JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 February 2000 (1)

(Competition - Administrative procedure - Examination of complaints -Infringement of Article 85 of the EC Treaty (now Article 81 EC) - Comfortletters - Reopening the procedure - Statement of reasons - Duty to provide -Extent - Cooperation agreement - Exclusive mutual supply clause -No-compete clause)

In Case T-241/97,

Stork Amsterdam BV, a company incorporated under Netherlands law, establishedin Amsterdam, represented by A.J. Braakman, of the Rotterdam (Netherlands)Bar, with an address for service in Luxembourg at the Chambers of Loesch andWolter, 11 Rue Goethe,

applicant,

v

Commission of the European Communities, represented by Wouter Wils, of itsLegal Service, acting as Agent, assisted by Hans Gilliams, of the Brussels Bar, withan address for service in Luxembourg at the office of Carlos Gómez de la Cruz, ofits Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Serac Group, a company incorporated under French law, established in Paris,represented by Mary-Claude Mitchell, of the Paris Bar, with an address for servicein Luxembourg at the Chambers of Guy Harles, 8-10 Rue Mathias Hardt,

intervener,

APPLICATION for annulment of the decision contained in the Commission's letterof 20 June 1997 rejecting the complaint made by the applicant with a view toobtaining a declaration that a cooperation agreement it entered into with SeracGroup to market complete production lines for manufacturing plastic bottles andfilling them aseptically with liquid foods is incompatible with Article 85 of the ECTreaty (now Article 81 EC),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: R.M. Moura Ramos, President, V. Tiili and P. Mengozzi, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 22 April 1999,

gives the following

Judgment

Facts

1.

    Stork Amsterdam BV (hereinafter 'Stork‘) is a company incorporated underNetherlands law which produces machines for manufacturing plastic bottles bymeans of the blow moulding technique.

2.

    On 14 August 1987 Stork and Serac SA (now Serac Group, hereinafter referred toas 'Serac‘), a company incorporated under French law which produces machinesfor aseptically filling plastic bottles, entered into a cooperation agreement(hereinafter 'the cooperation agreement‘ or 'the agreement‘) to market completeproduction lines for manufacturing such bottles and filling them aseptically withliquid foods. The two companies undertook to purchase from each other themachines they produced and to sell them as complete lines under the name 'Stork-Serac‘ or 'Serac-Stork‘. The agreement also imposed a duty on either companyto make available to the other the know-how needed for marketing, installing andservicing the machines (clause 5 of the agreement).

3.

    Clause 6 of the agreement contained a restrictive covenant against competitionwhich provided as follows:

'6.1    Each party agrees to refrain ... [from developing, manufacturing and selling]directly or indirectly through agents or subsidiaries of any [kind] equipmentor parts thereof competing with or similar to the other [party's equipment]involved in this cooperation.

6.2    In the event that a potential customer requires either from Stork or fromSerac equipment made by third parties for filling or blow moulding, theselling party shall seek approval from the other party, which approval willnot unreasonably be withheld. In the event that one party [sells] a third[party's] competitive machine without [the] approval of the other party, theother party is entitled to a penalty to be paid as liquidated damages of 30%(thirty per cent) of the replaced machine.

6.3    Only in [the] case of termination of this agreement in accordance with Art.14 [that is to say, after the agreement has been in force for five years andon expiry of twelve months' written notice of termination] the obligation[not to compete] as agreed in Art. 6.1 shall remain in force for theterminating party [for] four years after such termination.‘

4.

    In 1989, Stork sought Serac's agreement to terminate the cooperation agreement,in particular by letter of 13 July 1989, in which it also threatened to submit acomplaint to the Commission alleging infringement of Article 85 of the EC Treaty(now Article 81 EC) should Serac refuse to agree to terminate the agreement.

5.

    In the absence of any positive reply from Serac, Stork lodged a complaint with theCommission on 20 September 1989 with a view to obtaining a declaration that thecooperation agreement was incompatible with Article 85 of the Treaty. Storkargued that Serac had infringed Article 85 by failing to terminate the agreement.

6.

    On 24 January 1990 Serac sent a copy of the agreement to the Commission inorder to obtain negative clearance or exemption, at the same time informing theCommission that it would be content with a simple comfort letter.

7.

    The Commission responded to Stork's complaint and to Serac's notification byletter of 20 March 1991, signed by J. Dubois, acting Director of theDirectorate-General for Competition (DG IV). The letter proposed an amicablesolution to the dispute, which was put forward in response to the complaint andnotification and 'the supplementary information supplied to the Commission byboth companies‘. Analysing the cooperation agreement, Mr Dubois indicated that,whilst it did not qualify for exemption, it was sufficiently similar to the type ofagreement covered by Commission Regulation (EEC) No 417/85 of 19 December1984 on the application of Article 85(3) of the Treaty to categories of specialisation

agreements (OJ 1985 L 53, p. 1, hereinafter 'Regulation No 417/85‘), the principaldifferences being in clauses 6.2 and 6.3. Mr Dubois stated that, on the basis of theinformation available to him, he took the view that those clauses restrictedcompetition and were not indispensable to the attainment of the objectives of theagreement. He therefore suggested that they be amended to bring the agreementinto line with the spirit of Regulation No 417/85.

8.

    The amendment proposed for clause 6.2 (which concerns exclusive mutual supply)was to make the clause conform to Article 2(b) of Regulation No 417/85 byenabling either party to obtain supplies - without incurring a penalty - from thirdparties offering more favourable supply terms. To the same end of making theagreement comply with Regulation No 417/85, Mr Dubois also stated that clause6.3 (concerning the duty not to compete for a period of four years followingtermination) 'should be suppressed‘.

9.

    Mr Dubois added that, given the limited economic importance of the matter atCommunity level, it did not seem to him 'appropriate, at [that] stage, torecommend to the Commission the formal opening of a procedure‘. In the eventthat the parties failed to agree to amend the clauses as he had suggested, they wereinvited to bring the matter before the proper national court or the competentnational administrative authorities, calling attention to the Commission's letter.

10.

    The letter addressed to Stork contained an additional paragraph which read:

'Failing a reaction on your part within four weeks from your receipt of this letter,I shall close the file; it could, however, be reopened at any time should a changein the factual or legal circumstances require a new examination of the situation.‘

11.

    By letter of 19 July 1991, Serac informed the Commission that the parties expectedto settle their dispute amicably. However, discussions between them failed to reacha conclusion and the agreement expired on 14 August 1992 without having beenamended.

12.

    On 21 December 1992 Serac sent another letter to Mr Dubois, inviting theCommission to reconsider its analysis of the matter. Serac argued, inter alia, thatthe suggestion made by the Commission in its letter of 20 March 1991 to amendor delete certain clauses in the agreement reflected a poor understanding of themarket in question and an incorrect assessment of the effect of the cooperationagreement on competition. Serac went on to confirm that it would not rely onclause 6.3 of the cooperation agreement, provided only that no use was made of'confidential know-how divulged while the agreement was in force‘.

13.

    By letter of 25 February 1993 F. Giuffrida, Head of Unit within DG IV, repliedthat the arguments put forward by Serac were not such as to call into question theCommission's position as expressed in its letter of 20 March 1991 according towhich clauses 6.2 and 6.3 of the agreement were too restrictive of competition and

not indispensable to attaining the objectives of the agreement. He ended his letterby saying 'it therefore seems to me that this matter should be considered closed.‘The Commission sent a copy of that letter to Stork.

14.

    On 15 May 1993 Serac brought an action for annulment of the decision containedin the Commission's letter of 25 February 1993 before the Court of First Instance(Case T-31/93).

15.

    On 16 July 1993 the Commission raised an objection of inadmissibility, arguing thatMr Giuffrida's letter did not constitute an actionable measure but merely expressedthe Commission's provisional view. It was not intended to produce legal effects anddid not contain any definitive decision on the complaint or the notification. In thememorandum in which it raised the objection of inadmissibility, the Commissionalso announced that it was to pursue its analysis of the matter. In thosecircumstances, Serac withdrew its action and the case was removed from theregister by order of the President of the Court of First Instance of 20 December1993.

16.

    On 5 October 1994, pursuant to Article 11 of Council Regulation No 17 of 6February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ,English Special Edition 1959-1962, p. 87, hereinafter 'Regulation No 17‘), theCommission sent to each party identical requests for information soliciting 'thelatest data on the market share of the different types of packaging (brick, plasticor glass bottles, cartons ...) [for] each segment of the liquid milk market‘, thepurpose of those requests being to 'enable the Commission to assess thecompatibility of [the agreement] with EC rules on competition and in particularArticle 85 of the EC Treaty ..., in full knowledge of the facts and in the correcteconomic context‘.

17.

    The two parties sent the information requested and the matter was subsequentlyreviewed by the Commission together with Stork's counsel on 14 November 1994and Serac's counsel on 13 December 1994.

18.

    By letter of 23 January 1996, pursuant to Article 6 of Regulation No 99/63/EEC ofthe Commission of 25 July 1963 on the hearings provided for in Article 19(1) and(2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47,hereinafter 'Regulation No 99/63‘), G. Rocca informed Stork, on behalf ofAlexander Schaub, Director-General of DG IV, of the reasons why its complainthad been rejected. After setting out his analysis of the matter with regard to Article85 of the Treaty, Mr Rocca concluded that it was not realistic to say that 'theagreement affords the undertakings concerned the possibility of eliminatingcompetition in respect of a substantial part of the products in question, all themore [so] since on 21 December 1992 Serac renounced its right under clause 6.3‘(which concerned exclusive rights after termination of the agreement). TheCommission's letter ended with a warning that the institution would not adopt a

definitive position until it had received Stork's comments and any furtherinformation it wished to submit, which should be in writing and should reach theCommission within four weeks.

19.

    Stork sent a reply to the Commission on 22 March 1996, refuting the Commission'sarguments and questioning whether the Commission was entitled to conduct a freshanalysis of the matter after its letters of 20 March 1991 and 25 February 1993.

20.

    By letter of 20 June 1997 the Commission informed Stork of its decision to rejectits complaint of 20 September 1989 (Decision IV/F - 1/33.302 Stork, hereinafter'the contested decision‘). Adopting essentially the same analysis of the agreementas that contained in its letter of 23 January 1996, the Commission concluded that,whilst the clauses in the agreement restricting competition fell within Article 85(1)of the Treaty, the conditions for applying Article 85(3) had been satisfied.

Procedure and forms of order sought

21.

    By application lodged at the Registry of the Court of First Instance on 21 August1997, the applicant brought the present action for annulment of the Commission'sdecision set out in the letter of 20 June 1997.

22.

    By order of the President of the First Chamber of the Court of First Instance of20 April 1998, Serac was given leave to intervene in support of the form of ordersought by the Commission.

23.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fourth Chamber) decided to open the oral procedure. As a measure oforganisation of procedure, the Court requested the parties to reply in writing tocertain questions before the hearing.

24.

    The parties presented oral argument and gave their answers to the Court'squestions at the hearing on 22 April 1999.

25.

    The applicant claims that the Court should:

-    annul the contested decision;

-    order the Commission to pay the costs.

26.

    The Commission contends that the Court should:

-    dismiss the application;

-    order the applicant to pay the costs of the action.

27.

    The intervener contends that the Court should:

-    dismiss the application brought by Stork;

-    order Stork to pay all the costs of the action, including those incurred byreason of its intervention.

Law

28.

    The applicant makes three pleas in law in support of its claim. It alleges, first, thatthe Commission lacked power to adopt the contested decision, or that the adoptionof the contested decision was an abuse of power, given that the Commission'sletters of March 1991 and February 1993 already contained a definitive decisionand the matter must be regarded as having been closed after the letter of 25February 1993 at the latest. Secondly, the contested decision is vitiated by errorsof fact and law. Thirdly, there is no statement of reasons, or only an inadequatestatement of reasons, for the contested decision.

29.

    The Commission disputes the applicant's claims and asks that the Court dismiss theapplication.

The first plea, alleging that the Commission lacked power to adopt the contesteddecision, or that the adoption of the contested decision was an abuse of power

30.

    The applicant's first plea challenges the Commission's right to reopen theprocedure relating to the complaint and the notification, and its right to adopt thecontested decision. The plea is divided into two limbs, the first alleging that theletters of 20 March 1991 and 25 February 1993 contained an actionable decisionand that the matter must be regarded as having been closed after the second letterat the latest, given that no new factor had arisen to warrant re-examination of thefile. The second limb alleges that, by reopening the administrative procedure on 5October 1994 and adopting its final decision on 20 June 1997, the Commissionfailed to fulfil its obligation to adopt a decision on the applicant's complaint of 20September 1989 within a reasonable time.

31.

    In its reply, in connection with its second plea for annulment, the applicant alsoargues that the decision to reopen the procedure was adopted in breach of Article190 of the EC Treaty (now Article 253 EC).

32.

    The Court takes the view that, in order to determine whether the first plea iswell founded, the first limb of that plea should be considered together with the pleadisputing the adequacy of the statement of reasons given for reopening theprocedure.

Arguments of the parties

33.

    The applicant argues that, in its letters of 20 March 1991 and 25 February 1993,taken either separately or together, the Commission adopted an actionable decisionwhereby, with a view to creating legal effects, it defined its position on theapplication to the cooperation agreement of Article 85 of the Treaty.

34.

    In view of its content, the Commission's letter of 25 February 1993 should, theapplicant maintains, be regarded as an actionable measure, since it was intendedto produce legal effects. The letter contains an appraisal of the agreement inquestion and is the Commission's definition of its position that two clauses of theagreement of 14 August 1987 are incompatible with the common market underArticle 85(1) of the Treaty and do not fall within the scope of Article 85(3). By thatletter, the Commission formally closed the procedure and its legal assessment ofthe agreement became definitive.

35.

    The applicant concludes that the defendant was not entitled to reopen theadministrative procedure after giving its decision and without any new factor havingarisen to warrant reopening the procedure. In so doing, the Commission was guiltyof an abuse of power.

36.

    In its reply, the applicant also alleges that the reasoning of the contested decisionis defective in that it does not explain, on the one hand, why the Commissionchanged its opinion of the economic importance of the agreement or, on the otherhand, why it decided to conduct a thorough re-examination of the file, despite theabsence of any new factor warranting such re-examination, instead of suggesting,as it had earlier, that the matter be submitted to the national authorities should theproposed amendments fail to be accepted.

37.

    The Commission contests the applicant's view. It explains that, from September1989 onwards, it was confronted with a dispute between Stork and Serac concerningthe implementation and validity of their cooperation agreement, and refers to therules which apply to its intervention in such circumstances. It relies on paragraphs45 to 47 of the judgment in Case T-64/89 Automec v Commission [1990] ECR II-367 (hereinafter 'Automec I‘), in which the Court of First Instance observed thatthere were three successive stages in the procedure governed by Article 3(2) ofRegulation No 17 and Article 6 of Regulation No 99/63, and held that thepreliminary observations made by Commission officials in the context of informalcontacts during the first stage could not be regarded as constituting a measure opento challenge.

38.

    The Commission submits that, viewed in that light, the letters of 20 March 1991and 25 February 1993 clearly amount to preliminary observations made informallyby Commission officials on the basis of an initial appraisal of the facts andarguments put forward by the two parties. The Commission did not, in those letters,express a definitive position, creating legal effects, on the application of Article 85of the Treaty.

39.

    The Commission argues that the letter of March 1991 contains a pragmatic solutiondesigned to end the dispute between the two parties, and not a definitiveinterpretation of Article 85 of the Treaty. The most important part of the letter isthe passage where Mr Dubois wrote that, taking into account the limited economicimportance of the matter, it did not seem appropriate to him, at that stage, tosuggest to the Commission that it open a procedure. That observation explains thesuggestion made to the parties to settle their dispute in accordance with theCommission's proposal and, should they continue to disagree, to bring the matterbefore the national courts.

40.

    The letter of February 1993 simply confirmed that, even after acquainting itselfwith the arguments and supplementary information submitted by Serac, theCommission did not consider it appropriate to open a procedure and that,consequently, 'the matter [had to] be considered closed‘.

41.

    The Commission adds that those two letters cannot be regarded as expressing adefinitive decision creating legal effects and declaring the agreement incompatiblewith Article 85 of the Treaty, since such a decision can only be taken in accordancewith the procedure laid down in Regulation No 17, which provides, inter alia, fora statement of objections. The Commission takes the view that, in the present case,it has not been shown that there was any such notification, and the fact that theletters were not signed by or on behalf of the Member of the Commissionresponsible for competition matters confirms, in its view, that the letters merelyexpressed an initial, provisional opinion.

42.

    Moreover, the defendant accepts that, after Serac withdrew its action in CaseT-31/93, it decided, in view in particular of the arguments and information putforward by Serac in its application, to re-examine - this time in depth - the effectof the cooperation agreement upon competition. In that way, by 'reactivating theprocedure‘, it went back on its initial position that the matter did not appear to beof sufficient economic importance to warrant a thoroughgoing examination.

43.

    The Commission takes the view that the letter of 20 March 1991 already signalledthe possibility of a procedure subsequently being initiated inasmuch as its authorwrote that it did not seem to him 'appropriate at [that] stage to recommend to theCommission the formal opening of a procedure‘.

44.

    Relying on paragraph 77 of the judgment of the Court of First Instance in CaseT-24/90 Automec v Commission [1992] ECR II-2223 (hereinafter 'Automec II‘), theCommission maintains that the decision to conduct a thorough examination of amatter which, on first analysis, was regarded as being of minor importance, is onewhich falls within the unfettered discretion of any administration entrusted with thetasks of supervision and regulation. Similarly, the power to set priorities implies thepower to revise those priorities also. That principle must apply a fortiori in thepresent case where the reopening of the procedure prejudiced no party's interests.

Neither the applicant nor Serac raised any objection to the new priority assignedby the Commission to the examination of their case.

45.

    The Commission claims that the plea made by Stork in its reply alleging defectivereasoning in the contested decision is inadmissible (see paragraph 36 of the presentjudgment). It maintains, in the alternative, that it was not required to indicate inthat decision the reasons why it instituted an inquiry in October 1994, especially asneither Stork nor Serac ever raised that question and both cooperated fully in thatinquiry.

46.

    The intervener also denies that the Commission's letters of 1991 and 1993 expressa definitive, non-reviewable decision.

47.

    The intervener points out that the Commission indicated on a number of occasionsthat the letters of 1991 and 1993 did not represent final decisions. It also arguesthat, by agreeing without reservation to reply to the request for informationaddressed to it by the Commission in October 1994, the applicant accepted the factthat the procedure instituted in 1989 had not been finally closed.

48.

    The intervener concludes that only the letter of 1997 defines the Commission'sdefinitive position on the matter, and that nothing in the two letters of 1991 and1993 constitutes a decision or produced legal effects.

Findings of the Court

The legal nature of the Commission's letters of March 1991 and February 1993

49.

    According to settled case-law, any measure the legal effects of which are bindingon and capable of affecting the interests of the applicant, by bringing about adistinct change in his legal position, is an act or a decision which may be the subjectof an action for annulment under Article 173 of the EC Treaty (now, afteramendment, Article 230 EC). In particular, in cases of acts or decisions drawn upin a procedure involving several stages, and particularly at the end of an internalprocedure, it is only those measures which definitively determine the position of theinstitution upon the conclusion of that procedure which are open to challenge andnot intermediate measures whose purpose is to prepare for the final decision.Moreover, the particular form in which acts and decisions are adopted is, inprinciple, immaterial so far as concerns the possibility of their being challenged byan action for annulment (Case 60/81 IBM v Commission [1981] ECR 2639,paragraph 9, and Automec I, paragraph 42).

50.

    In order to assess the legal nature of the letters in question in the light of thoseprinciples, it is appropriate to consider them in the context of the procedure forinvestigating claims made under Article 3(2) of Regulation No 17.

51.

    The procedure for examining a complaint comprises three successive stages. During the first stage, following the submission of the complaint, the Commissioncollects the information which it needs to enable it to decide how it will deal withthe complaint. That stage may include an informal exchange of views between theCommission and the complainant with a view to clarifying the factual and legalissues with which the complaint is concerned and to allowing the complainant anopportunity to expand on his allegations in the light of any initial reaction fromCommission officials. During the second stage, the Commission may indicate, in anotification to the complainant, the reasons why it does not propose to pursue thecomplaint, in which case it must offer the complainant the opportunity to submitany comments it may have within a time-limit which it fixes for that purpose. In thethird stage of the procedure, the Commission takes cognisance of the observationssubmitted by the complainant. Although Article 6 of Regulation No 99/63 does notexpressly provide for the possibility, this stage may end with a final decision(Automec I, paragraphs 45 to 47 and Case T-37/92 BEUC and NCC v Commission[1994] ECR II-285, paragraph 29).

52.

    Neither the preliminary observations, if any, made in the context of the first stageof the procedure for considering complaints, nor notifications under Article 6 ofRegulation No 99/63, can be regarded as measures open to challenge (Automec I,paragraphs 45 and 46).

53.

    On the other hand, comfort letters definitively rejecting a complaint and closing thefile may be the subject of an action, since they have the content and effect of adecision, inasmuch as they close the investigation, contain an assessment of theagreements in question and prevent the applicants from requiring the reopeningof the investigation unless they put forward new evidence (Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045, paragraphs 14 and 15, Case 298/83CICCE v Commission [1985] ECR 1105, paragraph 18, and Joined Cases 142/84and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 12).

54.

    In the present case, it is necessary to establish whether the letters of 1991 and 1993belong to the first stage of the procedure for examining complaints, as theCommission maintains, or whether they are to be regarded as recording a decisionto take no further action, producing legal effects, and thus belong to the last stageof that procedure, as Stork asserts.

55.

    The author of the Commission's letter of 20 March 1991, Mr Dubois, refers toclauses 6.2 and 6.3 of the agreement and begins:

'On the basis of the information presently in my possession, those clauses doappear to be restrictive of competition, and not indispensable to the attainment ofthe objectives of [the agreement].‘

The letter then went on to suggest that clause 6.3 be deleted and clause 6.2 beamended to comply with the spirit of Regulation No 417/85 which, as mattersstood, did not cover the agreement.

56.

    Mr Dubois continued:

'Given the relatively small economic importance of [the matter] within thecommunities as a whole, it does not appear appropriate, at this stage, torecommend to the Commission the formal opening of a procedure. If, therefore,you are unable to agree ... the modification of the clauses mentioned in the senseindicated above, I suggest that you should take the matter to the national courts,or the national competition policy authorities, bringing this letter to their attention.‘

57.

    The copy of the letter sent to Stork contained an additional paragraph worded asfollows:

'Failing a reaction on your part within four weeks from your receipt of this letter,I shall close this file; it could, however, be reopened at any time should a changein the factual or legal circumstances require a new examination of the situation.‘

58.

    In reply to Serac's letter of 21 December 1992 requesting the Commission toreconsider its analysis, Mr Giuffrida, Head of Unit at DG IV, wrote in his letter of25 February 1993 (a copy of which was sent to Stork):

'I have given your letter of 21 December 1992 my fullest consideration. However,on reflection, I do not think that the arguments raised are such as to call intoquestion the content of the letter ... of 20 March 1991 in which it was stated thatclauses 6.2 and 6.3 of your agreement ... with Stork were too restrictive ofcompetition and not indispensable to attaining the objectives of [that agreement].It therefore seems to me that this matter should be considered closed.‘

59.

    It is clear from the letters of 20 March 1991 and 25 February 1993 that, afteranalysing the agreement, the Commission decided not to take further action on thematter in view of its limited economic importance at the Community level.Moreover, the Commission offered the parties a means of resolving the disputeamicably, suggesting certain amendments to the agreement, and, should they failto incorporate those amendments and continue to disagree, invited them to bringthe matter before the competent national authorities or the proper national court.

60.

    The letter of 20 March 1991, in particular, bears all the hallmarks of a notificationunder Article 6 of Regulation No 99/63: it indicates the reasons for which theCommission considers there to be insufficient grounds for allowing the complaint,explicitly refers to closing the file and imposes a time-limit on the complainant forthe submission of any observations (BEUC, paragraph 34).

61.

    In that context, the letter of 25 February 1993 provided confirmation that, in theabsence of any response to the letter of 20 March 1991, the matter had beenclosed, given the limited economic importance of the agreement at the Communitylevel.

62.

    Against that background, the defendant's argument that the letters of 20 March1991 and 25 February 1993 must be regarded as expressing 'preliminaryobservations made informally by Commission officials‘ in the context of the firstof the three stages of the inquiry procedure cannot be accepted. On the contrary,having regard to their content and the context in which they were drafted, theymust be regarded as recording a decision to take no further action on thecomplaint submitted by Stork and thus as belonging to the last stage in theprocedure for examining a complaint.

63.

    It cannot, therefore, be said that those letters merely contain preliminaryobservations or preparatory measures. On the contrary, they contain a clearappraisal of the agreement and, in particular, of its economic importance. Thatappraisal was made on the basis of all the information which the Commissiondeemed it necessary to gather. All the indications are that the decision mentionedin the letters to take no further action on the matter was meant to constitute thefinal step in the administrative procedure whereby the institution's position is finallydetermined. That decision cannot be followed by any other measure capable ofbeing the subject of annulment proceedings (Case C-39/93 P SFEI and Others vCommission [1994] ECR I-2681, paragraph 28).

64.

    The finality of that decision is not called into question by Mr Dubois' statement inhis letter of 20 March 1991 that it did not seem to him 'appropriate at [that] stageto recommend to the Commission the formal opening of a procedure‘. Thosewords signal the possibility of subsequently initiating a procedure and conductinga thoroughgoing investigation of the matter. Indeed, the statement should beregarded as referring to the other two facts mentioned in the letter, namely that theanalysis carried out and the decision taken were based on the information availableand that the file could be reopened if new points of fact or law arose warrantingit.

65.

    Furthermore, the defendant's argument that the fact that the letters were notsigned by or on behalf of the Member of the Commission responsible forcompetition matters proves that they merely communicated an initial, provisionalopinion must also be rejected. According to settled case-law, the form in which actsor decisions are cast is, in principle, immaterial as regards the question whetherthey are open to challenge by way of annulment proceedings. It is necessary to lookto their substance in order to ascertain whether they are actionable measures forthe purposes of the Article 173 of the Treaty (IBM, paragraph 9).

66.

    In the present case, given that the two letters in question contain an appraisal ofthe complaint submitted to the Commission, their legal nature cannot be called intoquestion on the sole ground that they emanate from a member of the Commission'sstaff. To accept such an argument would render Article 3 of Regulation No 17wholly ineffective (BEUC, paragraph 38).

67.

    As regards the argument that the applicant accepted that the letters of March 1991and February 1993 constituted preliminary observations in that it replied to therequest for information sent to it by the Commission in October 1994, it should beremembered that, according to settled case-law, measures of a purely preparatorycharacter may not themselves be the subject of an application for annulment, butany legal defects therein may be relied upon in an action directed against thedefinitive act for which they represent a preparatory step (IBM, paragraph 12).Thus, in order to dispute the validity of the decision to reopen the procedure, theapplicant had to await, as indeed it did, the decision adopted on completion of theinquiries launched by the request for information which the Commission sent it inOctober 1994. Only at the end of that procedure was the applicant in a position toassess the merits of the decision and, more specifically, whether it was necessaryto re-examine the matter, having regard, in particular, to any new points of fact orlaw garnered and taken into consideration by the Commission.

68.

    The Commission's letters of 20 March 1991 and 25 February 1993 must thereforebe regarded as containing a decision and producing legal effects in so far as theyrecord a decision to take no further action on the complaint submitted by Stork,after analysis of the agreement, which itself was deemed as being of limitedeconomic importance at the Community level.

69.

    Having thus established the legal nature of the letters, it is necessary to assess theirlegal consequences, in order to ascertain whether, in the present case, theCommission was entitled to reopen the administrative procedure, and, if so,whether it was entitled to adopt the contested decision.

The decision to reopen the administrative procedure

70.

    It should be observed at the outset that, as the institution responsible forimplementing Community competition policy, the Commission has a certaindiscretion - within the limits of the applicable rules - in dealing with complaintssubmitted pursuant to Article 3 of Regulation No 17. It may, in particular, setdifferent priorities for the complaints submitted to it and may close a matterwithout initiating procedures intended to establish whether or not Community lawhas been infringed if it forms the view that the matter in question is not ofsufficient Community interest to warrant investigation of the complaint (AutomecII, paragraphs 73 to 77 and 83 to 85).

71.

    The rules limiting the Commission's discretion in this regard include those relatingto the procedural rights provided for by Regulation No 17 and Regulation No 99/63for persons who have lodged a complaint with the Commission.

72.

    On the one hand, in accordance with Article 3 of Regulation No 17 and Article 6of Regulation No 99/63, the Commission must examine carefully the factual andlegal particulars brought to its notice by the complainant in order to decide whetherthey disclose conduct of such a kind as to distort competition in the commonmarket and affect trade between Member States. On the other hand, persons whohave lodged a complaint with the Commission have the right to be informed of thereasons why the Commission intends to reject their complaint (Automec II,paragraphs 72 and 79).

73.

    According to settled case-law, the extent of the obligation to state reasons dependson the nature of the measure in question and on the context in which it wasadopted. The statement of reasons must disclose in a clear and unequivocal fashionthe reasoning of the institution, in such a way as to give the persons concernedsufficient information to enable them to ascertain whether the decision is wellfounded or whether it is vitiated by a defect which may permit its legality to becontested, and to enable the Community judicature to carry out its review of thelegality of the measure (Joined Cases T-213/95 and T-18/96 SCK and FNK vCommission [1997] ECR II-1739, paragraph 226).

74.

    The obligation to state the reasons for a measure with sufficient precision,enshrined in Article 190 of the Treaty, is one of the fundamental principles ofCommunity law which the Court has to ensure are observed, if necessary byconsidering of its own motion a plea of failure to fulfil that obligation (Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, paragraph 129).

75.

    In the present case, therefore, the defendant's objection of inadmissibility regardingthe applicant's claim that the statement of reasons for the contested decision isdefective because it failed to set out the reasons for the Commission's havingchanged its opinion of the economic importance of the agreement and decided toconduct a thoroughgoing re-examination of the matter must be rejected.

76.

    As to the substance, it should be remembered that the Commission informed theapplicant by its letters of 20 March 1991 and 25 February 1993 of the decision totake no further action on the matter because of its limited economic importanceat Community level (see paragraphs 59 to 61, above). By 're-activating theprocedure‘, by decision notified to the parties by letter of 5 October 1994, theCommission went back on its previous position regarding the economic importanceof the agreement at Community level (see paragraph 42, above).

77.

    The reasons for that change of position were not explained by the Commission.Nor can they be inferred from the context of such a decision. Moreover, in its

pleadings and in its oral replies to the Court of First Instance's questions regardingthe reasons for reopening the file, the Commission stated that it initiated theinquiry in 1994 in response to the action brought by Serac and in order to avoid acontentious procedure. It did not refer to the reasons give in its letters of 1991 and1993 for closing the matter, namely that the agreement was of limited economicimportance.

78.

    The inadequacy of the statement of reasons is all the more serious because theobligation to state reasons, the scope of which must be determined in the light ofthe particular circumstances of the case, is a particularly broad one in the presentcase.

79.

    The Commission had already taken a decision on the agreement, which had expiredin August 1992, well before the Commission's second letter of 25 February 1993confirmed that the matter was closed. Moreover, it is clear from the documentsbefore the Court that the decision to take no further action recorded in the lettersof 1991 and 1993 was adopted following exchanges between the Commission andthe two parties to the agreement, during which the Commission was able to gaina full understanding of the point of view of each party.

80.

    It is therefore clear that the decision to reopen the administrative procedure whichresulted in the adoption of the contested decision was not based on the presenceor awareness of new points of fact or law warranting re-examination of the matter(see, to that effect, Case C-279/95 P Langnese-Iglo v Commission [1998] ECR I-5609, paragraph 30, and Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, paragraph 40).

81.

    In those circumstances, the Court holds that the applicant was not in a position toascertain the reasons for the contested decision which implied that the Commission,in taking the view that the matter was of sufficient economic importance to warrantits staff conducting a thoroughgoing examination, had gone back on its initialposition.

82.

    It follows that the applicant's first plea is well founded in so far as it disputes theCommission's entitlement to adopt a fresh decision on a complaint relating to amatter which had already been closed because of its limited economic importanceat Community level, without properly stating the reasons (in particular, theexistence of fresh evidence) for reopening the administrative procedure which hadled to that decision.

83.

    For those reasons the contested decision must be annulled and it is unnecessary toconsider the other pleas raised by the applicant.

84.

    Moreover, according to settled case-law, comfort letters such as the two letters of1991 and 1993, which reflect the Commission's assessment and bring itsexamination to an end, do not have the effect of preventing a national court before

which the agreement in question is alleged to be incompatible with Article 85 ofthe Treaty, from reaching a different finding as regards that agreement on the basisof the information available to it. Whilst such letters do not bind the nationalcourt, the opinion expressed in them constitutes a factor which a national courtmay take into account in considering whether the agreement or conduct in questionis compatible with the provisions of Article 85 of the Treaty (Case 31/80 L'Oréal[1980] ECR 3775, paragraphs 11 and 12).

85.

    In the present case, the national courts before which the agreement may be allegedto be incompatible with Article 85 of the Treaty will, on assessing the agreement,be entirely at liberty to take into account, as factual evidence, the whole of theprocedure conducted by the Commission.

Costs

86.

    Under Article 87(2) of the Rules of Procedure of the Court of First Instance, theunsuccessful party is to be ordered to pay the costs if they have been applied forin the successful party's pleadings. Since the Commission has been unsuccessful,and the applicant has applied for costs against the Commission, the latter will beordered to bear its own costs and to pay those incurred by the applicant, apartfrom those occasioned by the intervention of Serac. Since the applicant did notapply for an order that Serac pay the costs occasioned by its intervention, theintervener will bear its own costs. The applicant will bear the costs it has incurredas a result of Serac's intervention.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.    Annuls the Commission's decision contained in its letter of 20 June 1997,rejecting the complaint made by the applicant seeking a declaration thata cooperation agreement between Stork Amsterdam BV and Serac Groupfor marketing production lines for manufacturing plastic bottles andaseptically filling them with liquid foods is incompatible with Article 85 ofthe EC Treaty (now Article 81 EC);

2.    Orders the Commission to bear its own costs and to pay those incurred bythe applicant, apart from those occasioned to the applicant by theintervention of Serac which shall bear its own costs, and the applicant tobear the costs it has incurred as a result of Serac's intervention.

Moura RamosTiili Mengozzi

Delivered in open court in Luxembourg on 17 February 2000.

H. Jung

V. Tiili

Registrar

President

1: Language of the case: Dutch.