61974C0017
OPINION OF MR ADVOCATE-GENERAL WARNER
DELIVERED ON 19 SEPTEMBER 1974
My Lords,
‘Marine paint’ is a technical generic term used to describe those kinds of paint that are applied to ships. It is common ground between the parties in this case that the technically more advanced marine paints, about 80 % of the total, cannot be used for other purposes.
An important characteristic of the marine paint market is that the customers, i.e. shipowners, demand a world-wide service, in the sense that the paint chosen for a particular ship must be available, not only at the yard where she is built, but subsequently, for maintenance purposes, at any port, or at all events any major port, where she may call. Moreover, the supplier of marine paint must in general be prepared to provide on the spot technical advice and assistance.
Those characteristics make it difficult for a small or medium-sized manufacturer of marine paint in any country to compete with the multinational groups. So it was that, in 1959, a number of medium-sized manufacturers in different countries joined together to form the Transocean Marine Paint Association, their essential idea being that together they would be able to provide that world-wide service that none of them could afford alone.
A basic feature of the Association is that each member manufactures paint of the same composition and quality and sells it under the same ‘Transocean’ trade-mark. In order to achieve this object, the members exchange technical know-how, afford each other preferential treatment in the matter of patent-licensing and submit to quality control. One consequence is that, in effect, they pool the results of their research. This, in itself, strengthens their competitive position vis-a-vis the multinationals.
It is of crucial importance to the Association that it should, so far as possible, have a member in each major maritime country, so that ‘Transocean’ paints may be readily available wherever ships may call, backed up by the necessary technical service. The evidence in the case evinces the anxiety that has been caused to the Association by the loss of its Norwegian and Swedish members, the former through a take-over bid and the latter because it ceased production for economic reasons. Similar anxiety was engendered recently by a threat, in circumstances that I shall detail, that the Association might be compelled to shed its French and Spanish members.
The membership of the Association has not remained fixed. It appears that at its foundation it had 18 members. With some losses and some gains over the years it now numbers 20. Of the 20, seven are established in the EEC, namely in Belgium, Denmark, the Federal Republic, France, Italy, the Netherlands and the United Kingdom respectively. One is established in an associated territory, namely Curaçao and the remaining twelve are established in third countries, namely in Spain, Turkey, South Africa, Mauritius, Thailand, Malaysia, Singapore, Hong-Kong, the Philippines, Japan, Australia and the U.S.A., respectively.
The marine paint turnover of the members is unequal, the Japanese member by itself accounting for some 60 % of the total of it.
Thus the Association, though its Central Office is in Rotterdam, is not preponderantly European.
Under the Charter of the Association, each member undertakes to promote sales of ‘Transocean’ marine paints, and to supply such paints, in its own country and ‘allocated territories’. It also undertakes not to participate, directly or indirectly, in any other similar organization relating to marine paints. But no member has an exclusive right to supply marine paints in its territory. There have always been, in the Charter of the Association, provisions envisaging the ‘export’ of marine paints by any member into the territory of another as well as provisions envisaging the securing of orders by members for each other. Those provisions have been accompanied by a system of ‘commissions’ payable by members to each other in various circumstances, though it is expressly stated in the Charter that the scale of ‘commissions’ there set out is ‘for guidance only’ and that ‘Members are expected to negotiate in good faith a suitable commission rate contingent with the particular requirements of the case’.
The Association is not in any way a price-ring: each member is free to fix its own prices.
I should add, in order to make what follows clear, that the affairs of the Association are managed by a Board of Directors representative of the members, and that the Charter contains an arbitration clause.
On 29 October 1962, following the coming into force of the EEC Treaty and of Regulation No 17 of the Council, the Association applied to the Commission for negative clearance of its Charter under Article 2 of that Regulation and, failing that, for exemption under Article 85 (3) of the Treaty.
On 27 June 1967 the Commission issued its Decision. It is plain from this that, in the meantime, the Association had amended its Charter in a number of ways, at the behest of the Commission. Having regard to those amendments the Commission felt able, not indeed to grant negative clearance, but to grant exemption under Article 85 (3) until 31 December 1972, subject to certain conditions, contained in Article 4 of the Decision (OJ 163 of 20. 7. 1967). Those were that:
‘1.
The following should be notified without delay to the Commission:
(a)
all alterations which may take place in the composition of the Association;
(b)
all amendments and additions to the Charter;
(c)
all the decisions of the Board of Directors and all arbitral awards relating to the application or interpretation of the provisions of the Charter taken into consideration in the present Decision.
2.
The Commission should be supplied once annually, and on the first occasion for the year 1967, with a report on the activity of the Association, on the volume of production and on the volume and amount of the sales of each of the members in the marine paint sector, making a distinction between the “Transocean” paints and the other marine paints which they manufacture, on the volume of deliveries of marine paints for which the members of the Association established in the Common Market are reciprocally required to pay commissions and on the amount and rates of the relevant commissions.’
By letter dated 27 October 1972 the Association applied to the Commission for an extension of its exemption for a further ten years. This brought forth from the Commission a notice of objections dated 27 July 1973, in which two main points were taken.
First the Commission observed that the most important competitors of the members of the Association were the large chemical concerns and that by far the most important change in the situation since it had issued its Decision of 27 June 1967 was that the French and Spanish members had each been taken over by one of these: the French member, ‘Astral’, by the Dutch group AKZO and the Spanish member, ‘Urruzola’, by the German BASF. The Commission pointed out that, in reaching its Decision, it had had particular regard to the fact that by combining and coordinating their sales networks as medium-sized undertakings the members would be in a position to compete more effectively with the large marine paint manufacturers already represented in all the important countries. It would be inconsistent with that approach to permit the members of the Association to include subsidiaries of such large manufacturers. The Commission would therefore make it a condition of granting an extension that either Astral and Urruzola withdraw from the Association or AKZO and BASF dispose of their holdings in those undertakings.
The second point taken by the Commission was that the Charter contained two restrictions which, having regard to the growing strength of the Association, could no longer be justified. The first was a provision under which a member was precluded from exporting marine paint other than ‘Transocean’ into the territory of another without the latter's consent. The second was a provision under which a member exporting ‘Transocean’ paint into the territory of another, or supplying it to a ship from another's territory, was to pay a commission to that other. The Commission intimated that it would make any extension of the exemption conditional on the removal of these restrictions.
Without any explanation at all, the Commission added that it would make the extension conditional on a further requirement and it is in this that lies the germ of the dispute in this case.
My Lords, the original of the notice of objections was in Dutch. The Commission has supplied to the Court (Annex 1 to the Defence) an unrevised translation of it into English. In this translation the material paragraph, paragraph 3 (c), reads as follows:
‘In addition to complying with the conditions laid down in Article 4 of the Decision of 27 June 1967, the Transocean associates must notify the Commission without delay regarding any change in the participatory position of the associates.’
In a letter dated 6 February 1974 (Annex 2 to the Reply) written by the Commission, in English, to the Association's Counsel, in circumstances to which. I shall come, the crucial phrase (‘iedere wijziging in de deelnemingsverhoudingen van de leden’) is translated as ‘every change in the financial interests of the members’.
There are also before the Court two versions of that phrase in French. The first is in a translation of the relevant parts of the notice of objections made by the Court's own translation service. In this, paragraph 3 (c) reads as follows:
‘outre les conditions figurant à Particle 4 de la decision du 27 juin 1967, les membres de Transocean doivent notifier sans délai à la Commission toute modification intervenant dans l'importance respective de la participation des membres à l'association.’
The other was put forward by Counsel for the Commission at the hearing, by way of correction of an earlier French translation submitted by the Commission. It was: ‘toute modification qui interviendrait dans la situation des liens et participations des membres’.
Such, my Lords, is the material on which those of us who do not have the advantage of knowing Dutch must prima facie form a view as to the meaning and content of paragraph 3 (c). I say ‘prima facie’ because I think that in fact the way in which the Association, which was represented throughout by Dutch Counsel, reacted to that paragraph is very significant.
On the basis of the translations alone I would have formed the view that, in paragraph 3 (c), the Commission was foreshadowing only a requirement that it should be kept informed as to the relations between the members of the Association — a requirement that would have been readily understandable.
That seems to have been the understanding of the Association. It treated paragraph 3 (c) as innocuous. It made its observations on the notice of objections first by letter dated 6 September 1973 and then at a hearing held by the Commission on 27 September 1973. On neither occasion was paragraph 3 (c) even referred to. (See annexes 4 and 5 to the Application and II and III to the Defence). On both occasions — apart from seeking to show that the Charter did not come within Article 85 (1) of the Treaty at all — the Association addressed itself only to the two main points raised in the notice of objections. As the subsequent Decision of the Commission shows, it did so with marked success.
That Decision (Annex 7 to the Application) was issued on 21 December 1973. It extended the exemption under Article 85 (3) until 31 December 1978 without any condition whatever relating to Astral or Urruzola. Moreover it did not require the complete removal of the provision in the Charter about the payment of commission on export orders, but merely its modification so that it should not apply irrespective of the services rendered by the recipient member in obtaining or executing the order in question. But Article 3 of the Decision declared that it was subject to the following obligations (I read from the authentic text, which is in English, and in which the Charter of the Association is referred to as ‘the Agreement’):
‘1.   That the Commission shall be informed without delay of the following matters:
(a)
Any amendment or addition to the Agreement,
(b)
Any decision taken by the Board of Directors or the result of any arbitration held, pursuant to the restrictive provisions of the Agreement…
(c)
Any change in the composition of membership,
(d)
Any links by way of common Directors or managers between a member of the Association and any other company or firm in the paints sector or any financial participation by a member of the Association in such outside companies or firms or vice versa including all changes in such links or participations already in existence.
2.   A report is to be submitted by the Association annually to the Commission on the activities of the Association and in particular on improvements in the production and marketing of marine paint products achieved.’
The Association at once protested to the Commission about paragraph (1) (d). In a letter written to the Commission on its behalf by its Counsel on 21 January 1974 (Annex 1 to the Reply) he pointed out that the obligation contained in that paragraph had not been mentioned in the notice of objections or in any other statement, formal or informal, made by the Commission to the Association. He contended that the Commission was accordingly in breach of Article 4 of Regulation No 99/63/EEC of the Commission (OJ 127 of 20.8.1963), which provides:
‘The Commission shall in its decisions deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.’
He explained that, in inserting this obligation in its Decision, the Commission placed the Association in a difficulty. The information available at the Central Office of the Association pertained only to members' activities in the marine paint field. With regard to their activities in other fields the members, particularly those in Asia and in the USA, tended ‘to cover themselves in clouds of secrecy of varying density’. He expressed the fear that the non-EEC members might regard the provision of the information required by the Commission too high a price to pay for the retention of the EEC members in the Association. (In his pleadings he expresses an alternative fear, that the members who are remote from Europe might in fact fail to supply the information and so place the other members in jeopardy of fines). He suggested an alternative formulation of the obligation, which would confine it to any link ‘between a member of the association situated within the EEC and any other company or firm in the Marine Paint sector, or between a member of the association and any other company or firm situated within the EEC in the Marine Paint sector’.
By the letter of 6 February 1974 to which I have already referred, the Commission replied that it was unable to agree that reference to the obligation in question was not made in the notice of objections. ‘It was made very clear’, the letter said, ‘that the Commission was most concerned with the links between the membersof Transocean, including the members outside the Community and other paint producers, and the objections expressly referred to the obligation of informing the Commission of every change in the financial interests of the members (“iedere wijziging in de deelnemingsverhoudingen van de leden”)’. The letter concluded by stating that the Association's complaint could not therefore be entertained and by observing that it was of course open to the Association to challenge the Decision of the Commission before the Court.
It is in those circumstances that the Application in this case was lodged on 1 March 1974 by 16 of the members of the Association. The Application is made under Article 173 of the Treaty and the Applicants thereby claim, in effect, that paragraph (1) (d) of Article 3 of the Decision be declared void. In support of this claim they advance two contentions. First they say that the Decision is vitiated by, to use the words of Article 173, an ‘infringement of an essential procedural requirement’, because the Commission was in breach of Articles 2 (1) and 4 of Regulation No 99/66/EEC. Article 4 of that Regulation I have already read. Article 2 (1) is merely the one that provides that the Commission shall inform undertakings and associations of undertakings in writing of the objections raised against them.
Secondly the Applicants contend that the Commission acted ultra vires because, in formulating the obligation in paragraph 1 (d), it failed to distinguish —
(a)
between the marine paint market and the markets for paint in general, and
(b)
between links relevant to the Common Market and those not.
With regard to the first contention the Commission argues in the first place that it is not bound to inform applicants for exemption under Article 85 (3) of conditions or obligations that it is considering attaching, pursuant to Article 8 (1) of Regulation No 17, to a decision in their favour. It says that Articles 2 and 4 of Regulation No 99/63/EEC — and, I would suppose, Article 3 too, for Articles 2, 3 and 4 of that Regulation form a coherent scheme — apply only to ‘objections’ that may lead to a decision unfavourable to the undertaking or to the association concerned. In the second place the Commission submits that, in any event, the Applicants in the present case were apprised of what it had in mind.
My Lords, I hope that I shall be acquitted of discourtesy towards the Commission if I deal with the latter submission shortly. It seems to me plainly inconsistent with the facts, which I have recited. The Commission relies of course on paragraph 3 (c) of the notice of objections. But this was, at best, ambiguous and, as subsequent events showed, it certainly failed to convey to the Applicants that the Commission was envisaging anything on the lines of Article 3 (1) (d) of its Decision. Your Lordships will remember that, at the hearing, Counsel for the Applicants expressed himself as having been ‘amazed’ by the Commission's interpretation of it. For the rest, the arguments of the Commission in support of this submission amount to no more than saying that the Applicants ought to have divined what it had in mind from the anxieties it had expressed about the links between some members of the Association and multinational groups. This, in my opinion, just will not do. I would agree, of course, that, if the Commission was under a duty to inform the Applicants of what it had in mind, it would fulfil that duty by giving them an indication of it in general terms and need not formulate it in every precise detail. But some unambiguous communication there must be.
So the question is whether, as a matter of law, the Commission was under such a duty. I agree with the Commission that Articles 2, 3 and 4 of Regulation No 99/63/EEC are not here in point. A reading of Regulation No 17, together with Regulation No 99/63/EEC, evinces clearly that the authors of those Regulations distinguished between ‘objections’ of the kind with which those Articles are concerned and ‘conditions and obligations’ of the kind that may be imposed by the Commission under Article 8 of Regulation No 17. I do not overlook that Regulation No 99/63/EEC was adopted in implementation of Article 19 of Regulation No 17 and that the latter Article expressly refers to Article 8 of the same Regulation. But it does so in terms that indicate that it is concerned only with ‘objections’ that may lead to a refusal of exemption under Article 85 (3) of the Treaty. It could indeed hardly do otherwise. One can readily figure a case where, at the outset, the Commission has only objections to granting exemption, and is subsequently persuaded, by representations made by the undertakings concerned, to grant it subject to conditions or obligations. One could hardly expect the Commission, in such a case, to anticipate those conditions or obligations in its notice of objections.
That, however, is, in my opinion, far from being the end of the question.
There is a rule embedded in the law of some of our countries that an administrative authority, before wielding a statutory power to the detriment of a particular person, must in general hear what that person has to say about the matter, even if the statute does not expressly require it. ‘Audi alteram partem’ or, as it is sometimes expressed, “audiatur et altera pars”. I say that the rule applies “in general” because it is subject to exceptions, as are most legal principles.
In the law of England the rule is centuries old, firmly established and of daily application. It is considered to be a “rule of natural justice”, a somewhat flamboyant and sometimes criticized phrase embodying a concept akin to what is, in French-speaking countries, more soberly and, I think, more accurately, referred to as “les principes généraux du droit”. The late Professor de Smith, in his book “Judicial Review of Administrative Action” (3rd Ed. at p. 134 et seq.), traced its origins and development. I will not take up your Lordships' time with an account of them. The most often cited expression of the rule is in the judgment of Byles J. in Cooper v Wandsworth Board of Works (1863) 14 C.B.N.S. 180, where he said that ‘although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’. In England today there is no scope for controversy about the existence of the rule, but only about the circumstances in which it may be held inapplicable and about the manner in which it is to be applied in particular instances — consider the judgments in the House of Lords in Ridge v Baldwin [1964] A.C. 40.I know, my Lords, of no exception to the rule, acknowledged in English law, which could have deprived the Applicants in the circumstances of the present case of the right to be heard before being subjected to an obligation such as that contained in Article 3 (1) (d) of the Commission's Decision.
There can be no doubt that the rule forms part also of the law of Scotland (consider Malloch v Aberdeen Corporation 1971 S.L.T. 245; [1971] 1 W.L.R. 1578) and of the laws of Denmark (see Andersen, ‘Dansk Forvaltningsret’, at p. 337 et seq.), of Germany (see Forsthoff, ‘Lehrbuch des Verwaltungsrechts’, 10th Ed., at p. 235 et seq.) and of Ireland (see Kelly, ‘Fundamental Rights in the Irish Law and Constitutions’, at p. 313-314).
It has been said by Professor Vedel that the rule ‘audi alteram partem’ does not exist in French administrative law (see, for instance, his ‘Cours de Droit Administratif’, p. 536). Professor Waline, on the other hand, in an article on the rule (‘Livre Jubilaire’ du Conseil d'Etat du Grand-Duche de Luxembourg, 1957, pp. 495-506) suggests on the contrary that it does. In my opinion, it matters little whether the applicable rule is subsumed under the title ‘audi alteram partem’ or, as Professor Vedel would prefer, under the concept of the ‘droits de la defense’. What is undoubted is that French administrative law does acknowledge the existence of those ‘principes generaux du droit’ which I have mentioned and which are applicable even in the absence of any specific legislative provision. The relevant decisions of the Conseil d'Etat are collected by Professor Waline in his article, and I need not rehearse them. It appears that the principle here in question is of fairly recent origin in French law, and that its scope is not yet settled. The decisions of the Conseil d'Etat evince three different approaches: the narrowest being to apply it only when the decision of the administrative authority concerned is in the nature of a sanction; a slightly wider approach which would apply it in any case where the decision of that authority is based on the character or on the behaviour of the person to be affected; and a third approach which is virtually as wide as that of the English common law. I should perhaps add that Professor Vedel refers to French law as being in this respect ‘plutôt retardataire’ and ‘en voie d'evolution’ (see ‘Cours de Droit Administratif’, p. 534, and ‘Droit Administratif’ 5th Ed., p. 279); and this is echoed by Professor Waline who refers to the principle “audi alteram partem” as “un principe en voie de développement” (p. 496).
The position in Belgium and in Luxembourg is similar, though the Conseils d'Etat of those countries seem to have been less hesitant in developing the principle than that of France (see as to Belgium an article by Professor L. P. Suetens in Tijdschrift voor Bestuurswetensschappen en Publiek Recht, 1970, et p. 388, and as to Luxembourg the decisions of the Conseil d'Etat of 13 April 1961 in horse v Ministre des Transports (Aff. No 5811), of 5th August 1966 in Roth v Ministres de I'lntérieur, de la Santé Publique et des Travaux Publics (Aff. No 5968) and of 9th July 1971 in Colot v Ministre du Trésor (Aff. No 6136)).
In Italy the Consiglio di Stato has held that there is no general principle of law requiring an administrative authority to inform those concerned of its proposals so as to enable them to comment (Sez. IV, 15 May 1970, n. 345, Rass. Cons. di Stato 1970, I, p. 828, at p. 834). And it seems that the law of the Netherlands is similar, in this respect, to that of Italy.
My Lords, that review, which I have sought to keep short, of the laws of the Member States, must, I think, on balance, lead to the conclusion that the right to be heard forms part of those rights which “the law” referred to in Article 164 of the Treaty upholds, and of which, accordingly, it is the duty of this Court to ensure the observance.
I would therefore reject the contention of the Commission that it was under no duty to inform the Applicants of what it had in mind before imposing on them the obligation contained in Article 3 (1) (d) of its Decision.
In support of that contention, the Commission pointed to Article 11 of Regulation No 17, which enables the Commission, in carrying out the duties assigned to it by Article 89 of the Treaty and by provisions adopted under Article 87 thereof, to “obtain all necessary information from the Governments and competent authorities of the Member States and from undertakings and associations of undertakings”. The Commission's argument was that that Article contains no express provision entitling the undertakings and associations of undertakings there referred to to make observations on the question whether they should be required to supply the information called for by the Commission. So it does not. But it is, to my mind, significant that Article 11 envisages a two-stage procedure. First the Commission is to send out its “request for information” to an undertaking or association of undertakings, with copy to the competent authority of the Member State in whose territory the seat of the undertaking or association of undertakings is situated. In its request the Commission is, by paragraph 3 of Article 11, to state the legal basis and the purpose of the request and also the penalties for supplying incorrect information. Then, by paragraph 5 (OJ 13 of 21. 2. 1962):
“Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the Commission, or supplies incomplete information, the Commission shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for … and the right to have the decision reviewed by the Court of Justice.”
What possible purpose can this two-stage procedure serve, unless it be to afford an opportunity for any observations of the “undertaking or associations of undertakings” concerned, as well as of the competent authorities of the relevant Member State or Member States, to be made and considered before the Commission reaches a final decision?
Thus, to my mind, far from bolstering the contention of the Commission, reference to Article 11 serves only to underline that that contention is misconceived.
I conclude that, in the present case, the members of the Association were entitled to be heard on the merits of the order proposed to be made by the Commission. Indeed, there is, to my mind, in this respect, no sensible dividing line between the withdrawal of the exemption and its extension subject to conditions to be imposed by the Commission. As the Commission was bound to hear the members of the Association before the exemption could be withdrawn, so it was bound to hear them before imposing the requirement which the Applicants have challenged.
In my opinion, therefore, the Applicants are entitled to succeed on the basis of their first contention, albeit on grounds different from those they put forward. What then should be the consequences?
It is common ground between the parties that the Court has power under Article 174 of the Treaty to declare a decision of the Commission void in part and, undoubtedly, the view that it has that power is consistent with authority: see Cases 18/62 Barge v High Authority (Rec. 1963, p. 528), 66/63 Netherlands v High Authority (Rec. 1964, p. 1047) and 56 and 58/64 the “Grundig” case (Rec. 1966, p. 428). Naturally the Applicants would be content if the Court simply exercised that power by declaring Article 3 (1) (d) of the Commission's Decision void, without more.
The Commission however argues that the Court may declare a decision void in part, only where the part in question is severable from the rest. In the present case, it says, the requirement that the members of the Association should keep the Commission informed of the matters specified in Article 3 (1) (d) was an essential foundation of the Decision itself, because, only if armed with that information, could the Commission carry out its duty of continuous supervision of the effects of the exemption granted by the Decision — a duty which, I agree, is clearly laid upon the Commission by Regulation No 17 (see for instance Article 8 (3) thereof). The solution suggested by the Commission is that the Court should interpret Article 176 of the Treaty as having the same meaning as Article 34 of the ECSC Treaty, and accordingly as empowering it to refer matters back to the Commission, and that the Court should, on this footing, refer back to the Commission the whole of its Decision.
Counsel for the Applicants agreed at the hearing that Article 176 could be interpreted as empowering the Court to refer matters back to the Commission, but submitted that, if anything was to be referred back, it should be only Article 3 (1) (d).
In my opinion, my Lords, that would be the correct course for the Court to adopt.
Clearly it could not adopt the course suggested by the Commission. This would involve declaring the whole Decision void and so depriving the Association, for an indefinite period, of its exemption under Article 85 (3). Worse, it would involve inflicting upon the Association, as a result of its forensic success, an order wholly adverse to its interests. I understand that, in the terminology of some legal systems, it would mean going “ultra petita”; but perhaps it is enough to say that it would be a glaring injustice.
Equally clearly, in my opinion, it would be unjust to the Commission for the Court simply to declare Article 3 (1) (d) void. It is obvious that the Commission must have at least some of the information envisaged in that provision if it is properly to perform its duty under Regulation No 17. Indeed the Applicants do not deny this. They concede that the Commission is entitled to know about “links” relevant to the marine paint market in the EEC. It is not as though the Commission, faced with what was referred to in argument as the “mutilation” of its Decision, could get over the difficulty by exercising the power conferred on it by Article 8 (3) of Regulation No 17 to revoke or amend it. That power is exercisable only in the circumstances set out in Article 8 (3), none of which is apt to cover a case where a decision is declared by the Court to be in part void.
I entertain no doubt that Article 176 must be interpreted in the way suggested by the Commission. Otherwise the Court would be powerless to do justice in a case such as this, for the unlimited jurisdiction that in has under Article 17 of Regulation No 17 relates only to decisions of the Commission imposing fines or periodic penalties. This is quite clear, in my opinion, both from the wording of that Article and from the relevant recital in the preamble to Regulation No 17.
Taking the view that I do as to the result of the Applicants' first contention, I think it right to refrain from expressing any decided opinion on the second question they raise, that is on the question whether the Commission did go too far in the scope of the information that it required the Association to provide. If Your Lordships share my view the case will be remitted to the Commission to hear the observations of the Association on that question and to decide it afresh in the light of those observations. I would think it wrong to pre-judge that decision. I will say only that, in my opinion, as a matter of law, the power of the Commission to require information from the Association is subject to two limitations only: first that the information should be relevant to competition in marine paints within the Common Market (so much indeed the Commission concedes) and second that the requirement should not be oppressive, in the sense of imposing on the members of the Association a burden disproportionate to the value of the information the Commission may obtain from it. I should make it clear, I think, that, when I say that the information must be relevant to competition in marine paints within the Common Market, I am not to be taken as subscribing to the view that factors affecting the general paint market, or affecting markets outside the EEC, are necessarily irrelevant.
I will add that the way in which the case for the Commission was presented, particularly at the hearing, encourages me to think that such a remission as I propose would not be a waste of time. Counsel for the Commission was careful to explain where the main anxieties of the Commission lay — and in particular why the Commission could not accept the actual re-wording of Article 3 (1) (d) proposed on behalf of the Association. On the other hand the fact remains that, at the time when it formulated the existing Article 3 (1) (d), the Commission had not heard the Association on the difficulties that it says that that formulation creats for its members, or on the question of relevance. It seems to me at least possible that the parties may be able, in renewed administrative proceedings, to anxieties of the one with the difficulties hammer out a wording that reconciles the of the other.
I am therefore of the opinion
1.
that Article 3 (1) (d) of the Decision of the Commission should be declared void;
2.
that the case should be remitted to the Commission to determine, after having heard the members of the Association, what obligation should be imposed on them to supply to the Commission information about their links with undertakings outside the Association; and
3.
that the Commission should be ordered to pay the costs of this action.