Judgment — ECLI:EU:T:1997:187
Date: 1997-11-27
Language of the case: French
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Intellectual, industrial and commercial property;Dominant position
Concepts: Statement of reasons;General;Admissibility and examination of applications, forms of order sought and pleas in law;Bringing matters before the Commission;Effects of a declaration that a measure is void
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: France

Summary of the parties' arguments 66. The applicants maintain that, by adopting the contested decision, the Commissioninfringed its obligations under Article 176 of the Treaty. 67. According to them, in adopting the contested decision the Commission failed toheed the judgment in Tremblay I in that, following that judgment, the Commissiondid not undertake an inquiry, as the Court of First Instance requested it to do. Intheir view, the Court of First Instance condemned both the inadequacy of theinquiry preceding the adoption of the decision and the inadequacy of the statementof reasons on which it was based. The applicants accordingly conclude that, in order to comply with the Court of First Instance's direction to take action, even ifit was only implicit, it was for the Commission to use the means available to it toundertake investigations. 68. Secondly, the applicants criticize the Commission for adopting the contesteddecision without awaiting the judgment of the Court of Justice on the appeal inTremblay I, when the appeal proceedings and the proceedings in this case areinterdependent. 69. The Commission replies that the argument that it did not heed the judgment inTremblay I, in not undertaking the active investigations it entailed, is based on falsepremisses since the Court of First Instance annulled the part of the contesteddecision concerning the complaint of market partitioning for breach of Article 190of the Treaty, and not on the ground of an error of law. It considers that thecontested decision, which reached the same conclusion as that adopted by it on 12November 1992, but this time satisfying the reasoning requirements of Article 190of the Treaty, is unimpeachable. 70. In response to the applicants' argument that it ought to have awaited the judgmentof the Court of Justice on the appeal against Tremblay I the Commission points outthat the proceedings before the Court of Justice and the present proceedings havea distinct subject-matter, inasmuch as the appeal brought by the applicants seeksonly partial annulment of the judgment in Tremblay I, and then only in so far as itdid not annul the part of the decision rejecting allegations other than that of theexistence of an agreement. It therefore considers that it was obliged to resumeexamination of the part of the complaint relating to Article 85 of the Treatywithout awaiting the judgment of the Court of Justice. 71. The French Republic, intervening, contends that the judgment in Tremblay I hadbecome definitive in so far as it annulled the Commission's initial decision, in theabsence of any appeal against that part of the judgment, and that the Commissionwas therefore obliged, under Article 176 of the Treaty, to reply to the complainton this point. It also considers that, even if an appeal had been brought against thewhole of the judgment in Tremblay I, the Commission would have been entitled toadopt a fresh decision if it considered that it had in its possession sufficientinformation to do so, since an appeal does not have suspensory effect, except inspecific situations not relevant to the present case. Findings of the Court 72. When the Court of First Instance annuls an act of an institution, it is required,under Article 176, to take the measures necessary to comply with the Court'sjudgment. In that connection, both Community courts have held that, in order tocomply with their judgments and to implement them fully, the institution is requiredto observe not only the operative part of the judgment but also the grounds which led to the judgment and constitute its essential basis, inasmuch as they arenecessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held tobe illegal and, on the other, indicate the specific reasons which underlie the findingof illegality contained in the operative part and which the institution concernedmust take into account when replacing the annulled measure (judgments in JoinedCases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission [1988] ECR 2181,paragraph 27, and in Frederiksen v Parliament, cited above, paragraph 31). 73. In the present case, the applicants contend, first of all, that the Commissiondisregarded the judgment in Tremblay I, which, in their view, required it to conductan inquiry. However, it follows from the operative part and grounds of thatjudgment that the Court of First Instance partially annulled the earlier Commissiondecision of 12 November 1992 for breach of Article 190 of the Treaty on theground that it did not apprise the applicants of the reasons justifying rejection oftheir complaints in so far as these concerned market partitioning. That conclusiondid not therefore imply that the Court of First Instance was requesting theCommission to conduct investigations or, a fortiori, that it was giving it some kindof direction to take action in that regard, which is something which it does not havepower to do in the context of its review of legality (see paragraph 36 above). Moreover, since in this judgment (see paragraph 64 above) the Court has foundthat the Commission has now satisfied its obligation under Article 190 of the Treatyto state reasons for its decision in regard to the allegation of market partitioning,the argument that the judgment in Tremblay I has been disregarded and thatArticle 176 of the Treaty has therefore been infringed cannot avail the applicant. 74. As to the argument that the Commission ought to have waited for the Court ofJustice to give judgment on the applicants' appeal against the judgment in TremblayI before adopting the contested decision, the Court considers that argument to bewithout relevance in the present case. That appeal sought only the partial settingaside of the judgment in Tremblay I in so far as it dismissed the action broughtagainst that part of the Commission's initial decision which concerned theallegations of an infringement of Article 86 of the Treaty (see paragraph 12 aboveand the judgment of the Court of Justice in Case C-91/95 P Tremblay and Othersv Commission, cited above). This Court notes, on the other hand, that no appealhas been brought against the judgment in Tremblay I for annulling the part of theCommission decision concerning its rejection of the allegation of marketpartitioning through an alleged agreement between copyright-management societiesin breach of Article 85 of the Treaty. Since the judgment of this Court has thusbecome definitive on the latter point, it follows that the Commission did not haveto wait for the Court of Justice to give its judgment in order to adopt a freshdecision on that issue. 75. It follows that this plea must be rejected. The third plea: infringement of the Treaty and misuse of powers Arguments of the parties 76. The applicants consider that the Commission's conduct constitutes an infringementof the Treaty and a misuse of powers. In their view, by deliberately refraining,despite their requests, from investigating the case or at any rate by confining itselfto 'passive investigations, the Commission kept the alleged restrictive agreementalive and thereby pursued objectives other than those for which the powersprovided for in the Treaty were conferred on it (judgments in Joined Cases 3/64and 4/64 Chambre Syndicale de la Sidérurgie Française and Others v High Authority[1965] ECR 567, Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901 andCase C-107/90 P Hochbaum v Commission [1992] ECR I-157). In support of thatplea, the applicants refer to extracts from statements made by the President ofSACEM and GESAC at a conference on copyright held in Madrid on 16 and 17March 1992. 77. The Commission emphasizes that an allegation of misuse of powers can be takeninto consideration only if the contested decision appears, on the basis of objective,relevant and consistent factors, to have been taken with the exclusive or mainpurpose of achieving an end other than that stated or evading a procedurespecifically prescribed by the Treaty for dealing with the circumstances of the case(judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others[1994] ECR I-4863). Besides, the fact that the contested decision did not acceptthe arguments put forward by the complainants during the procedure cannot initself constitute a misuse of powers (judgment in Case C-69/89 Nakajima v Council[1991] ECR I-2069). In the present case, the Commission considers that theapplicants have provided no information to substantiate their assertion that noinvestigations or only passive investigations were carried out with the objective ofprotecting a restrictive agreement on prices for the benefit of SACEM. 78. The French Republic submits no specific observations. Findings of the Court 79. With regard first of all to the allegation that the Commission infringed the Treaty,the first paragraph of Article 19 of the Protocol on the EC Statute of the Court ofJustice, which applies to the Court of First Instance pursuant to the first paragraphof Article 46 of that Statute, and Article 44(1) of the Rules of Procedure of theCourt of First Instance provide that an application originating proceedings mustcontain a summary of the pleas in law on which it is based. That statement mustbe sufficiently clear and specific in order to enable the defendant to prepare itsdefence and the Court of First Instance to adjudicate on the action, if appropriatewithout any other information in support. The application must therefore specifythe nature of the grounds on which it is based, so that a mere abstract statementof grounds does not satisfy the requirements of the Statute or of the Rules of Procedure (judgment in Case T-102/92 Viho v Commission [1995] ECR II-17,paragraph 68). 80. In the present case, the applicants claim that the Commission has infringed theTreaty without making any specific reference to the provisions which they considerto have been infringed. In their application, they state generally that 'aninadequate statement of reasons, which can often serve to cover up a Treatyinfringement, as in this case, may stem from [...] inadequate handling of a case,and, 'akin to a breach of the Treaty, the Commission's conduct also constitutes amisuse of powers. 81. The Court considers that those allegations, as formulated by the applicants, do notenable it to determine sufficiently precisely the nature and subject-matter of thecharge made against the Commission nor, a fortiori, to identify the Treatyprovisions which the Commission is alleged to have disregarded. Furthermore, theapplicants' arguments have not enabled the Commission to submit specificobservations on an alleged infringement of the Treaty and effectively to defenditself on this issue. 82. Under those conditions, the allegation of a Treaty infringement by the Commissionmust be rejected as inadmissible. 83. As regards the allegation of a misuse of powers, the Court notes that, in supportof their allegation, the applicants cite excerpts from the report of a conference oncopyright held in Madrid on 16 and 17 March 1992 (see paragraph 55 above). Inits judgment in Tremblay I, cited above, the Court has already held that it wasunable to find in those extracts the evidence required to justify an inference thatthere was any misuse of powers (see paragraph 92 of the judgment). It follows thatthis plea must be rejected. 84. It follows from all the foregoing considerations that the action must be dismissedin its entirety. Costs 85. 86. 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'spleadings. Since the applicants have been unsuccessful and the Commission hasasked for an order of costs against them, the applicants must be ordered to pay thecosts. 87. However, the French Republic, which intervened in the proceedings, is to bear itsown costs under the first subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby: 1. Dismisses the action; 2. Orders the applicants to pay the costs of the proceedings; 3. Orders the French Republic to bear its own costs. Bellamy Kalogeropoulos Cooke Delivered in open court in Luxembourg on 27 November 1997. H. Jung A. Kalogeropoulos Registrar President 1: Language of the case: French. ECR