T-36/92

ORDER OF 30. 11. 1992 — CASE T-36/92

86 or decides to take action upon its own 3(2) of Regulation No 17 and by Article 6 initiative under those articles, the reply of Regulation No 99/63, they do not con- given cannot be interpreted as a reply by stitute measures having legally binding the Commission to such an application. effect of such a nature as to affect the interests of the applicant, but preparatory measures.

2. In view of their legal nature and effects, neither the preliminary observations made by the Commission's services at the beginning of a procedure relating to an Nor, a fortiori, may correspondence infringement of the competition rules nor addressed to a complainant which neither the communication to the complainant expresses an opinion on the status of the provided for in Article 6 of Regulation alleged facts nor, in itself and at that stage No 99/63 may be regarded as decisions, of the procedure, has the effect of termi- within the meaning of Article 173 of the nating the investigation carried out by the Treaty, against which an action for annul- Commission, be deemed to be a decision ment lies. In the context of the adminis- within the meaning of Article 173 of the trative procedure as regulated by Article Treaty.

ORDER O F T H E COURT O F FIRST INSTANCE (Second Chamber) 30 November 1992 *

In Case T-36/92,

Syndicat Français de l'Express International (SFEI), an association of undertak- ings governed by French law, with its registered office at 7 Rue de Té, Bâtiment 3444, Roissy-Charles de Gaulle, France,

represented by Morgan de Rivery, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, Bon and Schmitt, 62 Avenue Guil- laume,

applicants,

v

Commission of the European Communities, represented by Giuliano Marenco, Legal Adviser, and by Francisco Enrique Gonzalez Diaz, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a member of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Letter N o 000978 of 10 March 1992 concerning a complaint about the operation of the 'rapid mail' market, lodged by the Syndicat Français de l'Express International,

ORDER OF 30. 11. 1992 — CASE T-36/92

Order

Facts underlying the application

1 On 21 December 1990 the Syndicat Français de l'Express International ('SFEI'), a business consortium governed by French law and comprising 10 'rapid mail' under- takings operating on French territory, lodged a complaint with the Commission of the European Communities challenging the practices of the Société Française de Messagerie Internationale ('SFMI').

2 SFMI, a public limited company under French law, is a joint venture between Sofi- post, with 66% of the share capital, and Transport Aérien Transrégional (TAT), with 34%. Sofipost succeeded Cogecom, a wholly-owned subsidiary of La Poste Française (the French Post Office).

3 The complaint challenges the logistical and commercial assistance which the French Post Office is said to provide to SFMI. With regard to logistical assistance, it points in particular to the availability of the whole post office network, to the preferential customs clearance procedure and the granting of preferential financial terms. As regards commercial assistance, it mentions first the transfer of goodwill items such as clientele and a contribution of assets, and secondly the conduct of promotional and advertising operations by La Poste in favour of SFMI.

Forms of order sought by the parties and procedure

7 On 16 May 1992 the complainant and three undertakings belonging to the business consortium, namely D H L International, Service Crie and May Courier, lodged an application in which they claim that the Court of First Instance should:

— declare the action admissible and well founded;

— annul the Commission decision contained in letter N o 000978 of 10 May 1992;

— order the Commission to pay the costs.

II - 2483

— order the Commission to pay the costs;

— continue the proceedings on the substance of the case.

10 O n 1 October 1992 Deutsche Bundespost Postdienst, GD Net BV, Ptt Post BV, Sweden Post and La Poste all applied to intervene in support of the form of order sought by the Commission.

1 1 O n 10 November 1992 the applicants submitted observations claiming that the applications to intervene should be rejected and the interveners ordered to pay the costs 'in this regard, including the applicants' legal fees arising from their observa- tions on the applications to intervene'.

II - 2484

SFEI AMD OTHERS v COMMISSION

Arguments of the parties

1 4 According to the Commission, the contested measure is in the nature of a simple interim step. It constitutes no more than the initial reaction of its services regard- ing the possible evaluation of the facts reported in the complaint from the point of view of Article 86 and forms part of the first stage in the investigation of com- plaints, as analyzed by the Court of First Instance in the Automec I judgment (judgment in Case T-64/89 Automec v Commission [1990] ECR 11-367). In the opinion of the Commission, the contents of the measure, the absence of any ref- erence to Article 6 of Commission Regulation N o 99/63 of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation N o 17

II - 2485

ORDER OF 30. 11. 1992 — CASE T-36/92

(Official Journal, English Special Edition 1963-64, p. 47, hereinafter referred to as 'Regulation N o 99/63') and the status of the signatory of the measure sufficiently establish the preparatory nature of the contested measure.

15 As to the contents of the measure, the Commission considers that the course of events between 21 December 1990, the date of the complaint, and 10 March 1992, the date of the contested measure, is sufficient to establish that in the context in which it occurred the correspondence of 10 March 1992 contains no legal evalua- tion of the facts from the point of view of Article 86 of the Treaty.

I I - 2486

SFEI AND OTHERS v COMMISSION

18 According to the Commission, the letter of 10 March 1992 merely explained to the complainant the decision on compatibility adopted by the Commission pursuant to Regulation N o 4064/89. It recalled the undertakings given by the postal admin- istrations which were parties to the joint venture and showed the connections between the problems encountered during the examination conducted under Regu- lation N o 4064/89 on the one hand and those raised in the complaint on the other. According to the defendant, the concluding passage of the contested correspon- dence, cited above, should be interpreted as the preliminary statement of position announced on 9 January 1992 and not as a Commission decision definitively eval- uating the facts int he light of Article 86. The sole purpose of the correspondence of 10 March 1989 was to inform the complainant of the new market situation fol- lowing the creation of the joint venture and of the conditions on which La Poste would conduct its future relations with private undertakings.

19 As to the form of the measure, the Commission notes that the contested corre- spondence does not satisfy any of the formal conditions laid down in Article 6 of Regulation N o 99/63, which specifies the obligations incumbent upon the Com- mission if it intends to reject a complaint. It points out that the contested corre- spondence makes no reference to Article 6 of Regulation N o 99/63, sets no time- limit for the complainant to submit its observations and makes no mention at all of the Commission's intention to reject the complaint.

24 In this regard, the Commission is wrong, they say, to rely on the judgment of the Court of First Instance in the Automec I case, cited above, since the background to the two cases is different, for at least three reasons. First, whereas in the Automec I judgment the Court of First Instance noted that the Director-General for Com- petition was not involved in the examination of the case, in the present instance the Director-General was the signatory of the correspondence addressed to the appli- cants on 9 January 1992. Moreover, the contested measure of 10 March 1992 was merely the reply announced in the Commission's letter of 9 January 1992.

25 In this regard, owing to the Commission's silence following the complaint made to it the complainant was, they say, forced on 15 November 1991 to serve on the Commission formal notice to act within the meaning of Article 175 of the Treaty, to which the Director-General for Competition gave an interim reply on 9 January 1992. This interim reply, made within the two-month period provided for in Arti- cle 175 of the Treaty, enables the contested correspondence of 10 March 1992 to be

II - 2488

SFEI AND OTHERS v C O M M I S S I O N

regarded as the Commission's definitive reply to the formal notice which it had received.

26 Secondly, unlike correspondence addressed to Automec, which comprised b o t h final and provisional elements, the contested correspondence contained no provi- sional elements and demonstrated, on the contrary, that the C o m m i s s i o n had con- ducted a definitive examination of the facts in the light of Article 86.

II - 2489

ORDER OF 30. 11. 1992 — CASE T-36/92

29 Furthermore, according to the applicants, quite apart from the circumstances of its adoption, the contested correspondence does constitute a decision against which an action may be brought, as defined in the case-law of the Court cited above. The contested measure closed the investigation that had been commenced, contained an assessment of the practices alleged in the complaint, altered the legal position of the applicants and prevented them from demanding the reopening of the investigation of the complaint unless they put forward new evidence (judgment of the Court in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 12, and judgment of the Court of First Instance in Case T-116/89 Prodifarma v Commission [1990] ECR 11-843, paragraph 70).

30 Finally, according to the applicants, the formal conditions for adopting the meas- ure or the status of its signatory are not relevant to an assessment of whether the contested measure is in the nature of an actionable decision. If the admissibility of an application to annul a Community measure turned on the formal requirements for the adoption of that measure, admissibility would be within the power of the Commission to determine. As to the status of the signatory of the measure, estab- lished case-law states that this is a matter which affects the legality of the measure and not the admissibility of an action brought against it.

Assessment by the Court

31 In order to assess the relevance of the Commission's plea of inadmissibility accord- ing to which the contested correspondence is not in the nature of a decision, the Court considers that it must first examine whether, as the applicants maintain, the complaint of 21 December 1990 was based not only on Article 92 of the Treaty but also on Article 86; secondly, the Court must assess whether the contested act con- tains a decision and is capable of producing legal effects, irrespective of whether or not it was adopted under the complaints investigation procedure established by Council Regulation N o 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (Official Journal, English Special Edition 1959-62, p. 87) and by Regulation N o 99/63, cited above.

35 The body of the complaint contains no reference to Article 86 of the Treaty. The concluding passage is worded thus:

' It follows from the foregoing that if the aids described above were maintained, they would soon lead to the complete disappearance of the private express mail companies. Hence, SFMI should in future be required either (i) to adjust its charges to reflect the real value of the services provided by La Poste, or (ii) if such adjustment proves impossible, to cease using the network of La Poste ... .'

II - 2491

ORDER OF 30. 11. 1992 — CASE T-36/92

36 In order to maintain that the complaint is not based solely on the alleged violation of Article 92, the applicants rely primarily on the second page of the 'covering let- ter', in which the complainant first expressly reserves the possibility of lodging a complaint under the competition rules applicable to undertakings and secondly points out that the complaint registered with the Conseil Français de la Concur- rence, which it simply appends to the complaint to the Commission and does not incorporate therein, is relevant not only from the standpoint of national law but also from that of the Community's competition rules on undertakings.

37 In the estimation of the Court of First Instance, an examination of the documents notified on 21 December 1990 shows that the Commission is clearly right to main- tain that the initial complaint was made exclusively under Article 92, since the com- plaint itself contains no reference to Article 86 of the Treaty. The fact that a doc- ument other than the complaint proper, namely the letter conveying it to the Director-General for Competition, expressly reserves the possibility of a further application to the Commission under these provisions and refers to the application to the Conseil Français de la Concurrence does not call in question such an assess- ment but merely reinforces it.

' 1 . W h e r e the Commission, u p o n application or u p o n its o w n initiative, finds that there is infringement of Article 85 or Article 86 of the Treaty, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

2. T h o s e entitled to make application are:

(a) Member States;

(b) natural or legal persons who claim a legitimate interest.'

40 If the contested measure was adopted in the context of the implementation of the abovementioned provisions of Article 3 of Regulation N o 17, it follows that the contested correspondence could have stemmed only from a decision by the Com- mission to take action upon its own initiative under Article 86 against the practices alleged in the initial complaint, a hypothesis that is alleged by neither of the par- ties, or from a request from the complainant complementing its initial complaint of 20 December 1990 and presented orally during the meeting of 18 March 1991, as alleged by the applicants and conceded by the Commission.

41 There is no need for the Court of First Instance to decide whether the oral sub- mission by the complainant of an additional request of that kind at the information meeting with the Commission on 18 March 1991 was valid. Suffice it that the con- tested correspondence could not be in the nature of a decision since it predated the concluding stage of an investigation procedure begun on the Commission's own initiative or upon application.

43 Accordingly, even on the supposition that the applicants did make an additional claim under Article 86 of the Treaty under the conditions laid down in Article 3 of Regulation N o 17, the contested correspondence cannot be interpreted as a decision to reject or to close the file on such claims since it expresses no opinion on the evaluation of the alleged facts and, contrary to the applicants' assertion, does not itself at that stage in the procedure have the effect of terminating the investi- gation carried out by the Commission. In point of fact and on the basis of its con- tent, the contested correspondence must be regarded as a document established at a preliminary stage in the investigation, which merely expresses an initial reaction by the Commission's services having no legal effects. Even if the contested meas- ure might be regarded as a provisional communication within the meaning of Arti- cle 6 of Regulation N o 99/63, a supposition that is apparent neither from its con- tent nor from its form, the contested correspondence could still not be considered capable of producing legal effects. As the Court of First Instance ruled in the Automec I case, cited above, in view of their legal nature and effects, neither the preliminary observations made by the Commission's departments at the beginning of a procedure relating to an infringement of the competition rules nor the com- munication to the complainant provided for in Article 6 of Regulation N o 99/63 may be regarded as decisions within the meaning of Article 173 of the Treaty, against which an action for annulment lies. In the context of the administrative

45 T h e C o u r t of First Instance is of the opinion that the applicants' argument that the C o m m i s s i o n infringed the undertakings it had given in the context of its c o m m e n t s on the Automec I judgment (see paragraph 28 above) is based o n a misinterpreta- tion of the final sentence of the c o m m e n t s in question. According to the applicants' line of reasoning, that sentence should be construed as meaning that, since the con- tested correspondence omitted to refer to a time-limit for the complainant to sub- mit c o m m e n t s , it should be treated as a decision to close the case. However, it is clear from an analysis of the text cited above that the true meaning of the sentence in question is only that the file o n an application submitted under Article 3 of Regulation N o 17 will be closed should the complainant's c o m m e n t s not reach the C o m m i s s i o n within the period set in the provisional communication made u n d e r Article 6 of Regulation N o 99/63. Consequently, the applicants are w r o n g to con- tend that the principles of good faith and legal certainty have been disregarded.

46 As regards the applicants' argument that it served formal notice to take action under Article 175 of the Treaty, the Court of First Instance finds that the appli- cants' reasoning set out above (see paragraph 25) whereby the letter of 15 Novem- ber 1991 constituted formal notice within the meaning of Article 175 of the Treaty cannot be upheld. It is clear from the wording of that correspondence that, far from constituting formal notice to the Commission to take action under Article 86, it was in point of fact no more than a request for a meeting addressed to the Director- General of DG IV and did not seek to oblige the Commission to address a meas- ure to the author of that correspondence. The argument is, therefore, not substan- tiated by the facts.

The applications to intervene

50 It follows from the foregoing that there is no need to rule on the applications made by GD Net BV, Deutsche Bundespost Postdienst, La Poste, PTT Post BV and Swe- den Post for leave to intervene in support of the Commission.

II - 2496

SFEI AND OTHERS v COMMISSION

Costs

51 Under Article 67(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 and the Commission applied for costs against the applicants, they must be ordered to pay the costs, including those relating to their own observations on the applications for leave to intervene.

3. Orders the applicants to pay their own costs and those of the Commission. Each of the parties seeking leave to intervene shall bear its own costs.

II - 2497

ORDER OF 30. 11. 1992 — CASE T-36/92

Luxembourg, 30 November 1992.

H.Jung J. L. Cruz Vilaça

Registrar President