Judgment of the Court of First Instance (Third Chamber, extended composition) of 24 September 1996. - National Association of Licensed Opencast Operators v Commission of the European Communities. - ECSC Treaty - Competition - National undertaking owning coal reserves and enjoying a statutory monopoly on the granting of extraction licences - Consideration on the part of the licensee represented by payment of a royalty or supply of the coal to the licensor - Rate of royalties levied - Price of coal supplied - Whether compatible with the ECSC Treaty. - Case T-57/91.



European Court reports 1996 Page II-01019



Summary



Keywords

1. Actions for annulment ° Jurisdiction of the Community judicature ° Issuing of directions to an institution ° Not permissible

(ECSC Treaty, Art. 33)

2. Actions for annulment ° Review of the evaluation of the situation resulting from economic facts and circumstances ° Complaint of manifest failure to comply with the Treaty ° Need for a complaint to be accompanied by relevant evidence ° Carrying out of the review ° Conditions and limits

(ECSC Treaty, Art. 33)

3. ECSC ° Provisions relating to cartels and the abuse of dominant position ° Extraction licences for unworked coal ° Rate of royalty fixed by a producer ° Whether possible to consider it solely in the light of the provisions on abuse of a dominant position, to the exclusion of those relating to cartels ° Provisions relating to pricing practices not applicable

(ECSC Treaty, Arts 4(d), 60, 65 and 66(7))

4. Competition ° Administrative procedure ° Complainants' rights ° Right to a formal hearing before the complaint is rejected by the Commission ° No right

5. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision applying the competition rules in the context of the ECSC Treaty

6. Actions for annulment ° Pleas in law ° Misuse of powers ° Concept

Summary

1. It is not for the Community judicature to issue directions to institutions or to substitute itself for them when exercising its power of judicial review, and it is for the institution concerned to take the necessary measures to comply with a judgment given in an action for annulment.

2. The first part of the second sentence of the first paragraph of Article 33 of the ECSC Treaty sets limits on the Community judicature' s review of choices of economic policy made by the Commission, while the second part removes those limits where the applicant alleges misuse of powers or manifest failure to comply with the Treaty.

In order that the Community judicature may examine the situation resulting from the economic facts and circumstances in the light of which the contested decision was taken, it is necessary and sufficient that there are specific indications that support the allegation of manifest failure to observe the Treaty provisions. Any stricter requirement would confuse the admissibility of the argument with the proof of its substance; a more liberal interpretation, whereby the mere assertion of one of the claims referred to would be sufficient to open the way to review by the Community judicature of the economic evaluation, would reduce that claim to a mere formality.

Furthermore, in carrying out that review, the Community judicature must confine itself to determining whether the contested decision is manifestly unjustified, in the light of the conditions laid down in the Treaty and an overall assessment of the economic situation, it being understood that the term "manifest" presupposes a breach of the relevant legal provisions of such gravity that it appears to derive from an obvious error in the evaluation, having regard to the provisions of the Treaty, of the situation in respect of which the decision was taken.

3. Just as the Commission is entitled, under the EC Treaty, to conduct infringement proceedings on the basis of Article 85 or Article 86 with regard to a contract imposing on the contracting partners of an undertaking in a dominant position obligations which amount to abuse of a dominant position, and which could also fall under Article 85, in particular Article 85(3), so it is also entitled, under the ECSC Treaty, to consider a royalty rate, fixed for the granting of extraction licences by a producer having the exclusive right to treat and extract coal, in the light of Article 66(7) of the ECSC Treaty alone, without ruling on whether such a royalty rate is lawful under Article 65 of that Treaty.

Furthermore, since Article 66(7) of the ECSC Treaty gives effect to Article 4(d) of that Treaty, which applies only in the absence of more specific rules, a decision which, after an examination of that royalty rate, is expressly based only on the first of those articles in rejecting a complaint must be regarded as having applied those two articles at the same time. Where such provisions are restated or elaborated on in other articles of the Treaty, texts relating to one and the same provision must be considered as a whole and applied together.

In any event, examination of the royalty rate does not come under Article 60 of the ECSC Treaty. Since that provision relates only to unfair and discriminatory product-pricing practices, it does not apply to coal-extraction licences issued by the producer. The latter cannot be regarded as engaged in the sale of products where it grants licences to extract coal.

4. A procedure commenced by the Commission to ensure that the competition rules are observed by undertakings does not constitute adversarial proceedings between a complainant undertaking and the undertaking that is the object of the procedure. Since the two undertakings concerned are not in the same procedural situation, it follows that the complainant cannot invoke the same rights to a fair hearing as those that the other undertaking is recognized as having and under which the latter must be in a position to set out its views on the complaints which may be upheld against it, as well as on the documents on which those complaints are based.

It follows that a complainant undertaking cannot rely on a right to a formal hearing before the Commission has rejected its complaint.

5. The statement of the reasons on which a decision adversely affecting a person are based must, first, be such as to enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded and, second, enable the Community judicature to exercise its power of review as to the legality of the decision.

However, the Commission is not obliged, in stating the reasons for the decisions which it takes to ensure the application of the competition rules, to adopt a position on all the factual or legal issues raised by the complainants in support of their request that the Commission should find that those rules have been breached. It need only set out the facts and legal considerations which are of decisive importance in the context of the decision.

Finally, the requirement of a statement of reasons must be viewed in the context of the circumstances of the case, in particular the content of the measure in question, the nature of the reasons relied on and the context in which the measure was adopted.

6. A measure may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or of evading a procedure specifically prescribed for dealing with the circumstances of the case.