C-266/97

By that decision the Commission dismissed The Council has laid down, in Council the complaints made by the undertakings of Regulation No 26 of 4 April 1962 applying Vereniging van Groothandelaren in certain rules of competition to production Bloemkwekerijprodukten, Florimex BV, of and trade in agricultural products 3 Inkoop Service Aalsmeer BV and M. Ver- (hereinafter 'Regulation No 26'), that haar BV, pursuant to Article 3(2) of Coun- 'Article 85(1) of the Treaty shall not apply cil Regulation No 17 of 6 February 1962, to such of the agreements, decisions and the first regulation implementing Arti- practices ... as form an integral part of a cles 85 and 86 of the Treaty 2(hereinafter national market organisation or are neces- 'Regulation No 17'), concerning the rules sary for attainment of the objectives set out of the Coöperatieve Vereniging De Vere- in Article 39 [now Article. 33] of the nigde Bloemenveilingen Aalsmeer (herein- Treaty. In particular, it shall not apply to after 'the VBA'), a cooperative undertaking the agreements, decisions and practices of farmers, farmers' associations or associa- tions of such associations belonging to a * Original language: Italian. 1 — ECR II -759. 2 — OJ, English Special Edition 1959-1962, p. 87. 3 — OJ, English Special Edition 1959-1962, p. 129.

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single Member State, which concern the the Aalsmeer trading area it owns, the VBA production or sale of agricultural products holds auctions of floricultural products, or the use of joint facilities for the storage, particularly fresh-cut flowers, indoor plants handling or processing of agricultural pro- and garden plants. The VBA's infrastruc- ducts, unless the Commission finds that ture is used mainly for holding auctions, competition is thereby excluded or the but part of its complex is devoted to trade objectives of Article 39 of the Treaty are premises rented for wholesale trading in the compromised' (Article 2(1)). products. The tenants of those premises are mainly cut-flower wholesalers and, to a lesser extent, indoor-plant distributors.

7. Verhaar BV is a wholesaler of floricul- foreign origin, on payment of a fee of 5% tural products established in the VBA of the value of the goods. The association premises. Inkoop Service Aalsmeer BV is a also authorised the dealers established on subsidiary of Verhaar established in the its premises to purchase products in which Cultra commercial centre. it had not acted as the intermediary, on payment of a fee of 10% of the value of the product.

VBA regulations 5

exemption decision under Article 85(3) of constitute infringements of Article 85(1) of the Treaty, with particular reference to its the EEC Treaty. statutes, its auction rules, trade agreements, its general conditions from the rental of trade premises and its scale of charges for commission and fees.

The charges for the prevention of irregular use of the VBA facilities imposed by the 11. On 26 July 1988 the Commission VBA on the dealers established on its adopted Decision 88/491/EEC relating to premises (10% rule HFL 0.25 levy), as well a procedure pursuant to Article 85 of the as the trade agreements concluded between EEC Treaty (IV/31.379 — Bloemenveilin- the VBA and these dealers, also constitute, gen Aalsmeer) (hereinafter 'the 1988 deci- as notified, infringements of that provision. sion'). 7 The Commission stated in the operative part of that decision that:

' 1 . The Agreements notified to the Com- 2. An exemption pursuant to Article 85(3) mission which were concluded by the VBA of the EEC Treaty for agreements referred whereby the dealers established on the VBA to in Article 1 is hereby refused.' premises and their suppliers were at least until 1 May 1998 required, as regards floricultural products not purchased through the VBA:

(a) to deal in and/or have delivered those Amendments to internal rules introduced products on the VBA's premises not following the 1988 decision 8 bought through the VBA only with the consent of the VBA and under the conditions laid down by it, 12. With effect from 1 May 1998, the VBA formally abolished its internal rules on the purchase obligations and the restrictions on (b) to store temporarily on the VBA's the free disposal of goods as well as the premises floricultural products not system of fees, establishing a 'user fee' in bought through the VBA only against their place. This system, amended on payment of the fees determined by the several occasions in line with guidance VBA, provided by the Commission, applies to

15. On 19 July 1988 the VBA notified the Commission of a number of amendments to its rules, adopted with effect from 1 May 1988, relating in particular to the provi- 13. On 29 April 1988 the VBA also abol- sions of the new user fee, but did not ished with effect from 1 May 1988 the mention the new trade agreements. On restrictions previously contained in the 15 August 1988 it notified further changes trade agreements up to then, in particular to its rules. the restrictions on the sources of supply. Since that date three types of trade agree- ment have existed, covering slightly differ- ent situations (depending on whether the supplier is a tenant of VBA commercial premises, or whether it has previously held 16. By letters of 21 December 1988, the a trade agreement). All those agreements Commission informed Florimex and the apply a fee of 3 % of the gross value of the VGB that it had initiated proceedings goods supplied to customers on the VBA premises. The agreements relate to pro- ducts not usually grown in the Netherlands 9 — Paragraphs 21 to 39 of the judgment.

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against the VBA and expressed the opinion intention to adopt a decision favourable to that the user fee was not discriminatory by the VBA. The complainants repeated their comparison with the fees payable by the arguments in letters of 26 November and VBA members and other suppliers present 17 December 1990 and at a meeting with at the cooperative's auctions. Commission staff on 27 November 1990.

22. On 2 July 1992, the Commission sent the complainants' lawyer a registered letter

19. By letter of 24 October 1990 the Com- mission informed the complainants of its 10 — OJ, English Special Edition 1963-1964, p. 47.

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definitively rejecting the applicants' com- With regard to the trade agreements, it plaints regarding the user fee. In that letter stated as follows: (hereinafter 'the decision'), the Commission stated that the statement of reasons made therein was an addition to and explanation of the reasons expressed in the letter pursuant to Article 6, to which it referred. 'The trade agreements focus on securing, as is considered necessary by the VBA, addi- tional supply on its premises. In order to guarantee such additional supply, the VBA enters into agreements with traders who are 23. On 21 September 1992, Florimex and prepared to commit themselves to offering the VGB instituted proceedings before the a specific quantity of products. Court of First Instance in Cases T-70/92 and T-71/92 against the Commission's decision of 2 July 1992.

The traders who enter into such trade agreements do not have to pay the user fee for the specific products mentioned in the agreement. They pay a collection fee of 3%. For other products which they offer for sale, they must pay the user fee. The Commission letter of 20 December 1993 challenged before the Court of First Instance 11

'In view of those considerations, and to the extent to which it is possible to judge at this It cannot therefore be considered that the stage, continuing the procedure is likely to VBA applies dissimilar conditions to result in a formal rejection of the com- equivalent transactions with other trading plaints. parties, within the meaning of Arti- cle 85(1)(d) of the EEC Treaty. Moreover, the file contains no conclusive evidence that trade between Member States might be appreciably affected, even if there were a restriction of competition within the mean- On the basis of this — still provisional — ing of Article 85(1).' assessment of your application, I thus have the intention of dispensing with any such formal procedure and of bringing the matter to a close. I shall take the necessary measures for that purpose unless you inform me within four weeks that you wish to maintain your complaint with a view to It made the following observations on the continuation of the procedure, and set forth Cultra agreements: the arguments on which you intend to rely to that end.'

III— The judgment of the Court of First Instance 26. The applicants' letter of 22 December 1992 drew no response from the Commis- sion. Since the health of their lawyer had seriously deteriorated, the applicants appointed a new lawyer on 3 November 1993. By letter of 9 December 1993, he 28. The VGB, Florimex, Inkoop Service asked the Commission to take a position on Aalsmeer BV and M. Verhaar BV under- the letter of 22 December 1992. takings challenged the position adopted by the Commission in its letter of 20 Decem- ber 1993.

27. The Commission responded by a letter of 20 December 1993, in which it referred to the last paragraph of its letter of 5 August 1992, adding the following: The defendant raised an objection of admissibility of the appeal, claiming that the document challenged was not decisive. The decision on this objection was reserved 'When the letter of 22 December 1992 was for the final judgment by an order of received, the period of four weeks granted 14 July 1994. to your client to submit observations on the content of the registered letter of 5 August 1992 had expired months earlier.

The Commission Directorate-General for In the contested judgment, the Court Competition took account of the informa- declared the appeal admissible and upheld tion provided in your letter of 22 December it in part, setting aside the Commission

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irrespective of whether the alleged delay On this point, the contested judgment was objectively justified. states that: 'Although, in principle, the Commission is thus entitled to draw certain inferences from the fact that a complainant fails to reply to a letter sent under Article 6 of Regulation No 99/63 within the period laid down pursuant to that article, provided that the time-limit is reasonable, the Court nevertheless considers that the complai- nants' consent to closure of the procedure on its complaint cannot be irrebuttably 31. I would begin by observing that in the presumed merely because the time-limit proceedings at first instance the Commis- was not observed. It would not be consis- sion raised an objection of inadmissibility tent with the right to a fair hearing for the against the action brought by the VGB, Commission to be able to close the proce- arguing that the decision did not contain an dure on the complaint where special cir- autonomous decision, in that it should be cumstances might legitimately account for regarded as either a preparatory act which, the failure to observe a time-limit which the as such, did not close the administrative Commission itself set'. procedure, or as an act purely corroborat- ing the decision on closure contained in the letter of 5 August 1992.

of 5 August 1992 had not been observed which it saw as a purely confirmatory and without contacting the applicants, that measure. Thus, in the absence of a reply their complaints were to be regarded as from the undertakings concerned to the lapsed before 22 December 1992'. letter of 5 August 1992 within the time- limits set by the Commission, the matter should have been regarded as definitively closed and the undertakings in fact forfei- ted the right to a decision on the merits of their complaint. The definitive rejection of the action was therefore attributable, according to the Court of First Instance, solely to the contested decision of 20 December 1993. In support of that conclusion, the Court then stated the following: 'In their letter of 22 December 1992, the applicants replied to the letter of 5 August 1992 in detail, 32. These arguments should be rejected, whilst at the same time stressing that they because they are based on a mistaken maintained their complaints in order to interpretation of the rules of the adminis- enable proceedings to continue. They also trative procedure for investigating infringe- specifically asked the Commission to adopt ments of the rules of competition and on an a formal decision on their complaints, as it erroneous assessment of the facts. had promised to do during the administra- tive procedure. In his letter of 9 November 1993, the new lawyer for the applicants asked the Commission to take a position on the letter of 22 December 1992. It is clear from the Commission's letter of 20 Decem- ber 1993, in response to this request, that it had examined the letter of 22 December It is appropriate, in that respect, to sum- 1992 and concluded that the observations marise, first of all, the relevant measures in it did not "disclose any reason to take regarding the administrative procedure for action under Article 85(1) or Article 86 of applying the rules of competition. Where the Treaty"'. the Commission, having received an appli- cation pursuant to Article 3(2) of Regula- tion No 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the appli- cation, it informs the applicants of its In the appeal against the Court ruling, the reasons in writing pursuant to Article 6 of VBA in substance repeats some of the Regulation No 99/63. That provision states arguments that had been put forward by that if the information provided by the the Commission in support of its objection parties fails to justify the opening of an of inadmissibility. The VBA does not dis- infringement procedure, the Commission is pute that the complaints were definitively to reject the complaint, 'inform the appli- rejected, but it considers that the complaint cants of its reasons in writing and fix a was closed by way of the letter of 5 August time-limit for them to submit any further 1992 and not by the contested decision, comments in writing'. Once it receives

33. In the present case, the problem arises of establishing the act which closed the administrative procedure. In considering this question, it is appropriate to review It is clear from the wording of the letter 12 — It isknown that, in the judgment of 10 July 1990, Case that the Commission is communicating a T-64/89 Automec v Commission (1990] ECR II-367, the Court of First Instance outlined three phases of the provisional position on the existence of the administrative procedure for examining complaints of infringement complained of, in relation to infringements or the rules of competition. The procedure opens with the submission of a complaint, governed by which it expresses only the intention of Article 3(2) of Regulation No 17, and ends with a decision to close the file. All the Commission acts preceding the taking no further action on the complaint. final decision are to be regarded as preparatory and The Commission also calls on the parties to therefore cannot be challenged before the legal authority. Thus, if the Community Court rules on a communication submit their observations within four under Article 6 of Regulation No 99/63, it would in fact weeks, adding that in the absence of such rule 'on questions on which the Commission has not yet had the opportunity to rule'. In reaching this decision the observations it would take the necessary Court based itself on the Court of Justice's judgment of 11 November 1981 in Case 60/81 IBM v Commission measures to bring the matter to a close. The [1981] ECR 2639, that declared as inadmissible an action Court of First Instance rightly — without against a communication of an appeal against a commu- nication of claims tegarding the finding that the measure is the complainant criticising it on this preparatory compared with the final decision. The Court states that 'if that is true of the statement of objections, the count — describes this communication as legal importance of which is greater than that of the a letter under Article 6 of Regulation notification provided for in Article 6 of Regulation No 99/63, it follows that the latter cannot be treated as a decision either' (see paragraphs 45 to 47). The Auto- No 99/63 on the complaints relating to mec I judgment was followed by a series of judgments on the trade agreements concluded by the VBA the inadmissibility of actions for annulment in respect of communications under Article 6 of Regulation No 99/63 and the organisation of the Cultra trading or other acts preceding the final decision on a complaint. centre.

In my opinion, the characterisation of the contested decision contained in para- graphs 85 to 87 of the Court's judgment as a decisive act is not vitiated by any error The Commission Directorate-General for of assessment. The letter, as pointed out Competition took account of the informa- above, was sent at an advanced stage of the tion provided in your letter of 22 December administrative procedure, specifically after 1992, on its own initiative. However, a the letter under Article 6 of Regulation provisional examination then carried out No 99/63 and after the parties had sub- did not disclose any reason to take action mitted their observations. In addition, with under Article 85(1) or Article 86 of the regard to its content, that letter is the first Treaty.' and the only act in which the complainants are informed of the definitive rejection of their complaints. Such rejection cannot be attributed to the letter under Article 6 in which the Commission had expressly stated its intention to adopt the necessary mea- sures to close the matter in the absence of observations. By the contested decision, the By this letter, the wording of which is Commission therefore communicated its altogether vague and obscure, the Commis- definitive decision on the matters com- sion seems to confine itself to stating that, plained of. The intention that the act since the undertakings had not reacted in should be definitive is also inferred from good time, it had followed up on what had the fact that the Commission does not set been suggested in its letter under Article 6 any time-limit for the undertakings to and in consequence had finally closed the submit any further observations. On this procedure on the complaints. subject, I would recall that, also with

14 — The Appeal Court affirmed the existence of this obligation on the Commission in its judgment of 18 March 1997 in Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503, in particular paragraphs 33 to 39. The Court recognised the complainants' right to bring an On the other hand, if the decision in action for infringement of the EC Treaty, within the meaning of Article 175 of the EC Treaty (now Article 232 question were to be considered as confirm- EC) in the event that the Commission, having sent a communication under Article 6 and having received ing the preceding letter, it could be accepted observations, fails to initiate a procedure or take a final that, once the undertakings concerned decision within a reasonable period. The Court thus provided a response to a question that had remained exceed the time-limit they have been given unsettled in the judgment of 18 October 1979 in Case 125/78 GEMA v Commission [1979] ECR 3173, in for submitting their observations on a letter particular paragraphs 17 and 18, in which it had stated under Article 6 of Regulation No 99/63, that communication under Article 6 'implies the discon- tinuance of the procedure' and therefore ends a state of the Commission is no longer required to inertia that can be challenged by an action under Article 175 of the EC Treaty. In the Guérin case, the adopt a decision to close the procedure: this Court considered that, after the communication containing a provisional position, the complainants were entitled, in the event of failure to adopt a final act of rejection or formal opening of the administrative procedure, to bring a new action on the grounds of infringement, to ascertain 13 — Judgment of 16 June 1994 in Case C-39/93 P SFEI v whether there had been a wrongful omission by the Commission [1994] ECR 1I2681, in particular para- Commission. graphs 27 to 30.

The fact that the contested decision merely refers, as regards its statement of reasons, to a preceding act of an apparently interim nature does not of itself render it confir- 35. In the light of these considerations, I matory. The statement of reasons for an act find that this first ground of appeal against can be reconstructed in the light of the the judgment of the Court of First Instance information derived from the general con- is unfounded. text, for instance information derived from the content of preparatory acts. This is the finding arrived at by the same Court in the recent Ufex judgment on a decision to reject a complaint of an infringement of rules of competition. In confirming the Court of First Instance ruling in those proceedings, the Court stated that the The second, third, fourth and fifth grounds Commission may, in a decision on the final of appeal: discriminatory treatment of rejection of a complaint, expressly refer to external suppliers of the cooperative. a communication under Article 6 of Reg-

of the facts in holding that there was graphs 192 and 193 of the judgment deliv- discrimination in treatment to the detri- ered on the same day in Joined Cases ment of non-members of the cooperatives T-70/92 and T-71/92, in which the Court of intending to sell their products within the First Instance found an error not in the VBA premises. Such discrimination, asso- assessment of the facts but in the statement ciated by the Court with the difference of reasons. between the rates of fee charged for access to the cooperative structures and services, is alleged not to exist since the difference in treatment relates to undertakings offering different services, so that the VBA is not required to offer identical treatment.

This Instance, it was claimed, had also infringed difference of treatment amounts to a the principle of non-discrimination in that restriction on access to the Netherlands it had applied the criterion of equality of flower market for those undertakings treatment to agreements with different intending to distribute products other than contents, whereas that principle requires those sold on the VBA premises, in parti- that different treatment must not be accor- cular products originating outside the ded to the same services. Lastly, the Netherlands. Secondly, the defendants appealed judgment is, it is claimed, vitiated pointed out that the Court of First Instance by an error of law, in that the Court of First had taken into consideration all the char- Instance, in finding that the Commission acteristics of the two types of agreement, had misassessed the facts, referred to para- and therefore they had been assumed as facts in the judgment and could not be

This criticism, however, manifestly relates to the findings of fact as it appears from the passages in the appealed judgment in which the Court of First Instance, comparing the The criticism, therefore, was not of the positions of the outside suppliers, states legal assessment of the agreement in ques- that there were no similarities between the tion, and therefore the applicability of positions of the different undertakings vis- Article 85(1)(d) to the case in question, à-vis the cooperative, concluding, in the but essentially of the review conducted by light of the facts obtained, that the differ- the Court of First Instance as to whether, ence in the rates applied to those under- based on the facts emerging from the takings was unjustified and therefore dis- contested decision, the services offered by criminatory. The discrimination lay in the the different undertakings could be deemed difference between the fee paid by the to be equivalent. Such an assessment per- suppliers delivering their products directly tains to the finding of facts at first instance, within the VBA premises (a fee that, and it may not, therefore, be re-examined according to the defendants, amounted to in an appeal. The VBA also seems to allege about 10% of the gross price of the a manipulation of the evidence by the products) and the fee of about 3 % of the Court of First Instance in stating that the price of products charged to the suppliers agreement forms produced in the first entering into the abovementioned 'trade instance proceedings show that the under-

takings entering into such agreements were 38. In the light of all the foregoing, I required to accept a set of constraints consider that the four grounds of appeal which in fact justified the different rate of put forward by the VBA should be dis- fees in question. Nevertheless, it appears missed. from the grounds for the judgment that the Court of First Instance had not omitted to take those items into account — in para- graph 116, the Court of First Instance expressly refers to the rental paid by the suppliers entering into trade agreements — and based its decision on the VBA's dis- criminatory treatment of suppliers on a The cross-appeal general, structured review of the relations existing between the different outside undertakings and the cooperative making the appeal. 39. The defendants have brought a cross- appeal against that part of the Court of First Instance's judgment in which it dis- misses their application for annulment of the Commission's decision on the assess- ment of the legality of the 'Cultra agree- ments'. The parties claim that the rejection of their application for annulment was based on an erroneous assessment of those agreements, in that the Court of First Instance considered them in isolation from the rest of the cooperative's internal rules, with the result that it confirmed the Com- mission's analysis to the effect that those agreements did not influence the common market and that therefore Article 85(1) of the EC Treaty was not applicable to them. Also unfounded is the VBA's criticism of the The Court of First Instance, it was claimed, Court of First Instance's alleged error in did not take into account the fact that not law in expressly referring — in order to only small retailers but large undertakings demonstrate the existence of an error in the conducted transactions in the commercial Commission's assessment — to what the centre, and that dealing in export products Court of First Instance had stated in also took place there. paragraphs 192 and 193 of Joined Cases T-70/92 and T-71/92. As I have already pointed out in the Opinion in Case C-265/97 P, in the Florimex judgment, and in particular in the aforesaid para- graphs 192 and 193, the Court of First In my view, these criticisms concern the Instance conducted a joint review of the findings and not the assessment of facts, error in law and the inadequate statement since the arguments put forward by the of reasons, both of which were claimed by defendants go to the effects on the market Florimex in contesting the decision of the of transactions conducted within the Cultra Commission of 2 July 1992. centre and to the purely financial relations

(2) dismiss the cross-appeal by Vereniging van Groothandelaren in Bloemkwe- kerij produkten, Florimex BV, Inkoop Service Aalsmeer BV and M . Verhaar BV;

(3) order the Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer (the VBA) BA to pay the costs of these proceedings incurred by Vereniging van Groothandelaren in Bloemkwekerijprodukten, Florimex BV, Inkoop Service Aalsmeer BV and M. Verhaar BV, except for the costs arising from the bringing of the cross-appeal.

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