Opinion of the Advocate General — ECLI:EU:C:2004:646
Date: 2004-10-21
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - inadmissible;Appeal - successful
Origin: Austria

Summary 99. It is clear from the foregoing discussion as a whole that the judgment under appeal is vitiated by errors of law. The errors relating to the admissibility of the action at first instance quite easily permit a substitution of grounds, so that the finding of the Court of First Instance concerning the admissibility of the action appears well-founded in law. However, the same does not apply to the errors relating to the examination of the substance of the case. These cannot be rectified and therefore provide justification for allowing the appeal. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court of Justice is to quash the decision of the Court of First Instance. It may itself then give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment. 100. As the Court of First Instance did not assess to what extent the Commission took into consideration all the aspects of the case or ascertain whether the decision in question included an adequate statement of reasons, in view of the conditions in which it was adopted, the state of the proceedings does not permit final judgment. Consequently the case must be referred back to the Court of First Instance and the costs must be reserved. VII – Conclusion 101. In the light of the foregoing observations, I propose that the Court rule as follows: (1) The judgment of the Court of First Instance of 30 January 2002 in Case T‑54/99 max.mobil v Commission is quashed. (2) The case is referred back to the Court of First Instance. (3) The costs are reserved. 1 – Original language: Portuguese. 2 – Case 26/76 Metro v Commission [1977] ECR 1875. 3 – Case 169/84 Cofaz and Others v Commission [1986] ECR 391. 4 – Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375. See also, more recently, Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [2003] ECR I-9889. 5 – Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947. 6 – Paragraph 25 of the judgment. 7 – Case T-54/99 max.mobil v Commission [2002] ECR II-313. However, it must be observed that the Court of First Instance partly went back on this decision in the recent judgment in Case T-52/00 Coe Clerici Logistics v Commission [ECR] 2003 II-2123. 8 – OJ 2000 C 364, p. 1. 9 – OJ, English Special Edition 1959-62, p. 87. 10 – Case C-73/97 P [1999] ECR I-185. See also, to the same effect, the judgment of 23 March 2004 in Case C-234/02 P Médiateur Européen v Lamberts, not yet published in the ECR. 11 – Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 171. 12 – See, to the contrary, Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13. 13 – Case C-23/00 P [2002] ECR I-1873. 14 – Joined Cases C-302/99 P and C-308/99 P [2001] ECR I-5603. 15 – See, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraphs 34 and 59. 16 – See, to that effect, Commission and France v TF1, cited above in footnote 14, paragraph 27. 17 – See paragraph 16 of this Opinion. 18 – See, in particular, Bundesverband der Bilanzbuchhalter v Commission, cited above in footnote 5, paragraph 22. 19 – Case T-17/96 TF1 v Commission [1999] ECR II-1757, paragraph 50. 20 – See, to that effect, the Opinion of Advocate General La Pergola in Bundesverband der Bilanzbuchhalter v Commission, cited above in footnote 5, paragraph 21. 21 – Joined Cases C-48/90 and C-66/90 [1992] ECR I-565. 22 – .Netherlands and Others v Commission, cited above in footnote 21, paragraph 29. 23 – Case C-301/87 France v Commission [1990] ECR I-307, paragraph 23. 24 – See C.W.A. Timmermans, ‘Judicial Protection against Member States: Articles 169 and 177 Revisited’, Institutional Dynamics of European Integration. Essays in Honour of Henry G. Schermers, vol. II, Nijhoff, Dordrecht, 1994, p. 391. 25 – Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 44. 26 – .Commission v Germany, cited above in footnote 25, paragraph 45. In his Opinion in Case C-198/97 Commission v Germany [1999] ECR I-3257, Advocate General Jacobs rightly contrasts the limits to the Commission’s action under Article 226 EC with decisions taken to enforce the rules of competition (paragraph 11). 27 – Case 7/71 Commission v France [1971] ECR 1003, paragraphs 49 and 50. See, in general, D.C. Gray, Judicial Remedies in International Law, Clarendon Press, Oxford, 1987, particularly p. 120 et seq. 28 – .Bundesverband der Bilanzbuchhalter v Commission, cited above in footnote 5, paragraph 19. See the early judgment in Case 48/65 Lütticke v Commission [1966] ECR 19. However, it does not follow that individuals have no legal protection at all. Article 234 EC offers another channel for obtaining a finding by the Court that States are in breach of their Community obligations (Case 26/62 Van Gend en Loos [1963] ECR 1, pp. 24 and 25). 29 – See the Opinion of Advocate General Gand in the case of Lütticke v Commission, cited above in footnote 28, p. 33. 30 – Joined Cases 314/81 to 316/81 and 83/82 Waterkeyn and Others [1982] ECR 4337, paragraph 15. 31 – See, to that effect, the order in Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 42. 32 – Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 21. Compare with footnote 26 above. 33 – See France v Commission, cited above in footnote 32, paragraph 21. 34 – See the judgment cited in footnote 21, paragraph 28. The Court recognised for the first time the compelling legal force of decisions adopted by the Commission under Article 86(3) EC in its judgment in Case 226/87 Commission v Greece [1988] ECR 3611, paragraphs 11 and 12. 35 – As the Court points out, Article 86(3) EC is concerned with ‘measures adopted by the Member States in relation to undertakings with which they have specific links referred to in the provisions of that article. It is only with regard to such measures that Article [86 EC] imposes on the Commission a duty of supervision which may, where necessary, be exercised through the adoption of directives and decisions addressed to the Member States’ (France v Commission, cited above in footnote 32, paragraph 24). 36 – The wording of that provision should be noted: ‘If the Commission considers that a State has failed to fulfil an obligation under this Treaty, it shall record this failure in a reasoned decision after giving the State concerned the opportunity to submit its comments. It shall set the State a time-limit for the fulfilment of its obligation’, adding that, if the State does not fulfil its obligation within the time limit set by the Commission, or if it brings an action which is dismissed, the Commission may, with the assent of the Council, suspend the payment of any sums due to the State or authorise the other Member States to take measures by way of derogation. See also the judgment in Case 20/59 Italy v High Authority [1960] ECR 325, in which the Court described Article 88 as the ‘ultima ratio enabling the Community interests enshrined in the Treaty to prevail over the inertia and resistance of Member States; it is a procedure far exceeding the rules heretofore recognised in classical international law to ensure that obligations of States are fulfilled’ (p. 339). 37 – Joined Cases 7/54 and 9/54 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority [1954-1956] ECR 175. 38 – In relation to an action for failure to fulfil Treaty obligations, see Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraph 11; in relation to the power on the basis of Article 86(3) EC, see Case T-32/93 Ladbroke Racing v Commission [1994] ECR II-1015, paragraph 38. 39 – In my view, this is the effect of the Court’s finding in the Bundesverband der Bilanzbuchhalter v Commission judgment, cited above in footnote 5, that ‘an individual may not, by means of an action against the Commission's refusal to take a decision against a Member State under Article 90(1) and (3), indirectly compel that Member State to adopt legislation of general application’ (paragraph 28). It may be presumed that, in this area, supervision of the State as a protagonist in the economy does not meet the same criteria as the scrutiny of its acts as legislature. 40 – On the general principle of legal protection, see the judgment in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 19. See also the Opinion of Advocate General Van Gerven in Case C-70/88 Parliament v Council [1990] ECR I-2041, paragraph 6. 41 – It should be noted that this regulation was replaced on 1 May 2004 by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). The right to lodge a complaint, provided for in Article 3 of Regulation No 17, has been retained in the same terms in Article 7 of the new regulation. 42 – Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (OJ 1998 L 354, p. 18). 43 – Case C-282/95 P [1997] ECR I-1503, paragraph 36. 44 – See, by analogy to the field of State aid, the judgment in Case T-188/95 Waterleiding Maatschappij v Commission [1998] ECR II-3713, paragraphs 143 to 145. 45 – Case C-367/95 P [1998] ECR I-1719, paragraphs 44 and 45. 46 – Article 25 of Regulation (EC) No 659/1999, OJ 1999 L 83, p. 1. 47 – See, most recently, the judgment of 13 July 2004 in Case C-27/04 Commission v Council, not yet published in the ECR, paragraph 44. For a different wording, see Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9. 48 – Case T-3/93 Air France v Commission [1994] ECR II-121, paragraphs 43 to 54. 49 – In relation to undertakings which are beneficiaries of a State measure which is the subject of a Commission decision under Article 86(3) EC, see the judgment in the case of Netherlands and Others v Commission, cited above in footnote 21, and Case T-266/97 Vlaamse Televisie Maatschappij v Commission [1999] ECR II-2329. 50 – It should be observed that, where there is no capacity to bring an action before the Community courts, effective protection of the interests in question is not lost. The individuals concerned always have a remedy before the national courts for asserting their rights arising from the competition rules applying to undertakings, whether public or private. This is the result, on the one hand, of the direct effect of Articles 81 EC, 82 EC and 86(2) EC and, on the other, of the obligation of the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection (Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 41). 51 – Case 25/62 Plaumann v Commission [1963] ECR 95, p. 107. 52 – The case-law on this point is plentiful. See, in particular, Metro v Commission, cited above in footnote 2, Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, Case 264/82 Timex v Council and Commission [1985] ECR 849, and Cofaz and Others v Commission, cited above in footnote 3. 53 – Case 191/82 Fediol v Commission [1983] ECR 2913, paragraph 25. 54 – See, for example, Metro v Commission, cited above in footnote 2, paragraph 13, and Fediol v Commission, cited above in footnote 53, paragraph 27. 55 – See, for example, Cofaz and Others v Commission, cited above in footnote 3, paragraph 25, and Piraiki-Patraiki and Others v Commission, cited above in footnote 52, paragraph 28. 56 – .Metro v Commission, cited above in footnote 2, paragraph 13. 57 – As the Court of First Instance observed in Ladbroke Racing v Commission, cited above in footnote 38, paragraph 43. 58 – See paragraph 80 of the present Opinion. 59 – See, to that effect, the Opinion of Advocate General Slynn in Case 246/81 Lord Bethell v Commission [1982] ECR 2277, where the Advocate General observes: ‘Even if … the Commission is under a specific duty to investigate each case reported to it where a suspected infringement is alleged (and perhaps (sed quaere) to give reasons for not doing so) it does not seem to me that this is a duty owed to the person bringing the matter to the Commission’s attention and enforceable at his initiative’ (p. 2296). 60 – See, by analogy, the judgment in Commission v Sytraval and Brink’s France, cited above in footnote 45, paragraphs 45 and 62. 61 – See, to that effect, the Opinion of Advocate General Jacobs in Case C-263/02 P Commission v Jégo–Quéré, not yet published in the ECR, paragraph 45. 62 – On this point, see the judgment in Coe Clerici Logistics v Commission, cited above in footnote 7, where the decision was based essentially on the case-law of the Court of Justice. 63 – Cited above in footnote 19. 64 – .TF1 v Commission, paragraph 52. 65 – Paragraph 25 of the judgment. 66 – .Bundesverband der Bilanzbuchhalter v Commission, cited above in footnote 5, paragraph 23. The Court refers to the judgment in Netherlands and Others v Commission, cited above in footnote 21. 67 – This is clear from the judgment in Joined Cases 10/68 and 18/68 Eridania and Others v Commission [1969] ECR 459, paragraph 7. In a context similar to the present case, it was repeated in the Coe Clerici Logistics v Commission judgment, cited above in footnote 7, paragraph 90. 68 – .Eridania and Others v Commission, cited above in footnote 67, paragraph 7. 69 – See, for example, the judgment in Case C-358/89 Extramet Industries v Council [1991] ECR I-2501, paragraph 17, and, to the same effect, Case T-435/93 ASPEC and Others v Commission [1995] ECR II-1281, paragraphs 64 to 70. 70 – See paragraph 71 of the Opinion in the case of Commission and France v TF1, cited above in footnote 14 . 71 – Cited above in footnote 50, paragraph 44. 72 – This wording follows clearly from the judgment in Case C-321/95 P Greenpeace Council and Others v Commission [1998] ECR I-1651, paragraph 28, where the Court of Justice summarises its settled case-law. See, in general, P. Cassia, L’accès des personnes physiques ou morales au juge de la légalité des actes communautaires, Dalloz, Paris, 2002, in particular p. 567 ff. 73 – Paragraph 70 of the judgment under appeal. 74 – See, in this respect, the judgment in Timex v Council and Commission, cited above in footnote 52, paragraphs 13 to 16, where the Court based the applicant’s individual interest on the fact that the anti-dumping regulation took account of its observations and the situation arising for it from the dumping found to have taken place. See also the judgment in Case T-266/94 Skibsvaerftsforeningen and Others v Commission [1996] ECR II-1399, paragraphs 46 to 48, where the Court of First Instance found that the action was admissible on the ground, first, that the applicants were in direct competition with the undertaking benefiting from the aid referred to in the contested decision and, second, that, in the administrative procedure, the Commission relied on comparisons between the applicants’ installations and those of the said undertaking. 75 – See paragraph 35 of this Opinion. 76 – Paragraph 58 of the judgment under appeal. 77 – Paragraph 59 of the judgment under appeal. 78 – This has been repeatedly decided by the Court since the judgment in Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 347. 79 – See, for example, Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34. In connection with Article 86 EC, see Case T-106/95 FFSA and Others v Commission [1997] ECR II-229, paragraph 100. 80 – For a recent example, see Joined Cases C-328/99 and C-399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I-4035, paragraph 39. 81 – For the treatment of complaints in the context of competition law, see inter alia Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 18, and Case T‑24/90 Automec v Commission [1992] ECR II-2223, paragraphs 73 to 77. 82 – See D. Ritleng, ‘Le juge communautaire de la légalité et le pouvoir discretionnaire des institutions communautaires’, Actualité juridique. Droit administratif, 1999, p. 645. 83 – Case C-269/90 [1991] ECR I-5469. 84 – Paragraph 14 of the judgment in Technische Universität München, cited above in footnote 83. 85 – The explanatory notes provided by the Presidency of the Convention which drafted the Charter refer to this judgment. It should be observed that the draft text laying down a Constitution for Europe states that ‘the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared at the instigation of the Praesidium’. Therefore it is now legitimate to assess the meaning of this article in the light of the case-law of the Court of Justice. 86 – See, for example, Schlüsselverlag J.S. Moser and Others v Commission, cited above in footnote 4, paragraph 29, and Commission v Sytraval and Brink’s France, cited above in footnote 45, paragraphs 62 to 64. 87 – Paragraph 58 of the judgment under appeal. 88 – Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 38. 89 – .Commission v Sytraval and Brink’s France, cited above in footnote 45, paragraph 72. 90 – See, in particular, the order of 11 November 2003 in Case C-488/01 P Martinez v Parliament, not yet published in the ECR, paragraph 53. 91 – In this connection it should be noted that, in the recent judgment in Case C-462/99 Connect Austria [2003] ECR I-5197, concerning the Austrian GSM market, the Court stated that the existence of discrimination in relation to fees imposed on operators is assessed in terms of economic equivalence of their positions in the market concerned (paragraph 116). 92 – See, in particular, the judgment of 22 June 2004 in Case C-42/01 Portugal v Commission, not yet published in the ECR, paragraph 66. 93 – See, to that effect, Case 1252/79 Lucchini v Commission [1980] ECR 3753, paragraph 14. 94 – See, to that effect, the Opinion of Advocate General Roemer in Case 24/62 Germany v Commission [1963] ECR 63, at p. 73, in which he observed: ‘I would like to reject the proposition that the statement of reasons for the decision can be proportionate to the other opportunities to obtain information available to the parties to whom the decision is addressed, because we know from other actions that it is a matter of controversy as to who, in cases similar to the present one, apart from the persons mentioned in the decision, is affected by it and has a right to make an application. Moreover, and I believe the applicant to be right on this point, one must not forget the useful function which the obligation to state reasons performs for the purposes of a logical strengthening of the protection afforded by the law, in so far as it forces the Executives, when they formulate the statement of reasons for a decision, to give careful consideration to the conditions giving rise to the decision’. 95 – See, to that effect, Case 294/81 Control Data v Commission [1983] ECR 911, paragraph 15. 96 – See, to that effect, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 38. 97 – See, to that effect, Case C-358/90 Compagnia italiana alcool v Commission [1992] I-2457, paragraphs 42 and 43, and also Technische Universität München, cited above in footnote 83, paragraph 27. 98 – Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Commission v Sytraval and Brink’s France, cited above in footnote 45, paragraph 63, and Joined Cases T-371/94 and T-394/94 British Airways and Others and British Midland Airways v Commission [1998] ECR II-2405, paragraph 64.