1 By his appeal, Mr Frédéric Jouvin asks the Court of Justice to set aside the order of the General Court of the European Union of 26 April 2021, Jouvin v Commission (T‑472/20 and T‑472/20 AJ II, not published, EU:T:2021:215; ‘the order under appeal’), by which the General Court dismissed as manifestly lacking any foundation in law his action for annulment of Commission Decision C(2020) 3503 final of 28 May 2020 rejecting his complaint concerning alleged infringements of Article 101 TFEU (‘the decision at issue’).
2 Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), entitled ‘Rejection of complaints’, provides: ‘1. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for acting on a complaint, it shall inform the complainant of its reasons and set a time limit within which the complainant may make known its views in writing. The Commission shall not be obliged to take into account any further written submission received after the expiry of that time limit. 2. If the complainant makes known its views within the time limit set by the Commission and the written submissions made by the complainant do not lead to a different assessment of the complaint, the Commission shall reject the complaint by decision. …’
3 Section 7 of the Commission’s Guidelines on the applicability of Article 101 TFEU to horizontal cooperation agreements (OJ 2011 C 11, p. 1) (‘the Guidelines on horizontal cooperation agreements’) concerns ‘standardisation agreements’. That section contains, in particular, points 280 to 286 of those guidelines, which set out the conditions under which standardisation agreements which risk creating market power would normally fall outside the scope of Article 101(1) TFEU.
4 Pursuant to Article 51 of the Rules of Procedure of the Court of Justice, entitled ‘Extension on account of distance’: ‘The procedural time limits shall be extended on account of distance by a single period of 10 days.’
5 Article 172 of those Rules of Procedure, entitled ‘Parties authorised to lodge a response’, provides: ‘Any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him [or her] of the appeal. The time limit for submitting a response shall not be extended.’
6 The background to the dispute was set out by the General Court in paragraphs 1 to 12 of the order under appeal as follows: ‘1 The [appellant] … filed patents concerning the collection and distribution of parcels in several countries and at [European] level on 27 June 2001, and presented a project called Ripost, using those patents, to the La Poste group on 31 January 2003. 2 On 12 March 2017, the [appellant] lodged a complaint concerning an infringement of Article 102 TFEU on the part of the La Poste group. According to the appellant, that group, which provides postal services in France, infringed his patents concerning the collection and distribution of parcels. 3 In a letter of 31 March 2017, the Commission stated, in essence, that the conduct of the La Poste group, even if established, appears to constitute an infringement of patents rather than an abuse of a dominant position under Article 102 TFEU and that, for that reason, the [appellant]’s letter would not be subject to further examination on its part. 4 On 4 October 2017, the [appellant] sent the Commission a letter reformulating his complaint on the basis of Article 101 TFEU, with reference to a transnational cartel composed of postal operators, manufacturers of franking machines and software and sorting equipment, electronic commerce customers such as Amazon and international standardisation bodies … 5 A telephone conference with the Commission took place on 29 November 2017. 6 On 1, 12 and 13 December 2017, 22 January, 15 May and 20 November 2018 and 22 February 2019, the [appellant] sent the Commission letters in which he stated that he was working on a third version of his complaint. 7 On 5 April 2019, the [appellant] sent a letter to the Commission providing new evidence. 8 By letter of 30 July 2019, the Commission informed the [appellant] that there were insufficient grounds for acting on his complaint. 9 On 14 September 2019, the [appellant] submitted observations to the Commission amending the scope of his complaint, stating that he was abandoning his allegations of abuse of a dominant position by the La Poste group, Amazon and certain postal operators and maintained only the allegations of infringement of Article 101 TFEU. 10 The complaint consisted of four allegations of infringement of Article 101 TFEU, namely criminal infringement of all the [appellant]’s patents; wrongful termination of the negotiation by the cartel undertakings, to which the [appellant] attempted unsuccessfully to grant licences in respect of his patents; the collective boycott of his patents by means of concerted actions involving criminal infringement, wrongful termination of negotiations and other unlawful concerted actions; and, lastly, the establishment of standards by international organisations which infringed the [appellant]’s patents. 11 On 28 May 2020, the Commission adopted the [decision at issue]. 12 According to the [decision at issue], the complaint was rejected on the ground that the likelihood of establishing the existence of an infringement of EU competition law appeared to be limited in the present case. That conclusion was based on two main considerations. The Commission considered that the issue raised was not a competition law issue. Furthermore, the information provided did not enable it to raise or even justify reasonable suspicions concerning collusion between the undertakings concerned.’
7 By application lodged at the Registry of the General Court on 15 October 2020, the appellant brought an action for annulment of the decision at issue.
8 In support of his action, he put forward five pleas in law. Those pleas alleged, respectively, that the Commission (i) manifestly erred in its assessment of the EU interest, (ii) failed to conduct a diligent and impartial examination of the appellant’s complaint (iii) misused its powers by having a conflict of interests and using delaying tactics in relation to the appellant and his claims, (iv) erred in law in failing to consider that there was any discrimination with regard to access to the process of setting standards and the outcome of and reporting on those processes, and (v) erred in law in failing to consider that Article 101(1) TFEU had been infringed.
9 The General Court rejected all those pleas as manifestly unfounded.
10 The appellant claims that the Court should: - set aside the order under appeal; - uphold the form of order sought at first instance and refer the matter back to the Commission, and - order the Commission to pay the costs.
11 The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.
12 The appellant maintains, in his reply, that the Commission’s response was inadmissible on the ground that it was lodged out of time. He claims that that submission, lodged on 22 February 2022, was made over two months after 25 November 2021, the date on which the appeal was lodged. Consequently, the response should be declared inadmissible, since the Commission has failed to adduce proof of the date on which the appeal was served on it.
13 The Commission contends that that objection should be rejected.
14 Under Article 172 of the Rules of Procedure, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him [or her] of the appeal. Under Article 51 of those Rules of Procedure, that time limit is to be extended on account of distance by a single period of ten days. Consequently, the period within which the response must be lodged is two months and ten days from service of the appeal.
15 In the present case, as is apparent from the Commission’s written observations, the appeal was served on it on 13 December 2021. Consequently, the period of two months and ten days for lodging a response, which ran from that date, expired on 23 February 2022.
16 Since the Commission’s response was lodged on 22 February 2022, the objection of inadmissibility alleging that it was out of time must be rejected.
17 The appellant puts forward three grounds of appeal. The first ground of appeal alleges, in essence, incorrect classification of the facts, an error of law concerning the standard of proof required and distortion of the clear sense of the evidence as well as infringement of the obligation to state reasons as regards the General Court’s finding relating to the number of alleged infringers. The second ground of appeal alleges, in essence, distortion of the clear sense of the evidence relating to alleged market sharing. The third plea alleges, in essence, an error of law and an infringement of the obligation to state reasons as regards the classification of the appellant’s arguments relating to the standardisation agreements.
18 By the first ground of appeal, the appellant submits, first, that the General Court was wrong to hold, in paragraph 37 of the order under appeal, that he had not established that the Commission had made a manifest error of assessment in rejecting his allegations of collusion between undertakings. He submits that he raised at first instance an argument alleging that the Commission had manifestly erred in its assessment of the EU interest in failing to consider collusion to be established and in failing to take the view that that collusion had enabled an international standard to be established in breach of the appellant’s intellectual property rights.
19 The appellant adds, in his reply, that, contrary to what the Commission states in its response, the failure by the participants in the standardisation process to comply with the obligations to declare their intellectual property rights and any rights held by third parties, including, in the present case, the appellant’s patents, does not constitute an individual omission on the part of each undertaking concerned, but rather an anti-competitive coordination between those undertakings. The General Court erred in law in holding, in paragraph 38 of the order under appeal, that the Commission was justified in considering that it was impossible to infer from the evidence adduced by the appellant that there were ‘reasonable suspicions’ of collusion between the undertakings referred to in the complaint.
20 In the second place, the appellant claims that the General Court, by requiring, in paragraph 38 of that order, that he demonstrate that the very large number of infringers was capable of calling into question the Commission’s assessment that there was no evidence of collusion between the undertakings referred to in his complaint, erred in law and infringed the obligation to state reasons for its decision.
21 According to the appellant, the existence of a very large number of infringers does not call that assessment into question, but merely shows that it is in practical terms impossible to bring proceedings against each alleged infringer. The existence of a large number of infringers does not therefore serve to reinforce the evidence of that collusion, which had already been demonstrated elsewhere during the administrative procedure and reiterated in the application at first instance. The reasoning set out by the General Court in paragraph 38 of the order under appeal is therefore redundant, since the appellant does not rely on the fact that there is a significant number of alleged infringers, but on the fact that several undertakings participating in the standardisation process were informed of the existence of his patent portfolio before the start of that process and that they failed to fulfil their obligation to declare. Consequently, the reference to the very large number of infringers distorts the clear sense of the evidence brought to the attention of the General Court.
22 The Commission contends that the first ground of appeal is inadmissible in so far as the appellant alleges distortion of the clear sense of the evidence or facts and is ineffective or manifestly unfounded as regards the other arguments put forward by him.
23 It should be recalled that the first plea in the action before the General Court alleged a manifest error of assessment of the EU interest by the Commission. By that plea, the appellant claimed that the Commission failed to take the measure of the significance and seriousness of the alleged infringement of Article 101 TFEU.
24 In that regard, it should be held that, after recalling, in paragraphs 30 to 34 of the order under appeal, the Commission’s powers in dealing with complaints submitted to it and the role of the complainant, the General Court rejected the appellant’s arguments, in paragraphs 36 to 38 of that order, as follows: ‘36 … it should be noted that the Commission stated, in recitals 36, 40, 43 and 46 of the [decision at issue], that the information provided by the [appellant] does not enable it to raise or even justify reasonable suspicions concerning collusion between the undertakings to which its complaint relates. It also considered, in essence, in recitals 36, 39 and 46 of the [decision at issue], that the conduct complained of fell under intellectual property law and not competition law, in the sense that the [appellant]’s intellectual property rights were not taken into account when that standard was established. That is why in particular the Commission justified its conclusion that the likelihood of establishing the existence of an infringement of EU competition law appeared to be limited in the present case and, thus, justified its refusal to examine the [appellant]’s complaint further. 37 Accordingly, and since the [appellant] has not established that that conclusion was the result of a manifest error of assessment on the part of the Commission, the Commission was fully entitled to find that there was no sufficient EU interest in further examination of the facts complained of by the [appellant]. 38 The [appellant]’s allegation that the practice complained of concerns a very large number of alleged infringers cannot invalidate that conclusion, since he has failed to demonstrate that that evidence, even if proved, would call into question the Commission’s finding that there was no evidence of collusion between the undertakings covered by its complaint or that the conduct complained of fell primarily under intellectual property law’.
25 It follows from paragraphs 36 and 37 of the order under appeal that the General Court examined, in accordance with the case-law which it referred to in paragraphs 30 to 34 of that order, whether the Commission had exercised its discretion to deal with complaints by weighing, inter alia, the nature of the alleged infringement, the likelihood of being able to establish its existence and the EU interest.
26 In the first place, it should be noted that, by his line of argument directed against paragraphs 36 and 37 of the order under appeal, the appellant is not claiming an error of law vitiating the reasoning of the General Court but seeks, in fact, to have the Court of Justice undertake a fresh assessment of the evidence, asking it to find that the General Court could not, without committing ‘the same error’ as the Commission, ‘make its own’ assessment of the factual evidence relating to the absence of evidence of the existence of collusion between the undertakings referred to in the appellant’s complaint, which, in particular, led the Commission to adopt the decision at issue.
27 Such a line of argument is inadmissible. According to settled case-law, the General Court has exclusive jurisdiction to find the facts, except in a case where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to evaluate the evidence adduced. The establishment of those facts and the evaluation of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice (judgments of 20 September 2018, Agria Polska and Others v Commission, C‑373/17 P, EU:C:2018:756, paragraph 32, and of 30 June 2022, Fakro v Commission, C‑149/21 P, not published, EU:C:2022:517, paragraph 45), since the Court of Justice has no jurisdiction, in an appeal, to carry out a new examination of the facts and the evidence.
28 Moreover, the fact that the appellant ‘raised’ before the General Court a plea alleging a manifest error of assessment clearly cannot suffice to substantiate his complaint that the General Court erred in law in finding, in paragraph 37 of the order under appeal, that the appellant had not ‘established’ that the conclusion reached by the Commission in the decision at issue was the result of a manifest error of assessment.
29 In the second place, as regards the appellant’s arguments relating to paragraph 38 of the order under appeal, it must, first, be borne in mind, as regards the alleged infringement of the obligation to state reasons by the General Court, that that obligation, which is an essential procedural requirement, must be distinguished from the merits of the reasoning which goes to the substantive legality of the measure at issue (see, to that effect, judgments of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 79, and of 30 June 2022, Fakro v Commission, C‑149/21 P, not published, EU:C:2022:517, paragraph 180).
30 However, the appellant’s complaint that the reasoning of the General Court set out in paragraph 38 of the order under appeal is ‘redundant’ does not concern a failure to state reasons or an inadequate statement of reasons, but the adequacy or merits of that statement of reasons.
31 Secondly, as regards the appellant’s complaint directed against the merits of the assessment set out in that paragraph of the order under appeal, it must be stated that it is based on a misreading of that order.
32 It is true that, in paragraph 38 of that order, the General Court found that the appellant had not demonstrated that the very high number of alleged infringers, if established, would call into question the Commission’s assessment concerning the lack of sufficient interest on the part of the European Union in further examining the facts complained of by the [appellant]. However, it follows from paragraphs 36 and 37 of the same order, which the appellant did not establish were vitiated by an error of law, that the General Court relied not on the number of infringers in upholding that assessment by the Commission, but on the fact that the conduct complained of by the appellant was covered by intellectual property law and not by competition law.
33 Furthermore, the appellant having failed to show by his arguments in that regard that the General Court distorted evidence, those arguments can only be rejected.
34 The first ground of appeal must therefore be rejected as in part inadmissible and in part unfounded.
35 By his second ground of appeal, the appellant submits that the General Court, in paragraph 41 of the order under appeal, committed an error of fact in finding that the appellant had not raised arguments concerning market sharing during the administrative procedure. The [appellant] claims to have indeed claimed that there was such a market-sharing arrangement during that procedure, by letter of 15 May 2018, which sought to supplement the two complaints already made. The General Court failed to refer to that letter, even though it was also annexed to the application at first instance. The General Court’s assessment of the evidence brought to its attention is therefore incorrect, since it failed to establish the actual content of one item of that evidence, thereby distorting it and infringing the obligation to state reasons. Accordingly, the General Court was wrong to hold, in paragraph 42 of the order under appeal, that the Commission could not be criticised for not having taken that letter into account when it adopted the decision at issue.
36 The Commission contends that this ground of appeal should be rejected as either inadmissible or manifestly unfounded.
37 It must be borne in mind that, by the first plea in his action for annulment, the appellant claimed that postal operators shared the market concerned by choosing to offer the patented technology not at the counter, that is to say, to the public, but only to traders.
38 The General Court rejected that line of argument in paragraphs 41 and 42 of the order under appeal, as follows: ‘41 … it should be noted that it is apparent from the [appellant]’s letters of 4 October 2017 and 14 September 2019 and from recitals 12 and 24 of the [decision at issue] that the [appellant]’s arguments concerning market sharing were not raised during the administrative procedure. 42 Therefore, in accordance with the case-law referred to in paragraph 34 [of the order under appeal], the Commission cannot be criticised for not having analysed those arguments in the [decision at issue]’.
39 As is clear from the case-law referred to in paragraph 27 of the present judgment, the establishment of the facts and the assessment of the evidence carried out by the General Court do not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.
40 In the present case, although the appellant formally refers to a breach of the obligation to state reasons and to a distortion or substantive inaccuracy of the findings made by the General Court in paragraph 41 of the order under appeal, his line of argument appears to seek, as is apparent from paragraph 35 of the present judgment, only to obtain a declaration that the clear sense of the evidence has been distorted. However, the development of that line of argument seeks in reality to argue, at the appeal stage, for an assessment of the ‘actual content’ of the letter of 15 May 2018 and to obtain an examination of its probative value in relation to the evidence examined by the General Court and referred to in that paragraph of the order under appeal.
41 According to the settled case-law of the Court of Justice, such distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 86 and the case-law cited), which is not the case here.
42 Consequently, the second plea must be rejected as inadmissible.
43 By his third ground of appeal, the appellant claims that, in rejecting, in paragraphs 87 and 88 of the order under appeal, the fourth and fifth pleas in his action for annulment on the ground that the appellant was essentially asking the General Court to find that there had been an infringement of competition rules, without putting forward any argument to show that the decision at issue was vitiated by an error of law, a manifest error of assessment or a misuse of powers, the General Court erred in law in establishing the content of an item of evidence.
44 First of all, the appellant submits that, contrary to what the General Court held, he did not ask it to make a direct finding of an infringement of Article 101 TFEU. On the contrary, the appellant claims to have demonstrated that the Commission, if it had accorded the proper weight to the evidence brought to its attention during the administrative procedure, should necessarily have found collusion between the undertakings referred to by the complaint and consequently an infringement of Article 101 TFEU. In that regard, the appellant maintains that the fourth and fifth pleas in his action for annulment were ‘merely an extension and clarification of the facts already put forward during the administrative procedure’.
45 Next, the appellant claims that, by stating, in paragraph 83 of the order under appeal, that the appellant, by his fourth and fifth pleas, ‘develop[ed] his view of the anti-competitive nature of the standardisation agreement [Global Standards 1] and the conduct of its members, without putting forward any argument specifically relating to the [decision at issue]’, the General Court infringed the obligation to state reasons for its decisions. However, it is clear from all of his arguments before the General Court, in particular from the title of his fourth plea, that the appellant sought to show that the Commission had erred in law by failing to find that he had suffered discrimination with regard to access to the process of drawing up standards and to the outcomes of and reporting on those processes.
46 Finally, as regards the rejection of the fifth plea in law, the appellant claims that the General Court, in finding that the Commission was justified, after examining the evidence adduced by him, in adopting the decision at issue, also erred in law and infringed the obligation to state reasons for its decisions. He submits that, by that fifth plea in law, he merely set out the factors which should have enabled the Commission to carry out the assessment referred to in recital 42 of the decision at issue, for the purpose of determining whether the agreement at issue fell within the scope of Article 101(1) TFEU and, if so, whether the conditions of Article 101(3) TFEU were satisfied. He adds that, in that plea, he made a full assessment of the conditions for the application of Article 101 TFEU to standardisation agreements in order to demonstrate that the Commission was not entitled to reject his complaint.
47 The Commission contends that the third ground of appeal should be rejected as unfounded.
48 It should be borne in mind, first of all, that the fourth and fifth pleas in his action for annulment alleged, respectively, an error of law resulting from the fact that the Commission had not considered that there was discrimination in relation to access to the process of drawing up standards and to the outcome of and reporting on those processes and an error of law resulting from the fact that the Commission had not found that Article 101 TFEU had been infringed.
49 More specifically, the appellant claimed that he had been prevented from accessing the standardisation process, in particular the Global Standards 1 standardisation body (‘GS 1’), and that the alleged infringers had breached their obligations under the Guidelines on horizontal cooperation agreements and refused him access to the outcome of the standardisation process within the market for sending and tracking parcels in the European Union, which is incompatible with Article 101(1) TFEU.
50 The General Court rejected that line of argument, in paragraphs 83 to 87 of the order under appeal, as follows: ‘83 By its fourth and fifth pleas, the [appellant] develops his view of the anti-competitive nature of the GS 1 standardisation agreement and the conduct of its members, without putting forward any argument specifically relating to the [decision at issue]. 84 Furthermore, the [appellant’s] arguments are largely new compared with those put forward during the administrative procedure in its letter of 14 September 2019, to which the Commission replied in recital 38 et seq. of the [decision at issue]. The Commission concluded, respectively, in recitals 40 and 43 of the [decision at issue], first, that “the information [provided] [did] not allow [it] to raise or justify reasonable suspicions as to collusion between the undertakings [referred to]” and, secondly, that, “even if it were established that the rules of GS 1 constitute a standardisation agreement likely to create market power and do not comply with the conditions described in paragraphs 270 to 286 of the Guidelines [on horizontal cooperation agreements], [the appellant] does not state how the operating rules would have the effect of restricting competition”. 85 It should be noted that judicial review of decisions rejecting complaints must not lead to the General Court substituting its own assessment of the EU interest for that of the Commission and must focus on whether or not the contested decision is based on materially incorrect facts or is vitiated by an error of law, a manifest error of appraisal or misuse of powers (… judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 66 and the case-law cited). 86 In the present case, as the Commission rightly pointed out, it is not … for the General Court to examine directly the question whether the GS 1 standardisation agreement and the conduct of its members are anticompetitive, but rather to determine whether the position set out in recital 38 et seq. of the [decision at issue], in response to the arguments put forward by the [appellant] during the administrative procedure, is vitiated by an error of law, a manifest error of assessment or a misuse of powers. 87 By the fourth and fifth pleas in law, the appellant is essentially asking the General Court to find that there has been an infringement of the competition rules, without putting forward any argument to show that the [decision at issue] is vitiated by an error of law, a manifest error of assessment or a misuse of powers’.
51 By his third ground of appeal, the appellant submits, in essence, that the General Court vitiated its reasoning by an error of law and failed to fulfil its obligation to state reasons as regards the classification of the appellant’s arguments relating to the standardisation agreements.
52 That argument must be rejected.
53 First of all, it must be held that the appellant does not identify any error of law allegedly vitiating paragraphs 83, 87 and 88 of the order under appeal, but merely reiterates the account of the facts which he claims should have led the General Court to find that there was collusion between the undertakings referred to in the appellant’s complaint. In accordance with the case-law cited in paragraph 27 of the present judgment, suffice it to note that, in the context of an appeal, the Court of Justice cannot, without a distortion of the facts invoked, review the General Court’s assessment of the facts and the evidence, or, a fortiori, carry out a new assessment of the factual circumstances and the evidence.
54 Next, it should be noted that the appellant acknowledges in his appeal that it was in response to paragraph 42 of the decision at issue that he set out a full assessment of the application of Article 101 TFEU to standardisation agreements seeking to demonstrate that the Commission was wrong to reject his complaint. Consequently, the General Court was right to hold, in paragraph 84 of the order under appeal, that the appellant’s arguments were largely new in comparison with those put forward during the administrative procedure.
55 It follows that the General Court was entitled, without erring in law, in paragraphs 83, 87 and 88 of the order under appeal, to hold that the appellant requested it, by the fourth and fifth pleas, to find an infringement of the competition rules, without putting forward any argument to show that the decision at issue was vitiated by a manifest error of assessment or an error of law, and to reject those pleas.
56 Finally, the infringement of the obligation to state reasons alleged by the appellant must be rejected. Since the General Court set out, in paragraphs 84 to 87 of the order under appeal, the grounds on which it rejected the appellant’s fourth and fifth pleas, the fact that those grounds and the Commission’s arguments are identical has no bearing on the assessment of compliance with that obligation.
57 It follows that the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
58 Since none of the three grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
59 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to the procedure on an appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
60 Since the Commission has applied for costs and the appellant has been unsuccessful in his appeal, the appellant must be ordered to bear his own costs and to pay those incurred by the Commission.