C-302/99

COMMISSION AND FRANCE V TF1

OPINION OF ADVOCATE GENERAL MISCHO delivered on 8 March 2001 i

1. The French Republic (in Case C-308/99 concerning the methods used to finance and P) and the Commission (in Case C-302/99 operate the France-Télévision public broad- P), both supported by the Kingdom of casting channels. It is common ground that Spain, have applied to the Court of Justice TF1's complaint expressly alleged infringe- for the judgment of the Court of First ment of Article 85 (now Article 81 EC), Instance in the case of TFl v Commission 2 Article 90(1) (now Article 86(1) EC) and to be partially set aside on the ground that Article 92 (now, after amendment, Arti- the Court held TFl's action to be admis- cle 87 EC) of the EC Treaty. sible in so far as it was directed against the Commission's failure to act pursuant to Article 90 of the EC Treaty (now Article 86 EC).

4. Having received no satisfactory response to its complaint, by letter of 3 October 1995, TF1 formally requested the Commis- sion and, in so far as was necessary, gave it 2. The French Republic also appeals formal notice to define its position and act against the Court's order that it bear the upon the submissions set out in its com- costs incurred by the applicant at first plaint of 10 March 1993. instance as a result of its intervention.

5. By letter of 11 December 1995 the Commission informed TF1 that its inquiry The facts and the judgment under appeal into the matters complained of was still in progress.

3. The judgment under appeal states that, on 10 March 1993, the applicant at first instance, Télévision Française 1 SA ('TF1'), a private television broadcasting channel, 6. On 2 February 1996 TF1 brought an submitted a complaint to the Commission action before the Court of First Instance seeking a declaration, pursuant to Arti- cle 175 of the EC Treaty (now Article 232 1 — Original language: French. EC), that the Commission had failed to 2 — Case T-17/96 [1999] ECR II-1757. fulfil its obligations under the Treaty by not

— held that, by its letter of 15 May 1997 7. During the course of the proceedings, the to the complainant, the Commission Commission placed before the Court a had defined its position within the copy of a letter which it sent on 15 May meaning of the second paragraph of 1997 to TF1 pursuant to Article 6 of Article 175 of the Treaty and that there Commission Regulation No 99/63/EEC of was no longer any need to adjudicate 25 July 1963 3 on the hearings provided for on the claim for a declaration of failure in Article 19(1) and (2) of Council Regula- to act in so far as a declaration was tion No 17 of 6 February 1962: First sought that the Commission had Regulation implementing Articles 85 and unlawfully failed to act pursuant to 86 of the Treaty. 4 In that letter the Article 90 of the Treaty (paragraph Commission had informed TF1 that, on 103 and the second paragraph of the the basis of the information in its posses- operative part); sion, it was unable to uphold its complaint in so far as it alleged infringement of Articles 85 and 86 of the Treaty. The Commission went on to invite TF1 to submit its comments within two months of 15 May 1997, adding that, having considered the allegation of infringement of Article 90 of the Treaty, it had been — ordered, pursuant to Article 87(4) of unable to establish that the matters com- the Rules of Procedure, that the French plained of amounted to an infringement. Republic should bear its own costs, together with the costs incurred by the applicant as a result of its intervention 3 — OJ, English Special Edition 1959-1962, p. 87. (paragraph 110 and the sixth para- 4 — OJ, English Special Edition 1963-1964, p. 47. graph of the operative part).

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49 Secondly, it is appropriate to consider sions in the Treaty as from their to what extent an action for failure to purpose, that, where, with regard to act may be directed against a failure on public undertakings or undertakings the part of the Commission to act which benefit from special or exclusive pursuant to Article 90 of the Treaty. rights, a Member State enacts or keeps It should be observed that Article 90(3) in force measures which have an anti- of the Treaty requires the Commission competitive effect equivalent to that to ensure that Member States comply produced by anti-competitive conduct with their obligations as regards the on the part of any other undertaking, undertakings referred to in Arti- an individual may not be deprived of cle 90(1) and expressly empowers it the protection of his legitimate inter- to take action for that purpose by way ests. In this connection it is appropriate of directives and decisions. The Com- also to observe that, by virtue of case- mission is empowered, inter alia, to law, one of the general principles of determine, by means of a decision Community law is that any person taken on the basis of Article 90(3) of must be able to obtain effective judicial the Treaty, that a given State measure is review of decisions which may infringe incompatible with the rules of the a right conferred by the Treaties (see, in Treaty, including those in Articles 85 particular, Case 222/84 Johnston v to 94 (now Article 89 EC) of the Chief Constable of the Royal Ulster Treaty, and to indicate what measures Constabulary [1986] ECR 1651, para- the State to which a decision is graph 18, Case C-249/88 Commission addressed must adopt in order to v Belgium [1991] ECR I-1275, para- comply with its obligations under graph 25, and Case T-186/94 Guérin Community law (Joined Cases Automobiles v Commission [1995] C-48/90 and C-66/90 Netherlands ECR II-1753, paragraph 23). and Others v Commission [1992] ECR I-565, paragraphs 22 to 30).

56 Lastly, the Court notes that, unlike the complainant in the matter which led to 53 It is common ground that the applicant the judgment in Bundesverband der is the largest private television channel Bilanzbuchhalter v Commission, cited in France, enjoying a 42% share of the in paragraph 51 above, which inten- viewing audience in 1992 and a 55% ded, by means of its action directed share of the advertising market. Fur- against the Commission's refusal to thermore, because of its generalist adopt a decision, pursuant to Arti- programming (news, sport, feature cle 90(1) and (3) of the Treaty, with films, drama, general entertainment, regard to the Federal Republic of magazine programmes, documentar- Germany, indirectly to force that Mem- ies), it competes directly with the ber State to adopt legislation having France-Télévision channels for the general application, the applicant in same viewing audience. Similarly, it is the present case seeks to have the established that TF1 and the two Commission define its position, pur- France-Télévision channels compete suant to Article 90 of the Treaty, on the directly, as regards both the acquisition various State measures complained of, of rights to show cinematographic and which it alleges favour two particular audiovisual works and to broadcast economic operators who are clearly sporting events and the sale of their identified and with whom it is in direct advertising space to advertisers. competition.

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57 It follows from the foregoing consid- favour that interpretation, in that it con- erations that, in so far as it is directed tains no mention of complainants and against the Commission's failure to act merely provides that the Commission is to pursuant to Article 90 of the Treaty, act 'where necessary', but also the provi- the application is admissible.' sion should be likened to Article 169 of the EC Treaty (now Article 226 EC), in rela- tion to which the Court of Justice has held that the Commission 'has a discretion which excludes the right for individuals to require that institution to adopt a specific position'. 5

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7 — Case T-111/96 [1998] ECR II-2937. 8 — Case T-266/97 [1999] ECR II-2329. 9 — Case C-59/96 P [1997] ECR I-4809.

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arguments put forward by the Commission. 24. It also stresses that the applicant must be the potential addressee of the measure which the institution stands accused of failing to adopt or must, at very least, be directly and individually concerned by it.

21. In an analysis which it expressed slightly differently at the hearing, it argues that the existence of an obligation on the part of the defendant institution to take action is a condition of admissibility of any 25. In addition, it shares the view that the proceedings for failure to act, and not a case does not, in any event, involve any substantive criterion according to which 'exceptional situation' within the meaning such an action is to be judged. However, of the judgment in Bundesverband der both the terms of the Treaty and case-law Bilanzbuchhalter v Commission. clearly show that the Commission is under no obligation to act pursuant to Arti- cle 90(3) of the Treaty.

I — Forms of order sought in chief

33. It follows that the paragraph of the operative part which the appellants wish to 28. It is appropriate to analyse, first of all, be set aside did not decide, implicitly or the purpose of the appeals before the explicitly, the question of admissibility. Court.

34. That question was, however, explicitly considered by the Court in the grounds of 29. The appellants ask that the second the judgment which I mentioned earlier and paragraph of the operative part of the to which the appellants' pleas relate. judgment under appeal, which states that 'there is no need to adjudicate on the allegation that the Commission failed to act pursuant to Articles 85 (now Article 81 EC) and 90 (now Article 86 EC) of the EC Treaty', be set aside. 35. The question thus arises whether the appellants are entitled to pursue the setting aside of the judgment by reason of what is stated in the grounds.

30. They submit that, by making that ruling, the Court of First Instance necessa- rily, albeit implicitly, held TFI's action 36. It must be remembered in this connec- against the Commission's failure to act in tion that, under Article 113 of the Rules of accordance with Article 90 of the Treaty to Procedure of the Court of Justice, 'an be admissible. appeal may seek to set aside, in whole or in part, the decision of the Court of First Instance'. It must, therefore, address the

10 — See, for example, the judgment in Joined Cases C-15/91 and C-108/91 Bucki ami Others v Commission [1992] r.CR 1-6061, paragraphs 14 to 17, and the order in Case C-41/92 The LiberalDemocrats v Parliament [ 1993] LCR 31. I do not share that view. I-3153, paragraph 4.

38. In this regard the circumstances of the present case are fundamentally different from those in France v Comafrica, 11 a 42. The Court of First Instance quite judgment on which the French Republic rightly added that the content of the relies. Commission's letter clearly showed that it had stated therein the outcome of its examination of the applicant's complaint under Article 90 of the Treaty, which, in its view, justified its opinion that there was no 39. It is clear from the judgment at first need to proceed with the complaint. instance in that case 12 that the Court's decision to dismiss the action after exam- ination of the substantive merits, rather than declare it inadmissible, necessarily implies that it regarded the action to be 43. It follows from the foregoing — and admissible. That is confirmed, moreover, the point has not been disputed on by the Court's dismissal of an objection to appeal — that the Court of First Instance admissibility. established that, as regards that aspect of the complaint, the Commission adopted a position within the meaning of the second paragraph of Article 175 of the Treaty after commencement of the action and before 40. Nevertheless, the appellants still argue delivery of the judgment. that their interpretation of the operative part of the judgment under appeal is confirmed by the grounds that I mentioned earlier and that the operative part must be construed in the light of those grounds. 44. By virtue of the settled case-law of the Court of Justice outlined above, it follows that there was no longer any need to 11 — Case C-73/97 P [1999] ECR I-185. 12 — Case T-70/94 Comafrica and Dole Fresh Fruit Europe v adjudicate on that part of the action Commission [1996] ECR II-1741. because it no longer had any purpose.

14 — See, by way of example, Case C-396/93 P Henrichs v 13 — See, by way of example of a body of case-law, Case Commission [1995] ECR I-2611 and Case C-2/98 P De C-35/92 P Parliament v Frederiksen [1993] ECR I-991. Compte v Parliament [1999] ECR I-1787.

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II — Opinion offered in the alternative requirements flowing from the second paragraph of Article 175 since the parties are agreed that the applicants validly gave the Commission formal notice and that the 53. As has been seen, the appellants com- time allowed the Commission to respond plain that the Court of First Instance held expired without it putting an end to its TFl's action for failure to act to be alleged failure to act. admissible under Article 90 of the Treaty even though not all of the conditions of admissibility were satisfied.

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that had asked the Commission to order the sibility of the action as being subject only to Euratom Supply Agency to purchase from the conditions that the complainant must it a certain quantity of that product. In T. be a competitor in the market in question, Port, cited above, a banana importing firm must have relied in its complaint on other had asked for a supplementary tariff quota. provisions also, must have alleged infringe- ment of the competition rules or have identified two competing economic opera- tors benefiting from the law of which it complained.

60. As regards the substance of the dispute, it is for the applicant to show that the defendant's failure to act is unlawful, that is to say, to demonstrate that the defendant is 64. There is no question that the Court did under an obligation to act. I shall return to not explicitly consider the applicant's locus this point on considering the argument standi, as defined in the case-law of the which the French Republic draws from it. Court of Justice and described above. Indeed, it made no reference to 'direct and individual concern'.

61. First, I shall examine in the light of the foregoing considerations the appellants' 65. On the other hand, its approach to criticisms of the judgment under appeal. analysing the applicant's situation was plainly different. As we have seen, it considered whether the case involved an 'exceptional situation' within the meaning of Bundesverband der Bilanzbuchhalter v Commission. 62. The Commission emphasises the fact that, contrary to the precedent in Ladbroke Racing v Commission, cited above, the Court of First Instance did not in the present case hold that the complainant 66. Paragraph 25 of that judgment reads as must be directly and individually concerned follows: by the measure which it had called upon the Commission to adopt.

71. That passage of the judgment cannot be interpreted as meaning that, at least where certain exceptional circumstances prevail, undertakings could now bring actions against an institution for failure to adopt 69. At paragraph 24 of its judgment in a measure which would not concern them Bundesverband der Bilanzbuchhalter v directly and individually. Commission, the Court stated that it was apparent from the judgment in Netherlands and Others v Commission, cited above, that individuals may, in some circum- stances, be entitled to bring an action for annulment, under the fourth paragraph of Article 173 of the Treaty, against a decision 72. Moreover, I take the same view as the of the Commission taken on the basis of appellants and regard the circumstances on Article 90(3) of the Treaty. That is quite which the Court of First Instance relied as understandable, since that case concerned a being unexceptional. decision addressed by the Commission to the Kingdom of the Netherlands taking issue with an exclusive franchise granted by law to PTT Nederland NV for the transport of letters not exceeding 500 g. The decision therefore directly and individually con- 73. The Court, in fact, seems to have cerned the Dutch post office because it attached primary importance to establish- sought to alter the circumstances in which ing that the applicant had a special interest that public company might operate. There in bringing the action.

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77. The same applies to the Court's finding that the various subsidies, benefits, prac- 81. That does not, in and of itself, mean tices, agreements and regulations reported that the Court failed in its duty to establish in the complaint are inter-connected and whether or not the applicant was directly

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and individually concerned by the measure 86. As regards the fact that the applicant is of which it sought the adoption. It is, in the strongest competitor of the public fact, conceivable that the characteristics of television channels, that alone does not the applicant's situation as described by the make its situation qualitatively different, Court are such as to imply the existence of for the purposes of any measures the direct and individual concern, even though Commission might adopt, from the situa- the judgment under appeal does not, as we tion of any other operator or potential have seen, make any explicit reference operator in the market. thereto.

82. However, it plainly follows from what I 87. It is clear from consistent case-law that, have already said that there is no such in the case of persons other than the implication. addressee of a measure, individual interest exists only where the act 'affects them by reason of certain attributes which are peculiar to them or by reason of circum- stances in which they are differentiated 83. The points examined by the Court of from all other persons and [where] by First Instance which I have just analysed virtue of those factors it distinguishes them unquestionably show that the applicant has individually just as in the case of the person a direct interest in any measures which the addressed'. 17 Commission might have adopted pursuant to its complaint.

94. I therefore suggest that the Court of 90. Consequently, there is no need to First Instance erred by holding, in para- consider the remainder of the appellants' graphs 50 and 51 of its judgment, that the argument mentioned earlier. It is only in the principle that every person must be able to further alternative that I would go on to obtain effective judicial remedies overrides state the following. the Commission's broad discretion in implementing Article 90 of the Treaty. It was the authors of the Treaty who decided what effective judicial remedies must be open to individuals and it was they who decided that actions for failure to act could not succeed in the absence of an obligation 91. The remainder of the appellants' case to act. The Community Courts cannot essentially concerns the effect of the discre- substitute their own view of what is tion which, according to case-law, the required to protect the rights of individuals Commission enjoys in the matter of apply- effectively for that of the authors of the ing Article 90(3) of the Treaty. Treaty.

92. I would say at the outset that the extent 95. Nevertheless, it should be emphasised of this discretion, which the appellants that the fact that the Commission enjoys a regard as being dictated as much from the broad discretion does not, in and of itself, wording of Article 90 as from comparison imply that the action is necessarily inad- with Articles 169, 85, 86 and 93 of the missible. Treaty and from settled case-law, is not open to debate.

96. In fact, according to consistent case- law, the Commission has no discretion in 93. The question of the degree, if any, to deciding whether or not to apply Arti- which Article 90 of the Treaty is intended cle 90(3) of the Treaty, whereas it does to protect the interests of individuals is immaterial because, in any event, the breadth of the Commission's discretion 18 — See Bundesverband der Bilzanbuchhalter v Commission, has been confirmed by the Court on cited above.

97. It necessarily follows that, broad as it may be, the Commission's discretion is 101. The case-law relating to actions for subject to judicial review, albeit minimal. annulment leaves little doubt on this point. Moreover, case-law offers numerous exam- It clearly shows that actions for annulment ples illustrating this. 19 brought against the Council or the Com- mission and involving a domain in which the Court has held those institutions to enjoy a broad discretion are in no way inadmissible. Such actions may, on the other hand, have little prospect of succeed- ing on their merits. 98. It follows that the existence of a broad discretion, which nevertheless must be exercised, precludes neither the right to bring an action for annulment where a decision has been adopted, nor the right to bring an action for failure to act where no decision has been adopted. 102. The same applies to actions for failure to fulfil obligations: actions brought by the Commission concerning a field in which Community law allows the Member States a broad discretion are not inadmissible, but are unlikely to succeed on their merits.

99. Furthermore, I take the view that it would, in any event, be wrong to draw from the fact that the Commission has considerable room for manœuvre conclu- sions as to the admissibility of an action directed against a decision of the Commis- 103. That analysis, applied to actions for sion or its failure to adopt a decision. failure to act, indicates that the question whether the Commission is under an obli- gation — such an obligation being a cor- 19 — See, by way of examples of settled case-law, Case 138/79 ollary to its discretionary power — goes to Roquette Frères v Council [1980] ECR 3333 and Case the substance, rather than to the admissi- C-225/91 Matra v Commission [1993] ECR I-3203, paragraphs 23 and 25. bility of the action.

108. The appellants also complain that the Court was wrong to stress the need to protect the rights of individuals which are, 105. Thus, at paragraph 26 of its judgment in any event, protected in that they may, in in Parliament v Council, 21 which con­ proceedings before a national court, rely on cerned the common transport policy, the the fact that Article 90 of the Treaty is a Court held that 'in the present case the provision having direct effect. It must Council's observations in relation to its nevertheless be observed that the Court discretion in implementing the common did not hold that an action for failure to act transport policy are not germane to the afforded the only means of protecting the question whether the specific conditions in rights of individuals. Article 175 were complied with. They relate to the more general issue of whether the absence of a common transport policy can amount to a failure to act for the purposes of that provision, an issue which will be considered subsequently in this judgment'. Consequences

109. Having reached the conclusion (albeit only in the alternative, it must be remem­ bered) that the judgment under appeal should be set aside in that it implicitly 106. That approach finds ample support in ruled the action for failure to act admissi­ 22 legal theory. ble, it is necessary to consider the conse­ quences of that conclusion.

20 — Case 182/80 Gauff v Commission [1982| ECR 799 and Case 64/82 Tradax v Commission [1984] ECR 1359. 21 — Case 13/83 |1985] ECR 1513. 22 — See, for example. Léger, R, Commentaire article pur article des traités UE et CE, Helbing & Lichtenhahn, Dalloz, Bruylant, 2000, p. 1658; Lenz, CO., -EG-Vertrag Kom­ 110. I would observe at the outset that the mentar', Bundesanzeişcr, Helbing ßc Lichtenhahn, Ueber- reuter, 1994, p. 1154; Von der Groeben-Thiesing- dispute has reached a stage where it is Ehlcrniann, Kommentar zum EU-ZEG-Verlrag, Nomos, 5th edition, 1997, volume 4, p. 593, and le Jurtsclasseur possible to give judgment on the substan­ Europe, volume 2, fascicule 340. tive issues.

113. Furthermore, I would emphasise that, even if the case were to be referred back to the Court of First Instance, that Court would be unable, I think, to word the operative part of its judgment differently. 2. The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. Where there are several unsuccessful parties The costs which the French Republic has the Court of First Instance shall decide how been ordered to pay the costs are to be shared.

114. The French Republic, supported by the Commission and by the Kingdom of Spain, also asks the Court to set aside the

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4. The Member States and institutions which they might nevertheless have a which intervened in the proceedings shall genuine interest. bear their own costs.

119. As regards Article 87(6) of the Rules of Procedure, France observes that the Court of First Instance's finding in the present case that there was no need to give judgment concerned only some of the pleas put forward, yet it ordered it to pay all of the costs incurred by the applicant as a 6. Where a case does not proceed to result of its intervention, including those judgment, the costs shall be in the discre- attributable to pleas which the Court held tion of the Court of First instance.' to be founded or inadmissible.

'The Member States and the institutions The result of this is that the burden entailed which intervene in the proceedings shall for an unsuccessful party ordered to pay the bear their own costs. costs may increase disproportionately owing to the intervention by Member States and institutions which have no direct interest in the result of the case. Such a situation is contrary to the principle that the burden of costs should be shared fairly. The last subparagraph provides therefore The Court may order an intervener other that Member States and Community insti- than those mentioned in the preceding tutions which intervened in the proceedings subparagraph to bear his own costs.' are to bear their own costs.

125. The Council accepted that amend- ment and similar wording was subse- quently inserted into the Rules of Procedure of the Court of First Instance at Arti- cle 87(4). Since private interveners have to prove an interest in the result of the case, the rule laid down in Article 69(2) may in principle be applied to these. However, having regard to the diversity of the interests which may arise, it seems necessary to 126. In its statement of reasons for that enable the Court to make exceptions to proposal, which is a public document, the that rule where fairness so requires and to Court of Justice explained the need for the order a private intervener to bear his own amendment in the following terms: costs.' I - 5626

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127. It is clear from that passage that the 131. That would be unbalanced and unfair. provisions of Article 69(2) (or Article 87(2) in cases before the Court of First Instance) continue to apply only to private indivi- duals who intervene. 132. The risk to which an individual remains exposed, namely of incurring some additional costs as a result of the interven- tion of a Member State, is in any event limited because, by definition, an interve- 128. The position as regards public bodies, ner may only put forward arguments in Member States and institutions which support of one of the principal parties. intervene is, since the amendment, gov- erned exclusively by paragraph 4 of Arti- cle 69 (or Article 87).

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the present appeal would not alter the must be observed that, in any event, only findings of the Court of First Instance in some of the appellants' arguments will have relation to the Commission's failure to been upheld and I would therefore suggest apply the provisions of the Treaty regarding that, in both actions, the principal parties State aid. bear their own costs, as should the inter- veners, pursuant to Article 69(3) and (4) respectively of the Rules of Procedure of the Court of Justice.

136. On the other hand, for the reasons set out above, it would be appropriate for the French Republic to bear its own costs only. 138. Having said that, I would reiterate that those are proposals offered in the alternative and that the appeals should, in my view, be held inadmissible for the 137. As far as the costs of the procedure reasons set out in paragraphs 28 to 51 of before the Court of Justice are concerned, it this Opinion.

Conclusion

139. In view of the opinion I have given in chief, I propose that the Court should: