C-119/97

OPINION OF MR RUIZ-JARABO — CASE C-119/97 P

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 26 May 1998 *

1. This appeal has been lodged by Union Facts Française de l'Express (UFEX, formerly Syn- dicat Français de l'Express International, SFEI), D H L International and CRIE against the judgment given on 15 January 1997 by the Court of First Instance in Case T-77/95. !

3. The facts as set out in the judgment of the Court of First Instance are as follows:

With respect to Article 86, the applicants complained of the logistical and commercial assistance allegedly given by La Poste to its subsidiary Société Française de Messageries Internationales (GDEW France since 1992) On 10 March 1992 the Commission sent the (hereinafter 'SFMF), which operated in the complainant's representative a letter rejecting international express mail sector. the complaint based on Article 86 of the Treaty.

As to logistical assistance, the applicants chal- lenged the making available of the infrastruc- ture of La Poste for the collection, sorting, carriage, distribution and delivery of mail, the On 16 May 1992 SFEI, D H L International, existence of a preferential customs clearance Service CRIE and May Courier brought an procedure usually reserved for La Poste, and action for the annulment of that decision, the granting of preferential financial terms. which was declared inadmissible by the Court As to commercial assistance, the applicants of First Instance (order of 30 November 1992 pointed to the transfer of assets such as good- in Case T-36/92 SFEI and Others v Commis- will and stock, and promotion and advertising sion [1992] ECR 11-2479). On appeal, the by La Poste in favour of SFMI. Court of Justice annulled that order and referred the case back to the Court of First Instance (Case C-39/93 P SFEI and Others v Commission [1994] ECR 1-2681).

The abuse was alleged to have consisted in La Poste allowing its subsidiary SFMI to make use of its infrastructure on unusually favour- able terms in order to extend its dominant position on the basic mail market to the asso- By letter of 4 August 1994 the Commission ciated market in international express mail. withdrew the decision which was the subject That abuse was said to have resulted in cross- of Case T-36/92. The Court of First Instance subsidies in favour of SFMI. consequently ruled that there was no need to

O n 30 December 1994 the Commission adopted the decision which is the subject of In your comments of 28 November 1994 you the present action (hereinafter 'the Decision'). maintained your position with regard to the SFEI received notification of it on 4 January abuse of dominant position by La Poste and 1995. SFMI.

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"adjust its prices according to the real value information on any infringements of Article of the services provided by La Poste". 86 would have to be supplied for the Com- mission to be able to justify investigating those activities.

Consequently, it is clear that the problems you refer to in relation to present and future Moreover, the Commission considers that it competition in the international express mail is not obliged to examine possible infringe- sector have been adequately resolved by the ments of the competition rules which have measures taken so far by the Commission. taken place in the past, if the sole purpose or effect of such an investigation is to serve the individual interests of the parties. The Com- mission sees no interest in embarking on such an investigation under Article 86 of the Treaty,

If you consider that the conditions imposed on La Poste in Case IV/M.102 have not been complied with, in particular in the field of For the above reasons, I inform you that your transport and advertising, it is then for you to complaint is rejected.' provide — as far as possible — evidence, and possible to bring a complaint on the basis of Article 3(2) of Regulation N o 17. However, statements that "at present the tariffs (exclud- ing possible rebates) applied by SFMI remain substantially lower than those of the mem- The contested judgment bers of SFEI" (page 3 of your letter of 28 November) or "Chronopost is advertised onP&Tlorries" (report annexed to your letter) must be supported by evidence to justify an investigation by the Commission. 5. The Court of First Instance dismissed the application for annulment in its entirety, rejecting one by one the five pleas on which it was based.

11. It is true that the wording of the Deci- sion is somewhat ambiguous because it docs not use the term 'Community interest', which has well-known legal connotations and is gen- erally used in acts of that type. The Court of First Instance was aware of this when it made the following observations in paragraphs 31 and 32 of the judgment: 8. Likewise the Court dismissed the plea that the Commission infringed the principle of good administration by not taking account of an expert report of 6 December 1990 because it referred to a period prior to the adoption of the GD Net decision. With regard to the '... the only reference to the Community supposed breach of the principle of non- interest — an implicit one, moreover, as it discrimination, the situations alleged by the only refers to interest — appears in the pen- complainants were not comparable with the ultimate paragraph of the Decision, con- present case. cerning past infringements. ... However, the

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Court considers that the lack of Community- 14. The Court of First Instance correctly set interest in continuing the investigation of the out the logical sequence of the reasoning of complaint underlies the whole Decision. The the Decision, in spite of the superimposed penultimate paragraph cannot be dissociated observations which it contains. Rightly or from the rest of the document.' wrongly, the Commission considered that the matter had no 'interest' which would justify investigating it because the Commission itself had already taken action in the sector in question and the contested practices had ceased. That interest can be none other than the 'Community interest' which the Com- mission must serve and which it has power to assess in principle, subject to review by the Court.

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their complaint. One of the pleas in law on in itself and its author must adopt it by taking which the application for annulment was account of the particular circumstances of the based (paragraph 5.6) was precisely that, by- case and not by reference to other facts or rejecting the complaint on the ground that other cases which have already been judged there was no Community interest, the Com- or decided. In the present case, therefore, the mission had made a manifest error of assess- Commission should not have referred to the ment. 3 It is somewhat inconsistent to criticise GD Net decision. the Court of First Instance for 'rinding' in the Decision a legal factor which they themselves consider essential to that Decision (that is to say, the absence of a Community interest).

19. The criticism of this point of the judg- ment seems to me clearly unfounded. There Second ground of appeal is no mistake in law on the part of the Court of First Instance in concluding that the Com- mission could refer to the GD Net decision, as it did, and that the reference formed part of the Commission's reasoning in rejecting the complaint.

17. The second ground of appeal contends that there was an 'error in law' on the part of the Court of First Instance in finding that the Commission could support the contested Decision by referring to another decision. 20. There is nothing to prevent the statement of reasons of an administrative act from refer- ring to other acts, particularly if they arc con- nected or related to each other. Likewise, in such cases, there is nothing to prevent the author of the act from using the existence of 18. In the appellants' opinion, every judicial a previous act and its content as a logical or administrative decision must be sufficient argument leading to certain conclusions when examining a later act.

22. Whether the G D Net decision and the problems of implementing it are sufficient to justify the rejection of the complaint is another question, which is not a matter of the formal reasoning of the Decision but of its substance, that is to say, a matter of assessing the Com- munity interest underlying the decision.

25. The reference in the appeal to Article 190 of the Treaty may be due to the unfortunate transposition to the appeal proceedings of an Third ground of appeal argument in the application for annulment before the Court of First Instance, and it overlooks the differences between the proce- dure on appeal and that at first instance. The appellants could challenge an administrative act before the Court of First Instance on the ground that it was in breach of Article 190, 23. The third ground of appeal relates to but they cannot rely on the same argument, 'breach of Article 190 of the Treaty' and con- which is directed specifically at an adminis- sists of two parts: (a) the judgment is said to trative act, against the judgment of the Court contain contradictory arguments, and (b) the of First Instance dismissing that particular judgment does not reply to the appellants' plea. submissions on a fundamental point.

4 — Obviously, the judgments of the Court of First Instance, like those of any judicial body, must state the reasons on which they are based, as required by Article 81 of the Rules of Pro- cedure of that Court, but not by Article 190 of the Treaty. The function of a court (iuris dictio) is not only inseparable from the obligation to state the reasons for a judgment, but finds its legitimation therein. This was not always the case: in 24. Article 190 of the Treaty refers only to absolutist regimes, not only did the courts not state the rea- sons for their decision, they were actually prohibited from the requirement that reasons must be stated doing so.

The fourth ground of appeal

28. There is no contradiction whatever in the judgment because the Court of First Instance merely finds that the Decision rejects the complaint for the lack of a sufficient interest, and such finding does not entail an assess- ment of the practices in question by reference to Article 86. The reference to the G D Net 30. With the fourth ground of appeal, entitled 'Lack of legal basis', the appellants contend that the Court of First Instance did not make 5 — Absolute insufficiency of the legal reasoning (which would be the inquiries necessary to ascertain whether a defect in the judgment) should not be confused with the absence of a detailed reply to each and every one of the argu- the Commission was entitled to find that ments j n an appeal, which is possible in the context of an entire judgment. Sometimes a comprehensive reply dismisses there was no economic justification for the simultaneously several arguments of both parties. subsidies to La Poste and its subsidiary.

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32. In response to the Commission's objec- tion that 'lack of legal basis' is ambiguous because it does not specify the rule of law which is said to have been broken, the appel- lants observe in their reply 6 that 'legal basis' is a customary term in French procedural law and it refers to 'the observations which must 35. However, judging by the terms in which justify the operative part of a judgment, and it is formulated, the fourth ground of appeal not to a statutory provision as such'. Conse- appears to be based, not on the allegedly quently, if a judgment lacks a legal basis, the insufficient account of certain facts (which, as actual body of the judgment does not give a I have said, are clearly set out by the Court sufficiently detailed account of the facts to of First Instance), but on the fact that it did enable the appellate court to verify that the not make satisfactory inquiries and did not law was correctly applied to those facts. obtain the evidence necessary for determining those facts scrupulously.

33. Viewed from this angle, the ground of 36. Considered in this light, this ground of appeal must be dismissed. The judgment appeal is directed not so much against the judgment itself as against the previous inquiries by the Court of First Instance which, in the 6 — Footnote 11 of the reply. course of the proceedings, is said not to have

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taken sufficient evidence to verify one of the Instance could not lawfully conclude, having facts at issue (the existence or otherwise of regard to the actual documents in the file, cross-subsidies). that the Commission was justified in finding that the practices in question had ceased.

41. As I did in my opinion in the John Deere Limited v Commission case, 7 I shall set out briefly the development of the Court's case law concerning objections to the factual assess- ments in first instance judgments. The Court of Justice has held that an appeal may be based 38. The presence of these two factors and the only on grounds relating to the infringement comprehensive objection, in the fifth ground of rules of law, to the exclusion of any appraisal of appeal, that this last conclusion of the of the facts. The Court has thus taken the Court of First Instance is mistaken in law view that the appraisal by the Court of First make it expedient to consider this 'part' of Instance of the evidence submitted to it does the fourth ground of appeal together with the not constitute a legal issue which may be fifth. reviewed in an appeal, except where such evi- dence has been distorted or where the mate- rial inaccuracy of the findings of the Court of First Instance is apparent from the documents in the file. The Court of Justice has no juris- diction to examine evidence accepted by the The fifth ground of appeal Court of First Instance in determining the facts, provided that it was properly obtained and the general rules and principles of law concerning the burden of proof and the appraisal of evidence were observed. On the other hand, the Court of Justice is entitled to

39. The fifth ground of appeal complains of another 'error of law': the Court of First 7 — Case C-7/95 P, [1998] ECR 1-3111, point 24.

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44. In the appellants' opinion, this is refuted by the wording of the GD Net decision itself, 47. Secondly, the appellants also criticise the the undertakings of which do not take effect statement in paragraph 71 of the judgment that 'that conclusion [that the Commission made no error in finding that the evidence 8 — Sec the judgments in Case C-53/92 P Hilti v Commission produced by the complainants was not suf- [1994] ECR 1-667, paragraph 42, and Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR ficient to justify an investigation] cannot be 1-743, paragraph 67, and also the order of 17 September 1996 affected by the fact, to which the appellants in Case C-19/95 San Marco v Commission [1996] ECR 1-4435, paragraphs 39 and 40. drew attention at the hearing, that in July

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1996 the Commission decided to initiate the Commission was 'unaware' whether the procedure provided for in Article 93(2) of the undertakings imposed by the GD Net deci- Treaty regarding aid allegedly granted by sion had been fulfilled or not. The Court France to SFMI-Chronopost (OJ 1996 merely observes that the Commission did not C 206, p. 3). The decision to initiate such have sufficient evidence to warrant an inves- proceedings does not show that at the time tigation in respect of the period after the when the Decision was adopted the Commis- adoption of the GD Net decision, as the evi- sion had sufficient evidence to warrant starting dence produced by the complainants was an investigation under Article 86 of the Treaty insufficient for that purpose. in respect of the period after the adoption of the GD Net decision.'

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53. The appellants consider that these obser- Instance itself is not absolutely bound by its vations are in breach of Community law in previous decisions, from which it can always two respects. O n the one hand, they are con- depart provided that is justified. trary to the rules of law on assessment of the Community interest and, on the other, they infringe the principles of legal certainty and legitimate expectation.

55. In my opinion, this ground of appeal 58. This is what has happened in the present cannot succeed in the terms in which it is for- case, in which the Commission's reason for mulated, for two reasons. rejecting the complaint was that it considered that the alleged practices had ceased, mainly owing to its own intervention, and that there- fore there was no justification for starting an investigation. Consequently this is a new factor which must be taken into account, 56. Firstly, as a matter of principle it is ques- being different from the three referred to in tionable whether certain criteria for assessing the Automec v Commission judgment. It was the Community interest laid down by the reasonable for the Court of First Instance to Court of First Instance in a particular case consider whether this new argument of the must, without more, be deemed to be 'rules Commission conformed with the law, instead of law' which the Court of Justice has an of merely dismissing it as not being one of obligation to safeguard. The Court of First the criteria specified in the said judgment.

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59. To accept the appellants' argument on this 62. The arguments in question may be point would amount to 'rigidifying' the described as two of a general nature, and a case-law in question and preventing not only third which applies the others to this par- its further development, hut also any addition ticular case. to it. There is nothing to prevent the Court of First Instance, when ruling on a Commis- sion decision, from finding that there is a fur- ther criterion for assessing the Community interest, in addition to those laid down in the Aiitomec v Commission judgment, which may justify the rejection of complaints concerning certain anti-competitive practices. 63. Before formulating these three arguments, the Court of First Instance laid down, in paragraphs 54 to 56 of the judgment, three premises which are common ground:

(c) Article 86 of the Treaty is an application — In such a case, investigating the matter of the general objective of the activities of and establishing that infringements have the Community laid down by Article 3(g) taken place in the past would no longer of the Treaty, namely the establishment help to ensure undistorted competition in of a system ensuring that competition in the common market and would thus not the common market is not distorted. represent fulfilment of the functions con- ferred on the Commission by the Treaty. The essential object of pursuing the case would be to make it easier for the com- plainants to prove fault in an action for damages in the national courts. 64. Starting from these premises, the judg- ment follows a Une of reasoning regarding the complaints concerning past infringements and applies that reasoning to the present case in order to justify the Commission's acts.

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67. I think the appellants' criticism of this proof of past infringements would only be of part of the judgment is well-founded and suf- subjective interest to the complainants, but of ficient to make their appeal successful. no interest to the Commission. The same error leads the Court to observe that the 'essential object' of pursuing such a case would be to make it easier for the complainants to prove fault in an action for damages in the national courts.

68. Complaints concerning abuses of a domi- nant position, contrary to Article 86 of the Treaty, are almost inevitably complaints of past acts. I0 When an undertaking has engaged in practices of that kind in a particular sector, abusing its dominant position in the market in question and thereby unlawfully distorting competition, the mere fact that the practices 70. The competition which the Commission ceased at a given time is not sufficient, in the must safeguard is not secured when an under- absence of other factors (which I shall refer taking has ceased the practices by means of to below), to justify the Commission in which it proposed to exploit its dominant refraining from taking action on complaints position only because they have been suc- from competitors of that undertaking. cessful. The practices have ceased, but their effects remain.

69. In my opinion, the Court of First Instance is mistaken in law in stating that in such cases

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72. The Commission should not tolerate such 75. Where the latter interest exists (because a situation and has an obligation to restore the sector in question undoubtedly has a freedom of competition in the sector con- Community dimension and Community sig- cerned, provided that the other factors justi- nificance and it is relatively easy to detect the fying a 'Community interest' in intervention breach complained of in that sector, without by the Commission are present. For this pur- the need for exceptional measures of investi- pose, the first step is to ascertain whether the gation), it cannot be argued that the Commis- undertaking in question has abused its domi- sion's measures would only serve to produce nant position, which means that the Commis- evidence with a view to an action for dam- sion must put in motion the investigation ages in the national courts. procedures which the complainants seek.

76. The Commission's failure to take action is not justified either by the fact that practices arising from abuse of a dominant position ceased either by reason of a unilateral deci- 73. Furthermore, where an undertaking or sion of the undertaking which abused its group of undertakings exercise their right dominant position or by reason of collateral under Regulation N o 17, which I referred to measures taken by the Commission for a dif- above, and lodge a complaint, they may legiti- ferent purpose, but which had the indirect mately be acting with a view to restoring bal- effect of attaining the same result. In any case, anced competition (after it has been distorted) the essential point in judging whether the as much as in defence of their own commer- Decision was appropriate in law is that the cial interests. discontinuance of the practices did not mean the disappearance of their anti-competitive effects.

80. In Decision N o 000978 relating to a pro- cedure for the application of Article 86 of the Treaty, which the Commission sent to SFEI on 10 March 1992 to inform it that its com- 78. However, both the Commission, when it plaint had been rejected (a decision which adopted the Decision, and the Court of First was withdrawn by the Commission itself after Instance, when reviewing it, must have been the Court of Justice annulled the ruling by aware that, even if La Poste had ceased the the Court of First Instance that the action for practices of which the appellant undertakings annulment of the decision was inadmissi- complained, an investigation was still justified ble), 13 the Commission observed that 'in such to establish whether the effects of those past circumstances, although wc have no intention practices were still distorting competition in of continuing our investigation under Article the French market for express international 86,1 can assure you that wc shall continue to mail. monitor closely developments in this market.'

82. The Commission later admitted that it undertakings, by abusing its dominant had done nothing to verify that the condi- position in a closed market. tions it had imposed in the G D Net decision to ensure freedom of competition in interna- tional express mail had been complied with. In Decision C-3/96 (which the Court of First Instance examined and which is referred to in paragraph 71 of the judgment appealed against), 14 the Commission stated that it had (b) In 1991 the Commission adopted a deci- no information concerning the implementa- sion (the G D Net decision) relating to tion of several of those conditions. In the the concentration by means of which La same decision the Commission admitted that Poste and other postal authorities had it had no information either concerning the created a joint venture. That decision action taken by La Poste on the Commis- imposed certain conditions on the latter. sion's recommendation that its accounting The Commission took no interest in com- system should show that the activities not pliance with those conditions or in the forming part of the public service (that is to actual situation in the market in question, say, competitive operations such as express in spite of the complaint which it had mail) were not subsidised. received from competing undertakings, and it refused to open an investigation into the matter four years after receiving the complaint.

85. The eighth ground of appeal, entitled 'Breach of general principles of Community law', claims that the Court of First Instance's 88. The reasoning of the Court of First judgment infringes the principles of sound Instance on this point starts from the premiss administration, equality and non- that, by rejecting an expert report relating to discrimination, legal certainty and protection a period before the adoption of the GD Net of legitimate expectations. decision, the date when the practices in ques- tion ceased or ought to have ceased (the ques- tion of cessation being a key factor in the contested decision), the Commission's act was consistent with the logic of the Decision as a whole. Consequently, the irrelevance of the report arises from the internal logic of the Decision itself, from which it appears that the opening of an investigation would be of no 86. With regard to the principle of sound Community interest after the production of administration, the appellants object to para- the report. graph 100 of the judgment, the effect of which is that the Commission could give a valid ruling on the complaint without taking account of an expert report of 6 December 1990 because it referred to a period before the adoption of the GD Net decision.

89. This reasoning of the Court of First Instance docs not appear to be refuted by paragraph 146 ct scq. of the appeal. The appellants' submissions arc not adequate to show a mistake in law in that part of the judgment.

87. The Commission contends that this part of the eighth ground of appeal is inadmissible because it merely repeats the submissions of the original application. However, it should be observed that, as the appellants expressly state in paragraph 115 of their reply, they are 90. With regard to the supposed infringement not now accusing the Commission of having of the principle of equality and non- infringed the said principle, but claim that the discrimination, the appellants contend, firstly,

91. Both criticisms are unfounded. In para- graph 102 of the judgment the Court of First Instance merely observes, quite correctly, that the appellants have not shown the existence of a situation comparable to that which was the subject of their complaint. N o doubt the requirements regarding the degree of analogy of 'comparable situations' may be more or less stringent but, in any case, if the Commis- sion is alleged to have acted unlawfully in 94. As I noted when discussing the sixth rejecting a complaint concerning practices ground of appeal, assessment of the Commu- which were accepted on other occasions, it is nity interest is necessarily bound up with the reasonable to require the comparable situa- facts of each case, and the criteria set out in tion to be genuinely similar to the situation the Automec v Commission case are only some complained of. In the present case the appel- of the circumstances or factors which, among lants have not succeeded in identifying a com- others, may and must be taken into account. parable situation on which they can accu- Consequently, it cannot be said that there is rately base the charge of discrimination. discrimination in applying the law or infringe- ment of the principle of legal certainty (and, much less, of the principle of the protection of legitimate expectations) on the ground that, in a particular case, taking account of the cir- cumstances specific to that case, the Commis- sion did not refer to the criteria laid down by the Court's case-law, but to others which, according to the Commission, were decisive for accepting or rejecting the complaint. In 92. With regard to the alleged differing inter- any case, the unlimited jurisdiction of the pretation by the Court of First Instance of Court of First Instance in relation to such the rules of law relating to assessment of the assessments ensures that they conform with Community interest, I will repeat "what I said the rules of law. concerning the sixth ground of appeal.

98. In my opinion, the Court of First Instance is mistaken in law (in this case, by not fol- 96. The document to which the first part of lowing the procedural rules concerning the the ground of appeal refers is a letter of 1 right to a fair hearing, thus damaging the June 1995 from Commissioner Sir Leon appellants' interests) in refusing, without Brittan to the President of the Commission, giving a satisfactory explanation, to treat as with copies to other members of the Com- evidence a document which in principle mission. According to the appellants, the letter appears to be relevant to the outcome of the shows that the Commission had decided delib- case and which was requested by the appli- erately not to pursue the breaches in the cants for production to the Court. If the postal sector which were the subject of com- Court was uncertain as to its existence, it plaints, but to bring about a 'political' solu- could easily have asked the Commission to tion of the problem. In their reply, the appel- produce the letter. It is not permissible to lants asked the Court of First Instance to question the existence of the document when, order the production of the letter and a at the same time (that is to say, in the same number of other documents to which they judgment), the Court refuses to grant the referred as evidence. I5 appellants' application for an order requiring the production of the document. In other words, the Court of First Instance cannot 15 — It is Iruc that the request for documentary proof in the reply reject allegations as unproven when the Court was rather vaguely worded because the Court of First itself refuses to order the production of the Instance was asked to order the production of documents showing that the Commission had formally refused to pursue evidence requested. the breaches and tilat it preferred a general political solution to the problem of liberalising the postal sector. However, the request for the production of evidence must also be viewed in the context of the remainder of die reply and the original application, both of which contain repeated express refer- ences to Sir Leon Brittan's letter. 16 — Emphasis added.

102. However, it is not so much this proce- dural irregularity which leads me to propose that the Court allow the ninth ground of 100. Article 66 of the Rules of Procedure of appeal, but the very refusal to take evidence. the Court of First Instance provides that the For reasons which are easy to understand, an Court must prescribe the measures of inquiry accusation that an institution has misused its that it considers appropriate by means of an powers is not normally based on evidence order setting out the facts to be proved. The which can be accepted as proof, but on more order is to be served on the parties. The same or less reliable circumstantial evidence which logic requires that the Court's decision is offered for appraisal by a court. Individuals rejecting measures of inquiry requested by are usually only in a position to point out the parties during the written phase of the such evidence and to request the production procedure should also be taken by means of of the documents or testimony supporting an order, which must also be served on the them if these are in the possession of the parties. This is all the more necessary in so far institutions concerned. Therefore, provided as a refusal to take evidence may affect the that the circumstantial evidence shows a degree right to a fair hearing. It enables the parties of probability, to refuse that evidence without concerned to make submissions during the justification is all the more to be deprecated oral procedure with greater knowledge of in that this would, in most cases, help to their real possibilities of defence and it also deprive the parties concerned of their means safeguards their right to amplify evidence of action. (Article 66(2) of the Rules of Procedure) when the evidence offered is not admitted.

108. To allow, on substantive grounds, the seventh ground of appeal would not only mean that the first instance judgment would have to be quashed, but would also enable the Court of Justice to exercise its power to give final judgment under Article 54 of the EC Statute of the Court. The outcome would then be simply to annul the contested deci- sion as unlawful. 105. To sum up, I consider that there was no reason for refusing the appellants' request for evidence and, on the contrary, there were good reasons for granting it. I also consider that, as it was a document which they regarded as a key factor and which they could not pro- duce themselves as it was in the possession of a Community institution, the Court of First 109. If the Court allows only the ninth ground Instance ought to have ordered its produc- of appeal, it cannot give final judgment. It tion. seems to me that a final judgment would

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require an express ruling on the misuse or 110. Under Article 122 of the Rules of Pro- otherwise of its powers by the Commission cedure of the Court of Justice, where the but, once again, this would not be possible appeal is well founded and the Court itself without the production of the documents can give final judgment, the respondent must requested as evidence. As the taking of evi- be ordered to pay the costs. It would not be dence is manifestly outside the limits of appeal necessary to give a decision on this point if, proceedings, it would be necessary to refer the appeal being well founded, the Court of the case back to the Court of First Instance. Justice does not give final judgment itself.