C-196/97

the other party to the proceedings being:

Commission of the European Communities, represented by Klaus Wiedner, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz , of its Legal Service, Wagner Centre, Kirchberg,

* Language of the case: German.

I-200

INTERTRONIC v COMMISSION

THE COURT (First Chamber),

2 In that action, the applicant sought a declaration that the Commission had failed to act in so far as it did not respond to two letters of 28 March and 2 May 1996 in which the applicant complained that legal proceedings had been commenced against it in a number of national courts by associations for the promotion of com­ mercial interests in order to oblige it to stop advertising by fax (paragraphs 3 and 4 of the contested order).

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ORDER OF 15. 1. 1998 — CASE C-196/97 P

3 It appears from paragraph 2 of the contested order that, in a judgment of 25 Octo­ ber 1995, the Bundesgerichtshof held that it was contrary to Article 1 of the Gesetz gegen den unlauteren Wettbewerb (Law on unfair competition) to send advertising by fax to a trader, if that trader had not expressly or impliedly con­ sented to the receipt of such communications.

4 In its two letters, the applicant claimed that the judgment of the Bundesgerichtshof and the conduct of the associations were contrary to the principle of the establish­ ment of a common market enshrined in Article 2 of the EC Treaty, to the task entrusted to the Commission and the Member States by Articles 2 and 3(g) of the EC Treaty of establishing a system ensuring that competition in the internal mar­ ket is not distorted and so preventing the introduction of protectionist restrictions on competition by the Member States or the national courts and to the prohibition on restrictive agreements set out in Article 85 of the EC Treaty (paragraph 5 of the contested order). The letters also referred to Article 3 of Council Regulation No 17 of 6 February 1962, first regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p . 87) (paragraph 7 of the contested order).

7 The appellant considers that the Court of First Instance committed an error of law by holding, contrary to its intention, that it was seeking a declaration that the Fed­ eral Republic of Germany had failed to fulfil its obligations as a result of the deci­ sions of the German courts and the ensuing harm to the applicant, whereas it actu­ ally wanted the Commission to take action in order to enable it to use the 'Euromarketing' method of advertising and advertise by fax. According to the appellant, its request was clear from the pleadings in which it asked the Court of First Instance to 'declare that the Commission failed to act in so far as it did not find that the implementation, by the enforcement authorities of the Federal Republic of Germany and by the associations for the promotion of commercial interests, of the prohibition on advertising by fax constitutes a breach of the provi­ sions prohibiting restrictive agreements'.

8 The Commission considers, first, that the appeal is inadmissible, since it fails to specify the contested elements of the order which it is seeking to have set aside, and the legal grounds in support of that claim. It claims that the appellant has essentially confined itself to repeating the pleas in law and arguments already pre­ sented before the Court of First Instance. In the alternative, the Commission con­ siders that the appeal is unfounded. The appellant's two letters concerned a State measure, not the conduct of undertakings. The only proceedings which may be brought in respect of an infringement of the provisions of Articles 5 and 85(1) of the EC Treaty are for failure to act, which fall within the exclusive competence of the Commission.

12 It is clear from Article 169 of the Treaty that, as the Court of First Instance rightly recalled at paragraph 32 of the contested order, the Commission is not bound to initiate the procedure provided for therein but has a discretion in this regard which excludes the right for individuals to require that institution to adopt a specific pos­ ition (see, in particular, Star Fruit v Commission, cited above, paragraph 11).

13 In those circumstances, since the plea is clearly unfounded the appeal must be dis­ missed and there is no need to consider the grounds of inadmissibility raised by the Commission.

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INTERTRONIC v COMMISSION

Costs

14 Under Article 69(2) of the Rules of Procedure, which apply to the procedure on appeal by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission applied for the appellant to be ordered to pay the costs and the appel­ lant has been unsuccessful, it must be ordered to pay the costs of the appeal.

R. Grass M. Wathelet

Registrar President of the First Chamber

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