4.

However, another matter gives rise to doubts as to admissibility. It follows from Article 175 of the Treaty that the right of action may be precluded by the behaviour of the institution before whom the matter has been brought after it had been called upon to act. This aspect must now be considered, without its being necessary to come to a final decision as to whether in the present case, as the Commission has suggested, a position was defined within the meaning of Article 175. The behaviour of the Commission in the present case was characterized by the fact that the Association was in fact granted a hearing in accordance with its request of 13 November 1970. This is clear from the Commission's reply, in which it set a time-limit of one month for the submission of written observations and stated that it was prepared to discuss the matter orally. The original period was subsequently extended on two occasions, so that altogether the Association had more than two months in which to make known its point of view. Thus in my view the applicant's request was thereby granted; it has had ample opportunity to defend its interests and, in particular, was assured that its observations would be included in the Commission's deliberations, that is, that they would be employed in the proceedings against GEMA. This view may be entertained although the reply was only issued by the Director of the Directorate for Agreements and Dominant Positions, since in any event it is provided in accordance with Article 9 of Regulation No 99 that hearings in cartel proceedings of the Community ‘shall be conducted by the persons appointed by the Commission for that purpose’. There is furthermore no indication that the assurances contained in the letter of 17 November would not have been honoured and that the Association's observations would thus have been ignored. However, the most important factor of all is that the provisions of the above-mentioned Regulation No 99 on hearings were complied with. Article 5 thereof states in particular: ‘If natural or legal persons … apply to be heard pursuant to Article 19(2) of Regulation No 17, the Commission shall afford them the opportunity of making known their views in writing within such time-limit as it shall fix’. In accordance with Article 11 of Regulation No 99, in fixing the time-limit the Commission shall have regard ‘to the time required for the preparation of comments and to the urgency of the case’. It is merely provided that the time-limit shall be not less than two weeks. In addition, Article 7 of Regulation No 99 provides that ‘The Commission shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest …’. The Commission has certainly not failed to observe the substance of those provisions in its reply. I do not however consider that the applicant has in addition a claim to further measures, in particular that its right to be heard should be confirmed by the Commission itself in a formal decision. It would undoubtedly have no effect on the procedure with regard to the hearing as such if it were stated that instead of constituting a mere informal hearing in pursuance of the first sentence of Article 19(2) of Regulation No 17 it was a formal hearing, since the procedure is completed when the Commission receives the observations. In particular, Community law does not recognize formal participation in administrative proceedings, which would confer the enhanced status of ‘party’ to the proceedings, as is provided in Article 51 of the Gesetz gegen Wettbewerbsbeschrankungen (Law against restrictions on competition). Thus, when the plaintiff in this connexion indicates that a formal decision on the hearing by the Commission would probably have enabled it to raise matters in the proceedings, it must be stated that no provision of this nature is contained in the procedural rules of Community competition law. In addition, it must be recognized that, even without a formal decision on the hearing, the applicant could have availed itself of the opportunity of influencing the proceedings by means of suggestions. If the applicant had encountered difficulties in this connexion, it would still have had the opportunity of furthering the defence of its interests on this ground (particularly as the question of its entitlement to a hearing has remained open). It is, however, certain that at the time of admission to the hearing there exists no immediate interest in the resolution of questions of the type which might be put in the course of the proceedings. Finally, with regard to the effect on the possibility of bringing subsequent proceedings under Article 173 of the EEC Treaty against the decision concluding the cartel proceedings, I likewise do not understand what significance a formal decision on admission to the hearing could have. It is clear that these two proceedings are governed by different criteria: with regard to the hearing it is sufficient to establish an interest, whereas with regard to bringing an action it is necessary that the contested decision should be of direct and individual concern to the applicant. In addition, it must also be observed that the attitude of the Commission has in no way prejudiced the solution to the problem of the right to bring an action, which was not relevant at the time, precisely because in its communication of November 1970 the question whether the Association had a right to be heard was left open. It may therefore be said that it is the lack of a legally protected interest which ultimately lead to the rejection of the application for a ruling. It must again be repeated that the decisive factor is that the reaction of the Director of the Directorate for Agreements and Dominant Positions, who was in charge of the proceedings, took sufficient account of the applicant's interest in participating in those proceedings. If the Association did not make use of the opportunity offered it must now be considered that its injury arose from its own conduct. Furthermore, there are no grounds for its application for a theoretical ruling as to whether it had a right to be heard.