Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 22 October 1997. - Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanbedrijven (FNK) v Commission of the European Communities. - Competition - Mobile cranes - Article 6 of the European Convention on Human Rights - Acting within a reasonable time - Certification system - Prohibition on hiring - Recommended rates - Internal rates - Fines. - Joined cases T-213/95 and T-18/96.



European Court reports 1997 Page II-01739



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 Non-contractual liability - Conditions - Unlawfulness - Damage - Causal link - Burden of proof

(EC Treaty, Art. 215, second para.)

2 Competition - Administrative procedure - Commission's obligations - Required to act within a reasonable time

(Council Regulation No 17, Arts 2, 3(1) and 4(1))

3 Competition - Administrative procedure - Application of the audi alteram partem principle - Statement of objections - Obligation to issue a further statement of objections where the infringement alleged is amended

(Council Regulation No 17, Art. 19(1); Regulation No 99/63 of the Commission, Arts 2 and 4)

4 Competition - Administrative procedure - Examination of complaints - Setting of priorities by the Commission

5 Community law - Interpretation - Acts of the institutions - Statement of reasons - Account to be taken

6 Competition - Community rules - Undertaking - Definition - Body governed by private law engaging in an economic activity involving certification of crane-hire firms - Included

(EC Treaty, Art. 85(1))

7 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Certification system for crane-hire firms - Prohibition on hiring cranes from uncertified firms - Assessment by reference to the nature of the system - Definition of pertinent criteria by the Commission

(EC Treaty, Art. 85(1))

8 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Setting of prices - System of recommended and internal rates developed within an organization - System resulting in the setting of imposed prices

(EC Treaty, Art. 85(1))

9 Competition - Agreements, decisions and concerted practices - Whether they affect trade between Member States - Criteria - Concerted practice extending over the whole territory of a Member State

(EC Treaty, Art. 85(1))

10 Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Burden of proof - Review by the Court - Limits

(EC Treaty, Art. 85(3))

11 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules

(EC Treaty, Art. 190)

12 Competition - Fines - Commission's discretion

(Council Regulation No 17, Art. 15(2))

13 Competition - Fines - Amount - Determination - Criteria - Gravity of the infringements - Factors of assessment

(Council Regulation No 17, Art. 15(2))

14 Competition - Fines - Amount - Determination - Turnover taken into account - Turnover of all the undertakings constituting an association of undertakings - Whether permissible

(Council Regulation No 17, Art. 15(2))

Summary

15 The Community's liability under the second paragraph of Article 215 of the EC Treaty is dependent on the concurrent presence of a number of conditions as to the unlawfulness of the acts alleged against the Community institution concerned, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of.

There is a causal link for the purposes of the second paragraph of Article 215 of the Treaty where there is a direct causal link between the fault committed by the institution concerned and the injury pleaded, the burden of proving which falls on the applicants.

16 When a party applies to the Commission for negative clearance under Article 2 of Regulation No 17 or gives it notification under Article 4(1) thereof for the purpose of obtaining an exemption, the Commission may not defer defining its position indefinitely. In the interests of legal certainty and of ensuring adequate judicial protection, it is required to adopt a decision or, if such a letter has been requested, to send a formal letter within a reasonable time. Similarly, when the Commission receives an application under Article 3(1) of Regulation No 17 alleging infringement of Article 85 and/or Article 86 of the Treaty, it is required to adopt a definitive position on the complaint within a reasonable time. It is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy.

The question whether the duration of an administrative proceeding is reasonable must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved.

17 Article 19(1) of Regulation No 17 and Articles 2 and 4 of Regulation No 99/63, which apply the audi alteram partem principle, require that undertakings concerned by a proceeding for the establishment of infringements of the rules on competition are afforded the opportunity, in the course of the administrative procedure, of effectively making known their views on all the objections dealt with in the decision.

In accordance with that requirement, when the Commission proposes to deal in its decision with objections not covered by the first statement of objections, it is required to send a second such statement to the undertakings concerned.

18 The Commission is entitled to apply different degrees of priority to the cases submitted to it. If, following notification of an arrangement, it takes the view that the practices notified to it cannot be exempted under Article 85(3) of the Treaty, it may, when assessing the degree of priority to be given to the notification, take into account the fact that a national court has already caused the infringements in question to cease.

19 The statement of the reasons for an act is indispensable for determining the exact meaning of what is stated in the operative part.

20 A body governed by private law which sets up a certification system for crane-hire firms to which affiliation is optional, establishes independently the criteria which certified firms must satisfy and issues a certificate only on payment of a subscription must be classified as an undertaking within the meaning of Article 85(1) of the Treaty since, in the context of competition law, that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.

21 The assessment as to whether conduct is in accordance with Article 85(1) of the Treaty is to be carried out in the legal and economic context of the case.

Accordingly, when the Commission examines a certification system for crane-hire firms under which certified firms are prohibited from hiring cranes from uncertified firms, it is entitled to establish criteria which the system must comply with in order for it to be possible for the prohibition on hiring to fall outside Article 85(1).

In that regard, the openness of the system and the acceptance of equivalent guarantees offered by other systems are pertinent criteria on which the Commission may rely in order to ascertain whether the prohibition at issue distorts competition. First, the prohibition affects significantly the competitive opportunities of uncertified firms if it is difficult to gain access to the certification system. Secondly, by preventing certified firms from calling on the services of uncertified firms even if they provide guarantees equivalent to those of the certification system, that prohibition cannot be objectively justified by an interest in maintaining the quality of the products and services ensured by the certification system; on the contrary, the failure to accept such guarantees protects certified firms from competition from uncertified firms.

22 A system of rates set up by a sector-based organization which brings together crane-hire firms in a Member State, consisting of recommended rates for the hiring of cranes by clients and internal rates applicable to hirings between members of the organization, constitutes in fact a pricing system binding the members of that organization when those rates, compliance with which is monitored, give substance to the concept of reasonable rates which members are required to charge on pain of expulsion from the organization. Where such a system enables the members of the organization, even if some of them do not always adhere to the prices set, to predict with a reasonable degree of certainty the pricing policy pursued by the other members and, in addition, it is established that the system has the object of increasing market prices, that system restricts competition for the purposes of Article 85(1) of the Treaty.

23 In order that an agreement, decision or concerted practice may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that the achievement of a single market between Member States might be impeded.

In that regard, practices restricting competition which extend over the whole territory of a Member State have, by their very nature, the effect of reinforcing compartmentalization of national markets, thereby holding up the economic interpenetration which the Treaty is intended to bring about.

24 In order for an individual decision exempting an agreement between undertakings to be adopted, the four conditions specified in Article 85(3) of the Treaty must be satisfied cumulatively, so that failure to fulfil one of those four conditions is sufficient for the exemption to have to be refused. It is incumbent upon the notifying undertakings to provide the Commission with evidence that those four conditions are met.

The review undertaken by the Community judicature of the complex economic appraisals made by the Commission when it exercises the discretion conferred on it by Article 85(3) of the Treaty, with regard to each of the four conditions laid down in that provision, is necessarily limited to verifying whether the rules on procedure and on the giving of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.

25 The purpose of the statement of the reasons on which an individual decision is based is to give the person concerned sufficient information to enable him to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested, and to enable the Community judicature to carry out its review of the legality of the decision. The extent of that obligation depends on the nature of the measure in question and on the context in which it was adopted. Accordingly, the Commission must explain its reasoning when it adopts a decision which goes appreciably further than its previous decisions.

While the Commission is required under Article 190 of the Treaty to give reasons for its decisions by setting out the circumstances justifying their adoption and the legal considerations which led it to adopt them, it is not required, in the case of a decision applying the rules on competition, to discuss all the matters of fact and of law raised during the administrative procedure by each party concerned.

26 The infringements of competition law which are liable to be penalized are those which are committed deliberately or negligently. It is sufficient for this that the party committing the act in question must have known that its conduct would result in a restriction of competition.

The Commission exercises its discretion in the specific context of each case when deciding whether it is appropriate to impose a fine in order to penalize the infringement found and to protect the effectiveness of competition law.

27 The amount of a fine imposed for breach of the Treaty's competition rules must be fixed at a level which takes account of the circumstances and the gravity of the infringement and the latter is to be appraised taking into account in particular the nature of the restrictions on competition.

28 The use of the general term `infringement' in Article 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of associations of undertakings, indicates that the upper limits for fines laid down in that provision apply in the same way to agreements and concerted practices as to decisions of associations of undertakings. It follows that the upper limit of 10% of turnover must be calculated by reference to the turnover of each of the undertakings which are parties to those agreements and concerted practices or of the undertakings, as a whole, which were members of the said associations of undertakings, at least where, by virtue of its internal rules, the association is able to bind its members. The correctness of this view is borne out by the fact that the influence which an association of undertakings has been able to exert on the market does not depend on its own `turnover', which discloses neither its size nor its economic power, but rather on the turnover of its members, which constitutes an indication of its size and economic power.

Parties

In Joined Cases T-213/95 and T-18/96,

Stichting Certificatie Kraanverhuurbedrijf (SCK), a foundation established under Netherlands law, whose registered office is in Culemborg, Netherlands,

Federatie van Nederlandse Kraanverhuurbedrijven (FNK), an association established under Netherlands law, whose registered office is in Culemborg, Netherlands,

represented by Martijn van Empel, of the Amsterdam Bar, and Thomas Janssens, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicants,

v

Commission of the European Communities, represented by Wouter Wils, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported in Case T-18/96 by

Van Marwijk Kraanverhuur BV, a company incorporated under Netherlands law, whose registered office is in Zoetermeer, Netherlands,

Kraanbedrijf Nijdam BV, a company incorporated under Netherlands law, whose registered office is in Groningen, Netherlands,

Kranen, Transport & Montage 's Gilde NV, a company incorporated under Netherlands law, whose registered office is in Geldermalsen, Netherlands,

Wassink Transport Arnhem BV, a company incorporated under Netherlands law, whose registered office is in Arnhem, Netherlands,

Koedam Kraanverhuur BV, a company incorporated under Netherlands law, whose registered office is in Vianen, Netherlands,

Firma Huurdeman Kraanwagenverhuurbedrijf, a company incorporated under Netherlands law, whose registered office is in Hoevelaken, Netherlands,

Datek NV, a company incorporated under Belgian law, whose registered office is in Genk, Belgium,

Thom Hendrickx, resident in Turnhout, Belgium,

represented by August Braakman, of the Rotterdam Bar, and Willem Sluiter, of the Hague Bar, with an address for service in Luxembourg at the Chambers of Michel Molitor, 14A Rue des Bains,

interveners,

APPLICATION, in Case T-213/95, for an order under Articles 178 and 215 of the EC Treaty requiring the Commission to pay compensation for the harm caused to the applicants by its unlawful conduct and, in Case T-18/96, for the annulment of Commission Decision 95/551/EC of 29 November 1995 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 - Stichting Certificatie Kraanverhuurbedrijf and the Federatie van Nederlandse Kraanverhuurbedrijven) (OJ 1995 L 312, p. 79),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Fourth Chamber, Extended Composition),

composed of: K. Lenaerts, President, P. Lindh, J. Azizi, J.D. Cooke and M. Jaeger, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 4 June 1997,

gives the following

Judgment

Grounds

Background and procedure

1 These cases are concerned with the mobile crane-hire sector in the Netherlands. Mobile cranes are cranes which can be moved freely about a worksite. They can thus be distinguished from tower cranes which are mounted on fixed rails and can move forwards and backwards only. Mobile cranes are used mainly in construction, in the petrochemical industry and in the transport sector.

2 For technical reasons, the area of operation of a mobile crane is confined to a radius of 50 kilometres. A further feature of the mobile crane-hire sector is that contracts are entered into very shortly before a job is carried out (`overnight contracting'). When a crane-hire firm is asked to do a job at very short notice, it decides, in the light of the site's location and the availability of its own cranes, either to use one of the latter or to hire a crane from another firm located near the site.

3 The foundation Keuring Bouw Machines (`Keboma'), which was set up in 1982 by the Netherlands Ministry for Social Affairs, inspects cranes before they are brought into service for the first time, to ensure that they comply with the legal safety requirements set out in the Arbeidsomstandighedenwet (Law on Conditions at the Workplace), in the Veiligheidsbesluit voor Fabrieken of Werkplaatsen (Decree on Safety in Factories and at Worksites), in the Veiligheidsbesluit Restgroepen (Decree on Safety at other types of Workplace) and in various ministerial regulations and publications of the Labour Inspectorate. Keboma is the only official body designated to inspect and test mobile cranes. Under Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (OJ 1989 L 183, p. 9), the requirement that cranes be inspected before they are first brought into service does not apply, from 1 January 1993, to cranes which bear an EC mark and are accompanied by an EC declaration of conformity within the meaning of the directive. Cranes must be inspected by Keboma three years after they are first brought into service and, after that second check, every two years.

4 The Federatie van Nederlandse Kraanverhuurbedrijven (`FNK') is the sector-based organization, established on 13 March 1971, which brings together crane-hire firms in the Netherlands. Under its statutes, its object is to defend the interests of crane-hire firms, in particular of its members, and to encourage contacts and cooperation in the broadest sense between members. FNK members account for 1 552 of the 3 000 or so cranes available for hire in the Netherlands. From 15 December 1979 to 28 April 1992 Article 3 of FNK's internal rules contained a clause requiring its members to give priority to other members when hiring or hiring out cranes (`the priority clause') and to charge `reasonable' rates. The FNK set and published recommended rates and cost estimates for the hiring of cranes by clients. In addition, internal rates applicable to hirings between FNK members were set at regular meetings of crane-hire firms.

5 The Stichting Certificatie Kraanverhuurbedrijf (`SCK') is a foundation set up in 1985 by representatives of crane-hire firms and their clients. Under its statutes, its object is to promote and maintain the quality standards of crane-hire firms. It accordingly set up a certification system under which it issues certificates to firms which meet a range of requirements relating to the management of a crane-hire firm and to the use and maintenance of cranes. That certification system enables clients to proceed on the basis that the firm concerned complies with the requirements in question without having to check this themselves. The second indent of Article 7 of SCK's rules on the certification of crane-hire firms prohibits firms certified by it from hiring cranes from firms not certified by it (`the prohibition on hiring'). With effect from 20 January 1989, SCK was accredited by the Raad voor de Certificatie (Certification Council), the Netherlands authority responsible for accrediting certification bodies; it recorded that SCK fulfilled the conditions established on the basis of the European standards EN 45 011 defining the criteria which certification bodies must satisfy. Under Paragraph 2.5 of the accreditation criteria of the Raad voor de Certificatie, the certificate-awarding body is required to ensure that the certification conditions are also complied with if subcontractors are used. It can meet that requirement either by checking subcontractors itself (Paragraph 2.5.A1) or by monitoring the checks on subcontractors carried out by the accredited firm (Paragraph 2.5.A2 and A3).

6 On 13 January 1992, M.W.C.M. Van Marwijk (`Van Marwijk') and ten other undertakings submitted a complaint to the Commission together with an application for interim measures. They considered that the applicants were infringing the competition rules of the EC Treaty by excluding firms not certified by SCK from hiring out mobile cranes and by imposing fixed prices for crane hire.

7 On 15 January 1992 SCK's statutes and its rules on the certification of crane-hire firms were notified to the Commission. FNK's statutes and internal rules were notified on 6 February 1992. In both cases, an application was made for negative clearance or, in the alternative, exemption pursuant to Article 85(3) of the Treaty.

8 In an action brought by the complainants in the Netherlands courts, the President of the Arrondissementsrechtbank (District Court), Utrecht, made an interim order on 11 February 1992 requiring FNK to withdraw the priority clause and the system of recommended rates (applicable to hirings with clients) and of internal rates (applicable to hirings between crane-hire firms). He made an order restraining SCK from applying the prohibition on hiring. By a further interim order, made on 9 July 1992, the Gerechtshof (Regional Court of Appeal), Amsterdam, set aside the first order, holding that it was not obvious and beyond all doubt that there was no prospect of the arrangements in question being exempted by the Commission. On the same day, SCK reinstated the prohibition on hiring. FNK, on the other hand, gave up future involvement in the formulation of recommended rates and internal rates.

9 On 16 December 1992, the Commission issued a statement of objections addressed to the applicants. In that document it informed them that it intended, pursuant to Article 15(6) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87; `Regulation No 17'), to lift the immunity from fines laid down in Article 15(5).

10 On 3 February 1993 the applicants sent the Commission their reply to the statement of objections. In that reply they asked in particular for a hearing to be arranged.

11 By letter of 4 June 1993 the Commission informed them that the procedure under Article 15(6) of Regulation No 17 could be terminated only if the prohibition on hiring was withdrawn.

12 The complainants made a fresh application to the President of the Arrondissementsrechtbank, Utrecht, who, by interim order of 6 July 1993, ruled that the prohibition on hiring could no longer be applied since the Commission had in the meantime made known its view on the arrangements at issue and there appeared to be no prospect of its exempting that prohibition.

13 By letter dated 29 September 1993 the Commission informed the applicants that it would hold the hearing requested by them before it adopted a final decision under Article 85 of the Treaty, but that there was no requirement for such a hearing to be held where a decision was based on Article 15(6) of Regulation No 17.

14 The order of the Arrondissementsrechtbank, Utrecht, of 6 July 1993 was confirmed by the Gerechtshof, Amsterdam, in a judgment delivered on 28 October 1993. The judgment was based, in particular, on an undated letter which Mr Giuffrida, of the Commission's Directorate-General for Competition (DG IV), had sent to the complainants with a copy to the applicants' adviser. The applicants state that they received the copy on 22 September 1993. The author of the letter expressed himself as follows: `I can confirm that a draft decision under Article 15(6) of Regulation No 17 is to be submitted, as part of a written procedure, to the Commission for adoption at the end of this week, once all the necessary language versions are available. The approval of the departments concerned has already been obtained ... My department envisages that it should be possible to notify [the applicants] formally of the decision in the first half of October 1993'.

15 On 4 November 1993 SCK issued a statement that the prohibition on hiring would be suspended until the Commission had adopted a final decision.

16 On 13 April 1994 the Commission adopted a decision under Article 15(6) of Regulation No 17.

17 By letter dated 3 June 1994 the applicants formally called on the Commission to adopt its final decision no later than 3 August 1994.

18 By letter of 27 June 1994 Mr Ehlermann, who was then Director-General of DG IV, informed the applicants that `the date of 3 August 1994 specified for adoption of the final decision was completely unrealistic', but that `adoption of the final decision was a priority'.

19 By letter of 9 August 1994 the Commission, replying to a letter from the applicants of 3 August 1994, informed them that the statement of objections of December 1992 related solely to the initiation of a proceeding prior to adoption of a decision under Article 15(6) of Regulation No 17. It stated that the final decision would be preceded by the adoption of a fresh statement of objections, following which the applicants would have the opportunity to be heard.

20 On 21 October 1994 a fresh statement of objections was issued to the applicants, relating to a proceeding pursuant to Article 85 of the Treaty.

21 On 21 December 1994 the applicants sent the Commission their reply to the statement of objections. In that reply they again formally called on the Commission to act without delay and waived their right to a hearing.

22 On 27 November 1995 they brought an action for damages before the Court of First Instance (Case T-213/95). They also applied, by separate document, for interim measures (Case T-213/95 R). They subsequently discontinued that application and, by order of 24 January 1996, the President removed Case T-213/95 R from the register. Costs were reserved.

23 On 29 November 1995 the Commission adopted Decision 95/551/EC relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 - Stichting Certificatie Kraanverhuurbedrijf and the Federatie van Nederlandse Kraanverhuurbedrijven) (OJ 1995 L 312, p. 79; `the contested decision'). It found that FNK had infringed Article 85(1) of the Treaty from 15 December 1979 to 28 April 1992 by applying a system of recommended and internal rates, which had enabled its members to predict each other's pricing policy (Article 1). It also found that SCK had infringed Article 85(1) of the Treaty from 1 January 1991 to 4 November 1993 (with the exception of the period between 17 February 1992 and 9 July 1992) by prohibiting its affiliated firms from hiring cranes from firms not affiliated to SCK (Article 3). In addition, it ordered the applicants to terminate those infringements forthwith (Articles 2 and 4) and imposed a fine of ECU 11 500 000 on FNK and one of ECU 300 000 on SCK (Article 5).

24 By letter of 11 January 1996 the applicants requested access to the file for the purpose of bringing an action against the contested decision. The Commission refused that request by letter of 15 January 1996.

25 By application lodged at the Registry of the Court of First Instance on 6 February 1996, they brought an action for annulment of the contested decision (Case T-18/96). They also applied, by separate document, for interim measures (Case T-18/96 R).

26 On 25 March 1996 the applicants reached an agreement with the Commission regarding amendment of the prohibition on hiring for the period up to delivery of the Court's judgment in Case T-18/96. According to the amended version of the second indent of Article 7 of the rules on the certification of crane-hire firms, the firms certified by SCK may use only `cranes bearing a valid certification plate, on the basis of prior certification either by the foundation or by another certification body - in the Netherlands or abroad - which is qualified to certify crane-hire firms and which manifestly applies equivalent criteria, unless it can be established from written documentation (including faxes) that when the client placed the order he attached no importance to whether or not the (third-party) crane-hire firm whose services he called upon in that instance was certified' (letter from the Commission to the applicants of 25 March 1996).

27 The President of the Court of First Instance dismissed the application for interim measures in Case T-18/96 R by order of 4 June 1996 ([1996] ECR II-407). The costs of the application for interim measures were reserved. An appeal against that order was dismissed by order of the President of the Court of Justice of 14 October 1996 ([1996] ECR I-4971).

28 By letter of 9 July 1996 sent to the President of the Court of First Instance in connection with Case T-18/96, the applicants applied to the Court for an order, pursuant to Article 65(b) of the Rules of Procedure or, in the alternative, pursuant to Article 64(3)(d) thereof, for the production of the Commission's file in the SCK and FNK cases, numbered IV/34.179, 34.202 and 34.216, including the Commission's internal documents relating to the exchanges of views which had taken place between the Directorate-General for Industry (DG III) and DG IV on those cases, together with any other files which formed the basis for the contested decision.

29 By order of 4 October 1996 the President of the Fourth Chamber, Extended Composition, granted Van Marwijk and seven other mobile crane-hire firms leave to intervene in support of the form of order sought by the Commission in Case T-18/96.

30 By order of 12 March 1997 he decided, pursuant to Article 50 of the Rules of Procedure, to join the two cases for the purposes of the oral procedure.

31 Upon hearing the Report of the Judge-Rapporteur, the Court (Fourth Chamber, Extended Composition) decided to open the oral procedure without any preparatory inquiry. However, it requested the original parties to produce certain documents before the hearing.

32 The parties presented oral argument and answered questions put to them by the Court at the hearing on 4 June 1997.

33 After hearing the parties in this regard at the hearing, the Court (Fourth Chamber, Extended Composition) considers that the two cases should also be joined for the purposes of the judgment.

Forms of order sought

34 In Case T-213/95 the applicants claim that the Court should:

- declare the Community liable for the damage which they are suffering and will continue to suffer as a result of the Commission's unlawful conduct;

- order the Community to pay compensation for that damage, to determine the extent thereof in consultation with the applicants and, if an amicable settlement is not reached in that regard, to determine the amount of the damage itself, if need be after appointing an expert to quantify it precisely;

- order the Commission to pay the costs.

35 The Commission contends that the Court should:

- dismiss the action;

- order the applicants jointly and severally to pay the costs, including the costs of the application for interim measures.

36 In Case T-18/96 the applicants claim that the Court should:

- declare that the contested decision is non-existent, since, in its operative part, the Commission decides that Article 85(1) applies and fines the applicants in that connection but does not rule on the applicants' request for an exemption under Article 85(3) of the Treaty;

- in the alternative, declare the contested decision to be unconditionally void;

- in the further alternative, annul it because it infringes Article 85 of the Treaty, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (`the European Convention on Human Rights'), general principles of law and the obligation to give reasons (Article 190 of the Treaty);

- in the further alternative, annul it in part so that no fine is imposed on the applicants;

- order the Commission to pay the costs;

- order the interveners to pay the costs relating to the intervention.

37 The Commission contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

38 The interveners contend that the Court should:

- give judgment for the Commission in the terms sought by it;

- order the applicants to pay the costs, including those of the interveners.

The action for damages (Case T-213/95)

39 It is settled case-law that the Community's liability under the second paragraph of Article 215 of the EC Treaty is dependent on the concurrent presence of a number of conditions as to the unlawfulness of the acts alleged against the Community institution concerned, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see, for example, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19, and Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 80).

1. The allegedly unlawful conduct of the Commission

40 The applicants put forward four pleas in law to establish the existence of unlawful conduct on the part of the Commission in the proceeding which it initiated in response to the complaint submitted on 13 January 1992 and the notifications given by the applicants on 15 January and 6 February 1992. Those pleas allege respectively infringement of Article 6 of the European Convention on Human Rights, breach of the principle of legal certainty, breach of the principle of the protection of legitimate expectations and breach of the audi alteram partem rule.

The first plea: infringement of Article 6 of the European Convention on Human Rights

Summary of the arguments of the parties

41 The applicants submit that the Commission is required to comply with the European Convention on Human Rights. They refer, in that regard, to the case-law (Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125, Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859 and Case 374/87 Orkem v Commission [1989] ECR 3283), to Article F(2) of the Treaty on European Union and to the Joint Declaration by the European Parliament, the Council and the Commission of 5 April 1977 (OJ 1977 C 103, p. 1).

42 They submit that administrative procedures before the Commission for the application of Article 85 of the Treaty are proceedings to which Article 6 of the European Convention on Human Rights applies. Under the case-law of the European Court and the European Commission of Human Rights, that provision applies to contentious administrative proceedings (Stenuit v France [1992] 14 EHRR 509 and Niemitz v Germany [1993] 16 EHRR 97).

43 According to the applicants, the Commission failed to comply with the requirement of a `reasonable time' laid down in Article 6(1) of the European Convention on Human Rights. The European Court of Human Rights has held that a period of 17 months exceeds a reasonable time (judgment of 9 December 1994, Schouten and Meldrum v Netherlands, Series A, No 304). The entire administrative procedure before the Commission took more than 45 months. It is clear, therefore, that the Commission's conduct infringed Article 6(1) of the Convention.

44 The Commission abused the procedure under Regulation No 17 by drawing up the first statement of objections solely in order to adopt a decision based on Article 15(6) of that regulation. Furthermore, it is impossible to understand why the Commission needed 22 months from the adoption of the first statement of objections to issue the second one, which contained precisely the same basic arguments as the first. The drawing-up of the second statement of objections served no purpose and was intended by the Commission to prolong the procedure.

45 The applicants point out that the judgment of the Gerechtshof, Amsterdam, of 28 October 1993 took the form of a temporary measure designed to have effect until the Commission adopted its decision. Accordingly, the Commission should have come to a final decision quickly. Furthermore, the spirit in which the Commission conducted the procedure was imbued with the conviction that it was sufficient for it to influence the national court and to adopt a decision under Article 15(6) of Regulation No 17. The Commission never gave the case the slightest priority.

46 The applicants did not in any way contribute to the Commission's delays. They made constructive proposals in order that a decision might be reached quickly, but the Commission rejected those proposals. They waived their right to a hearing after receiving the second statement of objections, in order to expedite the adoption of the final decision. The Commission cannot criticize them for pleading their case before DG III, which has responsibility within the Commission for certification policy. The intervention of DG III would have been necessary even if the applicants had not sought it. Nor can they be criticized for the interventions before the Commission by the Permanent Representation of the Netherlands to the European Union and the Raad voor de Certificatie, which took place within a period of no more than two weeks (from 13 to 27 October 1993).

47 The applicants add that the complexity of the case cannot in any event justify the exceeding of a reasonable time (Schouten and Meldrum v Netherlands, cited above). As regards the delays caused by the absence of the Finnish and Swedish translations of the draft decision, they contend that organizational delay cannot be relied on as a justification for the exceeding of a reasonable time (judgment of the European Court of Human Rights of 6 May 1981, Buchholz, Series A, No 42).

48 In response to the applicants' submissions, the Commission states that account must be taken of all the circumstances of the case when determining whether proceedings are of unreasonable duration. Not only the Commission's conduct is relevant, but also that of the applicants, as well as the complexity of the case and all the other particular circumstances. The Commission admits that it did not regard the case as a priority from January to July 1992, in view of the fact that it was also pending before the Netherlands court and that the infringements had ceased once the Arrondissementsrechtbank, Utrecht, had made its order of 11 February 1992 (see, in that regard, Case T-24/90 Automec v Commission [1992] ECR II-2223, paragraphs 77 and 85). It expedited its consideration of the case after the Gerechtshof, Amsterdam, had delivered its judgment of 9 July 1992 allowing SCK to reinstate the prohibition on hiring (see paragraph 8 above).

49 It was apparent from the provisional examination of the case that the conditions for application of Article 15(6) of Regulation No 17 were met. Five months after the Gerechtshof, Amsterdam, had given its judgment, the applicants received from the Commission a statement of objections with respect to the application of that provision (statement of objections of 16 December 1992, see paragraph 9 above).

50 The Commission also points out that when the draft decision under Article 15(6) was ready, DG III asked DG IV for a meeting on the draft decision before it was presented to the college of Commissioners. The intervention by DG III in the procedure, which was the principal cause of delay in dealing with the case in the following months, was, however, the direct result of steps taken by the applicants. The decision under Article 15(6) was finally adopted on 13 April 1994.

51 Subsequently, on 21 October 1994, the Commission notified the applicants of the statement of objections with a view to the adoption of a final decision. That decision, adopted on the basis of Articles 3 and 15(2) of Regulation No 17, had a different purpose and different legal consequences from a decision adopted on the basis of Article 15(6). One month after receiving the applicants' reply to the second statement of objections, DG IV had already formulated a draft decision. However, following the accession of Finland and Sweden to the European Union on 1 January 1995, there were serious problems of delay with translations into Finnish and Swedish. The Commission finally adopted the contested decision on 29 November 1995.

52 Therefore, the Commission argues, it cannot be accused in this case of having offended against the principle requiring action to be taken within a reasonable time in the course of the administrative procedure.

Findings of the Court

53 It is settled case-law that fundamental rights form an integral part of the general principles of law whose observance the Community judicature ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33, and Case C-299/95 Kremzow v Austria [1997] ECR I-2629, paragraph 14). For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights has special significance in that respect (Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and Kremzow, cited above, paragraph 14). Furthermore, as provided in Article F(2) of the Treaty on European Union, `the Union shall respect fundamental rights, as guaranteed by the [European Convention on Human Rights] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

54 The applicants claim that, following the complaint submitted by Van Marwijk and others on 13 January 1992 and the notifications given by SCK on 15 January 1992 and FNK on 6 February 1992 (see paragraphs 6 and 7 above), the contested decision, dated 29 November 1995, was not adopted within a `reasonable time' for the purposes of Article 6(1) of the European Convention on Human Rights, under which `... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...'.

55 When a party applies to the Commission for negative clearance under Article 2 of Regulation No 17 or gives it notification under Article 4(1) thereof for the purpose of obtaining an exemption, the Commission may not defer defining its position indefinitely. In the interests of legal certainty and of ensuring adequate judicial protection, it is required to adopt a decision or, if such a letter has been requested, to send a formal letter within a reasonable time. Similarly, when it receives an application under Article 3(1) of Regulation No 17 alleging infringement of Article 85 and/or Article 86 of the Treaty, it is required to adopt a definitive position on the complaint within a reasonable time (Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503, paragraph 38).

56 It is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy (see, with regard to the rejection of a complaint, Guérin Automobiles, cited above, paragraph 38, and, with regard to State aids, Case 120/73 Lorenz v Germany [1973] ECR 1471, paragraph 4, and Case 223/85 RSV v Commission [1987] ECR 4617, paragraphs 12 to 17). Accordingly, without there being any need to rule on the question whether Article 6(1) of the European Convention on Human Rights is, as such, applicable to administrative proceedings before the Commission relating to competition policy, it is necessary to consider whether, in this case, in the proceedings preceding the adoption of the contested decision, the Commission offended against the general principle of Community law requiring it to act within a reasonable time.

57 The administrative proceedings in this case lasted, in all, approximately 46 months. However, as the Commission has rightly stated, the question whether the duration of an administrative proceeding is reasonable must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (see, by analogy, the judgments of the European Court of Human Rights of 23 April 1987 in Erkner, Series A, No 117, p. 62, paragraph 66, of 25 June 1987 in Milasi, Series A, No 119, p. 46, paragraph 15, and in Schouten and Meldrum v Netherlands, cited above, p. 25, paragraph 63).

58 As regards, first, the context of the case, FNK's internal rules contained, as from 15 December 1979, a clause requiring its members to give priority to other members in the hiring out of cranes and to charge reasonable rates (Article 3(a) and (b) of the internal rules). The clause in SCK's rules on the certification of firms to which the contested decision relates, namely the prohibition on hiring (the second indent of Article 7 of the rules on certification), entered into force on 1 January 1991. The applicants apparently saw no need to seek the Commission's opinion on their statutes and rules before Van Marwijk and ten other undertakings submitted a complaint to the Commission on 13 January 1992. SCK's statutes and its rules on the certification of crane-hire firms were not notified to the Commission until 15 January 1992 and FNK's statutes and internal rules were not notified until 6 February 1992.

59 It should next be borne in mind that the period of 46 months from the lodging of the complaint and the notifications to the adoption of the contested decision is made up of various procedural stages. After the Commission had reviewed the complaint and the notifications, it issued, on 16 December 1992, a statement of objections with a view to the adoption of a decision under Article 15(6) of Regulation No 17 and it actually adopted such a decision on 13 April 1994. It then sent a new statement of objections on 21 October 1994 with a view to the adoption of the contested decision, which took place on 29 November 1995.

60 Each procedural stage must be examined to see whether its duration was reasonable.

61 The statement of objections of 16 December 1992 constitutes the first, provisional, position adopted by the Commission on the notifications given by the applicants. The duration of that first part of the procedure, approximately 11 months, was reasonable and may even be regarded as relatively short in the light of all the documents in the case. It should be noted that, during that period, the Commission considered in parallel the notifications given by the applicants and the complaint submitted by Van Marwijk and others objecting to the very practices notified by the applicants. Moreover, it was reasonable for the Commission to take the view that the case submitted by the applicants did not need to be given priority. The applicants themselves did not make clear, in their notifications, the need for their case to be dealt with urgently, even though paragraph 7.4 of the Annex to Form A/B (annexed to Regulation No 27 of the Commission of 3 May 1962, First Regulation implementing Council Regulation No 17 (OJ, English Special Edition 1959-62, p. 132), subsequently replaced by Commission Regulation (EC) No 3385/94 of 21 December 1994 on the form, content and other details of applications and notifications provided for in Council Regulation No 17 (OJ 1994 L 377, p. 28)) asks the notifying parties to specify the degree of urgency. Furthermore, the practices notified, which the Commission considered could not be exempted under Article 85(3) of the Treaty, had ceased for a period of about five months, between 11 February 1992 and 9 July 1992 (see paragraph 8 above), following an action brought by the complainants before the Netherlands courts.

62 The period of approximately 16 months between the statement of objections of 16 December 1992 and the adoption, on 13 April 1994, of the decision under Article 15(6) of Regulation No 17 was also reasonable. Counsel for the applicants conceded at the hearing before the Court that, in its letter to the Commission of 21 October 1993 (to Mr Dubois in DG IV), SCK made clear for the first time the need for the case to be dealt with rapidly and as a matter of urgency. FNK did not take such a step before the decision was adopted on 13 April 1994. The letter of formal notice of 3 June 1994 from the applicants' adviser to the Commission is the first indication given by FNK of its interest in having the case dealt with rapidly. Furthermore, it is common ground that at the very time when SCK was first making clear to DG IV the need for the procedure to progress rapidly, the applicants requested DG III to intervene with DG IV with a view to obtaining a successful outcome to their application for an exemption (see, in particular, the letter of 5 October 1993 from the applicants' adviser to Mr McMillan, the Head of Unit III.B.3). While such an approach is perfectly proper, the applicants should have realized that the intervention requested from DG III was going to slow down the procedure, in particular as DG III does not have to be consulted in a proceeding for exemption under Article 85(3) of the Treaty or in a proceeding for the finding of an infringement under Article 85(1).

63 The next stage in the procedure was the notification to the applicants of the statement of objections for the adoption of the contested decision. Such notification was given on 21 October 1994, six months after the decision under Article 15(6) of Regulation No 17 had been adopted.

64 That period of six months is not unreasonable.

65 The applicants claim, however, that the sending of the second statement of objections served no purpose and was intended by the Commission to prolong the procedure. That argument must be rejected. On the one hand, the two statements of objections had different purposes. The first related to withdrawal of immunity from fines, as provided for in Article 15(5) of Regulation No 17, by the adoption of a decision under Article 15(6), while the second was preparatory to a decision establishing infringements and imposing fines under Articles 3(1) and 15(2) of Regulation No 17. On the other hand, the second statement set out objections regarding all the infringements found in the contested decision, that is to say the prohibition on hiring and the recommended and internal rates, while the first was confined to analysing the prohibition on hiring in the light of Article 85 of the Treaty. Article 19(1) of Regulation No 17 and Articles 2 and 4 of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition, 1963-1964, p. 47), which apply the audi alteram partem principle, require that undertakings concerned by a proceeding for the establishment of infringements are afforded the opportunity, in the course of the administrative procedure, of effectively making known their views on all the objections dealt with in the decision (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9, Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 39, and Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraph 47). The Commission was thus required to send a second statement of objections to the applicants not only because the two statements of objections had different purposes but also because the contested decision deals with an objection not covered by the first statement of objections. In other words, if the Commission had not sent the second set of objections, the contested decision would have been adopted in manifest disregard of the applicants' rights of defence.

66 Next, the Commission adopted its final decision on 29 November 1995, approximately 11 months after it had received, on 21 December 1994, the applicants' reply to the second statement of objections. Irrespective of the translation problems debated by the parties in their pleadings, the fact that the Commission needed 11 months from receipt of the reply to the statement of objections in order to prepare a final decision in all the official Community languages does not amount to a breach of the principle that action must be taken within a reasonable time in an administrative procedure relating to competition policy.

67 As regards the applicants' argument that the Commission never gave the case the slightest priority and considered that it was sufficient for it to influence the national court and to adopt a decision under Article 15(6) of Regulation No 17, it should be noted that the Commission is entitled to apply different degrees of priority to the cases submitted to it (Automec v Commission, cited above, paragraph 77). Furthermore, if it takes the view that the practices notified to it cannot be exempted under Article 85(3), it may, when assessing the degree of priority to be given to the notification, take into account the fact that a national court has already caused the infringements in question to cease.

68 In addition, by way of reply to an argument developed by the applicants at the hearing, as to the permanent adverse effects of a decision under Article 15(6) of Regulation No 17, it should be pointed out that in Joined Cases 8/66, 9/66, 10/66 and 11/66 Cimenteries CBR and Others v Commission [1967] ECR 75, at pp. 92 and 93, the Court of Justice held that an action for annulment of such a decision was admissible on the basis, inter alia, that `if the preliminary measure were excluded from all review by the Court ... [it] would ... have the effect of saving the Commission from having to give a final decision thanks to the efficacy of a mere threat of a fine'. In this case, it is not open to the applicants, who failed to bring an action for annulment of the decision of 13 April 1994 adopted under Article 15(6) of Regulation No 17, to complain of any permanent adverse effects of that decision.

69 In view of all of the above considerations, the Commission did act in accordance with the principle requiring it to act within a reasonable time in the administrative procedure preceding the adoption of the contested decision.

70 The first plea must therefore be rejected.

The second plea: breach of the principle of legal certainty

Summary of the arguments of the parties

71 The applicants state that for 45 months they were uncertain whether the exemption applied for would be granted. They add that the principle of legal certainty must be observed even more strictly in the case of rules liable to entail financial consequences (Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18). A decision under Article 15(6) of Regulation No 17 cannot in any way provide the same certainty as a final decision (judgment of the Court of Justice in Cimenteries CBR and Others v Commission, cited above). It is, moreover, strange that the Commission states that they could be reassured as to their position following the decisions of the Netherlands courts, when those decisions were intended solely to lay down interim arrangements pending the final decision by the Commission. Besides, the judgment of the Gerechtshof, Amsterdam, of 28 October 1993 is based in particular on the letter from Mr Giuffrida of September 1993 (see paragraph 14 above) which incorrectly stated that `the approval of the departments concerned [had] been obtained'. DG III had not yet adopted a position on the case when that statement was made.

72 The Commission denies that the applicants suffered from a lack of legal certainty for 45 months. It refers to the order of the Arrondissementsrechtbank, Utrecht, of 6 July 1993. In its rejoinder it adds that the statement of objections of 16 December 1992 and its letter of 4 June 1993 (see paragraphs 9 and 11 above) gave the applicants a clear signal as to whether an exemption might be granted. It also states that the term `departments concerned' in Mr Giuffrida's letter of September 1993 encompassed solely the departments of DG IV and the Commission's Legal Service. DG III was involved in the procedure only after it had expressly made a request to that effect, following an approach by the applicants. DG III's involvement in the procedure meant that the decision under Article 15(6) of Regulation No 17 was adopted a few months later than Mr Giuffrida could reasonably have anticipated on 22 September 1993.

Findings of the Court

73 The plea falls into two parts.

74 The first raises the question whether the Commission is required, in accordance with the principle of legal certainty, to adopt a decision within a reasonable time when agreements have been notified to it under Article 2 and/or Article 4(1) of Regulation No 17. Formulated in this way, it merges with the first plea and must be rejected for the same reasons.

75 In the second part of the plea, the applicants complain that Mr Giuffrida's letter of September 1993 (see paragraph 14 above) incorrectly stated that `the approval of the departments concerned [had] been obtained'. That complaint is also put forward under the third plea, alleging breach of the principle of the protection of legitimate expectations. It will be rejected for the reasons given in paragraph 82 below.

76 Accordingly, the plea that the principle of legal certainty was infringed cannot be upheld.

The third plea: breach of the principle of the protection of legitimate expectations

Summary of the arguments of the parties

77 The applicants contend that the Commission made promises which proved to be false. They refer, first, to the letter from Mr Giuffrida (see paragraph 14 above) which informed them in September 1993 that a decision under Article 15(6) of Regulation No 17 would be adopted shortly. They then refer to the letter from Mr Ehlermann of 27 June 1994 (see paragraph 18 above) according to which adoption of the final decision was a priority. Since the judgment of the Gerechtshof, Amsterdam, of 28 October 1993 was based on the Commission's promises to the effect that it was going to adopt its decision in the near future, the applicants consider that they were justified in believing that the Commission would keep its promises.

78 In their reply they also point out, in relation to the letter from Mr Giuffrida, that DG III is responsible for certification policy and that, according to the Commission, this case is the first time that Article 85 has been applied to a certification system. Accordingly, when the letter was drafted, at least one `department concerned', namely DG III, had not given its approval. In view of the influence that the letter in question had on the judgment of the Gerechtshof, it must be concluded that the Commission, by its incorrect statements, offended against the principle of the protection of legitimate expectations.

79 In response to those arguments, the Commission states that the letter of 22 September 1993 did not give a false idea of the situation at that time. It relies in that regard on the line of argument set out in paragraph 72 above. It also considers that its letter of 27 June 1994 does not contain any untrue statements.

Findings of the Court

80 The concept of legitimate expectations presupposes that the person concerned entertains hopes based on specific assurances given to him by the Community administration (judgment in Case T-465/93 Murgia Messapica v Commission [1994] ECR II-361, paragraph 67, and order of 11 March 1996 in Case T-195/95 Guérin Automobiles v Commission [1996] ECR II-171, paragraph 20).

81 In this case the applicants submit that two letters from the Commission contained promises which proved to be false.

82 The letter from Mr Giuffrida was drafted on 21 or 22 September 1993. It is a reply to a letter from the complainants of 21 September 1993 and the applicants state that they received a copy of it on 22 September 1993. The letter indicated that a draft decision under Article 15(6) of Regulation No 17 would be submitted to the College of Commissioners in the course of the following week and that the Commission envisaged that the applicants would be formally notified of the decision in the first two weeks of October 1993. While that correspondence might be considered to contain specific assurances regarding the impending adoption of a decision by the Commission, the applicants do not deny that, as soon as they became aware of it, they approached DG III for it to intervene with DG IV (see, in particular, the letter of 5 October 1993 from the applicants' adviser to Mr McMillan, the Head of Unit III.B.3, which refers to a discussion between him and the adviser on 28 September 1993). In such circumstances, the applicants could not expect the Commission to honour any assurances expressed in its letter received by them on 22 September 1993.

83 The letter from Mr Ehlermann of 27 June 1994 confirmed that the adoption of a final decision in this case was a priority for the staff of DG IV. Having regard to the general nature of such a statement, there can be no question of specific assurances having been given by the Commission which could have given rise to reasonable expectations on the part of the applicants as to the date on which a final decision in the matter would be adopted. In any event, the truth of Mr Ehlermann's statement was in the event confirmed by the Commission, since it issued on 21 October 1994 a statement of objections for the adoption of a final decision.

84 It follows that the third plea must also be rejected.

The fourth plea: breach of the audi alteram partem rule

Summary of the arguments of the parties

85 The applicants point out that they requested a hearing on several occasions during the procedure which led to adoption of the decision under Article 15(6) of Regulation No 17. The fact that the Commission did not act on those requests constitutes a contravention of the rights of the defence. They consider that, in order for those rights to be protected, they had to have the opportunity to react, in the course of oral proceedings, with all their procedural safeguards, first, to new matters which may have emerged during the administrative procedure and, secondly, to the Commission's rejection of any compromise. The interest which they had in such a hearing would have justified any procedural delay, at least during the period preceding the adoption of the decision under Article 15(6).

86 In response to this, the Commission states that it gave the applicants the opportunity to make known their views on the objections which it had expressed. There can therefore be no question of an infringement of the rights of the defence. Since there is no legislation which requires the undertakings or associations concerned to be heard orally before the Commission adopts a decision under Article 15(6) of Regulation No 17 and since there is no specific circumstance in this case to suggest that the rights of the defence could in fact be safeguarded only by holding a hearing, the Commission, having consulted the applicants in writing, was not in any way required to hear them orally.

Findings of the Court

87 According to the applicants, the damage suffered by them resulted from the fact that, when they brought their action, the Commission still had not adopted a final decision on their notifications and had thus allowed doubt to subsist for almost four years as to whether the statutes and rules notified by them were lawful. The result of the Commission's conduct was that the Raad voor de Certificatie was threatening SCK with withdrawal of its accreditation, hirers of cranes were paying less regard to FNK's general conditions and the applicants' good reputation was being affected.

88 It must be held that the Commission's conduct complained of in this plea, namely that it did not hold a hearing before it adopted a decision under Article 15(6) of Regulation No 17, could not have caused or aggravated the damage as asserted in the application.

89 This plea therefore does not disclose any link with that damage.

90 Moreover, it is concerned solely with the lawfulness of the decision of 13 April 1994 adopted under Article 15(6) of Regulation No 17. The purpose of the present action is to obtain compensation for harm connected with a failure to adopt a final decision within a reasonable time and not with unlawfulness of the decision of 13 April 1984 which, in any event, the applicants did not challenge within the time-limit laid down for that purpose.

91 The fourth plea must accordingly be rejected.

92 It follows therefore that an analysis of the various pleas has not revealed any unlawful conduct on the part of the Commission sufficient for the Community to incur liability.

93 The Court nevertheless considers that it should still examine the question whether there is a causal link between the conduct claimed to be unlawful and the damage alleged by the applicants.

2. Causal link

Summary of the arguments of the parties

94 The applicants submit that the Commission must be held responsible for the damage suffered by them. They allege that SCK is threatened with loss of its accreditation, because the Raad voor de Certificatie considers the prohibition on hiring to be the only means of satisfying the accreditation criteria, while that very prohibition was suspended pending the contested decision. As for FNK, its reputation and its general conditions in particular have been affected by the Commission's conduct. The applicants point out in their reply that the Gerechtshof, Amsterdam, acting on the basis of an incorrect statement by the Commission, delivered an interim judgment suspending the prohibition on hiring until the Commission had adopted a final decision (see paragraph 14 above). The Commission's inactivity over an unacceptably long period gave the judgment of the Gerechtshof of 28 October 1993 a temporal effect far exceeding that intended by that court.

95 In response to this, the Commission states that there is no direct and necessary causal link between the steps taken by it and the continuing suspension of the prohibition on hiring. It was not the Commission, but the Netherlands court, which, as an interim measure, suspended the prohibition on hiring. If SCK considered after a certain time that the interim measures were no longer justified because the final decision by the Commission was taking longer than expected, it could have applied to the national court to have the interim measures varied or set aside.

Findings of the Court

96 Article 85(1) of the Treaty produces direct effects in relations between individuals and creates rights directly in respect of the individuals concerned which the national courts must safeguard (see, for example, Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I-935, paragraph 45).

97 The Gerechtshof, Amsterdam, applied Article 85(1) of the Treaty in its judgment of 28 October 1993 and prohibited SCK from applying the prohibition on hiring (the second indent of Article 7 of SCK's rules on the certification of crane-hire firms). While it is true that the Gerechtshof was influenced by the Commission's position, that is to say by the letter of Mr Giuffrida of September 1993 (see paragraph 14 above) announcing the adoption of a decision under Article 15(6) of Regulation No 17, the fact remains that the position so taken did not bind the national court. Mr Giuffrida's assessment of the prohibition was merely a factor which the Gerechtshof could take into account in examining the question whether that practice was in accordance with Article 85 of the Treaty (Joined Cases 253/78, 1/79, 2/79 and 3/79 Procureur de la République v Giry and Guerlain [1980] ECR 2327, paragraph 13, and Case T-575/93 Koelman v Commission [1996] ECR II-1, paragraph 43). Besides, as will become apparent from the analysis of the action for annulment brought against the contested decision, the view taken by the Commission during the administrative procedure and set out in the contested decision is based on a correct interpretation of Article 85(1) of the Treaty. Thus, if SCK was threatened with withdrawal of its accreditation, that threat was due to the fact that SCK had been required to put an end to an infringement of Article 85(1). The Commission cannot be held responsible for such `harm'.

98 As regards FNK, the applicants fail to explain how its reputation and its general conditions were affected by the Commission's conduct, even though, according to settled case-law, the burden of proving a causal link between the fault committed by the institution and the injury pleaded falls on the applicants (see, for example, Joined Cases C-363/88 and C-364/88 Finsider and Others v Commission [1992] ECR I-359, paragraph 25, and Case T-168/94 Blackspur and Others v Council and Commission [1995] ECR II-2627, paragraph 40). The only practices of FNK called into question during the administrative procedure were the system of recommended and internal rates and the priority clause which required FNK's members to give priority to other members when hiring or hiring out cranes (Article 3(a) and (b) of FNK's internal rules). The applicants stated in the administrative procedure, in the written procedure before the Court and at the hearing that FNK voluntarily abandoned those practices after the Gerechtshof, Amsterdam, had set aside, on 9 July 1992, the order of the President of the Arrondissementsrechtbank, Utrecht, that is to say at a time (July 1992) when the Commission had not yet adopted a position, even provisionally, on FNK's notification or Van Marwijk's complaint. The harm pleaded by FNK cannot therefore have been caused in any way by the Commission's conduct during the administrative procedure.

99 Accordingly, the action for damages must be dismissed, without there being any need to consider in addition whether the other condition for Community liability, namely that damage has occurred, is satisfied.

The action for a declaration that the contested decision is non-existent or for its annulment (Case T-18/96)

1. Claim for a declaration that the contested decision is non-existent

Summary of the arguments of the parties

100 The applicants put forward a single plea in support of their claim. They submit that the contested decision is non-existent inasmuch as the Commission failed to rule in its operative part on the application for an exemption made under Article 85(3) of the Treaty. It was essential to rule on that application in the operative part, since compliance with the Community rules on competition must be ascertained in relation to Article 85 as a whole (Joined Cases T-528/93, T-542/93, T-543/93 and T-546/93 Métropole Télévision and Others v Commission [1996] ECR II-649) and only the operative part of an act is capable of producing legal effects (Case T-138/89 NBV and NVB v Commission [1992] ECR II-2181, paragraph 31, and Case T-50/92 Fiorani v Parliament [1993] ECR II-555, paragraph 39). The Commission's decision of 13 April 1994, adopted on the basis of Article 15(6) of Regulation No 17, has no relevance in that regard. Such decisions are adopted after only preliminary scrutiny and are therefore not equivalent to final decisions. Furthermore, even if they could be regarded as final decisions, the decision in this case was concerned only with SCK's prohibition on hiring and did not contain a ruling on the practices notified by FNK, so that there was still no decision on whether Article 85(3) might apply to those practices.

101 The Commission states in response that paragraphs 32 to 39 of the contested decision clearly show that it considered and rejected the applicants' arguments for an exemption under Article 85(3) of the Treaty. There was no logical reason for adding an article in the operative part expressly rejecting the application for an exemption under Article 85(3), because the finding, in Articles 1 and 3, of the infringements of Article 85(1) committed by SCK and FNK and the orders in Articles 2 and 4 necessarily meant that the application for an exemption under Article 85(1) was rejected.

Findings of the Court

102 In the operative part of the contested decision the Commission found that FNK's system of recommended and internal rates (Article 1) and SCK's prohibition on hiring (Article 3) infringed Article 85(1) of the Treaty and ordered FNK (Article 2) and SCK (Article 4) to terminate those infringements forthwith. The contested decision also imposed fines on the applicants (Article 5).

103 Although the operative part does not contain an express ruling on the applications for exemption made by the applicants under Article 85(3) of the Treaty, the Commission verified whether the practices referred to in Articles 1 and 3 of the contested decision complied with the rules on competition in relation to Article 85 as a whole. It is apparent from the carefully formulated grounds for the contested decision (paragraphs 32 to 39) that the Commission considered whether Article 85(1) of the Treaty could be declared inapplicable to those practices, pursuant to Article 85(3). At the end of its examination, it points out in paragraph 35, in relation to the recommended and internal rates laid down by FNK, that `it is ... not possible ... to grant exemption under Article 85(3) of the Treaty'. Similarly, in paragraph 39 it expressly concludes that `it is ... not possible ... to grant exemption under Article 85(3) of the Treaty' as regards SCK's prohibition on hiring.

104 The statement of the reasons for an act is indispensable for determining the exact meaning of what is stated in the operative part (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, Case C-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21, and Case T-26/90 Finsider v Commission [1992] ECR II-1789, paragraph 53). Accordingly, even though the operative part of the contested decision does not contain an express ruling on the applications for exemption by SCK and FNK under Article 85(3) of the Treaty, the findings of infringement and the orders to terminate those infringements contained in the operative part necessarily mean, in the light of the grounds for the decision (paragraphs 32 to 39), that the Commission rejected the applications in question.

105 Finally, the applicants cannot use as an argument the judgments in NBV and NVB v Commission and Fiorani v Parliament. In each of those cases, which were not concerned at all with the question whether a decision of a Community institution was non-existent, the operative part of the decision challenged did not adversely affect the applicants. Only some of the grounds for the decisions in question were considered to be unfavourable to the applicants. The actions for annulment brought in those cases were held to be inadmissible because they in fact sought the annulment only of the grounds for the decision. In the present case the operative part of the contested decision adversely affects the applicants because it holds them liable for infringements of Article 85(1) of the Treaty, orders them to terminate those infringements, imposes fines on them and, implicitly but definitely, rejects their applications for exemption.

106 It follows that the plea cannot be upheld.

107 As a result, the claim for a declaration that the contested decision is non-existent must be rejected.

2. Claim for annulment of the contested decision

108 The applicants put forward five pleas for the annulment of the contested decision, based on the infringement of, respectively, Articles 3, 4, 6 and 9 of Regulation No 17, Article 85(1) of the Treaty, Article 85(3) of the Treaty, the rights of the defence and Article 190 of the Treaty.

The first plea: infringement of Articles 3, 4, 6 and 9 of Regulation No 17

Summary of the arguments of the parties

109 The applicants, referring to their arguments on the non-existence of the decision, put forward a submission, albeit somewhat laconic, to the effect that the Commission's failure to rule on the applications for exemption under Article 85(3) of the Treaty infringes Articles 3, 4, 6 and 9 of Regulation No 17 and that the Commission also committed a serious procedural error, with the result that the decision does not fulfil the requisite procedural conditions and must therefore be annulled.

110 The Commission refers to the argument which it expounded in relation to the claim for a declaration that the contested decision is non-existent.

Findings of the Court

111 This plea is based on the same arguments as those relied on in connection with the plea put forward in support of the claim for a declaration that the contested decision is non-existent.

112 In the contested decision the Commission ruled unequivocally on the applications for exemption under Article 85(3) of the Treaty (see paragraphs 103 and 104 above).

113 The first plea must therefore be rejected.

The second plea: infringement of Article 85(1) of the Treaty

114 In the light of the Report for the Hearing and following the oral procedure, it is appropriate to divide this plea into four parts.

115 The first part of the plea alleges that SCK was mistakenly classified as an undertaking within the meaning of Article 85(1) of the Treaty. The second part is itself subdivided into two sections. In the first section it is alleged that the Commission erred in law with regard to the reference to the criteria of transparency, openness, independence and acceptance of equivalent guarantees offered by other systems in assessing whether a certification system is compatible with Article 85(1) of the Treaty. In the second section the allegation is to the effect that the Commission erred in its assessment when it found that the prohibition on hiring had as its object or effect the restriction of competition within the meaning of Article 85(1) of the Treaty. In the third part of the plea it is alleged that the Commission committed an error of assessment in finding that the system of recommended and internal rates had as its object or effect the restriction of competition within the meaning of Article 85(1) of the Treaty. Finally, in the fourth part of the plea it is alleged that it erred in its assessment of the effect on trade between Member States.

The first part of the plea, to the effect that SCK was mistakenly classified as an undertaking within the meaning of Article 85(1) of the Treaty

- Summary of the arguments of the parties

116 The applicants submit that SCK is not an undertaking within the meaning of Article 85(1) of the Treaty because a certification body which devotes itself solely and exclusively to the neutral and objective supervision of undertakings in a particular sector is not engaged in an economic activity (see the judgments in Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979 and in Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, and the Opinion of Advocate General Slynn in Case 123/83 BNIC v Clair [1985] ECR 391. Nor is SCK an association of undertakings within the meaning of the same provision.

117 In response to that submission the Commission states that, in order for a body to be able to be regarded as an undertaking within the meaning of Article 85(1) of the Treaty, it is sufficient that, whatever its legal status may be, it is engaged in an activity of an economic nature which may in principle be engaged in by a private undertaking and with a view to profit. In this case the issue of a certificate in return for payment amounts to such an activity. SCK must therefore be regarded as an undertaking within the meaning of Article 85(1).

- Findings of the Court

118 In the contested decision the Commission classified SCK as an undertaking within the meaning of Article 85(1) of the Treaty (second subparagraph of paragraph 17).

119 It is necessary to consider whether the Commission committed an error of assessment or was wrong in law in so classifying SCK.

120 In the context of competition law `the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed' (Höfner and Elser, cited above, paragraph 21).

121 SCK is a body governed by private law which set up a certification system for crane-hire firms to which affiliation is optional. It establishes independently the criteria which the certified firms must satisfy. It issues a certificate only on payment of a subscription.

122 Those features demonstrate that SCK is engaged in an economic activity. It must therefore be regarded as an undertaking within the meaning of Article 85(1) of the Treaty.

123 Since the Commission correctly classified SCK as an undertaking, the applicants' argument that SCK is not an association of undertakings has no relevance.

124 It follows from the above that the first part of the second plea must be rejected.

The second part of the plea, alleging that the Commission, first, erred in law with regard to the reference to the criteria of transparency, openness, independence and acceptance of equivalent guarantees offered by other systems in assessing whether a certification system is compatible with Article 85(1) of the Treaty and, secondly, erred in its assessment when it found that the prohibition on hiring had as its object or effect the restriction of competition within the meaning of Article 85(1)

- Summary of the arguments of the parties

125 The applicants point out that the Commission considered in the contested decision that if a prohibition on hiring `is associated with a certification system which is completely open, independent and transparent and provides for the acceptance of equivalent guarantees from other systems, it may be argued that it has no restrictive effects on competition but is simply aimed at fully guaranteeing the quality of the certified goods or services' (first subparagraph of paragraph 23). The Commission infringed Article 85(1) of the Treaty by establishing, on its own initiative, general criteria for determining whether that provision applies to certification systems, when those criteria are not set out therein.

126 Furthermore, the prohibition on hiring under SCK's certification system does not have as its object or effect the restriction of competition. In order to determine whether such clauses come within the prohibition laid down in Article 85(1), it is necessary to examine what the state of competition would be if those clauses did not exist (Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 18). SCK's certification system intensifies competition. It contributes to transparency of the market by enabling the quality and safety provided by the various persons offering the product to be assessed on the basis of an objective and impartial standard. The prohibition on hiring cranes from uncertified firms is essential because such a prohibition is the only way of ensuring that each contract placed with a certified firm is carried out by a firm which meets the same safety and quality requirements. In that sense, the prohibition on hiring provides protection identical to that offered by a trademark, which the Court of Justice has held to be compatible with Community competition law (Case C-10/89 CNL-SUCAL v HAG GF [1990] ECR I-3711, paragraph 13). The prohibition on hiring is also essential because it constitutes the only means of complying with the requirement in Paragraph 2.5 of the accreditation criteria of the Raad voor de Certificatie (see paragraph 5 above), under which the certificate-awarding body is required to verify that, where a job is carried out by a subcontractor, the quality requirements are met. As for the Commission's suggestion that certified firms should be allowed to demonstrate, by pre-prepared lists, that uncertified firms upon whose services they call nevertheless meet the requisite quality requirements, the applicants consider that such an ad hoc system of checking would be the direct opposite of a certification system based on systematic checking. Finally, the prohibition on hiring must also be upheld where the client expressly authorizes cranes to be hired from an uncertified firm. The credibility of the certification system is founded on the fact that all the products and services offered by certified firms fulfil the requisite conditions.

GROUNDS CONTINUED UNDER DOC.NUM: 695A0213.1

127 The applicants submit that the system at issue complies in any event with all the criteria laid down by the Commission. First, it is completely open, accepting not only FNK members but also any other firm which wishes to be admitted to it. SCK has thus issued certificates to 12 firms which were not FNK members. The conditions for obtaining a certificate are objective and non-discriminatory. In that regard, the reduced subscriptions paid by FNK members until 1 January 1992 were merely to compensate for secretarial services rendered by FNK to SCK. The system was also open to firms from other Member States, as confirmed by a report by the Raad voor de Certificatie of 11 January 1993 and a letter of 11 March 1994 from the Association of Belgian Crane-Hire Firms. SCK has always accepted that registration abroad satisfies the condition requiring firms which wish to obtain a certificate from SCK to be registered with the Chamber of Commerce. Accordingly, difficulties encountered by foreign firms in entering the Netherlands market are due solely to differences in the countries' legislation.

128 The applicants add that, even though no reference is made thereto in SCK's rules, SCK recognizes other certification systems as equivalent, so long as they provide for guarantees analogous to those of the system at issue. SCK's certification system genuinely gives added value compared with the statutory scheme, both substantively and in its operation. Substantively, it imposes requirements relating to both technical matters and the management of the firm which go beyond the statutory requirements. SCK pursues a much more active monitoring policy than Keboma. That complementary function of a certification system is explained by a deliberate policy in the Netherlands of entrusting to the businesses active in the sector the monitoring of statutory requirements as much as possible. The added value of SCK's certification system was acknowledged by DG III in a memorandum of 18 August 1994 to DG IV. Accordingly, SCK cannot permit the hiring of cranes which meet only the statutory requirements without that affecting the coherence of its certification system. The fact that there are as yet no other private bodies which have set up a certification system comparable to SCK's in no way signifies that SCK is unwilling to recognize a comparable system were it to exist. Besides, the Commission's argument would make it impossible to set up a certification system in a sector where none yet exists, because the first system established would not have the possibility of recognizing other, comparable, systems.

129 In response to the applicants' arguments, the Commission states that, in paragraphs 23 to 30 of the contested decision, it carried out a detailed analysis of the prohibition on hiring in its legal and economic context, in order to determine whether such a prohibition is compatible with Article 85(1) of the Treaty (see Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235).

130 It maintains that the prohibition on hiring is not essential in order to maintain the coherence of the certification system in question. To underline the disproportionate nature of the prohibition, it points out that the prohibition excludes the possibility of using cranes certified by other bodies and does not allow the head contractor to demonstrate, even by a pre-prepared list, that his uncertified subcontractor meets all of SCK's requirements. Furthermore, the prohibition prevents the head contractor from using an uncertified subcontractor where the client has expressly waived the quality guarantees associated with a certificate from SCK and has authorized the use of uncertified cranes.

131 SCK's certification system does not comply with the criteria set out in the first subparagraph of paragraph 23 of the contested decision. First, from the beginning and, at any rate in part, until 21 October 1993, it had the features of a closed system (paragraph 24 of the contested decision). Secondly, contrary to the applicants' contention, it did not allow other guarantee systems to be recognized. The amendment proposed by the applicants to the original version of the second indent of Article 7 of the rules on certification, for the recognition of certification by other bodies governed by private law (letter dated 12 July 1993 from the applicants' adviser to the Commission, marked for the attention of Mr Dubois), has no practical effect because, first, such bodies do not exist either in the Netherlands or in the neighbouring countries and, secondly, guarantees other than private certificates are not recognized. In particular, the Keboma mark and similar official certificates from the Belgian or German authorities remain unrecognized.

- Findings of the Court

132 Under the second indent of Article 7 of SCK's rules on the certification of crane-hire firms, firms certified by it are prohibited from hiring cranes from uncertified firms.

133 As regards the first section of this part of the plea, namely that the Commission erred in law with regard to the reference to the criteria of transparency, openness, independence and acceptance of equivalent guarantees offered by other systems in assessing whether a certification system is compatible with Article 85(1) of the Treaty, it should be noted that, in the contested decision (paragraph 23), the Commission took the view that the anti-competitive nature of the prohibition on hiring could be assessed only by reference to the nature of the certification system with which that prohibition was associated. For that purpose, it laid down four criteria - namely openness, independence, transparency and acceptance of equivalent guarantees offered by other systems - which the certification system had to comply with in order for it to be possible for the prohibition on hiring to fall outside Article 85(1).

134 It is settled case-law that the assessment as to whether conduct is in accordance with Article 85(1) of the Treaty is to be carried out in the legal and economic context of the case (see, for example, Société Technique Minière v Maschinenbau Ulm, cited above, and Case T-77/94 Vereniging van Groothandelaren in Bloemkwekerijprodukten and Others v Commission [1997] ECR II-0000, paragraph 140). Since the Commission was thus entitled to establish criteria giving effect to the requirements of Article 85(1) in a specific legal and economic context, it is necessary to examine whether the criteria to which it refers in the first subparagraph of paragraph 23 of the contested decision are pertinent.

135 However, in view of the fact that the Commission relies solely on the lack of openness in SCK's certification system and on the failure to accept equivalent guarantees offered by other systems in finding that, in this case, the prohibition on hiring distorts competition (second subparagraph of paragraph 23 of the contested decision and Article 3 of the operative part), it is sufficient to determine whether those two criteria are pertinent.

136 There is no doubt that the criterion of openness of the certification system is pertinent to the assessment of the prohibition on hiring from the point of view of Article 85(1) of the Treaty. The prohibition on hiring cranes from uncertified firms affects significantly the competitive opportunities of those firms if it is difficult to gain access to the certification system.

137 The second criterion, relating to the acceptance of equivalent guarantees offered by other systems, is also pertinent. The prohibition on hiring preventing certified firms from calling on the services of uncertified firms even if they provide guarantees equivalent to those of the certification system cannot be objectively justified by an interest in maintaining the quality of the products and services ensured by the certification system. On the contrary, the failure to accept equivalent guarantees offered by other systems protects certified firms from competition from uncertified firms.

138 The first section of the second part of the plea, alleging that the Commission erred in law, must therefore be rejected.

139 As regards the second section of that part of the plea, in which the applicants contend that the Commission committed an error of assessment in holding that SCK's prohibition on hiring restricts competition for the purposes of Article 85(1) of the Treaty, it should be noted that when the setting up of SCK was discussed at a meeting of the Noord Holland Region of FNK on 27 September 1983, those taking part did not have in mind at all an intensification in competition between them but rather an increase in market prices. The minutes of that meeting (produced by the applicants by letter of 10 April 1997) thus recorded one of the participants as saying: `Such a [certification] institute is a very healthy thing. It should have an effect on prices if the proposal is implemented well.' Another participant at the same meeting considered that the certification proposal was a `good idea'. He added that `in a business, the turnover achieved is more important than the rate of use of the machines'. A crane-hire firm which does not increase the rate of use of its machines will achieve an increase in turnover only by increasing its charges.

140 Furthermore, the second section of the second part of the plea operates on a different plane from that on which the Commission assessed the prohibition on hiring in the contested decision. The Commission based its finding that competition was restricted on the fact that that prohibition applied within a certification system which was not completely open and did not accept equivalent guarantees offered by other systems (second subparagraph of paragraph 23 of the contested decision).

141 The prohibition on hiring laid down by the second indent of Article 7 of SCK's rules on the certification of crane-hire firms not only restricts the freedom of action of certified firms but also, and above all, affects the competitive opportunities of uncertified firms. Having regard to the economic power of SCK, which itself states that it accounts for approximately 37% of the Netherlands mobile crane-hire market, there can be no doubt that competition is restricted appreciably for the purposes of Article 85(1) of the Treaty if, as the Commission states, the prohibition on hiring operates within a certification system which is not completely open and does not accept equivalent guarantees offered by other systems (see paragraphs 143 to 151 below). In such a case, the prohibition on hiring in fact reinforces the closed nature of the certification system (first subparagraph of paragraph 26 of the contested decision) and considerably impedes access by third parties to the Netherlands market (second subparagraph of paragraph 26).

142 At this stage, it is necessary to consider whether the factual premisses - namely the lack of complete openness in SCK's certification system and the failure to accept equivalent guarantees offered by other systems - upon which the Commission based its assessment are correct.

143 The Commission's finding that SCK's certification system was not open during the period at issue (from 1 January 1991, when the prohibition on hiring was introduced, until 4 November 1993, when the decision was made to suspend it, with the exception of the period from 17 February to 19 July 1992) is based on the following factors: it was more difficult for firms not affiliated to FNK than for firms affiliated to it to be admitted to the certification system because the costs of participation were higher for the former than for the latter; the requirements imposed by the certification system were drawn up on the basis of the position in the Netherlands, thereby hindering access by foreign firms. Thus, until 1 May 1993, it was necessary under SCK's certification system to register with the Chamber of Commerce and, until 21 October 1993, FNK's general conditions had to be applied (paragraph 24 of the contested decision).

144 The factors put forward by the applicants to demonstrate that SCK's certification system was open do not constitute persuasive proof.

145 First, the Commission stated in the contested decision that from `September 1987 to 1 January 1992 participation in the SCK certification arrangements was roughly three times cheaper for FNK members than for non-members' (paragraph 9). The fact that FNK members enjoyed a substantial reduction (of approximately 66%) in their subscriptions to SCK until 1 January 1992 has not been disputed by the applicants either during the administrative procedure or in the proceedings before the Court. Even if, as they claim, that reduction was to compensate for secretarial services rendered by FNK to SCK, the effect of such a practice was none the less to make it more difficult for foreign firms than for Netherlands firms to be admitted to SCK's certification system, since almost all (more than 90%) of the firms certified by SCK were FNK members and only crane-hire firms established in the Netherlands could be admitted as FNK members (Article 4(a) of FNK's statutes). That `barring' effect was also reinforced by the fact that if firms established in other Member States had nevertheless decided in favour of certification by SCK, they would, until 21 October 1993, have had to apply the general conditions of a body barred to them, namely FNK, and in the drafting of which they had been unable to participate. The closed or, at least, not entirely open nature of SCK's certification system as regards firms from other countries also follows from the undisputed fact that its requirements wer