61992TO0029(01)_EN
Parties
Grounds
Operative part
Parties
In Case T-29/92,
Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid, having its registered office in Amersfoort, Netherlands,
Amsterdamse Aannemers Vereniging, having its registered office in Amsterdam, Netherlands,
Algemene Aannemersvereniging voor Waterbouwkundige Werken, having its registered office in Utrecht, Netherlands,
Aannemersvereniging van Boorondernemers en Buizenleggers, having its registered office in Soest, Netherlands,
Aannemersvereniging Velsen, Beverwijk en Omstreken, having its registered office in Velsen, Netherlands,
Aannemers Vereniging Haarlem-Bollenstreek, having its registered office in Heemstede, Netherlands,
Aannemersvereniging Veluwe en Zuidelijke IJsselmeerpolders, having its registered office in Apeldoorn, Netherlands,
Combinatie van Aannemers in het Noorden, having its registered office in Leeuwarden, Netherlands,
Vereniging Centrale Prijsregeling Kabelwerken, having its registered office in Leeuwarden, Netherlands,
Delftse Aannemers Vereniging, having its registered office in Rotterdam, Netherlands,
Economisch Nationaal Verbond van Aannemers van Sloopwerken, having its registered office in Utrecht, Netherlands,
Aannemersvereniging "Gouda en Omstreken", having its registered office in Rotterdam, Netherlands,
Gelderse Aannemers Vereniging inzake Aanbestedingen, having its registered office in Arnhem, Netherlands,
Gooise Aannemers Vereniging, having its registered office in Huizen, Netherlands,
' s-Gravenhaagse Aannemers Vereniging, having its registered office in The Hague, Netherlands,
Leidse Aannemersvereniging, having its registered office in Leiden, Netherlands,
Vereniging Markeer Aannemers Combinatie, having its registered office in Tilburg, Netherlands,
Nederlandse Aannemers- en Patroonsbond voor de Bouwbedrijven, having its registered office in Dordrecht, Netherlands,
Noordhollandse Aannemers Vereniging voor Waterbouwkundige Werken, having its registered office in Amsterdam, Netherlands,
Oostnederlandse-Vereniging-Aanbestedings-Regeling, having its registered office in Delden, Netherlands,
Provinciale Vereniging van Bouwbedrijven in Groningen en Drenthe, having its registered office in Groningen, Netherlands,
Rotterdamse Aannemersvereniging, having its registered office in Rotterdam, Netherlands,
Aannemersvereniging "de Rijnstreek", having its registered office in Rotterdam, Netherlands,
Stichting Aanbestedingsregeling van de Samenwerkende Bouwbedrijven in Friesland, having its registered office in Leeuwarden, Netherlands,
Samenwerkende Prijsregelend Vereniging Nijmegen en Omstreken, having its registered office in Nijmegen, Netherlands,
Samenwerkende Patroons Verenigingen in de Boouwbedrijven Noor-Holland-Noord, having its registered office in Alkmaar, Netherlands,
Utrechtse Aannemers Vereniging, having its registered office in Utrecht, Netherlands,
Vereniging Wegenbouw Aannemers Combinatie Nederland, having its registered office in Zeist, Netherlands, and
Zuid Nederlandse Aannemers Vereniging, having its registered office in Heeze, Netherlands,
represented by L.H. van Lennep, of the Hague Bar, and E.H. Pijnacker Hordijk, of the Amsterdam Bar, with an address for service in Luxembourg at the Chambers of L. Frieden, 6 Avenue Guillaume,
applicants,
v
Commission of the European Communities, represented by B.J. Drijber, of the Legal Service, acting as Agent, assisted by P. Glazener of the Rotterdam Bar, with an address for service in Luxembourg at the office of Roberto Hayder, also of its Legal Service, Wagner Centre, Kirchberg,
defendants,
APPLICATION for suspension of operation of Commission Decision 92/204/EEC of 5 February 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.572 and 32.571 ° Building and construction industry in the Netherlands) (OJ 1992 L 92, p. 1),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Grounds
The facts
1 By an application lodged at the Registry of the Court of First Instance on 13 April 1992, the Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and 28 other associations (hereinafter "the SPO and others") brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that the decision purportedly taken by the Commission on 5 February 1992 pursuant to a proceeding under Article 85 of the EEC Treaty (IV/31.572 and 32.571 ° Building and construction industry in the Netherlands is non-existent or void.
2 Article 1 of that decision states that the statutes of the SPO, of 10 December 1963, as subsequently amended, the Uniforme Prijsregelende Reglementen (hereinafter "the UPR rules") adopted on 9 October 1986, the previous rules and regulations similar to the UPR rules and superseded by them, and the Erecode voor ondernemers in het Bouwbedrijf (hereinafter "the Code of Honour"), except for Article 10 thereof, constitute infringements of Article 85(1) of the EEC Treaty.
3 Article 2 of the decision refuses to grant an exemption under Article 85(3) of the EEC Treaty for the UPR rules adopted on 9 October 1986 and the Code of Honour.
4 Article 3(1) and (2) of the decision require the SPO and its member organizations to bring to an end immediately the infringements found and to inform the undertakings concerned in writing of the contents of the contested decision and of the fact that the infringements have been brought to an end, stipulating the ensuing practical consequences, such as the freedom of each of those undertakings to withdraw at any time from the said rules and regulations. The SPO and its member organizations are, moreover, required to communicate to the Commission, within two months of notification of the decision, the information transmitted to the undertakings in accordance with Article 3(2).
5 Article 4 of the decision imposes fines on the 28 associations concerned, amounting to ECU 22 498 000 in total. Article 5 provides that the fines imposed by Article 4 are payable within three months of the notification of the contested decision.
6 By a separate document lodged at the Registry of the Court of First Instance the same day, the applicants also applied for interim measures, pursuant to Articles 185 and 186 of the EEC Treaty and Article 105(2) of the Rules of Procedure of the Court of First Instance. They requested that operation of the whole contested decision be suspended, or, failing that, that suspension be granted of the operation of Article 1(1) and (2), and Articles 2, 3 and 5. They requested further that the operation of Article 3(3) and 5 be suspended, without waiting for the Commission' s observations, pending a decision on the interim proceedings.
7 The Commission was given until 27 April 1992 to submit its written observations on the application for interim measures. At the Commission' s request, that time-limit was extended until 15 May 1992.
8 On 4 May 1992, the President of the Court of First Instance ordered that the time-limit laid down in Article 3(3) of the contested decision was not to expire before the date of the order disposing of the interim proceedings. In the same order, he dismissed the application for suspension of operation of Article 5 until the date of the order disposing of the interim proceedings.
9 By a letter of 4 June 1992, the applicants withdrew their application for suspension of operation of Article 5 of the contested decision.
10 The Commission submitted its observations on the interim application on 15 May 1992. The parties presented oral argument on 18 June 1992. At the hearing, the President of the Court of First Instance requested a number of further particulars in writing from both sides within a period of one week. The Commission and the applicants supplied the particulars requested by letters lodged at the Registry of the Court of First Instance on 25 and 26 June respectively.
11 Before considering whether this application for an interim order is well founded, it is appropriate to describe briefly the context and content of the agreements, decisions, rules and regulations to which the contested decision relates.
12 The SPO is an umbrella organization, comprising associations of undertakings in the building and construction industry. Its object, according to Article 3 of its statutes, is "to promote and administer orderly competition, to prevent improper conduct in price tendering and to promote the formation of economically justified prices". To achieve that objective, the SPO makes rules and regulations, described as "institutionalized regulation of prices and competition", and is empowered to impose penalties on undertakings affiliated to its member organizations for non-observance of the obligations under those rules and regulations. Implementation of the rules and regulations is entrusted to eight executive offices, whose operation is controlled by the SPO. The SPO currently has 28 member organizations, including between them more than 4 000 building and construction undertakings established in the Netherlands.
13 The purpose of the UPR rules adopted on 9 October 1986, as amended on 23 June 1988, is to set the procedural framework in which competition between undertakings tendering for building and construction work is to take place. There are two sets of UPR rules, one relating to invitations to tender under the restricted procedure (UPRR) and the other relating to invitations to tender under the open procedure (UPRO). The two sets of rules have an identical structure and contain precise and details provisions on the obligations of participant undertakings and the operation of the organization. Beside the UPR rules themselves, there are four additional sets of rules and three annexes.
14 The contested decision relates to agreements, decisions, rules and regulations of five different types, namely the statutes of the SPO, the two sets of UPR rules adopted on 9 October 1986, as modified on 23 June 1988, the Code of Honour, the additional rules and the rules which preceded the current UPR rules.
15 The contested decision is concerned with those provisions of the agreements, decision, rules and regulations which relate to compulsory notification to the relevant SPO office of the intention to submit a price tender, meetings of undertakings, protection of the entitled undertaking, paying over the amounts of price increases, monitoring of compliance with obligations deriving from the UPR rules, the conduct of the SPO towards non-participating contractors, the rules concerning non-simultaneous price tenders, the rules concerning price tenders for subcontracted work, and the treatment of private contracts.
16 According to the Commission' s decision, the agreements, decisions, rules and regulations referred to above fall within the scope of the prohibition laid down in Article 85(1) of the EEC Treaty in so far as they seek to organize the supply side of the market and to alter trading conditions on bases not resulting from the free play of competition. In addition to the statutes of the SPO, which impose rules and regulations on its member associations and their members whose object or effect is to restrict and distort competition, the decision also holds the following to be restrictions of competition:
° notification of the intention to submit a price tender;
° the meeting of undertakings which have notified price tenders;
° agreement in principle to designate an entitled undertakings, and the protection of that undertaking;
° comparison of contract cost elements at the meetings of undertakings;
° the handing-in of blank figures, drawn up by each of the participants, to the chairman of the meeting;
° the possibility of withdrawing a proposal after learning of other participants' blank figures;
° the possibility of changing the initial order of sequence of the prices to be tendered, with the tenderer with the lowest bid in the "first round" being replaced by the tenderer who has been granted the right of preference;
° the joint establishment of price increases;
° concerted fixing of the final prices to be tendered;
° paying over reimbursement amounts for calculation costs and contributions to trade organizations, and
° the possibility of imposing penalties in the event of non-compliance with the obligations deriving from the rules and regulations.
17 In its decision, the Commission considers the systematic exchange of information within the SPO regarding non-member building and construction firms, the concerted response by the SPO to tenders by outsiders, and the single tendering procedure in the treatment of private contracts to be similarly restrictive of competition.
Law
18 Under the combined provisions of Article 185 of the EEC Treaty and Article 4 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities, the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended.
19 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures under Article 184 of the EEC Treaty must state the circumstances giving rise to urgency and the factual and legal grounds establishing a prima facie case for the measures applied for. Such measures must, moreover, be provisional in nature, in that they must not prejudge the decision on the substance of the case.
The arguments of the parties
20 According to the applicants, the legal requirements for granting the interim measures applied for are met in the present case. As regards the risk of serious and irreparable damage, they argue that immediate application of the contested decision would not only destroy the SPO' s organization, but would seriously and irreparably damage competitive relations in the building and construction market. In their opinion, abandoning the rules and regulations pending a decision on the substance of the case would lead irrevocably to the dismissal of the 170 employees concerned and the dismantling of the whole organization, making it quite impossible to reconstitute relations between the various participants in the agreements in question if the applicants' main action were to be successful. (See the order of the President of the Court of Justice on 31 March 1982 in Joined Cases 43/82 and 63/82 R VBVB and VBBB v Commission [1982] ECR 1241). They also argue that disappearance of the contests rules and regulations would seriously disrupt the relative balance already achieved in the building and construction market, causing clients and undertakings to resort to practices that would be damaging for competitive relations.
21 As regards the requirements of a prima facie case, the applicants believe that, having regard to the arguments they put forward in their main action, it cannot reasonably be maintained that their action is devoid of all foundation (see the orders of the President of the Court of Justice of 11 May 1989 in Joined Cases 76/89 R, 77/89 R and 91/89 R Radio Telefis Eireann and Others v Commission [1989] ECR 1141, and of 13 June 1989 in Case 56/89 R Publishers Association v Commission [1989] ECR 1693). In that respect the applicants contend primarily that the contested decision is manifestly non-existent or, at the very least, void for breach of essential formalities, in so far as the versions of the decision notified to them were neither made nor adopted in their authentic Dutch versions at the college of commissioners' meeting on 5 February 1992. They argue that this is confirmed by the fact that the first version of the decision to be notified to them contained serious deficiencies, and that those deficiencies were only corrected in a second version, notified on 2 March 1992, which was not put before the college of commissioners.
22 Alternatively, the applicants argue that the contested decision must be declared void for breach of Article 85(1) and (3) of the Treaty, breach of Council Regulation No 17 of 6 February 1962 (First Regulation implementing Articles 85 and 86 of the Treaty) (OJ, English Special Edition 1959-1962, p. 87) (hereinafter "Regulation No 17"), breach of general principles of law, and misuse of power. They make nine submissions in support of their application. In their application for interim measures, they limit themselves to setting out the submissions formulated in the main proceedings. Those submissions concern, essentially, breach of Article 85 and failure to give reasons having regard to the special character of the building and construction industry in the Netherlands, the definition of the markets concerned, misapprehension of the object and effects of the rules and regulations notified, the likelihood of trade between Member States being appreciably affected, refusal to grant an exemption, and failure to take into account the proposed modifications put forward by the SPO.
23 Finally, the applicants argue that the requested suspension would not be against Community interests, since the Commission never showed the slightest interest in the contested rules and regulations until 1987, even though it must have known of them, and did not consider adopting interim measures or withdrawing immunity from fines in the manner envisaged by Article 15(6) of Regulation No 17. Furthermore, no complaint was lodged with the Commission and the Dutch authorities at all time endorsed the rules and regulations notified.
24 The Commission disputes the existence of a prima facie case, or of any risk of serious and irreparable damage to the applicants, which would justify suspending the contested decision.
25 Regarding the risk of serious and irreparable damage, the Commission considers that, contrary to what the applicants contend, the decision does not oblige them either to "dismantle" the SPO or to dismiss its staff. Indeed, in the Commission' s opinion, nothing would stop the SPO offices resuming their activity in applying the contested rules and regulations, if the decision were to be declared totally or partially void. In that respect, the Commission argues that the applicants are wrong to refer to the orders of the President of the Court of Justice in the VBVB and Publishers Association cases referred to above, as the systems dealt with in those decisions were vertical systems involving many links in the distribution chain, and not a horizontal system wholly dominated by members, as in the present case. The Commission stresses, moreover, that, in so far as other SPO activities are not covered by the decision and can be financed if need be by members' subscriptions during the procedure in the main action, nothing requires the applicants to dismiss their staff. Nor, in the Commission' s opinion, have the applicants shown how removing the contested rules and regulations would necessarily lead contract awarders to resort to "damaging bargaining practices", likely to disrupt the balance of the Dutch building and construction market.
26 Regarding the requirement for a prima facie case, the Commission analyses closely the various submissions put forward by the applicants in support of their main action, while raising the question whether mere reference to the main application is compatible with Article 104(2) of the Rules of Procedure of the Court of First Instance. The Commission' s arguments may be summarized as follows. It argues, first, that the applicants' main submissions ° manifest non-existence of the decision ° is not supported by any convincing evidence that the text notified to the applicants differed from the text adopted by the college of commissioners. The Commission adds, on that point, that the absence of one page in the first text of the decision notified to its addressees was caused by a technical fault in the Commission' s internal electronic mailing system. It was that technical fault, together with changes of address of some of the addressees, that justified fresh notification.
27 Regarding the applicants' subsidiary arguments, the Commission argues, first, that, in the absence of any derogation provided for in the Treaty, Article 85 applies to the building industry in its entirety, so that the Commission cannot be accused either of misapprehending the essential characteristics of the Dutch building and construction industry (which, moreover, showed no fundamental difference from the industries of other Member States), or of failing to define the relevant markets. In reply to the complaint misapprehension of the object of the regulations notified and of their effects on competitive relations, the Commission considers it has examined the various aspects of the system in detail, as they rise from the contested rules and regulations, and indicated in the decision the reasons why those aspects, taken singly and in combination, restrict competition to an appreciable extent. The Commission points out in this respect that the contested rules and regulations provide, in particular, for exchanges of information prior to tendering procedures, concerted action on price tenders and total or partial fixing, direct or indirect, of prices and other trading conditions, and the sharing of demand between the undertakings concerned, where nearly all contracts awarded by tender in the Netherlands are subject to those rules and regulations. Since the applicants themselves considered that the rules on protecting the entitled undertaking, the system of reimbursing calculation costs and the possibility of withdrawal after comparing prices were the essential elements, those three elements receive even closer scrutiny from the Commission. Regarding those three elements, the Commission accuses the applicants of trying to conceal the nub of the matter by describing as a "(voluntary) limitation on procedural freedom" what is really a tight cartel which significantly restricts the freedom of negotiation and choice of contract awarders as well as competition between the participants themselves and between them and third parties. After rejecting the applicants' arguments put forward in the main action on the absence of appreciable effect on trade between Member States, it goes on to deny that the applicants have established a prima facie case in relation to the refusal to grant exemption. In its view, the applicants have failed to show any error by the Commission in the reasons ° amply set out in the contested decision ° for which none of the conditions set out in Article 85(3) are satisfied in the present case. The Commission does not believe it can be blamed for not examining in its decision the proposed modifications of the rules and regulations that were submitted to it by the SPO, since those modifications were not formally adopted or put into practice and the rejected of the proposals was communicated to the applicants' lawyers by a series of letters from the Directorate-General on Competition.
28 Finally, the Commission argues that the balancing of the interests involved cannot justify suspending operation of the decision. It points out that the contested rules and regulations contain significant restrictions on competition and prevent interpenetration of national building and construction markets in Member States, at a time when such markets are already in a quite vulnerable situation for structural reasons. The Commission also argues that the circumstances of the present case differs fundamentally from those in the VBVB and Publishers Association cases referred to above, in which the agreements in question had been notified to the Commission for a long time whereas in the present case the system in question had not been made public until 1 April 1987, and was actively investigated by the Commission following its notification in 1988. The fact that the Commission did not adopt interim measures or decide to withdraw the benefit of immunity from fines does not, in the Commission' s view, detract in any way from the importance of the interest pursued by the decision. The Commission also stresses that, contrary to what the applicants seem to be arguing, the municipality of Rotterdam and three consumer organizations representing a large section of Dutch consumers declared their opposition to the contested rules and regulations during the hearing held in accordance with Commission Regulation (EEC) No 99/63 of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47).
29 Finally, with reference to the orders by the President of the Court of Justice in Joined Cases 209 to 215 and 218/75 R Van Landewyck v Commission [1978] ECR 2111 and Joined Cases 43 and 63/82 R VBVB v Commission [1982] ECR 1241, referred to above, the Commission asks, in the alternative should the operation of Article 3 of the contested decision be suspended, a condition should be attached to such suspension, allowing undertakings affiliated to SPO member organizations to notify their withdrawal from the rules and regulations without incurring any disciplinary measure or other sanction.
Assessment of the President of the Court of First Instance
30 In these proceedings for interim relief, suspension is sought of the operation of a Commission decision concerning a complex set of private law rules and regulations, adopted by decisions of an association of undertaking with the object of organizing competition between contractors tendering for building and construction work in the Netherlands. In the contested decision, the Commission identifies a number of restrictions of competition (see paragraphs 14 to 16 of this order) which, in its view, result from each constituent element of the various rules and regulations and from the system set up by the SPO as a whole. Consequently, as appears moreover from the operative part of the contested decision and from Article 1 in particular, it is the system as a whole (comprising the statutes, the UPR rules together with their ancillary regulations and annexes, the Code of Honour apart from Article 10, and the rules prior to and similar) to the UPR rules which is described as constituting an infringement of Article 85(1) of the EEC Treaty.
31 As regards the risk of serious and irreparable damage, a preliminary analysis of the parties' arguments and submissions suggest that immediate implementation of the contested decision, in so far as it would involve dismantling the procedural framework in which competition on the market takes place, would be likely to set in train a development which would be very difficult, if not impossible, to reverse later if the main action were to succeed (see most recently the order of the President of the Court of First Instance in Joined Cases T-24/92 R and T-28/92 R Schoeller and Langnese v Commission [1992] ECR II-1713, paragraph 29). The system of regulating prices and competition, which is now declared contrary to Article 85(1) of the EEC Treaty, has long been the procedural ...
32 As regards the existence of a prima facie case, the applicants have restricted themselves in their application for suspension, primarily, to arguing that the contested decision was manifestly non-existent or, at the very least, void for breach of essential formalities, and, in the alternative, to referring to the nine pleas in law which they make in support of their main action.
33 As for the alleged non-existence of the contested decision, the Court finds, having regard to the Commission' s arguments, which the applicants have not disputed, that the applicants have not put forward sufficiently serious and concrete evidence to suggest a prima facie breach of the principle that a measure may not be altered after its adoption, thereby depriving the contested decision of the presumption of legality attaching to its appearance (see the judgment of the Court of First Instance in Case T-10/89 Hoechst v Commission [1992] ECR II-629).
34 As for the applicants' alternative arguments, it follows from the very nature of interim proceedings that they cannot involve a close analysis of the disputed rules as a whole, especially since the applicants have merely stated the pleas raised in their main action and maintained that, having regard to the arguments put forward in those proceedings, their action cannot reasonably be regarded as devoid of all foundation. Whilst the judge hearing the application for interim measures cannot make a close examination of all the pleas and arguments in the main action ° especially as it amounts to nearly 400 pages ° he must nevertheless consider the arguments put forward by the applicants in their application for interim measures and at the hearing, in order to determine whether there is any evidence to cast doubt on the conclusions reached by the Commission.
35 It should also be mentioned that, during the administrative procedure before the Commission, the applicants put forward a number of proposed modifications to the contested rules and regulations, which, in their opinion, would meet the Commission' s main objections. Since, however, the judge hearing an application for interim measures cannot substitute his assessment for that of the Commission (see the order of the President of the Court of justice in Joined Cases 209 to 215 and 218/78 R Van Landewyck v Commission [1978] ECR 2111, cited above), those proposals are to be taken into account in examining whether this application for suspension of operation establishes a prima facie case.
36 It would appear from a reading of the contested decision that certain aspects of the system set up by the contested rules and regulations clearly restrict competition within the meaning of Article 85(1) of the Treaty. Such restrictions are formed in particular by the very principle of holding a meeting between contractors which have notified a price tender, the comparison of contract cost elements by the contracts and the possibility of designating an entitled undertaking at the meeting, the possibility of handing in blank figures to other contractors submitting tenders, the possibility for contractors to withdraw their proposals after learning the blank figures of other tenderers, the possibility for preference to be given, and, finally, the payment of reimbursement amounts for calculation costs and contributions to trade organizations, in so far as such costs and contributions are directly passed on to contract awarders. However, even though some of those elements are at the very heart of the contested rules and regulations (and, as the applicants themselves acknowledge, are essential to the functioning of the entire system), one cannot exclude the possibility at this stage that other elements of the system, as it is now applicable, might conform with Community competition rules or be eligible for exemption under Article 85(3) of the Treaty.
37 As a general rule, the mere possibility that this Court might, in its decision in the main action, regard some elements of a complex system as conforming with Community competition rules is not enough to enable the judge hearing the application for interim relief such as that now at issue to find that there is a prima facie case. As indicated above, however, one cannot ignore the consequences that immediate implementation of the decision might have in the present cases: the fundamental changes that the procedural framework for competition in the building and construction market would undergo in the intervening period could compromise irreversibly any chance the applicants might have of re-applying the contested rules and regulations thereby rendering nugatory annulment, even partial annulment, of the contested decision.
38 Faced with that factual and legal situation, the judge hearing the application for interim relief must weigh up, on the one hand, the public interest in the proper administration of justice and, on the other, the interests of the parties, including the Commission' s interest in having the infringements of the Treaty competition rules which it has found brought to an immediate end, so as to avoid creating an irreversible situation and causing serious and irreparable damage to one of the parties to the dispute or to the public interest (see the orders of the President of the Court of Justice in Case 45/87 R Commission v Ireland [1987] ECR 783 and Case 56/89 R Publishers Association v Commission [1989] ECR 1693, referred to above, and the order of the President of the Court of First Instance in Joined Cases T-24/92 R and T-28/92 R Schoeller and Langnese v Commission [1992] ECR II-1713, referred to above).
39 In those circumstances, it would appear to be appropriate to order partial suspension of operation of the contested decision but only in so far as is strictly necessary to limit the serious and irreparable damage which immediate implementation could entail for the applicants. Since protection of the applicants' interests does not require suspension of the decision' s operation in so far as it declares the rules and regulations incompatible with Article 85(1) of the Treaty or refuses to grant exemption, the suspension must be limited to Article 3 of the decision, and then only in relation to those elements of the rules and regulations whose implementation does not clearly restrict competition.
40 It should be noted in this regard that the manifestly anti-competitive nature of some elements of the contested rules and regulations, identified in paragraph 36 of this order, derives from concertation (namely the meetings of contractors) and from an exchange of information between contractors (about notifications by others, costs structures and blank figures of other tenderers), which are not strictly necessary for the system to function. Indeed, it appears at first sight that the functioning of the system as regards notification of price tenders, handing blank figures, comparison of contract cost elements, designation of an entitled undertaking if tenders are comparable, and protection of that entitled undertaking could be assured by the office or its chairman without any concertation at all or communication of such information between contractors. That would be so particularly if, instead of having to notify their intention to submit a tender, the undertaking were to notify their tender and in some cases their request for designation of an entitled undertaking and that information were accessible only to the office, which would then itself compare the contract cost elements and designate the lowest tenderer as the entitled undertaking if the tenders were comparable and a majority of those notifying tenders had declared that they favoured that course.
41 Other elements of the system, on the other hand, are anti-competitive by nature, independently of any concertation or exchange of information between contractors. That applies to the preference system and the reimbursement of calculation costs and contributions to trade organizations. As regards the granting of preference, the applicants have told the President of the Court of First Instance that they are prepared to stop applying the rules in question. Regarding the reimbursement of calculation costs and contributions to trade organizations, the manifestly anti-competitive elements of the system can be removed by not having the whole of those amounts and contributions passed on directly to contract awarders.
42 In view of the foregoing, it is appropriate to order suspension of operation of Article 3 of the Commission' s decision in so far as it concerns elements of the contested rules and regulations that are not linked to the existence of concertation practice and exchange of information between contractors, to the granting of preference, or to the direct passing on to contract awarders of amounts relating to reimbursements for calculation costs and contributions to trade organizations.
43 It is also appropriate to order the applicants to notify the Commission and the Court of First Instance by no later than 1 October 1992 of the measures they have taken to make the system function in conformity with this order.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Operation of Article 3 of the Commission Decision relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.572 and 32.571 ° Building and construction industry in the Netherlands) is suspended in so far as it concerns elements of the contested rules and regulations that are not linked to the existence of concertation and exchange of information between contractors, to the granting of preference or to the direct passing on to contract awarders of amounts relating to reimbursements for calculation costs and contributions to trade organizations.
2. The applicants shall communicate to the Commission and the Court of First Instance, not later than 1 October 1992, the measures they have taken to make the system function in conformity with this order.
3. For the rest, the application for suspension of operation is dismissed.
4. Costs are reserved.
Luxembourg, 16 July 1992.