Order — ECLI:EU:T:1998:62
Date: 1998-03-23
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Intervention
Procedure: Action for annulment;Application to intervene - unfounded;Application to intervene - successful

summary of the application, that there are serious doubts as to the possibility of exempting the agreement, the latter will be deemed exempt for a period of three years during which time the undertaking in question shall, as a result, be protected from fines. 59. In any event, even if the lack of any provision in Regulation No 1017/68 for immunity from fines in the event of notification were an anomaly in comparison with the other regulations laying down detailed rules for the application of Articles 85 and 86 of the Treaty to undertakings in a given sector, or a simple omission on the part of the Community legislature, it is not for the Court of First Instance to take on the mantle of legislator. 60. It follows that the applicants did not, by notifying the TACA, attract immunity from fines in relation to the provisions of that agreement fixing inland transport rates because those provisions fall within the scope of Regulation No 1017/68, under which no immunity from fines is offered in the event of notification. 61. That conclusion is not affected by the fact that the applicants notified their agreement under Regulation No 4056/86, Article 19(4) of which does provide for immunity from fines for notified agreements. 62. The various regulations laying down detailed rules for the application of Articles 85 and 86 of the Treaty apply only to those agreements which fall within their specific scope. Given that the provisions of the TACA fixing inland transport rates fall within the scope of the regulation on inland transport, namely Regulation No 1017/68, the applicants cannot rely on the provisions of Regulation No 4056/86 on maritime transport. The fact that the TACA was notified under Regulation No 4056/86 is irrelevant. The consequences attaching to notification of an agreement flow from the regulation by which the agreement is governed, rather than the regulation under which the parties to the agreement may have mistakenly notified it. It would be quite wrong to allow parties to an agreement to cause provisions relating to immunity from fines to be applied for their benefit simply by selecting the regulation under which they notify the agreement. 63. The applicants' argument that the letter of 15 July 1994 - in which the Commission informed them that, because it concerned inland transport, their application for exemption would also be considered under Regulation No 1017/68 - had the same effect as a decision withdrawing immunity from fines is irrelevant and unfounded. Since the provisions of the TACA fixing inland transport rates fall within the scope of Regulation No 1017/68, notification of that agreement, even under Regulation No 4056/86, could not obtain for the applicants the immunity from fines afforded by Regulation No 4056/86. Clearly, the letter of 15 July 1994 could not withdraw from the applicants an immunity they did not enjoy. It should also be observed that Article 4(8) of Regulation No 4260/88 provides that, where an undertaking notifies an agreement that falls outside the scope of that regulation under Article 12 of Regulation No 4056/86, the Commission must inform the applicant that it intends to examine the application under the provisions of the applicable regulation. That provision is intended for the convenience of undertakings in that it dispenses them from making a fresh application and in that the date of the incorrect notification remains the effective date of notification. A letter such as the Commission's letter of 15 July 1994 does not, therefore, have an effect equivalent to the withdrawal of immunity. On the contrary, it gives the applicant an advantage. Furthermore, if, as the applicants maintain, the letter of 15 July 1994 had had the effect of withdrawing their immunity from fines, quod non, the present action would be inadmissible on the ground that it was brought out of time, the contested decision, dated 26 November 1996, merely confirming the decision contained in the letter of 15 July 1994. 64. The applicants' argument that because the Commission conducted the entire procedure as if they had enjoyed immunity from fines, it cannot now contend the opposite must also be rejected. 65. First, it is untrue that the Commission conducted itself as if it believed that the applicants enjoyed immunity from fines in respect of the provisions of the TACA fixing inland transport rates. Admittedly, the Commission did complete the whole of the administrative procedure to withdraw any possible immunity from fines. However, as early as 21 June 1995, when it sent its statement of objections (see points 47 and 93 thereof), the Commission stated that, in view of the unusual nature of the provisions in question and, in particular, the fact that, unlike the other regulations implementing Articles 85 and 86, Regulation No 1017/68 contained no provision for immunity from fines in respect of notified agreements, and the lack of case-law on the point, it was adopting the contested decision as a precautionary measure, in the event that the applicant should enjoy immunity. Secondly, whether or not an action is admissible is a matter of public policy. Thus, incorrect interpretation of a point of law on the Commission's part cannot imbue an act with a legal effect it does not have. 66. Lastly, there is no question in the present case of protecting legitimate expectations or of complying with the principle of estoppel. First, the Commission made no promise or declaration to the applicants that might lead them to believe that they did enjoy immunity from fines. Secondly, the applicants in no way altered their position to their own disadvantage in reliance on declarations or promises made by the Commission. 67. It follows from all the foregoing that the contested decision did not alter the legal position of the applicants. The action is therefore inadmissible. Costs 68. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Article 87(4) of those rules of procedure provides that Member States which intervene in the proceedings are to bear their own costs. As the applicants have been unsuccessful, they must be ordered to pay their own costs together with those of the Commission, in accordance with the latter's application on costs. The French Republic, as intervener, shall bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby: 1. Dismisses the action as inadmissible; 2. Orders the applicants to bear their own costs together with those of the Commission; 3. Orders the French Republic to bear its own costs. Lenaerts Azizi Jaeger Delivered in open court in Luxembourg on 28 February 2002. H. Jung M. Jaeger Registrar President 1: Language of the case: English.