JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

30 March 2000 (1)

(Competition - Float glass - Rights of defence and procedural rights of thecomplainant - Product market and geographical market - Article 86 of the ECTreaty (now Article 82 EC))

In Case T-65/96,

Kish Glass & Co. Ltd, established in Dublin (Ireland), represented by M. Byrne,Solicitor, with an address for service in Luxembourg at the Chambers of Arendtand Medernach, 8-10 Rue Mathias Hardt,

applicant,

v

Commission of the European Communities, represented initially by R. Lyal, of itsLegal Service, and R. Caudwell, national civil servant on secondment to theCommission, and subsequently, in the oral procedure, by B. Doherty, of its LegalService, acting as Agents, with an address for service in Luxembourg at theChambers of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,Kirchberg,

defendant,

supported by

Pilkington United Kingdom Ltd, established in Saint Helens, Merseyside (UnitedKingdom), represented by J. Kallaugher, Solicitor, A. Weitbrecht, Berlin and M.Hansen, Brussels, with an address for service in Luxembourg at the Chambers ofLoesch & Wolter, 11 Rue Goethe,

intervener,

APPLICATION for annulment of the Commission Decision of 21 February 1996(IV/34.193 - Kish Glass) rejecting the complaint made by the applicant on 17January 1992 pursuant to Article 3(2) of Council Regulation No 17 of 6 February1962, First Regulation implementing Articles 85 and 85 of the Treaty (OJ, EnglishSpecial Edition 1959-1962, p. 87) alleging an infringement of Article 86 of the ECTreaty (now Article 82 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: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 28 April 1999,

gives the following

Judgment

Background to the dispute

1.

    On 17 January 1992 Kish Glass & Co Ltd (hereinafter 'Kish Glass‘ or the'applicant‘), a company incorporated under Irish law which supplies glass, lodgeda complaint with the Commission pursuant to Article 3(2) of Council RegulationNo 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of theTreaty (OJ, English Special Edition 1959-1962, p. 87, hereinafter 'Regulation No17‘), alleging that Pilkington United Kingdom Ltd (hereinafter 'Pilkington‘) andits German subsidiary, Flabeg GmbH, abused their dominant position on the Irishmarket in 4 mm float glass, in applying different conditions from those offered toother purchasers for equivalent transactions and in refusing to supply it with thistype of glass beyond a certain limit, thereby placing the applicant at a competitivedisadvantage.

2.

    On 14 February 1992 the Commission sent a request for information, pursuant toArticle 11 of Regulation No 17, to the applicant, to which the applicant replied on10 March 1992.

3.

    When requested to comment on that complaint by the Commission, Pilkingtonstated that it did not hold a dominant position on the market in float glass and thatit applied a system of discounts based on the size of the customer, the time allowedfor payment and the quantity purchased.

4.

    The applicant submitted its comments on Pilkington's observations to theCommission on 1 July 1992. It maintained that the system of customer classificationused by Pilkington was discriminatory, and that that company, with a market shareof more than 80%, was the major supplier of 4 mm float glass in Ireland, which wasthe relevant geographical market for assessing whether it held a dominant position.

5.

    The Commission replied to the applicant on 9 July 1992, stating that a system ofdiscounts based on a classification of customers by category and on quantity wasnot discriminatory. The applicant submitted its observations on that statement on10 August 1992.

6.

    On 18 November 1992 the Commission sent a letter to the applicant pursuant toArticle 6 of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearingsprovided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, EnglishSpecial Edition 1963-1964, p. 47, hereinafter 'Regulation No 99/63‘), informing itthat it considered that there were not sufficient grounds for upholding its complaintand requesting it to submit any further observations it might have so that it couldformulate its definitive position. Kish Glass complied with that request.

7.

    Following an informal meeting of 27 April 1993, the Commission informed theapplicant, by letter of 24 June 1993, that its observations disclosed no matters offact or of law liable to affect the conclusions in the letter of 18 November 1992.However, the Commission stated that it intended to send to Pilkington a requestfor information under Article 11 of Regulation No 17 and that the applicant wouldbe kept informed of the procedure.

8.

    On 3 December 1993 the Commission sent to the applicant a non-confidentialversion of Pilkington's response to that request for information.

9.

    By letters to the Commission of 16 February 1994 and 1 March 1994 Pilkingtonclarified its position with regard to the definition of the relevant geographicalmarket and its alleged dominant position on that market.

10.

    In two letters to the Commission dated 8 March 1994, Kish Glass reaffirmed itsposition regarding the definition of the relevant geographical market, which itargued to be the Irish market, and Pilkington's alleged abuse of its dominantposition on the specific market for 4 mm float glass. It also provided theCommission with information on the prices charged by Pilkington on the Irishmarket.

11.

    On 24 and 27 May 1994, the applicant submitted to the Commission furtherevidence to show that the transport costs from continental Europe to Ireland werefar higher than those from the United Kingdom to Ireland and that there was alocal geographical market.

12.

    By letter of 10 June 1994 Pilkington informed the Commission that it disputed thetransport-cost data provided by the applicant.

13.

    Having obtained information from other manufacturers of glass in the Community,on 19 July 1995 the Commission sent a second letter to the applicant pursuant toArticle 6 of Regulation No 99/63 confirming that the relevant product market wasthe sale of float glass of all thicknesses to dealers, that the geographical market wasthe whole of the Community and that Pilkington did not hold a dominant positionon that market.

14.

    On 31 August 1995 the applicant submitted its observations regarding that secondletter pursuant to Article 6 of Regulation No 99/63, again disputing both thedefinition of the geographical and product market adopted by the Commission andits appraisal of the dominant position held by Pilkington.

15.

    Between 31 October and 3 November 1995, the Commission obtained informationby telephone and by fax from eight importers of glass established in Ireland onmethods of purchasing 4 mm float glass.

16.

    On 14 November 1995 the Commission sent a request for information pursuant toArticle 11 of Regulation No 17 to certain companies operating on the Irish market,including the applicant and Pilkington, to obtain data on the quantity of 4 mm floatglass sold in Ireland, on the dimensions of the glass sold and on the transport coststo the Dublin area.

17.

    On 18 December 1995 the Commission sent to the applicant five replies from glasscompanies, which were received on 22 December 1995. On 7 February 1996 theCommission sent to the applicant five further replies from glass companies, whichreached it on 12 February 1996.

18.

    By decision of 21 February 1996, received by the applicant on 1 March 1996, theCommission definitively rejected the complaint lodged by Kish Glass (CaseIV/34.193 - Kish Glass, hereinafter 'the contested decision‘). The Commissionmaintained its previous position that the relevant product market was the sale offloat glass of all thicknesses to dealers, that the relevant geographical market wasthe Community as a whole, or at least the northern part of the Community, andthat Pilkington did not hold a dominant position on that market.

Procedure

19.

    By application lodged at the Registry of the Court of First Instance on 11 May1996, Kish Glass brought this action.

20.

    By application lodged at the Registry of the Court of First Instance on 30September 1996, Pilkington United Kingdom Limited applied for leave to intervenein support of the form of order sought by the defendant. By order of 30 June 1997the President of the Third Chamber of the Court of First Instance granted it leaveto intervene.

21.

    Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fourth Chamber) decided to open the oral procedure without any preparatoryinquiry. It requested the Commission, however, to answer a number of writtenquestions, to which the Commission replied on 22 March 1999.

22.

    The parties presented oral argument and answered the questions put by the Courtat the hearing on 28 April 1999.

Forms of order sought

23.

    The applicant claims that the Court should:

-    annul the Decision adopted by the Commission on 21 February 1996 inCase IV/34.193 - Kish Glass;

-    order the Commission to pay the costs.

24.

    The defendant, supported by the intervener, contends that the Court should:

-    dismiss the application;

-    order the applicant to pay the costs.

Law

25.

    The applicant raises five pleas in law in support of its application. In the first plea,which is in two parts, it alleges both that the Commission infringed its right to beheard and that it breached the principle of legal certainty and misused its powers.In its second plea it claims that the defendant disregarded procedural rules. Itsthird plea alleges breach of essential procedural requirements and of the principleof legal certainty. In its fourth and fifth pleas it alleges that the Commissioncommitted a manifest error of assessment in its definition, on the one hand, of therelevant product market and, on the other, the geographical market.

The first plea, alleging infringement of the applicant's right to be heard and of theprinciple of legal certainty and misuse of powers

Arguments of the parties

26.

    The applicant argues, first, that the Commission did not allow it enough time to putits point of view, thus infringing its right to be heard. It submits, second, that theCommission misused its powers and infringed the principle of legal certainty inobtaining information by methods not provided for by Regulation No 17.

- Infringement of the applicant's right to be heard

27.

    The applicant points out, first, that the Commission asked the Irish companies byletter of 14 November 1995 to provide information on the quantity, dimensions andthicknesses of float glass sold on the Irish market and the markets of continentalEurope. The applicant received a copy of the responses from the Irish companieson 22 December 1995 and 12 February 1996, on which the contested decisionadopted on 21 February 1996 was based. The tenor of the responses was such asto provide valuable support for its arguments but the Commission allowed it toolittle time (nine days) to comment on all the responses of the Irish companies, thuspreventing it from exercising its right to be heard.

28.

    The applicant points out, second, that the Court of Justice has established, in itscase-law, that respect for the right to be heard in all proceedings which are liableto culminate in a measure adversely affecting a person is a fundamental principleof Community law which must be guaranteed, even in the absence of specific rules.Moreover, the Commission, in implementing the principle that the rights of thedefence must be guaranteed, established rules for access to files both for thedefending party and for the complainant. Furthermore, the case-law of the Courtof First Instance both in the area of competition and of dumping has establishedthat the right to comment on documents on the file is implicit in the right of accessto it.

29.

    The Commission contends that documents annexed to the application show that,during the investigation of its complaint, the applicant had numerous opportunitiesto put its point of view; in particular between the lodging of the complaint and theletter sent to it on 19 July 1995 the applicant made use of nine opportunities tosubmit its comments. In that connection the Commission points out that non-confidential copies of the responses of Pilkington and of four Irish importers ofglass were sent on 18 December 1995 to the applicant, that is to say two monthsbefore the adoption of the contested decision; two of the four undertakings wereamongst the three main importers and the two others were amongst the smallestglass importers. What is more, non-confidential copies of five other responses weresent to the applicant on 7 February 1996: those responses corroborated theinformation which the Commission had obtained at the time of its telephoneinquiries between 31 October and 3 November 1995, information of which theapplicant had been informed. The applicant had two further weeks to submit itsobservations on those responses. The applicant was fully informed of its right tomake known its views on the documents placed on the file to which it had accessand it was therefore not necessary for the Commission to issue a formal invitationto that effect.

- Misuse of powers and breach of the principle of legal certainty

30.

    The applicant points out that, during the written procedure, the Commissionexplained that the requests for information sent on 14 November 1995 to the Irishcompanies sought only to obtain documentary evidence of the responses whichthose companies had already given by fax and by telephone. It argues that themethod chosen by the Commission to obtain the information it needed, that is tosay, by telephone and subsequently in writing, is not provided for by Article 11(2)to 11(6) of Regulation No 17 and is, therefore, incompatible with those provisions.The Commission has thus misused its powers and undermined the principle of legalcertainty.

31.

    The Commission contends that Article 11 of Regulation No 17 does not rule outthe possibility of obtaining information orally and subsequently making officialrequests for information.

Findings of the Court

- Infringement of the applicant's right to be heard

32.

    According to settled case-law, respect for the right to be heard is, in all proceedingsinitiated against a person which are liable to culminate in a measure adverselyaffecting that person, a fundamental principle of Community law which must beguaranteed even in the absence of specific rules. That principle requires that theundertaking concerned be afforded the opportunity during the administrativeprocedure to make known its views on the truth and relevance of the facts, chargesand circumstances relied on by the Commission (see, in particular, Case C-301/87France v Commission [1990] ECR I-307, paragraph 29, Joined Cases C-48/90 andC-66/90 Netherlands and Others v Commission [1992] ECR I-565, paragraph 37,Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraphs 39 and 40,and Case C-48/96 P Windpark Groothusen v Commission [1998] ECR I-2873,paragraph 47).

33.

    However, it must be observed that this principle concerns the rights to be heard ofthose in respect of whom the Commission carries out its investigation. As the Courtof Justice has already observed, such an investigation does not constitute anadversary procedure as between the undertakings concerned but a procedurecommenced by the Commission, upon its own initiative or upon application, infulfilment of its duty to ensure that the rules on competition are observed. Itfollows that the companies which are the object of the investigation and thosewhich have submitted an application under Article 3 of Regulation No 17, havingshown that they have a legitimate interest in seeking an end to the allegedinfringement, are not in the same procedural situation and that the latter cannotinvoke the right to be heard as defined in the cases relied on (see, to that effect,judgment of the Court of Justice in Joined Cases 142/84 and 156/84 BAT andReynolds v Commission [1987] ECR 4487, paragraph 19, and judgment of the Courtof First Instance in Case T-17/93 Matra Hachette v Commission [1994] ECR II-595,paragraph 34).

34.

    Since the right of access to the file is also one of the procedural guaranteesintended to safeguard the right to be heard, the Court of First Instance has held,similarly, that the principle that there must be full disclosure in the administrativeprocedure before the Commission in matters concerning the competition rulesapplicable to undertakings applies only to undertakings which may be penalised bya Commission decision finding an infringement of Articles 85 or 86 of the ECTreaty (now Articles 81 EC and 82 EC), since the rights of third parties, as laiddown by Article 19 of Regulation No 17, are limited to the right to participate inthe administrative procedure. In particular, third parties cannot claim to have aright of access to the file held by the Commission on the same basis as theundertakings under investigation (judgment in Matra Hachette v Commission, citedabove, paragraph 34).

35.

    As regards the rights of the applicant as a complainant, the Court of First Instancepoints out that, in the present case, the investigation of the complaint lasted morethan four years and that the applicant had the opportunity to put its point of viewon several occasions. In particular, the last five replies of the Irish companies ofwhich the applicant was notified did not alter the essential points with which theprocedure was concerned so that the fact that the Commission only allowed theapplicant nine days to comment on the replies before adopting the contesteddecision did not prevent it from making its views known.

36.

    In the circumstances the applicant's rights cannot be said to have been infringed.

- Misuse of powers and breach of the principle of legal certainty

37.

    As regards the argument that the Commission misused its powers in seekinginformation from Irish glass companies by telephone or fax even though Article 11of Regulation No 17 provides that such requests must be made in writing, it mustbe borne in mind to begin with that, according to consistent case-law, the adoptionby a Community institution of a measure with the exclusive or main purpose ofachieving an end other than that stated constitutes a misuse of powers (see CaseC-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69, and CaseT-77/95 SFEI and Others v Commission [1997] ECR II-1, paragraph 116).

38.

    In the present case, it must be observed both that Article 11 of Regulation No 17does not prevent the Commission from obtaining information by means of oralrequests followed by requests in the proper form and that the applicant has notfurnished evidence that the collection of information orally had any purpose otherthan that envisaged by that article.

39.

    It follows that the first plea must be rejected as unfounded in its entirety.

The second plea, alleging breach of procedural rules

Arguments of the parties

40.

    The applicant submits that the Commission breached the procedural guaranteesprovided for by Community law in sending Pilkington a request for informationwhich was not drawn up objectively.

41.

    In support of its submission the applicant points out that the Commission sentPilkington a request for information on 14 November 1995, the same day as it sentrequests for information to the Irish companies. In its request for information, theCommission wrote: 'In its response Kish maintains that 4 mm clear float glassforms a distinct market in Ireland ... Kish further maintains that Pilkington aloneis able to supply the dimensions demanded by the Irish market. The Commissionhas investigated this point and it appears to be poorly founded. Nevertheless, inorder to have on the file all the evidence necessary to reject the complaint, it hasproved necessary to make a further request for information.‘ Thus the Commissionhad informed Pilkington that the complaint was poorly founded even though theissue in question had not been considered, given that it had not yet received theresponses to the questions put by letter of 14 November 1995. It follows that theCommission could have had no idea of the evidence which might be revealedpursuant to its requests for information but it none the less indicated to the partyagainst which the complaint was directed that it proposed to reject the complaintand asked it to provide the evidence that would make this possible.

42.

    The Commission observes that Article 11(3) of Regulation No 17 requires it toindicate the purpose of the request for information. At the time when theCommission wrote its letters it knew that the claims by Kish Glass were probablynot founded since it had already received, by telephone and by fax, the responsesof the undertakings to which it was writing. It had therefore considered thearguments of Kish Glass with the requisite seriousness and diligence but had foundthat they were erroneous.

43.

    According to the intervener, to prevent a breach of the duty of impartiality, it isessential that, in pursuing its inquiries, the Commission should not prejudge theaction to be taken on a complaint; but that does not mean that the officials of theCommission cannot form an initial opinion on the issues raised by a complaint. Theduty of impartiality requires, at the very least, that until the complainant hasexercised his right to present observations pursuant to Article 6 of Regulation No99/63, the Commission should remain open to any discussion liable to make itchange its mind. However, there is no legal obstacle, once the Commission officialshave formed an initial opinion, to their informing the undertaking subject to theinvestigation of that opinion. In the present case, the Commission had alreadyinformed Kish Glass in its letter pursuant to Article 6 of Regulation No 99/63 ofits view that no action should be taken on its complaint. Moreover, Kish Glass hadalready had an opportunity to comment on the Commission's position. When it sentthe request for information at issue the Commission had already formed an initialopinion and its communication to Pilkington does not constitute a breach of theprinciple of objectivity and impartiality.

Findings of the Court

44.

    First, it must be borne in mind that, under Article 11(3) of Regulation No 17, whenthe Commission sends a request for information to an undertaking or anassociation of undertakings, it is to state the legal bases and the purpose of therequest and also the penalties laid down for supplying incorrect information.Consequently, the Commission was required to inform Pilkington, in its letter of14 November 1995, of the reasons which led it to request further information.

45.

    Second, according to settled case-law, once the Commission decides to proceedwith an investigation, it must, in the absence of a duly substantiated statement ofreasons, conduct it with the requisite care, seriousness and diligence so as to beable to assess with full knowledge of the case the factual and legal particularssubmitted for its appraisal by the complainants (Case T-7/92 Asia Motor France andOthers v Commission [1993] ECR II-669, paragraph 36).

46.

    In the present case, it is clear from the documents before the Court that theCommission's investigation was carried out over a period of more than four years,during which the Commission collected comments from a significant number ofundertakings in the sector, analysed them and gave the complainant an opportunityto put forward, on several occasions, all such information as could be taken intoaccount. In so doing, the Commission carried out all its activities with the requisitecare, seriousness and diligence. In confining itself to observing that, in its letter of14 November 1995, the Commission had expressed the view that its complaint was'poorly founded‘ and asked for further information from Pilkington in order to'reject‘ it, the applicant has not proved the contrary.

47.

    Accordingly, the second plea must be rejected as unfounded.

The third plea, alleging breach of essential procedural requirements and of the principleof legal certainty

Arguments of the parties

48.

    The applicant submits that the decision of the Commission is vitiated by formaldefects and breaches the principle of legal certainty.

49.

    In that regard, it states that decisions rejecting complaints usually take the form ofa reasoned letter signed by the Commissioner responsible for competition matters.In the present case that Commissioner merely signed a covering letter which, aftersummarising the procedure, rejected the complaint, referring to a separatedocument for the reasoning. That document contains no indication (such as asignature or even an initial) that the Commissioner responsible had seen it. Giventhis unusual manner of proceeding, the applicant has no way of knowing whetherthe Commissioner responsible saw or approved the arguments for the rejection ofthe complaint. What is at issue in this case is therefore a matter of form ratherthan a matter of inadequate reasoning.

50.

    The Commission observes, first, that the contested decision is not in an unusualform and, second, refers expressly to the annex containing the reasons for whichit decided to reject the complaint.

Findings of the Court

51.

    It should be borne in mind that, according to case-law, a reference in a documentto a separate document must be considered in the light of Article 190 of the ECTreaty (now Article 253 EC) and does not breach the obligation to state reasonsincumbent on the Community institutions. Thus, in its judgment in Case T-504/93Tiercé Ladbroke v Commission [1997] ECR II-923, paragraph 55, the Court of FirstInstance held that a Commission decision sent to the author of a complaint thatgave rise to an investigation, which referred to a letter sent pursuant to Article 6of Regulation No 99/63, disclosed with sufficient clarity the reasons for which thecomplaint was rejected, and thus fulfilled the obligation to state reasons underArticle 190 of the Treaty. Regardless of whether such a reference is described asa matter of reasoning or of form, that finding applies a fortiori where reference ismade to a document annexed to a decision and, therefore, contained in it.Moreover, the applicant has in no way substantiated its suspicions that theCommissioner responsible was unaware of the reasoning for the contested measure.

52.

    The reference in question is sufficient to meet the requirements of legal certaintyunder Community law.

53.

    It follows that the third plea must also be rejected as unfounded.

The fourth plea, alleging a manifest error of assessment in the definition of the relevantproduct market

Arguments of the parties

54.

    The applicant submits that the Commission committed a manifest error ofassessment in defining, in point 19 of the contested decision, the relevant productmarket not as that for 4 mm float glass but as that for the sale of raw or primaryfloat glass of all thicknesses to dealers in view of the fact that the persons activein the market, both on the supply side and the demand side, are the same for allthicknesses of glass. Where products of different types and dimensions are notinterchangeable from the point of view of the user, it is insufficient merely toexamine whether the persons active in the market are the same, but it is alsonecessary to take into consideration, as the Court of Justice did in its judgment inCase 322/81 Michelin [1983] ECR 3461, the competitive conditions and thestructure of supply and demand on the market.

55.

    The applicant submits, as regards the conditions of competition, that given that asignificant percentage of the market is effectively reserved for one manufacturer,producers who do not sell imperial sheet sizes (2 440 mm x 1 220 mm) are unlikelyto be competitive in the remainder of the market and may choose not to operateor attempt to maintain competition on it. This has a significant knock-on effect onthe conditions of competition in the remainder of the market, as is borne out bythe fact that a very large share (84%) of the 4 mm float glass market is held byPilkington. In that connection, it points out that so far as it is aware, Pilkington isthe only manufacturer of 4 mm float glass to use trays of certain dimensions onwhich the glass is cooled ('lehr-ends‘) which permit the glass to be cut intoimperial sizes without wastage. It believes that other producers, producing metricglass, use lehr-ends which enable them to manufacture only metric-sized sheets(3 210 mm x 2 250 mm). Finally, it is likely that there are only two dealers on theIrish market which have the equipment required to cut metric sizes down toimperial sizes, and moreover, one of those customers still continues to import 30%of its requirement in imperial sizes from Pilkington.

56.

    It submits, moreover, as regards the structure of supply, that, as was confirmed bythe replies of the Irish companies, more than 27% of 4 mm float glass sold inIreland is in imperial sizes. Pilkington has a near monopoly in respect of the sizein question (95% of sales) and, moreover, holds 84% of the Irish market in 4 mmfloat glass. Supply on the float glass market is affected as a result: because of thestructure of the market, customers buying sheets in imperial sizes are obliged todeal, for all sizes, with that manufacturer, who is well placed to meet their otherrequirements for 4 mm float glass.

57.

    It states, further, that the market in 4 mm float glass must be considered to be therelevant product market as that product cannot be substituted by float glass ofother thicknesses: the cross-elasticity of demand between 4 mm float glass and floatglass of other thicknesses is zero; increases in the price of 4 mm float glass areunlikely to have any effect on demand for other float glass products. In that regard,although there is significant fluctuation in the price charged for 4 mm float glassin Ireland, demand for other float glass products has remained constant. Accordingto both the case-law of the Court of Justice and Court of First Instance and thedecisions of the Commission (Commission Decision 88/138/EEC of 22 December1987 relating to a proceeding under Article 86 of the EEC Treaty (IV/30.787 and31.488 - Eurofix - Bauco/Hilti) (OJ 1988 L 65, p. 19); Commission Decision92/163/EEC of 24 July 1991 relating to a proceeding pursuant to Article 86 of theEEC Treaty (IV/31.043 - Tetra Pak II) (OJ 1992 L 72, p. 1); judgment in CaseC-53/92 P Hilti v Commission [1994] ECR I-667; judgment in Case T-30/89 Hilti vCommission [1991] ECR II-1439; judgment in Case T-83/91 Tetra Pak v Commission[1994] ECR II-755), there is a relevant product market when cross-elasticity withother products, which may be considered interchangeable, is low: it follows that aproduct market is a fortiori distinct from another where the cross-elasticity betweenthem is zero.

58.

    Finally, it adds that the fact that one of Pilkington's four manufacturing sitesspecialises in the production of 4 mm float glass implies that it is not possible toconvert rapidly to production of other thicknesses.

59.

    The Commission contends that in the Michelin case, the Court of Justice found thatproducts of different types and dimensions, that are not interchangeable from thepoint of view of the user, may nevertheless be considered as forming part of asingle product market where they are technically similar or complementary and aresupplied through dealers who must meet demand for the whole range of products.This clearly holds true for the raw float market, where at the first stage ofdistribution the persons active in the market on the supply side and on the demandside are identical for all thicknesses of glass. It points out that the applicant doesnot produce any evidence to support its statement that conditions of competitionare affected when, first, a significant percentage of the market is effectivelyreserved for one producer and, second, producers who do not sell imperial sheetsize 4 mm float glass are unlikely to be competitive on the remainder of the marketand may choose not to compete in that part of the market.

60.

    In response to the assertion by Kish Glass that a near monopoly position on thepart of the float glass market sold in imperial sizes gives Pilkington aninsurmountable advantage on the market as a whole, the Commission maintainsthat glass of one thickness sold in one set of dimensions may be substituted by glassof the same thickness sold in different dimensions, given that all wholesalers are ina position to cut down larger sizes to obtain the size required by processors andend users. Float glass in imperial dimensions is used for exactly the same economicpurposes as float glass in metric dimensions.

61.

    Finally, it observes that the applicant has adduced no evidence in support of itsassertion that the operation of the 4 mm float glass market in Ireland isindependent, because of its alleged specific character, from that of the market forother thicknesses of glass. In fact, 4 mm float glass is technically almost identicalwith float glass of other sizes and a producer's float line can be rapidly adaptedwithout excessive cost to change from one thickness to another.

Findings of the Court

62.

    According to settled case-law, for the purposes of investigating the possiblydominant position of an undertaking on a given market, the possibilities ofcompetition must be judged in the context of the market comprising the totality ofthe products which, with respect to their characteristics, are particularly suitable forsatisfying constant needs and are only to a limited extent interchangeable with otherproducts (see, in particular, the judgment in Case 31/80 L'Oréal [1980] ECR 3775,paragraph 25, and in Michelin v Commission, cited above, paragraph 37).Moreover, according to the same case-law (Michelin v Commission, cited above,paragraph 44), the absence of interchangeability between different types anddimensions of a product from the point of view of the specific needs of the userdoes not imply that, for each of those types and dimensions, there is a distinctmarket for the purposes of determining whether there is a dominant position.Furthermore, since the determination of the relevant market is useful in assessingwhether the undertaking concerned is in a position to prevent effective competitionfrom being maintained and behave to an appreciable extent independently of itscompetitors and customers and consumers, an examination to that end cannot belimited to the objective characteristics only of the relevant products but thecompetitive conditions and the structure of supply and demand on the market mustalso be taken into consideration (Michelin v Commission, cited above, paragraph37).

63.

    In the present case, the Court of First Instance must consider whether theconditions of competition and the structure of supply on the market in float glassprecluded the Commission from finding, on the basis of Michelin v Commission,cited above, that even if glass of different thicknesses is not interchangeable forfinal users, the relevant product market must be considered to be that for raw floatglass of all thicknesses, as distributors must meet demand for the whole range ofproducts.

64.

    As a preliminary point, the Court of First Instance observes that, according toconsistent case-law, although as a general rule the Community judicatureundertakes a comprehensive review of the question whether or not the conditionsfor the application of the competition rules are met, its review of complexeconomic appraisals made by the Commission is necessarily limited to verifyingwhether the relevant rules on procedure and on stating reasons have been compliedwith, whether the facts have been accurately stated and whether there has been anymanifest error of assessment or a misuse of powers.

65.

    The applicant contends that the fact that continental producers do not produceglass in imperial dimensions prevents them from competing effectively withPilkington. On that point, it must be observed that, at point 15 of the contesteddecision, the Commission considered that question and arrived at the oppositeconclusion to that reached by the applicant. On the basis of information providedby nine Irish importers it found that wholesalers did not have a clear preferencefor imperial sizes in so far as they were able to cut - without too much wastage -glass in metric sizes down to imperial sizes. During the proceedings before theCourt of First Instance, the applicant confined itself, with regard to that point, tostating that, so far as it was aware, Pilkington was the only manufacturer of 4 mmfloat glass able to adapt the glass to imperial sizes without wastage, that it believedthat the other manufacturers used 'lehr ends‘ allowing them to manufacture onlysheets of different sizes and that it was unlikely that wholesalers would be able tocut metric sizes without wastage. Not only does the applicant furnish no evidencein support of its argument, but it puts forward nothing to invalidate theCommission's assessment of the matter, which was based on information obtaineddirectly from operators on the market.

66.

    The applicant also maintains, essentially, that, in view of the near monopolyenjoyed by Pilkington in the market for 4 mm glass in imperial sizes, that companyenjoys a privileged position in commercial relations with glass importers. Moreover,it submits that 4 mm glass cannot be replaced by float glass of other thicknesses.

67.

    In that regard, it must be observed that the applicant has not established that anypreference importers have for Pilkington's products is not the result of theirpursuing their own economic interest or exercising their freedom of contract.Accordingly such preferences cannot be interpreted as being indicative of adeterioration in the structure of supply on the market. It must be observed, next,that it is clear from the data given in the replies of the Irish companies, which arenot contested by the applicant, that sales in Ireland of 4 mm float glass in imperialsizes account for 27% of the market. Even if it is accepted that Pilkington holds anear monopoly in the sector of 4 mm glass in imperial sizes, that percentage isclearly not in itself a sufficient ground for claiming, as the applicant has done, thatthe majority of purchases of 4 mm float glass in Ireland are processed byPilkington. About 73% of demand for the product is made up of purchases of glassin metric sizes which cannot be affected by Pilkington.

68.

    Finally, in point 18 of the contested decision, the Commission explained thatproduction of 4 mm glass is technically almost identical to production of glass ofother thicknesses and that glass manufacturers can convert production rapidlywithout excessive cost. In that connection, it must be observed that the fact thatone of Pilkington's four production sites specialises in the manufacture of a certaintype of glass does not mean that the technical processes for manufacture of theglass are different and does not demonstrate that an economic operator with onlyone production site cannot convert his production rapidly, so that the applicant'sargument on the basis of the lack of cross-elasticity between supply of 4 mm glassand glass of other thicknesses cannot be upheld either.

69.

    The Court of First Instance finds, therefore, that the applicant has not establishedthat the position of the Commission, set out in point 19 of the contested decision,that the relevant product market is the sale of glass of all thicknesses, was vitiatedby a manifest error of assessment. It follows that that argument cannot be upheldby the Court.

70.

    The fourth plea must, therefore, be rejected as unfounded.

The fifth plea, alleging a manifest error of assessment of the geographical market

Arguments of the applicant

71.

    The applicant points out that the Commission, in point 23 of the contesteddecision, while conceding that certain features of the float glass market in Irelanddo distinguish it from that in continental Europe (that is to say the absence ofproduction facilities and the fact that all float glass has to be transported there bysea), took the view that the analysis of transport costs and the level of prices ofglass in the different parts of the Community point to the conclusion that therelevant geographical market is the Community or the northern part of theCommunity. It submits that the Commission has committed a manifest error ofassessment and should have taken the view that the relevant geographical marketwas Ireland or Ireland and the United Kingdom.

72.

    It sets out, essentially, three objections to the definition of the geographical marketin the contested decision.

- The first objection

73.

    The test which the Commission applied to define the relevant geographical marketis not in conformity with that defined by the Court of Justice in its judgment inCase 27/76 United Brands v Commission [1978] ECR 207. Rather than defining theglass market on the basis of transport costs to Ireland only, it should havedetermined the zone in which other objective conditions of competition for theproduct in question are similar for all economic operators. Application of that testwould have led it to conclude that the relevant geographical market was Ireland (orIreland and the United Kingdom). The determination of Ireland as the relevantgeographical market finds support in the fact that, in that country, continentalexporters have no competitive weight as regards sales of 4 mm float glass as theircombined market share is approximately 16% compared with Pilkington's marketshare which is 84%.

- The second objection

74.

    The Commission committed a manifest error of assessment in finding that twonorthern European producers had higher transport costs to Ireland than those ofPilkington, to the extent of 7 to 8%, and that only one producer from that part ofEurope had lower transport costs to Ireland than Pilkington's. On that point, ananalysis contained in the letter to the Commission of 24 May 1994 shows that thecosts of sea and land transport to Ireland for continental producers are in fact farhigher than they are for Pilkington: glass manufactured by a continental producerhas a greater distance to travel by road and by sea and does not enjoy thesignificant discounts on road and sea transport from which Pilkington can benefit.

75.

    In that regard, the approach which resulted in that analysis is in keeping with thatfollowed by the Commission in certain decisions: Commission Decision 94/359/ECof 21 December 1993, declaring a concentration to be compatible with the commonmarket (Case No IV/M/358 - Pilkington Techint/SIV, OJ 1994 L 158, p. 24,hereinafter 'Pilkington-Techint/SIV Decision‘), in which the Commissionconsidered that raw float glass is a bulky heavy product, which is thereforeexpensive to transport over great distances; Commission Decision 89/93/EEC of7 December 1988 relating to a proceeding under Articles 85 and 86 of the EECTreaty, (Case IV/31.906 - 'Flat glass‘, OJ 1989 L 33, p. 44, hereinafter 'Flat GlassDecision‘), in which the geographical location of production facilities wasconsidered to be a vital factor in the transport of flat glass; Commission Decision89/22/EEC of 5 December 1988 relating to a proceeding under Articles 85 and 86of the EEC Treaty (Case IV/31.900 - BPB Industries, OJ 1989 L 10, p. 50,hereinafter 'BPB Decision‘), in which, in view of the costs of transport andadvantages of placing production facilities close to markets, it was considered thatit was not economically possible to supply the market in Britain or Ireland on alarge scale and for prolonged periods from abroad.

76.

    Moreover, the significance of transport costs in determining the geographicalmarket is confirmed by the replies of the Irish companies, which reveal that theglass companies established in the Dublin area (near the Pilkington factory) or inplaces easily accessible by road from Dublin (Galway) are supplied almost entirelyby Pilkington (98%), whilst companies which are further away (in the towns ofTipperary, Limerick and Wexford) buy lower quantities of glass from Pilkington(77%, 62% and 66% respectively).

- The third objection

77.

    An analysis of FOB (free on board) and CIF (cost, insurance, freight) prices for4 mm float glass between 1990 and 1992 from the United Kingdom to otherMember States shows that the Irish market does not have characteristics incommon with the other European markets and that it is an independent market;according to that analysis, in the period under consideration, the average CIF priceto Ireland was ECU 470 per tonne; it varied between ECU 500 and 540 per tonneto the Northern European countries (Germany, Netherlands, Belgium andLuxembourg), and varied between ECU 330 and 430 per tonne to the countries ofSouthern Europe (France, Italy, Portugal, Spain and Greece); in contrast, in theperiod under consideration, the average FOB price to Ireland was ECU 370 pertonne, the price to the countries of Northern Europe varied between ECU 300 and330 per tonne and the price to the countries of Southern Europe varied betweenECU 300 and 370 per tonne.

Arguments of the Commission

- The first objection

78.

    The Commission denies not having applied the test established by the Court ofJustice in United Brands, cited above. It points out that, in point 24 of the contesteddecision, it maintained that the area in which dominance should be assessed mustbe an area where 'the objective conditions of competition applying to the productin question must be the same for all traders‘; on the basis of that test it found thattransport costs did not isolate Ireland from the continental market.

- The second objection

79.

    It maintains that the conclusions it drew from its analysis of transport costs arecorrect. On the basis of information supplied in response to its letters pursuant toArticle 11 of Regulation No 17 by the producers concerned, it found that oneNorthern European producer's costs were marginally lower than Pilkington's andthat two other producers had to bear costs, as a proportion of the value of theload, no more than 7 to 8% higher than Pilkington's. It even found that theSouthern European producers had to bear costs which were significantly higher asa proportion of the value of the load. Taking account of the fact that the additionalcost tolerated by a manufacturer for transport towards the edge of its domesticmarket was a maximum of 10% of the value of the product, it concluded that thetransport costs to Ireland of Northern European producers fell within the rangethey tolerated on their domestic markets. Moreover, as it finds that the applicanthas not produced any evidence to show that the information obtained in responseto the letter sent to a number of impartial undertakings pursuant to Article 11 ofRegulation No 17 was erroneous, it states that it is not convinced of theunreliability of the information supplied to it.

- The third objection

80.

    The Commission states that the information on prices on the basis of which itadopted the contested decision was obtained directly from producers, whilst thefigures given by the applicant were unreliable; in the course of its investigation itobtained a detailed breakdown of Pilkington's prices and they bore no relation tothe prices submitted by the applicant. In the period 1990-1992 the average pricecharged by Pilkington in Ireland was very close to that charged in every country inNorthern Europe. It added that the FOB and CIF prices used by the applicant arenot a reliable indicator. The term FOB refers to the price of the product as it isloaded onto a ship and does not include any of the subsequent costs of transport,while float glass is sold on a 'delivered‘ basis whereby the cost of transport isborne by the producer. CIF prices do not indicate the real market price as they donot take into account any discounts given.

Findings of the Court

- The first objection

81.

    In its judgment in United Brands v Commission, cited above, the Court of Justicestated that the opportunities for competition must be considered, in regard toArticle 86 of the Treaty, having regard to the particular features of the product inquestion and with reference to a clearly defined geographic area in which it ismarketed and where the conditions of competition are sufficiently homogeneousfor the effect of the economic power of the undertaking concerned to be able tobe evaluated (paragraph 11). Furthermore, in the same judgment, in order toascertain whether the conditions of competition were sufficiently homogeneous inthat case the Court of Justice referred primarily to transport costs, taking the viewthat, where such costs do not in fact stand in the way of the distribution of theproducts, they are factors which go to make the relevant market a single market(United Brands v Commission, paragraphs 55 and 56).

82.

    It follows that, in the present case, the definition of the relevant geographicalmarket, in the light, in particular, of the costs of transporting glass borne bycontinental producers, is justified. It must be observed, moreover, that in order todetermine the conditions of competition on European markets, the Commission didnot, in the contested decision, only consider the costs mentioned above but alsoverified that the volume exported to Ireland between 1988 and 1994 by continentalproducers was about one-third of the volume of the demand for float glass in thatcountry, that the differences between prices charged in Ireland and in five otherEuropean countries by the five main continental producers did not indicate theexistence of separate markets and that the existence of obstacles of a technical orregulatory nature to entry to the Irish market could be ruled out. Finally, it mustbe observed that, although the applicant disputes that the criteria laid down by thejudgment in United Brands v Commission, cited above, were applied correctly, itdoes not indicate how they should be applied in order to define the geographicalmarket in the light of the impact of transport costs on the conditions ofcompetition.

83.

    It follows from the foregoing that the first objection must be dismissed.

- The second objection

84.

    As regards the objection concerning the accuracy of the analysis of transport costscarried out by the Commission, it must be observed that that analysis takes accountof the information supplied by the operators in the sector at the time of theinvestigation of the Pilkington-Techint/SIV merger and of the decision madefollowing that investigation. In that decision the Commission observed that: (1)80-90% of a plant's production is sold within a radius of 500 km; that distance issometimes exceeded and can reach 1 000 km, beyond which the cost of transportbecomes prohibitive, that is to say uncompetitive; (2) in its natural supply area witha 500 km radius a glass-producing undertaking is in competition with otherundertakings whose supply areas overlap with its own; (3) since each of thoseundertakings has its own radius of supply, competition by an undertaking with thosewithin its radius tends to extend to their natural supply area; (4) consequently, itis appropriate to consider the Community as a whole to be the geographicalreference market.

85.

    It must first be determined whether the argument set out by the Commission in thecontested decision for the purpose of defining the geographical market iscontradictory. In the course of the hearing it became apparent that at severalpoints in the contested decision the Commission was making reference to itsdecision in Pilkington-Techint/SIV, point 16 of which appears to be inconsistentwith point 33 of the contested decision. In that connection, it should be borne inmind that a contradiction in the statement of the reasons on which a decision isbased constitutes a breach of the obligation laid down in Article 190 of the Treatysuch as to affect the validity of the measure in question if it is established that, asa result of that contradiction, the addressee of the measure is not in a position toascertain, wholly or in part, the real reasons for the decision and, as a result, theoperative part of the decision is, wholly or in part, devoid of any legal justification(see in particular the judgment of the Court of Justice in Case T-5/93 Tremblay andOthers v Commission [1995] ECR II-185, paragraph 42).

86.

    In point 16 of the preamble to the decision in Pilkington-Techint/SIV, theCommission states that raw float glass is a bulky, heavy product, 'expensive totransport over great distances, for example, the cost of transportation by lorryamounts to between 7.5 and 10% of the selling price at a distance of 500 km.‘ Inpoint 33 of the contested decision the Commission states that transport coststowards the edge of a plant's natural supply area ('domestic market‘) exceed thosewithin its near vicinity by up to 10% of the value of the product.

87.

    Following careful examination of those two decisions, the Court must observe, first,that the contested decision refers to the Pilkington-Techint/SIV decision withoutreferring specifically to the percentages given in brackets in point 16 of thepreamble to that decision, second, that the percentages given in point 16 are givenby way of illustration and their significance is weakened by the conclusions theCommission reaches in that decision, which are the same as those it reached in thecontested decision, in finding that it seems appropriate to consider the Communityas a whole to be the geographical reference market and, third, that the true reasonfor the definition of the geographical reference market contained in the Pilkington-Techint/SIV decision is to be found in the second paragraph of point 16 of itspreamble where it is stated that 'given the dispersion of the individual float plantsand the varying degrees of overlap for the natural supply areas, so that effects canbe transmitted from one circle to another, it seems appropriate to consider that thegeographical reference market is the Community as a whole.‘

88.

    It must be observed that the Commission in no way contradicts itself in that, first,in its decision in Pilkington-Techint/SIV it defined the geographical referencemarket essentially on the basis of the concept of the natural geographical area ofsupply from a given float-glass production plant, represented by concentric circleswith a radius determined by the relative transport cost and, second, it arrived at thesame definition in the contested decision, having found that the transport costswhich are tolerated by a producer in the natural supply area of its plant exceedthose within the near vicinity of that plant by up to 10% of the value of theproduct. The concepts of natural supply area and near vicinity of the plant, on thebasis of which the Commission concluded that transport costs did not exceed 10%,are compatible. Both concepts enable the relevant geographical market to bedetermined for an undertaking on the basis of the cost of transport by measuringthat market not from the factory but from a number of points on the edge of acircle or series of circles surrounding it which constitute its natural supply area orthe area in its near vicinity.

89.

    It follows that, contrary to what appeared to emerge from the hearing, thecontested decision is not vitiated by contradiction in referring in point 33 to thePilkington-Techint/SIV decision.

90.

    The applicant, for its part, does not contest, in themselves, the criteria which wereused by the Commission to define the natural supply area ('domestic market‘) andon which the contested decision was based. In claiming that the Commission madea manifest error of assessment in its determination of the relevant geographicalmarket, it is merely disputing the reliability of the replies of the glass producers onwhich that determination was based.

91.

    The Court observes, in that regard, that the third-party undertakings requested tosupply information pursuant to Article 11 of Regulation No 17 may have penaltiesimposed on them if they supply incorrect information, with the result that theycannot as a general rule be considered not to have supplied accurate and reliableinformation in the absence of evidence to the contrary. The applicant cannotpurport to deny that the data supplied in those replies are of any value simply byreferring to the analysis of transport costs which it put forward during theadministrative procedure in its letter of 24 May 1994 and which was not acceptedby the Commission in the contested decision.

92.

    In its letter of 24 May 1994, the applicant refers to the report commissioned by theDublin Port and Docks Board from Dublin City University Business School(hereinafter 'the Dublin Port Report‘) on transport costs in the port of Dublin. Onthe question of the advantages said to be enjoyed by Pilkington in terms oftransport costs, the applicant bases its argument on data which do not specificallyrefer to Pilkington but are merely inferred from its presumed commercial activity.For example, on page 4 of its letter, it states: '[Pilkington] is not constrained by anyparticular sailing and will therefore ship by the most cost effective sailing. TheDublin Port Report (pages 172-173) indicates that discounts of 15% to 18% areavailable for volume or guaranteed units. As Pilkington imports considerableamounts of glass to the Irish market (and maintains an office in Dublin), it wouldbe guaranteed the highest discount. In addition, the 18% discount is granted fortransport by day, whereas 15% is the maximum discount for night transport. Dueto the proximity of Liverpool, Pilkington can benefit from the higher 18% discount.Finally, Kish estimates that Pilkington may have as many as 40 units per week andwould benefit from favoured customer status and be at the low end of the pricerange, particularly if space is block-booked.‘ Moreover, in that letter the applicantdoes not give precise figures for continental transport costs and, again on page 4of the letter, states: 'The Dublin Port Report does not indicate the percentage ofthe available 20 containers which are open-top, but it is certainly very small as onlytwo shipping lines provide such specialised form of transport.‘

93.

    The applicant's argument based on the significance of transport costs as it emergesfrom the replies of the Irish glass companies is not sufficient to establish that therelevant geographical market is Ireland alone. The fact that the glass companiesestablished in the Dublin and Galway areas obtain almost all their supplies fromPilkington merely indicates that, in view of the cost of transport, the latter has acompetitive advantage in the geographical area close to its factory, but anadvantage of that kind must be considered to be normal on most markets.Moreover, as the applicant itself points out, many other Irish companies buysignificant quantities of glass from continental producers. In that regard, it must beobserved that the company based in Limerick, which is as far away from Dublin asthat based in Galway is, purchases only 62% of its supplies from Pilkington. It isthus clear that the data concerning glass imports derived from the replies of theIrish companies do not support the inference drawn by the applicant that the Irishmarket is separate from the Northern European market.

94.

    Finally, the Court observes that the applicant's argument finds no support in thedecisions it cites. For instance, whilst it is clear from point 77 in the preamble tothe Flat Glass Decision that the cost of transport is a very significant factor inmarketing flat glass beyond national frontiers and that the proportion of productionintended for export is limited compared with the quantities sold on the homemarket, that does not mean that the analysis of costs that is made in the contesteddecision is erroneous. Second, the situation on the plasterboard market in the casewhich gave rise to the BPB decision was quite different from that on the float glassmarket. In that decision, unlike the situation in the present case, BPB Industries,which was charged with an abuse of a dominant position, had a factory in Irelandwhich supplied the national market and a factory in Great Britain which did notexport to Ireland. In that connection, the Commission made the point that theprices of the factory located in Great Britain were not competitive with those inIreland (see point 21 of the preamble to the BPB decision). The Commissionconcluded that Great Britain and Ireland were the relevant geographical marketsince those countries were 'the only areas in the Community where BPB is boththe sole producer and has a near monopoly position in the supply of plasterboard‘(point 24 of the preamble to the BPB decision). It therefore determined thegeographical market on the basis of factors quite different from those relied on bythe applicant in the present case.

95.

    It follows from the foregoing that the second objection must be dismissed.

- The third objection

96.

    The Court finds that the analysis of the differences in the FOB and CIF prices for4 mm float glass from the United Kingdom sold in other countries of theCommunity is not such as to invalidate the conclusions which the Commission drewfrom it in the contested decision.

97.

    As regards the FOB prices, it must be observed that, as the Commission pointedout, they refer to the price of the product as loaded on board and do not includethe costs of subsequent transport, which on this type of market are normally borneby the producers. Consequently, such prices cannot be considered to giveappropriate information on the real market prices.

98.

    On the other hand, the CIF price, which includes production and insurance costs,and every type of transport costs, can be taken into account for determining thereal market prices. However, it must be observed that the data furnished by theapplicant do not support its submission that the relevant geographical market isIreland. Those data show that the discrepancy between the average prices chargedin Ireland and the average prices charged in the Netherlands (470/500; ECU 30 pertonne) is less than that between the average prices charged in the Netherlands andthe average prices charged in Germany, Belgium or Luxembourg (500/540; ECU40 per tonne). On the basis of that consideration alone, it should be concluded thatIreland forms part of the same geographical market as the Netherlands and not,as the applicant argues, that Ireland constitutes a separate market from the rest ofNorthern Europe.

99.

    It follows from the foregoing that the third objection must be dismissed.

100.

    It also follows that the fifth plea must be dismissed as unfounded.

101.

    The application must, therefore be dismissed in its entirety.

Costs

102.

    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 applicant has been unsuccessful andthe Commission has applied for costs, the applicant must be ordered to pay thecosts.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.    Dismisses the application;

2.    Orders the applicant to pay the costs.

Moura RamosTiili Mengozzi

Delivered in open court in Luxembourg on 30 March 2000.

H. Jung

V. Tiili

Registrar

President

1: Language of the case: English.