1.

In my view it is necessary to begin by examining the question whether the said letter constitutes a decision of the Commission at all. This was denied by the Commission itself, which cited in particular the case-law of the Court of Justice on the concept of a decision. According to that case-law the question depends on whether the measure is intended to produce legal effects (Case 54/65, Compagnie des Forges de Châtillon, Commentry et Neuves-Maisons v High Authority of the ECSC, judgment of 16 June 1966 [1966] ECR 185). Accordingly, in the judgment of 5 December 1963 in Joined Cases 23, 24 and 52/63, S.A. Usines Henncot and Others v High Authority of the ECSC [1963] ECR 217, importance was attached to the question whether an act shows that it is intended to grant rights or impose duties upon those to whom it is addressed, and in the judgment of 15 March 1967 in Joined Cases 8 to 11/66, S.A. Cimenteries C.B.R and Others v Commission of the EEC [1967] ECR 75, the decisive test was considered to be whether a measure produced legal effects touching the interests of the undertakings concerned and whether the measure was binding on them. Further, it was considered to be important, if a measure was to be classified as a decision, that it should mark the culmination of the internal administrative procedure and be a definitive expression of intentions (Case 54/65 and Joined Cases 23, 24 and 52/63). A factor of considerable importance is that the measure should be identifiable as a statement of the competent institution and that its external form enables it to be said that it is a decision. In Joined Cases 23, 24 and 52/63 it was held that it was necessary for the persons concerned to be able to recognize the nature of the statement from its external form; above all it had to be clear that there was a decision of the responsible institution, acting as a body, for which under the law of the ECSC the signature of a member of the High Authority was essential. According to the Commission, the letter involved in the present case clearly does not comply with those requirements. Its only effect is that the Commission cannot afterwards — unless new circumstances arise — take action under Article 85 (1); on the other hand it is impossible to speak of damage to the interests of the addressee because it may in any case rely on its notification of the distribution system. Another important factor — and in this respect the Commission cites the judgment of 15 May 1975 in Case 71/74 Nederlandse Vereniging voor Fmk en Groentenimporthandel and Nederlandse Bond van Grossiers in Zuidvruchten en ander Geïmporteerd Fruit v Commission [1975] ECR 563 — is the fact that the letter was only signed by a Director in the Directorate-General for Competition. According to the Rules of Procedure of the Commission, such a Director has no power to take measures under Article 2 of Regulation No 17; moreover, the letter does not even create the impression that a binding declaration of the Commission is involved or that any decisive action has been taken on behalf of the Commission. On the other hand, the defendant in the main action takes the view that its interests were indeed affected by the said letter. Moreover, it claims that like other undertakings, it inferred from the Commission's Fifth Report on Competition Policy that the Commission had sought to apply a “uniform general arrangement throughout the perfume industry”. From that, it is argued, it was possible to conclude that the Commission itself had adopted a decision. If, however, the transmission of that decision by officials of the Commission involved certain procedural defects, that cannot have any decisive significance. As far as this dispute is concerned, the question whether the communication addressed to Estéé Lauder could be regarded as a decision from its content may now remain open. However, I should like none the less to state that I do not think that this can be ruled out. I say so because, as regards the material concept of a decision, the fact that legal effects are attached to a declaration ought to be sufficient — which is certainly true in the case of the statement, binding upon the Commission, that the competition rules contained in the EEC Treaty did not apply — whereas the question of an adverse effect upon the interests of those concerned should not be a decisive factor. Of greater importance is, first, the fact that according to the Rules of Procedure of the Commission (Oficial Journal, English Special Edition, Second Series VII, p. 14) only the Commission has power to adopt formal decisions in the field of competition (negative clearances, finding of an infringement of Article 85 (1), exemption or refusal to grant exemption under Article 85 (3)). According to those rules there is no delegation of powers to individual members of the Commission or indeed to officials of the Commission. Such a possibility was only introduced by Commission Decision of 23 July 1975 (Official Journal L 199 of 30 July 1975, p. 43), and even then only for “measures of management or administration”. Of importance, secondly, is the Commission's undisputed account of the events which led to the letter concerned in this case and also to the other letters to be appraised in the references for preliminary rulings in Joined Cases 253/78 and 1 to 3/79. Thus, as I have already remarked in the other cases, after notification of a number of agreements on selective distribution systems in the perfume industry, it was decided to initiate procedures against three undertakings — not against Estéé Lauder — with regard to particular clauses affecting trade between Member States and to send them the appropriate notices of complaint. For that purpose an act of the member of the Commission responsible for competition matters was obviously sufficient. During the administrative procedure negotiations took place between departments of the Commission and the undertakings concerned, resulting in the removal of the offensive clauses. There was however never any decision of the Commission for that purpose, that is to say, the members of the Commission did not as a body form an intention to judge those events in a particular way. In view of the cumbersomeness of the formal procedure — it is necessary to publish the application pursuant to Article 19 of Regulation No 17 and to consult the Advisory Committee on Restrictive Practices and Monopolies — and in view of the necessity of concentrating the work of the Directorate-General for Competition, which is understaffed, on more important competition cases, formal negative clearances were dispensed with and such matters were left to the judgment of the Commissioner responsible for competition matters. That judgment was then applied to all similar cases arid letters were then addressed to the undertakings, signed by the Director-General for Competition or by a Director of that Directorate-General. Thus it is impossible to escape the decisive conclusion that there were no acts of the Commission itself in the nature of negative clearances. Moreover, in my opinion it may also be said — should the matter depend on that — that no such impression was aroused either. The Commission's Fifth Report on Competition Policy, to which Estéé Lauder referred, speaks only of a general conception of the Commission for the perfume industry, not thus of an appraisal of individual cases, which, if a guiding principle had been devised by the Commission itself, could of course still have been included in that general solution. Besides, it is clear from that report that no formal decisions were to be taken. Therefore the letter referred to in the first question submitted by the court making the reference should be regarded not as a decision nor as the communication of a decision, but only as an administrative communication to the effect that the departments of the Commission saw no reason to take action under Article 85 (1). According to this appraisal of the letter, it cannot be a negative clearance within the meaning of Article 2 of Regulation No 17 either. That view is indicated by the fact that the term “negative clearance” was avoided, that the form which was normally used for negative clearances was not chosen, that it was not published in accordance with Article 21 of Regulation No 17 and that the communication is not contained in the list of decisions which is annexed to the Fifth Report on Competition Policy. That this hardly seems satisfactory from the point of view of the undertakings concerned, which wish to plan their business on a firm basis, must be conceded forthwith. However, that question cannot be dealt with now, any more than the question whether after notification of an agreement the undertakings had at their disposal suitable means of prompting the Commission to issue a fromal decision.