British-American Tobacco Company Ltd and R. J. Reynolds Industries Inc. v Commission of the European Communities.
Date: 1987-11-17
13 THE ACTIONS ARE INADMISSIBLE, HOWEVER, IN SO FAR AS THEY REQUEST THE COURT TO ORDER THE COMMISSION TO ADOPT A MEASURE REPLACING THE CONTESTED MEASURE, SINCE THE COURT HAS NO POWER TO MAKE SUCH AN ORDER IN PROCEEDINGS UNDER ARTICLE 173 FOR THE REVIEW OF THE LEGALITY OF A DECISION .
II - SUBSTANCE
14 THE SUBMISSIONS OF THE APPLICANTS CONCERN THE ADMINISTRATIVE PROCEDURE, THE COMMISSION' S ASSESSMENT OF THE AGREEMENTS AND THE STATEMENT OF THE REASONS FOR ITS DECISIONS .
A - ADMINISTRATIVE PROCEDURE
15 THE APPLICANTS ARGUE IN PARTICULAR THAT IN THEIR CAPACITY AS PERSONS HAVING SUBMITTED APPLICATIONS UNDER ARTICLE 3*(2 ) OF REGULATION NO 17/62 THEY WERE NOT SUFFICIENTLY INVOLVED IN THE COMMISSION' S INVESTIGATION OF THE AGREEMENTS IN QUESTION .
20 AS IS CLEAR IN PARTICULAR FROM THE JUDGMENT OF 28 MARCH 1985 IN CASE 298/83 CICCE V COMMISSION (( 1985 )) ECR 1105, THE COMPLAINANTS MUST, ON THE OTHER HAND, BE GIVEN THE OPPORTUNITY TO DEFEND THEIR LEGITIMATE INTERESTS IN THE COURSE OF THE ADMINISTRATIVE PROCEEDINGS, AND THE COMMISSION MUST CONSIDER ALL THE MATTERS OF FACT AND OF LAW WHICH THEY BRING TO ITS ATTENTION . HOWEVER, THE PROCEDURAL RIGHTS OF THE COMPLAINANTS ARE NOT AS FAR-REACHING AS THE RIGHT TO A FAIR HEARING OF THE COMPANIES WHICH ARE THE OBJECT OF THE COMMISSION' S INVESTIGATION . IN ANY EVENT, THE LIMITS OF SUCH RIGHTS ARE REACHED WHERE THEY BEGIN TO INTERFERE WITH THOSE COMPANIES' RIGHT TO A FAIR HEARING .
54 IT MUST, HOWEVER, BE CONSIDERED WHETHER THOSE PROVISIONS GIVE RISE TO IMMEDIATE ANTI-COMPETITIVE EFFECTS AND WHETHER THE COMMISSION ALSO TOOK SUFFICIENT ACCOUNT OF THEIR POTENTIAL EFFECTS .
62 THAT INVOLVES AN APPRAISAL OF COMPLEX ECONOMIC MATTERS, AND IT SHOULD BE RECALLED THAT IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 42/84 REMIA V COMMISSION (( 1985 )) ECR 2566 THE COURT HELD THAT ALTHOUGH AS A GENERAL RULE IT UNDERTAKES A COMPREHENSIVE REVIEW OF THE QUESTION WHETHER OR NOT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 85*(1 ) ARE MET, ITS REVIEW OF SUCH APPRAISALS MADE BY THE COMMISSION IS NECESSARILY LIMITED TO VERIFYING WHETHER THE RELEVANT RULES ON PROCEDURE AND ON THE STATEMENT OF REASONS HAVE BEEN COMPLIED WITH, WHETHER THE FACTS HAVE BEEN ACCURATELY STATED AND WHETHER THERE HAS BEEN ANY MANIFEST ERROR OF APPRAISAL OR A MISUSE OF POWERS .
70 IN THE CASE OF A MEASURE REJECTING AN APPLICATION PURSUANT TO ARTICLE 3 OF REGULATION NO 17/62, IT IS SUFFICIENT THAT THE COMMISSION SHOULD STATE THE REASONS FOR WHICH IT DID NOT CONSIDER IT POSSIBLE TO HOLD THAT AN INFRINGEMENT OF THE RULES ON COMPETITION HAD OCCURRED . IN PARTICULAR, THE COMMISSION IS NOT OBLIGED TO EXPLAIN ANY DIFFERENCES IN RELATION TO THE STATEMENT OF OBJECTIONS, SINCE THAT IS A PREPARATORY DOCUMENT CONTAINING ASSESSMENTS WHICH ARE PURELY PROVISIONAL IN NATURE AND ARE INTENDED TO DEFINE THE SCOPE OF THE ADMINISTRATIVE PROCEEDINGS WITH REGARD TO THE COMPANIES AGAINST WHICH THEY ARE BROUGHT .
72 WITH REGARD TO THE COMPLAINT CONCERNING THE ALLEGED FAILURE TO REPLY TO THE APPLICANTS' ARGUMENTS, IT SHOULD BE RECALLED THAT IN ITS JUDGMENT OF 17 JANUARY 1984 IN JOINED CASES 43 AND 63/82 VBVB AND VBBB V COMMISSION (( 1984 )) ECR 19, THE COURT EMPHASIZED THAT ALTHOUGH UNDER ARTICLE 190 OF THE TREATY THE COMMISSION IS REQUIRED TO SET OUT THE CIRCUMSTANCES JUSTIFYING THE ADOPTION OF A DECISION AND THE LEGAL CONSIDERATIONS WHICH HAVE LED THE COMMISSION TO ADOPT IT, THAT ARTICLE DOES NOT REQUIRE THE COMMISSION TO DISCUSS ALL THE MATTERS OF FACT AND OF LAW WHICH MAY HAVE BEEN DEALT WITH DURING THE ADMINISTRATIVE PROCEEDINGS .
73 IN THIS CASE, THEREFORE, IT IS SUFFICIENT THAT THE COMMISSION SHOULD INDICATE THE CIRCUMSTANCES AND THE LEGAL CONSIDERATIONS ON THE BASIS OF WHICH IT FOUND IT IMPOSSIBLE TO HOLD THAT THE 1984 AGREEMENTS CONSTITUTED AN INFRINGEMENT OF THE COMPETITION RULES . VIEWED IN THAT LIGHT, THE STATEMENT OF THE REASONS FOR THE CONTESTED DECISIONS CANNOT BE REGARDED AS INSUFFICIENT .