C-449/98

OPINION OF MR RUIZ-JARABO — CASES C-449/98 P AND C-450/98 P

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 January 2001 1

I. Introduction of 6 April and 14 August 1995 not to take action against allegedly anti-competitive practices engaged in by those operators in relation to various kinds of remail.

1. By its appeals in Cases C-449/98 P and C-450/98 P, International Express Carriers Conference (hereinafter 'the IECC') seeks In view of the similarity of the facts under- to have set aside, respectively, the judg- lying the two cases and, to a lesser extent, ments of the Court of First Instance of of the legal issues which they raise, I shall 16 September 1998 in Case T-110/95 2 and deal with them in a single opinion. in Joined Cases T-133/95 and T-204/95. 3

II. Facts The first of those judgments dismissed the IECC's action for annulment of the Com- mission decision of 17 February 1995 not to proceed with examination of its com- plaint concerning an agreement fixing 2. The facts of the case, as recorded in the terminal dues which various public postal contested decisions, are as follows: operators charge each other.

A. International Express Carriers Confer- The second dismissed the IECC's action for ence and remail the annulment of the Commission decisions

— 'ABB remail', where mail originating in Country A is transported by private companies to Country B and put into the postal system there for delivery to final addressees in Country B; and 6. The Universal Postal Union Convention (hereinafter 'the UPU Convention') which was adopted on 10 July 1964 under the aegis of the United Nations Organisation and to which all Member States of the European Community have acceded, pro­ vides the framework for relations between — 'ABA remail', where mail originating in all postal administrations worldwide. It Country A is transported by private was also within that framework that the

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European Conference of Postal and Tele- transport commercial companies' mail to communications Administrations ('CEPT') the public postal operators which offer the was established, to which all the European best quality/price ratio for a particular postal administrations against which the destination. appellant has complained belong.

8. Article 23 of the 1984 UPU Convention, now Article 25 of the 1989 UPU Conven- tion, provides as follows:

3. The administration concerned may either 4 — Of interest are the tariffs referred to by Alejo Carpentier in return its items to origin or charge postage El Siglo de la Luces, a magnificent tale of the French on the items at its internal rates. If the Revolution in the Antilles, where he writes that 'Those fields of destruction were assailed by a predatory flock of vile sender refuses to pay the postage, the items colonial functionaries... who, in exchange for the despatch may be disposed of in accordance with the of a letter... took a wedding ring, a locket, a family medallion — some treasured possession intended to be kept internal legislation of the administration safe to the last as a reason for living' (published by Seix Barral, 4 th Ed., Barcelona 1990, p. 234). concerned.

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of that agreement was signed on 14. Similarly, the IECC alleged that in 13 December 1995 and notified to the Spring 1988 Deutsche Post had attempted Commission on 19 January 1996. 6 to discourage mailers in Germany from using remail by citing Article 23 of the UPU Convention and by intercepting and return- ing inbound international mail destined for addressees residing in Germany.

D. The handling of the complaint

15. The public postal operators cited in the appellant's complaint submitted their answers to the questions put to them by the Commission in November 1988. 12. The first part of the IECC's complaint Between June 1989 and February 1991, concerned the application of Article 85 of copious correspondence was exchanged the EC Treaty (now Article 81 EC) to the between, on the one hand, the IECC and, CEPT Agreement. on the other, various officials in the Direc- torate-General for Competition (DG IV) and the cabinets of Commission Members Bangemann and Brittan.

22. On 15 February 1995, considering that 20. On 23 September 1994 the Commis- the Commission had not defined its posi- sion informed the IECC of its intention to tion pursuant to Article 175 of the Treaty, dismiss the part of the complaint that the IECC brought an action for failure to related to the application of Article 85 to act, registered as Case T-28/95. Two days the CEPT Agreement and asked it to submit later, on 17 February 1995, the Commis- is observations pursuant to Article 6 of sion sent the IECC a final decision rejecting Regulation No 99/63. With regard to the its complaint as regards the application of interception of non-physical ABA remail, Article 85 of the Treaty to the CEPT the Commission stated that 'this conduct Agreement, the subject-matter of the action for annulment in Case T-110/95 and of the present appeal in Case C-449/98 P (herein- 7 — OJ, English Special Edition 1963-1964, p. 47. after 'the Decision of 17 February 1995').

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23. In its Decision of 17 February 1995 the the former's domestic tariff for any post Commission states: received....

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tive clauses which were of concern to the 'So far as the IECC is aware, all of the Commission. Notably, the REIMS scheme, examples of restriction cited by the IECC despite possible imperfections, provides a represented implementation of Arti- link between terminal dues and the domes- cle 23(4) of the 1984 Universal Postal tic tariff structure ... Convention against ABC remail. Since your February 17 letter makes no reference to restrictions on ABC remail, the IECC cannot regard it as an adequate justification for rejecting the IECC's complaint.'

13. There is no doubt that the Commission shall thoroughly analyse the future REIMS scheme and its implementation under the competition rules. It shall notably examine the issue of Community interest both in terms of the substance of the reforms and the pace of their introduction...'.

26. On 6 April 1995 the Commission addressed to the applicant a decision con- cerning the second aspect of the complaint, in which, inter alia, it stated:

F. The Decision of 6 April 1995

... In the Commission's view... so-called 6. With respect to commercial physical "non-physical remail" involves the follow- ABA remail, the Commission's position is ing scenario: a multinational company, for that to the extent the commercial collection example a bank, ... sets up a central of mail from residents in country B for printing and mailing facility in one parti- subsequent remailing in country A to final cular Member State "A"; information is destinations in country B constitutes a sent by electronic means from all the bank's circumvention of the national monopoly subsidiaries and branches to the central for domestic letter delivery laid down by service centre, where the information is the law of country B, the interception of transformed into actual physical letter- such mail when it is re-entering country B items, e.g. bank statements, which are then may be considered to be legitimate action prepared for postage and submitted to the under the current circumstances and there- local postal operator... fore does not constitute an abuse of a dominant position in the sense of Article 86 of the EC Treaty.... [The] Commission... has... specifically noted that such circum- vention of the national monopoly is "ren- dered profitable because of the present unbalanced levels of terminal dues" and ... [There] are in our view no indications as that it is precisely for this reason that some to how the IECC's members could be form of protection is justifiable at this involved in this type of arrangement. ... stage. ...

8. For the above considerations I inform 7. With respect to the interception of non- you that your application of 13 July 1988 commercial physical ABA remail, "non- pursuant to Article 3(2) of Regulation physical" remail and normal cross-border No 17/62, as far as the interception of mail, the Commission's position is that to commercial physical ABA remail, non-

3. ... [You] have received a letter dated 6 April 1995 ... indicating that the part of your complaint relating to the interception

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13. Although it is true that the Commission 18. ... The French Post Office replied on may adopt a formal prohibition decision 24 October 1990 maintaining that it regarding anti-competitive behaviour believed... use of Article 23 UPU to be which has in the meantime been termi- legitimate under Community law. The nated, it is not under an obligation to do so incident was subsequently referred to in and will decide whether such a step is the Statement of Objections of 5 April appropriate in the specific circumstances of 1993...: in its response to the Statement of an individual case. In the case at hand there Objections, the French Post Office reiter- is no evidence that the two postal operators ated its earlier position that the incident referred to in the IECC's complaint of was not incompatible with Community 1988... have not abided by the undertaking law. which they each gave to the Commission in 1989 to refrain from invoking Article 23(4) with respect to ABC remail....

19. In the circumstances of the case, taking into account the isolated nature of the incident and that there is no evidence of recurrence of the behaviour, the Commis- 14. The Commission would point out that sion does not believe that it is necessary to the mere existence of Article 23/25 of the take a prohibition decision against the UPU is not necessarily contrary to the French Post Office.' Community competition rules: it is only the exercise of the possibilities of action granted by Article 23/25 in certain circum- stances — i.e. between Member States — which may constitute a breach of those rules.... m. The judgments of 16 September 1998

35. According to the appellant, it is clear 32. The partial nullity declared by the from a written answer to a question put by Court of First Instance was based on the the Court of First Instance that, when it fact that the Commission erred in law in forwarded its decision on 17 January 1995, finding that interceptions of commercial the Commission did not yet have in its ABA remail did not constitute an abuse possession the text of the draft REIMS within the meaning of Article 86 of the EC Agreement signed on that same date. The Treaty (now Article 82 EC). Court of First Instance committed a man- ifest error of assessment, in particular in paragraph 63 of its judgment, when exam- ining the legality of the Decision of 17 Feb- ruary 1995, by relying on information of which the institution from which the mea- sure emanated had no knowledge when adopting it.

IV. Appraisal of the grounds of appeal in Case C-449/98 P

36. If this ground of appeal is to the upheld, there must be no doubt whatsoever that the distortion of evidence alleged by the appellant actually occurred, whereby 33. In Case C-449/98 P, the IECC bases its the Court of First Instance, in its reasoning, appeal on nine pleas in law. confused the content of the briefing note

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with the text of the draft REIMS Agree- Agreement, whereas in the briefing paper ment. of February 1994 reference is made in paragraphs A5.7 and C3 to 1995 as the 'earliest date'.

38. It is nevertheless true that the reference at the end of paragraph 65 of the Spanish version of the judgment to the 'preliminary 40. It must be observed that the contested Agreement' (which should have been a judgment contains the information needed reference to the 'draft Agreement') goes for the Court of First Instance, on the basis against that logic and it seems strange that of the rigorous assessment of legality in paragraph 63 of the contested judgment required of it in cases of this kind, to reject reference is made to '1 January 1996' as each of those allegations. The judgment the possible date of entry into force of the recognises 'the intermediate but certain new system, as stated in the text of the draft state of the process of negotiations among all the public postal operators concerned' (paragraph 63) and the impossibility of 'examin[ing] in detail all of the provisions 8 — Paragraph 64 of the contested judgment. 9 — Paragraph 66. of the draft REIMS Agreement... without

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The second plea in law: error in law in the definition of the legal concept of Commu- nity interest and in the review of the legality of the Commission's application of that 46. There is still less truth in the view that, concept from paragraph 74 of the contested judg- ment and from paragraph 100 of the judgment in Joined Cases T-133/95 and T-204/95, it can be inferred that the Court 42. The appellant contends that the Court of First Instance upheld any finding of an of First Instance erred in law in appraising infringement of Article 85. In the first the scope, definition and application both instance, the Court of First Instance simply of Article 3 of Regulation No 17 and of the stated that the appellants's allegations were legal concept of Community interest. based 'on the assumption that, in its decision of 17 February 1995, the Com- mission established that the CEPT Agree- ment infringed Article 85(1)', and went on to undertake a hypothetical analysis. In the second instance, it merely emphasised that 43. In expounding this plea, the appellant an imbalance between the costs which a takes for granted two premisses which, to public postal operator bears in delivering my mind, are false. incoming mail and the remuneration which

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49. The Commission and the appellant For the Commission, as stated in the thus do not coincide in their view of the Decision of February 1995 and other allegedly anti-competitive nature of the documents, the limitations on freedom of CEPT Agreement. This divergence is of competition imposed by the CEPT Agree- particular importance in proceedings in ment have to do with the artificial method which an individual may request the Com- of calculating terminal dues, taking no — mission to adopt a decision finding an or only partial — account of the costs infringement of the competition rules and actually incurred in distributing mail. A in which the legality of the conduct of that favourable change would involve aligning institution must be assessed in relation to those dues with those costs. the legitimate interest which the maker of

10 — See point 7 above, in the account of the facts. 11 — At the hearing, the lawyer for the IECC stated, without retracting what he said in his reply to the Commission's response, that, in a context in which the terminal dues The appellant, although consciously taking reflected the extent of the real costs, remail companies would secure an advantage by reason of the better quality a more ambiguous stance, discloses its of their services.

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52. According to the appellant, the Com- mission could only invoke the lack of a Community interest in relation to facts 54. As early as the judgment of 24 January allegedly constituting an infringement of 1995 in BEMIM v Commission, 12 the the competition rules in order to justify not Court of First Instance made it clear — in commencing, or suspending, the investiga- response to the applicant's allegation that, tion of a complaint, and not as a criterion since the Commission had investigated the for deciding whether to adopt a decision case, it could not rely on the lack of a imposing a prohibition under Article 3 of Community interest in order to reject its Regulation No 17. complaint — that 'the Commission may take a decision to shelve a complaint for lack of a sufficient Community interest not only before commencing an investigation of the case but also after taking investigative

53. The concept of 'Community interest' or, more properly, 'lack of a Community 12 — Case T-114/92 [1995] ECR II-147.

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55. That approach, which was established 57. The 'lack of a Community interest' by the Court of Justice in its judgment of must not be seen — as claimed by the 18 October 1979 in GEMA v Commis- appellant — as a concept imposed by the sion 15 and is based not just on a literal judicature whose precise scope the Com- interpretation but on the nature of the mission should assess with a view to procedure for investigating infringements deciding whether or not to proceed with laid down by Article 3 of Regulation the investigation of a complaint. It is no No 17, 16 is primarily concerned with the more than an abbreviated formula, a short- Commission's power to adopt or not adopt cut, to describe, succinctly, the discre- a prohibition decision on conclusion of the tion — neither unfettered nor arbitrary, investigation of a complaint. It was there- since it is subject to judicial review — fore developed in relation to the Commis- which the Treaties confer on the Commis- sion's duty to uphold undistorted competi- sion for its examination of a complaint tion in the Community. alleging the existence of anti-competitive practices. The substance of that concept varies very considerably, to the same extent 13 — Paragraph 81. as the widely differing circumstances which 14 — Ibid. surround cases involving infringements of 15 — Case 125/78 [1979] ECR 3173, paragraph 17. 16 — Paragraph 18. the competition rules.

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60. In the first part, the appellant criticises 62. The same reasoning applies to the as incorrect the reasoning of the Court of second part of this plea, in which the IECC First Instance in rejecting its allegation that considers that the concept of 'Community the Commission could not reject the com- interest', the purpose of which is to deter- plaint for lack of a sufficient Community mine priority in dealing with complaints interest without erring in law, in view of the submitted to the Commission, cannot be advanced stage of the investigation. In validly relied on when the investigation has paragraph 49 of its judgment, the Court been concluded. of First Instance considered that '[s]uch an interpretation would not only be contrary to the actual wording of Article 3(1) of Regulation No 17, under which the Com-

63. In the third part of the second plea, in 17 — Case C-119/97 P [1999] ECR I-1341. the event of the Court of Justice consider-

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ing — as I propose — that the Commis- This was confirmed by the Court of Justice sion may invoke the Community interest when it expressed the view that, in apprais- even when the investigation has been ing the Community interest, it is inap- completed, the appellant contends that the propriate to limit or impose criteria for the Court of First Instance did not properly Commission's assessment. 19 Otherwise, carry out the necessary review of the way in the case-law would be rigidified. 20 which that concept was applied.

64. In the first place, the Court of First 66. The second allegation made in the third Instance — according to the appellant — part of this plea must, for analytical should have taken account of the criteria purposes, be considered with the fourth laid down in its judgment in Automec II. part.

19 — Ufex, cited above, paragraph 79. 18 — Paragraph 86 (emphasis added). 20 — Ibid., paragraph 81.

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fail have examined having regard to the in its Decision of 17 February 1995, recog- guidelines laid down in Automec II. nised that the CEPT Agreement constituted an infringement of Article 85(1). Without its being necessary or lawful to make any pronouncement as to the nature of that agreement in appeal proceedings, that fact is sufficient to reject the allegation. 69. This allegation must be treated in the same way as the previous one, in so far as there is no legal requirement that the Commission's analysis take account of the matters contained in that judgment. The Court of First Instance properly interpreted the applicable law in considering, in para- graph 52, that the Commission was not 72. Finally, the appellant criticises the required to 'to balance solely those matters judgment under appeal for accepting, in which the Court listed in its judgment in breach of the duty of review imposed by Automec II. It is thus entitled to take Article 173 of the EC Treaty (now Arti- account of other relevant factors when cle 230 EC), that the Commission could making its assessment. The assessment of legitimately believe that the contested prac- the Community interest is necessarily based tices would cease without having examined on an examination of the circumstances the matters of fact and law on which that particular to each case, carried out subject conclusion should have been based. to review by the Court'.

Secondly, it is not correct to assert that the decision of 17 February 1995 when evalu- Court of First Instance failed to examine ating the Community interest. the factual and legal basis of the Commis- sion's appraisal. In paragraphs 46 to 59 of the contested judgment there is a correct analysis of the relevant law, in the light of the Community case-law, and in para- graph 63 there is a review of the Commis- sion's examination of the facts, which in my opinion is not vitiated by any manifest error. The Court of First Instance conclu- 75. In view of the foregoing, this second ded that '[t]he Commission did not commit plea should be rejected in its entirety. any error in forming the view that, when the decision was adopted, the draft REIMS Agreement provided sufficient guarantees for the overall success of the process of negotiations being conducted among the public postal operators and seeking to establish a system based on the actual costs incurred when handling mail at national level. Notwithstanding the transitional and potentially flawed nature of the draft The third plea in law. infringement of the REIMS Agreement, which was, moreover, combined provisions Articles 3(g), 85, 89 recognised by the Commission, the docu- and 155 of the EC Treaty ment on which the Commission relied in the contested decision already described in detail the new system based on national postal rates to be introduced with effect from 1 January 1996. That document described the intermediate but certain state of the process of negotiations among all the public postal operators concerned. In that 76. In its third plea in law, the appellant context, it should also be stressed that the complains of misinterpretation of the scope Commission never claimed that the exis- of the function which Articles 89 and 155 tence of the draft REIMS Agreement had in of the EC Treaty (now Articles 85 EC and itself put an end to the anti-competitive 211 EC) assign to the Commission in order aspects of the CEPT Agreement alleged by to ensure the correct application of Arti- the applicant'. cles 3(g) and 85 of the Treaty. It can be inferred from the combined provisions of those articles that the Commission's obli- gation is to prevent distortion of competi- tion, and that, it is said, is incompatible with the decision not to prosecute an infringement merely because the facts 'give it proper cause to assume that the conduct 74. I conclude that the Court of First of the undertakings concerned will be Instance undertook an adequate examina- amended in a manner conducive to the tion of the matters of fact and of law which general interest' (end of paragraph 57). The the Commission took into account in its Court of First Instance also, it is said,

misapplied the judgement of 11 April 1989 The fourth plea in law: breach of the in Ahmed Saeed Flugreisen and Silver Line principle whereby the legality of a decision Reisebüro 21 by not drawing the correct can be assessed only in the light of the legal inferences from the principle laid down in and factual situation existing at the time of that case, to the effect that the Treaty its adoption prohibits the promotion of agreements found to be contrary to Articles 85(1) and 86. 78. The appellant criticises the Court of First Instance for referring, in paragraph 64 of its judgment, to the draft REIMS Agree- ment, the text of which was subsequently notified to the Commission, in order to reject the claims for annulment of the Decision of 17 February 1995. In so doing, the Court of First Instance infringed the principle that the legality of a measure should be assessed solely in the light of 77. The allegations made by the appellant matters of fact and law existing at the time in this third plea imply that, in its Decision of its adoption. of 17 February 1995 the Commission found that the infringement complained of had taken place. As I have shown above, that assumption is not correct, for which reason this plea should be rejected. 79. As the Commission correctly points out, the Court of First Instance's reference to a text post-dating the adoption of the contested decision takes account of the appellant's own argument which, as stated in paragraph 42 of the contested judgment, is based on that text. Moreover, it is evident that the Court of First Instance wished to stress the intermediate nature of the phase being considered and not prejudice the Furthermore, the appellant's argument is a legality of a measure which had not been separate facet of the arguments already put analysed by the Commission. In that forward in the second plea, which have regard, its reasoning is in conformity with been duly examined. In short, they relate to the principle allegedly infringed. determination of the scope of the Commis- sion's obligations when responding to a complaint concerning anti-competitive practices. I therefore refer to what I said when analysing that plea. 80. The fourth plea is manifestly without foundation and should therefore be 21 — Case 66/86 [1989] ECR 803. rejected.

However, elsewhere the Court of First 82. In the first part, the appellant compares Instance states that '[n]otwithstanding the two series of extracts from the judgment of transitional and potentially flawed nature the Court of First Instance, which it of the draft REIMS Agreement, which was, considers to be contradictory and in which moreover, recognised by the Commission, it perceives erroneous reasoning. the document on which the Commission relied in the contested decision already described in detail the new system based on national postal rates to be introduced with effect from 1 January 1996.... In that context, it should also be stressed that the The Court of First Instance states, on the Commission never claimed that the exis- one hand, that 'it is for the Commission, as tence of the draft REIMS Agreement had in part of its task to ensure that the Treaty is itself put an end to the anti-competitive properly applied, to decide whether it is in aspects of the CEPT Agreement alleged by the Community interest to encourage the applicant' (paragraph 63); that '[i]t has, undertakings challenged in administrative furthermore, already been pointed out in proceedings to change their conduct in paragraph 63 above that the Commission view of the complaints made against had in no way claimed in the contested them... and to require from them assur- decision that the draft REIMS Agreement ances that such conduct will in fact be had in itself put an end to the CEPT altered' (paragraph 58); that 'the adminis- Agreement' (paragraph 65); and that '[a]s trative procedure provides, inter alia, an regards the argument that the replies pro- opportunity for the companies concerned vided by the public postal operators to the to bring the agreements or practices com- statement of objections must be regarded as plained of into conformity with the rules reflecting a refusal on their part to bow to laid down in the Treaty, and that this the Commission's wishes, an undertaking possibility presupposes that the companies to which a statement of objections has been and the Commission can enter into con- addressed cannot, when drafting its reply to fidential negotiations in order to determine that statement, be required simply to indi- which alterations are necessary to satisfy cate its intention to adhere to the Commis- the Commission's objections' (para- sion's position. Such an undertaking must graph 98); and that 'by adopting this line be allowed to contest the legal and factual of conduct consistent with its policy assertions of the Commission. Any other towards the postal sector, the Commission interpretation would render nugatory the

85. For the same reasons, there is no basis 84. I am persuaded that, under the cloak of for the allegation, also contained in the first an allegation of defective reasoning, the part of this plea, that the Court of First appellant is seeking again to impose its own Instance erred in stating in paragraph 57 of particular definition of the specific scope of the judgment that 'the Commission may the Commission's obligations in relation to decide that it is not appropriate to investi- a complaint about anti-competitive prac- gate a complaint alleging practices contrary tices. In analysing the second plea, I to Article 85(1) of the Treaty where the accepted that it seemed lawful for the facts under examination give it proper Commission, in discharging its duty to see cause to assume that the conduct of the that competition is not distorted, to choose undertakings concerned will be amended in to ensure that definite progress is made a manner conducive to the general interest'. towards a situation that is compatible with the Treaty rather than declare an infringe- ment and impose a prohibition taking effect from a specified time. That background of a developing situation is the one against which must be seen the references, in the passages cited, to encouraging 'undertak- ings... to change their conduct', to bringing their 'agreements or practices... into con- formity with the rules' or even to 'the 86. In the second part of the fifth plea, the failure to eliminate all anti-competitive appellant alleges that the grounds of the

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87. The third part of the plea concerns the decision by the Court of First Instance to The sixth plea in law. breach of the general reject the appellant's request that the oral principle of non-discrimination procedure be reopened in accordance with Article 62 of the Rules of Procedure. By basing its refusal on the fact that '[t]he new factors on which the applicant relies in 90. The relevant part of paragraph 109 of support of those requests either do not the contested judgment, for the present contain any element decisive for the out- purposes, states as follows: come of the present dispute or are limited to establishing the existence of facts which clearly postdated the contested decision and which cannot therefore affect that decision's validity' (paragraph 25), it failed to give sufficient reasons for its decision. 'the applicant has not established that, in a situation identical to that of the present case, the Commission would, in contrast to its position in this case, have taken a decision against the undertakings in ques- tion. The applicant has therefore failed to establish the alleged infringement of the 88. The appellant confines itself to criticis- principle of non-discrimination'. ing, almost in the abstract, the reasons for the refusal to accede to its request that the oral procedure be reopened, without giving even an outline of how the specific circum- stances of the case called for more detailed reasoning, so as to give the appellant 91. Relying on two arguments, the appel- sufficient information to determine whe- lant doubts whether that statement is

92. It is true that, in many of the language versions of the contested judgment, the Court of First Instance improperly used the 95. I share the Commission's view that this term 'identical situation' to refer to a mere allegation cannot undermine the con- 'comparable situation'. However, there is clusion arrived at after examination of the no other evidence that a stricter criterion sixth plea. was applied in assessing the allegation of discrimination made by the appellant. Fur- thermore, in view of the specific terms of that allegation, in particular with regard to the question of price-fixing agreements, no 96. The seventh plea must therefore also be manifest error of assessment is apparent in rejected. the Court of First Instance's decision to reject it. In fact, the appellant confined itself to enumerating a series of Commis- sion decisions imposing prohibitions in relation to price agreements restricting competition without endeavouring to show any other similarity with the case in hand, the main feature of which was a decision as The eighth plea in law: misapplication of to the appropriate course of action based the concept of misuse of powers on the expectation that the situation would be changed in a manner conducive to the general interest. 22 97. The appellant considers that the Court of First Instance erred in law both in 22 — See paragraph 57 of the contested judgment. appraising separately each of the factors

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put forward to show that the Commission already examined in connection with the had misused its powers and in failing seventh plea — can any trace of a manifest properly to examine some of them, error of appraisal by the Court of First amongst which the appellant cites the fact Instance be deduced. that the statement of objections could have been sent as early as April 1991 and the allegation that the way in which the case was dealt with was inconsistent with the Commission's past practice. 99. I therefore suggest that the eighth plea be rejected.

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to show that the Commission committed a The first plea in law: infringement of manifest error of assessment, a party must Article 3(2)(b) of Regulation No 17/64 be allowed to rely on events postdating the contested measure.

104. In paragraphs 78 to 83 of the con- tested judgment, the Court of First Instance confirms the validity of the Commission's 102. The scope of this allegation is such assessment that the appellant could not that it merges with the third part of the fifth claim any legitimate interest in complaining plea in law. Once again, the abstract nature of the practices of public postal operators of the appellant's criticism of the contested in relation to non-physical remail. judgment, to the effect that it does not indicate the factors making it necessary or appropriate to reopen the oral procedure, prevents me from identifying any manifest error of appraisal on the part of the Court of First Instance which might provide a basis for setting aside its judgment. Appeal proceedings are not a means of merely amending the wording of the contested 105. The appellant considers that finding judgment but provide an opportunity for to be in breach of Article 3(2)(b) of Reg- allegations to be voiced in order to prove ulation No 17, which allows submission to errors of law which may render it invalid. the Commission of allegations of infringe- ments of Articles 85 and 86 by 'natural or legal persons who can claim a legitimate interest', a term which must be interpreted in accordance with the approach defined in the Metro judgment. 24 It considers that the Court of First Instance should have borne in mind: (a) that interception of any kind under Article 25 of the UPU Convention affects the interests of the members of the IECC in so far as its object it to protect V. Examination of the pleas in law in Case public postal operators against the adverse C-450/98 P effects of the CEPT Agreement; (b) that the concept of 'non-physical remail' applied by the postal administrations covers part of the business of IECC members; (c) that even interceptions not made against IECC members may affect them since they entail

109. Finally, by the allegation outlined at (b) above, the appellant purports to show that reliance by public postal operators on an extensive interpretation of the concept 106. It should be pointed out that, under of 'non-physical remail', which takes no the case-law relied on by the appellant, account of the place where the mail actu- persons entitled to submit an application ally originated, means that part of the under Article 3(2)(b) of Regulation No 17 business of IECC members may be classi- may appeal only when their complaint has fied as non-physical remail. That is the been rejected wholly or in part. It gives no case, for example, where mail is dispatched relevant guidance as to how, on the basis of from country B to country A. If it is the fourth paragraph of Article 173 of the considered that the mail originated in EC Treaty, the concept of legitimate interest country B in accordance with instructions contained in the regulation should be from a company which is established ('or defined. In any event, it is likewise uncer- resides', in postal terminology) in country tain that the circumstances described by the A, that would be equivalent to non-physical appellant disclose any effect of direct and ABA remail and could be the subject of individual concern covered by Article 173. interception under Article 25 of the UPU Convention. Accordingly, IECC members should be treated as having a legitimate interest in the part of the complaint relating to remail of that kind, thus defined.

107. The allegations mentioned under (a) and (d) above cannot be relied on to attack the appraisal of the Court of First Instance since they have been raised for the first time 110. In appeal proceedings, only pleas in an appeal. They are therefore inadmis- intended to show that the judgment of the sible. Court of First Instance erred in law are admissible.

members are, by definition, not involved in 112. I thus reach the conclusion that the non-physical remail transactions, referred first plea must be declared inadmissible for to the ABCA form of non-physical remail, the most part and, and for the rest, interpreted in a manner allegedly peculiar unfounded. to public postal operators. As the Commis- sion rightly points out, only that form, and not ABA non-physical remail — again understood in those terms — can be of concern to IECC members. 25 For that reason, in paragraph 82 of the contested judgment, the Court of First Instance states that the fact that ABCA non-physical The second plea in law: misreading of the remail has an impact on IECC members Decision of 6 April 1995 'cannot affect the conclusion reached by the Commission in regard to non-physical ABA remail'. The Court goes on to say: 'The applicant also confirms that non- physical ABCA remail is in reality equiva- 113. According to the appellant, the con- lent to ABC remail, which was examined tested judgment, in defining in para- by the Commission in its decision graphs 58 to 62 the scope of the decisions 14 August 1995 and will therefore be of 6 April and 14 August 1995 respectively, examined by the Court in the context of distorted the meaning of various docu- the action brought against that decision.' ments before it. In particular, the Court of First Instance could only have reached the conclusion that the part of the complaint relating to ABC remail was not covered by the Decision of 6 April 1995 by misinter- preting the Commission document of 17 February 1995, the IECC letter of 22 February 1995, the contested decision itself and the defence lodged by the Com- mission. 111. It must be concluded that, in view of those statements in the contested judgment, the appellant is merely repeating and expanding upon the argument which it put forward at first instance, without even attempting to question the validity of the 114. The pedantic argument put forward reasoning of that judgment, for which by the appellant in this plea is a rare reason this part of the plea must be example of vacuousness and formalism, as declared inadmissible. the Commission rightly points out, which can be seen only as a peculiar procedural strategy. It does not, in any event, deserve 25 — The circumstances are these: a company resident in detailed rebuttal. It need merely be stated country A — in accordance with the broad rule which that, from a reading of the Decision of the appellant attributes to the postal administrations — generates a large amount of mail in country B, sends it to 6 April 1995, it can be reasonably in- country C — with the cooperation of operators such as ferred — as was inferred by the Court of IECC members — and entrusts it to the public postal operator in that country for dispatch to country A. First Instance — that the part of the com-

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121. The appellant divides this plea into the Court of First Instance relied on only three parts. one criterion in appraising the Community interest, without analysing the factors set out in its judgment in Automec II.

122. In the first part, the IECC alleges that the Court of First Instance erred in law, in 125. For the reasons set out in para- paragraph 148 of the contested judgment, graph 65 et seq., that allegation must be in stating that the Commission was entitled rejected. to base its decision on the absence of a Community interest without expressly referring to that concept.

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OPINION OF MR RUIZ-JARABO — CASES C-449/98 P AND C-450/98 P

factor for assessing the Community interest tion which Articles 89 and 155 of the which does not appear in the decision and Treaty assign to the Commission in order which the Court of First Instance unlaw- to guarantee the proper application of fully added to justify rejecting the com- Articles 3(g), 85 and 86 of the EC Treaty. plaint, without verifying — as it was Those provisions, read in combination, required to do — whether the national show that the Commission's obligation is courts could offer satisfactory protection to ensure that competition is not distorted, for the complainant's rights. and that precludes a decision not to prose- cute an infringement merely because the facts allow it to believe 'that it was not appropriate to pursue a complaint denoun- cing practices which were subsequently discontinued' (end of paragraph 146 of 129. As I said earlier, it cannot be inferred the contested judgment). It refers, in sup- from the case-law of the Court of Justice port, to the Opinion delivered in Ufex, that an examination of the Community cited above, and the judgment in that case. interest in a complaint lodged under Arti- cle 3 of Regulation No 17 requires assess- ment of any particular factor. The omission which the appellant attributes to the rea- soning of the Court of First Instance cannot, in any case, serve as a basis for setting aside the contested judgment, because the view was not expressed that the rejection of the complaint was justified 132. The appellant infers from the judg- by the possibility that the complainants ment in GEMA, cited above, that the could seek a remedy in the national courts. power which Article 3(1) of Regulation No 17 grants the Commission to adopt a decision prohibiting a practice contrary to the competition rules, whose existence has been established, means that only in certain circumstances may the Commission decline 130. For all the above reasons, the fourth to adopt a decision in such a situation. plea must be rejected in its entirety.

136. In my view, the only original issue raised by this plea lies in the comparison between the circumstances of the present The appellant considers that the action case and those of the Ufex case, in which which must be taken in order to investigate judgment was delivered on 4 March 1999 a complaint against the postal administra- and to which the appellant has made tions of the Member States for infringement abundant reference in its reply. of Articles 85 and 86 of the EC Treaty by acting in concert in applying Article 25 of the UPU Convention and intercepting postal remail goes beyond the jurisdiction of the national courts or even that of several national courts acting individually According to the IECC's view, in both cases in various Member States. That means, in its view, that the Commission has exclusive the Commission declined to prohibit pro- de facto powers to examine a complaint of ven infringements of the competition rules, that kind. in view of the fact that they had ceased, without evaluating the possible continuing effects of such practices when appraising the Community interest.

134. With regard to the admissibility of this fifth plea, I refer to what I said in relation to the fourth. 137. The appellant's interpretation, although engaging, is intentionally simplis- tic.

135. The IECC's allegations in the relation to the fifth plea constitute, to a consider- 138. In Ufex, the Court of Justice set aside able extent, a separate facet of those the judgment of the Court of First Instance already put forward in the fourth plea, because it accepted that the investigation of which have been duly examined. In short, a complaint relating to, admittedly, past the issue is the scope of the Commission's infringements did not correspond to the obligations when confronted with a com- task entrusted to the Commission by the plaint concerning practices restrictive of Treaty but served essentially to make it

140. As I said on that occasion, '[t]he Commission should not tolerate such a situation and has an obligation to restore freedom of competition in the sector con- cerned, provided that the other factors 143. The Court of Justice added that '[i]n justifying a "Community interest" in inter- deciding to discontinue consideration of a vention by the Commission are present'. I complaint against those practices on the also considered that that aim was perfectly ground of lack of Community interest, the compatible with the fact that the complai- Commission therefore cannot rely solely on nants, for their part, were acting in pursuit the fact that practices alleged to be contrary of their private interest. to the Treaty have ceased, without having ascertained that anti-competitive effects no longer continue and, if appropriate, that the seriousness of the alleged interferences with competition or the persistence of their consequences has not been such as to give 141. To summarise, I was of the opinion on the complaint a Community interest'.29 that occasion that the Commission could

28 — Paragraph 92. 27 — Paragraph 96 of Ufex 29 — Paragraph 95.

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144. The review of legality undertaken by decision, definitively classified the practices the Court of First Instance in the present at issue as distorting competition. case does not display the same features.

147. Finally, in the present case, the Court of First Instance made a detailed evalua- On the contrary, in the Ufex case, the tion, in paragraphs 150 to 153 of the Commission had indeed, in its GD-Net contested judgment, of another matter which the Commission took into account when deciding not to pursue investigation 30 — Paragraph 145 of the contested judgment. 31 —Joined Cases C-147/97 and C-148/97 [2000] HCR I-825. 32 — Ibid., paragraph 50. 33 — Case T-77/95 [1997] KCR II-1.

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OPINION OF MR RUIZ-JARABO — CASES C-449/98 P AND C-450/98 P

151. First, the statement by the Court of First Instance in paragraph 121 of its judgment, in relation to paragraph 69, finds that the Decision of 6 April 1995 154. The alleged incompatibility cannot be does not relate to the infringements of substantiated, since in the first passage Article 85 of the EC Treaty allegedly com- cited the Court of First Instance was mitted by the public post operators, examining the legality of the Commission

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IECC V COMMISSION

decision of 14 August 1995 not to make Article 25 of the UPU Convention, and the use immediately of its power to declare an fact that the public postal operators actu- infringement and, in the second passage, it ally relied on that provision when carrying concluded that the definitive decision of out the interceptions at issue. 6 April 1995 as to the compatibility of certain practices with Article 86 of the EC Treaty was unlawful.

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OPINION OF MR RUIZ-JARABO — CASES C-449/98 P AND C-4S0/98 P

Article 86 adopted by the Commission in sectoral interests of the public postal its decision of 6 April 1995 in connection operators. At the end of paragraph 190 of with one of the cases in which Article 25 of the contested judgment, the Court of First the UPU Convention was invoked. Instance considered it lawful that the Commission's conduct, in the postal sector, pursued the twofold objective of ensuring the application of the competition rules and at the same time achieving progress with 157. The sixth plea must be rejected in its liberalisation of the sector, there being entirety. nothing to justify the view that the pursuit of that twofold objective reflected any misuse of powers in the adoption of the contested decisions.

The seventh plea in law: misapplication of the legal concept of misuse of powers None of the factors which the Court of First Instance allegedly failed to take into 158. The appellant, finally, challenges the account detracts from that appraisal, even Court of First Instance's assessment of its assuming that they were relevant and allegations of misuse of powers in the objective. adoption of the decisions of 6 April and 14 August 1995.

159. First, the Court of First Instance, it is 161. Second, the appellant criticises the said, erred by not undertaking an overall Court of First Instance for stating, in examination of the evidence placed before paragraph 193 of the judgment, that it is it, and moreover, failed to carry out any not appropriate, when determining whe- examination of certain parts of it. ther there has been any misuse of powers, to examine how the Commission dealt with other cases in the same sector.

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