CELEX: 62003TO0252(01)
Language: en
Date: 2004-11-09 00:00:00
Title: Order of the Court of First Instance (Fifth Chamber) of 9 November 2004. # Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the European Communities. # Competition - Decision finding an infringement of Article 81 EC - Market in beef and veal - Action for annulment - Unlimited jurisdiction - Time-limit for bringing application - Introduction out of time - Inadmissibility. # Case T-252/03.

Case T-252/03
      Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV)
      v
      Commission of the European Communities
      (Competition – Decision finding an infringement of Article 81 EC – Market in beef and veal – Action for annulment – Unlimited jurisdiction – Time-limit for bringing application – Introduction out of time – Inadmissibility)
      Order of the Court of First Instance (Fifth Chamber), 9 November 2004 
      Summary of the Order
      Court of Justice – Court of First Instance – Unlimited jurisdiction – Exercise in the context of an action for annulment –
            Absence of an autonomous remedy with unlimited jurisdiction
      (Arts 229 EC, 230, fifth para., EC and 231 EC; Council Regulation No 17, Art. 17)
      The Treaty does not recognise the ‘action under the Court’s unlimited jurisdiction’ as an autonomous remedy. Article 229 EC
         confines itself to providing that regulations adopted pursuant to the provisions of the Treaty may give the Community judicature
         unlimited jurisdiction with regard to the penalties provided for in those regulations.
      
      On the basis of Article 229 EC, a number of regulations have given the Community judicature unlimited jurisdiction with regard
         to penalties. In particular, Article 17 of Regulation No 17 provides that ‘[t]he Court of Justice shall have unlimited jurisdiction
         within the meaning of Article [229 EC] to review decisions whereby the Commission has fixed a fine or periodic penalty payment’.
         The Court of First Instance has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 229
         EC and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. In the context of its unlimited jurisdiction,
         the powers of the Community judicature are not limited to declaring the contested decision void, as provided in Article 231
         EC, but allow it to vary the penalty imposed by that decision.
      
      However, that unlimited jurisdiction can be exercised by the Community judicature only in the context of the review of acts
         of the Community institutions, more particularly in actions for annulment. The sole effect of Article 229 EC is to enlarge
         the extent of the powers the Community judicature has in the context of the action referred to in Article 230 EC. Consequently,
         an action in which the Community judicature is asked to exercise its unlimited jurisdiction with respect to a decision imposing
         a penalty necessarily comprises or includes a request for the annulment, in whole or in part, of that decision. Such an action
         must therefore be brought within the time-limit laid down by the fifth paragraph of Article 230 EC.
      
      (see paras 22-25)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)9 November 2004(1)
            
            
         
            (Competition  –  Decision finding an infringement of Article 81 EC  –  Market in beef and veal  –  Action for annulment  –  Unlimited jurisdiction  –  Time-limit for bringing application  –  Introduction out of time  –  Inadmissibility)
            
          In Case T-252/03,
         
         
         Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV), established in Paris (France), represented by P. Abegg and E. Prigent, lawyers, with an address for service in Luxembourg,
         
         
         
         applicant, supported byFrench Republic, represented by R. Abraham, G. de Bergues and F. Million, acting as Agents, with an address for service in Luxembourg,
         
         v
         Commission of the European Communities, represented by P. Oliver and F. Lelièvre, acting as Agents, with an address for service in Luxembourg,
         
         defendant,
         
          ACTION for annulment of the fine imposed on the applicant by Article 3 of Commission Decision 2003/600/EC of 2 April 2003
         relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p.
         12) and, in the alternative, for a reduction of the amount of that fine,
         
         
         
         
         
         THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber)
         
          composed of:  P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,
         
          Registrar: H. Jung,
         
         makes the following
         
         
         Order
            
               Legal background
            
         
         1
            
          In accordance with Article 225(1) EC and Article 230 EC, the Court of First Instance reviews the lawfulness inter alia of
         decisions of the Commission and has jurisdiction for that purpose to determine actions, brought inter alia by any natural
         or legal persons to whom those decisions are addressed, on grounds on lack of competence, infringement of essential procedural
         requirements, infringement of the EC Treaty or of any rule of law relating to its application, or misuse of powers.
         
         
         
         2
            
          Under the fifth paragraph of Article 230 EC, an action for annulment must be brought within two months of the notification
         to the applicant of the contested decision. Under Article 102(2) of the Rules of Procedure of the Court of First Instance,
         the time-limit for bringing an action against an act of an institution is extended on account of distance by a single period
         of 10 days.
         
         
         
         3
            
          Under Article 229 EC, ‘[r]egulations adopted jointly by the European Parliament and the Council, and by the Council, pursuant
         to the provisions of [the EC] Treaty, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided
         for in such regulations’.
         
         
         
         4
            
          In accordance with Article 17 of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles
         [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), ‘[t]he Court of Justice shall have unlimited jurisdiction
         within the meaning of Article [229 EC] to review decisions whereby the Commission has fixed a fine or periodic penalty payment;
         it may cancel, reduce or increase the fine or periodic penalty payment imposed’. 
         
         Facts of the dispute
         
         5
            
          By Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3
         – French beef) (OJ 2003 L 209, p. 12, ‘the contested decision’), the Commission found that the applicant, an association representing
         cattle slaughterers in France, had infringed Article 81(1) EC by concluding with other organisations in the beef and veal
         sector in France agreements with the object of suspending imports of beef into France and fixing a minimum purchase price
         for certain categories of cattle (Article 1 of the contested decision). The fine imposed on the applicant was fixed at EUR
         720 000 (Article 3 of the contested decision).
         
         Procedure and forms of order sought by the parties
         
         6
            
          By application lodged at the Registry of the Court of First Instance on 7 July 2003, the applicant brought the present action.
         
         
         
         7
            
          By separate document lodged at the Registry of the Court on the same date, the applicant made an application for interim measures,
         seeking suspension of enforcement of the contested decision and of the obligation to provide a bank guarantee as a condition
         of non-collection of the fine imposed.
         
         
         
         8
            
          On 17 July 2003 the Commission raised a plea of inadmissibility of the main action and the application for interim measures.
         
         
         
         9
            
          On 18 July 2003 the applicant submitted observations on the plea of inadmissibility.
         
         
         
         10
            
          On 7 October 2003 the French Republic applied for leave to intervene in support of the applicant. By order of 20 November
         2003, the President of the Fifth Chamber of the Court gave the French Republic leave to intervene. On 23 December 2003 the
         French Republic submitted a statement in intervention.
         
         
         
         11
            
          By order of the President of the Court of 21 January 2004, the application for interim measures was dismissed.
         
         
         
         12
            
          The applicant claims that the Court should:
         
         
         
          
         –
            reject the plea of inadmissibility;
         
         
         
         
          
         –
            annul the fine imposed on it by the contested decision;
         
         
         
         
          
         –
            in the alternative, reduce the amount of the fine very considerably;
         
         
         
         
          
         –
            order the Commission to pay the costs.
         
         
         
         
         
         13
            
          The French Republic, intervener in support of the applicant, claims that the Court should:
         
         
         
          
         –
            annul the contested decision;
         
         
         
         
          
         –
            order the Commission to pay the costs.
         
         
         
         
         
         14
            
          The Commission contends that the action should be dismissed as manifestly inadmissible.
         
         AdmissibilityArguments of the parties
         
         15
            
          The Commission submits that the action is manifestly inadmissible, since it was brought after the expiry of the period of
         two months and ten days laid down by the fifth paragraph of Article 230 EC in conjunction with Article 102(2) of the Rules
         of Procedure.
         
         
         
         16
            
          The applicant observes that the action it has brought against the contested decision is an ‘action under the Court’s unlimited
         jurisdiction’ based on Article 229 EC. It says that, by its application, it is not challenging the principle of the infringement
         or of the condemnation. It merely contests the amount of the fine, which appears to it to be inappropriate and excessive.
         In this respect, the applicant submits that an ‘action under the Court’s unlimited jurisdiction’ is not subject to any time-limit.
         
         Findings of the Court
         
         17
            
          Under Article 114 of the Rules of Procedure, if a party so applies, the Court may rule on inadmissibility without hearing
         argument on the substance of the case, under the conditions laid down in Article 114(3) and (4). In the present case, the
         Court considers that it has sufficient information on the basis of the documents in the case, and will give its decision without
         opening the oral procedure and without hearing argument on the substance.
         
         
         
         18
            
          The applicant essentially submits that its action is based on Article 229 EC. It is consequently not subject to the time-limit
         of two months after which an action is statute-barred in accordance with the fifth paragraph of Article 230 EC, as that applies
         only to the actions for annulment referred to in Article 230 EC.
         
         
         
         19
            
          That argument cannot be accepted.
         
         
         
         20
            
          By virtue of Article 220 EC, the Court of Justice and the Court of First Instance, each within its jurisdiction, are to ensure
         that in the interpretation and application of the Treaty the law is observed.
         
         
         
         21
            
          Article 225(1) EC, in the version following the Treaty of Nice, lists the actions which are within the jurisdiction of the
         Court of First Instance. That provision does not contain any reference to Article 229 EC, whereas it expressly mentions Articles
         230 EC (actions for annulment), 232 EC (actions for failure to act), 235 EC (actions for compensation), 236 EC (actions in
         staff cases) and 238 EC (actions on the basis of arbitration clauses in contracts concluded by or on behalf of the Community).
         Article 229 EC thus does not appear among the types of action within the jurisdiction of the Court of First Instance.
         
         
         
         22
            
          Contrary to the applicant’s argument, the Treaty does not recognise the ‘action under the Court’s unlimited jurisdiction’
         as an autonomous remedy. Article 229 EC confines itself to providing that regulations adopted pursuant to the provisions of
         the EC Treaty may give the Community judicature unlimited jurisdiction with regard to the penalties provided for in those
         regulations.
         
         
         
         23
            
          On the basis of Article 229 EC, a number of regulations have given the Community judicature unlimited jurisdiction with regard
         to penalties. In particular, Article 17 of Regulation No 17 provides that ‘[t]he Court of Justice shall have unlimited jurisdiction
         within the meaning of Article [229 EC] to review decisions whereby the Commission has fixed a fine or periodic penalty payment’.
         
         
         
         24
            
          The Court of First Instance has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 229
         EC and Article 17 of Regulation No 17, the appropriateness of the amounts of fines (Case C‑248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 40; Case C‑279/98 P Cascades v Commission [2000] ECR I-9693, paragraph 42; and Case C‑280/98 P Weig v Commission [2000] ECR I-9757, paragraph 41). In the context of its unlimited jurisdiction, the powers of the Community judicature are
         not limited to declaring the contested decision void, as provided in Article 231 EC, but allow it to vary the penalty imposed
         by that decision.
         
         
         
         25
            
          However, that unlimited jurisdiction can be exercised by the Community judicature only in the context of the review of acts
         of the Community institutions, more particularly in actions for annulment. The sole effect of Article 229 EC is to enlarge
         the extent of the powers the Community judicature has in the context of the action referred to in Article 230 EC. Consequently,
         an action in which the Community judicature is asked to exercise its unlimited jurisdiction with respect to a decision imposing
         a penalty necessarily comprises or includes a request for the annulment, in whole or in part, of that decision. Such an action
         must therefore be brought within the time-limit laid down by the fifth paragraph of Article 230 EC.
         
         
         
         26
            
          Consequently, as the present action was brought after the expiry of the time-limit laid down in the fifth paragraph of Article
         230 EC, with the extension on account of distance provided for in Article 102(2) of the Rules of Procedure, it must be dismissed
         as out of time. Since the contested decision was notified to the applicant on 10 April 2003, that period of two months and
         ten days had expired when the application was lodged at the Registry of the Court on 7 July 2003.
         
         
         
         27
            
          The action must accordingly be dismissed as inadmissible.
         
         
         Costs
         28
            
          Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the Commission made no application in relation to the costs of the
         main action, the applicant and the Commission shall each bear their own costs.
         
         
         
         29
            
          The costs relating to the proceedings for interim measures were reserved by the order of the President of the Court of 21
         January 2004 dismissing the application. Since the applicant was unsuccessful, it must be ordered to bear its own costs and
         pay those of the Commission relating to the proceedings for interim measures, in accordance with the Commission’s pleadings
         concerning the costs relating to those proceedings.
         
         
         
         30
            
          Pursuant to Article 87(4) of the Rules of Procedure, the French Republic, which intervened in the action, shall bear its own
         costs.
         
         
         On those grounds,
         
         
         
            
            THE COURT OF FIRST INSTANCE (Fifth Chamber)
         
         
          hereby orders:
         
            
            
             
               1.
                  The action is dismissed as inadmissible.
               
            
            
            
             
               2.
                  The applicant and the Commission shall bear their own costs relating to the main action.
               
            
            
            
             
               3.
                  The applicant shall bear its own costs and pay those of the Commission relating to the proceedings for interim measures.
               
            
            
            
             
               4.
                  The French Republic shall bear its own costs.
               
            
             Luxembourg, 9 November 2004.
         
         
         
                  H. Jung
               
               
                  P. Lindh
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: French.