C-264/95

COMMISSION ν UIC

OPINION OF ADVOCATE GENERAL LENZ delivered on 11 July 1996 *

A — Introduction 3. The Commission's proceeding concerned the conditions laid down by the Interna­ tional Railway Union — Union Internation­ ale des Chemins de Fer (hereinafter 'the UIC') — for the marketing by travel agents of international tickets for the carriage of passengers by rail. The railway companies involved in such international passenger transport cooperate in providing the relevant services. The price of a ticket generally cor­ responds to the total value of the fares pay­ 1. This appeal affords the Court for the first able for the relevant sections of the journey time an opportunity to rule on the demarca­ for which the different railway companies tion of the respective fields of application of are responsible. Operations are cleared after Council Regulation N o 17 of 6 February the event between the railway companies so 1962 — first regulation implementing that each receives the fraction of the ticket Articles 85 and 86 of the Treaty 1 — and price corresponding to the part of the service Council Regulation (EEC) N o 1017/68 of 19 which it provided. July 1968 applying rules of competition to transport by rail, road and inland water­ way. 2

4. Each international tickets can be sold either by the railway companies directly or by accredited travel agents. The travel agents receive commission on the tickets, from each of the railways providing the transport, which is calculated in accordance with the proportion of the revenue received by each 2. This appeal has been brought against the railway. A railway company which sells judgment of the Court of First Instance of 6 international tickets directly also receives June 1995, 3 in which that Court declared commission from the other railway compa­ void Commission Decision 92/568/EEC of nies providing the transport. 25 November 1992 4 relating to a proceeding under Article 85 of the E C Treaty.

6. Under Article 1.1 of Leaflet N o 130, According to Article 4.3 of the Leaflet com­ travel agents are accredited by the main rail­ mission was, 'in principle, ... uniformly set at way of the country in which they are 10%.' located. Authorization to sell international tickets is subject in principle to the agree­ ment of the other railways providing the transport. However, railways can make pro­ vision for exceptions to this rule in agree­ ments concluded amongst themselves. 9. Article 1.3 of Leaflet N o 130 recommends railways to use the provisions of the model contract in Appendix 1 to the Leaflet when drawing up agreements with travel agents. In Article 4.3 of that model contract a travel agent undertakes, inter alia, 'not to favour by its publicity, by its proposals and also by its advice to the public, the traffic of means 7. Article 3.2 of Leaflet N o 130 obliges the of transport competing with the Railways'. railways inter alia to pay commission on Articles 4.6 and 4.7 of the model contract their share of international tickets to travel stipulate that the travel agents must sell the agents where the latter have not issued the tickets at the fares notified by the railways. tickets themselves but have bought them from the railway which accredited them. This applies where the agreement between the travel agents and the railway concerned does not allow them to issue tickets them­ selves. It is recommended that the railways grant 'a lower rate of commission (5%) on 10. In its decision the Commission con­ the tickets purchased in this way than that cluded that the U I C had breached Article applied in the case of tickets issued by the 85(1) of the Treaty by adopting and circulat- Travel Agencies themselves ...'

— the setting of a standard rate of commis­ In support of its principal claim the applicant sion; put forward a plea alleging that the Commis­ sion had wrongfully based its Decision on Regulation N o 17 rather than on Regulation N o 1017/68. It further argued that the Com­ mission decision was in breach of Articles 85(1) and 85(3) of the Treaty and Article 5 of Regulation N o 1017/68. It also claimed that its right to a fair hearing had been infringed. — the requirement that agents must make Finally, it pleaded that the statement of rea­ out and sell tickets at the official fares sons of the Commission decision was inad­ indicated in the tariffs; equate.

— the requirement that agents must not favour competing means of transport in 12. The Court of First Instance confined their offers or advice to the public'. 7 itself to considering the first of the above- mentioned pleas alleging that the Com­ mission wrongfully applied Regulation 7 — Article 1 of the decision (cited in footnote 4). N o 1017/68.

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14. The Court of First Instance considered 16. The Court of First Instance then pointed those arguments in paragraphs 36 to 56 of its out that, while the third recital in the pre­ judgment. amble to Regulation N o 141 might be an important factor in the legislative framework of which it formed a part, the word 'directly' appeared neither in Article 1 of Regulation N o 1017/68 nor in Article 1 of Regulation N o 141 — the validity of which expired, in any event, on 30 June 1968 with regard to 15. It held in the first place that the judg­ transport by rail. Moreover, the wording of ment of the Court of Justice in the VVR case Article 1 of Regulation N o 1017/68 indicated was not relevant to the case under consider­ that its scope might be wider than suggested by the Commission. In addition, the fact that Article 2 of Regulation N o 1017/68 covered, 8 — Points 47 to 59 of the decision (cited in footnote 4). inter alia, matters which '... indirectly fix ... 9 — OJ, English Special Edition 1959 -1962, p. 291. any other trading conditions' supported that 10 — Cited in footnote 4; point 53. interpretation (paragraphs 43 to 45 of the 11 — Case 311/85 VVR ν Sociale Dienst van de Plaatseldijke en Gewestlijke Overleidsdiensten [1987] ECR 3801. judgment).

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The Court of First Instance stressed that it had not disregarded the Commission's argu­ 18. In the view of the Court of First ment that Leaflet N o 130 had effects on the Instance, Leaflet N o 130 'furthermore' market for the distribution of tickets. In the related both to the 'supply of transport' and present case, however, the main aspects fell to 'transport rates' within the meaning of within the scope of Regulation N o 1017/68. Regulation N o 1017/68 (paragraph 47 of the The effects to which the Commission judgment). referred were 'at the most secondary to the effects which relate to the transport sector properly so called' (paragraph 54 of the judg­ ment).

Article 1 of Leaflet N o 130 related 'directly' to the determination of points of sale of international railway tickets. If it were to have the effects alleged by the Commission, it would be limiting or controlling the rail­ ways' 'markets' and thereby the 'supply of 19. Finally, the Court of First Instance con­ transport' within the meaning of Regulation sidered that the specific activities of travel N o 1017/68. The commission referred to in agents with which the case was concerned

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were 'services ancillary to transport' within — that Leaflet N o 130 relates both to the the meaning of Regulation N o 1017/68 'supply of transport' and to 'transport (paragraphs 55 to 56 of the judgment). rates' within the meaning of Regulation N o 1017/68, and

20. In view of the differences between Regu­ lation N o 17 and Regulation N o 1017/68, the application of the wrong legal basis con­ — that, in distributing tickets on behalf of stituted a breach of an essential procedural railways, travel agents were providing requirement and had deprived the applicant 'services ancillary to transport' within the of the procedural safeguards to which it had meaning of Article 1 of Regulation N o been entitled. 1 2 1017/68.

25. As I have already mentioned, the Court of First Instance confined itself in the con­ tested judgment to considering whether the Commission had applied the correct legal basis for its decision. The task of the Court of Justice in the present appeal is accordingly II — The grounds of appeal in detail limited to considering whether the Court of First Instance committed errors of law in so doing. The question raised by the U I C in its response to the appeal and in the rejoinder as to whether the Commission's decision con­ tained an adequate statement of reasons is therefore irrelevant to the appeal. 1. Field of application of Regulation No 1017/68

28. The U I C argues that it is wrong to assume that in paragraph 46 of its judgment 30. The Commission's view that Regulation the Court of Justice intended to lay down a N o 1017/68 is intended in principle to cover general criterion to the effect that Regulation only agreements which directly concern the N o 1017/68 applied to all activities related provision of transport services as such is to, and indispensable for, the provision of based primarily on the rules laid down by transport services. It argues that the Court of Regulation N o 141. To understand this view First Instance simply used those terms to it is accordingly necessary to call to mind at describe Leaflet N o 130. This was one of the the legislative history of the transport sector. indicia on which the Court of First Instance based its finding that Leaflet N o 130 relates to particular aspects of international rail transport. If that had not been the case, the Court of First Instance would not have needed to consider immediately thereafter whether the Leaflet related to the supply of transport services or to transport rates.

34. O n 19 July 1968 — following the expiry 'The distinctive features of transport make it of that deadline — the Council adopted justifiable to exempt from the application of Regulation N o 1017/68. The Council Regulation 17 only agreements, decisions referred to Regulation N o 141 in the pre­ and concerted practices directly relating to amble thereto. It went on to state that estab­ the provision of transport services ...' lishing rules of competition for transport by rail, road and inland waterway is part of the common transport policy and of general economic policy. 1 7 When such rules were being settled account had to be taken of 'the distinctive features of transport.' 18 Since the rules of competition for transport derogated 32. Article 1 of Regulation N o 141 reads as from the general rules of competition, it had follows: to be 'made possible for undertakings to ascertain what rules apply in any particular case'. 19

37. Under Article 30(1), Regulation N o 'The provisions of this regulation shall, in 1017/68 entered into force — retroactively the field of transport by rail, road and inland — on 1 July 1968. waterway, apply both to all agreements, deci­ sions and concerted practices which have as their object or effect the fixing of transport rates and conditions, the limitation or con­ trol of the supply of transport, the sharing of transport markets, the application of techni­ cal improvements or technical cooperation, or the joint financing or acquisition of trans­ 38. This shows that the limitation to agree­ port equipment or supplies where such ments 'directly' relating to the provision of operations are directly related to the provi­ transport services mentioned in the third sion of transport services and are necessary recital in the preamble to Regulation N o 141 for the joint operation of services by a is not expressly reflected in Article 1 of the grouping within the meaning of Article 4 of Regulation. N o r is there any corresponding road or inland waterway transport undertak­ limitation in Article 1 of Regulation N o ings, and to the abuse of a dominant position 1017/68 — except in one particular case. It is on the transport market. These provisions also undisputed that Regulation N o 1017/68 shall apply also to operations of providers of replaced Regulation N o 141 in the rail, road services ancillary to transport which have and inland waterway transport sectors with any of the objects or effects listed above.' effect from 1 July 1968. However, what con­ clusions should be drawn from these facts are in dispute.

the Court of First Instance as expressed in 41. In the first place, the Commission quite the contested judgment. rightly points out that there is a close rela­ tionship between Regulation N o 141 and Regulation N o 1017/68. The latter regulation refers explicitly to Regulation N o 141 in its preamble. It entered into force at the time when Regulation N o 141 ceased to apply to transport by rail, road and inland waterway, and followed on directly from it. Leaving aside the inclusion of technical agreements, The U I C further argues that the field of agreements on joint financing or joint acqui­ application of Regulation N o 1017/68 is sition of transport equipment or supplies and wider than that of Regulation N o 141. The the rules concerning the operations of pro­ regulation now in force also covers agree­ viders of services ancillary to transport con­ ments not directly related to transport. It tained in the second sentence, the scope of was entirely within the Council's power to Article 1 of Regulation N o 1017/68 is other­ give Regulation N o 1017/68 a wider field of wise largely identical with that of Article 1 of application than Regulation N o 141. More­ Regulation N o 141. over, Regulation N o 1017/68 was prefaced by extensive recitals. If the Council really had intended to restrict the field of applica­ tion of the regulation in the way the Com­ mission argues it did, it would have explained this in Article 1 itself or at least in the preamble. O n that point, it should be noted that, when it adopted Regulation N o 42. To my mind there can be no doubt that 1017/68, the Council was aware — as is clear Article 1 of Regulation N o 141 should be from the recitals — of the need to preserve interpreted restrictively. That much is clear legal certainty. simply from the fact that Regulation N o 141 excluded the transport sector from the appli­ cation of Regulation N o 17. Since Regulation N o 17 is the general regulation for the implementation of Articles 85 and 86 of the Treaty, Regulation N o 141 — just like Regu­ lation N o 1017/68 — should be treated as a derogating provision and should be inter­ preted no more broadly than its purpose 40. There is much to be said for this argu­ requires. ment. In particular, it is significantly easier to reconcile with the wording of Article 1 of Regulation N o 1017/68 than the view taken by the Commission. Nevertheless, I have come to the view that the interpretation advocated by the Commission should be preferred. However, that purpose was to reconcile the performance of the task set by the Treaty in Article 3(g) of instituting a 'system ensuring 22 — Cited in footnote 3; at paragraph 43. that competition in the internal market is not

'The objectives of this Treaty shall, in mat­ ters governed by this Title, be pursued by Member States within the framework of a common transport policy.' 44. That decision of the Court of Justice was concerned with whether the general provi­ sions of the Treaty were also applicable to sea transport, even though, according to Article 84(1), Title IV only applied to rail, road and inland waterway transport. How­ In its judgment in Commission ν France 26 ever, the Court's finding can be generalized. the Court of Justice held in this connection: It is undisputed that the provisions of Title IV apply to the rail transport sector (and to road and inland waterway transport). If the general provisions of the Treaty are appli­ cable in a sector which Title IV does not 'When Article 74 refers to the objectives of cover, then they must be applicable in a sec­ the Treaty, it means the provisions of tor such as rail transport which does come under the provisions of that Title. Accord­ ingly, the general provisions of the Treaty — and thus Articles 85 and 86, too — must be 23 — That provision corresponds to the original Article 3(f) of the EEC Treaty which refers to competition 'in the com­ applied in the rail transport sector in so far mon market' although no difference of ;1 substance is involved. as the objectives of the Treaty can be 24 — That article empowers the Council to adopt the regulations achieved on that basis. The same is true of or directives required 'to give effect to the principles set out in Articles 85 and 86.' the general provisions adopted in order to 25 — Regulation N o 1017/68 expressly emphasizes this in the implement those provisions. The adoption of third recital in the preamble thereto (cited above). special rules on competition, for example, is 26 — Case 167/73 Commission ν France [1974] ECR 359, para­ graphs 24, 25 and 26. called for only in so far as it is necessary 'to

47. As I have already mentioned, the recitals 45. The Council was aware of these relation­ in the preamble to Regulation N o 1017/68 ships when it adopted Regulation N o 141. refer to Regulation N o 141. Moreover, The distinctive features of the transport sec­ Regulation N o 1017/68 entered into force tor are referred to in the very first recital. In when Regulation N o 141 ceased to be force the third recital the inference is drawn there­ as regards the sector in issue. Apart from from that the 'distinctive features of trans­ that, the abovementioned parallels in the port' make it justifiable to exempt from the wording above all suggest that the agree­ application of Regulation N o 17 only agree­ ments mentioned both in Article 1 of Regu­ ments, decisions and concerted practices lation N o 1017/68 and in Article 1 of Regu­ directly relating to the provision of transport lation N o 141 should be interpreted in the services. The fact that this restriction is not same way. expressly stated in Article 1 of Regulation N o 141 is, in my view, irrelevant. The Coun­ cil had clearly stated in the preamble to the regulation that the exemption from the application of Regulation N o 17 laid down by Article 1 should be limited to agreements which had a direct connection with the pro­ vision of transport services. There could thus be no doubt that Article 1 was to be inter­ preted in that way and hence restrictively. 48. However, both the U I C and the judg­ ment of the Court of First Instance point out that certain agreements included in Article 1 of Regulation N o 1017/68 do not appear in Regulation N o 141. They draw the conclu­ sion that the regulation at present in force is broader in scope than Regulation N o 141. 46. These considerations are not of historical This is obvious and is not disputed by the interest only, Regulation N o 141 was indeed Commission. The crucial question, however, superseded by Regulation N o 1017/68 in the is whether, as a result, a broader interpreta­ rail, road and inland waterway transport sec­ tion should be given to the other agreements tors. However, as far as the interpretation of which were already covered by Regulation N o 141 and the requirement for a direct link with the provision of transport services should be disregarded. In my view that ques­ 27 — The words used by the Court in Commisńon ν France (cited in footnote 26; at paragraph 27). tion should be answered in the negative.

49. The Commission has pointed out that includes only those operations of providers the technical agreements and agreements on of services ancillary to transport 'which have the financing or acquisition of transport any of the objects or effects listed above'. equipment or supplies mentioned in the first Thus the second sentence contributes noth­ sentence of Article 1 of Regulation N o ing to the interpretation of the agreements 1017/68 were included in the regulation for under discussion listed in the first sentence specific purposes. It should, indeed, be noted of the article. that Articles 3 and 4 of the regulation makes provision for exemptions from the prohibi­ tion of cartels for agreements of this nature. If regard is had to the reasons given by the Council to justify this provision, 28 the Commission's view that the Council did not include such agreements in the regulation in order to widen its sphere of application on generally, but to ensure the legitimacy of such agreements, definitely appears plausible. 50. In that connection I would point out that, contrary to the view taken by the Court of First Instance, no inference as to the extent of the field of application of the regu­ lation can be drawn from Article 2 of Regu­ lation N o 1017/68. Article 2 is concerned only with the prohibition of cartels. In con­ trast, the field of application of the regu­ lation, is determined exclusively by Article 1. Moreover, the Commission has cogently argued that the inclusion of Article 2, whose N o r does the inclusion in the second sen­ wording echoes Article 85 of the Treaty, can tence of Article 1 of Regulation N o 1017/68 be attributed to the fact that, at the time of certain operations of providers of services when the regulation was adopted, it was still ancillary to transport conflict with that view. not beyond doubt whether Article 85 of the Admittedly, I do not agree with the Com­ Treaty was directly applicable to the trans­ mission when it claims that Regulation port sector. N o r has the U I C , in its submis­ N o 141 already covered such operations. O n sions in the present proceedings, expressly the one hand, the Commission was unable to espoused the argument of the Court of First provide evidence in support of its assertion Instance based on Article 2 of the regulation. that this was clear from the Council's think­ ing at the time. O n the other, the wording of the sixth recital in the preamble to Regu­ lation N o 1017/68 clearly does not support this view, stating, as it does, that it was 'desirable' that the regulation should 'apply' to such operations. However, the deciding factor, to my mind, is the fact that the second sentence of Article 1 of the regulation 51. The Commission also argues that the interpretation put forward by the Court of 28 — See particularly the sixth, eighth and ninth recitals. First Instance would mean that Article 1 of

52. Admittedly, it must be conceded that the wording of Regulation N o 1017/68 consid­ ered in isolation tends to support the inter­ pretation favoured by the U I C and the Court of First Instance. However, in my 53. Convincing support for the view taken view, even in that wording there is some sup­ here is to be found — as the Commission port — admittedly not compelling — for the has rightly pointed out — in the procedural Commission's view. The assertion of the regulations on the application of rules on Court of First Instance in paragraph 43 of its competition in the field of air transport. judgment that the word 'directly' does not Article 1 of Regulation N o 141 excluded the appear in Article 1 of Regulation N o application of Regulation N o 17 in this sec­ 1017/68 is incorrect. The joint financing or tor, too. The resulting gap was not filled acquisition of transport equipment or sup­ until the adoption of Council Regulation plies are covered by Article 1 only if they are (EEC) N o 3957/87 of 14 December 1987 'directly related to the provision of transport laying down the procedure for the applica­ services.' That criterion is not mentioned in tion of the rules on competition to undertak­ the sixth recital in the preamble to the regu­ ings in the air transport sector. 2 9 According lation, in which the Council gives reasons for to Article 1 of the regulation it 'lays down the inclusion of such operations. However, it detailed rules for the application of Articles is stated there that the rules should 'apply 85 and 86 of the Treaty to air transport equally' to such operations. As there is no indication in the remaining recitals of Regu­ lation N o 1017/68 as to what is meant by 29 — OJ 1987 L 374, p. 1.

54. This recital shows quite clearly that, in the air transport sector at least, the Council shares the view taken by the Commission in these proceedings that the special rules on competition should cover only agreements which relate directly to transport services as such, whereas all other agreements are to be assessed against the general rules of Regu­ lation N o 17. This is consonant with the 55. The abovementioned rules on the air transport sector also show quite clearly that the arguments of the U I C based on the 30 — OJ 1987 L 374, p. 9. ostensibly clear wording of Regulation

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In the first place, the limited field of applica­ tion of Regulation N o 1017/68 is clear from the very fact that the legislature was empow­ ered only to enact such rules in so far as they were required by the distinctive features of transport. The Council had this limitation in 57. I am, therefore, of the opinion that the mind when it adopted Regulation N o 141, as Court of First Instance interpreted the field of application of Regulation N o 1017/68 incorrectly and thereby erred in law. That error of law would, however, be of no con­ 31 — See the fifth recital in the preamble to Regulation N o 1017/68. sequence if the view of the Court of First

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Instance that Leaflet N o 130 fell in any event does not limit the supply of transport but within the scope of the regulation were cor­ the supply of intermediate services for the rect. marketing of transport services.

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62. It is true, admittedly, that the provisions control the supply of transport within the on the accreditation of travel agents can meaning of Article 1 of Regulation N o themselves have certain indirect effects on 1017/68. the supply of transport services. For example, it is conceivable that a restriction of the number of points of sale might lead to a drop in demand for tickets, which might prompt railway companies to reduce the supply of transport. At the same time, how­ ever, this example shows that such indirect effects are in fact rather unlikely. Moreover, (b) 'Fixing transport rates and conditions' the Commission rightly points out that the railway companies can have no interest at all in such effects.

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70. However, it should be borne in mind that it is the railway companies concerned which fix the rate for the transport they pro­ vide. The Court of First Instance acknowl­ edges in its judgment that the relevant article of the model contract does not concern the fixing of the official fares themselves. 3 3 If the article actually prevented travel agents from 68. As the Commission has rightly acknowl­ passing their commission on to passengers or edged, the provisions of Articles 3 and 4 of Leaflet N o 130 do not relate to the market in transport as such but to the market for the distribution of tickets. As far as the supply of 33 — Cited in footnote 3; at paragraph 50.

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sharing it with them, that would, in the view to which Regulation N o 1017/68 does not of the Court of First Instance, constitute the apply. The Commission rightly asks whether, fixing of transport rates 'in so far as the rail­ for that reason alone, it should apply all ways would thus be preventing any compe­ three sets of special procedural rules valid for tition on transport rates between accredited those sectors to the article in issue. 34 agents.' Consequently, the Court of First Instance also recognizes that the article in issue relates to competition between travel agents and thus to the distribution sector but not to transport as such. For that reason too, in my view, this is not a case of the 'fixing of transport rates' within the meaning of Article 1 of Regulation N o 1017/68.

72. A sensible solution can only be found by bearing in mind that the provisions of Leaf­ let N o 130 do not direcdy concern the mar­ ket for transport but the market for the dis­ tribution of transport. Their major impact is on that market. The impact on the transport market itself is, in contrast, of a secondary order. Therefore, Regulation N o 17, and not Regulation N o 1017/68, should be applied to these provisions.

74. The expression 'services ancillary to limited scope: transport commission agents, transport' is not defined in the regulation. In bulking or handling undertakings, and so its decision the Commission referred to the on'. 3 8 Council Directive of 29 June 1982 on mea­ sures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies (ISIC Group 718) and in storage and ware­ housing (ISIC Group 720). 3 6 According to 76. I, too, am inclined to take the view that Article 3 of that directive, the expression the expression 'services ancillary to trans­ 'persons in certain services incidental to port' has a particular, narrow meaning. transport' covers the activities of a 'commis­ Everything suggests that it only has any sionaire de transport' (in Belgium, France meaning in the freight sector. One cannot and Luxembourg), a 'Spediteur' (in Ger­ object — as the U I C does — that this would many) and a 'freight forwarder' (in the curtail the field of application of Regulation United Kingdom). Travel agents, on the N o 1017/68. As the Commission rightly other hand, are listed in this nomenclature argues, the expressions used in the regulation under 'travel agencies.' This terminology, are to be interpreted according to their actual however, is not binding in the case of Regu­ meaning and not with a view to treating pas­ lation N o 1017/68, which has entirely differ­ senger transport and freight transport as far ent aims from those of the directive. as possible in the same way. I do not think it is correct, however, to make matters depend simply on the fact that a person is carrying out an auxiliary activity in the transport sec­ tor, as the Court of First Instance appears to have done.

sions above, be activities which directly con­ stage of the proceedings, however, it is not cern the supply of transport services. This is possible to dismiss the UIC's action against clearly not the case here. Travel agents do the Commission decision, in line with the not supply transport services. Their activities Commission's claim. As I have already men­ are confined to the distribution of tickets. tioned, the U I C relied on several pleas in the The agreements in issue here, which affect proceedings before the Court of First competition on that market, should, there­ Instance, of which that Court has only con­ fore, be assessed not by the yardstick of sidered one. The case must therefore be Regulation N o 1017/68 but in the light of referred back to the Court of First Instance the general procedural regulation, Regulation pursuant to the first paragraph of Article 54 N o 17. of the Statute of the Court of Justice of the EEC.

III — Summary 79. Under Article 122 of the Rules of Pro­ cedure the Court of Justice is to make an order as to costs 'where the appeal is unfounded or where the appeal is well 78. For all the above reasons I take the view founded and the Court itself gives final judg­ that the judgment of the Court of First ment in the case'. As this is not the case here, Instance is vitiated by errors of law and the decision as to costs should be reserved to should therefore be set aside. At the present the Court of First Instance.

C — Conclusion

80. I therefore p r o p o s e that the j u d g m e n t of the C o u r t of First Instance of 6 J u n e 1995 in Case T-14/93 Union Internationale des Chemins de Fer ν Commission s h o u l d be set aside, the case referred back t o the C o u r t of First Instance and the costs reserved.