JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber,Extended Composition)

16 September 1998 (1)

(Competition — Action for a declaration of failure to act — No need for the caseto proceed to judgment)

In Case T-28/95,

International Express Carriers Conference (IECC), a professional organisationestablished under Swiss law, having its headquarters in Geneva (Switzerland),represented by Éric Morgan de Rivery, of the Paris Bar, and Jacques Derenne, ofthe Brussels and Paris Bars, with an address for service in Luxembourg at theChambers of Alex Schmitt, 62 Avenue Guillaume,

applicant,

v

Commission of the European Communities, represented initially by FranciscoEnrique González-Díaz, of its Legal Service, and Rosemary Caudwell, a nationalofficial on secondment to the Commission, and subsequently by Rosemary Caudwelland Fabiola Mascardi, a national official on secondment to the Commission, actingas Agents, assisted by Nicholas Forwood QC, with an address for service inLuxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service,Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that, in failing to define its position on theapplicant's complaint based on Articles 85 and 86 of the EC Treaty (IV/32.791 -Remail), the Commission has failed to act,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, ExtendedComposition),

composed of: B. Vesterdorf, President, C.P. Briët, P. Lindh, A. Potocki and J.D.Cooke, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 13 May 1997,

gives the following

Judgment

Facts and procedure

1.

    On 13 July 1988 the International Express Carriers Conference ('the IECC‘) fileda complaint with the Commission under Article 3(2) of Council Regulation No 17of 6 February 1962 (First Regulation implementing Articles 85 and 86 of theTreaty) (OJ, English Special Edition 1959-1962, p. 87, hereinafter 'RegulationNo 17‘) concerning measures taken by a number of European public postaloperators against the practice of remailing.

2.

    Following an exchange of correspondence, the Commission sent a letter to theIECC on 23 September 1994 pursuant to Article 6 of Commission RegulationNo 99/63 of 25 July 1963 on the hearings provided for in Article 19(1) and (2) ofCouncil Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47,hereinafter 'Regulation No 99/63‘) in which it indicated that it did not intend touphold that part of the IECC's complaint which concerned Article 85 of the Treaty. It accordingly called on the IECC to submit its observations in that regard.

3.

    On 23 November 1994 the IECC submitted its observations to the Commission andat the same time called on the Commission to define its position on the complaintas a whole, pursuant to Article 175 of the Treaty.

4.

    As it took the view that the Commission had failed to define its position inresponse to its call to act, the IECC brought the present action on 15 February1995.

5.

    On 17 February 1995 the Commission sent to the IECC a final decision rejectingthe first part of the complaint, concerning Article 85 of the Treaty, and, withrespect to the second part of the complaint, concerning Article 86 of the Treaty,a letter under Article 6 of Regulation No 99/63 informing the applicant of thereasons why the Commission could not accede to its request.

6.

    Following the report of the Judge Rapporteur, the Court of First Instance (ThirdChamber, Extended Composition) decided to open the oral procedure. Asmeasures of organisation of procedure, it called on a number of parties to producedocuments and to answer questions either in writing or orally at the hearing. Theparties acceded to those requests.

7.

    Pursuant to Article 50 of the Rules of Procedure, Cases T-28/95, T-110/95, T-133/95and T-204/95, all brought by the same applicant and related in their subject-matter,were joined for the purposes of the oral procedure by order of the President of theThird Chamber, Extended Composition, of 12 March 1997.

8.

    The parties presented oral argument and replied to the questions put by the Courtat the hearing on 13 May 1997.

Forms of order sought by the parties

9.

    In its application, the applicant claims that the Court should:

—    declare that the Commission's failure to define its position within twomonths of receipt of the formal request under Article 175 of the Treaty,contained in the letter of 23 November 1994, in relation to the complaintof 13 July 1988, as supplemented thereafter, concerning the application ofArticles 85 and 86 of the Treaty, is in breach of Article 175 of the Treaty;

—    order the Commission to pay the costs even in the event that theCommission should take action which is held by the Court to render theapplication devoid of purpose.

10.

    The applicant submits in its reply that the Court should:

—    declare that the IECC's application has become devoid of purpose as of17 February 1995 when the Commission complied with the notice deliveredby the IECC to the Commission on 23 November 1994;

—    consequently, declare that the case should not proceed to judgment;

—    reject entirely the submission made by the Commission in its statement ofdefence of 5 April 1995;

—    order the Commission to bear the costs, pursuant to Article 87(6) of theRules of Procedure.

11.

    The Commission claims that the Court should:

—    reject the application as unfounded, or alternatively, with respect toArticle 86, as having been rendered nugatory as from the date on which theletter pursuant to Article 6 of Regulation No 99/63 was sent;

—    order the applicant to pay the costs.

The claim for a declaration of failure to act

12.

    It is common ground between the parties that, in view of the measures taken by theCommission after the present action was brought, the action has become devoid ofpurpose.

13.

    It must therefore be held that there is no longer any need to adjudicate on theforms of order sought by the applicant in relation to the substance of the case.

Costs

14.

    Under Article 87(6) of the Rules of Procedure, where a case does not proceed tojudgment, costs are to be in the discretion of the Court.

15.

    Regarding the first part of the complaint, relating to Article 85 of the Treaty, theCommission, by letter of 23 September 1994, defined its position within themeaning of Article 175 of the Treaty and called on the IECC to submit itsobservations in that regard. In its reply of 23 November 1994, the IECC did notconfine itself to setting out its observations but also called on the Commission onceagain to define its position. It is clear that an action for a declaration of failure toact based on a call to act made to the Commission at the time when thecomplainant replies to a letter under Article 6 of Regulation No 99/63 ispremature. The Commission must be given a reasonable period within which toexamine the complainant's observations before being required to define its finalposition on the complaint.

16.

    With regard to the second part of the complaint, relating to Article 86 of theTreaty, it was not until 17 February 1995, that is to say two days after the

proceedings had been brought seeking a declaration that the Commission had failedto act, that the Commission defined its position, within the meaning of Article 175,by sending a letter under Article 6 of Regulation No 99/63.

17.

    In such circumstances, each party should be ordered to pay its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)

hereby:

1.    Declares that the case need not proceed to judgment;

2.    Orders each party to bear its own costs.

VesterdorfBriët Lindh             Potocki                            Cooke

Delivered in open court in Luxembourg on 16 September 1998.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: English.

ECR