty, which authorizes it to establish any breaches of Articles 85 and 86 and of Article 90(3), while only the Council has a general legislative power based on Article 87 of the Treaty. In addition, strictly speaking Article 89 does not confer an exclusive power on the Commission, in Clearly, it follows from that construction that it requires the cooperation of the Mem­ that Article 228(1) cannot be treated as an ber States and of the national courts. autonomous general provision governing the conclusion of treaties, a possibility which I would rule out on the basis of my previous observations concerning the interpretation of that provision and, in particular, its 'consti­ tutional' significance within the overall scheme of the Treaty.

(Article 87(2)(d)), as it has done through the tion cannot in any circumstances be treated, adoption, in particular, of Regulation given the rationale behind the AETR judg­ No 17. ment, as flowing from the Commission's internal powers in the field of competition. Nor could it reasonably be argued, on the ground that the Commission is obliged to carry out the Agreement in its capacity as the body responsible for supervising and implementing the rules of competition, that It is by no means fortuitous that Regulation the cooperation established with the United No 17 governs, for instance, relations and States authorities is merely a function of its cooperation between the Commission and internal supervisory power. the Member States (Article 10), a fact which by itself is sufficient to show how the subject-matter of the Agreement is regulated internally by a legislative act of the Council. Even more significant in that regard is the fact that the procedure under Article 24(3) of Council Regulation No 4064/89, where it refers to negotiations with non-member countries, clearly refers to the procedure under Article 228 of the Treaty; once again, that is, in a Council regulation based on In any event, certain provisions of the Article 87. The same considerations also Agreement conflict with the Council's legis­ apply to Article 9 of Regulation 40 lative powers in this area, in that they go No 4056/86, which in fact provides that beyond the (implementing) powers con­ where its application is liable to enter into ferred on the Commission on the basis of conflict with the laws of non-member coun­ Regulation No 17. tries, the Commission is to make recommen­ dations to the Council, which is to authorize the Commission to open negotiations with the State in question on the basis of such directives as the Council may issue.

In that regard, I do not consider the Com­ tion is confidential, especially in the area mission's argument, to the effect that the under consideration, there cannot be any provision in question does not prevent it doubts, it seems to me, that the obligations from receiving information from sources relating to notification, provision of informa­ other than those provided for therein, to be tion and coordination, as laid down in Arti­ wholly relevant. While it is true that the cles 2, 3 and 5 of the Agreement, are such as information provided by the United States to conflict with Article 20 of Regulation authorities could be regarded as having been No 17, according to which information supplied 'voluntarily', I do not believe it is acquired by the Commission may be used possible quite as easily to disregard the fact only for the purpose for which it has been that those authorities have the power to requested (paragraph (1)), and is deemed, in request, in the same way as the Member view of its nature, to be covered by the obli­ States and the undertakings concerned, the gation of professional secrecy with the result initiation of an enquiry into certain kinds of that it may not be disclosed, either by the conduct, in particular where such a request is Commission or the competent national accompanied by a set of guarantees incorpo­ authorities (paragraph (2)). In that regard, it rated in a legally binding act. is scarcely necessary to add that Article 8 of the Agreement, which in fact concerns the confidentiality of information, does not resolve the problem in question.

43. In the light of the foregoing, I consider it Treaty rules are concerned, it should have superfluous to examine the other submis­ done so on the basis of Article 95 of the sions relied upon by France in support of its ECSC Treaty and therefore 'with the unani­ application which, let us remember, is also mous assent of the Council and after the based on Article 33 of the ECSC Treaty, consultative committee has been consulted'. even though the parties themselves have If it failed to comply with those conditions, referred, in the course of the proceedings, however, it would be in breach of essential solely to the relevant provisions of the EEC procedural requirements, the consequences Treaty. It is scarcely necessary to point out in of which would be no different from those that regard that even if the view is taken that of a finding that the Commission has no the Commission could have concluded such power under the relevant provisions of the an Agreement only so far as the ECSC EEC Treaty.

44. In the light of the foregoing considerations, therefore, I suggest that the Court uphold the application and order the Commission to pay the costs, excluding those of the interveners.

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