Case T-112/99

Métropole télévision (M6) and Others

v

Commission of the European Communities

‛Actions for annulment — Competition — Pay television — Joint venture — Article 85 of the EC Treaty (now Article 81 EC) — Article 85(1) of the Treaty — Negative clearance — Ancillary restrictions — Rule of reason — Article 85(3) of the Treaty — Exemption decision — Duration’

Judgment of the Court of First Instance (Third Chamber), 18 September 2001 II-2464

Summary of the Judgment

It is settled law that any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) for a declaration that it is void. Thus, any natural or legal person may bring an action for annulment of a decision of a Community institution which does not allow, in whole or in part, a clear and precise request from that person which falls within the competence of that institution. In such a situation the total or partial rejection of the request produces binding legal effects capable of affecting the interests of its maker. A Commission decision which grants negative clearance or an exemption under the competition rules only for part of the term of a notified agreement produces, in regard to the parties to the agreement — who had requested negative clearance or, failing that, an exemption for the full term of the agreement — binding legal effects capable of affecting their interests. (see paras 35-41)

The existence of a rule of reason in Community competition law cannot be upheld. To interpret Article 85(1) of the Treaty (now Article 81(1) EC) to the effect that it is necessary — applying a rule of reason — to weigh the pro and anticompetitive effects of an agreement in order to determine whether it is caught by the prohibition laid down in that article, is difficult to reconcile with the rules prescribed by Article 85. Article 85 of the Treaty expressly provides, in its third paragraph, for the possibility of exempting agreements that restrict competition where they satisfy a number of conditions, in particular where they are indispensable to the attainment of certain objectives and do not afford undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. It is only in the precise framework of that provision that the pro and anticompetitive aspects of a restriction may be weighed. Article 85(3) of the Treaty would lose much of its effectiveness if such an examination had to be carried out already under Article 85(1) of the Treaty. It is true that in a number of judgments (see, in particular, Case 56/65 Société technique minière; Case 258/78 Nungesser and Risele v Commission; Case 262/81 Coditei and Others; Case 161/84 Pronuptia; Case C-250/92 DLG; Case C-399/93 Oude Luttikhuis and Others, and Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission) the Court of Justice and the Court of First Instance have favoured a more flexible interpretation of the prohibition laid down in Article 85(1) of the Treaty. Those judgments cannot, however, be interpreted as establishing the existence of a rule of reason in Community competition law. They are, rather, part of a broader trend in the case-law according to which it is not necessary to hold, wholly abstractly and without drawing any distinction, that any agreement restricting the freedom of action of one or more of the parties is necessarily caught by the prohibition laid down in Article 85(1) of the Treaty. In assessing the applicability of Article 85(1) to an agreement, account should be taken of the actual conditions in which it functions, in particular the economic context in which the undertakings operate, the products or services covered by the agreement and the actual structure of the market concerned. (see paras 72-76, 107)

In Community competition law the concept of an ‘ancillary restriction’ covers any restriction which is directly related and necessary to the implementation of a main operation. A restriction ‘directly related’ to implementation of a main operation must be understood to be any restriction which is subordinate to the implementation of that operation and which has an evident link with it. The condition that a restriction be necessary implies a twofold examination. It is necessary to establish, first, whether the restriction is objectively necessary for the implementation of the main operation and, second, whether it is proportionate to it. The examination of the objective necessity of a restriction in relation to the main operation cannot but be relatively abstract. It is not a question of analysing whether, in the light of the competitive situation on the relevant market, the restriction is indispensable to the commercial success of the main operation but of determining whether, in the specific context of the main operation, the restriction is necessary to implement that operation. If, without the restriction, the main operation is difficult or even impossible to implement, the restriction may be regarded as objectively necessary for its implementation. Where a restriction is objectively necessary to implement a main operation, it is still necessary to verify whether its duration and its material and geographic scope do not exceed what is necessary to implement that operation. If the duration or the scope of the restriction exceed what is necessary in order to implement the operation, it must be assessed separately under Article 85(3) of the Treaty (now Article 81(3) EC). Lastly, it must be observed that, inasmuch as the assessment of the ancillary nature of a particular agreement in relation to a main operation entails complex economic assessments by the Commission, judicial review of that assessment is limited to verifying whether the relevant procedural rules have been complied with, whether the statement of the reasons for the decision is adequate, whether the facts have been accurately stated and whether there has been a manifest error of appraisal or misuse of powers. If it is established that a restriction is directly related and necessary to achieving a main operation, the compatibility of that restriction with the competition rules must be examined with that of the main operation. Thus, if the main operation does not fall within the scope of the prohibition laid down in Article 85(1) of the Treaty, the same holds for the restrictions directly related and necessary for that operation. If, on the other hand, the main operation is a restriction within the meaning of Article 85(1) but benefits from an exemption under Article 85(3) of the Treaty, that exemption also covers those ancillary restrictions. (see paras 104-116)