Opinion of the Advocate General — ECLI:EU:C:1999:370
Date: 1999-07-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Competition;Agreements, decisions and concerted practices;Plants and flowers
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands

summary form. In my opinion, however, there is no reason why the Commission should not state the reasons for its own act by merely assuming the content of another act adopted in the course of the same procedure, especially if this is preparatory. 35. In the light of these considerations, I find that this first ground of appeal against the judgment of the Court of First Instance is unfounded. The second, third, fourth and fifth grounds of appeal: discriminatory treatment of external suppliers of the cooperative. 36. In the second, third, fourth and fifth grounds of appeal the VGB complains essentially that the Court of First Instance committed a manifest error ofassessment of the facts in holding that there was discrimination in treatment to the detriment of non-members of the cooperatives intending to sell their products within the VBA premises. Such discrimination, associated by the Court with the difference 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. On the one hand, there are the direct suppliers of undertakings located within the cooperative premises and, on the other, suppliers with which 'trade agreements' are concluded. The Court of First Instance erred in finding that the VBA had not demonstrated that the contractual relations with outside undertakings differed in content and therefore undertakings renting structures from the VBA received privileged treatment. On the contrary, in the proceedings at first instance the VBA had supplied model 'trade agreements' showing that the undertakings concluding such agreements were required to rent the premises from the VBA - and therefore to pay rent to the cooperative - and were also required to supply the VBA with a particular type of product. The appellant argues that, starting from this mistaken finding of fact, the Court of First Instance infringed the provisions on competition, in particular Article 85(1) of the Treaty, in that it had considered the agreements entered into by the VBA to be prohibited agreements. The Court of First Instance, it was claimed, had also infringed the principle of non-discrimination in that it had applied the criterion of equality of treatment to agreements with different contents, whereas that principle requires that different treatment must not be accorded to the same services. Lastly, the appealed judgment is, it is claimed, vitiated by an error of law, in that the Court of First Instance, in finding that the Commission had misassessed the facts, referred to paragraphs 192 and 193 of the judgment delivered on the same day in Joined Cases T-70/92 and T-71/92, in which the Court of First Instance found an error not in the assessment of the facts but in the statement of reasons. In arguing that there has been discrimination, the defendants essentially made two observations. First, in this case the discrimination is not between two categories of agreement, as stated by the VBA, but between different categories of undertaking. In other words, the VBA regulations, it was argued, penalised those undertakings which provide direct and unregulated supply to that cooperative, by charging them a fee of 10% of the total proceeds from the sale of the products; this fee was far higher than the amount charged to suppliers that had leased trading room on the VBA premises and which had entered into specific supply agreements with the VBA. This difference of treatment amounts to a restriction on access to the Netherlands flower market for those undertakings intending to distribute products other than those sold on the VBA premises, in particular products originating outside the Netherlands. Secondly, the defendants pointed out that the Court of First Instance had taken into consideration all the characteristics of the two types of agreement, and therefore they had been assumed as facts in the judgment and could not be examined at appeal, where the Court of Justice can rule only as to errors in the interpretation and application of provisions of law. 37. In my view, the grounds of appeal against the Court of First Instance's ruling as to the substance of action at first instance are based on a single criticism, relating to the alleged error in the Court of First Instance's assessment of discrimination between the various suppliers not belonging to the VBA. On the basis that that was wrong in law, the VBA argues that there has been an infringement of Article 85(1) of the Treaty, breach and misapplication of the general principle of non-discrimination and, lastly, an infringement of Article 190 of the EC Treaty. 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 positions of the outside suppliers, states that there were no similarities between the positions of the different undertakings vis-à-vis the cooperative, concluding, in the light of the facts obtained, that the difference in the rates applied to those undertakings was unjustified and therefore discriminatory. The discrimination lay in the difference between the fee paid by the suppliers delivering their products directly within the VBA premises (a fee that, according to the defendants, amounted to about 10% of the gross price of the products) and the fee of about 3% of the price of products charged to the suppliers entering into the abovementioned 'trade agreements'. The Court of First Instance pointed out in this respect that the Commission, in its 1992 letter, while expressly stating that 'having made a comparison of the financial charges levied by the VBA on traders that were parties to the trade agreements and those not having entered into such agreements', arrived at the conclusion that 'the former are privileged'. It goes on to say that the holders of trade agreements entered into 'obligations vis-à-vis the VBA justifying the difference between the 3% system and the rate of the user fee'. Based on this premiss, the Court of First Instance states that the contested decision was 'vitiated by an error of fact or assessment in so far as it stated that the difference of rate between the user fee and the 3% fee applicable to the trade agreements was justified by the existence of such obligations' (paragraphs 116 to 119). The criticism, therefore, was not of the legal assessment of the agreement in question, and therefore the applicability of Article 85(1)(d) to the case in question, but essentially of the review conducted by the Court of First Instance as to whether, based on the facts emerging from the contested decision, the services offered by the different undertakings could be deemed to be equivalent. Such an assessment pertains to the finding of facts at first instance, and it may not, therefore, be re-examined in an appeal. The VBA also seems to allege a manipulation of the evidence by the Court of First Instance in stating that the agreement forms produced in the first instance proceedings show that the undertakings entering into such agreements were required to accept a set of constraints which in fact justified the different rate of fees in question. Nevertheless, it appears from the grounds for the judgment that the Court of First Instance had not omitted to take those items into account - in paragraph 116, the Court of First Instance expressly refers to the rental paid by the suppliers entering into trade agreements - and based its decisionon the VBA's discriminatory treatment of suppliers on a general, structured review of the relations existing between the different outside undertakings and the cooperative making the appeal. Also unfounded is the VBA's criticism of the Court of First Instance's alleged error in law in expressly referring - in order to demonstrate the existence of an error in the Commission's assessment - to what the Court of First Instance had stated in 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 paragraphs 192 and 193, the Court of First Instance conducted a joint review of the error in law and the inadequate statement of reasons, both of which were claimed by Florimex in contesting the decision of the Commission of 2 July 1992. 38. In the light of all the foregoing, I consider that the four grounds of appeal put forward by the VBA should be dismissed. The cross-appeal 39. The defendants have brought a cross-appeal against that part of the Court of First Instance's judgment in which it dismisses their application for annulment of the Commission's decision on the assessment of the legality of the 'Cultra agreements'. 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 Commission'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. The Court of First Instance, it was claimed, did not take into account the fact that not only small retailers but large undertakings conducted transactions in the commercial centre, and that dealing in export products also took place there. In my view, these criticisms concern the findings and not the assessment of facts, since the arguments put forward by the defendants go to the effects on the market of transactions conducted within the Cultra centre and to the purely financial relations between those transactions and those generally conducted on the cooperative premises. I therefore consider that this cross-appeal should be dismissed, because it is based on grounds that cannot be put forward in an appeal. Costs 40. Under Article 69(2) of the Rules of Procedure applicable to appeal proceedings under Article 118, the unsuccessful party is to be ordered to pay thecosts if they have been applied for. In the present case, there being a specific application for costs from the defendants, I propose that the Court order the appellant to pay those undertakings' legal costs, except for the costs incurred in submitting the cross-appeal. I also propose that the Commission bear its own costs, pursuant to Article 69(4) of the Rules of Procedure. Conclusion 41. In the light of these considerations, I propose that the Court of Justice: (1) dismiss the appeal; (2) dismiss the cross-appeal by Vereniging van Groothandelaren in Bloemkwekerijprodukten, 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. 1: Original language: Italian. 2: - ECR II-759. 3: - OJ, English Special Edition 1959-1962, p. 87. 4: - OJ, English Special Edition 1959-1962, p. 129. 5: - Paragraphs 1 to 4 of the judgment. 6: - Paragraphs 5 to 10 of the judgment. 7: - Paragraphs 11 to 14 of the judgment. 8: - OJ 1988 L 262, p. 27. 9: - Paragraphs 15 to 20 of the judgment. 10: - Paragraphs 21 to 39 of the judgment. 11: - OJ, English Special Edition 1963-1964, p. 47. 12: - Paragraphs 40 to 44 of the judgment. 13: - It is known that, in the judgment of 10 July 1990, Case T-64/89 Automec v Commission [1990] ECR II-367, the Court of First Instance outlined three phases of the administrative procedure for examining complaints of infringements of the rules of competition. The procedure opens with the submission of a complaint, governed by Article 3(2) of Regulation No 17, and ends with a decision to close the file. All the Commission acts preceding the final decision are to be regarded as preparatory and therefore cannot be challenged before the legal authority. Thus, if the Community Court rules on a communication under Article 6 of Regulation No 99/63, it would in fact rule 'on questions on which the Commission has not yet had the opportunity to rule'. In reaching this decision the Court based itself on the Court of Justice's judgment of 11 November 1981 in Case 60/81 IBM v Commission [1981] ECR 2639, that declared as inadmissible an action against a communication of an appeal against a communication of claims regarding the finding that the measure is preparatory compared with the final decision. The Court states that 'if that is true of the statement of objections, the legal importance of which is greater than that of the 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 Automec I judgment was followed by a series of judgments on the inadmissibility of actions for annulment in respect of communications under Article 6 of Regulation No 99/63 or other acts preceding the final decision on a complaint. 14: - Judgment of 16 June 1994 in Case C-39/93 P SFEI v Commission [1994] ECR I-2681, in particular paragraphs 27 to 30. 15: - 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 action for infringement of the EC Treaty, within the meaning of Article 175 of the EC Treaty (now Article 232 EC) in the event that the Commission, having sent a communication under Article 6 and having received observations, fails to initiate a procedure or take a final decision within a reasonable period. The Court thus provided a response to a question that had remained unsettled in the judgment of 18 October 1979 in Case 125/78 GEMA v Commission [1979] ECR 3173, in particular paragraphs 17 and 18, in which it had stated that communication under Article 6 'implies the discontinuance of the procedure' and therefore ends a state of inertia that can be challenged by an action under Article 175 of the EC Treaty. In the Guérin case, the 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 whether there had been a wrongful omission by the Commission. 16: - On this subject, see the GEMA judgment cited, paragraphs 17 and 18. Further, on the possibility of reopening an administrative procedure if new facts have arisen that may affect the Commission's position on the existence of an infringement complained of and that may entail the revocation or modification of a Commission decision, pursuant to Article 8(3) of Regulation No 17, see the Court of First Instance judgments of 28 October 1993 in Case T-83/92 Zunis Holding and Others v Commission [1993] ECR II-1169 and 8 June 1995 in Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, upheld by the judgment of the Court of 1 October 1998 in Case C-279/95 P Langnese-Iglo v Commission [1998] ECR I-5609. 17: - Judgment of 4 March 1999 in Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, in particular paragraphs 55-58.