CELEX: C1999/299/16
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-308/99 P: Appeal brought on 13 August 1999 by the French Republic against the judgment delivered on 3 June 1999 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-17/96 between Télévision Française 1 SA (TF1) and the Commission of the European Communities supported by the French Republic

16.10.1999             EN                      Official Journal of the European Communities                                       C 299/15
Appeal brought on 13 August 1999 by the French                            (As regards the order as to costs:)
Republic against the judgment delivered on 3 June 1999
by the Third Chamber, Extended Composition, of the                        — Infringement of Article 87(4), alternatively Article 87(6) of
Court of First Instance of the European Communities in                        the Rules of Procedure of the Court of First Instance.
Case T-17/96 between Télévision Française 1 SA (TF1)
and the Commission of the European Communities sup-                       (1) Case C-107/95 P Bundesverband der Bilanzbuchhalter v Com-
                ported by the French Republic                                 mission (1997) ECR I-947.
                        (Case C-308/99 P)
                          (1999/C 299/16)
                                                                          Reference for a preliminary ruling from the Netherlands
An appeal against the judgment delivered on 3 June 1999 by                Raad van State by judgment of that court of 10 August
the Third Chamber, Extended Composition, of the Court of                  1999 in the case of 1. J.C.J. Wouters 2. Council of the Bars
First Instance of the European Communities in Case T-17/96                and Law Societies of the European Community 3. J.W.
between Télévision Française 1 SA (TF1) and the Commission                Savelbergh 4. Price Waterhouse Belastingadviseurs BV
of the European Communities supported by the French                       and Algemene Raad van de Nederlandse Orde van Advo-
Republic was brought before the Court of Justice of the                                                  caten
European Communities on 13 August 1999 by the French
Republic, represented by Kareen Rispal-Bellanger and Frédérik                                      (Case C-309/99)
Million, acting as Agents, with an address for service in
Luxembourg at the French Embassy, 8b Boulevard Joseph II.                                         (1999/C 299/17)
                                                                          Reference has been made to the Court of Justice of the
The appellant claims that the Court should:                               European Communities by a judgment of the Netherlands
                                                                          Raad van State (Council of State) of 10 August 1999, which
— set aside point 2 (in so far as it is conceded that the action          was received at the Court Registry on 13 August 1999, for a
    under Article 90 of the EC Treaty (now Article 86 EC) is              preliminary ruling in the case of 1. J.C.J. Wouters, 2. Council
    admissible) and point 6 of the operative part of the                  of the Bars and Law Societies of the European Community 3.
    judgment under appeal;                                                J.W. Savelbergh 4. Price Waterhouse Belastingadviseurs BV
                                                                          against the Algemene Raad van de Nederlandse Orde van
— grant the form of order sought by the Commission at first               Advocaten (the Netherlands Bar Council) on the following
    instance.                                                             questions:
                                                                          1.(a) Is the term ‘association of undertakings’ in Article 85(1)
                                                                                [now Article 81(1)] of the EC Treaty to be interpreted as
Pleas in law and main arguments                                                 meaning that there is such an association only if and in
                                                                                so far as it acts in the undertakings’ interest, so that in
(As regards the admissibility of the action under Article 90:)                  applying that provision a distinction must be made
                                                                                between activities of the association carried out in the
— The Court of First Instance erred in law and in its legal                     public interest and other activities, or is the mere fact
    characterisation of the facts: The admissibility of an action               that an association can also act in the undertakings’
    for failure to act is subject to the existence of a duty to act.            interest sufficient for it to be regarded as an association
    Under the Treaty, the Commission is under no obligation                     of undertakings within the meaning of the provision in
    to act pursuant to Article 90(3). That provision confers                    respect of all its actions? Is the fact that the universally
    upon it a discretion similar to that which it enjoys in the                 binding rules adopted by the relevant institution are
    application of Article 169 of the EC Treaty (now Article                    adopted under a statutory power and in its capacity as a
    226 EC).                                                                    special legislature relevant as regards the application of
                                                                                Community competition law?
    As a subsidiary plea, the French Government expresses the
    view that the Court of First Instance could not have                  1.(b) If the answer to Question 1(a) is that there is an
    accepted the characterisation of an ‘exceptional situation’                 association of undertakings only if and in so far as it acts
    within the meaning of the case-law of the Court of Justice                  in the undertakings’ interest, is the question of when
    without misconstruing the scope of that concept, which is                   the public interest is being pursued also governed by
    necessarily very restrictive. Exceptional situations, within                Community law?
    the meaning of the judgment in Bundesverband der
    Bilanzbuchhalter (1) must, the French Government submits,             1.(c) If the answer to Question 1(b) is that Community law is
    be limited to instances where State measures merely ‘ratify’                relevant, can the adoption under a statutory power by
    (encourage or support) anti-competitive conduct engaged                     an institution such as the [Netherlands] Bar Association
    in on their own initiative by undertakings caught by Article                of universally binding rules, designed to safeguard the
    90, in order to prevent public intervention of that kind                    independence and loyalty to the client of lawyers provid-
    from shielding anti-competitive conduct which is to be                      ing legal assistance, on the formation of co-operative
    prohibited as a matter of course in accordance with                         associations between lawyers and members of other
    Articles 85 and 86 of the EC Treaty (now Articles 81 and                    professions be regarded for the purposes of Community
    82 EC).                                                                     law as pursuing the public interest?