61997CC0070_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 This case is an appeal against the decision of the Court of First Instance (1) to reject as inadmissible an application for annulment of Commission Decision No 92/428/EEC of 24 July 1992 relating to a proceeding under Article 85 of the EEC Treaty (Case No IV/33.542 - Parfums Givenchy system of selective distribution) (2) (hereinafter `the contested Decision' or `the Decision') on the basis that the applicant, Kruidvat BVBA (hereinafter `Kruidvat'), was not individually concerned by the Decision.
2 Kruidvat is the Belgian subsidiary of a Dutch retail chain of some 300 shops which sells, inter alia, luxury perfumes, including those of Parfums Givenchy SA (hereinafter `Givenchy'), which it purchases on the parallel market.
Givenchy, part of the Louis Vuitton Moët-Hennessy group, sells through a selective distribution network (`the network') based on agreements with its exclusive agents and with specialised retailers.
3 Givenchy notified the network to the Commission in order to obtain either a negative clearance under Article 2 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (3) or, in the alternative, an exemption under Article 85(3) of the Treaty.
Upon publication by the Commission pursuant to Article 19(3) of Regulation No 17 of its intention to adopt a favourable stance towards this system of agreements, and its invitation to interested third parties to make comments, a Dutch body representing retailing chains and supermarkets, the Raad voor het Filial- en Grootwinkelbedrijf (hereinafter `the Raad FGB') submitted observations by letter lodged on 29 November 1991.
One of Kruidvat BVBA's parent companies, the Dutch company Kruidvat NV, was then a member of the Raad FGB. The Commission subsequently adopted, on 24 July 1992, the contested Decision, applying Article 85(3) to Givenchy's selective distribution system from 1 January 1992.
4 On 3 July 1992, Copardis SA, the exclusive representative of Givenchy in Belgium, had commenced proceedings against Kruidvat BVBA before the Rechtbank van Koophandel te Dendermonde (Commercial Court, Dendermonde) on the basis that the sale of Givenchy products by a non-authorised retailer was in breach of Belgian law on unfair competition.
Kruidvat's defence was that the network was contrary to Article 85(1) and (2) of the Treaty.
On 23 February 1993, the president of the Rechtbank, without inquiring into the legality of the Givenchy network, rejected Copardis' application on the ground that Belgian law did not prohibit the trade practices in question. Copardis appealed to the Hof van Beroep te Gent (Court of Appeal, Ghent).
5 Kruidvat also received a letter of 17 July 1992 from Belluco, which represents all the authorised general distributors for Belgium and Luxembourg in the luxury cosmetics sector, including Givenchy products.
Belluco stated, following a meeting with Kruidvat on 8 July 1992, that Kruidvat was not eligible for authorisation as a distributor because its name was not such as to be associated with luxury cosmetics, and that the sale of branded goods by an unauthorised distributor was unlawful. In addition, Belluco gave Kruidvat notice to discontinue sales of the cosmetic goods concerned in the whole of Belgium within two weeks, failing which Belluco would take such legal action as was available to it.
6 By application lodged on 16 October 1992, Kruidvat commenced annulment proceedings before the Court of First Instance in respect of the contested Decision.
By a separate document, lodged on 3 March 1993, the Commission raised an objection of inadmissibility.
On 14 April 1993, Kruidvat lodged its observations against that objection. Givenchy and two European perfume industry representative bodies, the Comité de Liaison des Syndicats Européens de l'Industrie de la Parfumerie et des Cosmétiques (Liaison Committee of European Associations for the Perfumes and Cosmetics Industry, hereinafter `Colipa') and the Fédération Européenne des Parfumeurs Détaillants (European Federation of Retail Perfumers), were granted leave to intervene in support of the form of order sought by the Commission.
7 The contested Decision is addressed to Givenchy and is thus a decision addressed to `another person' for the purposes of Article 173 of the Treaty.
Consequently, Kruidvat had to establish that the Decision was, none the less, of direct and individual concern to it.
Kruidvat argued that it was individually concerned on three main grounds:
that it had participated in the administrative procedure through its parent company's membership of the Raad FGB, that a concrete case was being heard in the matter before the Belgian courts, and that full judicial protection required that undertakings in its position be permitted to bring such annulment actions.
The Court of First Instance rejected its application as inadmissible, on the basis that it was not individually concerned by the Decision. (4)
II - Judgment of the Court of First Instance
8 The reasons given by the Court of First Instance for rejecting Kruidvat's three grounds of individual concern and for deciding that the application was inadmissible may be summarised as follows.
A - Kruidvat's first argument
9 The Court of First Instance observed that neither Kruidvat nor its parent companies, Profitmarkt BV and Kruidvat BV, nor the Evora Group, had complained to the Commission pursuant to Article 3 of Regulation No 17. Neither had they participated in the administrative procedure under Article 19(3) of that Regulation, or requested admission to Givenchy's selective distribution network. (5)
While Kruidvat NV was a member of the Raad FGB, there was nothing to indicate that the latter had acted on its behalf, or that Kruidvat NV had contributed in any way to, or even influenced, the content of the Raad FGB's submissions.
In fact, there was at least one important difference between the Raad FGB's position before the Commission and that of Kruidvat before the Court of First Instance, in that the former accepted the principle of selective distribution, subject to objective and non-discriminatory criteria, whereas Kruidvat disputed the very principle of that system in the sector in question. Thus, there was an insufficient link between Kruidvat NV, and, a fortiori, Kruidvat, and the participation of the Raad FGB in the administrative procedure leading to the contested Decision. (6)
B - Kruidvat's second argument
10 The Court of First Instance found that, in so far as Kruidvat was unable to secure Givenchy supplies through the selective distribution network in the Community, its position was no different from that of many other undertakings.
In any event, there was no evidence that Kruidvat would not be able, as before, to secure supplies of Givenchy products, as it was not bound by the terms of the selective distribution agreements. (7)
11 The Court of First Instance observed that the national proceedings had, at most, an indirect link with the validity of the contested Decision.
Those proceedings did not relate to refusal of admission to the Givenchy network or to a claim for damages for breach of Article 85 of the Treaty, but rather, principally, to the application of the Belgian law on unfair competition;
any perfume retailer or distributor could have an interest in raising the legality of the network in national proceedings, so that Kruidvat's position was not sufficiently individualised;
and the commencement of national proceedings in time to enable Kruidvat to comply with the time-limit for commencing an annulment action in respect of the contested Decision was, in any event, purely coincidental. (8)
12 The Court of First Instance also stated that the correspondence with the trade association, Belluco, had not been shown to have been authorised by Givenchy or by Copardis and that it did not amount to refusal of admission to the network. (9)
C - Kruidvat's third argument
13 The Court of First Instance held that even if the validity of the contested Decision were liable to affect the outcome of the proceedings before the national court, that court could still, if necessary, have recourse to the preliminary ruling procedure under Article 177 of the Treaty, which would afford adequate judicial protection. (10)
III - Grounds of appeal and submissions
14 Kruidvat appeals against the judgment of the Court of First Instance.
It asks the Court to annul the judgment and to rule the application admissible, and to order the Commission to pay the costs of the proceedings.
It advances four main arguments in respect of its first ground of appeal, relating to the alleged incorrect interpretation and application of Article 173 of the Treaty.
Regarding its second ground of appeal, Kruidvat raises seven points of alleged failure of reasoning in the judgment under appeal, contrary to Article 190 of the Treaty.
15 Written and oral submissions were also presented by the Commission, Colipa and Givenchy.
They requested the Court to reject the appeal as inadmissible in one respect and otherwise as unfounded and to order Kruidvat to pay their respective costs.
A - First ground of appeal: misinterpretation of Article 173
(i) Participation by association
16 This argument is subdivided into three points.
Firstly, Kruidvat claims that the requirement that it demonstrate active involvement in the letter sent by the Raad FGB misunderstands the function of sectoral representative associations.
These bodies should be taken as acting at all times with the authority of their members.
It cites AITEC and Others v Commission, where an association `had protected the interests of some of its members in accordance with the powers conferred on it by its statutes, without any objection from those members'. (11)
Secondly, Kruidvat says that the Court of First Instance should not have relied on a supposed difference in the points of view advanced by the Raad FGB and by Kruidvat, which did not, in any event, amount to a contradiction.
Such bodies adopt a general position which must be balanced in the interests of all their members.
The Court of First Instance lost sight of the fact that the tenor of the observations presented pursuant to Article 19(3) of Regulation No 17 does not determine the arguments that may be advanced later under Article 173.
Thirdly, Kruidvat seeks to show, by analysis of the letter of the Raad FGB, that the Court of First Instance was mistaken in concluding that there was a contradiction between it and the position taken by Kruidvat in its application.
17 The Commission argues that the administrative procedure under Regulation No 17 would lose much of its utility if parties who had not presented submissions were none the less able to challenge the resulting decisions before the Court of First Instance.
The Raad FGB could have commenced proceedings if it had so wished, just as in AITEC.
Colipa submits that the participation of Kruidvat in the administrative proceedings should be individualised distinctly from that of the Raad FGB.
The Commission does not view the differences between the positions of the Raad FGB and Kruidvat as central, as even entirely similar submissions would not have sufficed to individualise the situation of Kruidvat, quite apart from the impossibility of a Netherlands trade body representing the interests of a Belgian company.
The appreciation of those differences of position (which were fundamental) is, in any event, a question of fact that cannot be questioned in an appeal. Givenchy adds that its approved distributors were also members of the Raad FGB.
18 I can state at once that I agree with the Commission and Colipa that Kruidvat's third point, regarding the difference between the positions of Kruidvat and of the Raad FGB, is inadmissible.
Although the identification of material differences in documents will often be governed by the underlying appreciation of the applicable law, which could be the object of an appeal, the Court of First Instance was here, in my view, primarily concerned with assessing the degree, if any, of Kruidvat's actual involvement in the Raad FGB's submissions to the Commission, with the contradictory nature of their positions constituting evidence of a factual nature. Kruidvat's third point relates, therefore, to the finding or appraisal of the facts by the Court of First Instance, against whose decisions appeals are limited to points of law. (12)
Furthermore, Kruidvat has not established a distortion of the clear sense of the evidence. (13)
(ii) The Copardis action
19 Kruidvat says that at the moment it commenced its action before the Court of First Instance, it was already concerned in the action brought against it by Copardis, in which, by way of defence, it challenged the validity of the network operated by Givenchy.
It criticises the Court of First Instance for failing to take account of Metro v Commission (`Metro II'). (14)
It relies particularly on the apparent approbation by Advocate General VerLoren van Themaat in that case of the hypothetical acceptance by the Commission in the course of argument that the existence of civil litigation between an applicant and members of a cartel at the time of a decision would sufficiently identify the applicant to make his action admissible.
The Court of First Instance reversed the order of things by attaching importance to the facts that the action in question had been commenced by Copardis rather than by Kruidvat, that it related to Belgian competition law, that every perfume distributor had a comparable interest in challenging the network, and that it was by pure chance that the action was in existence at the time of the decision so as to enable Kruidvat to comply with the time-limit in Article 173.
It also misinterpreted the decision in Metro SB-Großmärkte v Cartier, (15) which shows that the outcome of the national proceedings in such a case is determined by the validity of the contested Decision. Furthermore, its reliance on the fact that Kruidvat, unlike applicants in a number of the earlier cases, had not applied to be admitted to the selective distribution system, was misplaced, as the existence of national litigation creates an equally direct link.
Thus, there is a direct link between the Copardis action and the contested Decision.
20 The Commission responds that the situation of an undertaking which is refused admission to a distribution system is much more directly linked with the validity of a decision approving that system, and that Kruidvat never had any intention of becoming an approved distributor.
The national judge had himself ruled that the lawfulness of the network was not an essential question in the case. Furthermore, the Decision does not affect Kruidvat's right to sell Givenchy products, as it only concerns the contractual relationship between Givenchy and the members of its network.
Thus, Colipa distinguishes between the `internal' and `external' effects of selective distribution agreements, the latter applying to all parallel traders in Givenchy products, who are not bound, as a matter of Community law, by the network's contractual provisions.
(iii) Faulty appraisal of competitive effects
21 Since it buys and sells Givenchy products, Kruidvat is a competitor of the approved resellers within the network. Thus, it argues, by analogy with the position of the competitor of the recipient of a State aid and in reliance on Cook v Commission and Matra v Commission, (16) it is just as individually concerned with a decision of the Commission made under Regulation No 17 as the applicants in those cases were where the decision was made under Article 93(2) of the Treaty.
Taking issue with the reference by the Court of First Instance to the absence of any request to be admitted to the selective distribution network, Kruidvat cites the Copardis action and the letter from Belluco as evidence that it was rejected a priori by Givenchy and its representatives.
Moreover, Kruidvat contests the conclusion of the Court of First Instance that the contested Decision would not prevent it from obtaining supplies, as before, on the parallel market.
The criterion that the Court of First Instance ought to have applied was whether the decision made it more difficult to obtain supplies.
In fact, the Decision means that Kruidvat can obtain supplies only outside the network.
Furthermore, the Court of First Instance failed to take account of Kruidvat's argument that the effect of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, (17) through its introduction of the principle of Community exhaustion of rights in place of international exhaustion, would be to prevent Kruidvat from obtaining supplies outside the Community. (18)
22 Kruidvat advances one particular argument under this heading regarding the claimed inconsistency between the position adopted in the judgment under appeal and that adopted by the Court of First Instance in its judgment in Métropole Télévision and Others v Commission. (19)
In that case the annulment action was held admissible even though two of the applicant undertakings, which were interested parties within the meaning of Article 19(3) of Regulation No 17, had not participated actively in the administrative procedure.
23 The Commission distinguishes the Article 93(2) case-law, saying that Kruidvat's competitive position was not substantially affected by the approval of Givenchy's network. (20)
Colipa adds that Matra and Cook concerned actions to annul decisions not to open a contentious procedure, and that the parties involved were individually concerned by this denial of their procedural rights.
The Commission argues that the question of the effect of the Decision on Kruidvat's supplies is a question of fact.
The Belluco correspondence cannot be read as a refusal of permission to join a network to which Kruidvat had no intention of belonging.
The decision on admissibility in Métropole was mistaken.
24 Colipa argues for a balancing of the interests, on the one hand, of the Commission and addressees in legal certainty, and, on the other, of other parties in having an opportunity to protect their interests.
These interests can be protected through participation in the administrative procedure;
there is also the possibility of seeking a preliminary ruling within the framework of national proceedings.
The effect of Directive 89/104/EEC can be discounted, as it was implemented in the Benelux States only on 1 January 1996.
(iv) Lack of adequate judicial protection
25 In its final ground relating to Article 173, Kruidvat challenges the view of the Court of First Instance that the possibility of invoking the preliminary ruling procedure pursuant to Article 177 of the Treaty offers adequate judicial protection.
It refers to the Opinion of Advocate General Jacobs in Extramet Industrie v Council (21) and claims that the Court of First Instance is particularly fitted to investigate complex issues of law and fact in direct actions, that national courts cannot consider the validity of Commission decisions, that there is delay in national proceedings and that the Court can consider only precise issues referred to it.
26 The Commission counters that the Court implicitly considered the protection afforded by the Article 177 procedure to enterprises which are not directly and individually concerned by a decision to be adequate in TWD Textilwerke Deggendorf. (22)
B - Second ground of appeal: breach of Article 190
27 Kruidvat submits that the judgment of the Court of First Instance is in breach of the general principle of law applicable to every court, which requires it to state the reasons on which its decisions are based, by indicating in particular the reasons which led it not to uphold complaints expressly raised before it. (23)
(i) Kruidvat's first argument: unexplained contradictions of case-law
28 Kruidvat argues that the Court of First Instance omitted to give reasons for inconsistencies between its judgment and three lines of case-law.
First, the judgment allegedly contradicts AITEC, in so far as it requires members of an association to have approved or solicited its intervention in administrative proceedings in order to be individually concerned by the resulting decision. (24)
Secondly, the Court of First Instance's statement that national legal proceedings give rise to a more remote connection with a Commission decision on a selective distribution network than refusal of admission to that network (25) is inconsistent with Metro v Cartier.
Thirdly, the Court of First Instance failed to take account of its earlier judgment in Métropole when concluding that Kruidvat was not differentiated from any other market operator. (26)
(ii) Kruidvat's second argument: other failures of reasoning
29 The Court of First Instance is alleged to have failed to express sufficient reasons for its conclusion that there were important differences between the positions of Kruidvat and the Raad FGB; (27)
to have failed to take account of Kruidvat's status as the `absolute number one' perfume retailer in the Netherlands in concluding that Kruidvat was not differentiated from other economic operators in the field; (28)
to have failed to respond to Kruidvat's arguments regarding the inadequacy of the preliminary ruling procedure to protect Kruidvat's rights in the framework of national proceedings regarding the network; (29)
and to have failed to address the effect of Directive 89/104/EEC on Kruidvat's continued ability to obtain supplies from outside the network, despite evidence having been offered on this point at the oral hearing. (30)
30 The Commission, Colipa and Givenchy all take the position that Kruidvat's arguments in respect of the second ground of appeal add nothing to the substantive arguments regarding its first ground of appeal.
IV - Analysis of Kruidvat's grounds of appeal
A - First ground of appeal: misinterpretation of Article 173
31 The decision of the Court in Plaumann v Commission (31) remains the starting point for an analysis of the question of whether persons other than the addressee of a decision are individually concerned by it within the meaning of Article 173 of the Treaty.
On the question of the scope of the words, `another person', the Court pronounced itself in favour of the `broadest interpretation'. (32)
It is clear that the right to bring an action under the conditions laid down in Article 173 is open to any natural or legal person. (33)
32 On the other hand, the Court's approach to the question of individual concern has remained consistent and comparatively strict, most particularly in respect of claims regarding the economic effects of decisions.
The Court stated in Plaumann, in a since much repeated formulation, that:
`Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.' (34)
33 This statement, as is pointed out by the Court of First instance at paragraph 62 of its judgment, remains settled law.
Merely being active in an affected market, even coupled with evidence of serious damage to economic interests, does not establish individual concern. Differentiation from all other persons remains necessary. (35)
I shall now examine the case-law on the differentiation of applicants before the Court and, latterly, the Court of First Instance by virtue of their direct or vicarious participation, as of right, in administrative proceedings leading to the adoption of a disputed decision.
This is with the immediate purpose of addressing Kruidvat's first argument, but is also essential to a response to its third argument in respect of this ground of appeal.
(i) Kruidvat's first argument: participation by association
34 The Court has progressively recognised the existence of individual concern or differentiation in respect of active participants in the administrative proceedings leading to the adoption of decisions in the fields of competition law, State aids and anti-dumping.
In Metro v Commission (`Metro I'), (36) the annulment action was held admissible once it was established that the applicant had made the initial complaint to the Commission, pursuant to Article 3(2)(b) of Regulation No 17, that led to the contested decision, had made written comments and had secured some modifications in the distribution system which it challenged and which continued to refuse to admit it.
The Court considered the application admissible for two closely related, but none the less distinct, reasons;
namely, that where natural or legal persons were entitled to make a complaint pursuant to Article 3(2) of Regulation No 17, it was both `in the interests of a satisfactory administration of justice and of the proper application of Articles 85 and 86' of the Treaty that such persons `be able, if their request is not complied with either wholly or in part, to institute proceedings to protect their legitimate interests'. (37) The Community has an interest in receiving the most accurate and precise information in the administrative proceedings leading to any decision by an institution, and that Community interest is in close harmony with the protection of the interests of persons capable of furnishing that information.
A person who plays a part in the decision-making process is so distinguished from other market participants as to have an individual concern in the decision.
35 It is well established that an association, in its capacity as the representative of a category of persons or undertakings, cannot be deemed to be individually concerned by a measure affecting the general interests of that category. (38)
However, it is clear that the Community interest in receiving full and accurate information during administrative procedures can be well served by the participation of associations of interested persons or undertakings.
Their right of participation in certain administrative procedures is expressly or implicitly recognised by Community legislation. (39)
In fact, the economy of the procedure may even be better served by the active participation of associations of traders or producers, in so far as these bodies may be better informed and equipped by knowledge and expertise to assist the Community institutions' inquiries, and pointless and wasteful duplication may, thus, be avoided. (40)
Such associations are recognised, through the extension of the reasoning in Metro I, as being individually concerned by Community acts which result from such administrative proceedings.
In Fediol, (41) the EEC Seed Crushers' and Oil Processors' Association had made a complaint, preliminary to an anti-dumping inquiry.
The Court stated that it was clear `that complainants must be acknowledged to have a right to bring an action where it is alleged that the Community authorities have disregarded rights which have been recognised specifically in [Regulation No 3017/79]', such as `the right to lodge a complaint [and] the right, which is inherent in the aforementioned right, to have that complaint considered by the Commission with proper care'. (42)
The Court considered that `in the spirit of the principles which lie behind Articles 164 and 173 of the Treaty, complainants have the right to avail themselves ... of a review by the Court appropriate to the nature of the powers reserved to the Community institutions on the subject'. (43)
It followed `that complainants may not be refused the right to put before the Court any matters which would facilitate a review as to whether the Commission has observed the procedural guarantees granted to complainants by Regulation No 3017/79'. (44)
It must, of course, be noted that in Fediol, the applicant in the annulment action and the complainant in the administrative procedure were the same body and the case did not, therefore, exhibit the divergence of identity and interest which arises in the present case.
36 The same may be said of Van der Kooy, the second in time of two pertinent cases concerning challenges to a Commission decision establishing that the natural-gas tariff operated by NV Nederlandse Gasunie, a private company 50% controlled by the Netherlands State, constituted unlawful State aid.
Landbouwschap was, first, the statutory body responsible for negotiating gas tariffs and contracts with Gasunie on behalf of growers' organisations and was one of the parties to those contracts;
secondly, it took an active part, in that capacity, in the administrative procedure under Article 93(2) of the Treaty.
Although Advocate General Sir Gordon Slynn argued that Landbouwschap did not need standing under Article 173 in order to defend its members' interests, because these could act on their own behalf as persons affected by the decision in question, the Court held that that decision was of direct and individual concern to it by reason of the combination of these two elements. (45)
37 In Timex v Council and Commission, (46) the Court addressed the position of an individual undertaking subsequent to the initiation of administrative proceedings in the anti-dumping field at the behest of an association of which it was a member.
Timex Corporation sought the annulment of an anti-dumping measure which was adopted pursuant to a complaint by the British Clock and Watch Manufacturers' Association, of which it was a member. However, it appeared that the association took action only after an earlier complaint by Timex had been rejected by the Commission because it came from only one manufacturer. The Court also accepted as evidence that the measure was of individual concern to Timex the facts that its views were heard during the administrative procedure, that the conduct of the procedure was largely determined by its observations and that the duty was fixed in the light of the effect of the dumping on Timex. (47)
The contested measure was, therefore, `based on the applicant's own situation'. (48) As a result, the principle established in Fediol regarding the protection of the procedural guarantees granted to complainants by Regulation No 3017/79 was applicable. (49)
38 The earlier of the two Dutch gas cases mentioned above was Cofaz, (50) which exemplified member companies of an association, which took part in the administrative procedure under Article 93(2) of the Treaty, successfully invoking the standing to bring an annulment application. The Court's judgment is unclear regarding the extent of the participation of the applicant undertakings in that procedure.
Both the judgment and the Opinion of Advocate General VerLoren van Themaat state that a trade association, the Syndicat Professionnel de l'Industrie des Engrais Azotés, made a complaint to the Commission regarding the preferential nature of the natural-gas tariff.
The association had as its object the defence of the interests of French manufacturers of nitrate fertilisers.
The Report for the Hearing records that all material steps in the administrative proceedings were taken by the association, although it also states, as does the judgment, that the association lodged the complaint `inter alia on behalf of the applicants'. (51)
Later the Court treats this simply as a complaint `lodged' by the applicants (52) and continues by stating that the applicants `complied with the Commission's request to submit their comments under Article 93(2)'.
The Advocate General, on the other hand, appears to impute any activity of that kind to the association.
Finally, although the applicants claimed that the Commission `kept in close contact' with them and `informed them of its decision even before it was notified in identical terms to the Netherlands Government', the only correspondence mentioned in the Report for the Hearing, the Opinion and the judgment is that between the Commission and the association.
The Court treats the notification of the decision as having been received by the applicants `through the Syndicat'. (53)
39 Despite the obscurity of these details, it is possible to reach certain conclusions regarding the reasoning of the Court in Cofaz, which is the case with the closest bearing on the present one.
Firstly, it cited Metro I, Fediol and Demo-Studio Schmidt, to which I have already referred, as showing that `where a regulation accords applicant undertakings procedural guarantees entitling them to request the Commission to find an infringement of Community rules, those undertakings should be able to institute proceedings in order to protect their legitimate interests'. (54)
Secondly, the Court added, assimilating the applicants' position to that of Timex, that `it was necessary to examine in that regard the part played by the undertaking in the administrative proceedings', (55) particularly as originator of the complaint and where it had expressed its views to the extent of having largely determined the course of the proceedings.
Thirdly, the Court applied its reasoning from Metro I, a competition case, and Timex, an anti-dumping case, both fields where procedural guarantees are governed by regulations, to an inquiry by the Commission under Article 93(2) of the Treaty, which `recognises in general terms that the undertakings concerned are entitled to submit their comments to the Commission but does not provide any further details'. (56)
This was subject to the proviso that the undertakings concerned experience a significant effect on their competitive position.
Fourthly, Cofaz, unlike Timex, had attributed to it the status of a complainant. (57)
40 For present purposes, I wish simply to examine, in the light of this case-law, the effect on the locus standi of undertakings of the participation of trade associations, of which those undertakings are members, in administrative proceedings, such as those under Regulation No 17, the anti-dumping and subsidies legislation, and Article 93(2) of the Treaty, leading to the adoption of contested decisions.
I will address below, in answer to Kruidvat's third argument, the question whether such direct or vicarious participation is necessary at all, in the light of that and subsequent case-law, in order for interested undertakings, who were entitled so to participate, to be entitled to challenge such decisions.
41 The evident administrative advantages of active participation by traders' associations or organisations, to which I have already referred, suggest that the Court should not require explicit participation by members of such bodies as a condition of the establishment of individual concern.
Such a requirement would defeat the purpose of procedural economy, by encouraging duplication of effort.
Where an association has clearly been acting on behalf of identified traders or producers, has used material provided by them, or has arranged for or permitted their attendance at meetings or otherwise involved them in the procedure, they should be considered to have participated.
In spite of some reservations expressed on the subject by Advocate General VerLoren van Themaat, (58) I do not think any basis exists for distinguishing between participants in the administrative proceedings depending on possession of the formal status of complainant. (59) Inquiry should be directed in either case to the existence of genuine participation.
42 Moreover, a generous interpretation of the term `another person' is enjoined by the first part of the Court's judgment in Plaumann.
In that case, the contested decision was addressed to a Member State and the Commission claimed it was not addressed to `another person'.
In the present appeal, the contested decision is incontestably addressed to another person, to wit Parfums Givenchy SA;
in that sense the instant appeal concerns the converse of Plaumann. However, the rationale given by the Court for adopting the `broadest interpretation' was that `provisions of the Treaty regarding the right of interested parties to bring an action must not be interpreted restrictively'. (60) Applying that principle to a case where a trader has relied on his trade association to protect his interests, I conclude that evidence of even only very slight involvement would suffice to show that a trader member had participated via the association so as to satisfy the test of individual concern in respect of any ensuing decision.
Kruidvat, however, goes further and says that it is unnecessary to demonstrate any involvement in or approval of the letter submitted in this case by the Raad FGB;
in effect, that mere membership of the Raad FGB suffices.
I do not agree. In so far as participation of some kind in administrative proceedings is required, in the absence of other points of differentiation of an applicant, I think some limit needs to be applied, if only to guard against the danger of abuse.
Mere membership of a national or multinational chamber of commerce, for example, might open the door so wide as to deprive the notion of `individual concern' of any meaning and to deprive Article 173 of its essential role of determining, in the interests of legal certainty, the scope of the right to judicial review.
43 This view is entirely consistent with the judgments of the Court in Timex and Cofaz and with that of the Court of First Instance in AITEC.
In Timex, Timex Corporation had made its own submissions as well as being clearly responsible for the trade association's complaint.
In Cofaz, the applicant undertakings were so closely linked with the complainant association as to be, it seems, assimilable to it.
44 In AITEC, the Court of First Instance observed that the applicant association had participated in an administrative procedure under Article 93(2) of the Treaty and had thereby `protected the interests of some of its members in accordance with the powers conferred on it by its statutes, without any objection from those members'. (61)
However, the Court of First Instance had already concluded that the members in question, who had been specifically mentioned in AITEC's submissions to the Commission, were, by virtue of that fact, individually concerned by the contested decision in question. (62)
The Court of First Instance apparently wished merely to establish that, in contrast to the general prohibition on trade associations bringing annulment actions in defence of the general, undifferentiated interests of their members, AITEC could be regarded as having substituted itself for certain of its members, who could themselves have brought an admissible action.
The possibility of such a collective action presented procedural advantages. (63)
The representation by a trade association of all its members, without objection on their part, in administrative proceedings cannot, however, differentiate the position of any particular member undertaking without some further individualising evidence, whether by way of a reference to that member in the association's submissions or of positive evidence of it having requested, approved of or assisted in the preparation and submission of the association's views.
45 In the light of these considerations, I believe that the Court of First Instance approached the evidence of Kruidvat's alleged participation in the Commission's deliberations through the intermediary of the Raad FGB in a spirit of generous interpretation, before concluding that `the link between the participation of the Raad FGB in the administrative procedure by its letter of 29 November 1991 and the individual situation of Kruidvat NV is not sufficient for the latter to be individually distinguished for the purpose of Article 173 of the Treaty in the context of' the contested Decision.
46 The essence of the reasoning of the Court of First Instance is found in paragraph 64:
`As regards the participation of the Raad FGB in the procedure under Article 19(3) of Regulation No 17 by virtue of its letter of 29 November 1991, although it has been established that one of Kruidvat's parent companies, namely Kruidvat NV, was a member of the Raad FGB at the time, there is nothing in the file to suggest that that letter was sent at the request of Kruidvat NV or that Kruidvat NV was involved in its preparation or authorised, or even had an influence on, its content.'
47 The facts as so found by the Court of First Instance do not disclose any element of genuine participation by Kruidvat.
The judgment under review considers both the position of Kruidvat, the applicant, i.e. the Belgian company, Kruidvat BVBA, and that of its Dutch parent company, Kruidvat NV.
However, its decision turns neither on the fact that not Kruidvat but its parent was a member of the Raad FGB, nor on the fact that Kruidvat is established in a different Member State from the Raad FGB. As it points out at paragraph 66 of its judgment, `[i]f the letter from the Raad FGB ... is not sufficient for Kruidvat NV to be individually distinguished, the same applies a fortiori to Kruidvat'.
Consequently, the arguments of Kruidvat concerning the fiscal motivation for its establishment in Belgium and the role of the Raad FGB in the defence of the interests of large retail chains in the Netherlands are irrelevant.
These points were not held against Kruidvat.
If it had been demonstrated that Kruidvat NV had been actively involved in assisting the Raad FGB, on behalf of its subsidiary, in the preparation of the letter of 29 November 1991, or otherwise associated with its being sent, different considerations would rightly have applied.
I would not like to lay down any strict rules for the degree of necessary involvement, since it is not necessary for this case, but I think that an applicant in a case such as the present should be able to produce some evidence that the traders' association was pursuing its interests either expressly or, at least, with its knowledge and approval.
48 As a second branch of its argument regarding the Raad FGB's submission, Kruidvat criticises paragraph 65 of the judgment under appeal, where the Court of First Instance notes `at least one significant difference between the view expressed by the Raad FGB in its letter of 29 November 1991 and that taken by Kruidvat in these proceedings ...'.
It claims that an association such as the Raad FGB has to balance the interests of its different members.
Firstly, it seems to me that the complete absence of any involvement in the administrative proceedings on behalf of Kruidvat or its parent, as summarised at paragraph 64 of the judgment, is the decisive element in the decision of the Court of First Instance.
Secondly, the reference in paragraph 65 to the divergence between the positions expressed by Kruidvat and the Raad FGB should, in my view, be understood as referring to further factual evidence of Kruidvat's lack of involvement, (64) and not as purporting to require total convergence between the views advanced by an association and those of all of the members it represents.
For what it is worth, I agree with the Commission, regarding the latter point, that such a convergence of views is not necessary, and I do not understand the Court of First Instance to have expressed a contrary position.
49 For these reasons, I would reject Kruidvat's first argument in respect of its first ground of appeal.
(ii) Kruidvat's second argument: the Copardis action
50 Kruidvat also argues for the existence of individual concern based on the existence, contemporaneously with the taking of the contested Decision, of the Copardis action. I think it is mistaken.
If Kruidvat is not distinguished by virtue of special and individual market effects, because it shares a fate with other actual or potential traders on the parallel market, the existence of pending litigation about its activity in the courts of a Member State does not alter that conclusion.
Kruidvat's reliance on the Advocate General's Opinion in Metro II is not sufficient to persuade me to take a contrary view.
At most, the Opinion refers to the view of the Commission on a hypothesis, namely contemporaneous litigation, which did not arise in the case.
There is nothing in the judgment in that case to support Kruidvat's case in this regard.
51 A decision approving a selective distribution network may place non-participants such as Kruidvat at a disadvantage commercially by reference to participants. Actions may conceivably be brought by the distributor or other parties to the network against any parallel trader such as Kruidvat.
Equally such traders may bring proceedings in the national courts claiming that the network is unlawful.
These are, however, mere incidents of the general relationship between those who are within and without the system.
Were they considered relevant, any third party could claim to establish individual concern in respect of a decision by the simple expedient of initiating an action in respect of the same subject-matter in a national court within the time-limit laid down by Article 173.
The Court of First Instance was also correct, in my view, to treat the coincidence of an action initiated against a trader by a party who benefits from or is responsible for the organisation of the network and the period for challenging a related decision as a matter of pure chance.
52 Such proceedings can be initiated by either side on the basis of a wide variety of national grounds of action, which may be more or less directly related to the subject-matter of the disputed decision.
As the Court observed in a similar context in Metro v Cartier, `the question of the validity of the contract under Article 85 of the Treaty arises in the form of a preliminary issue'. (65)
However, provided that the requirements of Community law are observed, it is for the national courts to determine how national law is applied.
Decisions on other preliminary issues, of an exclusively national character, may lead to the rejection of the action and, thus, preclude any inquiry into the validity, as a matter of Community law, of such contracts. (66)
This, indeed, was the fate of the Copardis action at first instance before the Rechtbank van Koophandel te Dendermonde.
Article 177 of the Treaty entrusts to national courts the discretion to decide when a ruling on the validity or interpretation of Community acts is necessary to enable them to give judgment in cases before them.
It would, thus, be illegitimate for the Court to attempt to determine, in the absence of a request for a preliminary ruling, when, or if, in the framework of an action in national law, a resolution of such questions is required.
Given the variety of legal and factual circumstances in which the subject-matter of a decision may come before the national courts, the mere fact that such a national action has been commenced need not give rise to the same individual concern with a decision on a selective distribution network as an outright rejection of an application to join such a network.
53 The extension to the parties to contemporaneous national actions of the quality of individual concern is not necessary, in any event, to enable those parties, where necessary, to challenge a relevant Community decision.
The national court can, where it considers it necessary, make a reference to the Court regarding the decision's validity. This is, in procedural terms, far more effective and more respectful of the interest in legal certainty than the automatic recognition of the individual concern of the parties to such actions, however remote the underlying national legal issues may be from the question of validity.
54 Kruidvat's argument is also difficult to reconcile with the Court's judgment in TWD Textilwerke Deggendorf.
The Court held that a person who has standing to seek the annulment of a Community decision before the Court of First Instance may not, where he has not commenced such an action, and where he was aware at the time of that decision, invoke the invalidity of that decision in national proceedings. (67)
It can hardly be an argument for the establishment of standing under Article 173 by reference to the existence of related contemporaneous national litigation that a party to that litigation, if he failed to commence proceedings in time before the Court of First Instance, would be precluded from raising the validity of the contested Decision before the national court seised of his case and from seeking a preliminary ruling on that issue.
This would have the result of forcing the parties to such actions to commence proceedings before the Court of First Instance if they felt that a determination of the validity of a Community decision were of even tangential or contingent relevance to their cases before the national courts.
This would be entirely inconsistent with the notion of procedural economy, and would be entirely unnecessary to the judicial protection of their rights.
55 Indirect support is provided for my view by the judgment of the Court in Stichting Greenpeace Council (Greenpeace International) and Others v Commission. (68)
In that case, the application for the annulment of certain Commission decisions granting funding for construction projects in Spain, on the basis that these projects would breach Community environmental law, was deemed inadmissible by the Court of First Instance, (69) and, on appeal, by the Court, for want of individual concern.
Certain of the applicants had also commenced national proceedings in Spain regarding the planning authorisations granted, and environmental impact statements made, in respect of the construction projects in question. (70)
The Court observed that these actions and the action commenced before the Court of First Instance had different subject-matter, but were based on the same rights derived from Community law.
It concluded that the applicants' rights were fully protected within the framework of the national actions, which could, if necessary, give rise to a request for a preliminary ruling under Article 177 of the Treaty. (71)
There was no suggestion that these national actions in the same domain could suffice to differentiate the applicants from all other interested persons in order to establish individual concern.
56 In conclusion, I would dismiss Kruidvat's second argument in respect of its first ground of appeal.
(iii) Kruidvat's third argument: faulty appraisal of competitive effects
57 I will first deal with Kruidvat's submission regarding the Belluco correspondence and will then address its more general arguments about the effect of the contested Decision on its position as trader in Givenchy products and as an interested third party within the meaning of Article 19(3) of Regulation No 17.
58 The Court of First Instance stated, as regards Belluco's letter to Kruidvat of 17 July 1992, that `there is no adequate proof that Givenchy or Copardis gave authority for it to be sent.
Nor is it a reply to an application by Kruidvat for admission to the Givenchy network'. (72) These are findings of fact, which may not be made the subject of appeal.
In any event, the threat of litigation should Kruidvat continue to trade in Givenchy products cannot individualise its position any more than the actual initiation of national proceedings by Copardis.
59 Kruidvat does not allege individual concern based on effects distinguishing it from all other market operators, as appears to be required by the test so consistently followed on the basis of the above-quoted passage from Plaumann.
Kruidvat is not in a different position from all other possible retailers of Givenchy products who are outside the selective distribution network.
Its reference to its own market importance is irrelevant.
So also is its reference to the likely effect of the implementation of Directive 89/104/EEC on its ability to obtain supplies outside the Community, because all traders outside the network will, if its prediction is correct, encounter the same difficulties.
However, Kruidvat relies on the judgments of the Court in Cook and Matra to establish an analogy between `parties concerned', who are, thus, entitled to be heard in the context of a Commission inquiry pursuant to Article 93(2) of the Treaty, and `interested third parties', who are entitled under Article 19(3) of Regulation No 17 to submit observations to the Commission in the context of an intended Commission decision to give negative clearance or to apply Article 85(3) of the Treaty, and concludes that those in the latter category may bring annulment actions.
This is, in my view, a misinterpretation of Cook and Matra.
60 In both Cook and Matra, the applicants had complained to the Commission of what they considered to be unlawful State aid. (73)
In both cases, the Commission declined to initiate the procedure under Article 93(2) of the Treaty, (74) but the applicants sought the annulment of the Commission decisions to that effect addressed to the Member States.
The Court noted that:
`[t]he preliminary stage of the procedure for reviewing aids under Article 93(3) of the Treaty, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 93(2) of the Treaty.
It is only in connection with the latter examination, which is designed to enable the Commission to be fully informed of all the facts of the case, that the Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments.' (75)
The Court added that:
`[w]here, without initiating the procedure under Article 93(2), the Commission finds, on the basis of Article 93(3), that an aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision by the Commission before the Court'. (76)
In these circumstances, the Court did not limit locus standi for such an action to persons who had made some sort of unilateral complaint or intervention;
it recalled that the parties concerned, within the meaning of Article 93(2), are `the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations'. (77)
61 It is evident from the wide category of persons who may have locus standi as a result of the Court's judgments in those cases, as well as from the Court's references both to the limited circumstances in which persons must be notified to submit comments to the Commission, and to Court action being the only recourse of the parties concerned in the absence of such a procedure, that the Court considered a participation-based approach to individual concern to afford insufficient protection of such persons' procedural rights under Article 93(2) of the Treaty.
Such persons would not normally know that the preliminary examination of the aid was taking place until after it was concluded. (78) The Article 93(2) procedure, including the soliciting of observations from the parties concerned, is obligatory whenever the Commission has serious difficulties in deciding whether an aid is compatible with the common market, so that such parties are entitled to ensure that the decision not to initiate such an inquiry is properly taken. (79)
62 In the light of these factors, there is no true analogy with a case such as the present, where there has been an application, an invitation for submissions and a decision on the substance.
Interested parties, including Kruidvat, had an opportunity to exercise their right to make their views known to the Commission.
An appropriate balance can, therefore, be drawn between their interests and those of the Commission and of the addressee of the contested Decision in legal certainty, as Colipa suggested, by deeming only those who availed of that opportunity to be individually concerned by, and, thus, to have standing to challenge, the Decision.
63 Kruidvat also relies upon the judgment of the Court of First Instance in Métropole.
In that case, the Court of First Instance had to consider the standing of two television companies to apply for the annulment of a Commission decision, addressed to the European Broadcasting Union (EBU), applying Article 85(3) of the Treaty to the Eurovision system of allocating television rights to sporting events.
The application of one of those companies, Antena 3, to join the EBU had been rejected before the decision was adopted.
This was regarded by the Court of First Instance as confirming its capacity to bring proceedings. (80)
The other company, RTI, attended the Commission's hearings but did not submit any written submissions or adopt a specific position.
The Court of First Instance stated, however, that `[t]he procedural right provided for by Article 19(3) of Regulation No 17 is not subject to any condition relating to the manner of its exercise'. (81)
64 These findings were presented by the Court of First Instance as being merely complementary, however, to a more general proposition regarding the standing of both companies.
Both companies were interested third parties within the meaning of Article 19(3) of Regulation No 17, and were thus entitled to be associated by the Commission with the administrative procedure for the adoption of the disputed decision.
`In that same capacity, [Antena 3] has to be regarded as being individually concerned by the Decision within the meaning of Article 173 of the Treaty.' (82)
The Court of First Instance continued as follows:
`No argument to the contrary can be derived from the fact that Antena 3 did not avail itself in this case of its procedural rights under Article 19(3) of Regulation No 17 and did not make written or oral observations during the administrative procedure for the adoption of the Decision. If the capacity to bring proceedings of specified third parties who enjoy procedural rights in the administrative procedure were made subject to their actually taking part in that procedure, this would be tantamount to introducing an additional condition of admissibility in the form of a compulsory pre-litigation procedure, which is not provided for in Article 173 of the Treaty.' (83)
65 The Court of First Instance cited in support of this latter statement its judgments in two related cases, CCE de la Société Générale des Grandes Sources and Others v Commission (84) and CCE de Vittel and Others v Commission. (85)
In those cases, the Court of First Instance adopted the same approach as that just quoted in respect of the non-participation of recognised employee-representative associations in the administrative procedure regarding a proposed concentration under Regulation No 4064/89. Article 18(4) of that Regulation expressly refers to the right of such representatives to be heard when the Commission draws up the economic balance for the concentration in question, which may, in some circumstances, entail considerations of a social nature; that right to be heard, the Court of First Instance stated, `manifests an intention to ensure that the collective interests of those employees are taken into consideration in the administrative procedure'. (86)
66 I am not called upon to give my view of the correctness of those decisions of the Court of First Instance. Furthermore, the decision in Métropole is itself the subject-matter of a pending appeal before the Court. (87) It is not consonant with the proper administration of justice and, in particular, the respect for the right to a fair hearing of parties to pending cases, that the Court should comment explicitly in advance on the correctness of decisions of the Court of First Instance in such circumstances.
In any event, the facts of Métropole, Grandes Sources and Vittel, and the legislative background of the latter two cases, are sufficiently different that the general propositions applied in those cases may not be easily transposable to the facts of the present case.
67 I prefer simply to outline directly my view on the proper application to an interested third party in Kruidvat's position of the Court's case-law on Article 173, particularly that regarding persons with procedural rights in the administrative procedure leading to the taking of decisions.
I have already stated my view that the Court's decisions in Cook and Matra are of no assistance to Kruidvat.
The Court's judgment in Plaumann establishes that a person who is affected by a decision by virtue of pursuing an activity in the market in question, that is to say, by reason of a commercial activity which may at any time be practised by any person and is not, therefore, such as to distinguish that person in relation to the decision as in the case of an addressee, is not individually concerned by that decision. (88)
Such persons will, however, normally be interested third parties within the meaning of Article 19(3) of Regulation No 17, as Kruidvat was in the present case.
I agree with Advocate General Jacobs' view, expressed in his Opinion in Extramet, that the cases on participation in administrative proceedings - the Metro cases, Demo-Studio Schmidt, Cofaz and Timex - establish that solely the fact of such participation, rather than the capacity or entitlement so to participate, enables undertakings to satisfy the criterion of individual concern which otherwise would not do so, because they are in practical terms no more immediately affected by the contested measures than others in the same business. (89) Advocate General Lenz also provided a useful insight in his Opinion in CIRFS, stating that an undertaking's participation in and influence on administrative proceedings results in the ensuing decision being treated as a case of the application of the relevant competition rules to that undertaking. (90)
68 The essence of Kruidvat's third argument is that the selective distribution network makes it more difficult to obtain supplies.
If so it is in the same position as any interested trader who is not a member of the network.
That argument cannot succeed without a major qualification, amounting to a reversal, of the Plaumann decision, which is not warranted by the Court's subsequent case-law.
I see no reason to advise such a course in the present case.
69 Thus, I would dismiss Kruidvat's third argument in respect of its first ground of appeal.
(iv) Kruidvat's fourth argument: lack of adequate judicial protection
70 It is worthwhile, for the purposes of any discussion of effective judicial protection, to quote the Court's general statement on the subject in Les Verts v Parliament: (91)
`[T]he European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.
In particular, in Articles 173 and 184, on the one hand, and in Article 177, on the other, the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of the measures adopted by the institutions.'
71 Kruidvat relies heavily, in support of its fourth argument, on the Opinion of Advocate General Jacobs in Extramet.
Advocate General Jacobs pointed out some of the drawbacks of the preliminary reference procedure as an alternative to a direct action before the Court in an anti-dumping context.
He adverted to the lack of expertise on the part of national courts in respect of this specialised subject-matter, and to a likely consequent lack of uniformity, to the confinement of preliminary references to specific points, to the potential for an overly general reference to be made, to the costs and delays involved, to substantive and territorial restraints on the grant of interim measures and to the more limited exchange of pleadings in Article 177 proceedings. (92)
72 It is important to note that Advocate General Jacobs made these observations in response to an argument that the existence of remedies before national courts, including the possibility of a reference under Article 177 of the Treaty, should exclude the possibility of direct recourse to the Court under Article 173. (93)
This is, as it were, the converse of the argument submitted by Kruidvat in respect of the Copardis action.
Advocate General Jacobs was, in my view, correct to conclude, as Advocate General Reischl did in Roquette Frères v Council (94) and the Court of First Instance did in Air France, (95) that the availability of the action for annulment under Article 173 does not depend on the absence of alternative means of redress in the national courts of the Member States. (96)
73 The imperfections of the Article 177 procedure, which I acknowledge, do not require that the possibility of an action before the national courts in respect of the validity of a Community decision should always be paralleled by the possibility of an action for annulment under Article 173.
This would run contrary to procedural economy and to the logic of the establishment of two distinct procedures;
to the restriction of standing under Article 173, in the interests of legal certainty, to persons directly and individually concerned by decisions not addressed to them;
and to the reasoning of the Court in TWD Textilwerke Deggendorf, which excluded for most purposes the possibility of such parallelism. (97)
In the passage from Les Verts v Parliament quoted above, the Court indicated that the preliminary ruling and annulment procedures were the two sides of a dual system of legal protection established by the Treaty itself.
It is not permissible for the Court, whose duty it is to interpret and apply the Community's constitutional charter, to question that fundamental choice as to the dual means of judicial protection.
74 In any event, while the potential problems raised by Advocate General Jacobs are inherent in the preliminary reference procedure, they can be addressed through loyal and conscientious cooperation between the Court and the national courts.
It should not be forgotten that the Commission may also be called upon by the national courts to assist them in complex areas such as competition law. (98)
There is no evidence in the present case that Kruidvat has been denied effective judicial protection, either in the framework of the existing proceedings initiated by Copardis or through the denial of possible recourse to its national courts, in order to seek to establish the unlawful character of the network and the invalidity of the contested Decision.
The judgment of the Court in Greenpeace implies that it will consider an expansion of the normal personal scope of Article 173 only where it is established in concrete cases that full judicial protection has been denied by, or cannot be secured by, the national courts. (99)
75 For these reasons, I would reject Kruidvat's fourth argument in respect of its first ground of appeal.
B - Second ground of appeal: breach of Article 190
76 In the light of my conclusions regarding Kruidvat's substantive arguments on the first ground of appeal, this ground of appeal must also fail, in my view.
The judgment of the Court of First Instance does not contradict the judgments in AITEC and Metro v Cartier.
As its decision regarding admissibility was correct and clearly consistent with the Court's case-law, there was no need for the Court of First Instance to advert to Métropole.
The Court of First Instance substantiated its position regarding the differences between the Raad FGB and Kruidvat by quoting from the former's submission to the Commission.
Kruidvat's market share and the effect of Directive 89/104/EEC were both irrelevant, and there was no evidence suggesting that the preliminary ruling procedure, allied with the possibility of recourse to national courts, failed adequately to protect Kruidvat's rights.
77 I would therefore dismiss Kruidvat's second ground of appeal.
V - Conclusion
78 In the light of the foregoing, I propose that the Court should:
(1) Dismiss the appeal in its entirety, and (2) Order the appellant to pay the costs.
(1) - Case T-87/92 Kruidvat v Commission [1996] ECR II-1931, hereinafter `Kruidvat'.
(2) - OJ 1992 L 236, p. 11.
(3) - OJ, English Special Edition 1959-62 (I), p. 87, hereinafter `Regulation No 17'.
(4) - In the discussion which follows, I refer occasionally to applicants' locus standi or standing.
This should not, of course, be understood as suggesting that resolution of the problem of individual concern, which is central to the question of standing in this case, dispenses with the need to satisfy the other conditions in Article 173, viz. the existence of a decision which can be challenged which directly concerns the applicant.
(5) - Kruidvat, paragraph 63.
(6) - Paragraphs 64 to 66.
(7) - Paragraphs 69 to 71.
See Case C-226/94 Grand Garage Albigeois and Others v Garage Massol [1996] ECR I-651; Case C-309/94 Nissan France and Others v Dupasquier and Others [1996] ECR I-677.
(8) - Paragraphs 72 to 74.
(9) - Paragraph 76.
(10) - Paragraph 75.
(11) - Joined Cases T-447/93 to T-449/93 [1995] ECR II-1971, paragraph 62, hereinafter `AITEC'.
(12) - Article 51, EC Statute of the Court of Justice.
(13) - Case C-53/92 Hilti v Commission [1994] ECR I-667, paragraphs 10 and 43;
Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 48.
For a recent application of this principle, see order in Case C-55/97 P AIUFFASS and Others v Commission [1997] ECR I-5383.
(14) - Case 75/84 [1986] ECR 3021.
(15) - Case C-376/92 [1994] ECR I-15, paragraph 24, hereinafter `Metro v Cartier'.
(16) - Case C-198/91 Cook v Commission [1993] ECR I-2487, hereinafter `Cook', paragraph 24;
Case C-225/91 Matra v Commission [1993] ECR I-3203, hereinafter `Matra', paragraph 18.
(17) - OJ 1989 L 40, p. 1.
(18) - See the Opinion of Advocate General Jacobs of 29 January 1998 in Case C-355/96 Silhouette International Schmied v Hartlauer Handelsgesellschaft.
(19) - Joined Cases T-528/93, T-542/93, T-543/93 and T-546/93 Métropole Télévision v Commission [1996] ECR II-649, hereinafter `Métropole'.
(20) - Case 169/84 Cofaz v Commission [1986] ECR 391, hereinafter `Cofaz'.
(21) - Case C-358/89 [1991] ECR I-2501, paragraphs 73 and 74, hereinafter `Extramet'.
(22) - Case C-188/92 [1994] ECR I-833.
(23) - See Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 29.
(24) - Kruidvat, paragraphs 64 and 76.
(25) - Kruidvat, paragraphs 73 and 74.
(26) - Kruidvat, paragraphs 69 and 70.
(27) - Paragraph 65.
(28) - Paragraphs 1 and 70.
(29) - Paragraph 75.
(30) - Paragraph 71.
(31) - Case 25/62 Plaumann v Commission [1963] ECR 95, hereinafter `Plaumann'.
(32) - Page 107 of the judgment.
(33) - This can include associations which do not have legal personality, as in Case 191/82 Fediol v Commission [1983] ECR 2913, hereinafter `Fediol';
this problem is overcome through application of `a theory based on the reality of the organisation's position or on its functions', per Advocate General Rozès, p. 2939 of her Opinion.
See also Case 135/81 Groupement des Agences de Voyages v Commission [1982] ECR 3799, paragraphs 8 to 11.
(34) - Ibid.
(35) - See, for example, Joined Cases 10/68 and 18/68 Eridania v Commission [1969] ECR 459;
Case 206/87 Lefebvre Frère et Soeur v Commission [1989] ECR 275.
(36) - Case 26/76 [1977] ECR 1875.
See also Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045, hereinafter `Demo-Studio Schmidt', paragraphs 14 and 15, and Metro II, paragraph 22.
(37) - Ibid., paragraph 13, emphasis added.
(38) - Joined Cases 16/62 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, p. 479;
Case 250/81 Greek Canners' Association v Commission [1982] ECR 3535.
(39) - The right of `any association not having legal personality, acting on behalf of a Community industry which considers itself injured or threatened by dumped or subsidised imports' to lodge a written complaint to the Commission was recognised by Council Regulation (EEC) No 459/68 of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community, OJ, English Special Edition 1968 (I), p. 80, now replaced by Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community, OJ 1988 L 209, p. 1.
The exercise of that entitlement, as then set out in Article 5(1) of Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidised imports from countries not members of the European Economic Community, OJ 1979 L 339, p. 1, underlies the decision of the Court in Fediol, discussed immediately below. Associations are implicitly recognised as entitled to instigate or participate in administrative proceedings under Regulation No 17 due to their status as `natural or legal persons who claim a legitimate interest' under Article 3(2)(b) or as `interested third parties' under Article 19(3).
(40) - See the Opinion of Advocate General Sir Gordon Slynn in Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, hereinafter `Van der Kooy', p. 246, and paragraph 60 in AITEC.
(41) - Cited above.
(42) - Paragraph 28, emphasis added.
See further, regarding rights to have an administrative proceeding initiated, the discussion below of Cook and Matra.
(43) - Ibid., paragraph 29.
(44) - Ibid., paragraph 30.
(45) - For another example of the standing of complainant associations in the field of State aids to bring actions themselves under Article 173, see Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, hereinafter `CIRFS', paragraphs 29 and 30.
(46) - Case 264/82 [1985] ECR 849, hereinafter `Timex'.
(47) - Ibid., paragraphs 13 to 15.
(48) - Ibid., paragraph 15.
(49) - Ibid., paragraph 16.
(50) - Cited above.
(51) - Ibid., paragraph 3.
(52) - Ibid., paragraph 26.
(53) - Ibid., paragraph 9.
(54) - Ibid., paragraph 23.
(55) - Ibid., paragraph 24.
(56) - Ibid., paragraph 25.
The same reasoning, as further developed in Cook and Matra, has since been extended by the Court of First Instance to the field of concentrations governed by Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, OJ 1989 L 395, p. 1, in Case T-3/93 Air France v Commission [1994] ECR II-121, hereinafter `Air France',
paragraph 81, although it appears, exceptionally, to have been applied in that case to the identification of direct rather than individual concern.
(57) - This was evidently also the view of the Advocate General.
Although he cautioned against extending locus standi beyond `interested third parties who have submitted a complaint', he considered the applicants to have fulfilled this criterion;
pp. 405 and 407 of the Opinion. See also the observation by the Court of First Instance in AITEC, cited above, paragraph 59, that certain undertakings whose competitive position was mentioned in the submissions of their trade associations within the framework of an administrative procedure under Article 93(2) of the Treaty, without any objection on their part, `took part in the administrative procedure through the intermediary of Confindustria and AITEC'.
(58) - Cofaz, cited above, p. 405 of his Opinion.
(59) - This also follows from the Court's judgment in Timex and from that of the Court of First Instance in AITEC.
(60) - Page 107.
(61) - Cited above, paragraph 62, emphasis added.
(62) - Ibid., paragraphs 58 and 59.
(63) - Ibid., paragraph 60.
(64) - It will be recalled that I view Kruidvat's challenge to the Court of First Instance's finding regarding that divergence as inadmissible for the same reason.
(65) - Cited above, paragraph 24.
(66) - This may even be the avowed policy of the national courts:
see, for example, the comments of Henchy J. in the Irish Supreme Court in Doyle v An Taoiseach [1986] Irish Law Reports Monthly 693, and the decision of that Court in Attorney General v X [1992] 1 Irish Reports 1;
[1992] Irish Law Reports Monthly 401.
(67) - Paragraphs 17, 18 and 24.
(68) - Case C-321/95 P [1998] ECR I-0000.
(69) - Case T-585/93 [1995] ECR II-2205.
(70) - Paragraph 32 of the judgment of the Court.
(71) - Ibid., paragraph 33.
(72) - Kruidvat, paragraph 76.
(73) - Cook, paragraph 6;
Matra, paragraph 4.
(74) - Cook, paragraph 8;
Matra, paragraph 5.
(75) - Cook, paragraph 22, emphasis added;
see also Matra, paragraph 16.
(76) - Cook, paragraph 23, emphasis added;
see also Matra, paragraph 17.
(77) - Cook, paragraph 24;
Matra, paragraph 18;
see Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16.
(78) - See the Opinion of Advocate General Tesauro in Cook, paragraph 43.
(79) - Cook, paragraph 29;
see Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13.
(80) - Paragraph 63.
The Court of First Instance cited Metro I, paragraph 13, and Metro II, paragraphs 18 to 23.
(81) - Paragraph 76, emphasis added.
It is not entirely clear whether the Court of First Instance, in this passage, was expressing the view that attendance at Commission hearings without taking a position constitutes a form of participation, giving rise to standing pursuant to the line of cases commencing with Metro I, or was referring to its previously expressed view, that the mere status of being an interested third party, without more, gives rise to standing.
It should also be noted that RTI's parent company submitted critical observations, at the Commission's invitation, before the notification of the Commission's intention to take a decision under Article 85(3) of the Treaty on the rules notified to it by the EBU.
(82) - Paragraph 61, in respect of Antena 3;
referred to at paragraph 75 in respect of RTI.
The Court of First Instance cited Cook, paragraphs 24 to 26;
Matra, paragraphs 18 to 20;
and the order in Case C-295/92 Landbouwschap v Commission [1992] ECR I-5003, paragraph 12.
(83) - Paragraph 62.
(84) - Case T-96/92 [1995] ECR II-1213, hereinafter `Grandes Sources', paragraphs 35 and 36.
(85) - Case T-12/93 [1995] ECR II-1247, hereinafter `Vittel', paragraphs 46 and 47.
(86) - Grandes Sources, paragraph 29;
Vittel, paragraph 39.
(87) - Case C-320/96 P.
The written procedure has not yet been concluded.
The appeal has been brought by the EBU, which had intervened before the Court of First Instance in support of the Commission only in respect of an application by a company other than Antena 3 or RTI for the annulment of the disputed Commission decision.
Thus, it does not raise the question of admissibility, but the Commission discusses it in its pleadings on the basis that the issue may be raised by the Court of its own motion.
(88) - P. 107.
(89) - Paragraph 63.
(90) - Paragraph 88.
(91) - Case 294/83 [1986] ECR 1339, paragraph 23.
(92) - Paragraphs 72 to 74.
See also the comments of Advocate General Reischl in Metro I, p. 1923, and of Advocate General VerLoren van Themaat in Cofaz, p. 403.
(93) - Paragraph 69.
(94) - Case 138/79 [1980] ECR 3333, p. 3367.
(95) - Paragraph 69.
(96) - Paragraph 70 of the Opinion of Advocate General Jacobs.
(97) - The Court did acknowledge that it would be permissible to proceed with simultaneous actions commenced within the applicable time-limits, referring, at paragraph 19, to Joined Cases 133/85 to 136/85 Rau v BALM [1987] ECR 2289.
(98) - Case C-234/89 Delimitis [1991] ECR I-935, paragraph 53;
see also Case C-2/88 Imm. Zwartveld and Others [1990] ECR I-3365, paragraph 18;
Case T-83/96 Van der Wal v Commission [1998] ECR II-0000.
See also Commission Notice 93/C 39/05 on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty, OJ 1993 C 39, p. 6, in particular paragraphs 33 to 42, and paragraph 16 regarding the advantages presented by national proceedings, including, for example, the possibilities of compensation for loss and of combining Community-law and national-law issues.
(99) - Paragraph 33.