62008CO0159_EN
Parties
Grounds
Operative part
Parties
In Case C‑159/08 P,
APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 16 April 2008,
Isabella Scippacercola,
Ioannis Terezakis,
residing in Brussels (Belgium), represented by B. Lombart, avocat,
appellants,
the other party to the proceedings being:
Commission of the European Communities, represented by T. Christoforou, V. Di Bucci and F. Ronkes Agerbeek, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of M. Ilešič, President of the Chamber, A. Tizzano and J.‑J. Kasel (Rapporteur), Judges,
Advocate General: Y. Bot,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By their appeal, Mrs Scippacercola and Mr Terezakis seek to have set aside the judgment of the Court of First Instance of the European Communities of 16 January 2008 in Case T‑306/05 Scippacercola and Terezakis
v Commission, not yet published in the ECR (‘the judgment under appeal’), whereby the Court of First Instance dismissed their application for annulment in part of the Commission’s decision of 2 May 2005 pursuant to Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18), rejecting complaint No COMP/D3/38469 concerning the levy of certain charges by the operator of Athens International Airport at Spata and by Olympic Fuel Company (‘the decision at issue’).
Facts of the case
2. The facts of the case are set out at paragraphs 16 to 51 of the judgment under appeal, as follows:
‘16 On 5 July 2002, Mr Koeune, acting on behalf of “a number of [Athens International] airport [hereinafter ‘Athens Airport’] users”, lodged a complaint with the Commission [of the European Communities] Directorate General (DG) for Competition, which was registered as Case COMP/D3/38469. The complaint, based on Articles 82 EC and 86 EC, challenged, inter alia, the [departure tax, “the Spatosimo”] imposed by Law No 2065/1992 [FEK A’ 113] and claimed that certain charges imposed on air companies and passengers by [Athens International Airport SA (“AIA”)] were excessive.
17 By letter of 28 August 2002, the Commission acknowledged receipt of the complaint and asked Mr Koeune, inter alia, to produce the power of attorney of the Athens Airport users on whose behalf he had lodged the complaint.
18 By letter of 4 October 2002, Mr Koeune informed the Commission that the powers of attorney in question would be sent separately by registered courier. In addition, he claimed that the Spatosimo was discriminatory.
19 By letter of 28 November 2002, the Commission informed Mr Koeune that the group of Athens Airport users on whose behalf the complaint had been lodged had not yet been clearly identified, and that it had not yet received the powers of attorney requested. The letter also stated, by way of an initial position within the meaning of the judgment of the Court of First Instance in Case T‑64/89 Automec
v Commission
[1990] ECR II‑367, paragraphs 45 to 47, that Articles 81 EC and 82 EC did not apply to the charges complained of as the charges were akin to taxes imposed by a Member State and those Treaty provisions applied only to the conduct of undertakings.
20 By letter to the Commission of 24 December 2002, Mrs Scippacercola, an individual user of Athens Airport, identified herself as one of the persons on whose behalf the complaint of 5 July 2002 had been lodged, and attached the power of attorney in favour of Mr Koeune. In the same letter, Mrs Scippacercola opposed the initial position taken by the Commission in its letter of 28 November 2002.
21 By letter of 29 January 2003, Mrs Scippacercola formally requested the Commission, pursuant to Article 232 EC, to adopt a decision regarding the infringement of Articles 86 EC and 82 EC consisting in the airport’s exclusive rights and the excessive charges imposed by it; the infringement of Article 87 EC consisting in the State aid granted to Athens Airport; and the opening of a procedure under Article 226 EC against the Greek Government in respect of the Spatosimo.
22 By letter of 10 February 2003, the Commission informed Mrs Scippacercola that only the first aspect of her formal request relating to the alleged infringements of Articles 86 EC and 82 EC fell within the competence of the DG for Competition and that the two other aspects had been communicated to the DG for Energy and Transport. The letter stated that the DG for Competition would respond to the aspect that fell within its competence by 29 March 2003.
23 By letter of 18 February 2003, Mrs Scippacercola provided the Commission with further information in relation in particular to the security charge and to the passenger terminal facilities charge. The letter stated also that “all charges except [the Spatosimo] imposed on passengers and on air companies [were] fixed by the [Athens] airport administration”.
24 By letter of 26 February 2003, Mrs Scippacercola pointed out that the complaint of 5 July 2002 and the letters of 24 December 2002 and 18 February 2003 concerned not only the Spatosimo but also the other charges imposed on passengers and air companies by AIA.
25 By letter to Mrs Scippacercola of 28 February 2003, the Commission’s DG for Energy and Transport stated that, following a modification to Law No 2065/92 by Law No 2892/2001, the Spatosimo was no longer discriminatory since it had been fixed at EUR 12 for all destinations within the European Union.
26 By letter to Mrs Scippacercola of 19 March 2003, the DG for Competition announced, after observing that the Spatosimo had been fixed at EUR 12 for all destinations within the [European Economic Area], that it intended to take no further action on the complaint in so far as it related in particular to the excessive nature of that tax, since it did not concern the conduct of an undertaking for the purposes of Articles 81 EC and 82 EC. So far as the other charges at issue in the complaint and, in particular, the security charge, were concerned, the Commission claimed that Mrs Scippacercola had not shown that she had a legitimate interest within the meaning of Article 3(2) of [Council] Regulation No 17 [of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-62, p. 87)].
27 By letter of 12 April 2003, Mrs Scippacercola asked the Commission to undertake an in-depth examination of the airport charges in the light of the definition of excessive prices adopted by the Court of Justice in Case 27/76 United Brands
v Commission
[1978] ECR 207.
28 By letter of 26 May 2003, the Commission informed Mrs Scippacercola of its decision of 22 May 2003 not to take further action on the complaint of 5 July 2002 in so far as it related to practices attributable to the Greek State, namely the Spatosimo.
29 By a further letter of 26 May 2003, the Commission informed Mrs Scippacercola that the practices criticised in the complaint of 5 July 2002 which had been attributed to AIA did not appear to fall within the scope of Article 82 EC or to justify the opening of an inquiry.
30 By letter of 12 June 2003, Mrs Scippacercola provided the Commission with further information concerning the charges levied by AIA and reiterated her view that those tariff practices fell within the scope of Article 82 EC.
31 By letter of 15 October 2003, the Commission informed Mrs Scippacercola that it maintained its assessment of AIA’s tariff practices that had been set out in its letter of 26 May 2003, and announced that a letter would be sent pursuant to Article 6 of [Commission] Regulation [(EC)] No 2842/98 [of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18)].
32 By letter of 27 November 2003, Mr Terezakis, also an individual user of Athens Airport, lodged a complaint at the Commission’s Secretariat-General concerning (1) the abusive use of subsidies granted by the Cohesion Fund for the construction of Athens Airport; (2) the excessive charges applied by AIA in the light of the judgment in United Brands
v Commission ; and (3) the incompatibility of the Spatosimo with Community law.
33 By letter of 23 February 2004, the Commission informed Mr Terezakis that “[his] complaint [had] been registered under reference number 2004/4134, SG(2004) A/1724”.
34 By letter to Mrs Scippacercola of 25 March 2004 pursuant to Article 6 of Regulation No 2842/98, the Commission announced its intention to take no further action on the complaint of 5 July 2002.
35 By letters of 8 April and 5 May 2004, Mrs Scippacercola requested the Commission to reconsider its provisional position regarding the complaint, and in particular in relation to the security charge, the passenger terminal facilities charge and the charge for parking cars at [Athens] airport. The letter of 5 May 2004, which was also signed by Mr Christofidis, also formally requested the Commission, pursuant to Article 232 EC, to take a formal decision within one month from the date of receipt of the letter.
36 By letters of 8 May 2004, Mrs Scippacercola and Mr Christofidis informed the Commission that it was being requested to take a decision on the complaint of 5 July 2002 within two months.
37 By letter of 28 June 2004, Mrs Scippacercola sent the Commission further information on the construction and operation of Athens Airport, concerning the costs and profits relating in particular to the security and car parking arrangements.
38 By letter of 2 July 2004, the Commission informed Mrs Scippacercola and Mr Christofidis that, in the light of the information provided in their letters of 5 and 8 May 2004, it had decided to carry out further investigation by addressing requests for information, in particular, to the Greek authorities and to AIA.
39 By letter of 15 July 2004, Mrs Scippacercola sent the Commission new information concerning the costs and profits in relation, in particular, to the security and car parking arrangements, to enable the Commission to assess the excessive nature of the charges imposed by AIA.
40 AIA replied to the Commission’s request for information by letter of 27 August 2004 and provided further information by letters of 27 September and 11 October 2004.
41 The Commission informed Mrs Scippacercola by letter of 5 October 2004 that it had received the replies to the requests for information referred to in paragraph 38 above.
42 By letter of 22 October 2004, Mrs Scippacercola and Mr Christofidis referred to certain matters already included in their letters of 5 May and 15 July 2004. That letter, and also Mr Christofidis’s letter of 26 October 2004, requested the Commission to make further enquiries about the costs incurred by AIA for the construction of Athens Airport.
43 By letter of 12 January 2005, the Commission informed Mrs Scippacercola and Mr Christofidis, in accordance with Article 7(1) of Regulation No 773/2004, of its intention to reject the complaint of 5 July 2002. They were asked to submit any comments within one month from the date of receipt of the letter.
44 By letter of 13 January 2005, Mr Terezakis informed the Commission that he was joining in the complaint of 5 July 2002 made by Mr Christofidis and Mrs Scippacercola, and reminded the Commission that it had not responded to his own complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003.
45 By letter of 26 January 2005 referring to the complaint of 5 July 2002 and to complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003, Mr Christofidis, Mrs Scippacercola and Mr Terezakis submitted their comments to the Commission in response to the letter of 12 January 2005. They invited the Commission to reconsider its position and to carry out an in-depth investigation. They formally requested the Commission, pursuant to Article 232 EC, to take a final decision within two months.
46 By letter of 21 February 2005, the Commission informed Mr Terezakis that he could not “join” in the complaint of 5 July 2002 made by Mrs Scippacercola and Mr Christofidis, as no such procedure was provided for in [Council] Regulation [EC] No 1/2003 [of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)] and Regulation No 773/2004. The Commission also stated that the information about Athens Airport which he had supplied on 27 November 2003 was not regarded as a formal complaint, because he had submitted it in his capacity as a Commission official using the Commission’s letterhead, by email and internal mail.
47 By a further letter of 21 February 2005, the Commission informed Mrs Scippacercola and Mr Christofidis that it would not be in a position to adopt a final decision on the complaint of 5 July 2002 within the two months referred to in the letter of 26 January 2005. It announced that a final decision would be taken as soon as was reasonably possible.
48 By letter to the Commission of 4 March 2005, Mr Terezakis stated that he had never asked for authorisation to join in the complaint of 5 July 2002. He explained that, by his letter of 13 January 2005, he had wished to inform the Commission of its obligation to acknowledge receipt of the fax and letters that were mentioned in his letter. He maintained, furthermore, that he was one of the “users” on whose behalf the complaint of 5 July 2002 had been launched by Mr Koeune, and that it was in his capacity as a European citizen and frequent flyer that he had supplied information on Athens Airport. He noted that the Secretariat-General of the Commission had, moreover, registered his complaint of 27 November 2003.
49 By letter of 24 March 2005, Mrs Scippacercola, together with Mr Christofidis and Mr Terezakis, formally requested the Commission, pursuant to Article 232 EC, to take a final decision on the complaint of 5 July 2002 by 25 May 2005, stating that, in the absence of a decision by that date, they would bring actions based on Articles 232 EC and 288 EC.
…
50 On 2 May 2005, the Commission adopted [the decision at issue]. [That] decision was notified to the persons to whom it was addressed, Mrs Scippacercola and Mr Christofidis. Mrs Scippacercola received notification of the … decision [at issue] on 31 May 2005.
51 In the decision [at issue], the Commission examined the various charges disputed by the complainants, namely the passenger security charge, the passenger terminal facilities charge, the charges for supplying aviation fuel and for aircraft parking, and the [Athens] airport parking charge. It set out the following conclusions in paragraph 141 of the … decision [at issue]:
“… there are insufficient grounds for acting on [the] complaint. This is based on the [following] reasons:
(a) With regard to the application to passengers of an allegedly excessive airport security charge:
– Article 82 [EC] is not applicable, because by carrying out security checks on the passengers departing from [Athens Airport], AIA exercises essential functions of the State, and in any event
– it is not in the Community interest to open an in-depth investigation.
(b) With regard to the application to passengers of an allegedly excessive passenger terminal facilities charge, it is not in the Community interest to open an in-depth investigation.
(c) With regard to the application to airlines of allegedly excessive charges for aviation fuel:
– the complainants do not have a legitimate interest within the meaning of Article 3(2) of Regulation [No 17] or of [Article] 7(2) of Council Regulation [No] 1/2003, and in any event
– it is not in the Community interest to open an in-depth investigation.
(d) With regard to the application to airlines of allegedly excessive charges for the parking of aeroplanes:
– the complainants do not have a legitimate interest within the meaning of Article 3(2) of Regulation [No 17] or of [Article] 7(2) of Council Regulation [No] 1/2003, and in any event
– it is not in the Community interest to open an in-depth investigation.
(e) With regard to the application to passengers of allegedly excessive charges for parking cars at the airport, it is not in the Community interest to open an in-depth investigation.”’
The procedure before the Court of First Instance and the judgment under appeal
3. By application lodged on 10 August 2005, Mrs Scippacercola and Mr Terezakis brought an action before the Court of First Instance seeking annulment in part of the decision at issue.
4. The Commission contended that the application should be dismissed.
5. In support of their application, the appellants raised four pleas in law, which were all rejected by the Court of First Instance.
6. By their first plea, the appellants alleged an error of law and a manifest error of assessment by the Commission in that it had not carried out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of airport car parking services, by failing to examine one by one the economic and financial data submitted by the appellants and by failing to verify the reliability of the information supplied by AIA.
7. As regards this plea, the Court of First Instance observed, at paragraphs 91 to 97 of the judgment under appeal, that it has consistently been held that Community law does not give a person making a complaint the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and that the Commission has a discretion with respect to the degree of priority to be given to the complaints brought before it. Although, in that regard, the Commission is entitled to refer to the Community interest, its discretion is not unlimited. First, the Commission must consider attentively all the matters of fact and of law which the complainants bring to its attention. Second, it is under an obligation to state reasons for its refusal to continue with the examination of a complaint and must do so with sufficient precision and in sufficient detail to enable the Court of First Instance to undertake an effective review. However, the judicial review of decisions to reject complaints must not lead the Court of First Instance to substitute its assessment of the Community interest for that of the Commission, but focuses on whether or not the decision at issue is based on materially incorrect facts, or is vitiated by an error of law, a manifest error of assessment or misuse of powers.
8. As regards the complaint relating to the comparison between the charges levied at Athens Airport and those imposed by other airports, the Court of First Instance, after noting at paragraph 103 of the judgment under appeal that the Commission had carefully considered the elements of the complaint by comparing the charges imposed and the price of competing services and had thus complied with the requirements set out in United Brands
v Commission, held at paragraph 105 of that judgment that that comparison did not provide any indication of the existence of excessive pricing in breach of Article 82 EC.
9. With respect to the complaint relating to the failure to take sufficiently into account the information provided by the complainants during the administrative procedure, the Court of First Instance, in the first place, held, at paragraphs 111 to 113 of the judgment under appeal, that the Commission had commented on the information designed to show that the charges in question had no reasonable relation to the economic value of the service provided and had drawn attention to the lack of reference to the complainants’ sources and to the inaccurate and unfounded nature of their calculations, which was apparent from the very documents to which the appellants made reference.
10. As regards the alleged infringement in relation to the car parking charge, the Court of First Instance further stated, at paragraph 119 of the judgment under appeal, that the Commission’s finding that it was not in the Community interest to investigate that complaint further was based, aside from the fact that the market in question probably did not constitute a relevant market, on considerations, not disputed by the appellants, relating to the absence of intra-Community effects and of an impact on competition of such an infringement and also on the fact that its centre of gravity was in Greece.
11. The Court of First Instance found, in the second place, at paragraph 121 of the judgment under appeal, that the Commission had taken into consideration all the information put forward by the appellants in their letters of 28 June, 15 July and 22 and 26 October 2004, and finally decided, at paragraph 124 of that judgment, that any irregularities in the handling of complaint No 2004/4134, SG(2004) A/1724 could not affect the lawfulness of the decision at issue.
12. As regards the complaint relating to the failure to verify the information supplied by AIA, the Court of First Instance observed, at paragraphs 126 and 127 of the judgment under appeal, that, following an initial investigation of AIA’s costs, the Commission had been entitled to draw conclusions from AIA’s reply without being required to mention the figures contained in information obtained on a confidential basis. In that regard, the Court of First Instance considered, at paragraphs 129 to 134 of that judgment, that the fact that the Commission had not verified the reliability of the information supplied by AIA could not affect the lawfulness of the contested decision, as the assessment of the Community interest did not depend on the material accuracy of that information. The Court of First Instance observed that, according to the case-law, the Commission is not required to establish the existence or non-existence of an infringement, and noted that, in this case, the Commission had relied on the complexity of the analysis which would have had to be undertaken for the purposes of determining whether or not each charge was excessive, and on the small likelihood of the existence of such an infringement, as grounds for rejecting the complaint for lack of Community interest and for not verifying the reliability of the confidential information on AIA’s costs and revenues.
13. By their second plea, the appellants alleged an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity and, second, the car parking services did not constitute a relevant market for the purposes of that article.
14. With respect to this plea, the Court of First Instance observed, at paragraph 145 to the judgment under appeal, that, as far as the security charge was concerned, the arguments concerning the allegedly economic nature of the security activities related to a reason that was included in the decision at issue for the sake of completeness and must be regarded as being immaterial.
15. As regards the car parking charge, the Court of First Instance observed, at paragraphs 146 and 147 of the judgment under appeal, that the Commission had taken into account, among the matters on which it based its finding of a lack of Community interest, the likelihood that the airport car parking market did not constitute a separate market and had explicitly stated that it did not propose to reach a conclusion on that point.
16. By their third plea, the appellants maintained that the Commission had made an error in law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights and the application to passengers on scheduled flights of a terminal facility charge and a security charge which were not applied to those using charter flights.
17. With respect to this plea, the Court of First Instance noted, first, at paragraph 156 of the judgment under appeal, that as far as the complaints relating to the charge linked with the use of the airport (the Spatosimo) were concerned, the Commission’s decision to take no further action had not been challenged in an action before the Court of First Instance. Second, as far as the charges considered in the decision at issue were concerned, the Court of First Instance observed, at paragraph 157 of that judgment, that the complainants had alleged only that they were excessive, and had not at any time during the administrative procedure claimed that such charges were discriminatory. The Court of First Instance concluded, at paragraph 159 of the judgment under appeal, that the Commission could not therefore be criticised for failing to examine those complaints in its decision.
18. By their fourth plea, the appellants claimed, in the first place, that the Commission had infringed Article 253 EC and departed from established rights and procedures. The appellants maintained that the Commission had not made a proper assessment of the evidence which they had adduced. In the second place, the appellants claimed in their reply that the Commission had not provided adequate reasoning as to precisely what comprised the Community interest on which it relied in order to reject their complaint, and they maintained that it had not explained the considerations of fact and of law on which it had relied in order to conclude that the complaint must be rejected. The appellants further claimed that the Commission had not complied with the criteria established by the case-law in assessing the Community interest or weighed up the probability of being able to establish the existence of the infringement through a full investigation against the significance of such an infringement for the functioning of the common market.
19. The Court of First Instance observed, at paragraphs 173 and 174 of the judgment under appeal, that the decision at issue was essentially based on the lack of Community interest in pursuing an investigation of the practices criticised in the complaint and that, in such a hypothesis, the Commission is under an obligation to state the reasons on which its decision is based. At paragraph 179 of that judgment, however, the Court of First Instance considered that, in this particular case, the decision at issue was sufficiently reasoned.
20. As regards the argument that the Commission did not examine with all due care the factual and legal aspects of the appellants’ complaint, the Court of First Instance, at paragraph 185 of the judgment under appeal, referred to the assessment which it had made when examining the first plea.
21. As for the arguments which the appellants put forward in their reply, relating in particular to the criteria to be applied in assessing the Community interest and to the weighing of those criteria against the significance of the infringement, the Court of First Instance held, at paragraph 186 of the judgment under appeal, that these were new submissions which must be declared inadmissible.
22. Accordingly, the Court of First Instance dismissed the action for annulment of the decision at issue.
Procedure before the Court and forms of order sought by the parties
23. The appellants claim that the Court should:
– set aside the judgment under appeal;
– annul the decision at issue in part, in that it relates to the passenger security charge, the passenger terminal facility charge and the charges for car parking services, and
– order the Commission to bear the costs incurred in these proceedings and in the proceedings before the Court of First Instance.
24. The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.
The appeal
25. The appellants put forward four pleas in law in support of their appeal.
26. The first plea alleges ‘an error of law and a manifest error of assessment in that the Commission did not carry out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of car parking services, by failing to verify the reliability of the information supplied by AIA and by failing to examine one by one the economic and financial data submitted by the [appellants]’.
27. By their second plea, the appellants allege ‘an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity and, second, the car parking services did not constitute a relevant market for the purpose of that article’.
28. The third plea alleges ‘an error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights’.
29. The fourth plea alleges ‘an infringement of Article 253 EC and a departure from established rights and procedures’.
30. Under Article 119 of the Rules of Procedure, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal in whole or in part without opening the oral procedure.
Admissibility of the appeal
Arguments of the parties
31. Although it responds to each of the pleas raised by the appellants in support of their appeal, the Commission submits at the outset that the appeal is inadmissible in its entirety. It claims that the appeal fails to identify the error of law which is alleged to vitiate the judgment under appeal and, for the most part, merely repeats what was argued during the proceedings at first instance. Apart from the fact that at several points the appellants’ arguments are directed not against the judgment of the Court of First Instance but against the decision at issue, they call into question factual assessments made by the Court of First Instance and in reality merely seek a re-examination of the application submitted to that Court.
Findings of the Court
32. It must be borne in mind that, under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant, or infringement of Community law by the Court of First Instance (see, in particular, Case C‑136/92 P Commission
v Brazzelli Lualdi and Others
[1994] ECR I‑1981, paragraph 47, and Case C‑284/98 P Parliament
v Bieber
[2000] ECR I‑1527, paragraph 30).
33. The Court of First Instance therefore has exclusive jurisdiction to find the facts, except in a case where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to evaluate the evidence adduced. The establishment of those facts and the evaluation of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, Case C‑449/99 P EIB
v Hautem
[2001] ECR I‑6733, paragraph 44, and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission
[2006] ECR I‑8725, paragraphs 69 and 70).
34. Furthermore, it follows from those provisions and also from Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C‑352/98 P Bergaderm and Goupil
v Commission
[2000] ECR I‑5291, paragraph 34; Case C‑41/00 P Interporc
v Commission
[2003] ECR I‑2125, paragraph 15; and Case C‑131/03 P Reynolds Tobacco and Others
v Commission
[2006] ECR I‑7795, paragraph 49).
35. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the Court of First Instance, including those based on facts expressly rejected by that Court (see, in particular, Interporc
v Commission, paragraph 16), it fails to satisfy the requirement to state reasons under those provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see, in particular, Reynolds Tobacco and Others
v Commission, paragraph 50).
36. However, provided that an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C‑210/98 P Salzgitter
v Commission
[2000] ECR I‑5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose ( Interporc
v Commission, paragraph 17).
37. In the present case, it must be stated that the appeal has not been drafted with all desirable clarity, in that it contains, at certain points, criticisms of the decision at issue and, at other places, repetitions or references to the elements of fact submitted at first instance.
38. Notwithstanding such defects, however, the appeal identifies, in relation to several complaints, the elements of the judgment under appeal which are being criticised and sets out the legal arguments in support of those complaints.
39. Consequently, the present appeal cannot be regarded as inadmissible in its entirety. The admissibility of the various pleas will therefore be ascertained when each of them is examined.
Substance
First plea
40. The first plea raised by the appellants in support of their appeal consists of three parts.
41. The Commission contends, for the reasons already set out at paragraph 31 of this order, that all the parts of the first plea are inadmissible.
– First part of the first plea
Arguments of the parties
42. The appellants claim that the Court of First Instance erred in law in holding, at paragraph 103 of the judgment under appeal, that the Commission had complied with the requirements laid down by the Court of Justice in paragraph 252 of United Brands
v Commission . In the appellants’ submission, in order to determine whether the amount of the charges applied by AIA is excessive, the Commission ought, first of all, to have examined the costs of the various services with the revenue generated by those services and then to have compared those charges with the charges applied by other European airports. The appellants reproduce the amounts already submitted at first instance and submit that the Court of First Instance was wrong not to adjudicate on the part of their plea whereby they criticised the Commission for not having undertaken a proper comparison between the operating expenses and the income generated by the various services. They further maintain that a comparison with competing products would be inconclusive in the present case, as the airports chosen for the purposes of such a comparison belong to different markets and do not supply competing products for the purposes of Article 82 EC.
43. The Commission asserts that in United Brands
v Commission
the Court of Justice set a standard of evidence for determining, when adopting a decision based on Article 82 EC, whether a price is excessive. However, that standard does not apply where the Commission must decide whether or not to initiate an in-depth investigation following a complaint. The Court of First Instance was therefore correct to hold that the elements of comparison did not give any indication of excessive pricing contrary to Article 82 EC.
Findings of the Court
44. As regards the criteria of comparison established in United Brands
v Commission, the Court of First Instance observed, at paragraph 100 of the judgment under appeal, that ‘a price which is excessive because it has no reasonable relation to the economic value of the product supplied’ ( United Brands
v Commission, paragraph 250) may constitute an abusive practice prohibited by Article 82 EC and that in that regard ‘the questions to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, if the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products’ ( United Brands
v Commission, paragraph 252).
45. At paragraphs 101 to 105 of the judgment under appeal, the Court found that, in this case, the Commission had carefully examined the rates of the various charges criticised by comparison with those applied in other airports and observed that the appellants had not disputed the material accuracy of those data. After noting that the charges at issue were not in the higher band of similar charges payable at the other airports examined, the Court of First Instance held that the comparison with competing products did not provide any indication of the existence of excessive pricing in breach of Article 82 EC.
46. It does not therefore appear that the Court of First Instance made an error of law in holding, at paragraph 103 of the judgment under appeal, that the Commission had complied with the requirements set out in United Brands
v Commission
of comparing the charges imposed and the prices of competing services.
47. In accordance with paragraph 252 of United Brands
v Commission, the existence of an unfair price may be examined either by reference to whether the price is unfair in itself or unfair by comparison with competing products. As the wording of that paragraph is clear, the appellants’ argument that the examination of the unfair price must be based on a cumulative application of those criteria, and in the order suggested by the appellants, cannot therefore succeed.
48. As regards the appellants’ argument that the other European airports are in different markets and do not supply competing products, that argument is nothing more than a mere allegation, as the appellants adduce no evidence to support it, and, furthermore, it is manifestly inconsistent with the wording of the complaint, according to which, as may be seen from paragraph 101 of the judgment under appeal, the appellants themselves had based their allegation of the excessive nature of the charges levied at Athens Airport by reference to Article 82 EC precisely on a comparison of those charges with the charges applied at other European airports.
49. It follows that the first part of the first plea is manifestly unfounded.
– Second part of the first plea
Arguments of the parties
50. The appellants claim that the Court of First Instance infringed Community law ‘by failing to establish that the Commission, first, did not consider all relevant matters of fact which existed at the time the contested decision was adopted as required by case-law (Case C‑119/97 P Ufex and Others
v Commission
[1999] ECR I‑1341) and, second, it based [the] decision [at issue] on materially incorrect facts vitiated therefore by a manifest error of assessment and misuse of powers ( Automec
v Commission, paragraph 80; Case T‑387/94 Asia Motor France and Others
v Commission
[1996] ECR II‑961, paragraph 80; and Joined Cases T-9/96 and T‑211/96 Européenne automobile
v Commission
[1999] ECR II‑3639, paragraph 29)’.
51. They maintain that the Court of First Instance was wrong not to find that the Commission had omitted to investigate significant pieces of information on AIA’s costs and revenues supplied by the appellants during the administrative procedure.
52. Thus, the Court of First Instance, at paragraphs 83 and 88 of the judgment under appeal, failed to refer to the construction cost of EUR 275 000 000; at paragraph 117 of that judgment it confused the amount corresponding to the total cost of that construction; and at paragraphs 115 and 118 of the judgment it based its reasoning on relatively modest amounts which could not seriously alter the outcome of the comparisons undertaken by the appellants.
53. In addition, the Court of First Instance failed to adjudicate on the evidence of manipulation of the fixed and variable costs as set out in complaint No 2004/4134, SG(2004) A/1724.
54. The Commission contends that both it and the Court of First Instance undertook a careful analysis of the information provided by the appellants and concluded that there was a lack of Community interest.
Findings of the Court
55. It must be stated at the outset that the Court of First Instance, after referring, at paragraphs 106 to 110 of the judgment under appeal, to all the information submitted by the appellants during the administrative procedure, held at paragraph 111 of that judgment that the Commission had commented on all of that information. Thus, it follows from paragraphs 112 and 113 of that judgment that, as regards the various charges criticised, the Commission, without being contradicted by the appellants, had drawn attention to the inaccurate and unfounded nature of the calculations made by the appellants.
56. The argument whereby the appellants seek to criticise the Court of First Instance for not having established that the Commission had failed to examine significant information cannot therefore succeed.
57. In so far as the appellants criticise the Court of First Instance for having ignored the relevant matters of fact which existed at the time when the decision at issue was adopted, but do not specify what those matters were, that aspect of the second part of the plea must be declared inadmissible, in accordance with the case-law cited at paragraph 34 of this order.
58. As regards the complaint relating to paragraphs 83 and 88 of the judgment under appeal, it must be noted that those paragraphs occur in the part of the judgment dealing with the arguments of the parties and, as such, are not elements of the judgment susceptible of being examined by the Court of Justice.
59. As regards the alleged confusion on the part of the Court of First Instance at paragraph 117 of the judgment under appeal concerning the amount of the construction cost of Athens Airport, it must be held that the documents in the file do not allow that amount to be determined with the requisite precision, since the appellants themselves state, at paragraph 18 of their appeal, that they have five different figures.
60. As regards, moreover, the appellants’ criticism of the Court of First Instance for having used insignificant amounts at paragraphs 115 and 118 of the judgment under appeal, it is sufficient to observe that, far from challenging the conclusions reached by the Court of First Instance, the appellants themselves acknowledge, at paragraph 23 of their appeal, that their calculations in that respect ‘were not perfectly exact’.
61. For the reasons stated at paragraph 33 of this order, all the appellants’ arguments relating to the Court of First Instance’s assessment of the evidence must therefore be rejected as manifestly inadmissible; furthermore, the appellants completely fail to explain in what way the judgment under appeal is vitiated by a manifest error of assessment or a distortion of the facts.
62. Last, the appellants are wrong to maintain that the Court of First Instance failed to adjudicate on the evidence submitted in connection with complaint No 2004/4134, SG(2004) A/1724, when it follows unambiguously from paragraphs 122 to 124 of the judgment under appeal that the Court of First Instance analysed the arguments relating to that complaint and concluded that the Commission was not required, in the context of the procedure in question, to take into consideration the evidence relied on in a different complaint.
63. It follows that the second part of the first plea is manifestly inadmissible in part and manifestly unfounded in part.
– Third part of the first plea
Arguments of the parties
64. The appellants claim that the Court of First Instance failed to establish that, by not verifying the operating costs and revenues obtained and by basing the decision at issue on materially incorrect facts, the Commission infringed the requirements of Community law as set out, in particular, in Automec
v Commission
(paragraph 80), Asia Motor France and Others
v Commission
(paragraph 46) and Européenne automobile
v Commission
(paragraph 29), and that by not disclosing to the appellants the information relating to Athens Airport’s costs and revenues ‘on grounds of unsubstantiated business secrets, [the Commission] infringed the requirements of Community law set out in Case T‑353/94 Postbank
v Commission
[1996] ECR II‑921 and Case T‑211/00 Kuijer
v Council
[2002] ECR II‑485 and Article 16 of … Regulation No 773/2004 …’.
65. In the first place, the Court of First Instance was wrong to take the Commission’s statements at face value, when the Commission had failed to verify the costs and revenues provided in AIA’s response for the purpose of clearly establishing the factual considerations on which it concluded that there was not sufficient Community interest in continuing to examine the practices denounced in the appellants’ complaint. The appellants maintain that if the Court of First Instance had verified the reliability of the information supplied by the parties it would have reached the opposite conclusion to that reached at paragraph 133 of the judgment under appeal.
66. In the second place, the Court of First Instance was also wrong not to establish that the Commission infringed Community law in so far as it relied on ‘business secrets’, without stating its reasons for doing so and without explaining how the disclosure of the information in question to the appellants would have harmed AIA’s interests.
67. In the third place, the Court of First Instance was also wrong not to hold that the Commission had infringed Article 16 of Regulation No 773/2004.
68. The Commission contends that the Court of First Instance was correct to hold that the assessment of the Community interest did not depend on the accuracy of the information supplied by AIA, the verification of which would have required a complex and disproportionate analysis.
69. As regards the argument relating to ‘business secrets’, the Commission maintains that it is inadmissible since it refers to the Commission’s conduct. In so far as the argument is directed against the judgment under appeal, it should be borne in mind that the Court of First Instance is the sole judge of whether it is necessary to supplement the information before it by prescribing measures of inquiry. In fact, the Court of First Instance expressly stated that it was sufficiently informed by the documents submitted by the parties.
Findings of the Court
70. It must be noted that, at paragraphs 126 to 128 of the judgment under appeal, the Court of First Instance stated that the Commission, in spite of the unconvincing evidence adduced by the appellants, carried out an initial investigation of AIA’s costs and revenues by sending a request for information to AIA and that the confidential information sent in response to that request enabled the Commission to draw conclusions about the various charges criticised by the appellants.
71. The Court of First Instance stated, at paragraph 129 of the judgment under appeal, that, contrary to the appellants’ claims, the fact that the Commission had not verified the reliability of the information supplied by AIA could not affect the lawfulness of the decision at issue.
72. Indeed, after observing, at paragraph 130 of the judgment under appeal, that the Commission was not required to establish the existence or non-existence of an infringement, the Court of First Instance stated, at paragraph 131 of that judgment, that the Commission had concluded that there was insufficient likelihood of an infringement for it to be in the Community interest to investigate the practices criticised in the complaint, relying, first, on its finding that the information submitted by the appellants did not support the conclusion that an infringement had occurred and, second, on two factors which suggested that no infringement had occurred, namely the comparison of AIA’s charges and those imposed at other airports and the information in the non-confidential version of AIA’s response to the Commission’s request for information.
73. The Court of First Instance further stated, at paragraph 133 of the judgment under appeal, that the appellants had not denied that the verification of information in AIA’s reply which would have been needed in order to establish the existence of an infringement would have involved disproportionate efforts on the Commission’s part. According to the Court of First Instance, the rejection of the complaint on the ground of lack of Community interest was justified by the small likelihood of the existence of an infringement within the meaning of Article 82 EC and by the extent of the measures of investigation necessary to determine, for each charge, the precise amounts of the costs incurred and the revenues generated.
74. In so far as the appellants, in essence, criticise the Court of First Instance for not having verified whether the decision at issue was based on materially accurate facts and was not vitiated by a manifest error of assessment, but do not specify which paragraph of the Court of First Instance’s reasoning was open to criticism in that regard, it must be stated that, for the reasons set out at paragraph 34 of this order, that aspect of the complaints in the third part of the first plea is inadmissible.
75. As regards the complaint relating to the failure to verify the confidential data and the alleged breach of ‘business secrets’ by the Commission, it must be borne in mind that, according to the case-law of the Court referred to at paragraph 35 of this order, an appeal cannot merely repeat the pleas in law and arguments already submitted to the Court of First Instance, including those based on facts expressly rejected by that Court.
76. In fact, at paragraphs 129 to 134 of the judgment under appeal, the Court of First Instance explained at length the reason why, since the assessment of the Community int erest did not depend on the material accuracy of the information supplied by AIA, the failure to verify that information could not affect the lawfulness of the decision at issue.
77. Since the appellants do not in any way seek to challenge the conclusion reached by the Court of First Instance, but merely reiterate the arguments already submitted to that Court, criticising the alleged ‘business secret’ that was put forward as a justification by that Court, without explaining either the basis for or the legal content of that business secret, this complaint must be declared inadmissible too.
78. Last, as regards the complaint relating to Article 16 of Regulation No 773/2004, it is common ground that that complaint, too, is not supported by legal reasoning making it possible to identify how the alleged infringement of that article by the Court of First Instance could lead to the judgment under appeal being set aside. Consequently, and for the reasons set out at paragraph 34 of this order, this complaint must also be rejected as inadmissible.
79. It follows that the third part of the first plea is manifestly inadmissible.
80. In those circumstances, the first plea raised by the appellants in support of their appeal must be rejected in its entirety.
Second plea
– Arguments of the parties
81. By their second plea, alleging infringement of Article 82 EC, the appellants take issue with the Court of First Instance in that, by rejecting their first plea in its entirety, it failed to rule on whether the security services constitute an economic activity and whether the car parking services constitute a relevant market for the purposes of that article. In that regard, they refer to the factual and legal considerations set out in their application initiating the proceedings before the Court of First Instance.
82. The appellants further submit that the Court of First Instance was wrong to hold, at paragraph 147 of the judgment under appeal, that they did not dispute the lack of Community interest with respect to car parking.
83. The Commission contends that the second plea is inadmissible; it maintains that the appellants fail to identify the error of law vitiating the judgment under appeal and that in reality they are requesting the Court of Justice to review the facts. In any event, the Commission maintains that the second plea raised by the appellants in support of their appeal is unfounded.
– Findings of the Court
84. By their second plea, the appellants, in essence, seek to criticise the judgment under appeal by arguing that the Court of First Instance failed to analyse their arguments alleging an infringement of Article 82 EC.
85. As regards the security charge, it should be recalled that, as stated at paragraph 144 of the judgment under appeal, the Commission rejected the complaint relating to that charge because Article 82 EC does not apply to security checks and because, in any event, it was not in the Community interest to open an in-depth investigation into that matter.
86. Since the appellants’ arguments relating to the assessment of the Community interest had all been rejected in relation to the first plea, the Court of First Instance concluded, at paragraph 145 of the judgment under appeal, that the arguments concerning the allegedly economic nature of the security activities must be regarded as being immaterial, in that they related to a reason that was included in the decision at issue for the sake of completeness.
87. As regards the car parking charge, the Court of First Instance observed, at paragraph 147 of the judgment under appeal, that the appellants were criticising the Commission for not having ruled on the existence of a relevant market for car parking charges for the purposes of Article 82 EC, although the Commission had explicitly stated in the decision at issue that it did not propose to reach a conclusion on that point.
88. It must be held that, in reality, the appellants merely reproduce the arguments which they had already submitted on that point before the Court of First Instance, without submitting any argument with respect to the grounds which, at paragraphs 145 and 147 of the judgment under appeal, led the Court of First Instance to reject those arguments.
89. As regards the appellants’ assertion that the Court of First Instance held, at paragraph 147 of the judgment under appeal, that they did not dispute the lack of Community interest with respect to the car parking services, it must be rejected as being based on a manifestly incorrect reading of that paragraph. Such a reading ignores the precise wording of paragraph 147, according to which the Court of First Instance found that, ‘in relation to the present plea … the [appellants] do not challenge the assessment of the Community interest …, but only complain that the Commission infringed Article 82 EC’. In fact, as stated at paragraph 86 of this order, the appellants’ arguments relating to the assessment of the Community interest were rejected in relation to the first plea and those relating to the car parking charge were more particularly analysed in detail by the Court of First Instance at paragraph 119 of that judgment.
90. The second plea must therefore be rejected as manifestly inadmissible in part and manifestly unfounded in part.
Third plea
– Arguments of the parties
91. By their third plea, the appellants take issue with the Court of First Instance for not having found that the imposition of higher charges for passengers on intra-Community and international flights than for passengers on domestic flights constitutes a breach of the general principle of non-discrimination, a fundamental principle of the European Union which the Commission is required to apply by reason of its ‘duty of care’.
92. The Commission submits that this plea is inadmissible, as the appellants fail to identify the error of law which is alleged to vitiate the judgment under appeal. In any event, the Commission contends that the plea is unfounded, as it is under no duty of care in these circumstances.
– Findings of the Court
93. After observing, at paragraph 157 of the judgment under appeal, so far as the charges considered in the decision at issue were concerned, that the appellants did not at any time during the administrative procedure complain that those charges were discriminatory, the Court of First Instance held, at paragraph 159 of that judgment, that the third plea raised by the appellants in support of their action had to be rejected. Since the complaints expressed in the application were not expressed during the administrative procedure prior to the adoption of that decision, the Commission could not be criticised for having failed to examine those complaints in its decision.
94. It must be held that the appellants submit no argument to challenge that decisive element of the reasoning of the judgment under appeal on that point. On the contrary, they merely call into question the conclusion reached by the Court of First Instance by alleging an error of law on the part of that Court, but without developing any specific arguments in relation to that conclusion.
95. In that regard, the Court has already held that a mere abstract statement of the grounds in the appeal does not satisfy the requirements of Article 21 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure (see Joined Cases 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail and Others
v High Authority
[1961] ECR 281, 295; Case C‑330/88 Grifoni
v EAEC
[1991] ECR I‑1045, paragraph 18; and also order of 12 December 2006 in Case C‑129/06 P Autosalone Ispra
v Commission, paragraph 30).
96. In the present case, the mere assertion of an alleged breach of the principle of non-discrimination is too general and imprecise to be assessed by the Court (see, to that effect, Case C‑51/92 P Hercules Chemicals
v Commission
[1999] ECR I‑4235, paragraph 113, and order in Autosalone Ispra
v Commission, paragraph 31).
97. It follows that the third plea raised by the appellants in support of their appeal is manifestly inadmissible.
Fourth plea
– Arguments of the parties
98. By their fourth plea, alleging ‘an infringement of Article 253 EC and a departure from established rights and procedures’, the appellants take issue with the Court of First Instance for not having found that the decision at issue did not disclose in a clear and unequivocal fashion the reasoning followed by the Commission, namely, in the present case, the figures indicating AIA’s revenues and expenses, contrary to the requirements set out at paragraph 55 of Interporc
v Commission, and for not having held that the Commission infringed Community law, in accordance with Postbank
v Commission
and Kuijer
v Council, by failing to explain how AIA’s interests would be affected if its costs and revenues were disclosed to the appellants. In addition, the Court of First Instance held that that information was confidential without reviewing that paragraph of the decision at issue, in breach of Article 16 of Regulation No 773/2004.
99. The Court of First Instance’s assertion, at paragraph 178 of the judgment under appeal, that more precise figures were not necessary in order for the appellants to be aware of the Commission’s reasons or to enable the Court of First Instance to undertake its review is contradicted by paragraph 127 of that judgment, where it is stated that the appellants could not be informed of those costs, since that information was confidential and since the Commission had merely drawn conclusions from the information without mentioning the figures on which those conclusions were based.
100. The appellants also take issue with the Court of First Instance for not having held that the Commission ‘fail[ed] in its duty of care’ and that it ‘departed from established rights and procedures’ by disregarding the figures supplied by the appellants, embarking upon a mere comparison between the revenues of Athens Airport and those of other airports established in the Community, although that comparison was irrelevant for the purposes of Article 82 EC, and by addressing a request for information to AIA following which the Commission none the less failed to examine the construction cost of Athens Airport.
101. The Commission contends that the plea alleging that the Court of First Instance did not hold that the decision at issue infringed Article 253 EC and that established rights and procedures were not observed amounts to no more than a request for re-examination of the application submitted to the Court of First Instance and must therefore be declared inadmissible.
102. The Commission observes that the appellants’ arguments relating to AIA’s costs and revenues, to the comparison of the charges levied in the different airports and to the evidence adduced were meticulously analysed by the Court of First Instance and received a properly-reasoned response. Furthermore, there is no contradiction between paragraphs 127 and 178 of the judgment under appeal.
– Findings of the Court
103. It should be observed at the outset that it is not clear from the wording of the fourth plea, inasmuch as it is based on Article 253 EC, whether the appellants mean to complain of an insufficiency of reasoning in the judgment under appeal or whether they take issue with the Commission for failing to state reasons in the decision at issue.
104. In so far as the appellants allege, in their appeal, that the Commission infringed Article 253 EC, it must be pointed out that they merely reproduce arguments already raised in that regard in support of the fourth plea submitted in their action before the Court of First Instance and that they attempt, in reality, to have that plea re-examined by the Court of Justice. In accordance with the case-law cited at paragraph 35 of this order, such a complaint is manifestly inadmissible.
105. If it is maintained that the reasoning in the judgment under appeal is insufficient, it must be borne in mind that the obligation to state the reasons on which judgments are based, as laid down in Article 36 of the Statute of the Court of Justice, applicable to the Court of First Instance under the first paragraph of Article 53 of that Statute and Article 81 of the Rules of Procedure of the Court of First Instance, is a point of law which is amenable, as such, to judicial review on appeal (see, to that effect, Case C‑401/96 P Somaco
v Commission
[1998] ECR I‑2587, paragraph 53, and Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331, paragraph 45).
106. In the present case, at paragraphs 173 to 196 of the judgment under appeal, the Court of First Instance set out in detail the reasons which had led it to conclude that the Commission had acted correctly, and on the basis of sufficient reasoning, in rejecting the appellants’ complaint by means of the decision at issue.
107. In that regard, the Court of First Instance expressly stated on two occasions, at paragraphs 178 and 196 of the judgment under appeal, that the documents submitted by the parties during the written procedure and the documents submitted by the Commission in the context of the measure of organisation of procedure were sufficient to enable the appellants to be aware of the reasons for the decision at issue and the Court of First Instance to undertake its review.
108. Accordingly, inasmuch as the appellants claim that the Court of First Instance did not find that the Commission’s reasoning was insufficient, that allegation must be rejected as manifestly unfounded.
109. As regards the alleged contradiction between paragraphs 127 and 178 of the judgment under appeal, it is sufficient to observe that the Court of First Instance stated, at paragraph 127, that the information relating to costs and revenues contained in AIA’s response to the Commission’s request for information was confidential with respect to the appellants and that, at paragraph 178, it merely added that the analysis of the first plea had revealed all the materials necessary to enable the appellants to be aware of the reasons for the decision at issue and the Court of First Instance to undertake its review.
110. As the complaint relating to a contradiction in the reasoning is based on a manifestly incorrect reading of the judgment under appeal, it must therefore be rejected as unfounded.
111. So far as the complaints relating to the confidential information and ‘business secrets’ are concerned, it must be held that these amount, in fact, to a repetition of arguments already raised in relation to the first plea and reference should therefore be made to the explanations set out in connection with that plea at paragraphs 75 to 77 of this order.
112. As for the complaint relating to the departure from ‘established rights and procedures’, the Court refers to the case-law cited at paragraph 95 of this order, according to which a mere abstract statement of a principle of law cannot be reviewed by the Court in an appeal.
113. It follows that the fourth plea is manifestly inadmissible in part and manifestly unfounded in part.
114. As none of the four pleas raised by the appellants in support of their appeal can be upheld, it is necessary, pursuant to Article 119 of the Rules of Procedure, to dismiss the appeal as manifestly inadmissible in part and manifestly unfounded in part.
Costs
115. Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs and as the appellants have been unsuccessful, they must be ordered to pay the costs.
Operative part
On those grounds, the Court (Fifth Chamber) hereby orders:
1. The appeal is dismissed.
2. Mrs Scippacercola and Mr Terezakis shall pay the costs.