From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9235.4.1 Competition                
Date: Sun, 08 Nov 92 16:06:33 +0100
Organization: VDJ Nuernberg

ENR   : 2417
HD    : 4. Competition
TI    : Judgment of the Court of First Instance - Competition - Negative
        clearance - Act subject to review
RF    : JUS 9235.4.1
AB    : By a decision of 19 July 1989 (OJ 1989, no L 253, P. 1), the
        Commission issued a negative clearance for an agreement made
        between certain Dutch banks and notified to the Commission. We
        recall that Article 2 of Regulation No. 17 authorizes the
        Commission to issue negative clearance, at the request of
        undertakings. The Commission thus declares that in its opinion and
        in view of the elements at its disposal, there is no need to
        intervene under Articles 85 and 86 of the EEC Treaty.
        With regard to the negative clearance issued to the Dutch banks,
        the Commission had observed that the notified agreement, although
        restrictive of competition by nature, did not affect trade between
        the Member States significantly.
        This judgment of the Court of First Instance refers to an action
        lodged by the Dutch banks in question to annul the Commission
        decision of 19 July 1989 to the extent that the decision considered
        that the notified agreement would restrict competition.
        The petitioners therefore did not attack the provisions of the
        Commission decision, but only the grounds on which it was based,
        i.e. the agreement's being restrictive of competition. To justify
        their interest in suing for annulment of the Commission decision,
        the petitioners notably argued the hypothesis that a national
        court, ruling on the legality of the agreement in question in view
        of Articles 85 and 86 of the EEC Treaty, might come to a different
        conclusion from the Commission as to how it affected trade between
        Member States, but still take into account the Commission's
        evaluation of the nature of the agreement as restrictive of
        competition. Note that, unlike an exemption under Article 85 (3)
        of the EEC Treaty, negative clearance does not bind the national
        judge. On assessing the admissibility of the appeal, the Court first
        recalled the jurisprudence of the Court of Justice according to
        which annulment proceedings can only be launched against an act
        having an adverse effect, or in other words an act likely to modify
        a given situation. Here, the Court observed:
        - that whatever the grounds for an act, only the provisions can
        have a legal effect and therefore an adverse effect;
        - the considerations given by the Commission in the grounds for the
        decision under review are not subject to annulment proceedings as
        such. Those considerations can only be subject to control by a
        Community judge in so far as they constitute the necessary support
        of provisions of an act having an adverse effect.
        In this case, the Court noted that not only the act under review
        does not have an adverse effect, the disputed grounds do not
        constitute support necessary to the provisions. The Court added
        that the Commission, on observing that the notified agreement was
        not likely to affect trade between Member States, can only conclude
        that there is no reason for it to intervene however it may consider
        the object of the agreement or its effect on competition.
        In addition, the Court observed that, although it must be admitted
        that a decision to issue a negative clearance is subject to review
        on petition from a third party demonstrating legitimate interest,
        it cannot be inferred that the beneficiary of the decision has the
        same right of appeal in that a decision giving satisfaction to the
        applicant cannot modify his legal situation nor have an adverse
        effect. Finally, the Court rejected the argument advanced by the
        petitioners with regard to the possibility of a national court's
        coming to a different assessment from that of the Commission on the
        question of the effect on trade between Member States. To this
        purpose, the Court observed:
        - an economic operator must justify a real and current interest in
        the annulment of the act under review;
        - in this case, the petitioners refer only to future and uncertain
        situations to justify their interest in suing for annulment of the
        act under review.
        All of these considerations brought the Court to consider the action
        inadmissible. Judgment of the Court of First Instance of 17 September
        1992, case T-138/89 Nederlandse Bankiersvereniging et Nederlandse
        Vereniging van Banken v. Commission of the European Communities, not
        yet published.
CT    : Competition; Negative clearance
DT    : 921016