C-70/97

2. Kruidvat is the Belgian subsidiary of a Dutch retail chain of some 300 shops which sells, inter alia, luxury perfumes, including those of Parfums Givenchy SA (hereinafter 'Givenchy'), which it purchases on the par- allel market. Givenchy, part of the Louis Vuitton Moët-Hennessy group, sells through 4. O n 3 July 1992, Copardis SA, the exclu- a selective distribution network ('the net- sive representative of Givenchy in Belgium, work') based on agreements with its exclusive had commenced proceedings against Kruidvat agents and with specialised retailers. BVBA before the Rechtbank van Koophandel te Dendermonde (Commercial Court, Den- dermonde) on the basis that the sale of

* Original language: English. 1 — Case T-87/92 Kruidvat v Commission [1996] ECR II-1931, hereinafter 'Kruidvat'. 3 — OJ, English Special Edition 1959-62 (I), p. 87, hereinafter 2 — OJ 1992 L 236, p. 11. 'Regulation No 17'.

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5. Kruidvat also received a letter of 17 July 1992 from Belluco, which represents all the authorised general distributors for Belgium and Luxembourg in the luxury cosmetics sector, including Givenchy products. Belluco 7. The contested Decision is addressed to stated, following a meeting with Kruidvat on Givenchy and is thus a decision addressed to 8 July 1992, that Kruidvat was not eligible for 'another person' for the purposes of Arti- authorisation as a distributor because its name cle 173 of the Treaty. Consequently, Kruidvat was not such as to be associated with luxury had to establish that the Decision was, none cosmetics, and that the sale of branded goods the less, of direct and individual concern to it. by an unauthorised distributor was unlawful. Kruidvat argued that it was individually con- In addition, Belluco gave Kruidvat notice to cerned on three main grounds: that it had discontinue sales of the cosmetic goods con- participated in the administrative procedure cerned in the whole of Belgium within two through its parent company's membership of weeks, failing which Belluco would take such the Raad FGB, that a concrete case was being legal action as was available to it. heard in the matter before the Belgian courts, and that full judicial protection required that undertakings in its position be permitted to bring such annulment actions. The Court of First Instance rejected its application as inad- missible, on the basis that it was not indi- vidually concerned by the Decision. 4

6. By application lodged on 16 October 1992, Kruidvat commenced annulment proceedings 4 — In the discussion which follows, I refer occasionally to appli- before the Court of First Instance in respect cants' loots standi or standing. This should not, of course, be understood as suggesting that resolution of the problem of of the contested Decision. By a separate docu- individual concern, which is central to the question of standing ment, lodged on 3 March 1993, the Commis- in this case, dispenses with the need to satisfy the other con- ditions in Article 173, viz. the existence of a decision which sion raised an objection of inadmissibility. O n can be challenged which directly concerns the applicant.

10. The Court of First Instance found that, in so far as Kruidvat was unable to secure Givenchy supplies through the selective dis- 9. The Court of First Instance observed that tribution network in the Community, its posi- neither Kruidvat nor its parent companies, tion was no different from that of many other Profitmarkt BV and Kruidvat BV, nor the undertakings. In any event, there was no evi- Evora Group, had complained to the Com- dence that Kruidvat would not be able, as mission pursuant to Article 3 of Regulation before, to secure supplies of Givenchy prod- N o 17. Neither had they participated in the ucts, as it was not bound by the terms of the administrative procedure under Article 19(3) selective distribution agreements. 7 of that Regulation, or requested admission to Givenchy's selective distribution network. 5 While Kruidvat N V was a member of the Raad FGB, there was nothing to indicate that the latter had acted on its behalf, or that Kru- idvat N V had contributed in any way to, or even influenced, the content of the Raad FGB's submissions. In fact, there was at least 11. The Court of First Instance observed that one important difference between the Raad the national proceedings had, at most, an FGB's position before the Commission and indirect link with the validity of the contested that of Kruidvat before the Court of First Decision. Those proceedings did not relate to Instance, in that the former accepted the prin- refusal of admission to the Givenchy network ciple of selective distribution, subject to objec- tive and non-discriminatory criteria, whereas 6 — Paragraphs 64 to 66. 7 — Paragraphs 69 to 71. See Case C-226/94 Grand Garage Albi- geois and Others v Garage Massol [1996] ECRI-651; Case C-309/94 Nissan France and Others v Dupasquier and 5 — Kruidvat, paragraph 63. Others [1996] ECR I-677.

C — Kruidvat's third argument

15. Written and oral submissions were also 13. The Court of First Instance held that even presented by the Commission, Colipa and if the validity of the contested Decision were Givenchy. They requested the Court to reject liable to affect the outcome of the proceed- the appeal as inadmissible in one respect and ings before the national court, that court otherwise as unfounded and to order Kru- idvat to pay their respective costs.

8 — Paragraphs 72 to 74. 9 — Paragraph 76. 10 — Paragraph 75.

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A — First ground of appeal: misinterpretation seeks to show, by analysis of the letter of the of Article 173 Raad FGB, that the Court of First Instance was mistaken in concluding that there was a contradiction between it and the position taken by Kruidvat in its application.

18. I can state at once that I agree with the 11 —Joined Cases T-447/93 to T-449/93 [1995] ECR II-1971, Commission and Colipa that Kruidvat's third paragraph 62, hereinafter 'AITEC'. point, regarding the difference between the

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19. Kruidvat says that at the moment it com- menced its action before the Court of First Instance, it was already concerned in the action brought against it by Copardis, in which, by 'way of defence, it challenged the validity of the network operated by Givenchy. It criticises the Court of First Instance for failing to take account of Metro v Commis- 20. The Commission responds that the situ- ation of an undertaking which is refused admission to a distribution system is much 12 — Article 51, EC Statute of the Court of Justice. 13 — Case C-53/92 Hütt v Commission [1994] ECR I-667, para- graphs 10 and 43; Case C-136/92 P Commission v Brazzeüi Lualdi and Others [1994] ECR I-1981, paragraph 48. For a recent application of this principle, see order in 14 — Case 75/84 [1986] ECR 3021. Case C-55/97 P AWFFASS and Others v Commission [1997] 15 — Case C-376/92 [1994] ECR I-15, paragraph 24, hereinafter ECR I-5383. 'Metro v Cartier'.

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21. Since it buys and sells Givenchy prod- ucts, Kruidvat is a competitor of the approved resellers within the network. Thus, it argues, by analogy with the position of the com- 22. Kruidvat advances one particular argu- petitor of the recipient of a State aid and in ment under this heading regarding the claimed reliance on Cook v Commission and Matra v inconsistency between the position adopted Commission, 16 it is just as individually con- in the judgment under appeal and that adopted cerned with a decision of the Commission by the Court of First Instance in its judgment made under Regulation N o 17 as the appli- in Métropole Television and Others v Com- cants in those cases were where the decision

17 — OJ 1989 L 40, p. 1. 16 — Case C-198/91 Cook v Commission [1993] ECR I-2487, here- 18 — See the Opinion of Advocate General Jacobs of 29 January inafter 'Cook', paragraph 24; Case C-225/91 Matra v Com- 1998 in Case C-355/96 Silhouette International Schmied v mission [1993] ECR I-3203, hereinafter 'Matra', paragraph 18. Hartlauer Handehgesellschaft [1998] ECR I-4802.

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mission. 19In that case the annulment action protected through participation in the admin- was held admissible even though two of the istrative procedure; there is also the possi- applicant undertakings, which were interested bility of seeking a preliminary ruling within parties within the meaning of Article 19(3) of the framework of national proceedings. The Regulation N o 17, had not participated effect of Directive 89/104/EEC can be dis- actively in the administrative procedure. counted, as it was implemented in the Benelux States only on 1 January 1996.

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26. The Commission counters that the Court contradicts AITEC, in so far as it requires implicitly considered the protection afforded members of an association to have approved by the Article 177 procedure to enterprises or solicited its intervention in administrative which are not directly and individually con- proceedings in order to be individually con- cerned by a decision to be adequate in TWD cerned by the resulting decision. 24 Secondly, Textilwerke Deggendorf. 22 the Court of First Instance's statement that national legal proceedings give rise to a more remote connection with a Commission deci- sion on a selective distribution network than refusal of admission to that network 25 is inconsistent with Metro v Cartier. Thirdly, B — Second ground of appeal: breach of the Court of First Instance failed to take Article 190 account of its earlier judgment in Métropole when concluding that Kruidvat was not dif- ferentiated from any other market operator. 26

27. Kruidvat submits that the judgment of the Court of First Instance is in breach of the general principle of law applicable to every court, which requires it to state the reasons on which its decisions are based, by indi- cating in particular the reasons which led it (ii) Kruidvat's second argument: other fail- not to uphold complaints expressly raised ures of reasoning before it. 23

(i) Kruidvat's first argument: unexplained contradictions of case-law 29. The Court of First Instance is alleged to have failed to express sufficient reasons for its conclusion that there were important differ- ences between the positions of Kruidvat and the Raad FGB; 27 to have failed to take account of Kruidvat's status as the 'absolute number 28. Kruidvat argues that the Court of First one' perfume retailer in the Netherlands in Instance omitted to give reasons for inconsis- concluding that Kruidvat was not differenti- tencies between its judgment and three lines ated from other economic operators in the of case-law. First, the judgment allegedly

IV — Analysis of Kruidvat's grounds of appeal

'Persons other than those to 'whom a decision is addressed may only claim to be individu­ ally concerned if that decision affects them by A — First ground of appeal· misinterpretation reason of certain attributes which are peculiar of Article 173 to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distin­ guishes them individually just as in the case 34 of the person addressed.'

31. The decision of the C o u r t in Plaumann v Commission 3 1 remains the starting point for 32 — Page 107 of the judgment. 33 — This can include associations which do not have legal per­ sonality, as in Case 191/82 Fediol v Commission [1983] ECR 2913, hereinafter 'Fedioľ', this problem is overcome through application of 'a theory based on the reality of the 28 — Paragraphs 1 and 70. organisation's position or on its functions', per Advocate 29 — Paragraph 75. General Rozès, p. 2939 of her Opinion. See also Case 135/81 30 — Paragraph 71. Groupement des Agences de Voyages v Commission [1982] ECR 3799, paragraphs 8 to 11. 31 — Case 25/62 Plaumann v Commission [1963] ECR 95, here- inafter 'Plaumann'. 34 — Ibid.

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34. The Court has progressively recognised the existence of individual concern or differ- entiation in respect of active participants in the administrative proceedings leading to the 35. It is well established that an association, adoption of decisions in the fields of compe- in its capacity as the representative of a tition law, State aids and anti-dumping. In

36 — Case 26/76 [1977] ECR 1875. See also Casc 210/81 Demo- Studio Schmidt v Commission [1983] ECR 3045, hereinafter 35 — See, for example, Joined Cases 10/68 and 18/68 Eridania v 'Demo-Studio Schmidt'', paragraphs 14 and 15, and Metro il, Commission [1969] ECR 459; Case 206/87 Lefebure Frère et paragraph 22. Soeur v Commission [1989] ECR 275. 37 — Ibid., paragraph 13, emphasis added.

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takings. Their right of participation in certain ised specifically in [Regulation N o 3017/79]', administrative procedures is expressly or such as 'the right to lodge a complaint [and] the right, which is inherent in the aforemen- implicitly recognised by Community legisla- tioned right, to have that complaint consid- tion. 39 In fact, the economy of the procedure ered by the Commission with proper care'. 42 may even be better served by the active par- The Court considered that 'in the spirit of the ticipation of associations of traders or pro- principles which lie behind Articles 164 and ducers, in so far as these bodies may be better 173 of the Treaty, complainants have the right informed and equipped by knowledge and to avail themselves .

p. 1. The exercise of that enmlement, as then set out in Article 5(1) of Council Regulation (EEC) N o 3017/79 of 20 December 1979 on protection against dumped or subsidised 36. The same may be said of Van der Kooy, imports from countries not members of the European Eco- the second in time of two pertinent cases nomic Community, OJ 1979 L 339, p. 1, underlies the deci- sion of the Court in Fediol, discussed immediately below. Associations are implicitly recognised as entitled to instigate or participate in administrative proceedings under Regula- tion N o 17 due to their status as 'natural or legal persons who claim a legitimate interest' under Article 3(2)(b) or as 41 — Cited above. 'interested third parties' under Article 19(3). 42 — Paragraph 28, emphasis added. Sec further, regarding rights to have an administrative proceeding initiated, the discus- 40 — See the Opinion of Advocate General Sir Gordon Slynn in sion below of Cook and Matra. Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [19881 ECR 219, hereinafter 'Van der 43 — Ibid., paragraph 29. Kooy', p. 246, and paragraph 60 in AITEC. 44 — Ibid., paragraph 30.

38. The earlier of the two Dutch gas cases mentioned above was Cofaz, 50 which exem- 37. In Timex v Council and Commission, 46 plified member companies of an association, the Court addressed the position of an indi- which took part in the administrative proce- vidual undertaking subsequent to the initia- dure under Article 93(2) of the Treaty, suc- tion of administrative proceedings in the anti- cessfully invoking the standing to bring an dumping field at the behest of an association annulment application. The Court's judgment of which it was a member. Timex Corpora- is unclear regarding the extent of the partici- tion sought the annulment of an anti-dumping pation of the applicant undertakings in that measure which was adopted pursuant to a procedure. Both the judgment and the complaint by the British Clock and Watch Opinion of Advocate General VerLoren van Manufacturers' Association, of which it was Themaat state that a trade association, the a member. However, it appeared that the Syndicat Professionnel de l'Industrie des association took action only after an earlier Engrais Azotés, made a complaint to the Commission regarding the preferential nature

45 — For another example of the standing of complainant associa- tions in the field of State aids to Dring actions themselves 47 — Ibid., paragraphs 13 to 15. under Article 173, see Case C-313/90 C/RFS and Others v Commission [1993] ECR I-1125, hereinafter 'CIRFS', para- 48 — Ibid., paragraph 15. graphs 29 and 30. 49 — Ibid., paragraph 16. 46 — Case 264/82 [1985] ECR 849, hereinafter 'Timex'. 50 — Cited above.

of the natural-gas tariff. The association had which is the case with the closest bearing on as its object the defence of the interests of the present one. Firstly, it cited Metro I, Fediol French manufacturers of nitrate fertilisers. and Demo-Studio Schmidt, to which I have The Report for the Hearing records that all already referred, as showing that 'where a material steps in the administrative proceed- regulation accords applicant undertakings pro- ings were taken by the association, although cedural guarantees entitling them to request it also states, as does the judgment, that the the Commission to find an infringement of association lodged the complaint 'inter alia Community rules, those undertakings should on behalf of the applicants'. 51 Later the Court be able to institute proceedings in order to treats this simply as a complaint 'lodged' by protect their legitimate interests'. 54 Secondly, the applicants 52 and continues by stating that the Court added, assimilating the applicants' the applicants 'complied with the Commis- position to that of Timex, that 'it was neces- sion's request to submit their comments under sary to examine in that regard the part played Article 93(2)'. The Advocate General, on the by the undertaking in the administrative pro- other hand, appears to impute any activity of ceedings', 55 particularly as originator of the that kind to the association. Finally, although the applicants claimed that the Commission complaint and where it had expressed its 'kept in close contact' with them and 'informed views to the extent of having largely deter- them of its decision even before it 'was noti- mined the course of the proceedings. Thirdly, fied in identical terms to the Netherlands the Court applied its reasoning from Metro I, Government', the only correspondence men- a competition case, and Timex, an anti- tioned in the Report for the Hearing, the dumping case, both fields where procedural Opinion and the judgment is that between guarantees are governed by regulations, to an the Commission and the association. The inquiry by the Commission under Arti- Court treats the notification of the decision cle 93(2) of the Treaty, which 'recognises in as having been received by the applicants general terms that the undertakings concerned 'through the Syndicat'. 53 are entitled to submit their comments to the Commission but does not provide any fur- ther details'. 56 This was subject to the pro- viso that the undertakings concerned experi- ence a significant effect on their competitive

position. Fourthly, Cofaz, unlike Timex, had organisations, to which I have already referred, attributed to it the status of a complainant. 57 suggest that the Court should not require explicit participation by members of such bodies as a condition of the establishment of individual concern. Such a requirement would defeat the purpose of procedural economy, by encouraging duplication of effort. Where an association has clearly been acting on behalf of identified traders or producers, has used material provided by them, or has arranged for or permitted their attendance at meetings 40. For present purposes, I wish simply to or otherwise involved them in the procedure, examine, in the light of this case-law, the effect they should be considered to have partici- on the hats standi of undertakings of the par- pated. In spite of some reservations expressed ticipation of trade associations, of which those on the subject by Advocate General VerLoren undertakings are members, in administrative van Themaat, 58 I do not think any basis exists proceedings, such as those under Regulation for distinguishing between participants in the N o 17, the anti-dumping and subsidies legis- administrative proceedings depending on pos- lation, and Article 93(2) of the Treaty, leading session of the formal status of complainant. 59 to the adoption of contested decisions. I will Inquiry should be directed in either case to address below, in answer to Kruidvat's third the existence of genuine participation. argument, the question whether such direct or vicarious participation is necessary at all, in the light of that and subsequent case-law, in order for interested undertakings, who were entitled so to participate, to be entitled to challenge such decisions.

'broadest interpretation' was that 'provisions and with that of the Court of First Instance of the Treaty regarding the right of interested in AITEC. In Timex, Timex Corporation had parties to bring an action must not be inter- made its own submissions as well as being preted restrictively'. 60 Applying that prin- clearly responsible for the trade association's ciple to a case where a trader has relied on his complaint. In Cofaz, the applicant undertak- trade association to protect his interests, I ings were so closely linked with the com- conclude that evidence of even only very- plainant association as to be, it seems, assimi- slight involvement would suffice to show that lable to it. a trader member had participated via the association so as to satisfy the test of indi- vidual concern in respect of any ensuing deci- sion. Kruidvat, however, goes further and says that it is unnecessary to demonstrate any involvement in or approval of the letter sub- mitted in this case by the Raad FGB; in effect, that mere membership of the Raad FGB suf- fices. I do not agree. In so far as participation of some kind in administrative proceedings is required, in the absence of other points of differentiation of an applicant, I think some limit needs to be applied, if only to guard 44. In AITEC, the Court of First Instance against the danger of abuse. Mere member- observed that the applicant association had ship of a national or multinational chamber participated in an administrative procedure of commerce, for example, might open the under Article 93(2) of the Treaty and had door so wide as to deprive the notion of thereby 'protected the interests of some of its 'individual concern' of any meaning and to members in accordance with the powers con- deprive Article 173 of its essential role of ferred on it by its statutes, without any objec- determining, in the interests of legal certainty, tion from those members'. 61 However, the the scope of the right to judicial review. Court of First Instance had already concluded that the members in question, who had been specifically mentioned in AITEC's submis- sions to the Commission, were, by virtue of that fact, individually concerned by the con- tested decision in question. 62 The Court of First Instance apparently wished merely to establish that, in contrast to the general pro- hibition on trade associations bringing annul- ment actions in defence of the general, undif- ferentiated interests of their members, AITEC could be regarded as having substituted itself for certain of its members, who could them- selves have brought an admissible action. The 43. This view is entirely consistent with the possibility of such a collective action pre- judgments of the Court in Timex and Cofaz

45. In the light of these considerations, I believe that the Court of First Instance approached the evidence of Kruidvat's alleged 47. The facts as so found by the Court of participation in the Commission's delibera- First Instance do not disclose any element of tions through the intermediary of the Raad genuine participation by Kruidvat. The judg- FGB in a spirit of generous interpretation, ment under review considers both the posi- before concluding that 'the link between the tion of Kruidvat, the applicant, i. e. the Bel- participation of the Raad FGB in the admin- gian company, Kruidvat BVBA, and that of istrative procedure by its letter of 29 Novem- its Dutch parent company, Kruidvat NV. ber 1991 and the individual situation of Kru- However, its decision turns neither on the idvat N V is not sufficient for the latter to be fact that not Kruidvat but its parent was a individually distinguished for the purpose of member of the Raad FGB, nor on the fact Article 173 of the Treaty in the context of' that Kruidvat is established in a different the contested Decision. Member State from the Raad FGB. As it points out at paragraph 66 of its judgment, '[i]f the letter from the Raad FGB ... is not sufficient for Kruidvat N V to be individually distinguished, the same applies a fortiori to Kruidvat'. Consequently, the arguments of 46. The essence of the reasoning of the Court Kruidvat concerning the fiscal motivation for of First Instance is found in paragraph 64: its establishment in Belgium and the role of the Raad FGB in the defence of the interests of large retail chains in the Netherlands are irrelevant. These points were not held against Kruidvat. If it had been demonstrated that Kruidvat N V had been actively involved in 'As regards the participation of the Raad FGB assisting the Raad FGB, on behalf of its sub- in the procedure under Article 19(3) of Regu- sidiary, in the preparation of the letter of 29 November 1991, or otherwise associated with its being sent, different considerations 63 — Ibid., paragraph 60. would rightly have applied. I would not like

48. As a second branch of its argument regarding the Raad FGB's submission, Kru- idvat criticises paragraph 65 of the judgment under appeal, where the Court of First Instance notes 'at least one significant differ- (ii) Kruidvat's second argument: the C o p - ence between the view expressed by the Raad ardis action FGB in its letter of 29 November 1991 and that taken by Kruidvat in these proceedings ...'. It claims that an association such as the Raad FGB has to balance the interests of its different members. Firstly, it seems to me that the complete absence of any involvement in the administrative proceedings on behalf of Kruidvat or its parent, as summarised at para- graph 64 of the judgment, is the decisive ele- 50. Kruidvat also argues for the existence of ment in the decision of the Court of First individual concern based on the existence, Instance. Secondly, the reference in para- contemporaneously with the taking of the graph 65 to the divergence between the posi- contested Decision, of the Copardis action. I tions expressed by Kruidvat and the Raad think it is mistaken. If Kruidvat is not distin- FGB should, in my view, be understood as guished by virtue of special and individual referring to further factual evidence of Kru- market effects, because it shares a fate with idvat's lack of involvement, 6 4and not as pur- other actual or potential traders on the par- porting to require total convergence between allel market, the existence of pending litiga- the views advanced by an association and tion about its activity in the courts of a those of all of the members it represents. For Member State does not alter that conclusion. what it is worth, I agree with the Commis- Kruidvat's reliance on the Advocate Gener- sion, regarding the latter point, that such a al's Opinion in Metro II is not sufficient to convergence of views is not necessary, and I persuade me to take a contrary view. At most, the Opinion refers to the view of the Com- mission on a hypothesis, namely contempo- raneous litigation, which did not arise in the 64 — It will be recalled that I view Kruidvat's challenge to the case. There is nothing in the judgment in that Court of First Instance's finding regarding that divergence as inadmissible for the same reason. case to support Kruidvat's case in this regard.

51. A decision approving a selective distribu- that the requirements of Community law are tion network may place non-participants such observed, it is for the national courts to deter- as Kruidvat at a disadvantage commercially mine how national law is applied. Decisions by reference to participants. Actions may on other preliminary issues, of an exclusively conceivably be brought by the distributor or national character, may lead to the rejection other parties to the network against any par- of the action and, thus, preclude any inquiry allel trader such as Kruidvat. Equally such into the validity, as a matter of Community traders may bring proceedings in the national law, of such contracts. 6 6 This, indeed, was courts claiming that the network is unlawful. the fate of the Copardis action at first instance These are, however, mere incidents of the before the Rechtbank van Koophandel te Den- general relationship between those who are dermonde. Article 177 of the Treaty entrusts within and without the system. Were they to national courts the discretion to decide considered relevant, any third party could when a ruling on the validity or interpreta- claim to establish individual concern in respect tion of Community acts is necessary to enable of a decision by the simple expedient of ini- them to give judgment in cases before them. tiating an action in respect of the same subject- It would, thus, be illegitimate for the Court matter in a national court within the time- to attempt to determine, in the absence of a limit laid down by Article 173. The Court of request for a preliminary ruling, when, or if, First Instance was also correct, in my view, to in the framework of an action in national law, treat the coincidence of an action initiated a resolution of such questions is required. against a trader by a party who benefits from Given the variety of legal and factual circum- or is responsible for the organisation of the stances in which the subject-matter of a deci- network and the period for challenging a sion may come before the national courts, the related decision as a matter of pure chance. mere fact that such a national action has been commenced need not give rise to the same individual concern with a decision on a selec- tive distribution network as an outright rejec- tion of an application to join such a network.

individual concern is not necessary, in any to commence proceedings before the Court event, to enable those parties, where neces- of First Instance if they felt that a determina- sary, to challenge a relevant Community deci- tion of the validity of a Community decision sion. The national court can, where it con- were of even tangential or contingent rel- siders it necessary, make a reference to the evance to their cases before the national courts. Court regarding the decision's validity. This This would be entirely inconsistent with the is, in procedural terms, far more effective and notion of procedural economy, and would be more respectful of the interest in legal cer- entirely unnecessary to the judicial protection tainty than the automatic recognition of the of their rights. individual concern of the parties to such actions, however remote the underlying national legal issues may be from the ques- tion of validity.

68 — Case C-321/95P [1998] ECR I-1651. 69 — CaseT-585/93[1995] ECR II-2205. 67 — Paragraphs 17, 18 and 24. 70 — Paragraph 32 of the judgment of the Court.

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which could, if necessary, give rise to a request 58. The Court of First Instance stated, as for a preliminary ruling under Article 177 of regards Belluco's letter to Kruidvat of 17 July the Treaty. 71 There was no suggestion that 1992, that 'there is no adequate proof that these national actions in the same domain Givenchy or Copardis gave authority for it to could suffice to differentiate the applicants be sent. N o r is it a reply to an application by from all other interested persons in order to Kruidvat for admission to the Givenchy net- establish individual concern. work'. 72 These are findings of fact, which may not be made the subject of appeal. In any event, the threat of litigation should Kru- idvat continue to trade in Givenchy products cannot individualise its position any more than the actual initiation of national proceed- ings by Copardis.

56. In conclusion, I would dismiss Kruidvat's second argument in respect of its first ground of appeal.

The Court added that:

60. In both Cook and Matra, the applicants had complained to the Commission of what '[w]here, without initiating the procedure they considered to be unlawful State aid. 73 In under Article 93(2), the Commission finds, both cases, the Commission declined to ini- on the basis of Article 93(3), that an aid is tiate the procedure under Article 93(2) of the compatible with the common market, the Treaty, 74 but the applicants sought the annul- persons intended to benefit from those pro- ment of the Commission decisions to that cedural guarantees may secure compliance effect addressed to the Member States. The therewith only if they are able to challenge Court noted that: that decision by the Commission before the Court'. 76

In these circumstances, the Court did not limit locus standi for such an action to per- '[t]he preliminary stage of the procedure for sons who had made some sort of unilateral reviewing aids under Article 93(3) of the complaint or intervention; it recalled that the Treaty, which is intended merely to allow the parties concerned, within the meaning of Commission to form a prima facie opinion Article 93(2), are 'the persons, undertakings on the partial or complete conformity of the or associations whose interests might be aid in question, must be distinguished from affected by the grant of the aid, in particular the examination under Article 93(2) of the

75 — Cook, paragraph 22, emphasis added; see also Matra, para- graph 16. 73 — Cook, paragraph 6; Matra, paragraph 4. 76 — Cook, paragraph 23, emphasis added; see also Matra, para- 74 — Cook, paragraph 8; Matra, paragraph 5. graph 17.

competing undertakings and trade associa- tation for submissions and a decision on the tions'. 77 substance. Interested parties, including Kru- idvat, had an opportunity to exercise then- right to make their views known to the Com- mission. An appropriate balance can, there- fore, be drawn between their interests and those of the Commission and of the addressee of the contested Decision in legal certainty, as 61. It is evident from the wide category of Colipa suggested, by deeming only those who persons who may have locus standi as a result availed of that opportunity to be individually of the Court's judgments in those cases, as concerned by, and, thus, to have standing to well as from the Court's references both to challenge, the Decision. the limited circumstances in which persons must be notified to submit comments to the Commission, and to Court action being the only recourse of the parties concerned in the absence of such a procedure, that the Court considered a participation-based approach to individual concern to afford insufficient pro- tection of such persons' procedural rights under Article 93(2) of the Treaty. Such per- sons would not normally know that the pre- liminary examination of the aid was taking place until after it was concluded. 78 The Article 93(2) procedure, including the solic- 63. Kruidvat also relies upon the judgment of iting of observations from the parties con- the Court of First Instance in Métropole. In cerned, is obligatory whenever the Commis- that case, the Court of First Instance had to sion has serious difficulties in deciding whether consider the standing of two television com- an aid is compatible with the common market, panies to apply for the annulment of a Com- so that such parties are entitled to ensure that mission decision, addressed to the European the decision not to initiate such an inquiry is Broadcasting Union (EBU), applying Arti- properly taken. 79 cle 85(3) of the Treaty to the Eurovision system of allocating television rights to sporting events. The application of one of those companies, Antena 3, to join the EBU had been rejected before the decision was adopted. This was regarded by the Court of First Instance as confirming its capacity to 62. In the light of these factors, there is no bring proceedings. 80 The other company, RTI, true analogy with a case such as the present, attended the Commission's hearings but did where there has been an application, an invi- not submit any written submissions or adopt a specific position. The Court of First Instance stated, however, that '[t]he procedural right provided for by Article 19(3) of Regulation 77 — Cook, paragraph 24; Matra, paragraph 18; see Case 323/82 Intermills v Commission [1984] ECR3809, paragraph 16. 78 — See the Opinion of Advocate General Tesauro in Cook, paragraph 43. 79 — Cook, paragraph 29; see Case 84/82 Germany v Commission 80 — Paragraph 63. The Court of First Instance cited Metro I, [1984] ECR 1451, paragraph 13. paragraph 13, and Metro II, paragraphs 18 to 23.

N o 17 is not subject to any condition relating administrative procedure for the adoption of to the manner of its exercise'. 81 the Decision. If the capacity to bring pro- ceedings of specified third parties who enjoy procedural rights in the administrative proce- dure were made subject to their actually taking part in that procedure, this would be tanta- mount to introducing an additional condition of admissibility in the form of a compulsory pre-litigation procedure, which is not pro-

It is not entirely clear whether Court of First Instance stated, 'manifests an the Court of First Instance, in this passage, was expressing intention to ensure that the collective inter- the view that attendance at Commission hearings without taking a position constitutes a form of participation, giving ests of those employees are taken into con- rise to standing pursuant to the line of cases commencing with Metro I, or was referring to its previously expressed sideration in the administrative procedure'. 86 view, that the mere status of being an interested third party, without more, gives rise to standing It should also be noted that RTI's parent company submitted critical observations, at the Commission's invitation, before the notification of the Commission's intention to take a decision under Article 85(3) of the Treaty on the rules notified to it by the EBU. 83 — Paragraph 62. 84 — Case T-96/92 [1995] ECR II-1213, hereinafter 'Grandes 82 — Paragraph 61, in respect of Antena 3; referred to at para- Sources', paragraphs 35 and 36. graph 75 in respect of RTL The Court of First Instance cited Cook, paragraphs 24 to 26; Matra, paragraphs 18 to 20; and 85 — Case T-12/93 [1995] ECR II-1247, hereinafter 'Vittel·, para- the order in Case C-295/92 Landbouwschap v Commission graphs 46 and 47. [1992] ECR I-5003, paragraph 12. 86 — Grandes Sources, paragraph 29; Vittel, paragraph 39.

66. I am not called upon to give my view of question, that is to say, by reason of a com- the correctness of those decisions of the Court mercial activity which may at any time be of First Instance. Furthermore, the decision practised by any person and is not, therefore, in Métropole is itself the subject-matter of a such as to distinguish that person in relation pending appeal before the Court. 87 It is not to the decision as in the case of an addressee, consonant with the proper administration of is not individually concerned by that deci- justice and, in particular, the respect for the sion. 88 Such persons will, however, normally right to a fair .hearing of parties to pending be interested third parties within the meaning cases, that the Court should comment explic- of Article 19(3) of Regulation N o 17, as Kru- itly in advance on the correctness of decisions idvat was in the present case. I agree with of the Court of First Instance in such circum- Advocate General Jacobs' view, expressed in stances. In any event, the facts of Métropole, his Opinion in Extramet, that the cases on Grandes Sources and Vittel, and the legisla- participation in administrative proceedings — tive background of the latter two cases, are the Metro cases, Demo-Studio Schmidt, Cofaz sufficiently different that the general proposi- and Timex — establish that solely the fact of tions applied in those cases may not be easily such participation, rather than the capacity or transposable to the facts of the present case. entitlement so to participate, enables under- takings to satisfy the criterion of individual concern which otherwise would not do so, because they are in practical terms no more immediately affected by the contested mea- sures than others in the same business. 89 Advocate General Lenz also provided a useful insight in his Opinion in CIRFS, stating that an undertaking's participation in and influ- ence on administrative proceedings results in the ensuing decision being treated as a case of the application of the relevant competition 67. I prefer simply to outline directly my rules to that undertaking. 90 view on the proper application to an inter- ested third party in Kruidvat's position of the Court's case-law on Article 173, particularly that regarding persons with procedural rights in the administrative procedure leading to the taking of decisions. I have already stated my view that the Court's decisions in Cook and Matra are of no assistance to Kruidvat. The Court's judgment in Plaumann establishes that a person who is affected by a decision by virtue of pursuing an activity in the market in

71. Kruidvat relies heavily, in support of its 69. Thus, I would dismiss Kruidvaťs third fourth argument, on the Opinion of Advo­ argument in respect of its first ground of cate General Jacobs in Extramet. Advocate appeal. General Jacobs pointed out some of the draw­ backs of the preliminary reference procedure as an alternative to a direct action before the Court in an anti-dumping context. H e adverted to the lack of expertise on the part of national courts in respect of this special­ (iv) Kruidvaťs fourth argument: lack of ade­ ised subject-matter, and to a likely consequent quate judicial protection lack of uniformity, to the confinement of pre­ liminary references to specific points, to the potential for an overly general reference to be made, to the costs and delays involved, to substantive and territorial restraints on the grant of interim measures and to the more 70. It is worthwhile, for the purposes of any limited exchange of pleadings in Article 177 discussion of effective judicial protection, to proceedings. 9 2 quote the Court's general statement on the subject in Les Verts v Parliament: 9 1

'[T]he European Economic Community is a 72. It is important to note that Advocate Community based on the rule of law, inas­ General Jacobs made these observations in much as neither its Member States nor its response to an argument that the existence of institutions can avoid a review of the ques­ remedies before national courts, including the tion whether the measures adopted by them possibility of a reference under Article 177 of are in conformity with the basic constitu­ the Treaty, should exclude the possibility of tional charter, the Treaty. In particular, in

74. In any event, while the potential prob- lems raised by Advocate General Jacobs are inherent in the preliminary reference proce- 73. The imperfections of the Article 177 pro- dure, they can be addressed through loyal cedure, which I acknowledge, do not require and conscientious cooperation between the that the possibility of an action before the Court and the national courts. It should not national courts in respect of the validity of a be forgotten that the Commission may also Community decision should always be paral- be called upon by the national courts to assist leled by the possibility of an action for annul- them in complex areas such as competition ment under Article 173. This would run con- law. 98 There is no evidence in the present trary to procedural economy and to the logic case that Kruidvat has been denied effective of the establishment of two distinct proce- judicial protection, either in the framework of dures; to the restriction of standing under the existing proceedings initiated by Copardis Article 173, in the interests of legal certainty, or through the denial of possible recourse to to persons directly and individually con- its national courts, in order to seek to estab- cerned by decisions not addressed to them; lish the unlawful character of the network and to the reasoning of the Court in TWD and the invalidity of the contested Decision. Textilwerke Deggendorf, which excluded for The judgment of the Court in Greenpeace most purposes the possibility of such paral- implies that it will consider an expansion of lelism. 97 In the passage from Les Verts v Par- the normal personal scope of Article 173 only liament quoted above, the Court indicated

where it is established in concrete cases that Court of First Instance does not contradict full judicial protection has been denied by, or the. judgments in AITEC and Metro v Cartier. cannot be secured by, the national courts. 99 As its decision regarding admissibility was correct and clearly consistent with the Court's case-law, there was no need for the Court of First Instance to advert to Métropole. The Court of First Instance substantiated its posi- 75. For these reasons, I would reject Kruid- tion regarding the differences between the vat's fourth argument in respect of its first Raad FGB and Kruidvat by quoting from the ground of appeal. former's submission to the Commission. Kru- idvat's market share and the effect of Direc- tive 89/104/EEC were both irrelevant, and there was no evidence suggesting that the preliminary ruling procedure, allied with the B — Second ground of appeal breach of possibility of recourse to national courts, Article 190 failed adequately to protect Kruidvat's rights.

76. In the light of my conclusions regarding Kruidvat's substantive arguments on the first ground of appeal, this ground of appeal must 77. I would therefore dismiss Kruidvat's also fail, in my view. The judgment of the second ground of appeal.

V — Conclusion

78. In t h e light of the foregoing, I p r o p o s e t h a t t h e C o u r t should:

(1) D i s m i s s t h e appeal in its entirety, a n d

(2) O r d e r t h e appellant t o p a y t h e costs.