Judgment — ECLI:EU:T:1998:214
Date: 1998-09-16
Language of the case: English
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: Statement of reasons;General;Pleas in law;Bringing matters before the Commission
Procedure: Action for annulment - unfounded

summary decision but must give an explicitaccount of its reasoning (Joined Cases 142/84 and 156/84 BAT and Reynolds vCommission [1987] ECR 4487, paragraph 71). 91. The applicant also refers to paragraph 86 of the judgment in Automec II andmaintains that the Commission has not met any of the criteria set out in thatjudgment regarding assessment of the Community interest. 92. Finally, the applicant takes the view that it could not be regarded as having beenadequately informed of the reasons for the adoption of the decision because it hadobtained only a copy of the preliminary draft outline of the REIMS Agreementdated 4 February 1994, and not a copy of the provisional agreement signed on17 January 1995. 93. The Commission maintains that it did give sufficient reasons for its rejectiondecision, in so far as that decision states clearly that its main objection to the CEPTAgreement was that it was not based on the actual costs of the public postaloperators, and that the REIMS Agreement was intended precisely to create a linkbetween terminal dues and the domestic tariff structure. Findings of the Court 94. It has been consistently held that the statement of reasons on which an individualdecision is based must, first, be such as to enable the person concerned to ascertainthe matters justifying the measure adopted so that, if necessary, he can defend hisrights and verify whether the decision is well founded, and, secondly, enable theCommunity judicature to exercise its power of review of the legality of the decision(Tremblay and Others, cited above, paragraph 29, Case T-102/92 Viho v Commission[1995] ECR II-17, paragraphs 75 and 76, and Case T-387/94 Asia Motor France andOthers v Commission [1996] ECR II-961, paragraphs 103 and 104). 95. It also follows from the case-law that the extent of the duty to state reasonsdepends on the nature of the act in question and on the circumstances in which itwas adopted (Case 819/79 Germany v Commission [1981] ECR 21, paragraph 19). In particular, in paragraph 85 of its judgment in Automec II the Court explainedthat the obligation to provide a statement of reasons under Article 190 of theTreaty is essential for the exercise of judicial review of the way in which theCommission uses the concept of Community interest in rejecting certain complaints. 96. The Court considers that, in the present case, the Commission met its obligationto state reasons. The decision of 17 February 1995 sets out in detail the specificreasons for rejecting the complaint, referring specifically to the context of the case. Far from referring to the concept of Community interest in the abstract, thedecision clearly states in paragraph 12 that the complaint had to be rejected byreason of the fact that the draft REIMS Agreement met the Commission's mainobjection to the CEPT Agreement. 97. The argument that the Commission failed to justify its decision in regard to thethree criteria set out in paragraph 86 of the Automec II judgment must also berejected. It has been held above, during the examination of the third plea in law,that the Commission was not under an obligation to examine whether it wasappropriate to reject the complaint in question solely in the light of those criteria. The Commission cannot therefore be obliged to set out reasons for its decision ofrejection in relation to those criteria alone. 98. Furthermore, in the abovementioned judgment in BAT and Reynolds v Commission(paragraphs 23 and 24), the Court of Justice held that the administrative procedureprovides, inter alia, an opportunity for the companies concerned to bring theagreements or practices complained of into conformity with the rules laid down inthe Treaty, and that this possibility presupposes that the companies and theCommission can enter into confidential negotiations in order to determine whichalterations are necessary to satisfy the Commission's objections. The legitimateinterests of complainants are thus fully protected where they are informed of theoutcome of the negotiations in the light of which the Commission proposes to closeits file on their complaints, without their having the right as such to access to the specific documents which were the subject of those negotiations. The applicant stillhas, in any event, the opportunity to submit its observations on the draft REIMSAgreement when this is examined under Article 85(1) and (3) of the Treaty in thecontext of the abovementioned notification of that agreement. 99. Since the Commission provided proper reasons for its decision, to the effect thatthe existence of the draft REIMS Agreement accounted for the lack of anyCommunity interest in pursuing its investigation, the Court takes the view that theCommission has also adequately explained how the adoption of a prohibitiondecision would have lessened the determination of the public postal operators toparticipate together in the negotiating procedure on the draft REIMS Agreement. 100. Furthermore, paragraph 12 of the contested decision provides sufficient explanationas regards the speculative nature of the information which the Commissionpossessed regarding the draft REIMS Agreement. The extent to which theCommission could lawfully rely on that allegedly speculative information has beenconsidered in the context of the examination of the third plea in law, which hasbeen dismissed above. 101. For all of those reasons, the fifth plea in law must be dismissed. The sixth plea in law: infringement of certain general principles of law Arguments of the parties 102. In the first part of this plea, the applicant claims that the Commission infringed theprinciples of legal certainty and of the protection of legitimate expectations in thatit did not enforce the rules of competition law, although it had given reason tobelieve that it would. It points out that in Case T-83/91 Tetra Pak v Commission[1994] ECR II-755, at paragraph 29, the Commission is recorded as stating that 'nolegitimate expectation of escaping the consequences of past actions can arisemerely because of a change of conduct for the future. 103. In the second part of its plea, the applicant claims that the Commission infringedthe principle of proportionality in closing the procedure. The inadequacy of themeasures taken and the uncertain character of the REIMS Agreement were, theapplicant argues, out of proportion to the blatant infringement of competition lawconstituted by the CEPT Agreement. 104. In the third part of its plea, the applicant claims that the Commission infringed the principle of non-discrimination in that it treated the applicant's complaintdifferently from other cases raising similar issues. 105. Finally, in the fourth part of its plea, the applicant takes the view that theCommission infringed the principle of sound administration by forcing it repeatedlyto take the appropriate legal measures to compel it to act. 106. The Commission confines its response to pointing out that, according to thejudgment in Tremblay and Others, cited above, a complainant has no right to obtaina decision establishing the existence of an infringement and cannot therefore haveany legitimate expectation that it will obtain such a decision. The Commission alsodenies that it failed to respect the general principles invoked by the applicant. Findings of the Court 107. With regard to the first part of this plea in law, the Commission cannot be treatedas having infringed the principles of legal certainty or of the protection oflegitimate expectations since a complainant, as is clear from the case-law cited bythe Commission, cannot be regarded as having a right to obtain from theCommission a decision finding against a practice complained of. It also followsfrom the Court's examination of the third plea that, in adopting the decision of17 February 1995, the Commission lawfully relied on the concept of Communityinterest for the purpose of rejecting the complaint, without wrongfully exercisingits margin of discretion. 108. The criticism made in the second part of the plea refers, in fact, to the question ofthe extent to which the Commission was entitled to rely on the existence of thedraft REIMS Agreement in order to reject the applicant's complaint. Thatcriticism must, therefore, be rejected on the same grounds as those set out abovein the assessment of the third part of the third plea in law. 109. So far as the third part of the present plea is concerned, the applicant has notestablished that, in a situation identical to that of the present case, the Commissionwould, in contrast to its position in this case, have taken a decision against theundertakings in question. The applicant has therefore failed to establish thealleged infringement of the principle of non-discrimination. 110. Finally, it follows from the foregoing and from the fact that the Commissionlawfully relied on the lack of any Community interest that the Commission did notinfringe the principle of sound administration. 111. For all of those reasons, the sixth plea in law must be dismissed. The request for production of documents 112. In its observations on the statements in intervention, the applicant called on theCourt to order that the draft REIMS Agreement be produced. 113. As one of the measures of procedural organisation, the Court requested thatdocument to be produced. That request was complied with. Costs 114. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'ssubmissions. Since the applicant has been unsuccessful in its submissions and theCommission and the intervening party La Poste have asked that costs be awardedagainst the applicant, the applicant must be ordered to pay those costs. The PostOffice, which did not make any application for costs, shall bear its own costs. 115. The United Kingdom shall bear its own costs, in accordance with the firstsubparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition) hereby: 1. Dismisses the action for annulment as unfounded; 2. Orders the applicant to bear its own costs, as well as those of theCommission and La Poste; 3. Orders the United Kingdom of Great Britain and Northern Ireland and thePost Office to bear their own costs. Vesterdorf Briët Lindh Potocki Cooke Delivered in open court in Luxembourg on 16 September 1998. H. Jung B. Vesterdorf Registrar President 1: Language of the case: English. ECR