C-107/95

BUNDESVERBAND DER BILANZBUCHHALTER v COMMISSION

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 11 July 1996 *

I — Introduction 3. The background to the dispute is set out in the abovementioned order of the Court of First Instance. The appellant association had lodged a complaint with the Commission calling in question the Steuerberatungsgesetz (German Law on Tax Advice), alleging infringement of Community law, inasmuch 1. In this appeal the Court is called upon to as that Law reserved the right to pursue the establish whether it is open to individuals to activity of adviser on tax and related matters bring an action for annulment, as provided to a number of specific categories of profes- for in Article 173 of the Treaty, against deci- sionals. In the view of the appellant, the leg- sions of the Commission refusing to take islation was contrary to Articles 59 and 86 of action on complaints seeking to have it exer- the EC Treaty. By maintaining that legisla- cise the powers conferred upon it by Articles tion in force the Federal Republic of Ger- 169 and 90(3) of the Treaty. many had thus failed to fulfil its obligations under the Treaty as provided for in the sec- ond paragraph of Article 5 and Article 90(1) and (2) thereof. The Commission should have taken steps to remedy the situation and ensure the application of the provisions of the Treaty.

II — Background to the dispute and argu- ments of the parties

2. The Bundesverband der Bilanzbuchhalter eV, an association governed by German law and the appellant in the present case, is chal- lenging before this Court the order of inad- missibility which the Court of First Instance The appellant claimed that the Court of First of the European Communities made on Instance should annul, pursuant to Article 23 January 1995. 1 173 of the Treaty, the Commission's decision not to take any action on the appellant's complaint. The reason given in the decision challenged at first instance for that refusal * Original language: Italian. was that, in the circumstances, there was no 1 — Case T-84/94 Bundesverband der Blaanzbuchhalter v Com- mission [1995] ECR II-101. infringement of Community law.

4. The Court of First Instance declared the found that it was not open to the appellant action inadmissible. Referring to the case-law to challenge the refusal of the Commission of the Court of Justice, 2 it held that it was in question. not open to the appellant to challenge the Commission's refusal to commence proceed- ings under Article 169 of the Treaty against the Federal Republic of Germany. The Com- mission had 'a discretionary power which precludes any right on the part of individuals to require it to adopt a specific position'. The Court of. First Instance further stated that, 'in the context of proceedings under Article 169 of the Treaty, persons who have lodged a complaint do not have the possibility of bringing an action before the Community judicature against the decision of the Com- 6. N o w the appellant claims that the Court mission not to take action on their com- of First Instance allegedly infringed Com- plaint'. munity law inasmuch as it did not take into consideration the Commission's alleged mis- use of powers. According to the appellant, the Commission had misassessed the facts set out at first instance and put forward in sup- port of the complaint lodged by the appel- lant seeking action under Article 169 of the Treaty. In this regard, the Bundesverband argues that, where there is a misassessment 5. The Court of First Instance adjudged the of the facts, there is a misuse of powers when action to be inadmissible also in so far as the Commission has no latitude to exercise concerned the alleged infringement of Article discretion. That is the case here. Infringe- 90(3) of the Treaty, having regard again in ment of Article 59 of the Treaty, as set out in this respect to the wide margin of discretion the complaint, is manifest. There is therefore, which that article conferred on the Commis- in the view of the appellant, an obligation on sion. The exercise of the power to assess the the part of the Commission to take action compatibility of State measures with the which, in the present case, would necessarily Treaty rules, conferred by Article 90(3) of have led to commencement of the procedure the Treaty, was not coupled with an obliga- under Article 169, notwithstanding the fact tion on the part of the Commission to take that, according to the case-law of the Court action. The Court of First Instance con- of Justice, the Commission enjoys a broad cluded that 'legal and natural persons who discretion in deciding whether to initiate the request the Commission to act under Article Article 169 procedure and individuals have 90(3) do not have the right to bring an action no possibility of challenging before the against a decision of the Commission refus- Community judicature any refusal to com- ing to use powers conferred upon it under mence that procedure. The Court of First Article 90(3)'. In the instant case, it was Instance infringed Community law as well, inasmuch as it did not find that the Commis- sion lacked in substance any discretionary power and did not correctly assess the facts 2 — See, in particular, Case 247/87 Star Fruit v Commission which gave rise to the dispute. [1989] ECR 291.

I shall disregard the fact that in previous The powers of the Commission under judgments the Court 3has refused individu- Article 169 of the Treaty, the defendant goes als the right to bring proceedings before the on to state, are parallel to the powers con- Community judicature under similar circum- ferred on the Member States by Article 170 stances, in view of the wide discretion which of the Treaty. Like the Commission, the the Commission enjoys with regard to com- Member States are in fact empowered, but mencing and pursuing the procedure in issue not required, under Article 170, to take action in order to pursue, any infringements of Community law committed by other 3 — See the judgment in Star Fruit, cited above, and in Case Member States. C-87/89 Sonito v Commission [1990] ECR I-1981.

I-951

OPINION OF MR LA PERGOLA — CASE C-107/95 P

11. In my opinion, there is, in any event, another reason relating to the very nature of the provision in question which precludes the appellant from having the right it claims by way of this plea in law. Article 169 of the Treaty belongs, after all, to the provisions None the less, to fill such a lacuna with the intended to govern the Community's institu- Court's power of interpretation would give tional system and ensure its proper function- rise, on closer examination, to far-reaching ing. These are in fact provisions which changes in the institutional framework, exclusively concern relations between the which is precisely the area in which the Member States and the institutions. authors of the Treaty clearly intended to give the provision in question the role set out above: in the scheme of the Treaty Article 169 plays the part of governing relations between the Commission and the Member States. This is the conclusion to which a sys- 12. Even though the Article 169 procedure, tematic interpretation of the provision leads: once put into motion, indirectly creates legal it need only be observed that the power to situations which may benefit individuals, it intervene in proceedings for failure to fulfil does not give them any right to intervene or obligations initiated by the Commission, provided for in Article 37 of the Statute of the Court of Justice, is given only to the Member States and the Community institu- 4 — See, ex multis, Case 169/84 Cofaz v Commission [1986] ECR tions. The individual plays no part here, 391 and, more recently, Case C-225/91 Matra v Commission [1993] ECR 1-3203, in particular paragraph 41. even in the initial pre-litigation stage. The

15. Unlike Article 169, Article 90(3) forms part of the framework of provisions specifi- cally designed to protect competition and to govern the conduct of undertakings in the market. Admittedly, a particular kind of undertaking is involved. Article 90 of the B — The plea in law concerning Article 90(3) Treaty in fact covers cases in which a Mem- ber State upsets the normal functioning of competition by means of the influence it exerts over undertakings it controls or on which it has conferred special rights. The provision is thus intended to protect econ- omic operators from any interference from 14. As regards the second plea in law, I the Member State, by means of the relations would state from the outset that the Com- it maintains with the undertakings of the mission — and the Court of First Instance, type described, which would jeopardize the in view of the reasoning which underlies the fundamental economic freedoms enshrined contested order — appear to consider Article in the Treaty. That provision thus protects 90(3) and Article 169 as parallel provisions, competition, albeit in consonance with the so to speak. Article 90(3) confers on the Commission powers of review and supervi- sion over the Member States, with regard to 5 — Case T-32/93 Ladbroke Racing v Commission [1994] ECR public undertakings and other undertakings II-1015.

I-953

OPINION OF MR LA PERGOLA — CASE C-107/95 P

17. However, I do not consider that the let- ter and the spirit of Article 90 rule out, as the Court of First Instance holds, the possibility of making subject to judicial review Com- mission decisions refusing to act on com- plaints submitted by individuals which it does not consider worthwhile taking up. According to the Court of First Instance, the Commission's discretion is so broad, that it is under no obligation to take action or, therefore, to give reasons for any refusal to take action on complaints lodged with it by the undertakings concerned. This means that the latter have no right to bring an action Article 90 is placed among the other rules on against measures whereby the Commission competition under Title V of the Treaty. The refuses to issue directives or adopt decisions sedes materiae is significant. The provision addressed to the States whose unlawful con- forms part of others which concern the con- duct is complained of by individuals. The duct of undertakings in the field of compe- Commission would thus be deciding not to tition, in particular those which govern State make use of a power which the Court of aid. The place and aim of the provision attest First Instance defines as a true prerogative to the fact that the individual may not, in the reserved to it by Article 90(3).

I-954

BUNDESVERBAND DER BILANZBUCHHALTER v COMMISSION

6 — See, among the most recent, Case C-198/91 Cook v Commu- 7 — See Joined Cases C-48/90 and C-66/90 Netherlands and sion [1993] ECR 1-2487 and Matra v Commission, cited Others v Commission [1992] ECR 1-565, in particular para- above. graphs 31 and 32.

I-955

OPINION OF MR LA PERGOLA — CASE C-107/95 P

for this decision is, as I have said, the First Instance should assess whether the breadth of the powers conferred on the action in the present case fulfils other condi- Commission. The mistake lay in not seeing tions of admissibility and possibly give a that, in the context of Article 90(3), that decision on the substance. power is limited by individuals' subjective rights, disregard of which may be relied upon by the person concerned before the Community judicature. IV — Costs

22. In the light of the foregoing consider- ations, I therefore consider that the contested 23. Under Article 122 of the Rules of Pro- order should be annulled only in so far as it cedure, the Court of First Instance must concerns the inadmissibility of the action make a decision as to costs in respect of the against the Commission's refusal to initiate appeal if it is upheld by the Court of Justice the proceedings provided for in Article 90(3) where the case is referred back to it for final of the Treaty. judgment.

Moreover, since the present case largely con- Since I propose that the contested order cerns the assessment of facts, and in order to should be set aside and the case referred back ensure access to both tiers of the judicature, I to the Court of First Instance, it is for the consider it appropriate that the Court of latter to make a decision as to costs.