C-39/93
ECLI:EU:C:1994:55
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SFEI v COMMISSION
OPINION OF ADVOCATE GENERAL LENZ delivered on 10 February 1994 *
Mr President, office network, a preferential procedure for Members of the Court, customs clearance, the grant of preferential financial terms and the conduct of advertis ing operations in favour of SFMI.
A — Introduction
3. As early as 20 December 1990 SFEI addressed a complaint to the French compe tition authority alleging an infringement of French competition law by the French postal 1. This case concerns an appeal against an authorities and by SFMI. order of the Court of First Instance of 30 November 1992 in Case T-36/92. 1The facts of the case were as follows.
4. SFEI's complaint to the Commission con sisted of three parts: a covering letter to the 2. The Syndicat Français de l'Express Inter Director General of Directorate General IV national (SFEI) is an association of undertak ( DG IV) a brief summary of the complaint, ings providing rapid mail services in France. and the complaint itself to which an index On 21 December 1990 SFEI lodged a com was appended. Also attached was a copy of plaint with the Commission against the the complaint which SFEI had lodged on the logistical and financial assistance provided to preceding day with the French competition the Société Française de Messagerie Interna authority. tionale (SFMI) by the French postal services. According to the findings of the Court of First Instance SFMI is a public limited com pany under French law 66% of whose share capital is held (indirectly) by the French postal services. The assistance alleged by SFEI included the availability of the post In the accompanying letter SFEI explained that the complaint was based on Article 92 et seq. of the EEC Treaty, was directed against * Original language: German. 1 — SFEI and Others v Commission [1992] ECR II-2479. the French State, and was without prejudice
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to proceedings under Article 85 and Art infringed. They have since investigated this icle 86 of the EEC Treaty. SFEI added that aspect further. We also undertook to con the complaint lodged with the French com sider the available information and to take a petition authority was 'also relevant' both view in principle on the application of Art with regard to Articles 85 and 86 of the EEC icle 86. Treaty and Articles 5 and 90 of the EEC Treaty.
5. On 18 March 1991, at a meeting between Whilst these investigations were continuing, DG IV and representatives of the complain the international express services of La Poste ant, the applicability of Article 86 of the were affected by the joint venture announced EEC Treaty was specifically discussed. DG between TNT, La Poste and four other IV undertook to examine the information postal administrations. We carried out an available to it in the light of that provision. investigation under the provisions of the Merger Regulation into these arrangements, and the Commission's decision of 2 Decem ber has recently been published. The out come clearly has a bearing on our consider ation of SFEI's complaint. 6. On 15 November 1991 the complainant's legal representative sent a letter to the Direc torate General of DG IV in which he inquired whether it was the Commission's intention to institute proceedings on the basis of the facts set out in the complaint and on which legal basis it proposed to do this (Articles 85, 86 and 90 and/or Article 92 et We shall shortly write to you more fully seq.). with our conclusions on the matter.'
7. On 9 January 1992 the Director General of DG IV replied to the letter of 15 Novem ber 1991. This letter drafted in English stated 8. The proposal referred to in that letter that concerns a joint venture between an Austra lian undertaking (TNT limited) on the one hand and the German, Canadian, French, Netherlands and Swedish postal services on the other hand. That proposal was notified to the Commission on 28 October 1991. 'When my colleagues met you on 18 On 2 December 1991 the Commission March 1991, they indicated that they were decided that the proposal was consistent unlikely to find a basis for a decision that the with the terms of Council Regulation (EEC) state aid rules of the Treaty had been No 4064/89 of 21 December 1989 on the
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control of concentrations between undertak and the assurances given by the parties into ings. In the course of that procedure the four account, there was no creation or strengthen European postal services gave specific under ing of a dominant position as a result of takings more particularly described in an which effective competition would be signi annex to the Commission's abovementioned ficantly impeded. decision.
The letter ended as follows:
9. On 10 March 1992 the Commission sent two letters to the complainant. In the first letter (bearing the number 06873) the Com mission informed the complainant of the 'I am aware that you had hoped that the decision of the relevant services to bring the Commission would follow the full proce procedure concerning a possible infringe dure of an Article 86 investigation. This pro ment of Article 92 of the EEC Treaty to an cedure would only have dealt with the situ end. ation regarding France. However, this inves tigation under the Merger Regulation has dealt with significant changes in the wider Community market. The competitive condi tions facilitated by previous Commission decision on international express have now been effectively extended. I am satisfied that In the second letter drafted in English (bear the result is the best framework that could ing the number 000978), a director of DG IV be obtained at this time in order to ensure referred to the letter of 9 January 1992. He that SFEI members and other operators all pointed to the investigation carried out in have a full opportunity to compete. the context of the joint venture already mentioned and the resulting decision adopted by the Commission on 2 Decem ber 1991, and stated that this investigation had necessarily covered the most important points mentioned by SFEI with regard to a possible infringement of Article 86. He placed particular emphasis on the question of While we do not propose to pursue enquiries possible cross-subsidies and on the advan under Article 86 in these circumstances, I can tages likely to accrue to the joint venture assure you that we shall maintain a close from access to the general facilities and priv watch on developments in this market. In a ileges of the French postal services. In addi separate letter we are informing you of the tion, he stated that the Commission's assess outcome of our consideration of the linked ment was that, taking the market conditions case presented under the State aid rules.'
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10. SFEI and three associated undertakings lar it alleged that no action lay against that — DHL International, Service Crie and May letter because it did not constitute a decision. Courier — on 16 May 1992 instituted pro ceedings before the Court of First Instance for the annulment of the decision in their view contained in Letter No 000978 of 10 March 1992. The applicants were of the opinion that the Commission in this letter had definitively rejected the complaint based on Article 86. In their application they alleged that the Commission, inter alia, had infringed essential procedural requirements In support of its view the Commission stated (in particular the duty under Article 190 to that this letter merely gave a preliminary provide a statement of the reasons on which statement of its position, and thus formed a decision is based), an infringement of Art part of the first stage in the investigation of icle 86 and a misuse of its discretionary complaints as analysed by the Court of First power. 2 Instance in its Automec I judgment. In that letter the Commission merely elucidated the decision of 2 December 1991 and its signi ficance for the investigation of SFEI's com plaint. That provisional statement of position was notified to SFEI in the letter of 9 Janu ary 1992.
At the same time the applicants also brought proceedings against the Commission deci sion in Letter No 06873 to terminate exami nation of the complaint in the light of Art icle 92 et seq. Those proceedings lapsed after the Commission announced on 9 July 1992 In this connection the Commission took the that it had withdrawn that decision. view that the complaint raised on 21 Decem ber 1990 was at first solely based on a poss ible infringement of Article 92 et seq. of the Treaty. Only at the meeting on 18 March 1991 were the facts submitted in con nection with that complaint examined in the light of Article 86. That view is disputed by the applicants who have submitted that a possible infringement of Article 86 was already alleged in the complaint of 21 December 1990.
11. In the proceedings brought against Let ter No 000978 the Commission raised sev 2 — Judgment in Case T-64/89 Automec v Commission [19901 eral objections of inadmissibility. In particu ECR II-367.
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12. The Court of First Instance decided first stage of an investigation procedure. 7The let to examine this objection of inadmissibility ter contained no assessment of the alleged raised by the Commission. In that connec facts in the light of Article 86 and does not tion the Court of First Instance considered it in itself and 'at that stage' of the procedure appropriate to examine first of all whether have the effect of terminating the investiga 9 the complaint of 21 December 1990 was also tion carried out by the Commission. On founded on Article 86, and secondly to the basis of its content the letter should establish whether the contested letter consti instead be regarded as a document estab tuted a decision and was capable of produc lished at a preliminary stage in the investiga ing legal effects. 3 tion, which merely expresses an initial reac tion by the Commission's services having no 10 legal effects.
13. With regard to the first point the Court of First Instance came to the conclusion fol lowing a detailed examination (paragraphs 32 If, on the other hand, the letter was not sent to 37 of the order) that the complaint of 21 in the context of a procedure under Regula December 1990 was based solely on Art tion No 17 it would be devoid of any legal icle 92. 4 effect and could not therefore be the subject of proceedings under Article 173 of the EEC 1 Treaty. 1
14. With regard to the second question the Court of First Instance distinguished between two different factual situations. If 15. SFEI and the undertakings DHL Inter the contested letter was sent in the context of national, Service Crie and May Courier a procedure under Regulation No 17 that 5 (hereinafter referred to as the 'appellants') could only have occurred in the present case appealed against this decision by the Court on the basis of an additional request made of First Instance. Essentially they put for orally by SFEI at the meeting of 18 ward three grounds of appeal which may be March 1991, as alleged by the applicants and summarized as follows: first of all, the Court 6 conceded by the Commission. Under Art of First Instance misinterpreted the notion of icle 3 of Regulation No 17 persons and asso 'application' used in Article 3 of Regulation ciations of persons who claim a legitimate No 17; the complaint of 21 December 1990, interest may apply to the Commission for a contrary to the view taken by the Court of decision that there is an infringement of First Instance did extend to Article 86. Article 85 or Article 86 of the Treaty. In the Secondly, the Court misconstrued the present case the letter in question could not notion of an actionable legal decision. The in the Court's view be in the nature of a letter of 10 March 1992 contested by the decision since it pre-dated the concluding appellants constitutes a conclusive decision
7 — Ibid., (footnote 1), paragraph 41. 3 — Ibid., (footnote 1), paragraph 31. 8 — Ibid., (footnote 1), paragraphs 42 and 43. 4 — Ibid., (footnote 1), paragraph 37. 5 — Regulation No 17 of the Council of 6 February 1962 (OJ, 9 — Ibid., (footnote 1), paragraph 43. English Special Edition 1959-62, p. 87). 10 — Ibid., (footnote 1), paragraph 43. 6 — Ibid., (footnote 1), paragraph 14. 11 — Ibid., (footnote 1), paragraph 48.
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which may be the subject of proceedings Commission's representative expressed the under Article 173 of the EEC Treaty. Finally, view that the appellants were misusing their the Court of First Instance infringed the rights by challenging the order of the Court principle of good faith and legal certainty by of First Instance by way of an appeal. not attaching due significance to a statement Apparently, that was based on the consider by the Commission published in the XXth ation that the order appealed against afforded Report on Competition Policy. to the appellants precisely that which they wanted, namely the continuation of the pro cedure initiated by the Commission on the basis of their complaint.
16. Accordingly, the appellants seek an order quashing the order of the Court of First Instance of 30 November 1992 in Case T-36/92, with all the legal consequences which that entails, in particular referral of the case back to the Court of First Instance, and an order that costs be reserved.
19. In point of fact, the order of the Court 17. The Commission contends that the of First Instance of 30 November 1992 in the appeal should be rejected and that the appel result stated that the investigation of the lants be ordered jointly to bear the costs of complaint by the Commission was not yet the proceedings. completed. The appellants could therefore have allowed this order to acquire legal validity in order to require the Commission to take a definitive position on the existence alleged by them of an infringement of Article B — Opinion 86. But on the supposition that the view taken by the appellants in both instances that the letter of 10 March 1992 concluded the Commission's proceedings, thus constituting an actionable decision, were correct, at most Admissibility of the appeal the Court of Justice would set aside the order of the Court of First Instance and the Court of First Instance, in the situation most favourable to the applicants, if it regarded the application as admissible and well- founded, would set aside this Commission 18. Before I begin to examine the grounds of decision. That outcome, too, would mean appeal put forward by the appellants, it is that the investigation of SFEI's complaint by necessary, I think, to give closer consider the Commission could not be regarded as ation to an argument put forward by the concluded, thus requiring the Commission Commission at the hearing. At that time the to take a definitive position on it.
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From this vantage point it may indeed be examine this question in connection with the wondered whether the appeal to the Court specific grounds of appeal affected by this by the appellants does not constitute an objection. improper exercise of their rights. Some sup port for such a conclusion might perhaps be deduced from the observation of the appel lant's representative at the hearing to the effect that they had been seeking for years to Examination of the specific grounds of appeal bring this case before the Court of Justice because they had lost confidence in the Commission.
First ground: Misconstruction of the term 'application'
20. In my opinion, however, the objection by the Commission calls for no lengthy dis cussion. For should this appeal be successful it cannot be ruled out that in its fresh exam ination of the application the Court of First Instance might also examine the substance of 22. In its order the Court of First Instance the application. Of course, a judgment of the pointed out that the complaint of 21 Decem Court of First Instance, confirming the exist ber 1990 as such made no mention of Art ence of, but annulling, the Commission deci icle 86 of the EEC Treaty. The fact that a sion on the ground of an infringement of document other than the complaint proper, Article 86 or because of a misuse of discre namely the letter conveying it to the Direc 12 tor General for Competition, expressly tionary power, would significantly alter the legal position of the appellants. Therefore reserved the possibility of a further applica in the present case, the fact that the appel tion to the Commission under Article 85 lants lodged an appeal cannot be regarded as and 86, and referred to the application to the a misuse of their rights. French competition authority did not call in question the assessment that the complaint addressed to the Commission was originally based only on Article 92 but merely rein 1 forced it. 3
21. The Commission has submitted that cer tain of the allegations put forward by the appellants are inadmissible because they con cern questions of fact and not questions of law. In accordance with Article 168a(1) of the EEC Treaty and the first paragraph of 23. The appellants object that the Court of Article 51 of the EEC Statute of the Court First Instance is thereby attaching to the of Justice the appeal is limited to points of term 'application' within the meaning of law. In the interests of transparency I shall Article 3 of Regulation No 17 unjustified
12 — Cf. the allegations in the application at paragraph 10 above. 13 — Ibid., (footnote 1), paragraph 37.
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formal requirements. The covering letter and pretation. In actual fact the Court of First the complaint to the French competition Instance examined the documents individu authority appended in an annex also formed ally and came to the conclusion that it was part of the complaint lodged by SFEI with apparent from none of them that the com the Commission on 21 December 1990. plaint of 21 December 1990 was also based Moreover, the Court manifestly misinter on Article 86. That is a factual assessment preted the documents which thus comprised which is not amenable as such to review by the complaint. On the basis of these docu the appellate court. ments the Court of First Instance was not entitled to conclude that the complaint of 21 December 1990 was not based on Article 86. Finally, the reasoning of the Court of First Instance is contradictory since the covering letter is first (in paragraph 32) described as forming pan of the complaint, and, subse Whether that would continue to be the case, quently, (in paragraph 37), as being extrane if the Court of First Instance had manifestly ous to it. misdirected itself in its assessment of the facts may here remain open. Contrary to the views of the appellants, no such evidence of misdirection is apparent. Moreover, an impartial view of the wording of the cover ing letter permits no other inference to be 24. The Commission objected that this drawn than that the complaint of 21 Decem ground of appeal was not on a point of law ber 1990 was based only on Article 92. but was challenging the evaluation of the facts by the Court of First Instance. I agree with it in that. If the Court of First Instance had misinterpreted the term 'application' (within the meaning of Article 3 of Regula tion No 17), that would have constituted a point of law amenable to review in the con 25. It is in any event otiose to go into this text of appeal proceedings. In my view that question in more detail in view of the fact is not the case in this instance. that the parties are entirely agreed that at the meeting between representatives of SFEI and the Commission on 18 March 1991 the applicability of Article 86 was discussed and that therefore from this moment on the com It must be conceded in favour of the appel plaint was to be construed (and was so con lants that the terms used by the Court of strued by the Commission) as covering Art First Instance were capable of giving rise to icle 92 as well as Article 86. A more detailed the misunderstanding that the Court of First examination of the precise content of the Instance was drawing a strict distinction complaint, as it appeared on 21 Decem between a complaint properly so-called, on ber 1990, was therefore only necessary if any the one hand, and additional documents, on significance were to be attached to the period the other, and was attaching to the latter between 21 December 1990 and 18 absolutely no significance for the purpose of March 1991 in the assessment of the ques delineating the content of a complaint. How tions to be considered. This is evidently not ever, in my view, the context shows that this the case. The reasoning of the Court of First is not the most obvious and plausible inter Instance in paragraphs 32 to 37 of its order
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are therefore, as the Commission rightly As regards the context of the contested letter, pointed out, wide of the mark. the appellants point in particular to the letter of 9 January 1992 in which the Commission gave notice that it would write more fully with its 'conclusions'. This choice of words presages a definitive position which was then taken in the contested letter of 10 March 1992. The Court of First Instance, it is 26. It is puzzling why the Court of First alleged, gave no consideration to the letter Instance should have embarked on a discus of 9 January 1992 and did not take a position sion at all of this question which is irrelevant on the significance of the head of claim based to a decision in this case. Stranger still is the on that letter, so that to that extent the order thoroughness with which that was done. of the Court of First Instance is based on an However that may be, the order appealed inadequate statement of reasons. Moreover, against is not vitiated by the existence of that they allege that there is a great similarity reasoning since the result reached by the between the contested letter and the other Court of First Instance is not based on it. letter from the Commission of 10 March 1992, which undeniably constitutes a decision.
Notwithstanding that fact, the appellants rightly point out that the Court stated (para graph 31), that it regarded that reasoning as In regard to the contested letter itself the material for the purposes of its decision. I appellants submit that a decision in which will come back to this in another context. the Commission rejects a complaint is char acterized by the fact that it first concludes the investigation instituted, secondly con tains an assessment of the agreements in question and thirdly precludes the complain ant, unless he brings forward new evidence, Second ground of appeal: Misunderstanding from demanding the resumption of the of the concept of an actionable decision investigation. The contested letter satisfies these requirements, as its wording and con text show. In its order the Court based itself on its judgment in the Automec I case, but incorrectly applied that case-law.
27. In their second ground of appeal the appellants submit that the Court of First Instance misunderstood the concept of an actionable decision. In view of the circum stances under which it was drafted and in the 28. The Commission opposed that ground light of its contents, the contested letter con of appeal by stating that it concerned ques stitutes a rejection decision amenable to tions of fact and was therefore inadmissible. annulment proceedings. On the interpretation of the contested letter
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the Commission continues to put forward its of ensuring uniform interpretation of Com point of view already expressed at first 14 munity law.' instance that it was only a preliminary state ment of the Commission's position.
The lightening of the workload of the Court of Justice intended thereby would be set at nought if one were to interpret 'point of law' so widely as to include the determination of the contents of a document. If it were so, the 29. Allow me first to address the complaint Court of Justice would be required in the that the interpretation of the contested letter present case itself to examine whether the by the Court of First Instance was incorrect. contested letter of 10 March 1992 constituted In my opinion that is an assessment of facts a definitive decision, thus substituting its which as such escapes review by the appeal assessment for that of the Court of First court. However, it is true that the dividing Instance. If it did so the Court would not be line between questions of fact and law is acting as a court of appeal on a point of law very difficult to draw. One would be entirely as defined in the Treaty, but rather as a court justified in taking the view that the interpre of appeal with full jurisdiction. tation of the contested letter is intended to establish whether it is an actionable decision with the result that in the final analysis the question of fact is subsumed under a set of legal preconditions as to the facts, thus finally raising a point of law. 30. Support for the view that in interpreting the concept of 'point of law' a restrictive approach is appropriate may also be found in the Court's case-law. Of particular relevance is the judgment in the Vidrányi case in which the Court held that an appeal 'may rely only on grounds relating to the infringement of rules of law by the Court of First Instance, to the exclusion of any appraisal of the 15 However, that interpretation would not in facts'. An appeal is therefore admissible my view be appropriate. It would entail the only 'in so far as it is claimed that the deci consequence that the notion of 'point of law' sion of the Court of First Instance is incom would be very widely interpreted and would patible with the rules of law the application 16 be extended to cover the assessment of facts of which it had to ensure.' by the Court of First Instance. That would run counter to the objective pursued by the establishment of the Court of First Instance. 14 — See the third and fourth recitals in the preamble to Council The establishment of a second court was Decision No 88/591/ECSC, EEC, Euratom of 24 Octo intended to improve legal protection in the ber 1988 establishing a court of first instance of the Euro pean Communities (OJ 1988 C 215, p. 1) and also the first Community by enabling the Court of Justice recital in the preamble to Council Decision No 93/350/Euratom, ECSC, EEC of 8 June 1993 amending in particular in the case of actions requiring Decision No 88/591 (OJ 1993 L 144, p. 21). close examination of complex facts 'to con 15 — Judgment in Case C-283/90 P Vidrányi v Commission centrate its activities on its fundamental task [1991] ECR I-4339, paragraph 12 (emphasis added). 16 — Ibid., (footnote 15), paragraph 13.
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31. The view I have expressed does not nec Nor is there any indication in the letter that essarily mean that the Court of First it is merely a preliminary statement of posi Instance is entirely free in its assessment of tion. Similarly, no attempt is made to draw the facts and that its assessment may only be the attention of the addressee of the letter to reviewed in the event of an infringement of the possibility of submitting further argu legal rules. In my view it would be entirely ments. That is all the more significant since possible (and appropriate) to allow an appeal in the XXth report on competition policy, where the Court of First Instance in its which I shall come back to, the Commission assessment of the facts has manifestly misdi itself, stated that it would in future pay heed rected itself, e.g. has offended against the to the concern that it should not be charged laws of logic. with the ambiguous drafting of administra tive letters capable of giving the complainant the impression that its application had been 18 definitively rejected. The view expressed by the representative of the Commission at the hearing that the letter contained an 'im plicit' demand to the addressee to inform the 32. In my view that possibility does not Commission whether it was of the same need to be discussed further here since there view can hardly be supported by the terms is no such manifest error. The interpretation of the letter. of the content of the contested letter of 10 March 1992 by the Court of First Instance appears to be reasonable.
34. It should however be borne in mind that the contested letter contains no specific 33. Indeed, the appellants rightly point out assessment under Article 86 of the facts sub that in several places the wording of that let mitted by SFEI to the Commission. As the ter conveys the impression that the Commis Court of First Instance correctly stated the sion has already terminated the investigation letter merely explains the decision on merger initiated upon the complaint by SFEI. Partic control of 2 December 1991 and the connec ularly, is that true of the first two sentences 17 tion existing in the Commission's view of the section quoted above in which the between this decision and SFEI's com word 'would' is used twice. One could also 19 plaint. In the contested letter the Commis mention in this connection the formulation sion points out that in its decision of 2 to be found in the last paragraph of that let December 1991 it had arrived at the conclu ter 'we do not propose to pursue enquiries sion that the establishment of a joint venture under Article 86'. The last-mentioned between the French postal authorities and expression, it seems, does not preclude the other parties did not create or reinforce a another interpretation, although I naturally dominant position in such a way as signi do not wish to presume to interpret with any ficantly to impede effective competition. claim to authority an expression from a for eign language.
18 — Cf. XXth report on Competition Policy (1990), Brussels/Luxembourg 1991, No 165. 17 — See paragraph 9 above. 19 — Ibid., (footnote 1), paragraph 42.
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In examining the compatibility of the joint ously of the Commission 'decision' to termi venture against the yardstick of the merger nate the examination of the complaint under control regulation the situation on the Article 92. 20 French market was also discussed. It may therefore be safely assumed that as a result of the findings made in the decision of 2 December 1991 a decision on the question whether in the present case, as had been 35. This ancillary examination of the con alleged in SFEI's complaint, there was an tested letter of 10 March 1992 has brought to abuse of a dominant position had already light elements in it which seem to indicate been prejudged. In its letter of 10 that the complaint is being definitively March 1992 the Commission seems to have rejected. On the other hand, factors of some assumed that to be the case. There is no weight may be adduced in support of the express finding that any such abuse could be Commission's assertion that it was simply a established. If one has regard in particular to preliminary statement of position. In my the two paragraphs of the contested letter view, the latter predominate with the result cited by me it is difficult to escape the that the assessment by the Court of First impression that many words are devoted to Instance is unimpeachable. the consequences of the decision of 2 December 1991 as regards the complaint of SFEI though little of substance is said. This lack of content and clarity is regrettable. It cannot however alter the fact that the inter Nevertheless, the Commission cannot escape pretation given by the Court of First criticism for having created that lack of clar Instance to these statements is plausible. ity and ambiguity by the manner in which it formulated its letter; a warning was already given about this in the judgment of the Court of First Instance in the Automec I case and the Commission itself promised in the XXth Report on Competition Policy to dis continue this practice. However, these defects alone provide no warrant for deem ing the contested letter to constitute an actionable decision by having recourse to the Finally, there is the argument of the appel theory of ostensible validity (Rechtschein), lants that the contested letter had to be con as the appellants suggest. The concept of an strued as a decision since it was sent on the actionable decision must (as I will show same day as the letter concerning Article 92 below) be interpreted on the basis of objec and was couched in very similar terms. The tive considerations. The principle whereby Commission's representative convincingly responsibility for ambiguities in a declaration refuted this argument at the hearing by quot must be borne by the person making the ing the actual wording of the letter. The let ter bearing number 06873 speaks unambigu
21 — The last paragraph of this letter (which was available to the e su Court of First Instance) reads: 'J is donc au regret de vous faire part de la décision des services compétents de 20 — Cf. numbers 33 and 42 et seq. of the decision of 2 Decem- clôturer, en raison des circonstances précisées ci-dessus, le ber 1991. The full text of that decision is, as far as is appar- dossier ouvert à la suite de votre demande du 21.12.1990' (I ent, has not been printed in any journal or any other pub- therefore regret to inform you of the decision of the com- lication. However, except for information covered by petent services to close, for the reasons stated above, the file business secrecy, it is available from the Commission. opened following your application of 21 December 1990.)
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declaration may also be observed by taking it in the course of the proceedings. Yet an error into consideration appropriately in the deci of law amenable to correction by the appel sion as to the costs of the proceedings. late court may be assumed to have been made where it concerns a material fact which, had it been considered, might have resulted in a different decision by the Court of First Instance. 36. I now turn to the complaint that the Court of First Instance did not give consid eration to the letter of 9 January 1992. At first sight this also appears to be a question of fact of which the appellate court may not take cognizance. In my opinion, however, 38. It may not even be necessary to go into that view would be wrong. The assessment this question following the recent judgment 24 by the Court of First Instance of the facts in the Pincherle case. In that case the appel should indeed, as I have already explained, lant had alleged, inter alia, that in the judg only be reviewable within very strict lim ment appealed against the Court of First 22 its. If, however, the Court of First Instance Instance had failed to give consideration to in its decision does not give its mind to the three documents submitted by him. The arguments of the party concerned then no Court of Justice rejected this allegation on factual assessment has in fact taken place. As the ground that it was not proven that the the Court of Justice held in the Vidrányi case Court of First Instance had not examined the 25 that constitutes an 'irregularity amounting to documents in question. a failure to state reasons', that is a 'failure to observe a general principle which places on every court the obligation to state the rea sons on which its decisions are based, by indicating in particular the reasons which led it not to uphold a complaint expressly raised 23 I am inclined to the view that this statement before it.' was tailored to the specific circumstances of that case. It would be clearly inappropriate to elevate that statement to the status of a general rule. If it were, an appellant would hardly ever be able successfully to claim that 37. However, it should not be forgotten that the Court of First Instance had overlooked the abovementioned judgment concerned the essential facts in its decision because it would infringement of a legal provision which in be difficult for him to prove that the Court the applicant's view had not been examined. of First Instance had committed such an In this case, however, it is a document to error. The only basis on which such proof which in the appellant's view the Court of can be established is the actual judgment of First Instance did not pay sufficient heed. the Court of First Instance which of course One cannot however expect the Court of will contain no submissions on the facts in First Instance to examine in its decision all question. the factual matters mentioned by the parties
24 — Judgment in Case C-244/91 P Pincherle v Commission 22 — Cf. paragraph 31 above. [1993] ECR I-6965. 23 — Ibid, (footnote 15), paragraph 29. 25 — Ibid., (footnote 24), paragraph 33.
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39. The question, therefore, is whether the 9 January 1992 contributes nothing of sub letter of 9 January 1992 was considered by stance to the interpretation of the letter the Court of First Instance and whether, if under examination in this case. The Director that should turn out not to be the case, that General of DG IV refers in that letter to the letter carries appreciable significance for the decision of 2 December 1991 and its possible present case. Indeed, the Commission sub effects on the treatment of the complaint mitted that the circumstances surrounding lodged by SFEI. He states that the Commis the contested letter were unimportant where sion will shortly be taking a position on this the significance of the letter clearly and question. The assumption that this gives unambiguously appears from its contents. notice of a preliminary statement of position That is however not the case here. Even the which was then given in the letter contested Commission's representative at the hearing in these proceedings is entirely plausible. had to concede that the contested letter con tained an element of ambiguity.
In my view the first question may be The appellants have attached particular answered relatively easily. The Court of First importance to the fact that the letter of 9 Instance mentions the letter of 9 Janu January 1992 speaks in this connection of ary 1992 in several places (paragraphs 17, 24 conclusions. Their interpretation that this and 25 of its order), in which it deals with term points to a definitive statement of posi the arguments of the parties. In the legal tion is entirely possible. On the other hand I evaluation, on the other hand, the letter no do not consider it be persuasive (or even longer appears. Solely in paragraph 46 of the mandatory). The use of this term is entirely order would it be possible to read a reference consistent with the idea that the contested to that document into the reference to para letter constitutes a preliminary statement of graph 25. However, the contents of that position. In that case the letter of 9 Janu paragraph militate against any such interpre ary 1992, as the Commission submits, could tation. The Court of First Instance there be simply construed as giving notice of that states that SFEI's letter to the Commission preliminary statement of position. of 15 November 1991 is not to be construed as a request to take a position within the meaning of Article 175 of the EEC Treaty. On the question whether those statements were necessary for the decision to be reached there is no need for me to express an opin ion. In any event there is scarcely any doubt 41. In accordance with what has been stated that neither in this nor in any other place hitherto the interpretation given to the con does the Court of First Instance in its order tested letter by the Court of First Instance express an opinion on the possible signific should be regarded as entirely possible and ance of the letter of 9 January 1992 for the arguable. As I have already said there are cer interpretation of the contested letter. tain factors which militate in favour of the interpretation advocated by the appellants. But, since the interpretation of the Court of First Instance is not vitiated by manifest 40. In my view, however, that question may errors, it may not be annulled on this in the end remain open since the letter of ground.
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42. I will now turn to the question whether reaction from the Commission. Preliminary the Court of First Instance correctly con observations made by Commission officials strued the concept of an act actionable under in the context of informal contacts cannot be Article 173. This is evidently a question of regarded as measures open to challenge. law which may be the subject of an appeal on a point of law, as is confirmed by the 26 Court's existing case-law.
43. In its order the Court evidently relied on In the second stage, the Commission informs 27 the complainant, in the notification pre its judgment in Automec I. In that judg ment the Court of First Instance held that scribed in Article 6 of Regulation No 99/63, three successive stages must be distinguished of the reasons for which it considers that in the course of Commission proceedings there are insufficient grounds for granting under Article 3(2) of Regulation No 17 and the application and gives the applicant the 28 opportunity to submit any further comments Article 6 of Regulation No 99/63. within a time-limit fixed by the Commission. The notification cannot be treated as a decision ...
'During the first of those stages, following the submission of the complaint, the Com mission collects the information referred to in Article 6 of Regulation No 99/63, on the basis of which it will decide what decision it will take on the complaint. That stage may include inter alia an informal exchange of In the third stage of the procedure, the Com views and information between the Commis mission takes cognizance of the observations sion and the complainant with a view to clar submitted by the complainant. Although ifying the factual and legal issues with which Article 6 of Regulation No 99/63 does not the complaint is concerned and to allowing explicitly provide for the possibility, this 29 the complainant an opportunity to expand stage may end with a final decision.' on his allegations in the light of any initial
26 — Cf. judgment in Case C-132/90 P Schwedler v Parliament [1991] ECR I-5745, paragraph 13; judgment in Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraph 16. 27 — See footnote 2. 28 — Regulation No 99/63/EEC of the Commission of 25 44. This exposition by the Court of First July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Instance I consider to be entirely helpful in Special Edition 1963-64, p. 47). Under Article 19(1) of Regu illustrating the procedure for investigating a lation No 17 before giving a decision under Article 3 the Commission must hear the parties concerned. Article 6 of complaint. It is not necessary for these pur- Regulation 99/63 provides as follows: 'If the Commission is of the opinion that the circumstances as ascertained by it do not give grounds for upholding an application brought under Article 3(2) of Regulation No 17, it should notify the applicants of the grounds for that decision and set them a period for submitting any written observations.' 29 — Ibid., (footnote 2), paragraphs 45 to 47.
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poses to go into the questions specifically whether the measure in question is intended raised by this conception of the procedure. to produce legal effects, irrespective of its If, upon examination, the question arises 32 form. In the case of acts which are formu whether a measure is in the nature of a deci lated in the course a multiphase procedure an sion or not, the scheme described above per act will indeed in principle be actionable mits the relevant measure to be assigned to only in the case of measures which defini the relevant stage of the proceedings. tively determine the Commission's view point and not in the case of preparatory 33 measures. In all cases, however, it is the content of the measure in question which is relevant. 45. However, in several places the order of the Court of First Instance appealed against conveys the impression that the Court of First Instance has reversed this logic: a mea sure cannot be an actionable act because it is to be assigned to the first (or the second) of 46. In the Philip Morris case the Court of the abovementioned procedural stages. I am Justice mentioned certain criteria which may referring to paragraphs 41 and 43 of the be availed of in determining whether a Com order appealed against. That argument of mission letter is to be construed as a conclu course amounts to nothing more than a peti- sive rejection of a complaint. In that case it tio principii. The same may also be said of established that the relevant letters con the Commission's argument that the con cluded the investigation, contained an assess tested letter could not be a decision since the ment of the agreements in question and pre Commission had not previously sent to the cluded the complainants from seeking a complainant a letter under Article 6 of Regu resumption of the investigation, unless they lation No 99/63 (requiring him to state his 34 31 could bring forward new evidence. views within a stated time-limit).
If that was in point of fact the view of the 47. The order appealed against reveals that Court of First Instance it must necessarily be this judgment was brought to the attention refuted. Under the Court's consistent case- of the Court of First Instance. Thus, in para law what is decisive in determining whether graphs 42 and 43 of its order the Court of an act is actionable under Article 173 is First Instance states that the contested letter contains no assessment of the facts submitted by the complainant and does not have the 30 — The last-mentioned section of the judgment specifically effect of terminating the procedure. leaves open the question whether the Commission if it does not wish to uphold a complaint, must upon application by the complainant reject the complaint by means of a formal decision (and not only may) which the complainant may then proceed against under Article 173 of the EEC Treaty. In my view the complainant is entitled to that much. The 32 — Judgment in Case 22/70 Commission v Council [1971] judgment of the Court of First Instance in the Antomec II ECR 263, paragraph 42; cf. most recently the judgment in case (judgment in Case T-24/90 Automec v Commission Case C-325/91 France v Commission [1993] ECR I-3283 [1992] ECR II-2223 which points in this direction (cf. para paragraph 9. graph 85) is therefore to be welcomed). 33 — Cf. judgment in Case 60/81 IBM v Commission [1981] 31 — This argument was, moreover, used by the Court of First ECR 2639, paragraphs 9 et seq. Instance in the Automec I case, ibid., footnote 2, paragraph 34 — Judgment in Joined Cases 142/84 and 156/84 BAT and Rey- nolds v Commission [1987] ECR 4487, paragraph 12.
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48. I am therefore of the opinion that those Third ground of appeal: Infringement of the places in the order in which the Court of principles of good faith and legal certainty First Instance appears to draw inferences as to the legal nature of the letter from the stage of the procedure to which in its view the let ter belonged, are merely attributable to a confused mode of expression. In accordance 35 with the findings referred to above, the Court of First Instance must be assumed to 50. In their last ground of appeal the appel have been familiar with the applicable law lants in effect are complaining that the Court and also to have applied that law. The mere of First Instance misconstrued a statement fact that the terms in which the order made by the Commission in its XXth Report appealed against is couched to that extent on Competition Policy. The Commission give grounds for certain doubts does not had explained that in future it would draft warrant the setting aside of that order. The the notification of preliminary observations appellate Court merely has to examine in complaint proceedings in such a way that whether the Court of First Instance the recipient could recognize them as an ini infringed rules of law. No such error can be tial reaction on the part of the Commission's established with certainty in this case. In the services. The Commission added that it present case it must also be borne in mind would in any event require recipients to sub that the interpretation by the Court of First mit their additional comments to the Com Instance of the contested letter appears as mission within a period to be fixed in the let such to be entirely defendable. To regard the ter, failing which the complaint would be 37 order as vitiated by legal defects simply regarded as terminated. owing to certain confused formulations would therefore be difficult to reconcile with the principle of the economy of legal pro ceedings.
The appellants construe this passage as meaning that a letter from the Commission 49. Nevertheless, the order contains detailed in which (as in the present case) no period is elucidations on a question (interpretation of set them for making known their observa the terms of the complaint of 21 December tions is to be construed as a rejection of their 1990) which are manifestly superfluous. 36 complaint. This factor makes it necessary to subject the other statements of the Court of First Instance to a particularly critical examina tion. Since in the end the order appealed against is not founded on the statements in question, that factor also can provide no warrant for setting aside the order appealed 51. I do not need to go into whether this is a against. question of fact or of law and whether any legal significance may be attached to the
35 — See paragraph 47. 36 — See paragraph 26 above. 37 — Ibid., (footnote 18), cf. No 165.
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statements made by the Commission in its moment for me to point out that these pro reports on competition policy, since the ceedings would never even have been started appellant's view is patently incorrect. had the Commission taken the necessary care in drafting the contested letter. The Commission could reasonably have been expected to make that effort, since in the The statement quoted admits of only one Automec I case the Court of First Instance reasonable interpretation, namely that the had already clearly given to understand that Commission undertakes at all times to grant the Commission's existing practices in this the complainants a period for the submission field left something to be desired. For in its of further observations and that a complaint XXth Report on Competition Policy the is to be regarded as terminated, if the com- Commission acknowledged the necessity for plainants do not avail themselves of this drafting its correspondence in complaint opportunity. This meaning is clearly proceedings in such a way as to avoid any expressed for example in the German and misapprehension as to their legal nature. It is 38 Italian versions of that report. Recourse therefore surprising that heed was not paid need not therefore be had to the offer made to that acknowledgement in the drafting of at the hearing by the appellant's representa the contested letter. Since the unclear for tive to include a linguistic expert opinion on mulation of that letter and the resulting dif the significance of the comma in the French ficulties concerning its legal evaluation gave version. rise to the appeal proceedings, it seems rea sonable that the Commission should bear the costs thereof in accordance with the first paragraph of Article 122 and Article 118 in 52. In the result, therefore, I am of the opin conjunction with the first paragraph of Art ion that the appeal cannot be allowed. How icle 69(3) of the Rules of Procedure of the ever, this is, I consider, an appropriate Court of Justice.
C — Conclusion
53 . I therefore propose that the Court should dismiss the appeal and order the Commission to pay the costs.
38 — The German text states 'bei deren Nichteinhaltung der Antrag als zu den Akten gelegt angesehen werde' (in the event of whose non-observance the application is deemed to have been discontinued.) In the Italian version '...qualora tab osservazioni non vengano trasmesse, la denuncia verrà considerata archiviata' (where such observations are not submitted, the complaint shall be deemed to have been ter minated).
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