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Language of document : ECLI:EU:T:2000:84

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

22 March 2000 (1)

(Competition - Regulation (EEC) No 4064/89 - Decision declaring aconcentration compatible with the common market - Action for annulment -Statement of reasons - Admissibility)

In Joined Cases T-125/97 and T-127/97,

The Coca-Cola Company, established in Wilmington, Delaware, United States,represented by M. Siragusa, of the Rome Bar, and N. Levy, of the Bar of Englandand Wales, with an address for service in Luxembourg at the Chambers of Elvingerand Hoss, 15 Côte d'Eich,

Coca-Cola Enterprises Inc., established in Atlanta, Georgia, United States,represented by P. Lasok QC, and M. Reynolds, Solicitor of the Supreme Court ofEngland and Wales, with an address for service in Luxembourg at the Chambersof Zeyen, Beghin and Feider, 56-58 Rue Charles Martel,

applicants,

Commission of the European Communities, represented by W. Wils, of its LegalService, acting as Agent, with an address for service in Luxembourg at theChambers of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

The Virgin Trading Company Ltd, established in London, represented byI. Forrester QC, of the Scots Bar, with an address for service in Luxembourg at theChambers of A. May, 31 Grand-Rue,

and

Federal Republic of Germany, represented by W.-D. Plessing, Ministerialrat in theFederal Ministry of Finance, and C.-D. Quassowski, Regierungsdirektor in thatMinistry, acting as Agents, Graurheindorfarstraße 108, Bonn, Germany,

interveners,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber, ExtendedComposition),

composed of: B. Vesterdorf, President, V. Tiili, J. Pirrung, A.W.H. Meij and M.Vilaras, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 8 July 1999,

gives the following

Judgment

1.

The applicant, The Coca-Cola Company, (hereinafter 'TCCC) and CadburySchweppes plc (hereinafter 'CS), a company incorporated under English law, ownrights to various trade marks for carbonated soft drinks marketed in Great Britainand elsewhere. They supply to independent bottling firms the concentrates andingredients used to prepare the beverages marketed under those trade marks andauthorise them to distribute and market their beverages within a specific territory.

2.

Amalgamated Beverages Great Britain (hereinafter 'ABGB), a subsidiary ofTCCC and CS, was contracted to bottle, distribute, promote and market thebeverages of those companies and it arranged for the operations to be carried outby its subsidiary, Coca-Cola & Schweppes Beverages Limited (hereinafter 'CCSB).

3.

Coca-Cola Enterprises Inc. (hereinafter 'CCE) is the world's largest bottler of theproducts of TCCC. It was created in 1986 when TCCC began consolidating itsbottling operations in the United States and offered 51% of CCE's shares to thepublic. In addition to its operations in the United States CCE became, followinga series of acquisitions from 1993 onwards, the bottler of TCCC's products inBelgium, France and the Netherlands.

Legal and factual background to the dispute

4.

The present application must be viewed against the wider background of thecompetition proceedings initiated by the Commission under Articles 85 and 86 ofthe EC Treaty (now Articles 81 EC and 82 EC) involving TCCC and/or its bottlersin Europe. The first such proceeding was that initiated in September 1987 underArticle 86 of the Treaty against an Italian subsidiary of TCCC, The Coca-ColaExport Corporation (hereinafter 'TCCEC), in the course of which theCommission expressed the view that the company held a dominant position on themarket in cola-flavoured carbonated soft drinks (hereinafter 'colas). In the courseof that proceeding, TCCEC, whilst reserving its position on the existence of arelevant cola market and its alleged dominant position on that market, undertookto comply with certain obligations regarding the agreements concluded withdistributors in the Member States (press release IP/90/7). A like undertaking wasgiven by CCE in the decision which is the subject of this action.

5.

Documents on the file show that the alleged dominant position of TCCC on thecola market was again raised in the wake of a complaint of breach of Article 86 ofthe Treaty, lodged in 1993, ... (2) against the French bottler and subsidiary of TCCC,Coca-Cola Beverages SA (hereinafter 'CCBSA). The documents on the file alsoshow that, in August 1995, the Commission claimed that CCBSA held a dominantposition on the French cola market and had abused that position within themeaning of Article 86 of the Treaty.

6.

On 9 August 1996, the Commission received from CCE notification pursuant toCouncil Regulation (EEC) No 4064/89 of 21 December 1989 on the control ofconcentrations between undertakings (OJ 1989 L 395, p. 1).

7.

The notified operation concerned the agreement between CS and TCCC toliquidate ABGB by selling their respective shares in it to CCE which, at thematerial time, carried out no commercial operations in Great Britain.

8.

By its Decision 97/540/EC of 22 January 1997 the Commission declared the notifiedoperation compatible with the common market under Article 8(2) of RegulationNo 4064/89 and with the functioning of the European Economic Area Agreement(Case IV/M.794 - Coca-Cola/Amalgamated Beverages GB) (OJ 1997 L 218, p. 15,hereinafter 'the decision or 'the contested decision).

9.

In that decision, the Commission found inter alia that: first, TCCC is in a positionto exercise a decisive influence over CCE and therefore controls that companywithin the meaning of Article 3(3) of Regulation No 4064/89; second, colas sold inGreat Britain constitute a relevant market for purposes of assessing the notifiedconcentration, and, third, CCSB holds a dominant position on the British colamarket. However it concluded (paragraph 214) that:

'[A]lthough the proposed operation leads to a structural change which may alsolead to a change in the market behaviour of CCSB ... it is not possible todifferentiate sufficiently between the opportunities which would be derived directlyfrom the proposed operation and the opportunities which already exist within thecurrent structure of CCSB in order to conclude that the proposed operation resultsin a strengthening of CCSB's dominant position in the cola market in Great Britainwithin the meaning of Article 2 of the Merger Regulation [No 4064/89].

10.

In its decision, the Commission also took note of the fact that CCE undertook that,so long as CCE controlled CCSB, CCSB would adopt the undertakings given to theCommission by TCCEC in 1989 (see above, paragraph 4) to refrain from certainforms of commercial practices considered illegal when employed by an undertakingin a dominant position. According to paragraph 212 of the decision, '[t]hatundertaking would alleviate some of the concerns raised by third parties in thecourse of the procedure.

Procedure

11.

It is against that background that, by applications lodged at the Registry of theCourt of First Instance on 22 April 1997, TCCC and CCE each brought an actionfor annulment of the decision, Cases T-125/97 and T-127/97 respectively.

12.

By documents lodged at the Registry of the Court of First Instance on 2 June 1997,the Commission raised an objection of inadmissibility in both cases. On 5 and 8September 1997, CCE and TCCC lodged their observations on that objection.

13.

By applications lodged at the Registry of the Court of First Instance on 29September 1997, Virgin Trading Company Limited (hereinafter 'Virgin) appliedfor leave to intervene in both cases in support of the forms of order sought by theCommission.

14.

By letters of 16 October 1997, TCCC and CCE challenged Virgin's interest inintervening, and requested, pursuant to Article 116(2) of the Rules of Procedure,that a number of documents lodged at the Court of First Instance in the course ofthe present proceedings be treated as confidential.

15.

By letters of 30 October 1997, the Federal Republic of Germany applied for leaveto intervene in both cases in support of the forms of order sought by theCommission.

16.

By applications lodged at the Registry of the Court of First Instance on 3November 1997, CCE and TCCC each applied for leave to intervene in CasesT-125/97 and T-127/97 in support of the forms of order sought by the other.

17.

By letters of 10 November 1997 the Commission expressed the view that there wasno justification for the requests by TCCC and CCE for confidential treatment withregard to the applications for leave to intervene by Virgin, and that it was notpossible to grant confidential treatment vis-à-vis the Federal Republic of Germany.

18.

By letter of 12 November 1997, the Commission objected to the applications forleave to intervene by CCE and TCCC.

19.

By applications lodged at the Registry of the Court of First Instance on 19 and 21November 1997, CCE and TCCC each requested that certain documents be treatedas confidential vis-à-vis the other.

20.

By letter of 7 July 1998, TCCC referred, in support of the admissibility of itsapplication, to documents emanating from certain competition authorities todemonstrate that the contested decision, in particular the findings it contained onthe definition of the relevant market, had already been taken into account by thecourts and competition authorities in France, in Italy and in Lithuania to itsdetriment ... By letter of 28 August 1998, the Commission expressed its view onthe content of those documents.

21.

By orders of 18 March 1999, the President of the First Chamber of the Court ofFirst Instance granted the applications for leave to intervene in both cases byVirgin and the Federal Republic of Germany and dismissed those by TCCC andCCE.

22.

The requests for confidential treatment made by TCCC and CCE vis-à-vis oneanother were provisionally granted by the same order for the purpose of theprocedure on the objection of inadmissibility.

23.

By decision of the Court of First Instance of 9 April 1999, both cases were assignedto the First Chamber, Extended Composition.

24.

Upon hearing the report of the Judge-Rapporteur, the Court of First Instancedecided to open the oral procedure in order to rule on the objection ofinadmissibility. As a measure of organisation of procedure under Article 64 of itsRules of Procedure, it asked the Commission and CCE to reply to certain writtenquestions and the Commission to lodge the minutes of the meeting of the AdvisoryCommittee of 7 January 1997 together with all other documents given to themembers of that committee for the purposes of that meeting. The parties presentedoral argument and replied to questions put to them orally by the Court at thehearing on 8 July 1999.

25.

Pursuant to Article 50 of the Rules of Procedure, Cases T-125/97 and T-127/97were joined for the purposes of the judgment.

Forms of order sought

26.

In its application TCCC claims that the Court should:

- declare the decision void in so far as the Commission finds in that decisionthat the supply of cola-flavoured carbonated soft drinks in Great Britaincomprises a relevant market, that CCSB holds a dominant position on thatmarket and that TCCC controls CCE within the meaning of Article 3(3) ofRegulation No 4064/89;

in the alternative,

- declare the decision void in its entirety in so far as such a declaration isnecessary to annul the findings identified above and declare the acquisitionof ABGB by CCE approved in accordance with Article 10(6) of RegulationNo 4064/89;

and, in either case,

- declare the undertaking given to the Commission by CCE on 17 February1997 void along with the finding on the basis of which the Commissionrequested and obtained that undertaking, namely that CCSB holds adominant position on a relevant market comprising the supply of cola-flavoured carbonated soft drinks in Great Britain;

- order the Commission to pay the costs;

- take any other measures that the Court considers appropriate.

27.

In its observations on the objection of inadmissibility TCCC asks the Court, first,either to dismiss the objection of inadmissibility or to declare that the undertakingand the contested findings of the Commission contained in the contested decisionlack any legal effect and, second, to order the Commission to pay the costspursuant to Article 87(3) of the Rules of Procedure.

28.

In its application CCE claims that the Court should:

- declare that the decision is void in so far as the Commission finds in thatdecision that TCCC controls CCE within the meaning of Article 3(3) ofRegulation No 4064/89, that the supply of cola-flavoured carbonated softdrinks in Great Britain comprises a distinct market, and that CCSB is in adominant position in that market;

in the alternative;

- declare that the 'decisions that TCCC controls CCE within the meaningof Article 3(3) of Regulation No 4064/89, that the supply of cola-flavouredcarbonated soft drinks in Great Britain comprises a distinct market, and thatCCSB is in a dominant position in the market for colas in Great Britain,contained in the decision are void;

- order the Commission to pay the costs.

29.

In its observations on the objection of inadmissibility, CCE asks the Court todeclare the application admissible and, in any event, order the Commission to paythe costs pursuant to Article 87(3) of the Rules of Procedure.

30.

In both cases the Commission contends that the Court should:

- dismiss the applications as inadmissible;

- order the applicants to pay the costs.

31.

In its statements in intervention lodged on 12 May 1999, Virgin claimed that theCourt should:

- dismiss the applications as inadmissible;

- order the applicants to pay the costs.

32.

In its statements in intervention lodged on 12 May 1999 the Federal Republic ofGermany claims that the Court should dismiss the applications as inadmissible.

The objection of inadmissibility

Arguments of the parties in Case T-125/97

33.

TCCC submits that it is directly and individually concerned by the contesteddecision and that it constitutes an act open to challenge pursuant to the fourthparagraph of Article 173 of the EC Treaty (now, after amendment, the fourthparagraph of Article 230 EC).

34.

As regards its standing, TCCC argues, first, that the contested decision is plainly ofconcern to it. The principal finding of the Commission that CCSB, in its capacityas the sole British bottler of TCCC's products, holds a dominant position on thecola market in Great Britain, is based on the fact that CCSB bottles and distributesits product, 'Coca-Cola. Second, both the finding that CCSB has a dominantposition and CCE's undertaking have no effect of severely restricting CCSB'scommercial behaviour, thereby adversely affecting sales of TCCC's products.

35.

Finally, if the contested finding of the Commission that TCCC controls CCE werefounded, it would follow that it was individually and directly concerned by thecontested decision (Case 113/77 NTN Toyo Bearing Company v Council [1979] ECR1185, paragraph 9, and Joined Cases 228/82 and 229/82 Ford v Commission [1984]ECR 1129, paragraph 13).

36.

As to the question of the existence of an act open to challenge, TCCC submits thatthe finding of the existence of a dominant position in the decision entails significantand lasting consequences for CCSB, capable of having adverse legal effects withinthe meaning of the judgment of the Court of Justice in Case 60/81 IBM vCommission [1981] ECR 2639 (hereinafter 'the IBM judgment).

37.

First, a dominance finding imposes a 'special responsibility on CCSB, such thatbehaviour generally considered lawful on the market in question might beconsidered to be an abuse of a dominant position, which, in the present case, hasthe effect of restricting that company's commercial freedom.

38.

Second, that finding may be employed by the Commission in pending and futurecases. On that point, TCCC maintains that it is unaware of any instance in whichthe Commission has changed its views concerning market definition or dominancein successive cases involving the same undertaking (Commission decisions80/182/EEC of 28 November 1979 (IV/29.672 - Floral) and 82/203/EEC of 27November 1981 (IV/30.188 - Moët et Chandon (London) Ltd), relating to aproceeding under Article 85 of the EEC Treaty (OJ 1980 L 39, p. 51, and OJ 1982L 94, p. 7, respectively). According to TCCC, the possibility of an action beingbrought both against it and against CCSB is not purely theoretical. Virgin ColaCompany, TCCC's competitor, made a complaint to the Commission regardingabuse of a dominant position in the United Kingdom in breach of Article 86 of theEC Treaty. The finding in the contested decision that CCSB held a dominantposition thus had the effect of depriving TCCC of the opportunity to challenge thatallegation in the complaint by Virgin Cola Company. Similarly, in August 1995 theCommission initiated a proceeding against CCBSA, claiming that it had abused itsdominant position on a French cola market. The crucial question of definition ofthe product market was left unanswered pending the outcome of the proceedingthat resulted in the contested decision.

39.

TCCC adds that the contested finding increases the probability of its being finedin a later case and cites, in that connection, the judgment of the Court of Justicein Case 8/66 Cimenteries CBR and Others v Commission [1967] ECR 75.

40.

Third, TCCC submits that there is serious risk that national courts, particularlythose of the United Kingdom, will treat the contested finding as binding, therebyplacing it at a disadvantage vis-à-vis rival brand owners and CCSB at adisadvantage vis-à-vis future plaintiffs (Commission Notice of 13 February 1993 oncooperation between national courts and the Commission in applying Articles 85and 86 of the Treaty, OJ 1993 C 39, p. 6, paragraph 20, and Case C-234/89 Delimitis v Henninger Brau [1991] ECR I-935). In that connection TCCC cites thejudgment in Case 77/77 BP v Commission [1978] ECR 1513, in which the Court ofJustice declared an application admissible in so far as it was claimed that theCommission's finding of abuse of a dominant position could be used against theapplicant before the national courts by a potential complainant in a later action(see also Case 17/78 Deshormes v Commission [1979] ECR 189, Case 223/85 RSVv Commission [1987] ECR 4617, Case 167/86 Rousseau v Court of Auditors [1988]ECR 2705, paragraph 7, and Case T-353/94 Postbank v Commission [1996] ECRII-921).

41.

Fourth, TCCC points out that the laws of certain Member States, such as theUnited Kingdom, may require national courts to treat Commission decisions asbinding. On that point TCCC refers to the judgment of the High Court of Justiceof England and Wales in British Leyland Motor Corp. Ltd v Wyatt Interpart Co. Ltdaccording to which, first, where a judgment of the Court of Justice reviews a findingby the Commission that an undertaking had abused a dominant position, it hasbinding authority by virtue of the European Communities Act of 1972, and, second,a decision of the Commission which is not challenged before the Communityjudicature must be treated as having the same effect as a judgment of the Courtof Justice itself (1979 CMLR 79). It also cites Iberian UK Limited v BPB IndustriesLimited in which the High Court concluded that it would be contrary to publicpolicy to allow persons who have been involved in competition proceedings inEurope to challenge afresh in the national court the merits of a decision of theCommission (1996 CMLR 601).

42.

TCCC submits that the undertaking given by CCE produces legal effects andtherefore creates a separate and independent basis for the admissibility of itsapplication according to case-law (Joined Cases C-89/85, C-104/85, C-114/85,C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö v Commission[1993] ECR I-1307, 'Woodpulp). The effect of that undertaking is to depriveCCSB of the benefit of potentially profitable commercial strategies that remainopen to its competitors and increase its susceptibility to fines.

43.

TCCC submits, next, that the fact that the contested decision cleared the notifiedtransaction does not undermine the admissibility of its application and that nothingin the judgment of the Court of First Instance in Case T-138/89 NBV and NVB vCommission [1992] ECR II-2181 (hereinafter 'NBV and NVB) suggests a contraryconclusion.

44.

First, both the finding of dominance and the contested undertaking by CCE haveadverse effects, notwithstanding the decision to authorise the notified concentration,and affect that company inasmuch as they require it to accept special obligationsand to cease any conduct that might be deemed abusive.

45.

Second, unlike the applicants in NBV and NVB, TCCC is not a party which hasobtained satisfaction from the Commission proceeding.

46.

Third, in NBV and NVB the applicants' claim that the recitals to the contesteddecision could be used against them in national court proceedings was based on thepremiss that the national court would accept the Commission's assessment of therestrictive effect of the notified agreement but would reject its findings as to thelack of impact on intra-Community trade. In the present case the prospect thatnational courts might employ the findings of dominance against TCCC does notimply that those courts would at the same time reject any other aspect of thecontested decision.

47.

In the alternative, in the event that the application is declared inadmissible, inorder to avoid the risks described above, TCCC asks the Court of First Instance torule that the Commission's finding of dominance was unnecessary and devoid oflegal effect in the present case.

48.

In that connection TCCC observes that, in adopting the contested decision on thebasis of Article 8(2) of Regulation No 4064/89, the Commission did not need toreach a final determination on the issues of dominance and the scope of therelevant market. In its view, findings are necessary only in the event that theCommission issues a decision under Article 8(3) of Regulation No 4064/89declaring a concentration incompatible with the common market (see Case 7/82GVL v Commission [1983] ECR 483, paragraph 23). On that point TCCC refers tothe Commission's practice of refraining from opining on issues the discussion ofwhich is unnecessary, in particular where it is obvious that the notified operationhas no anti-competitive effect on the market, as was the case here.

49.

TCCC concludes that if there is no judicial review of the contested findings legalcertainty would be undermined, since the undertakings concerned would have toeither accept such findings or treat them as lacking legal force. TCCC considersthat it is entitled to know without ambiguity what are its rights and obligations sothat it may take steps accordingly (Case 169/80 Gondrand [1981] ECR 1931,paragraph 17, and Case 78/74 Deuka [1975] ECR 421).

50.

The Commission submits that, inasmuch as it does not relate to the operative partof the decision but only to some of its grounds, the application must be dismissedas manifestly inadmissible. It observes that the grounds of an act can be contestedonly to the extent to which they constitute the necessary support for the operativepart of an act adversely affecting a person's interests (NBV and NVB, cited above,paragraph 31). The operative part of the contested decision, inasmuch as it declaresthe notified operation compatible with the common market, without attaching anycondition or obligation within the meaning of the second subparagraph of Article8(2) of Regulation No 4064/89, does not produce any legal effect which couldadversely affect the interests of the applicant.

51.

The Commission argues that the special responsibility of CCSB not to allow itsconduct to impair undistorted competition on the common market (Case 322/81Michelin v Commission [1983] ECR 3461) follows from the direct effect of Article86 of the Treaty without any need for the Commission to take a decision on thequestion. In that connection the Commission adds that the operative part of thecontested decision does not contain any finding of dominance.

52.

As regards the possible consequences of such a finding in the grounds of thecontested decision on the treatment of future cases under Article 86 of the Treaty,the Commission points out that any decision applying that article contains areasoned assessment as to the existence of a dominant position and of abuse of itwhich could be challenged before the Community judicature.

53.

As regards the applicant's argument that the finding of a dominant position exposesthe applicant to the risk of fines in other cases, the Commission submits that, as isclear from the case-law on this subject, such a finding is not in itself a recriminationagainst the undertaking concerned (Michelin v Commission, cited above, paragraph57). Nor, in any event, since this is an interest which relates to an uncertain futurelegal situation, can it constitute grounds for the admissibility of the application(NBV and NVB, cited above, paragraph 33).

54.

The Commission submits that, contrary to the applicant's arguments, the nationalcourt is bound only by the operative part of a decision declaring a concentrationoperation compatible with the common market, and not by findings which do notconstitute the necessary support for its operative part. Moreover, as the Courtobserved in NBV and NVB, national courts could always apply to the Court ofJustice for a preliminary ruling in case of doubts.

55.

As regards the argument that under the legislation of certain Member States, suchas that of the United Kingdom, its decisions are binding on the national courts, theCommission counters that the case-law cited by the applicant concerns decisionsfinding abuse of a dominant position, which, by definition, cannot be contestedbefore a national court if they have not been contested in the Community courtsor if the application has been dismissed, which is not the case here. Moreover, itwould be incompatible with the autonomy and primacy of Community law to makethe admissibility of applications for annulment depend on particularities of nationallaw.

56.

The Commission disputes, finally, that the undertaking given by CCE mightconstitute grounds for the admissibility of the application, since that undertakingis not part of the operative part of the decision, is subject to no obligation orcondition within the meaning of the second subparagraph of Article 8(2) ofRegulation No 4064/89 and does not constitute necessary support for the operativepart. That analysis is, moreover, confirmed by two letters from Mr Drauz, Head ofthe Merger Task Force (hereinafter 'MTF), of 8 and 9 January 1997, addressedto CCE.

57.

In its observations on the objection of inadmissibility, TCCC submits that, in so faras the Commission's chief argument focuses on the placement of the challengedfindings in the decision rather than on their potential legal effects, it is contrary tothe judgment in IBM. Furthermore, in the Woodpulp judgment, cited above, theCourt of Justice, focusing on the intrinsic legal effects of undertakings generally andwithout reference to the fact that the contested undertaking was not mentioned inthe operative part of the contested decision but was annexed to it, held that theundertaking constituted an act open to challenge.

58.

TCCC also challenged the Commission's argument that the contested findings donot constitute necessary support for the operative part of the decision and cannottherefore be subject to judicial review. First, that argument disregards the fact thata finding of dominance in a Commission decision, if founded, has legal effects, evenif it does not constitute 'necessary support for the operative part of that decision.Second, it is on the basis of the finding that CCSB holds a dominant position thatthe Commission concludes that, in the absence of sufficient evidence that thenotified operation would strengthen that dominant position, it had to be declaredcompatible with the common market (point 215 of the Decision).

59.

TCCC also argues that, contrary to the Commission's submissions, the fact thatArticle 86 of the Treaty has direct effect does not preclude an application to annula decision applying it being held admissible.

60.

In particular, the question whether a firm holds dominant position can only beanswered after a complex legal, economic and factual investigation, based onanalysis of a number of factors. In the present case, the fact that investigation ofthe question of dominance ran to 63 paragraphs in the contested decision,demonstrates the significance of the contested finding in this case and suggests thatthe question will not be investigated afresh by the Commission in futureproceedings involving CCSB. Moreover, the members of the Advisory Committeedid not unanimously agree that there was a dominant position (Opinion of theAdvisory Committee on Concentrations given at the 42nd meeting on 7 January1977 concerning a preliminary draft decision relating to Case IV/M.794 -Coca-Cola Enterprises/Amalgamated Beverages Great Britain, OJ 1997 C 243,p. 12).

61.

According to TCCC, the Commission's argument that any future decision takenpursuant to Article 86 of the Treaty finding that there is a dominant position mustalways include a statement of reasons is irrelevant, since the question which arisesin the present case is whether such a statement of reasons will be based on findingscontained in previous decisions involving the same firm, as was the case in decision92/163/EEC of 24 July 1991 (IV/31.043 - Tetra Pak II) (OJ 1992 L 72, p. 1,paragraphs 93 and 98). Moreover, in its statement of objections in a subsequentcase, Case IV/M.833 - The Coca-Cola Company/Carlsberg A/S, the Commissionhas already referred to the findings relating to the definition of the relevant marketcontained in the contested decision.

62.

As regards the effects of the contested decision in national court proceedings,TCCC submits that, contrary to the Commission's argument, it does not follow fromNBV and NVB that a national court must take account only of the operative partof a decision applying the competition rules. In support of its argument, theapplicant cites both the decision of the Belgian Conseil de la Concurrence of 23May 1997 No 97-C/C-12 in the P&G/Tambrands Case, and the decision of theItalian competition authority in Finmeccanica/Aviofer (Bollettino No 52/26, 1997)in which those authorities relied on findings and considerations relating to therelevant market contained in previous Commission decisions.

63.

It adds that, even if a Commission decision does not bind national courts, the factremains that they, like national competition authorities, are bound de facto byprevious decisions of the Commission involving the same parties. As regards theCommission's argument that the preliminary reference procedure under Article 177of the EC Treaty (now Article 234 EC) allows TCCC to subject the contestedfindings to judicial review, this is of no relevance either since, if a national court infuture proceedings involving the same parties, decided to take account of findingscontained in the contested decision, no issue as to the validity or interpretation ofthe decision itself would arise within the meaning of Article 177 of the Treaty.

64.

Finally, TCC disputes that the contested undertaking was given voluntarily and thatit was merely intended to alleviate the concerns of third parties. It is clear from thedecision initiating the second stage of the proceeding that the Commission initiallyviewed the observations of third parties as the principal concern as far ascompetition was concerned (paragraphs 24 to 27). In any event, it is clear from theWoodpulp judgment that an undertaking is not a unilateral act unconnected to adecision applying the competition rules because the obligations created by such anundertaking for the applicant must be deemed equivalent to orders requiring aninfringement to be brought to an end. The Court thus held that, in giving thatundertaking, the applicants merely assented, for their own reasons, to a decisionwhich the Commission was empowered to adopt unilaterally.

65.

The intervening party, Virgin, supports the arguments of the Commission.

66.

The Federal Republic of Germany also maintains that the contested findings arenot acts open to challenge as defined in the case-law. It refers, in that connection,to German case-law, according to which the finding in a decision of anundertaking's participation in an oligopoly does not have adverse effects for thatundertaking, since to have achieved such market strength is in fact proof of highperformance and often vaunted in advertising. Moreover, in the process of mergercontrol in Germany, the undertakings concerned have to accept findings relatingto market strength such as a finding that a market is dominated by an oligopoly.

Arguments of the parties in Case T-127/97

67.

CCE submits that the three findings made by the Commission in the contesteddecision, that is to say (i) that TCCC controls CEE, (ii) that there is a distinct'cola market and (iii) that CCSB holds a dominant position on that market, andthe undertaking concerning the competitive behaviour of CCSB are decisions orparts of a decision and are open to challenge under Article 173 of the Treaty.

68.

CCE submits that the location of the disputed findings in the body of the contesteddecision is without relevance to the admissibility of the application. In thatconnection it cites the IBM judgment and the order in Case 229/86 Brother vCommission [1987] ECR 3757 according to which the preamble to a decision mayreveal the existence of a reviewable act distinct from the decision itself. It adds thatthe disputed findings, in contrast to the NBV and NVB case, serve to support theoperative part of the contested decision.

69.

In particular, the finding that CCE is controlled by TCCC clearly alters its legalposition since, whenever it wishes to make new acquisitions, the activities andturnover of TCCC must be considered in any analysis of effects on competition. Asregards the Commission's argument that this finding is not part of the operativepart of the contested decision and does not constitute necessary support for it, CCEcounters that the second stage of the proceeding was initiated precisely because theCommission was convinced that it was controlled by TCCC.

70.

The same is true of the contested finding that CCSB holds a dominant position onthe British cola market. That finding imposes on CCE and CCSB a specialresponsibility in the terms of Michelin v Commission, cited above. Moreover thatfinding, in conjunction with the finding that TCCC exercises control, puts CCE atrisk of fines in future proceedings, even where TCCC is responsible for thebreaches of the competition rules. Further, whilst it is true that Article 1 of thecontested decision does not expressly refer to the finding of dominance, it must beread as meaning that despite that dominant position, the notified operation isdeclared compatible with the common market.

71.

As regards the contested undertaking, CCE submits that it constitutes an act opento challenge within the meaning of Article 173 of the Treaty. Not only does it havelegal effects for CCE and CCSB but it also serves to support the finding that TCCCcontrols CCE as it only applies to subsidiaries in which TCCC owns more than a51% share (Woodpulp, cited above). CCE points out that, contrary to theCommission's claim, the Commission requested it to give the undertaking the dayafter the meeting of the Advisory Committee of 7 January 1997 (see letter of 8January 1997, annex 2 to the application). The Commission presented the contestedundertaking as though CCE had already agreed to it. Furthermore, the Commissionhas already relied on that undertaking in the course of another proceeding applyingArticle 85(1) of the Treaty (authorisation of licensing arrangements between CSand CCE, IP/97/148).

72.

CCE submits, next, that it has a legitimate interest in annulment of the decision inthat the decision is likely to constitute a precedent both for the Commission andfor national courts and national competition authorities. Contrary to theCommission's assertion, such cases are not future and uncertain, as two complaintsinvolving CCE have already been referred to the Commission. Thus, in decision95/421/EC of 21 December 1994, declaring a concentration compatible with thecommon market (Case IV/M.484 - Krupp/Thyssen/Riva/Falck/Tadfin/AST) (OJ1995 L 251, p. 18), the Commission referred to a previous decision adopted on thebasis of the ECSC Treaty in finding that the relevant geographical market was theworld market (paragraph 42). In its decision 95/354/EC of 14 February 1995,relating to a proceeding pursuant to Council Regulation (EEC) No 4064/89 (CaseNo IV/M. 477 Mercedes-Benz/Kässboher) (OJ 1995 L 211, p. 1), the Commissionexpressly cited two previous decisions to support its conclusion that there were tworelevant markets to be distinguished (paragraphs 14 and 65). Further, in itsjudgment in Case T-46/92 Scottish Football Association v Commission [1994] II-1039,the Court declared admissible an action in which the applicant was seeking toprotect itself from the risk that it might be confronted with further decisions of theCommission pursuant to Article 11(5) of Council Regulation No 17 of 6 February1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, EnglishSpecial Edition 1959-1962, p. 87, hereinafter 'Regulation No 17). CCE argues thata Commission decision which contains an appraisal of a particular factual situation,in the light of the competition rules, exercises an undeniable influence over nationalcourts and authorities even if it is not legally binding on them.

73.

Finally, CCE considers that, under the principle of primacy of Community law, anational court cannot declare a Commission decision invalid and that Article 5 ofthe Treaty, which lays down the duty to cooperate in good faith, implies thatnational authorities should avoid decisions which conflict with those taken byCommunity institutions (judgment of the High Court of Justice Iberian UKLimited/BPB Industries 1996 CLMR 601 and decision of the French Conseil de laConcurrence of 29 October 1996 No 96-D-67).

74.

The Commission submits that the action is also manifestly inadmissible since it doesnot relate to the operative part of the contested decision but only to some of itsgrounds, which do not constitute acts open to challenge within the meaning ofArticle 173 of the Treaty. It maintains that the arguments raised by CCE in supportof the admissibility of its action must be dismissed for the same reasons as thoseset out in Case T-125/97.

75.

The Commission also rejects CCE's argument that the finding that TCCCeffectively controls CCE would have legal effects should CCE make furtheracquisitions in Europe, pointing out that these are future and uncertain situations.Moreover, the Commission argues, such a finding is not part of the operative partof the contested decision, nor does it constitute necessary support for it.

76.

The interveners, Virgin and the Federal Republic of Germany put forward thesame arguments as those raised in Case T-125/97.

Findings of the Court

77.

It is settled case-law that any measure which produces binding legal effects such asto affect the interests of an applicant by bringing about a distinct change in his legalposition is an act or decision which may be the subject of an action under Article173 of the Treaty for a declaration that it is void (IBM v Commission, cited above,paragraph 9, Joined Cases C-68/94 and C-30/95 France and Others v Commission[1998] ECR I-1375, paragraph 62, and Case T-87/96 Assicurazioni Generali andUnicredito v Commission [1999] ECR II-0000, paragraph 37).

78.

To determine whether an act or decision produces such effects, it is necessary tolook to its substance (order in Case C-50/90 Sunzest v Commission [1991] ECRI-2917, paragraph 12, and France and Others v Commission, cited above, paragraph63).

79.

In the present case it follows that the mere fact that the contested decision declaresthe notified operation compatible with the common market and thus, in principle,does not have an adverse effect on the applicants does not dispense the Court fromexamining whether the contested findings have binding legal effects such as toaffect the applicants' interests.

The finding of a dominant position

80.

It should first be observed that, as the Commission pointed out, the obligationsimposed on undertakings by Article 86 of the Treaty (Michelin v Commission, citedabove, paragraph 57, Case T-51/89 Tetra Pak v Commission [1990] ECR II-309,paragraph 23, Case T-111/96 ITT Promedia v Commission [1998] ECR II-2937,paragraph 139, and Case T-228/97 Irish Sugar v Commission [1999] ECR II-0000,paragraph 112,) do not require a finding in a Commission decision that thoseundertakings are in a dominant position but derive directly from Article 86.According to the above case-law, where an undertaking is in a dominant positionit is obliged, where appropriate, to modify its conduct accordingly so as not toimpair effective competition on the market regardless of whether the Commissionhas adopted a decision to that effect.

81.

Second, a finding of a dominant position by the Commission, even if likely inpractice to influence the policy and future commercial strategy of the undertakingconcerned, does not have binding legal effects as referred to in the IBM judgment.Such a finding is the outcome of an analysis of the structure of the market and ofcompetition prevailing at the time the Commission adopts each decision. Theconduct which the undertaking held to be in a dominant position subsequentlycomes to adopt in order to prevent a possible infringement of Article 86 of theTreaty is thus shaped by the parameters which reflect the conditions of competitionon the market at a given time.

82.

Moreover, in the course of any decision applying Article 86 of the Treaty, theCommission must define the relevant market again and make a fresh analysis of theconditions of competition which will not necessarily be based on the sameconsiderations as those underlying the previous finding of a dominant position.

83.

Thus, in the present case, the fact that, in the event of a decision applying Article86 of the Treaty, the Commission may, as it stated itself at the hearing, beinfluenced by the contested finding does not mean that, for that reason alone, thatfinding has binding legal effects in the terms of IBM. Contrary to the argument ofTCCC, it is not deprived of its right to bring an action for annulment before theCourt of First Instance to challenge any Commission decision finding CCSB'sconduct to be an abuse.

84.

As regards the effects which a finding of a dominant position may have on theapplication of the competition rules by national courts, it must be borne in mindthat the contested decision was not taken on the basis of Article 86 of the Treatybut on that of Regulation No 4064/89 and in no way affects the power of nationalcourts to apply Article 86.

85.

Nor, in any event, does the possibility that a national court applying Article 86 ofthe Treaty directly in the light of the decision-making practice of the Commissionmight reach the same finding that CCSB holds a dominant position mean that thecontested finding has binding legal effects. A national court which has to assessaction taken by CCSB after the contested decision in the context of a disputebetween CCSB and a third party is not bound by previous findings of theCommission. There is nothing to prevent it from concluding that CCSB is no longerin a dominant position, contrary to the Commission's finding at the time when thecontested decision was adopted.

86.

Those conclusions are not undermined by the case-law cited by TCCC in supportof the admissibility of its action. First, as regards BP v Commission, cited above,that judgment clearly concerns the right of an undertaking to challenge in theCommunity courts the legality of a Commission decision charging it with a breachof Article 86 of the Treaty, even where no fine is imposed. Since a decision findingthat there has been an abuse of a dominant position can serve as a basis for anaction for damages brought by a third party before a national court, the addresseeof that decision undeniably has an interest in bringing an action for its annulment.In the present case the applicants do not have such an interest as the contesteddecision neither calls into question the compatibility of the notified operation withthe common market nor claims that CCSB's conduct constitutes an abuse.

87.

As to the relevance of Deshormes v Commission, cited above, it must be observedthat, in that judgment, the applicant, who was placed in a complex situation asregards the course of her career, was acknowledged to have a legitimate, presentand vested interest in challenging a decision the effects of which would notmaterialise until after her retirement. In the present case, the Court accordinglyholds that the mere finding, in the grounds of the contested decision, that CCSBholds a dominant position does not in any way affect the development of itsposition on the market and has no definitive legal effects for the future. For thesame reason, the judgment in Rousseau v Court of Auditors, cited above, is of norelevance either.

88.

In the judgment in RSV v Commission, cited above, the Court of Justice did acceptthat the applicant had a legitimate interest in bringing an action for annulmentagainst a Commission decision ordering the repayment of unlawful aid granted toit by the Kingdom of the Netherlands, even though it was bound, underNetherlands law and the national procedures already instituted against it, to repaythe aid received in the event of insolvency or suspension of payments. Howeverthat solution was justified by the consideration that if the applicant were to succeedin its action on the basis of submissions in domestic law, the contested decisionwould constitute for the Netherlands Government the sole justification for itsrequest for reimbursement (paragraphs 9 and 10). In the present case the contestedfinding does not form the basis for any other decision taken by the Commissionagainst CCSB for breach of competition rules.

89.

As regards the judgment in Postbank v Commission, cited above, it must beobserved that the action against a Commission decision allowing third parties toproduce documents containing information classified by the applicant asconfidential in national legal proceedings was declared admissible because theCourt of First Instance took the view that such a decision could represent a breachof Article 214 of the EC Treaty (now Article 287 EC) and Article 20 of RegulationNo 17. In the present case, the mere finding as to the existence of a dominantposition cannot constitute a finding as to a breach of provisions of Community law.

90.

TCCC's argument that a finding of a dominant position is only necessary if theCommission takes a decision on the basis of Article 8(3) of Regulation No 4064/89,declaring a notified operation incompatible with the common market, must bedismissed as irrelevant. Where the Commission intends to declare a notifiedoperation compatible with the common market it is bound, in the light of theparticular characteristics of each operation, to provide sufficient reasons for itsdecision in order to permit third parties, where necessary, to challenge the meritsof its analysis in the Community courts. Whilst it is true that, as TCCC pointed out,under the Commission's decision-making practice it generally only makes a detailedanalysis of the definition of the relevant market and those operating on it if itintends to decide that an operation is incompatible, there is nothing to prevent it,in view of the obligation to state reasons referred to above, from carrying out suchan analysis when it adopts a decision that an operation is compatible, particularlyif it is a decision taken under Article 8(2) of Regulation No 4064/89.

91.

As regards the applicants' reference to the risk that they will have fines imposedon them for breach of competition rules, it should be borne in mind that it is notthe mere finding that CCSB holds a dominant position at a given time that may,possibly, give rise to that risk, but the applicants' resorting to conduct whichconstitutes an abuse of that position. The reference by TCCC to the judgment inCimenteries CBR and Others v Commission, cited above, is not relevant in thatrespect. When the Court of Justice held that it was admissible for parties to anagreement to dispute a Commission decision taken under Article 15(6) ofRegulation No 17 it did so because such a decision deprived them definitively ofthe legal protection conferred on them by Article 15(5) and exposed them to aserious risk of financial penalties (pages 82 to 84; see also Case T-19/91 Vichy vCommission [1992] ECR II-415, paragraph 16). However, that exception is grantedsolely in respect of the activity described in the notification and confers noprotection in respect of future activities other than those covered by thatagreement. In the present case the contested finding does not deprive theapplicants of legal protection granted to them by a specific provision nor is itintended to single out particular conduct of CCSB which has already beensubmitted for examination by the Commission.

92.

It is clear from the foregoing considerations that the mere finding in the contesteddecision that CCSB holds a dominant position has no binding legal effects so thatthe applicants' challenge to its merits is not admissible.

The finding relating to the definition of the relevant market

93.

As the applicants' challenge to the finding of a dominant position is not admissible,a fortiori their challenge to the preliminary finding that there is a cola market is notadmissible either.

The contested undertaking

94.

On a preliminary point, it should be borne in mind that although CCE argued inits pleadings that the undertaking in question had legal effects as far as it wasconcerned, only TCCC, in its application, sought the annulment of the contesteddecision because of the inclusion in its grounds of the said undertaking. In itsreplies to the written questions of the Court of First Instance, CCE stated that ithad not sought the annulment of the undertaking in question because 'it [was] anintegral part of the contested decision and not a separate act. At the hearing itadded that the undertaking in question was in fact a measure which it had takenitself and could not, therefore, be the subject of an action for annulment.

95.

It follows that, since CCE did not seek the annulment of the decision in so far asit related to the undertaking in question, only the arguments of TCCC concerningthe alleged legal effects of that undertaking will be taken into account for thepurposes of the Court's appraisal.

96.

In that connection, first of all, the Commission's objection to the admissibility of theapplicants' challenge to the legality of the undertaking on the ground that it wasnot the subject of a formal condition within the meaning of Article 8(2) ofRegulation No 4064/89 must be rejected. According to the case-law on this subjectsuch an undertaking can be the subject of an action for annulment if it is clearfrom an analysis of its substance that it seeks to produce binding legal effects in thesense of the IBM judgment (see also France and Others v Commission, cited above,paragraphs 60 to 69). Moreover, it must be observed that the Commission itselfstated, in its written replies to the questions of the Court of First Instance thatcertain undertakings, mentioned only in the grounds of decisions taken underArticle 6(1)(b) of Regulation No 4064/89 could on occasion have such effects.

97.

Accordingly, in order to determine whether the undertaking in question producessuch effects, it is necessary to consider whether the declaration that the notifiedoperation is compatible was affected by it in the sense that, in the event of breachof its terms, the Commission could revoke its decision, as it declared it could in itswritten replies to the questions of the Court of First Instance on the subject ofcertain decisions confirming compatibility adopted under Article 6(1)(b) ofRegulation No 4064/89.

98.

It is clear from consideration of the file and the replies of the parties to the oralquestions of the Court of First Instance that the Commission's decision of 13December 1996 to initiate the procedure under Article 6(1)(c) of Regulation No4064/89 was taken inter alia because of serious concerns expressed by third partiesduring the first stage of the procedure, concerning the compatibility of the notifiedoperation with the common market (see annex 3 to the observations of TCCC onthe objection of inadmissibility and, in particular, paragraph 23 et seq. of theCommission decision pursuant to Article 6(1)(c) of Regulation No 4064/89).

99.

It is also clear from the file that, by letter sent to the Commission the day after ameeting between the applicants and the Commissioner responsible for competitionmatters, Mr Van Miert, on 19 December 1996, CCE proposed to give a series ofundertakings in so far as they were necessary for the Commission to authorise thenotified operation. That letter read as follows:

'These proposals are designed to address the concerns expressed in the Statementof Objections in the event that it is considered appropriate to propose that thetransaction be prohibited. ... However, without prejudice to this position, theparties have at all times expressed their willingness to try to meet the concernsexpressed by the Commission in the Statement of Objections through thepresentation of reasonable and proportionate modifications to the transaction thatare fundamentally structural in character ... It is the parties' belief that theproposed undertakings, set out below, which have far-reaching businessconsequences for them, achieve this purpose and address the specific concernsidentified in the Statement of Objections ... If these proposals are acceptable tothe Commission, the parties are prepared to develop them formally in the form offull written undertakings. On this basis we trust that it will be possible to presentthe transaction to the full Commission for a clearance under Article 8(2) of themerger control Regulation (attached as Annex 13 to the application in CaseT-125/97).

100.

The day after the meeting of the Advisory Committee of 7 January 1997 at whichthe undertaking proposed by CCE was discussed in detail, by letter of 8 January1997, the Director of the MTF replied to the above letter as follows:

'I refer to the letter dated 20 December 1990 to Commissioner Van Miert whichformally offered certain undertakings that the parties were prepared to make. Weinvite you to confirm in writing the undertaking concerning future behaviour namelythat so long as CCE controls CCSB, CCSB shall adopt the restrictions of theundertaking given to the Commission by the Coca-Cola Export Corporation in1989. ... We believe that such undertaking, if correctly implemented would addresssome of the concerns expressed by third parties.

101.

As is clear from the Opinion of the Advisory Committee, that committee expresslyrequested the Commission to take 'full account of the comments made during themeeting of the Committee, especially with regard to the undertaking given by theCoca-Cola Export Corporation to the Commission in 1989, and the letter of 8January 1997 could be interpreted as expressing the Commission's intention tomake authorisation of the notified operation conditional upon CCSB's complyingwith the same obligations. However, it is clear that the Director of the MTF nonethe less took pains to dispel any doubt in that regard by emphasising in that letterthat the decision authorising the notified operation would not be conditional uponthe undertaking by CCE. ('The clearance would not be conditional upon yourconfirmation but the undertaking would be noted in the final decision. TheAdvisory Committee has endorsed this line (see Annex 13 to the application inCase T-125/97)).

102.

On 9 January 1997, the Director of the MTF sent to CCE for approval an extractfrom the draft of the contested decision concerning the undertaking at issue. Byletter of 13 January 1997, CCE's General Counsel confirmed in writing that it gavethat undertaking whilst approving the Commission's decision to authorise thenotified operation without attaching that condition ('CCE and the other partieswelcome the decision to approve the proposed transaction without condition andI am pleased to confirm that so long as CCE controls CCSB, CCSB shall adopt theundertakings given to the Commission by The Coca-Cola Export Corporation in1989. We anticipate that this assurance will result in resolving all outstanding issueswith the Commission related to this transaction).

103.

The substance of that correspondence between the Commission and CCE was thusreproduced in paragraph 212 of the contested decision. It is clear from thatparagraph that the Commission noted the undertaking given by CCE withoutmaking it a formal obligation within the meaning of Article 8(2) of Regulation No4064/89. ('In any event, however, the Commission takes note of the fact that CCEundertakes that, so long as CCE controls CCSB, CCSB will adopt the undertakingsgiven to the Commission by The Coca-Cola Export Corporation in 1989. Thatundertaking would alleviate some of the concerns raised by third parties in thecourse of the procedure.)

104.

It is thus clear from the foregoing that, in adopting the contested decision, theCommission, as it stated in its correspondence with CCE, did not intend to makethe authorisation granted conditional upon the undertaking at issue.

105.

In any event, TCCC's argument that the undertaking was required by theCommission is contradicted by the fact that a month after the adoption of thecontested decision, CCE again proposed to adopt the same undertaking in order,on that occasion, to obtain authorisation for exclusive licensing arrangementsconcluded between itself and CS which, although an integral part of the notifiedoperation, had to be examined in the light of Article 85 of the Treaty (see letterfrom CCE to the Commission of 17 February 1997, '[e]nclosed in final form asagreed is the undertaking that CCE gives voluntarily in this case, and CommissionPress Release IP/97/148).

106.

It follows that the contested undertaking has no binding legal effects in the sensethat a breach of its terms would not affect the contested decision in any way andwould not entail its revocation. Accordingly, it is not an act open to challengewithin the meaning of Article 173 of the Treaty, so that TCCC's application mustbe declared inadmissible in so far as it concerns the legality of that undertaking.

The finding that TCCC controls CCE

107.

As to the question whether the Commission's finding that TCCC controls CCEconstitutes an act open to challenge within the meaning of the case-law cited above(see paragraph 96 above), it must be borne in mind that, in finding that the notifiedoperation had a Community dimension within the meaning of Article 1(2) ofRegulation No 4064/89, the Commission based itself exclusively on the worldwideand Community-wide turnover of CCE and ABGB. Since the turnover of TCCC,as the undertaking concerned within the meaning of Article 5(1) and (4) ofRegulation No 4064/89, was not taken into account by the Commission as the basisfor its exclusive authority to monitor the notified operation, the contested findinghas no legal effects with regard to the applicants (Case T-3/93 Air France vCommission [1994] ECR II-121, paragraphs 45 to 47).

108.

That conclusion is not undermined by CCE's argument that the contested findinghas legal effects in that it obliges it to notify the Commission of any future mergerplans because of the combined turnover of itself and TCCC, on penalty of finesunder Articles 4 and 14 of Regulation No 4064/89, and in that it exposes it to therisk of fines under Regulation No 17 for TCCC's anti-competitive conduct. Like thefinding of a dominant position, the finding that TCCC exercises a decisive influenceover CCE, within the meaning of Article 3(3) of Regulation No 4064/89, isdetermined by a series of factors which are constantly changing, such as theparticipation of shareholders in annual general meetings of CCE. Consequently, thecontested decision does not result in paralysing for the future the nature of thecommercial relationship or the structural or other links between TCCC and CCE.Thus, it cannot serve as a basis for involving the applicants in any futureproceedings in application of the competition rules because of the control whichthe Commission asserts TCCC exercised over CCE at the time when the contesteddecision was adopted.

109.

It follows that the applications are inadmissible in so far as they seek theannulment of the Commission's finding that TCCC controls CCE,

The alternative claims for annulment by TCCC

110.

Since the contested findings of the Commission concerning the definition of therelevant market, the holding of a dominant position by CCSB and the control ofCCE by TCCC have no binding legal effects affecting the applicant's interests andthus do not constitute acts open to challenge within the meaning of Article 173 ofthe Treaty, the claims in the alternative by TCCC seeking the annulment of thecontested decision as a whole, in so far as such annulment is necessary to annulthose findings, must also be declared inadmissible.

111.

It follows from all the foregoing that the applications must be dismissed asinadmissible in their entirety.

Costs

112.

Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Under the third subparagraph of Article 87(4) thereof, the Court mayorder an intervener other than a Member State to bear its own costs.

113.

In accordance with the forms of order sought by the parties, TCCC and CCE must,therefore, be ordered to pay the costs in Cases T-125/97 and T-127/97 respectively.The intervener, Virgin, must bear its own costs.

114.

In accordance with Article 87(4) of the Rules of Procedure, the Federal Republicof Germany must bear its own costs.

On those grounds,

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

hereby:

1. Dismisses the applications as inadmissible.

2. Orders the Coca-Cola Company and Coca-Cola Enterprises Inc. to pay thecosts in Cases T-125/97 and T-127/97 respectively.

3. Orders The Virgin Trading Company Ltd and the Federal Republic ofGermany to bear their own costs.

VesterdorfTiili

Pirrung

Meij

Vilaras

Delivered in open court in Luxembourg on 22 March 2000.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: English.

2: - Confidential data withheld.