Keywords

Summary



Keywords

1 Actions for annulment - Time-limits - Commencement - Notification - Meaning - Burden of proving notification

(EC Treaty, Art. 173, fifth para.; Rules of Procedure of the Court of First Instance, Arts 101 and 102)

2 Competition - Administrative procedure - Examination of complaints - Different complaints from the same parties relating to the same facts - Treated separately - Permissible - Conditions

3 Competition - Administrative procedure - Examination of complaints - Statement of reasons for decisions to close the file - Obligation - Scope - Application, in relation to agreements, decisions and concerted practices necessary for attainment of the objectives laid down in Article 39 of the Treaty, of the derogation from the competition rules available for agricultural products - Commission's obligation to adopt a formal decision under Article 2 of Regulation No 26 addressed to the complainant - None

(Council Regulations No 17, Art. 3(2)(b), and No 26, Art. 2)

4 Acts of the institutions - Statement of reasons - Obligation - Scope - Commission decision applying, in relation to agreements, decisions and concerted practices necessary for attainment of the objectives laid down in Article 39 of the Treaty, the derogation from the competition rules available for agricultural products - Decision not in line with previous decisions - Need for an explicit statement of reasons

(EC Treaty, Arts 39 and 190; Council Regulations No 26, Art. 2(1), and No 234/68)

5 Agriculture - Competition rules - Regulation No 26 - Derogation available for agreements, decisions and concerted practices necessary for attainment of the objectives laid down in Article 39 of the Treaty - Examination by the Commission of a fee levied by an agricultural cooperative on supplies by non-member producers to independent buyers - Factors to be taken into account - Objectives of Article 39 of the Treaty - Principle of proportionality

(EC Treaty, Art. 39; Regulation No 26, Art. 2(1))

Summary

6 It is the responsibility of the party alleging that an action is out of time, having regard to the time-limits laid down in the last paragraph of Article 173 of the Treaty and in Articles 101 and 102 of the Rules of Procedure of the Court of First Instance, to prove on what date the decision was notified.

7 The Commission may deal separately with complaints concerning different agreements and conduct in relation to the same facts provided that, in its decision on one of the complaints, it takes account of the aspects of the various agreements and types of conduct covered by the other complaints which are liable to affect the legality of the conduct covered by the complaint to which the decision relates.

8 When rejecting a complaint lodged under Article 3(2)(b) of Regulation No 17, the Commission must indicate the reasons for which a careful examination of the facts and points of law brought to its notice by the complainant has not led it to initiate a procedure to establish whether Article 85 of the Treaty has been infringed. In so doing, the Commission may, in relation to the agricultural products referred to in Annex II to the Treaty, explain the reasons for which it considers that Article 2 of Regulation No 26 applies and a careful examination of the complaint does not therefore prompt it to take the action requested by the complainant. However, the Commission's duty to the complainant to give the reasons for rejecting a complaint does not mean that it is automatically required to adopt a formal decision under Article 2 of Regulation No 26 addressed to the complainant.

9 When the Commission concludes, in reliance on Article 2(1) of Regulation No 26, that Article 85(1) of the Treaty is not applicable to the rules of an agricultural cooperative on the ground that they are necessary for attainment of the objectives set out in Article 39 of the Treaty and the scope of its decision goes appreciably further than that of earlier decisions, it is incumbent on the Commission to set out its reasoning in a particularly explicit manner. That is particularly true because, constituting as it does a derogation from the general rule in Article 85(1) of the Treaty, Article 2 of Regulation No 26 must be interpreted strictly.

That is the case where the Commission applies that derogation to the rules of a cooperative of growers of flowers and ornamental plants which levies a fee on transactions between third parties, namely independent wholesalers established on its premises and suppliers who are not members. In the first place, the Commission has never in the past found that an agreement between the members of a cooperative which affects free access by non-members to agricultural producers' channels of distribution is necessary for attainment of the objectives set out in Article 39 of the Treaty. Secondly, the Commission's practice in earlier decisions has generally been to conclude that agreements not included amongst the means indicated by the regulation providing for a common organization in order to attain the objectives set out in Article 39 are not necessary within the meaning of the first sentence of Article 2(1) of Regulation No 26. The common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage, established by Regulation No 234/68 of the Council does not provide for agricultural cooperatives to impose such a fee on third parties. The same applies to the Community measures applicable in other agricultural sectors.

Moreover, the first sentence of Article 2(1) of Regulation No 26 applies only if the agreement in question is conducive to attainment of all the objectives of Article 39 of the Treaty. It follows that the Commission's statement of reasons must show how the agreement at issue satisfies each of the objectives of that article. In the event of a conflict between those sometimes divergent objectives, the Commission's statement of reasons must, at the very least, show how it was able to reconcile them so as to enable the first sentence of Article 2(1) of Regulation No 26 to be applied.

10 The concentration of supply achieved by a cooperative of growers of flowers and ornamental plants, based on the members' obligation to dispose of their products through auction sales, helps in particular to improve the organization of marketing by enabling a large number of small producers to participate in the economic process on a wider-than-regional scale, thus fulfilling certain objectives of Article 39 of the Treaty.

However, a fee levied by that cooperative on supplies by non-member producers to independent buyers is capable of adversely affecting those non-member producers, whose interests are also covered by Article 39 of the Treaty. In particular, a levy of that kind normally has the effect of increasing the price of such transactions and constitutes at the very least a significant impediment to the freedom of other agricultural producers to sell through the distribution channels in question.

It follows that, even if the system of such a cooperative meets certain of the objectives set out in Article 39 of the Treaty, that user fee is capable of operating in certain respects in a manner inimical to those objectives, in particular by preventing producers who are not members from increasing their individual earnings, by impeding the availability of supplies from those other producers and by precluding price developments which are favourable from the consumer's point of view.

In addition, in so far as the user fee represents an essential means for the cooperative of dissuading its membership from leaving it in order to sell direct to the purchasers, if for certain producers such direct sales to the purchasers concerned were less costly or more efficient than the cooperative's system, the user fee might, from that standpoint too, adversely affect the rational development of agriculture, increases in the individual earnings of those engaged in agriculture and the prices at which supplies reach consumers. A provision having the effect of excessively restricting the freedom of a member of an agricultural cooperative to leave it would be difficult to reconcile with the objectives set out in Article 39 of the Treaty.

Moreover, if such a user fee were not collected in a proportionate manner, in return for a service or other advantage whose value might justify the amount levied, it would have the effect of placing certain agricultural producers at a disadvantage, thereby benefiting members of the cooperative, and would constitute a disguised restriction of competition, with no sufficient objective justification. Since the first sentence of Article 2(1) of Regulation No 26 is to be interpreted strictly, a fee having such an effect cannot be regarded as `necessary' for attainment of the objectives set out in Article 39 of the Treaty, within the meaning of that provision, unless it complies with the principle of proportionality.