61981CJ0246_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 246/81
NICHOLAS WILLIAM, LORD BETHELL, MEMBER OF THE EUROPEAN PARLIAMENT, MEMBER OF THE HOUSE OF LORDS, REPRESENTED BY IAN S . FORRESTER OF THE SCOTS
BAR AND MARIO SIRAGUSA OF THE ROME BAR, INSTRUCTED BY GLORIA HOOPER OF MESSRS TAYLOR & HUMBERT, SOLICITORS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN-CLAUDE WOLTER, 2, RUE GOETHE,
APPLICANT,
SUPPORTED BY
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, REPRESENTED BY W . H . GODWIN, PRINCIPAL ASSISTANT TREASURY SOLICITOR, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY,
INTERVENER,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, BASTIAAN VAN DER ESCH, ACTING AS AGENT, ASSISTED BY PIETER JAN KUYPER, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
SUPPORTED BY THE FOLLOWING AIRLINE OPERATORS :
AER LINGUS LIMITED ( AER LINGUS ), DUBLIN,
COMPAGNIE NATIONALE AIR FRANCE ( AIR FRANCE ), PARIS,
LINEE AEREE ITALIANE SPA ( ALITALIA ), ROME,
BRITISH AIRWAYS LIMITED ( BRITISH AIRWAYS ), HOUNSLOW,
BRITISH CALEDONIAN AIRWAYS LIMITED ( BRITISH CALEDONIAN ), CRAWLEY,
KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV ( KLM ), AMSTELVEEN,
DEUTSCHE LUFTHANSA AG ( LUFTHANSA ), COLOGNE,
OLYMPIC AIRWAYS, ATHENS,
SOCIETE ANONYME BELGE D ' EXPLOITATION DE LA NAVIGATION AERIENNE, ( SABENA ), BRUSSELS, AND
SCANDINAVIAN AIRWAYS SYSTEM ( SAS ), STOCKHOLM,
REPRESENTED BY EDUARD MARISSENS OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LAMBERT H . DUPONG,
14A, RUE DES BAINS,
INTERVENERS,
Subject of the case
OBJECTION, AT THE PRELIMINARY STAGE OF THE PROCEEDINGS, THAT THE ACTION BROUGHT BY LORD BETHELL AGAINST THE COMMISSION FOR FAILURE TO ACT WITH REGARD TO THE FIXING BY AIRLINE OPERATORS OF PASSENGER FARES FOR TRANSPORT BY AIR FOR SCHEDULED FLIGHTS WITHIN THE COMMUNITY IS INADMISSIBLE,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 SEPTEMBER 1981 LORD BETHELL BROUGHT AN ACTION UNDER THE THIRD PARAGRAPH OF ARTICLE 175 OF THE
EEC TREATY FOR A DECLARATION THAT THE COMMISSION HAD FAILED, IN INFRINGEMENT OF THE TREATY, TO ADOPT MEASURES AGAINST A CONCERTATION ALLEGED TO EXIST BETWEEN EUROPEAN AIRLINES IN THE MATTER OF FARES FOR PASSENGER TRANSPORT, ALTHOUGH REQUESTED TO DO SO BY HIM IN A LETTER OF 13 MAY 1981 .
2 IN THE ALTERNATIVE THE APPLICANT ASKS THE COURT, IN PURSUANCE OF THE SECOND PARAGRAPH OF ARTICLE 173, TO ANNUL THE COMMUNICATION OF 17 JULY 1981, CONSTITUTING THE REPLY TO HIS LETTER OF 13 MAY 1981, BY WHICH THE COMMISSION REFUSED TO DO AS HE HAD REQUESTED .
THE BACKGROUND TO THE DISPUTE
3 IT MAY BE SEEN FROM THE FILE THAT LORD BETHELL, WHO IS A MEMBER OF THE EUROPEAN PARLIAMENT, A MEMBER OF THE HOUSE OF LORDS AND CHAIRMAN OF THE FREEDOM OF THE SKIES CAMPAIGN, HAS FOR SOME TIME PAST BEEN ENGAGED IN ACTION AGAINST AGREEMENTS AND CONCERTED PRACTICES WHICH, HE ALLEGES, EXIST BETWEEN AIRLINES OPERATING SCHEDULED FLIGHTS AS REGARDS PASSENGER FARES IN EUROPE .
4 IN A LETTER SENT TO THE COMMISSION ON 13 MAY 1981, AFTER SETTING OUT THE PROBLEM AS A WHOLE, THE APPLICANT COMPLAINED THAT THE COMMISSION HAD DONE NOTHING TO BRING THAT SITUATION TO AN END AND ASKED ' ' THAT THE COMMISSION MAKE A START WITH DISCHARGING THE DUTY IT SHOULD HAVE BEEN DISCHARGING IN THE PAST, THAT IT ANNOUNCE THAT IT IS GOING TO ACT UNDER ARTICLE 89 ' '
OF THE EEC TREATY, ' ' AND THAT IT START TO DO SO BY DEMANDING INFORMATION AND EXPLANATIONS FROM THE AIRLINES ' ' . IN CONCLUSION LORD BETHELL GAVE THE COMMISSION NOTICE THAT HE INTENDED TO COMPLAIN TO THE COURT OF JUSTICE UNDER ARTICLE 173 OR 175 OF THE TREATY IF THE COMMISSION DECLINED TO TAKE THE ACTION HE DEEMED APPROPRIATE .
5 BY LETTER OF 17 JULY 1981 THE DIRECTOR-GENERAL FOR COMPETITION EXPLAINED TO THE APPLICANT THE COMMISSION ' S ATTITUDE WITH REGARD TO THE PROBLEM RAISED IN HIS LETTER OF 13 MAY 1981 IN SO FAR AS IT RELATED TO THE FIXING OF AIR FARES . HE
INDICATED IN THIS CONNECTION THAT A RECENT EXAMINATION OF AIR FARES COMPLETED BY THE COMMISSION IN COLLABORATION WITH GOVERNMENTAL EXPERTS SHOWED THAT IN MOST CASES THE FINAL FIXING OF AIR FARES WAS THE SOLE RESPONSIBILITY OF THE MEMBER STATES SO THAT THERE WAS IN PRINCIPLE NO GROUND TO SCRUTINIZE THE ACTIVITY OF COMPANIES ON THE BASIS OF ARTICLE 85 . HOWEVER, BEARING IN MIND THE SPECIAL RELATIONSHIPS EXISTING BETWEEN THE STATES AND THE COMPANIES, THE COMMISSION WOULD EXAMINE THE SUBJECT FURTHER FROM THE POINT OF VIEW OF ARTICLES 5 AND 90 OF THE TREATY IN CONJUNCTION WITH ARTICLE 86, REGARD BEING HAD TO THE FACT THAT MOST SCHEDULED AIRLINES WERE IN A DOMINANT POSITION WITHIN THE COMMON MARKET . AFTER EMPHASIZING THE DIFFICULTY AND COMPLEXITY OF AN ANALYSIS INTENDED TO ESTABLISH THE ABUSIVE NATURE OF AIR FARES, THE DIRECTOR-GENERAL INFORMED THE APPLICANT OF THE FUTURE STEPS PROPOSED BY THE COMMISSION ; TRANSMISSION TO THE COUNCIL OF A REPORT ON THE EXAMINATION IT HAD EFFECTED ; COMMUNICATION TO THE MEMBER STATES DRAWING THEIR ATTENTION TO THE FACT THAT TARIFFS MUST NOT BE UNFAIR AND THEREBY INFRINGE ARTICLE 86 ; COMMUNICATION TO THE COMPANIES UNDER ARTICLE 89 OF THE TREATY REQUESTING FULL DETAILS OF VARIOUS ARRANGEMENTS AND COMMON RULES RELATING TO AIR TRANSPORT ; SUBMISSION TO THE COUNCIL OF A DRAFT DIRECTIVE AND A DRAFT REGULATION APPLYING ARTICLES 85 AND 86 OF THE TREATY TO AIR TRANSPORT TO SUPPLEMENT REGULATION NO 17 .
6 LORD BETHELL WAS NOT SATISFIED WITH THAT ANSWER AND ON 10 SEPTEMBER 1981 BROUGHT AN ACTION BASED, AS STATED ABOVE, ON ARTICLE 175 OR, IN THE ALTERNATIVE, ON ARTICLE 173 OF THE TREATY .
7 BY AN APPLICATION DATED 17 NOVEMBER 1981 UNDER ARTICLE 91 OF THE RULES OF PROCEDURE THE COMMISSION PUT FORWARD AN OBJECTION OF INADMISSIBILITY AND ASKED THE COURT FOR A DECISION THEREON AT THIS PRELIMINARY STAGE OF THE PROCEDURE .
8 THE UNITED KINGDOM AND A NUMBER OF AIRLINE OPERATORS, COMPRISING THE PRINCIPAL EUROPEAN AIRLINES, APPLIED TO INTERVENE IN THE ACTION . THE UNITED KINGDOM STATED THAT IT WISHED TO INTERVENE IN SUPPORT OF LORD BETHELL ' S CLAIM
THAT THE COMMISSION ' S COMMUNICATION OF 17 JULY 1981 SHOULD BE DECLARED VOID IN SO FAR AS THE COMMISSION STATED THAT THERE WAS NO GROUND FOR APPLYING ARTICLE 85 WITH REGARD TO THE FIXING OF AIR FARES . THE AIRLINES FOR THEIR PART APPLIED TO INTERVENE IN SUPPORT OF THE COMMISSION ' S SUBMISSIONS .
9 THE COURT DECIDED TO ACCEDE TO THE COMMISSION ' S REQUEST AND AS A PRELIMINARY STEP TO CONSIDER THE OBJECTION OF INADMISSIBILITY . FOLLOWING THAT DECISION, BY ORDER OF 17 FEBRUARY 1982 IT ASSIGNED THE CASE TO THE SECOND CHAMBER FOR A DECISION AS TO THE ADMISSIBILITY OF THE ACTION .
10 BY ORDERS OF THE SAME DATE THE COURT ALLOWED THE INTERVENTION OF THE UNITED KINGDOM AND THE AIRLINES . ONLY THE AIRLINES GAVE THEIR VIEWS, DURING THE ORAL PROCEDURE, AS TO THE QUESTION OF ADMISSIBILITY .
THE QUESTION OF ADMISSIBILITY
11 IN THE WORDS OF THE SECOND PARAGRAPH OF ARTICLE 173, ANY NATURAL OR LEGAL PERSON MAY, UNDER THE CONDITIONS LAID DOWN IN THAT ARTICLE, INSTITUTE PROCEEDINGS ' ' AGAINST A DECISION ADDRESSED TO THAT PERSON OR AGAINST A DECISION WHICH, ALTHOUGH IN THE FORM OF A REGULATION OR A DECISION ADDRESSED TO ANOTHER PERSON, IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER ' ' .
12 ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 175, ANY NATURAL OR LEGAL PERSON MAY, UNDER THE CONDITIONS LAID DOWN IN THAT ARTICLE, COMPLAIN TO THE COURT THAT AN INSTITUTION OF THE COMMUNITY ' ' HAS FAILED TO ADDRESS TO THAT PERSON ANY ACT OTHER THAN A RECOMMENDATION OR AN OPINION ' ' .
13 IT APPEARS FROM THE PROVISIONS QUOTED THAT THE APPLICANT, FOR HIS APPLICATION TO BE ADMISSIBLE, MUST BE IN A POSITION TO ESTABLISH EITHER THAT HE IS THE ADDRESSEE OF A MEASURE OF THE COMMISSION HAVING SPECIFIC LEGAL EFFECTS WITH REGARD TO HIM, WHICH IS, AS SUCH, CAPABLE OF BEING DECLARED VOID, OR THAT THE
COMMISSION, HAVING BEEN DULY CALLED UPON TO ACT IN PURSUANCE OF THE SECOND PARAGRAPH OF ARTICLE 175, HAS FAILED TO ADOPT IN RELATION TO HIM A MEASURE WHICH HE WAS LEGALLY ENTITLED TO CLAIM BY VIRTUE OF THE RULES OF COMMUNITY LAW .
14 IN REPLY TO A QUESTION FROM THE COURT THE APPLICANT STATED THAT THE MEASURE TO WHICH HE BELIEVED HIMSELF TO BE ENTITLED WAS ' ' A RESPONSE, AN ADEQUATE ANSWER TO HIS COMPLAINT SAYING EITHER THAT THE COMMISSION WAS GOING TO ACT UPON IT OR SAYING THAT IT WAS NOT AND, IF NOT, GIVING REASONS ' ' . ALTERNATIVELY THE APPLICANT TOOK THE VIEW THAT THE LETTER ADDRESSED TO HIM ON 17 JULY 1981 BY THE DIRECTOR-GENERAL FOR COMPETITION WAS TO BE DESCRIBED AS AN ACT AGAINST WHICH PROCEEDINGS MAY BE INSTITUTED UNDER THE SECOND PARAGRAPH OF ARTICLE 173 .
15 THE PRINCIPAL QUESTION TO BE RESOLVED IN THIS CASE IS WHETHER THE COMMISSION HAD, UNDER THE RULES OF COMMUNITY LAW, THE RIGHT AND THE DUTY TO ADOPT IN RESPECT OF THE APPLICANT A DECISION IN THE SENSE OF THE REQUEST MADE BY THE APPLICANT TO THE COMMISSION IN HIS LETTER OF 13 MAY 1981 . IT IS APPARENT FROM THE CONTENT OF THAT LETTER AND FROM THE EXPLANATIONS GIVEN DURING THE PROCEEDINGS THAT THE APPLICANT IS ASKING THE COMMISSION TO UNDERTAKE AN INVESTIGATION WITH REGARD TO THE AIRLINES IN THE MATTER OF THE FIXING OF AIR FARES WITH A VIEW TO A POSSIBLE APPLICATION TO THEM OF THE PROVISIONS OF THE TREATY WITH REGARD TO COMPETITION .
16 IT IS CLEAR THEREFORE THAT THE APPLICANT IS ASKING THE COMMISSION, NOT TO TAKE A DECISION IN RESPECT OF HIM, BUT TO OPEN AN INQUIRY WITH REGARD TO THIRD PARTIES AND TO TAKE DECISIONS IN RESPECT OF THEM . NO DOUBT THE APPLICANT, IN HIS DOUBLE CAPACITY AS A USER OF THE AIRLINES AND A LEADING MEMBER OF AN ORGANIZATION OF USERS OF AIR PASSENGER SERVICES, HAS AN INDIRECT INTEREST, AS OTHER USERS MAY HAVE, IN SUCH PROCEEDINGS AND THEIR POSSIBLE OUTCOME, BUT HE IS NEVERTHELESS NOT IN THE PRECISE LEGAL POSITION OF THE ACTUAL ADDRESSEE OF A DECISION WHICH MAY BE DECLARED VOID UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OR IN THAT OF THE POTENTIAL ADDRESSEE OF A LEGAL MEASURE WHICH THE COMMISSION HAS A DUTY TO ADOPT WITH REGARD TO HIM, AS IS POSITION UNDER THE THIRD PARAGRAPH OF ARTICLE 175 .
17 IT FOLLOWS THAT THE APPLICATION IS INADMISSIBLE FROM THE POINT OF VIEW OF BOTH ARTICLE 175 AND ARTICLE 173 .
Decision on costs
COSTS
18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE AN UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .
19 AS THE APPLICANT HAS FAILED IN HIS SUBMISSIONS HE MUST BE ORDERED TO PAY THE COSTS .
20 AS ONLY THE COMMISSION HAS ASKED FOR COSTS THE ORDER MUST BE LIMITED TO THE COSTS INCURRED BY THE COMMISSION .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS INCURRED BY THE COMMISSION AND ORDERS THE INTERVENERS TO BEAR THEIR OWN COSTS .