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

22 October 1997 (1)

(Competition — Mobile cranes — Article 6 of the European Convention onHuman Rights — Acting within a reasonable time — Certification system —Prohibition on hiring — Recommended rates — Internal rates — Fines)

In Joined Cases T-213/95 and T-18/96,

Stichting Certificatie Kraanverhuurbedrijf (SCK), a foundation established underNetherlands law, whose registered office is in Culemborg, Netherlands,

Federatie van Nederlandse Kraanverhuurbedrijven (FNK), an associationestablished under Netherlands law, whose registered office is in Culemborg,Netherlands,

represented by Martijn van Empel, of the Amsterdam Bar, and Thomas Janssens,of the Brussels Bar, with an address for service in Luxembourg at the Chambersof Marc Loesch, 11 Rue Goethe,

applicants,

v

Commission of the European Communities, represented by Wouter Wils, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported in Case T-18/96 by

Van Marwijk Kraanverhuur BV, a company incorporated under Netherlands law,whose registered office is in Zoetermeer, Netherlands,

Kraanbedrijf Nijdam BV, a company incorporated under Netherlands law, whoseregistered office is in Groningen, Netherlands,

Kranen, Transport & Montage 's Gilde NV, a company incorporated underNetherlands law, whose registered office is in Geldermalsen, Netherlands,

Wassink Transport Arnhem BV, a company incorporated under Netherlands law,whose registered office is in Arnhem, Netherlands,

Koedam Kraanverhuur BV, a company incorporated under Netherlands law, whoseregistered office is in Vianen, Netherlands,

Firma Huurdeman Kraanwagenverhuurbedrijf, a company incorporated underNetherlands law, whose registered office is in Hoevelaken, Netherlands,

Datek NV, a company incorporated under Belgian law, whose registered office isin Genk, Belgium,

Thom Hendrickx, resident in Turnhout, Belgium,

represented by August Braakman, of the Rotterdam Bar, and Willem Sluiter, of theHague Bar, with an address for service in Luxembourg at the Chambers of MichelMolitor, 14A Rue des Bains,

interveners,

APPLICATION, in Case T-213/95, for an order under Articles 178 and 215 of theEC Treaty requiring the Commission to pay compensation for the harm caused tothe applicants by its unlawful conduct and, in Case T-18/96, for the annulment ofCommission Decision 95/551/EC of 29 November 1995 relating to a proceedingpursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 — StichtingCertificatie Kraanverhuurbedrijf and the Federatie van NederlandseKraanverhuurbedrijven) (OJ 1995 L 312, p. 79),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber, ExtendedComposition),

composed of: K. Lenaerts, President, P. Lindh, J. Azizi, J.D. Cooke and M. Jaeger,Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 4 June 1997,

gives the following

Judgment

Background and procedure

1.

    These cases are concerned with the mobile crane-hire sector in the Netherlands. Mobile cranes are cranes which can be moved freely about a worksite. They canthus be distinguished from tower cranes which are mounted on fixed rails and canmove forwards and backwards only. Mobile cranes are used mainly in construction,in the petrochemical industry and in the transport sector.

2.

    For technical reasons, the area of operation of a mobile crane is confined to aradius of 50 kilometres. A further feature of the mobile crane-hire sector is thatcontracts are entered into very shortly before a job is carried out ('overnightcontracting‘). When a crane-hire firm is asked to do a job at very short notice, itdecides, in the light of the site's location and the availability of its own cranes,either to use one of the latter or to hire a crane from another firm located near thesite.

3.

    The foundation Keuring Bouw Machines ('Keboma‘), which was set up in 1982 bythe Netherlands Ministry for Social Affairs, inspects cranes before they are broughtinto service for the first time, to ensure that they comply with the legal safetyrequirements set out in the Arbeidsomstandighedenwet (Law on Conditions at theWorkplace), in the Veiligheidsbesluit voor Fabrieken of Werkplaatsen (Decree onSafety in Factories and at Worksites), in the Veiligheidsbesluit Restgroepen(Decree on Safety at other types of Workplace) and in various ministerialregulations and publications of the Labour Inspectorate. Keboma is the onlyofficial body designated to inspect and test mobile cranes. Under Council Directive89/392/EEC of 14 June 1989 on the approximation of the laws of the MemberStates relating to machinery (OJ 1989 L 183, p. 9), the requirement that cranes beinspected before they are first brought into service does not apply, from1 January 1993, to cranes which bear an EC mark and are accompanied by an ECdeclaration of conformity within the meaning of the directive. Cranes must beinspected by Keboma three years after they are first brought into service and, afterthat second check, every two years.

4.

    The Federatie van Nederlandse Kraanverhuurbedrijven ('FNK‘) is the sector-based organization, established on 13 March 1971, which brings together crane-hirefirms in the Netherlands. Under its statutes, its object is to defend the interests ofcrane-hire firms, in particular of its members, and to encourage contacts andcooperation in the broadest sense between members. FNK members account for1 552 of the 3 000 or so cranes available for hire in the Netherlands. From15 December 1979 to 28 April 1992 Article 3 of FNK's internal rules contained aclause requiring its members to give priority to other members when hiring orhiring out cranes ('the priority clause‘) and to charge 'reasonable‘ rates. TheFNK set and published recommended rates and cost estimates for the hiring ofcranes by clients. In addition, internal rates applicable to hirings between FNKmembers were set at regular meetings of crane-hire firms.

5.

    The Stichting Certificatie Kraanverhuurbedrijf ('SCK‘) is a foundation set up in1985 by representatives of crane-hire firms and their clients. Under its statutes, itsobject is to promote and maintain the quality standards of crane-hire firms. Itaccordingly set up a certification system under which it issues certificates to firmswhich meet a range of requirements relating to the management of a crane-hirefirm and to the use and maintenance of cranes. That certification system enablesclients to proceed on the basis that the firm concerned complies with therequirements in question without having to check this themselves. The secondindent of Article 7 of SCK's rules on the certification of crane-hire firms prohibitsfirms certified by it from hiring cranes from firms not certified by it ('theprohibition on hiring‘). With effect from 20 January 1989, SCK was accredited bythe Raad voor de Certificatie (Certification Council), the Netherlands authorityresponsible for accrediting certification bodies; it recorded that SCK fulfilled theconditions established on the basis of the European standards EN 45 011 definingthe criteria which certification bodies must satisfy. Under Paragraph 2.5 of theaccreditation criteria of the Raad voor de Certificatie, the certificate-awarding bodyis required to ensure that the certification conditions are also complied with ifsubcontractors are used. It can meet that requirement either by checkingsubcontractors itself (Paragraph 2.5.A1) or by monitoring the checks onsubcontractors carried out by the accredited firm (Paragraph 2.5.A2 and A3).

6.

    On 13 January 1992, M.W.C.M. Van Marwijk ('Van Marwijk‘) and ten otherundertakings submitted a complaint to the Commission together with an applicationfor interim measures. They considered that the applicants were infringing thecompetition rules of the EC Treaty by excluding firms not certified by SCK fromhiring out mobile cranes and by imposing fixed prices for crane hire.

7.

    On 15 January 1992 SCK's statutes and its rules on the certification of crane-hirefirms were notified to the Commission. FNK's statutes and internal rules werenotified on 6 February 1992. In both cases, an application was made for negativeclearance or, in the alternative, exemption pursuant to Article 85(3) of the Treaty.

8.

    In an action brought by the complainants in the Netherlands courts, the Presidentof the Arrondissementsrechtbank (District Court), Utrecht, made an interim orderon 11 February 1992 requiring FNK to withdraw the priority clause and the systemof recommended rates (applicable to hirings with clients) and of internal rates(applicable to hirings between crane-hire firms). He made an order restrainingSCK from applying the prohibition on hiring. By a further interim order, made on9 July 1992, the Gerechtshof (Regional Court of Appeal), Amsterdam, set aside thefirst order, holding that it was not obvious and beyond all doubt that there was noprospect of the arrangements in question being exempted by the Commission. Onthe same day, SCK reinstated the prohibition on hiring. FNK, on the other hand,gave up future involvement in the formulation of recommended rates and internalrates.

9.

    On 16 December 1992, the Commission issued a statement of objections addressedto the applicants. In that document it informed them that it intended, pursuant toArticle 15(6) of Council Regulation No 17 of 6 February 1962, First Regulationimplementing Articles 85 and 86 of the Treaty (OJ, English Special Edition1959-62, p. 87; 'Regulation No 17‘), to lift the immunity from fines laid down inArticle 15(5).

10.

    On 3 February 1993 the applicants sent the Commission their reply to thestatement of objections. In that reply they asked in particular for a hearing to bearranged.

11.

    By letter of 4 June 1993 the Commission informed them that the procedure underArticle 15(6) of Regulation No 17 could be terminated only if the prohibition onhiring was withdrawn.

12.

    The complainants made a fresh application to the President of theArrondissementsrechtbank, Utrecht, who, by interim order of 6 July 1993, ruledthat the prohibition on hiring could no longer be applied since the Commission hadin the meantime made known its view on the arrangements at issue and thereappeared to be no prospect of its exempting that prohibition.

13.

    By letter dated 29 September 1993 the Commission informed the applicants thatit would hold the hearing requested by them before it adopted a final decisionunder Article 85 of the Treaty, but that there was no requirement for such ahearing to be held where a decision was based on Article 15(6) of RegulationNo 17.

14.

    The order of the Arrondissementsrechtbank, Utrecht, of 6 July 1993 was confirmedby the Gerechtshof, Amsterdam, in a judgment delivered on 28 October 1993. Thejudgment was based, in particular, on an undated letter which Mr Giuffrida, of theCommission's Directorate-General for Competition (DG IV), had sent to thecomplainants with a copy to the applicants' adviser. The applicants state that they

received the copy on 22 September 1993. The author of the letter expressedhimself as follows: 'I can confirm that a draft decision under Article 15(6) ofRegulation No 17 is to be submitted, as part of a written procedure, to theCommission for adoption at the end of this week, once all the necessary languageversions are available. The approval of the departments concerned has alreadybeen obtained ... My department envisages that it should be possible to notify [theapplicants] formally of the decision in the first half of October 1993‘.

15.

    On 4 November 1993 SCK issued a statement that the prohibition on hiring wouldbe suspended until the Commission had adopted a final decision.

16.

    On 13 April 1994 the Commission adopted a decision under Article 15(6) ofRegulation No 17.

17.

    By letter dated 3 June 1994 the applicants formally called on the Commission toadopt its final decision no later than 3 August 1994.

18.

    By letter of 27 June 1994 Mr Ehlermann, who was then Director-General ofDG IV, informed the applicants that 'the date of 3 August 1994 specified foradoption of the final decision was completely unrealistic‘, but that 'adoption of thefinal decision was a priority‘.

19.

    By letter of 9 August 1994 the Commission, replying to a letter from the applicantsof 3 August 1994, informed them that the statement of objections ofDecember 1992 related solely to the initiation of a proceeding prior to adoption ofa decision under Article 15(6) of Regulation No 17. It stated that the final decisionwould be preceded by the adoption of a fresh statement of objections, followingwhich the applicants would have the opportunity to be heard.

20.

    On 21 October 1994 a fresh statement of objections was issued to the applicants,relating to a proceeding pursuant to Article 85 of the Treaty.

21.

    On 21 December 1994 the applicants sent the Commission their reply to thestatement of objections. In that reply they again formally called on the Commissionto act without delay and waived their right to a hearing.

22.

    On 27 November 1995 they brought an action for damages before the Court ofFirst Instance (Case T-213/95). They also applied, by separate document, forinterim measures (Case T-213/95 R). They subsequently discontinued thatapplication and, by order of 24 January 1996, the President removed CaseT-213/95 R from the register. Costs were reserved.

23.

    On 29 November 1995 the Commission adopted Decision 95/551/EC relating to aproceeding pursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 —Stichting Certificatie Kraanverhuurbedrijf and the Federatie van NederlandseKraanverhuurbedrijven) (OJ 1995 L 312, p. 79; 'the contested decision‘). It found

that FNK had infringed Article 85(1) of the Treaty from 15 December 1979 to28 April 1992 by applying a system of recommended and internal rates, which hadenabled its members to predict each other's pricing policy (Article 1). It also foundthat SCK had infringed Article 85(1) of the Treaty from 1 January 1991 to4 November 1993 (with the exception of the period between 17 February 1992 and9 July 1992) by prohibiting its affiliated firms from hiring cranes from firms notaffiliated to SCK (Article 3). In addition, it ordered the applicants to terminatethose infringements forthwith (Articles 2 and 4) and imposed a fine ofECU 11 500 000 on FNK and one of ECU 300 000 on SCK (Article 5).

24.

    By letter of 11 January 1996 the applicants requested access to the file for thepurpose of bringing an action against the contested decision. The Commissionrefused that request by letter of 15 January 1996.

25.

    By application lodged at the Registry of the Court of First Instance on6 February 1996, they brought an action for annulment of the contested decision(Case T-18/96). They also applied, by separate document, for interim measures(Case T-18/96 R).

26.

    On 25 March 1996 the applicants reached an agreement with the Commissionregarding amendment of the prohibition on hiring for the period up to delivery ofthe Court's judgment in Case T-18/96. According to the amended version of thesecond indent of Article 7 of the rules on the certification of crane-hire firms, thefirms certified by SCK may use only 'cranes bearing a valid certification plate, onthe basis of prior certification either by the foundation or by another certificationbody — in the Netherlands or abroad — which is qualified to certify crane-hire firmsand which manifestly applies equivalent criteria, unless it can be established fromwritten documentation (including faxes) that when the client placed the order heattached no importance to whether or not the (third-party) crane-hire firm whoseservices he called upon in that instance was certified‘ (letter from the Commissionto the applicants of 25 March 1996).

27.

    The President of the Court of First Instance dismissed the application for interimmeasures in Case T-18/96 R by order of 4 June 1996 ([1996] ECR II-407). Thecosts of the application for interim measures were reserved. An appeal against thatorder was dismissed by order of the President of the Court of Justice of14 October 1996 ([1996] ECR I-4971).

28.

    By letter of 9 July 1996 sent to the President of the Court of First Instance inconnection with Case T-18/96, the applicants applied to the Court for an order,pursuant to Article 65(b) of the Rules of Procedure or, in the alternative, pursuantto Article 64(3)(d) thereof, for the production of the Commission's file in the SCKand FNK cases, numbered IV/34.179, 34.202 and 34.216, including theCommission's internal documents relating to the exchanges of views which hadtaken place between the Directorate-General for Industry (DG III) and DG IV on

those cases, together with any other files which formed the basis for the contesteddecision.

29.

    By order of 4 October 1996 the President of the Fourth Chamber, ExtendedComposition, granted Van Marwijk and seven other mobile crane-hire firms leaveto intervene in support of the form of order sought by the Commission in CaseT-18/96.

30.

    By order of 12 March 1997 he decided, pursuant to Article 50 of the Rules ofProcedure, to join the two cases for the purposes of the oral procedure.

31.

    Upon hearing the Report of the Judge-Rapporteur, the Court (Fourth Chamber,Extended Composition) decided to open the oral procedure without anypreparatory inquiry. However, it requested the original parties to produce certaindocuments before the hearing.

32.

    The parties presented oral argument and answered questions put to them by theCourt at the hearing on 4 June 1997.

33.

    After hearing the parties in this regard at the hearing, the Court (Fourth Chamber,Extended Composition) considers that the two cases should also be joined for thepurposes of the judgment.

Forms of order sought

34.

    In Case T-213/95 the applicants claim that the Court should:

—    declare the Community liable for the damage which they are suffering andwill continue to suffer as a result of the Commission's unlawful conduct;

—    order the Community to pay compensation for that damage, to determinethe extent thereof in consultation with the applicants and, if an amicablesettlement is not reached in that regard, to determine the amount of thedamage itself, if need be after appointing an expert to quantify it precisely;

—    order the Commission to pay the costs.

35.

    The Commission contends that the Court should:

—    dismiss the action;

—    order the applicants jointly and severally to pay the costs, including the costsof the application for interim measures.

36.

    In Case T-18/96 the applicants claim that the Court should:

—    declare that the contested decision is non-existent, since, in its operativepart, the Commission decides that Article 85(1) applies and fines theapplicants in that connection but does not rule on the applicants' requestfor an exemption under Article 85(3) of the Treaty;

—    in the alternative, declare the contested decision to be unconditionally void;

—    in the further alternative, annul it because it infringes Article 85 of theTreaty, Article 6 of the European Convention for the Protection of HumanRights and Fundamental Freedoms of 4 November 1950 ('the EuropeanConvention on Human Rights‘), general principles of law and the obligationto give reasons (Article 190 of the Treaty);

—    in the further alternative, annul it in part so that no fine is imposed on theapplicants;

—    order the Commission to pay the costs;

—    order the interveners to pay the costs relating to the intervention.

37.

    The Commission contends that the Court should:

—    dismiss the action;

—    order the applicants to pay the costs.

38.

    The interveners contend that the Court should:

—    give judgment for the Commission in the terms sought by it;

—    order the applicants to pay the costs, including those of the interveners.

The action for damages (Case T-213/95)

39.

    It is settled case-law that the Community's liability under the second paragraph ofArticle 215 of the EC Treaty is dependent on the concurrent presence of a numberof conditions as to the unlawfulness of the acts alleged against the Communityinstitution concerned, the fact of damage and the existence of a causal link betweenthe conduct of the institution and the damage complained of (see, for example,Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199,paragraph 19, and Joined Cases T-481/93 and T-484/93 Exporteurs in LevendeVarkens and Others v Commission [1995] ECR II-2941, paragraph 80).

1. The allegedly unlawful conduct of the Commission

40.

    The applicants put forward four pleas in law to establish the existence of unlawfulconduct on the part of the Commission in the proceeding which it initiated inresponse to the complaint submitted on 13 January 1992 and the notifications givenby the applicants on 15 January and 6 February 1992. Those pleas allegerespectively infringement of Article 6 of the European Convention on HumanRights, breach of the principle of legal certainty, breach of the principle of theprotection of legitimate expectations and breach of the audi alteram partem rule.

The first plea: infringement of Article 6 of the European Convention on Human Rights

Summary of the arguments of the parties

41.

    The applicants submit that the Commission is required to comply with theEuropean Convention on Human Rights. They refer, in that regard, to the case-law (Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und VorratsstelleGetreide [1970] ECR 1125, Joined Cases 46/87 and 227/88 Hoechst v Commission[1989] ECR 2859 and Case 374/87 Orkem v Commission [1989] ECR 3283), toArticle F(2) of the Treaty on European Union and to the Joint Declaration by theEuropean Parliament, the Council and the Commission of 5 April 1977 (OJ 1977C 103, p. 1).

42.

    They submit that administrative procedures before the Commission for theapplication of Article 85 of the Treaty are proceedings to which Article 6 of theEuropean Convention on Human Rights applies. Under the case-law of theEuropean Court and the European Commission of Human Rights, that provisionapplies to contentious administrative proceedings (Stenuit v France [1992] 14EHRR 509 and Niemitz v Germany [1993] 16 EHRR 97).

43.

    According to the applicants, the Commission failed to comply with the requirementof a 'reasonable time‘ laid down in Article 6(1) of the European Convention onHuman Rights. The European Court of Human Rights has held that a period of17 months exceeds a reasonable time (judgment of 9 December 1994, Schouten andMeldrum v Netherlands, Series A, No 304). The entire administrative procedurebefore the Commission took more than 45 months. It is clear, therefore, that theCommission's conduct infringed Article 6(1) of the Convention.

44.

    The Commission abused the procedure under Regulation No 17 by drawing up thefirst statement of objections solely in order to adopt a decision based onArticle 15(6) of that regulation. Furthermore, it is impossible to understand whythe Commission needed 22 months from the adoption of the first statement ofobjections to issue the second one, which contained precisely the same basicarguments as the first. The drawing-up of the second statement of objectionsserved no purpose and was intended by the Commission to prolong the procedure.

45.

    The applicants point out that the judgment of the Gerechtshof, Amsterdam, of28 October 1993 took the form of a temporary measure designed to have effectuntil the Commission adopted its decision. Accordingly, the Commission shouldhave come to a final decision quickly. Furthermore, the spirit in which theCommission conducted the procedure was imbued with the conviction that it wassufficient for it to influence the national court and to adopt a decision underArticle 15(6) of Regulation No 17. The Commission never gave the case theslightest priority.

46.

    The applicants did not in any way contribute to the Commission's delays. Theymade constructive proposals in order that a decision might be reached quickly, butthe Commission rejected those proposals. They waived their right to a hearingafter receiving the second statement of objections, in order to expedite theadoption of the final decision. The Commission cannot criticize them for pleadingtheir case before DG III, which has responsibility within the Commission forcertification policy. The intervention of DG III would have been necessary evenif the applicants had not sought it. Nor can they be criticized for the interventionsbefore the Commission by the Permanent Representation of the Netherlands to theEuropean Union and the Raad voor de Certificatie, which took place within aperiod of no more than two weeks (from 13 to 27 October 1993).

47.

    The applicants add that the complexity of the case cannot in any event justify theexceeding of a reasonable time (Schouten and Meldrum v Netherlands, cited above). As regards the delays caused by the absence of the Finnish and Swedishtranslations of the draft decision, they contend that organizational delay cannot berelied on as a justification for the exceeding of a reasonable time (judgment of theEuropean Court of Human Rights of 6 May 1981, Buchholz, Series A, No 42).

48.

    In response to the applicants' submissions, the Commission states that account mustbe taken of all the circumstances of the case when determining whetherproceedings are of unreasonable duration. Not only the Commission's conduct isrelevant, but also that of the applicants, as well as the complexity of the case andall the other particular circumstances. The Commission admits that it did notregard the case as a priority from January to July 1992, in view of the fact that itwas also pending before the Netherlands court and that the infringements hadceased once the Arrondissementsrechtbank, Utrecht, had made its order of11 February 1992 (see, in that regard, Case T-24/90 Automec v Commission [1992]ECR II-2223, paragraphs 77 and 85). It expedited its consideration of the caseafter the Gerechtshof, Amsterdam, had delivered its judgment of 9 July 1992allowing SCK to reinstate the prohibition on hiring (see paragraph 8 above).

49.

    It was apparent from the provisional examination of the case that the conditionsfor application of Article 15(6) of Regulation No 17 were met. Five months afterthe Gerechtshof, Amsterdam, had given its judgment, the applicants received from

the Commission a statement of objections with respect to the application of thatprovision (statement of objections of 16 December 1992, see paragraph 9 above).

50.

    The Commission also points out that when the draft decision under Article 15(6)was ready, DG III asked DG IV for a meeting on the draft decision before it waspresented to the college of Commissioners. The intervention by DG III in theprocedure, which was the principal cause of delay in dealing with the case in thefollowing months, was, however, the direct result of steps taken by the applicants. The decision under Article 15(6) was finally adopted on 13 April 1994.

51.

    Subsequently, on 21 October 1994, the Commission notified the applicants of thestatement of objections with a view to the adoption of a final decision. Thatdecision, adopted on the basis of Articles 3 and 15(2) of Regulation No 17, had adifferent purpose and different legal consequences from a decision adopted on thebasis of Article 15(6). One month after receiving the applicants' reply to thesecond statement of objections, DG IV had already formulated a draft decision. However, following the accession of Finland and Sweden to the European Unionon 1 January 1995, there were serious problems of delay with translations intoFinnish and Swedish. The Commission finally adopted the contested decision on29 November 1995.

52.

    Therefore, the Commission argues, it cannot be accused in this case of havingoffended against the principle requiring action to be taken within a reasonable timein the course of the administrative procedure.

Findings of the Court

53.

    It is settled case-law that fundamental rights form an integral part of the generalprinciples of law whose observance the Community judicature ensures (see, inparticular, Opinion 2/94 [1996] ECR I-1759, paragraph 33, and Case C-299/95Kremzow v Austria [1997] ECR I-2629, paragraph 14). For that purpose, the Courtof Justice and the Court of First Instance draw inspiration from the constitutionaltraditions common to the Member States and from the guidelines supplied byinternational treaties for the protection of human rights on which the MemberStates have collaborated or of which they are signatories. The EuropeanConvention on Human Rights has special significance in that respect (Case 222/84Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651,paragraph 18, and Kremzow, cited above, paragraph 14). Furthermore, as providedin Article F(2) of the Treaty on European Union, 'the Union shall respectfundamental rights, as guaranteed by the [European Convention on Human Rights]and as they result from the constitutional traditions common to the Member States,as general principles of Community law‘.

54.

    The applicants claim that, following the complaint submitted by Van Marwijk andothers on 13 January 1992 and the notifications given by SCK on 15 January 1992

and FNK on 6 February 1992 (see paragraphs 6 and 7 above), the contesteddecision, dated 29 November 1995, was not adopted within a 'reasonable time‘ forthe purposes of Article 6(1) of the European Convention on Human Rights, underwhich '... everyone is entitled to a fair and public hearing within a reasonable timeby an independent and impartial tribunal established by law ...‘.

55.

    When a party applies to the Commission for negative clearance under Article 2 ofRegulation No 17 or gives it notification under Article 4(1) thereof for the purposeof obtaining an exemption, the Commission may not defer defining its positionindefinitely. In the interests of legal certainty and of ensuring adequate judicialprotection, it is required to adopt a decision or, if such a letter has been requested,to send a formal letter within a reasonable time. Similarly, when it receives anapplication under Article 3(1) of Regulation No 17 alleging infringement ofArticle 85 and/or Article 86 of the Treaty, it is required to adopt a definitiveposition on the complaint within a reasonable time (Case C-282/95 P GuérinAutomobiles v Commission [1997] ECR I-1503, paragraph 38).

56.

    It is a general principle of Community law that the Commission must act within areasonable time in adopting decisions following administrative proceedings relatingto competition policy (see, with regard to the rejection of a complaint, GuérinAutomobiles, cited above, paragraph 38, and, with regard to State aids, Case 120/73Lorenz v Germany [1973] ECR 1471, paragraph 4, and Case 223/85 RSV vCommission [1987] ECR 4617, paragraphs 12 to 17). Accordingly, without therebeing any need to rule on the question whether Article 6(1) of the EuropeanConvention on Human Rights is, as such, applicable to administrative proceedingsbefore the Commission relating to competition policy, it is necessary to considerwhether, in this case, in the proceedings preceding the adoption of the contesteddecision, the Commission offended against the general principle of Community lawrequiring it to act within a reasonable time.

57.

    The administrative proceedings in this case lasted, in all, approximately 46 months.However, as the Commission has rightly stated, the question whether the durationof an administrative proceeding is reasonable must be determined in relation to theparticular circumstances of each case and, in particular, its context, the variousprocedural stages followed by the Commission, the conduct of the parties in thecourse of the procedure, the complexity of the case and its importance for thevarious parties involved (see, by analogy, the judgments of the European Court ofHuman Rights of 23 April 1987 in Erkner, Series A, No 117, p. 62, paragraph 66,of 25 June 1987 in Milasi, Series A, No 119, p. 46, paragraph 15, and in Schoutenand Meldrum v Netherlands, cited above, p. 25, paragraph 63).

58.

    As regards, first, the context of the case, FNK's internal rules contained, as from15 December 1979, a clause requiring its members to give priority to othermembers in the hiring out of cranes and to charge reasonable rates (Article 3(a)and (b) of the internal rules). The clause in SCK's rules on the certification of

firms to which the contested decision relates, namely the prohibition on hiring (thesecond indent of Article 7 of the rules on certification), entered into force on 1January 1991. The applicants apparently saw no need to seek the Commission'sopinion on their statutes and rules before Van Marwijk and ten other undertakingssubmitted a complaint to the Commission on 13 January 1992. SCK's statutes andits rules on the certification of crane-hire firms were not notified to the Commissionuntil 15 January 1992 and FNK's statutes and internal rules were not notified until6 February 1992.

59.

    It should next be borne in mind that the period of 46 months from the lodging ofthe complaint and the notifications to the adoption of the contested decision ismade up of various procedural stages. After the Commission had reviewed thecomplaint and the notifications, it issued, on 16 December 1992, a statement ofobjections with a view to the adoption of a decision under Article 15(6) ofRegulation No 17 and it actually adopted such a decision on 13 April 1994. It thensent a new statement of objections on 21 October 1994 with a view to the adoptionof the contested decision, which took place on 29 November 1995.

60.

    Each procedural stage must be examined to see whether its duration wasreasonable.

61.

    The statement of objections of 16 December 1992 constitutes the first, provisional,position adopted by the Commission on the notifications given by the applicants. The duration of that first part of the procedure, approximately 11 months, wasreasonable and may even be regarded as relatively short in the light of all thedocuments in the case. It should be noted that, during that period, the Commissionconsidered in parallel the notifications given by the applicants and the complaintsubmitted by Van Marwijk and others objecting to the very practices notified by theapplicants. Moreover, it was reasonable for the Commission to take the view thatthe case submitted by the applicants did not need to be given priority. Theapplicants themselves did not make clear, in their notifications, the need for theircase to be dealt with urgently, even though paragraph 7.4 of the Annex toForm A/B (annexed to Regulation No 27 of the Commission of 3 May 1962, FirstRegulation implementing Council Regulation No 17 (OJ, English Special Edition1959-62, p. 132), subsequently replaced by Commission Regulation (EC)No 3385/94 of 21 December 1994 on the form, content and other details ofapplications and notifications provided for in Council Regulation No 17 (OJ 1994L 377, p. 28)) asks the notifying parties to specify the degree of urgency. Furthermore, the practices notified, which the Commission considered could notbe exempted under Article 85(3) of the Treaty, had ceased for a period of aboutfive months, between 11 February 1992 and 9 July 1992 (see paragraph 8 above),following an action brought by the complainants before the Netherlands courts.

62.

    The period of approximately 16 months between the statement of objections of16 December 1992 and the adoption, on 13 April 1994, of the decision underArticle 15(6) of Regulation No 17 was also reasonable. Counsel for the applicants

conceded at the hearing before the Court that, in its letter to the Commission of21 October 1993 (to Mr Dubois in DG IV), SCK made clear for the first time theneed for the case to be dealt with rapidly and as a matter of urgency. FNK did nottake such a step before the decision was adopted on 13 April 1994. The letter offormal notice of 3 June 1994 from the applicants' adviser to the Commission is thefirst indication given by FNK of its interest in having the case dealt with rapidly. Furthermore, it is common ground that at the very time when SCK was firstmaking clear to DG IV the need for the procedure to progress rapidly, theapplicants requested DG III to intervene with DG IV with a view to obtaining asuccessful outcome to their application for an exemption (see, in particular, theletter of 5 October 1993 from the applicants' adviser to Mr McMillan, the Head ofUnit III.B.3). While such an approach is perfectly proper, the applicants shouldhave realized that the intervention requested from DG III was going to slow downthe procedure, in particular as DG III does not have to be consulted in aproceeding for exemption under Article 85(3) of the Treaty or in a proceeding forthe finding of an infringement under Article 85(1).

63.

    The next stage in the procedure was the notification to the applicants of thestatement of objections for the adoption of the contested decision. Suchnotification was given on 21 October 1994, six months after the decision underArticle 15(6) of Regulation No 17 had been adopted.

64.

    That period of six months is not unreasonable.

65.

    The applicants claim, however, that the sending of the second statement ofobjections served no purpose and was intended by the Commission to prolong theprocedure. That argument must be rejected. On the one hand, the two statementsof objections had different purposes. The first related to withdrawal of immunityfrom fines, as provided for in Article 15(5) of Regulation No 17, by the adoptionof a decision under Article 15(6), while the second was preparatory to a decisionestablishing infringements and imposing fines under Articles 3(1) and 15(2) ofRegulation No 17. On the other hand, the second statement set out objectionsregarding all the infringements found in the contested decision, that is to say theprohibition on hiring and the recommended and internal rates, while the first wasconfined to analysing the prohibition on hiring in the light of Article 85 of theTreaty. Article 19(1) of Regulation No 17 and Articles 2 and 4 of RegulationNo 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for inArticle 19(1) and (2) of Council Regulation No 17 (Official Journal, English SpecialEdition, 1963-1964, p. 47), which apply the audi alteram partem principle, requirethat undertakings concerned by a proceeding for the establishment of infringementsare afforded the opportunity, in the course of the administrative procedure, ofeffectively making known their views on all the objections dealt with in the decision(Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9,Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Othersv Commission [1992] ECR II-2667, paragraph 39, and Joined Cases T-39/92 and

T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraph 47). TheCommission was thus required to send a second statement of objections to theapplicants not only because the two statements of objections had different purposesbut also because the contested decision deals with an objection not covered by thefirst statement of objections. In other words, if the Commission had not sent thesecond set of objections, the contested decision would have been adopted inmanifest disregard of the applicants' rights of defence.

66.

    Next, the Commission adopted its final decision on 29 November 1995,approximately 11 months after it had received, on 21 December 1994, theapplicants' reply to the second statement of objections. Irrespective of thetranslation problems debated by the parties in their pleadings, the fact that theCommission needed 11 months from receipt of the reply to the statement ofobjections in order to prepare a final decision in all the official Communitylanguages does not amount to a breach of the principle that action must be takenwithin a reasonable time in an administrative procedure relating to competitionpolicy.

67.

    As regards the applicants' argument that the Commission never gave the case theslightest priority and considered that it was sufficient for it to influence the nationalcourt and to adopt a decision under Article 15(6) of Regulation No 17, it shouldbe noted that the Commission is entitled to apply different degrees of priority tothe cases submitted to it (Automec v Commission, cited above, paragraph 77). Furthermore, if it takes the view that the practices notified to it cannot beexempted under Article 85(3), it may, when assessing the degree of priority to begiven to the notification, take into account the fact that a national court has alreadycaused the infringements in question to cease.

68.

    In addition, by way of reply to an argument developed by the applicants at thehearing, as to the permanent adverse effects of a decision under Article 15(6) ofRegulation No 17, it should be pointed out that in Joined Cases 8/66, 9/66, 10/66and 11/66 Cimenteries CBR and Others v Commission [1967] ECR 75, at pp. 92 and93, the Court of Justice held that an action for annulment of such a decision wasadmissible on the basis, inter alia, that 'if the preliminary measure were excludedfrom all review by the Court ... [it] would ... have the effect of saving theCommission from having to give a final decision thanks to the efficacy of a merethreat of a fine‘. In this case, it is not open to the applicants, who failed to bringan action for annulment of the decision of 13 April 1994 adopted underArticle 15(6) of Regulation No 17, to complain of any permanent adverse effectsof that decision.

69.

    In view of all of the above considerations, the Commission did act in accordancewith the principle requiring it to act within a reasonable time in the administrativeprocedure preceding the adoption of the contested decision.

70.

    The first plea must therefore be rejected.

The second plea: breach of the principle of legal certainty

Summary of the arguments of the parties

71.

    The applicants state that for 45 months they were uncertain whether the exemptionapplied for would be granted. They add that the principle of legal certainty mustbe observed even more strictly in the case of rules liable to entail financialconsequences (Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18). A decision under Article 15(6) of Regulation No 17 cannot in any way provide thesame certainty as a final decision (judgment of the Court of Justice in CimenteriesCBR and Others v Commission, cited above). It is, moreover, strange that theCommission states that they could be reassured as to their position following thedecisions of the Netherlands courts, when those decisions were intended solely tolay down interim arrangements pending the final decision by the Commission. Besides, the judgment of the Gerechtshof, Amsterdam, of 28 October 1993 is basedin particular on the letter from Mr Giuffrida of September 1993 (see paragraph 14above) which incorrectly stated that 'the approval of the departments concerned[had] been obtained‘. DG III had not yet adopted a position on the case whenthat statement was made.

72.

    The Commission denies that the applicants suffered from a lack of legal certaintyfor 45 months. It refers to the order of the Arrondissementsrechtbank, Utrecht,of 6 July 1993. In its rejoinder it adds that the statement of objections of16 December 1992 and its letter of 4 June 1993 (see paragraphs 9 and 11 above)gave the applicants a clear signal as to whether an exemption might be granted. It also states that the term 'departments concerned‘ in Mr Giuffrida's letter ofSeptember 1993 encompassed solely the departments of DG IV and theCommission's Legal Service. DG III was involved in the procedure only after ithad expressly made a request to that effect, following an approach by theapplicants. DG III's involvement in the procedure meant that the decision underArticle 15(6) of Regulation No 17 was adopted a few months later than MrGiuffrida could reasonably have anticipated on 22 September 1993.

Findings of the Court

73.

    The plea falls into two parts.

74.

    The first raises the question whether the Commission is required, in accordancewith the principle of legal certainty, to adopt a decision within a reasonable timewhen agreements have been notified to it under Article 2 and/or Article 4(1) ofRegulation No 17. Formulated in this way, it merges with the first plea and mustbe rejected for the same reasons.

75.

    In the second part of the plea, the applicants complain that Mr Giuffrida's letterof September 1993 (see paragraph 14 above) incorrectly stated that 'the approvalof the departments concerned [had] been obtained‘. That complaint is also putforward under the third plea, alleging breach of the principle of the protection oflegitimate expectations. It will be rejected for the reasons given in paragraph 82below.

76.

    Accordingly, the plea that the principle of legal certainty was infringed cannot beupheld.

The third plea: breach of the principle of the protection of legitimate expectations

Summary of the arguments of the parties

77.

    The applicants contend that the Commission made promises which proved to befalse. They refer, first, to the letter from Mr Giuffrida (see paragraph 14 above)which informed them in September 1993 that a decision under Article 15(6) ofRegulation No 17 would be adopted shortly. They then refer to the letter fromMr Ehlermann of 27 June 1994 (see paragraph 18 above) according to whichadoption of the final decision was a priority. Since the judgment of theGerechtshof, Amsterdam, of 28 October 1993 was based on the Commission'spromises to the effect that it was going to adopt its decision in the near future, theapplicants consider that they were justified in believing that the Commission wouldkeep its promises.

78.

    In their reply they also point out, in relation to the letter from Mr Giuffrida, thatDG III is responsible for certification policy and that, according to the Commission,this case is the first time that Article 85 has been applied to a certification system. Accordingly, when the letter was drafted, at least one 'department concerned‘,namely DG III, had not given its approval. In view of the influence that the letterin question had on the judgment of the Gerechtshof, it must be concluded that theCommission, by its incorrect statements, offended against the principle of theprotection of legitimate expectations.

79.

    In response to those arguments, the Commission states that the letter of 22September 1993 did not give a false idea of the situation at that time. It relies inthat regard on the line of argument set out in paragraph 72 above. It alsoconsiders that its letter of 27 June 1994 does not contain any untrue statements.

Findings of the Court

80.

    The concept of legitimate expectations presupposes that the person concernedentertains hopes based on specific assurances given to him by the Communityadministration (judgment in Case T-465/93 Murgia Messapica v Commission [1994]

ECR II-361, paragraph 67, and order of 11 March 1996 in Case T-195/95 GuérinAutomobiles v Commission [1996] ECR II-171, paragraph 20).

81.

    In this case the applicants submit that two letters from the Commission containedpromises which proved to be false.

82.

    The letter from Mr Giuffrida was drafted on 21 or 22 September 1993. It is a replyto a letter from the complainants of 21 September 1993 and the applicants statethat they received a copy of it on 22 September 1993. The letter indicated that adraft decision under Article 15(6) of Regulation No 17 would be submitted to theCollege of Commissioners in the course of the following week and that theCommission envisaged that the applicants would be formally notified of thedecision in the first two weeks of October 1993. While that correspondence mightbe considered to contain specific assurances regarding the impending adoption ofa decision by the Commission, the applicants do not deny that, as soon as theybecame aware of it, they approached DG III for it to intervene with DG IV (see,in particular, the letter of 5 October 1993 from the applicants' adviser to MrMcMillan, the Head of Unit III.B.3, which refers to a discussion between him andthe adviser on 28 September 1993). In such circumstances, the applicants could notexpect the Commission to honour any assurances expressed in its letter receivedby them on 22 September 1993.

83.

    The letter from Mr Ehlermann of 27 June 1994 confirmed that the adoption of afinal decision in this case was a priority for the staff of DG IV. Having regard tothe general nature of such a statement, there can be no question of specificassurances having been given by the Commission which could have given rise toreasonable expectations on the part of the applicants as to the date on which afinal decision in the matter would be adopted. In any event, the truth of MrEhlermann's statement was in the event confirmed by the Commission, since itissued on 21 October 1994 a statement of objections for the adoption of a finaldecision.

84.

    It follows that the third plea must also be rejected.

The fourth plea: breach of the audi alteram partem rule

Summary of the arguments of the parties

85.

    The applicants point out that they requested a hearing on several occasions duringthe procedure which led to adoption of the decision under Article 15(6) ofRegulation No 17. The fact that the Commission did not act on those requestsconstitutes a contravention of the rights of the defence. They consider that, inorder for those rights to be protected, they had to have the opportunity to react,in the course of oral proceedings, with all their procedural safeguards, first, to new

matters which may have emerged during the administrative procedure and,secondly, to the Commission's rejection of any compromise. The interest whichthey had in such a hearing would have justified any procedural delay, at leastduring the period preceding the adoption of the decision under Article 15(6).

86.

    In response to this, the Commission states that it gave the applicants theopportunity to make known their views on the objections which it had expressed. There can therefore be no question of an infringement of the rights of the defence. Since there is no legislation which requires the undertakings or associationsconcerned to be heard orally before the Commission adopts a decision underArticle 15(6) of Regulation No 17 and since there is no specific circumstance in thiscase to suggest that the rights of the defence could in fact be safeguarded only byholding a hearing, the Commission, having consulted the applicants in writing, wasnot in any way required to hear them orally.

Findings of the Court

87.

    According to the applicants, the damage suffered by them resulted from the factthat, when they brought their action, the Commission still had not adopted a finaldecision on their notifications and had thus allowed doubt to subsist for almost fouryears as to whether the statutes and rules notified by them were lawful. The resultof the Commission's conduct was that the Raad voor de Certificatie wasthreatening SCK with withdrawal of its accreditation, hirers of cranes were payingless regard to FNK's general conditions and the applicants' good reputation wasbeing affected.

88.

    It must be held that the Commission's conduct complained of in this plea, namelythat it did not hold a hearing before it adopted a decision under Article 15(6) ofRegulation No 17, could not have caused or aggravated the damage as asserted inthe application.

89.

    This plea therefore does not disclose any link with that damage.

90.

    Moreover, it is concerned solely with the lawfulness of the decision of 13 April 1994adopted under Article 15(6) of Regulation No 17. The purpose of the presentaction is to obtain compensation for harm connected with a failure to adopt a finaldecision within a reasonable time and not with unlawfulness of the decision of13 April 1984 which, in any event, the applicants did not challenge within the time-limit laid down for that purpose.

91.

    The fourth plea must accordingly be rejected.

92.

    It follows therefore that an analysis of the various pleas has not revealed anyunlawful conduct on the part of the Commission sufficient for the Community toincur liability.

93.

    The Court nevertheless considers that it should still examine the question whetherthere is a causal link between the conduct claimed to be unlawful and the damagealleged by the applicants.

2. Causal link

Summary of the arguments of the parties

94.

    The applicants submit that the Commission must be held responsible for thedamage suffered by them. They allege that SCK is threatened with loss of itsaccreditation, because the Raad voor de Certificatie considers the prohibition onhiring to be the only means of satisfying the accreditation criteria, while that veryprohibition was suspended pending the contested decision. As for FNK, itsreputation and its general conditions in particular have been affected by theCommission's conduct. The applicants point out in their reply that theGerechtshof, Amsterdam, acting on the basis of an incorrect statement by theCommission, delivered an interim judgment suspending the prohibition on hiringuntil the Commission had adopted a final decision (see paragraph 14 above). TheCommission's inactivity over an unacceptably long period gave the judgment of theGerechtshof of 28 October 1993 a temporal effect far exceeding that intended bythat court.

95.

    In response to this, the Commission states that there is no direct and necessarycausal link between the steps taken by it and the continuing suspension of theprohibition on hiring. It was not the Commission, but the Netherlands court, which,as an interim measure, suspended the prohibition on hiring. If SCK consideredafter a certain time that the interim measures were no longer justified because thefinal decision by the Commission was taking longer than expected, it could haveapplied to the national court to have the interim measures varied or set aside.

Findings of the Court

96.

    Article 85(1) of the Treaty produces direct effects in relations between individualsand creates rights directly in respect of the individuals concerned which the nationalcourts must safeguard (see, for example, Case C-234/89 Delimitis v Henninger Bräu[1991] ECR I-935, paragraph 45).

97.

    The Gerechtshof, Amsterdam, applied Article 85(1) of the Treaty in its judgmentof 28 October 1993 and prohibited SCK from applying the prohibition on hiring(the second indent of Article 7 of SCK's rules on the certification of crane-hirefirms). While it is true that the Gerechtshof was influenced by the Commission'sposition, that is to say by the letter of Mr Giuffrida of September 1993 (seeparagraph 14 above) announcing the adoption of a decision under Article 15(6) of

Regulation No 17, the fact remains that the position so taken did not bind thenational court. Mr Giuffrida's assessment of the prohibition was merely a factorwhich the Gerechtshof could take into account in examining the question whetherthat practice was in accordance with Article 85 of the Treaty (Joined Cases 253/78,1/79, 2/79 and 3/79 Procureur de la République v Giry and Guerlain [1980] ECR2327, paragraph 13, and Case T-575/93 Koelman v Commission [1996] ECR II-1,paragraph 43). Besides, as will become apparent from the analysis of the actionfor annulment brought against the contested decision, the view taken by theCommission during the administrative procedure and set out in the contesteddecision is based on a correct interpretation of Article 85(1) of the Treaty. Thus,if SCK was threatened with withdrawal of its accreditation, that threat was due tothe fact that SCK had been required to put an end to an infringement ofArticle 85(1). The Commission cannot be held responsible for such 'harm‘.

98.

    As regards FNK, the applicants fail to explain how its reputation and its generalconditions were affected by the Commission's conduct, even though, according tosettled case-law, the burden of proving a causal link between the fault committedby the institution and the injury pleaded falls on the applicants (see, for example,Joined Cases C-363/88 and C-364/88 Finsider and Others v Commission [1992] ECRI-359, paragraph 25, and Case T-168/94 Blackspur and Others v Council andCommission [1995] ECR II-2627, paragraph 40). The only practices of FNK calledinto question during the administrative procedure were the system of recommendedand internal rates and the priority clause which required FNK's members to givepriority to other members when hiring or hiring out cranes (Article 3(a) and (b) ofFNK's internal rules). The applicants stated in the administrative procedure, in thewritten procedure before the Court and at the hearing that FNK voluntarilyabandoned those practices after the Gerechtshof, Amsterdam, had set aside, on9 July 1992, the order of the President of the Arrondissementsrechtbank, Utrecht,that is to say at a time (July 1992) when the Commission had not yet adopted aposition, even provisionally, on FNK's notification or Van Marwijk's complaint. The harm pleaded by FNK cannot therefore have been caused in any way by theCommission's conduct during the administrative procedure.

99.

    Accordingly, the action for damages must be dismissed, without there being anyneed to consider in addition whether the other condition for Community liability,namely that damage has occurred, is satisfied.

The action for a declaration that the contested decision is non-existent or for itsannulment (Case T-18/96)

1. Claim for a declaration that the contested decision is non-existent

Summary of the arguments of the parties

100.

    The applicants put forward a single plea in support of their claim. They submitthat the contested decision is non-existent inasmuch as the Commission failed torule in its operative part on the application for an exemption made underArticle 85(3) of the Treaty. It was essential to rule on that application in theoperative part, since compliance with the Community rules on competition must beascertained in relation to Article 85 as a whole (Joined Cases T-528/93, T-542/93,T-543/93 and T-546/93 Métropole Télévision and Others v Commission [1996] ECRII-649) and only the operative part of an act is capable of producing legal effects(Case T-138/89 NBV and NVB v Commission [1992] ECR II-2181, paragraph 31,and Case T-50/92 Fiorani v Parliament [1993] ECR II-555, paragraph 39). TheCommission's decision of 13 April 1994, adopted on the basis of Article 15(6) ofRegulation No 17, has no relevance in that regard. Such decisions are adoptedafter only preliminary scrutiny and are therefore not equivalent to final decisions. Furthermore, even if they could be regarded as final decisions, the decision in thiscase was concerned only with SCK's prohibition on hiring and did not contain aruling on the practices notified by FNK, so that there was still no decision onwhether Article 85(3) might apply to those practices.

101.

    The Commission states in response that paragraphs 32 to 39 of the contesteddecision clearly show that it considered and rejected the applicants' arguments foran exemption under Article 85(3) of the Treaty. There was no logical reason foradding an article in the operative part expressly rejecting the application for anexemption under Article 85(3), because the finding, in Articles 1 and 3, of theinfringements of Article 85(1) committed by SCK and FNK and the orders inArticles 2 and 4 necessarily meant that the application for an exemption underArticle 85(1) was rejected.

Findings of the Court

102.

    In the operative part of the contested decision the Commission found that FNK'ssystem of recommended and internal rates (Article 1) and SCK's prohibition onhiring (Article 3) infringed Article 85(1) of the Treaty and ordered FNK (Article 2)and SCK (Article 4) to terminate those infringements forthwith. The contesteddecision also imposed fines on the applicants (Article 5).

103.

    Although the operative part does not contain an express ruling on the applicationsfor exemption made by the applicants under Article 85(3) of the Treaty, theCommission verified whether the practices referred to in Articles 1 and 3 of thecontested decision complied with the rules on competition in relation to Article 85as a whole. It is apparent from the carefully formulated grounds for the contesteddecision (paragraphs 32 to 39) that the Commission considered whetherArticle 85(1) of the Treaty could be declared inapplicable to those practices,pursuant to Article 85(3). At the end of its examination, it points out inparagraph 35, in relation to the recommended and internal rates laid down by

FNK, that 'it is ... not possible ... to grant exemption under Article 85(3) of theTreaty‘. Similarly, in paragraph 39 it expressly concludes that 'it is ... not possible... to grant exemption under Article 85(3) of the Treaty‘ as regards SCK'sprohibition on hiring.

104.

    The statement of the reasons for an act is indispensable for determining the exactmeaning of what is stated in the operative part (Joined Cases 97/86, 99/86, 193/86and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, CaseC-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21, and CaseT-26/90 Finsider v Commission [1992] ECR II-1789, paragraph 53). Accordingly,even though the operative part of the contested decision does not contain anexpress ruling on the applications for exemption by SCK and FNK underArticle 85(3) of the Treaty, the findings of infringement and the orders to terminatethose infringements contained in the operative part necessarily mean, in the lightof the grounds for the decision (paragraphs 32 to 39), that the Commission rejectedthe applications in question.

105.

    Finally, the applicants cannot use as an argument the judgments in NBV and NVBv Commission and Fiorani v Parliament. In each of those cases, which were notconcerned at all with the question whether a decision of a Community institutionwas non-existent, the operative part of the decision challenged did not adverselyaffect the applicants. Only some of the grounds for the decisions in question wereconsidered to be unfavourable to the applicants. The actions for annulmentbrought in those cases were held to be inadmissible because they in fact sought theannulment only of the grounds for the decision. In the present case the operativepart of the contested decision adversely affects the applicants because it holds themliable for infringements of Article 85(1) of the Treaty, orders them to terminatethose infringements, imposes fines on them and, implicitly but definitely, rejectstheir applications for exemption.

106.

    It follows that the plea cannot be upheld.

107.

    As a result, the claim for a declaration that the contested decision is non-existentmust be rejected.

2. Claim for annulment of the contested decision

108.

    The applicants put forward five pleas for the annulment of the contested decision,based on the infringement of, respectively, Articles 3, 4, 6 and 9 of RegulationNo 17, Article 85(1) of the Treaty, Article 85(3) of the Treaty, the rights of thedefence and Article 190 of the Treaty.

The first plea: infringement of Articles 3, 4, 6 and 9 of Regulation No 17

Summary of the arguments of the parties

109.

    The applicants, referring to their arguments on the non-existence of the decision,put forward a submission, albeit somewhat laconic, to the effect that theCommission's failure to rule on the applications for exemption under Article 85(3)of the Treaty infringes Articles 3, 4, 6 and 9 of Regulation No 17 and that theCommission also committed a serious procedural error, with the result that thedecision does not fulfil the requisite procedural conditions and must therefore beannulled.

110.

    The Commission refers to the argument which it expounded in relation to the claimfor a declaration that the contested decision is non-existent.

Findings of the Court

111.

    This plea is based on the same arguments as those relied on in connection with theplea put forward in support of the claim for a declaration that the contesteddecision is non-existent.

112.

    In the contested decision the Commission ruled unequivocally on the applicationsfor exemption under Article 85(3) of the Treaty (see paragraphs 103 and 104above).

113.

    The first plea must therefore be rejected.

The second plea: infringement of Article 85(1) of the Treaty

114.

    In the light of the Report for the Hearing and following the oral procedure, it isappropriate to divide this plea into four parts.

115.

    The first part of the plea alleges that SCK was mistakenly classified as anundertaking within the meaning of Article 85(1) of the Treaty. The second part isitself subdivided into two sections. In the first section it is alleged that theCommission erred in law with regard to the reference to the criteria oftransparency, openness, independence and acceptance of equivalent guaranteesoffered by other systems in assessing whether a certification system is compatiblewith Article 85(1) of the Treaty. In the second section the allegation is to theeffect that the Commission erred in its assessment when it found that theprohibition on hiring had as its object or effect the restriction of competition withinthe meaning of Article 85(1) of the Treaty. In the third part of the plea it isalleged that the Commission committed an error of assessment in finding that thesystem of recommended and internal rates had as its object or effect the restrictionof competition within the meaning of Article 85(1) of the Treaty. Finally, in the

fourth part of the plea it is alleged that it erred in its assessment of the effect ontrade between Member States.

The first part of the plea, to the effect that SCK was mistakenly classified as anundertaking within the meaning of Article 85(1) of the Treaty

— Summary of the arguments of the parties

116.

    The applicants submit that SCK is not an undertaking within the meaning ofArticle 85(1) of the Treaty because a certification body which devotes itself solelyand exclusively to the neutral and objective supervision of undertakings in aparticular sector is not engaged in an economic activity (see the judgments in CaseC-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979 and in Joined CasesC-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, and the Opinion ofAdvocate General Slynn in Case 123/83 BNIC v Clair [1985] ECR 391. Nor is SCKan association of undertakings within the meaning of the same provision.

117.

    In response to that submission the Commission states that, in order for a body tobe able to be regarded as an undertaking within the meaning of Article 85(1) of theTreaty, it is sufficient that, whatever its legal status may be, it is engaged in anactivity of an economic nature which may in principle be engaged in by a privateundertaking and with a view to profit. In this case the issue of a certificate inreturn for payment amounts to such an activity. SCK must therefore be regardedas an undertaking within the meaning of Article 85(1).

— Findings of the Court

118.

    In the contested decision the Commission classified SCK as an undertaking withinthe meaning of Article 85(1) of the Treaty (second subparagraph of paragraph 17).

119.

    It is necessary to consider whether the Commission committed an error ofassessment or was wrong in law in so classifying SCK.

120.

    In the context of competition law 'the concept of an undertaking encompassesevery entity engaged in an economic activity, regardless of the legal status of theentity and the way in which it is financed‘ (Höfner and Elser, cited above,paragraph 21).

121.

    SCK is a body governed by private law which set up a certification system forcrane-hire firms to which affiliation is optional. It establishes independently thecriteria which the certified firms must satisfy. It issues a certificate only onpayment of a subscription.

122.

    Those features demonstrate that SCK is engaged in an economic activity. It musttherefore be regarded as an undertaking within the meaning of Article 85(1) of theTreaty.

123.

    Since the Commission correctly classified SCK as an undertaking, the applicants'argument that SCK is not an association of undertakings has no relevance.

124.

    It follows from the above that the first part of the second plea must be rejected.

The second part of the plea, alleging that the Commission, first, erred in law withregard to the reference to the criteria of transparency, openness, independence andacceptance of equivalent guarantees offered by other systems in assessing whethera certification system is compatible with Article 85(1) of the Treaty and, secondly,erred in its assessment when it found that the prohibition on hiring had as its objector effect the restriction of competition within the meaning of Article 85(1)

— Summary of the arguments of the parties

125.

    The applicants point out that the Commission considered in the contested decisionthat if a prohibition on hiring 'is associated with a certification system which iscompletely open, independent and transparent and provides for the acceptance ofequivalent guarantees from other systems, it may be argued that it has no restrictiveeffects on competition but is simply aimed at fully guaranteeing the quality of thecertified goods or services‘ (first subparagraph of paragraph 23). The Commissioninfringed Article 85(1) of the Treaty by establishing, on its own initiative, generalcriteria for determining whether that provision applies to certification systems,when those criteria are not set out therein.

126.

    Furthermore, the prohibition on hiring under SCK's certification system does nothave as its object or effect the restriction of competition. In order to determinewhether such clauses come within the prohibition laid down in Article 85(1), it isnecessary to examine what the state of competition would be if those clauses didnot exist (Case 42/84 Remia and Others v Commission [1985] ECR 2545,paragraph 18). SCK's certification system intensifies competition. It contributesto transparency of the market by enabling the quality and safety provided by thevarious persons offering the product to be assessed on the basis of an objective andimpartial standard. The prohibition on hiring cranes from uncertified firms isessential because such a prohibition is the only way of ensuring that each contractplaced with a certified firm is carried out by a firm which meets the same safetyand quality requirements. In that sense, the prohibition on hiring providesprotection identical to that offered by a trademark, which the Court of Justice hasheld to be compatible with Community competition law (Case C-10/89 CNL-SUCAL v HAG GF [1990] ECR I-3711, paragraph 13). The prohibition on hiringis also essential because it constitutes the only means of complying with the

requirement in Paragraph 2.5 of the accreditation criteria of the Raad voor deCertificatie (see paragraph 5 above), under which the certificate-awarding body isrequired to verify that, where a job is carried out by a subcontractor, the qualityrequirements are met. As for the Commission's suggestion that certified firmsshould be allowed to demonstrate, by pre-prepared lists, that uncertified firms uponwhose services they call nevertheless meet the requisite quality requirements, theapplicants consider that such an ad hoc system of checking would be the directopposite of a certification system based on systematic checking. Finally, theprohibition on hiring must also be upheld where the client expressly authorizescranes to be hired from an uncertified firm. The credibility of the certificationsystem is founded on the fact that all the products and services offered by certifiedfirms fulfil the requisite conditions.

127.

    The applicants submit that the system at issue complies in any event with all thecriteria laid down by the Commission. First, it is completely open, accepting notonly FNK members but also any other firm which wishes to be admitted to it. SCKhas thus issued certificates to 12 firms which were not FNK members. Theconditions for obtaining a certificate are objective and non-discriminatory. In thatregard, the reduced subscriptions paid by FNK members until 1 January 1992 weremerely to compensate for secretarial services rendered by FNK to SCK. Thesystem was also open to firms from other Member States, as confirmed by a reportby the Raad voor de Certificatie of 11 January 1993 and a letter of 11 March 1994from the Association of Belgian Crane-Hire Firms. SCK has always accepted thatregistration abroad satisfies the condition requiring firms which wish to obtain acertificate from SCK to be registered with the Chamber of Commerce. Accordingly, difficulties encountered by foreign firms in entering the Netherlandsmarket are due solely to differences in the countries' legislation.

128.

    The applicants add that, even though no reference is made thereto in SCK's rules,SCK recognizes other certification systems as equivalent, so long as they providefor guarantees analogous to those of the system at issue. SCK's certification systemgenuinely gives added value compared with the statutory scheme, both substantivelyand in its operation. Substantively, it imposes requirements relating to bothtechnical matters and the management of the firm which go beyond the statutoryrequirements. SCK pursues a much more active monitoring policy than Keboma. That complementary function of a certification system is explained by a deliberatepolicy in the Netherlands of entrusting to the businesses active in the sector themonitoring of statutory requirements as much as possible. The added value ofSCK's certification system was acknowledged by DG III in a memorandum of18 August 1994 to DG IV. Accordingly, SCK cannot permit the hiring of craneswhich meet only the statutory requirements without that affecting the coherence ofits certification system. The fact that there are as yet no other private bodies whichhave set up a certification system comparable to SCK's in no way signifies that SCKis unwilling to recognize a comparable system were it to exist. Besides, theCommission's argument would make it impossible to set up a certification system

in a sector where none yet exists, because the first system established would nothave the possibility of recognizing other, comparable, systems.

129.

    In response to the applicants' arguments, the Commission states that, inparagraphs 23 to 30 of the contested decision, it carried out a detailed analysis ofthe prohibition on hiring in its legal and economic context, in order to determinewhether such a prohibition is compatible with Article 85(1) of the Treaty (see Case56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235).

130.

    It maintains that the prohibition on hiring is not essential in order to maintain thecoherence of the certification system in question. To underline thedisproportionate nature of the prohibition, it points out that the prohibitionexcludes the possibility of using cranes certified by other bodies and does not allowthe head contractor to demonstrate, even by a pre-prepared list, that his uncertifiedsubcontractor meets all of SCK's requirements. Furthermore, the prohibitionprevents the head contractor from using an uncertified subcontractor where theclient has expressly waived the quality guarantees associated with a certificate fromSCK and has authorized the use of uncertified cranes.

131.

    SCK's certification system does not comply with the criteria set out in the firstsubparagraph of paragraph 23 of the contested decision. First, from the beginningand, at any rate in part, until 21 October 1993, it had the features of a closedsystem (paragraph 24 of the contested decision). Secondly, contrary to theapplicants' contention, it did not allow other guarantee systems to be recognized. The amendment proposed by the applicants to the original version of the secondindent of Article 7 of the rules on certification, for the recognition of certificationby other bodies governed by private law (letter dated 12 July 1993 from theapplicants' adviser to the Commission, marked for the attention of Mr Dubois), hasno practical effect because, first, such bodies do not exist either in the Netherlandsor in the neighbouring countries and, secondly, guarantees other than privatecertificates are not recognized. In particular, the Keboma mark and similar officialcertificates from the Belgian or German authorities remain unrecognized.

— Findings of the Court

132.

    Under the second indent of Article 7 of SCK's rules on the certification of crane-hire firms, firms certified by it are prohibited from hiring cranes from uncertifiedfirms.

133.

    As regards the first section of this part of the plea, namely that the Commissionerred in law with regard to the reference to the criteria of transparency, openness,independence and acceptance of equivalent guarantees offered by other systems inassessing whether a certification system is compatible with Article 85(1) of theTreaty, it should be noted that, in the contested decision (paragraph 23), the

Commission took the view that the anti-competitive nature of the prohibition onhiring could be assessed only by reference to the nature of the certification systemwith which that prohibition was associated. For that purpose, it laid down fourcriteria — namely openness, independence, transparency and acceptance ofequivalent guarantees offered by other systems — which the certification system hadto comply with in order for it to be possible for the prohibition on hiring to falloutside Article 85(1).

134.

    It is settled case-law that the assessment as to whether conduct is in accordancewith Article 85(1) of the Treaty is to be carried out in the legal and economiccontext of the case (see, for example, Société Technique Minière v MaschinenbauUlm, cited above, and Case T-77/94 Vereniging van Groothandelaren inBloemkwekerijprodukten and Others v Commission [1997] ECR II-0000,paragraph 140). Since the Commission was thus entitled to establish criteria givingeffect to the requirements of Article 85(1) in a specific legal and economic context,it is necessary to examine whether the criteria to which it refers in the firstsubparagraph of paragraph 23 of the contested decision are pertinent.

135.

    However, in view of the fact that the Commission relies solely on the lack ofopenness in SCK's certification system and on the failure to accept equivalentguarantees offered by other systems in finding that, in this case, the prohibition onhiring distorts competition (second subparagraph of paragraph 23 of the contesteddecision and Article 3 of the operative part), it is sufficient to determine whetherthose two criteria are pertinent.

136.

    There is no doubt that the criterion of openness of the certification system ispertinent to the assessment of the prohibition on hiring from the point of view ofArticle 85(1) of the Treaty. The prohibition on hiring cranes from uncertified firmsaffects significantly the competitive opportunities of those firms if it is difficult togain access to the certification system.

137.

    The second criterion, relating to the acceptance of equivalent guarantees offeredby other systems, is also pertinent. The prohibition on hiring preventing certifiedfirms from calling on the services of uncertified firms even if they provideguarantees equivalent to those of the certification system cannot be objectivelyjustified by an interest in maintaining the quality of the products and servicesensured by the certification system. On the contrary, the failure to acceptequivalent guarantees offered by other systems protects certified firms fromcompetition from uncertified firms.

138.

    The first section of the second part of the plea, alleging that the Commission erredin law, must therefore be rejected.

139.

    As regards the second section of that part of the plea, in which the applicantscontend that the Commission committed an error of assessment in holding thatSCK's prohibition on hiring restricts competition for the purposes of Article 85(1)

of the Treaty, it should be noted that when the setting up of SCK was discussed ata meeting of the Noord Holland Region of FNK on 27 September 1983, thosetaking part did not have in mind at all an intensification in competition betweenthem but rather an increase in market prices. The minutes of that meeting(produced by the applicants by letter of 10 April 1997) thus recorded one of theparticipants as saying: 'Such a [certification] institute is a very healthy thing. Itshould have an effect on prices if the proposal is implemented well.‘ Anotherparticipant at the same meeting considered that the certification proposal was a'good idea‘. He added that 'in a business, the turnover achieved is moreimportant than the rate of use of the machines‘. A crane-hire firm which does notincrease the rate of use of its machines will achieve an increase in turnover only byincreasing its charges.

140.

    Furthermore, the second section of the second part of the plea operates on adifferent plane from that on which the Commission assessed the prohibition onhiring in the contested decision. The Commission based its finding that competitionwas restricted on the fact that that prohibition applied within a certification systemwhich was not completely open and did not accept equivalent guarantees offeredby other systems (second subparagraph of paragraph 23 of the contested decision).

141.

    The prohibition on hiring laid down by the second indent of Article 7 of SCK'srules on the certification of crane-hire firms not only restricts the freedom of actionof certified firms but also, and above all, affects the competitive opportunities ofuncertified firms. Having regard to the economic power of SCK, which itself statesthat it accounts for approximately 37% of the Netherlands mobile crane-hiremarket, there can be no doubt that competition is restricted appreciably for thepurposes of Article 85(1) of the Treaty if, as the Commission states, the prohibitionon hiring operates within a certification system which is not completely open anddoes not accept equivalent guarantees offered by other systems (see paragraphs 143to 151 below). In such a case, the prohibition on hiring in fact reinforces the closednature of the certification system (first subparagraph of paragraph 26 of thecontested decision) and considerably impedes access by third parties to theNetherlands market (second subparagraph of paragraph 26).

142.

    At this stage, it is necessary to consider whether the factual premisses — namely thelack of complete openness in SCK's certification system and the failure to acceptequivalent guarantees offered by other systems — upon which the Commissionbased its assessment are correct.

143.

    The Commission's finding that SCK's certification system was not open during theperiod at issue (from 1 January 1991, when the prohibition on hiring wasintroduced, until 4 November 1993, when the decision was made to suspend it, withthe exception of the period from 17 February to 19 July 1992) is based on thefollowing factors: it was more difficult for firms not affiliated to FNK than for firmsaffiliated to it to be admitted to the certification system because the costs of

participation were higher for the former than for the latter; the requirementsimposed by the certification system were drawn up on the basis of the position inthe Netherlands, thereby hindering access by foreign firms. Thus, until 1 May 1993,it was necessary under SCK's certification system to register with the Chamber ofCommerce and, until 21 October 1993, FNK's general conditions had to be applied(paragraph 24 of the contested decision).

144.

    The factors put forward by the applicants to demonstrate that SCK's certificationsystem was open do not constitute persuasive proof.

145.

    First, the Commission stated in the contested decision that from 'September 1987to 1 January 1992 participation in the SCK certification arrangements was roughlythree times cheaper for FNK members than for non-members‘ (paragraph 9). Thefact that FNK members enjoyed a substantial reduction (of approximately 66%) intheir subscriptions to SCK until 1 January 1992 has not been disputed by theapplicants either during the administrative procedure or in the proceedings beforethe Court. Even if, as they claim, that reduction was to compensate for secretarialservices rendered by FNK to SCK, the effect of such a practice was none the lessto make it more difficult for foreign firms than for Netherlands firms to beadmitted to SCK's certification system, since almost all (more than 90%) of thefirms certified by SCK were FNK members and only crane-hire firms establishedin the Netherlands could be admitted as FNK members (Article 4(a) of FNK'sstatutes). That 'barring‘ effect was also reinforced by the fact that if firmsestablished in other Member States had nevertheless decided in favour ofcertification by SCK, they would, until 21 October 1993, have had to apply thegeneral conditions of a body barred to them, namely FNK, and in the drafting ofwhich they had been unable to participate. The closed or, at least, not entirelyopen nature of SCK's certification system as regards firms from other countries alsofollows from the undisputed fact that its requirements were established on the basisof the position in the Netherlands and, in particular, of Netherlands law.

146.

    As to the applicants' contention that it was still possible for a firm registeredabroad to obtain a certificate from SCK, it is stated in the report of the Raad voorde Certificatie of 11 January 1993 (p. 5) that there is no barrier preventing foreignfirms from being party to SCK's certification system. In order to reach thatconclusion, reference is made in the report to an amendment of SCK's statuteswhich came into force on 1 January 1992 and reformulated the object of thefoundation to the effect that it promoted and maintained the quality of crane-hirefirms generally and no longer just in the Netherlands. However, although SCK'sstatutes no longer exclude the possibility that firms not established in theNetherlands might obtain certification from SCK, it does not automatically followthat its certification system is a completely open system for firms established inanother Member State. In this case, the fact that the certification system is notcompletely open can be attributed to other factors, identified in paragraph 145above.

147.

    The letter of 11 March 1994 from the President of the Association of BelgianCrane-Hire Firms states that the most significant obstacle to inter-State trade in themobile crane-hire sector results from differences in the legislative provisions of thevarious Member States and that Belgian firms therefore do not feel, in relation tothe carrying out of works within the Community, that they are obstructed by SCK'saction. In that regard, SCK itself stated in its notification that the requirementsimposed by the certification system correspond roughly to the obligations on crane-hire firms imposed by Netherlands law, so that certification constitutes a bettersafeguard that those legal requirements are actually complied with (paragraphs 26,27 and 28 of SCK's notification). By reproducing a number of requirements ofNetherlands law in its certification system, SCK has thus consolidated andreinforced the barriers to intra-Community trade resulting from any differencesbetween national laws. When, pursuant to a Community directive, mutualrecognition of the various national systems is achieved in a sector, the effect of aprivate certification body's requirement of compliance with Netherlands law in thesame sector is to preserve or re-establish the barriers to intra-Community tradewhich the Community legislature intended to abolish. It is common ground thatSCK carries out certain checks which Keboma performed previously but gave upafter Directive 89/392 had been implemented (see paragraph 3 above). Theapplicants in fact acknowledged in paragraph 114 of their reply that: 'Theintroduction of the EC mark for hoisting cranes further reduced Keboma's statutoryfunction. Hoisting cranes with an EC mark and a declaration of conformity aremoreover not subject to inspection by Keboma before they are brought into servicefor the first time. That means that SCK's functions have grown. Under SCK'scertification scheme, new hoisting cranes are well and truly checked to ensure thatthey comply with the applicable legislative provisions.‘ They cannot, therefore,claim that any obstacle which foreign crane-hire firms may encounter in enteringthe Netherlands market arises exclusively from differences in legislative provisionsas between the various Member States and not from SCK's certification system.

148.

    As to the question whether SCK's certification system allowed equivalentguarantees offered by other systems to be accepted, it should be noted that SCKproposed, in a letter of 12 July 1993 to Mr Dubois of DG IV, an amendment tothat system under which it would recognize other certification systems fulfilling theconditions established on the basis of the European standards EN 45 011 andoffering guarantees equivalent to those under its own system. It is thus clear fromthat proposed amendment that, in its original version, SCK's certification systemdid not provide for the recognition of such equivalent systems. Furthermore, evenif, as the applicants allege, the amendment was merely a clarification of the originalversion of the second indent of Article 7 of the rules on certification, SCK's systemmakes no provision at all for the recognition of rules of public authorities whichprovide guarantees equivalent to those offered by SCK.

149.

    It follows from the foregoing considerations that the Commission did not commitan error of appraisal in finding, in paragraph 23 of the contested decision, that

SCK's certification system was not completely open (or at the very least that it wasnot until 21 October 1993) and did not allow equivalent guarantees offered byother systems to be accepted. Accordingly, the prohibition on hiring whichreinforced the non-open nature of the certification system and had the effect ofraising a substantial obstacle to access by third parties to the Netherlands market,and in particular firms established in another Member State (see paragraphs 145to 148 above), in fact constitutes a restriction of competition within the meaningof Article 85(1) of the Treaty. That conclusion would be no different if theapplicants could show that the clause is necessary in order to preserve thecoherence of SCK's certification system. The fact that the system is not open andequivalent guarantees offered by other systems are not accepted means that thesystem itself is incompatible with Article 85(1) even if it were proved, as theapplicants claim, that it gave added value compared with the Netherlandslegislation. A specific clause in such a system, such as the clause prohibiting hiringsfrom uncertified firms, does not become compatible with Article 85(1) because itis needed to preserve the coherence of that system, since the latter is by definitionincompatible with Article 85(1).

150.

    It follows that the second part of this plea must be rejected.

151.

    At the hearing the interveners urged the Court to rule in addition on the lawfulnessof the amendment to the second indent of Article 7 of the rules on certificationagreed upon by the principal parties for the period until delivery of this judgment(see paragraph 26 above). However, in the context of an action for annulmentunder Article 173 of the Treaty, the Community judicature confines itself toreviewing the legality of the contested act. In this case, the contested decisionnecessarily contains no appraisal of the new version of the clause containing theprohibition on hiring, since the rules on certification were amended after the dateof the decision. The request made by the interveners at the hearing thus exceedsthe jurisdiction conferred by the Treaty on the Court in actions for annulment andmust accordingly be rejected as inadmissible.

The third part of the plea, alleging that the Commission committed an error ofassessment in finding that the system of recommended and internal rates had as itsobject or effect the restriction of competition within the meaning of Article 85(1)of the Treaty

— Summary of the arguments of the parties

152.

    The applicants contend that the publication of recommended rates and theformulation of internal rates do not amount, either, to restrictions of competitionwithin the meaning of Article 85(1) of the Treaty, because those rates wereintended to serve only as an aid to specific negotiations and had no binding forceat all. The position on the market would therefore have been identical if therecommended rates and the cost estimates had not been published. Every business

active on the market was and would have remained free to determine itscommercial policy independently (Case 172/80 Züchner v Bayerische Vereinsbank[1981] ECR 2021, paragraph 13). The applicants state that the market rates weresubstantially lower than the recommended rates published by FNK and differeddepending on the firm, the client and the order.

153.

    Article 3(b) of FNK's internal rules, which imposes the obligation to chargereasonable rates at the risk of having membership withdrawn on the basis ofArticle 10 of the statutes, does not in any way imply that FNK's members wererequired to charge the recommended rates. Besides, no individual check has beencarried out during all the years of FNK's existence to establish whether reasonablerates were being applied and membership has never been revoked for such areason. The two judgments cited by the Commission in paragraph 20 of thecontested decision are not relevant. The judgment in Case 8/72 Vereniging vanCementhandelaren v Commission [1972] ECR 977 was concerned with theapplication of 'recommended‘ rates under a mandatory system, non-existent in thiscase, which imposed stringent sanctions in the event of non-compliance and thusenabled all the participants to predict with a reasonable degree of certainty whatthe pricing policy pursued by their competitors would be. The judgment inCase 45/85 Verband der Sachversicherer v Commission [1987] ECR 405 related toa situation where the agreement at issue had the object of influencing competition,whereas in this case the publication of recommended rates and cost estimates hada completely different object.

154.

    As regards the internal rates, the applicants do not deny that FNK performedincidental secretarial functions in connection with consultation on those prices. They consider, however, that FNK's involvement in the formulation of the internalrates was so marginal that it cannot assume responsibility for this. In so far as theformulation of the internal rates may be attributed to it, FNK did not in any eventhave any influence on the conditions of competition in the market. The market,characterized by the phenomenon of overnight contracting, in fact evolved withoutany prompting towards a situation in which parties who have regular commercialdealings entailing the provision of identical and reciprocal services establish pricesin advance, to which they refer whenever they provide a service. The Commissionalso failed to show that the internal rates were binding.

155.

    The Commission states in response that it is apparent from the relevant provisionsof FNK's internal rules and statutes that the recommended and internal rates arebinding as a result of the obligation on FNK members to charge reasonable rates,breach of which may be punished by loss of membership (Article 10(1)(d) of thestatutes). Also, the phenomenon of overnight contracting makes it probable thatthose recommended rates served in fact as reference prices.

— Findings of the Court

156.

    It is necessary to determine first whether the Commission committed an error ofassessment in finding that the system of recommended and internal rates restrictscompetition for the purposes of Article 85(1) of the Treaty ((a) below). It will thenbe necessary to determine whether FNK can be held responsible for theinfringement alleged ((b) below).

(a) The system of recommended and internal rates

157.

    In the contested decision (paragraphs 20 and 21), the Commission effectively takesthe view that the firms affiliated to FNK were required to adhere to the ratesproposed by it. It considers that even if those rates were target prices, they stillrestricted competition because they made it possible to predict with a reasonabledegree of certainty what the pricing policy of competitors would be.

158.

    Article 85(1)(a) of the Treaty expressly states that agreements, decisions andconcerted practices which 'directly or indirectly fix purchase or selling prices or anyother trading conditions‘ are incompatible with the common market.

159.

    During the period at issue, FNK's members were required, under Article 3(b) ofits internal rules, to charge 'reasonable‘ prices and Article 10(1)(d) of the statutesprovides that members may be expelled if they infringe the internal rules. FNK hasconfirmed that the published recommended rates (applicable to dealings withclients) gave substance to the concept of reasonable rates in Article 3(b) of itsinternal rules (paragraph 17 of FNK's notification). It must be accepted that thesame applies to the internal rates (applicable to hirings between FNK members)determined within FNK, normally on a regional basis (see paragraph 167 below). It is difficult to imagine that FNK would have agreed to cooperate in the fixing ofinternal rates which were not reasonable rates within the meaning of Article 3(b)of the internal rules. Having regard to the fact that the recommended and internalrates give substance to the concept of reasonable rates which FNK members arerequired to charge under Article 3(b) of FNK's internal rules, the system ofrecommended and internal prices therefore was in fact a pricing system binding itsmembers.

160.

    That finding is also borne out by the fact that, as the applicants themselvesconcede, FNK's system of rates was set up to remedy instability in the marketwhich had resulted in a large number of insolvencies. In addition, various sets ofminutes of meetings held by FNK's regions, submitted to the Court in response tothe measure of organization of procedure ordered by it (see paragraph 31 above),stress the binding nature of FNK's recommended and internal rates. Thus, one ofthe participants at the meeting of the Noord Holland Region of 17 February 1981stated 'that FNK membership has the disadvantage that you are obliged to chargean agreed rate‘ (point 4 of the minutes). It is likewise apparent from the minutesof the meeting of the Noord Holland Region of 22 February 1982 (point 6) thatfailure to adhere to the recommended rates would be treated as a breach of FNK's

internal rules. One of the participants at that meeting added that 'provision shouldbe made for penalizing such breaches of the rules by the imposition of a fine‘ (see,to the same effect, the minutes of the meeting of the Oost Nederland Region of16 April 1986, point 3).

161.

    Although there is no actual known case of a penalty having been imposed on amember for failure to comply with the understanding on prices, adherence to therates was nevertheless monitored. It is clear from the minutes of meetings ofFNK's regions that FNK members were brought into line. For example, theminutes of the meeting of the West Brabant/Zeeland Region of 8 December 1980(point 6) report the following exchange after Mr Van Haarlem had failed to adhereto the agreed rates: 'The region disapproves of Mr Van Haarlem's action and MrVan Haarlem acknowledges that it would have been preferable if it had notoccurred‘ (see also the minutes of the meeting of the West Brabant/ZeelandRegion of 21 February 1980, point 7).

162.

    Moreover, the very reason for which FNK gave its support to the formulation ofinternal rates (see paragraphs 165 to 170 below) was to ensure that its membersadhered to its recommended rates. A crane-hire firm which reduces pricessignificantly will attract strong demand from clients and will be obliged to hire extracranes from its competitors. The interest in setting internal rates thus followedfrom the fact that a crane-hire firm will necessarily take those rates into accountwhen it sets its price with a client, in order to avoid any loss on extra cranes whichit may hire (see, for example, the minutes of the meeting of the Noord HollandRegion of 22 February 1982, point 6: 'It is good to have mutually agreed internalrates, because those rates will all the same have some effect on the rates chargedto clients. If you in fact know that a crane can be hired from a fellow crane-hirefirm only at a specified rate, you are doubly careful in offering clients pricessubstantially lower than those internal rates‘ (see, to the same effect, the minutesof the meeting of the West Brabant/Zeeland Region of 5 October 1987, point 4;the minutes of the meeting of the Oost Nederland Region of 10 October 1989,point 6; the minutes of the meeting of the Midden Nederland Region of 21February 1990, point 4; the minutes of the meeting of FNK members using trackedcranes, of 24 August 1989, point 2). Thus, to repeat the words used by Mr DeBlank, FNK's director, the internal rates had an 'educational function‘ (minutesof the meeting of the West Brabant/Zeeland Region of 30 May 1988, point 3).

163.

    Furthermore, according to the documents in the case, FNK's system of rates hadthe object of increasing market rates. FNK itself stated in its notification that itsrecommended rates were higher than the market price (paragraph 18 of thenotification). The setting of internal rates on the basis of the recommended priceshad an effect in itself, namely an increase in the prices charged in dealings withclients (minutes of the meeting of the Zuid-Holland Region of 9 October 1990,point 7: the internal rates have an 'upward force in relation to market prices‘;minutes of the meeting of the Noord Holland Region of 11 February 1987, point 5:

'Mr De Blank observes that the Noord Region has seen intense cooperation onrates. Initially in groups and then jointly with the three province-regions. That hascertainly borne fruit‘; minutes of the meeting of the Midden Nederland Region of28 February 1991, point 4; minutes of the meeting of FNK members using trackedcranes, of 12 November 1991, point 3: 'There is the impression that the marketrates also are increasing because of the agreements on internal rates‘.

164.

    It follows from the above that the system of recommended and internal rates wasa system of imposed prices which enabled FNK's members, even if some of themdid not always adhere to the prices set, to predict with a reasonable degree ofcertainty the pricing policy pursued by the other members of the association. Inaddition, it has been established that it had the object of increasing market prices. The Commission was therefore right in finding that that system restrictedcompetition for the purposes of Article 85(1) of the Treaty (Vereniging vanCementhandelaren v Commission, paragraphs 19 and 21, and Verband derSachversicherer v Commission, paragraph 41).

(b) FNK's responsibility in the setting of internal rates

165.

    The applicants take the view that FNK cannot be held responsible for theformulation of the internal rates. Its role in setting them never went beyondancillary secretarial duties. They were formulated at a local or regional level.

166.

    In that regard, it should be noted that, for certain categories of cranes, namelycranes of more than 150 tonnes and tracked cranes, internal rates were set atnational level. It is clear from the minutes submitted to the Court that the internalrates were set in meetings at which all the FNK members which used such craneswere represented (see the minutes of the meeting of firms using tracked cranes, of15 February 1979, point 4). The meetings were generally held at FNK'sheadquarters, in the presence of its director Mr De Blank, and the minutes weredrafted on FNK headed paper.

167.

    The setting of internal rates at national level was the exception rather than therule. However, FNK's management clearly would have wished internal rates forother cranes to be set at national level as well (see the minutes of the meeting ofthe Noord Holland Region of 4 September 1989, point 5: 'What the managementwould like best is for a single internal rate for the whole country to be achieved‘). For practical reasons, however, national internal rates could be laid down only forcranes of more than 150 tonnes and for tracked cranes. FNK's management thusconsidered: '... the number of firms which use cranes of between 100 and150 tonnes is too large for agreements to be reached at national level. Themanagement thus decided that it was also necessary to draw up agreements forthose cranes within the regions ...‘ (minutes of the meeting of the WestBrabant/Zeeland Region of 15 October 1990, point 7; see also the minutes of the

meetings of firms using hydraulic cranes of more than 150 tonnes, of25 September 1990, point 6, and of 26 November 1991, point 6).

168.

    It follows that FNK itself decided whether an internal rate was to be set at nationalor at regional level.

169.

    As regards, next, FNK's involvement in the formulation of regional internal rates,it should be noted that, under the very terms of FNK's statutes, the regions aredivisions of FNK (Article 16 of the statutes), that the minutes of the regions'meetings were drafted on FNK headed paper and that Mr De Blank, the directorof FNK, took part in all the meetings of the regions for which the Court hasreceived the minutes and at which internal rates were discussed. Furthermore, ona number of occasions during regional meetings, Mr De Blank informed themembers of the region concerned of the internal rates laid down in other regions(see, for example, the minutes of meeting of the West Brabant/Zeeland Region of4 March 1991, point 5; the minutes of the meeting of the Midden NederlandRegion of 28 February 1991, point 4; the minutes of the meeting of the NoordHolland Region of 24 September 1990, point 7; the minutes of the meeting of theNoord Nederland Region of 26 September 1988, point 5). It thus played an activerole in the setting of internal rates in certain regions. In addition, it is clear fromthe minutes of the meeting of the Midden Nederland Region of 28 February 1991(point 4) that a circular from FNK relating to internal rates led in some cases toan increase in prices.

170.

    It follows from the above findings that FNK was actively involved in theformulation of internal rates, irrespective of whether they were set for the wholecountry or for one region or certain regions. Even though FNK as an associationdid not set the rates unilaterally but recorded the internal rates agreed between thecrane-hire firms at their meetings (minutes of the meeting of the management ofFNK of 4 April 1990, point 8), the laying down of internal rates within a region orat a national level none the less corresponded to FNK's resolve to coordinate theconduct of its members on the market (Verband der Sachversicherer v Commission,paragraph 32).

171.

    Accordingly, the Commission did not commit an error of assessment in finding inArticle 1 of the contested decision that FNK was responsible for the system ofinternal rates.

172.

    It follows from all the foregoing considerations that the third part of the secondplea must also be rejected.

The fourth part of the plea, alleging that the Commission erred in its assessmentof the effect on trade between Member States

— Summary of the arguments of the parties

173.

    The applicants submit that the practices complained of in Articles 1 and 3 of thecontested decision are not capable of affecting trade between Member States(Case 22/79 Greenwich Film Production v SACEM [1979] ECR 3275, paragraph 11,and Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraph 222). According to them, the mobile crane-hire market is confined to the Netherlandsbecause of limited market mobility and the phenomenon of overnight contracting,so that inter-State trade cannot be appreciably affected (Case 22/78 Hugin vCommission [1979] ECR 1869). The fact that the complainants include twoundertakings established in another Member State is not sufficient proof that inter-State trade may be affected by the practices at issue. As regards SCK in particular,its certification system is open to firms from other Member States on a non-discriminatory basis, provided that they satisfy the system's requirements. Thesystem, through its openness, thus encourages foreign firms to enter theNetherlands market. As regards FNK, it was involved only indirectly with thedrawing up of internal rates, which applied solely at a local or regional level. Moreover, those rates were of interest only to the firms which had formulatedthem. They therefore had no effect on inter-State trade in the mobile crane sector.

174.

    The Commission states in response that, even if mobile cranes can be moved onlywithin a radius of 50 kilometres, it was entirely possible for trade between MemberStates to be affected in the Belgian and German frontier regions. The fact that thecomplainants include two Belgian undertakings shows that the market in questionis not confined to the Netherlands.

— Findings of the Court

175.

    According to settled case-law, in order that an agreement, decision or concertedpractice may affect trade between Member States it must be possible to foreseewith a sufficient degree of probability on the basis of a set of factors of law or factthat it may have an influence, direct or indirect, actual or potential, on the patternof trade between Member States such as to give rise to the fear that theachievement of a single market between Member States might be impeded (seeJoined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission[1980] ECR 3125, paragraph 170, and Case C-219/95 P Ferriere Nord v Commission[1997] ECR I-0000, paragraph 20).

176.

    The applicants are wrong in contending that inter-State trade cannot be affectedby the practices which are the subject of the contested decision simply because, inthe mobile crane-hire sector, any trade between Member States is precluded.

177.

    It is common ground that mobile cranes have an operating radius of roughly 50kilometres. Inter-State trade can therefore develop in the frontier regions of theNetherlands. That conclusion is borne out by the fact that two Belgian businesses

located near the Netherlands border are among the undertakings which submitteda complaint to the Commission against SCK and FNK. It would be surprising ifthey took such a step if they had no possibility of entering the Netherlands market.

178.

    The other matters relied on by the applicants do not call into question thepossibility of inter-State trade, but are intended to prove that the prohibition onhiring and the system of recommended and internal rates cannot have anappreciable effect on such trade.

179.

    In that regard, it should be borne in mind that practices restricting competitionwhich extend over the whole territory of a Member State have, by their verynature, the effect of reinforcing compartmentalization of national markets, therebyholding up the economic interpenetration which the Treaty is intended to bringabout (Vereniging van Cementhandelaren v Commission, cited above, paragraph 29,Remia and Others v Commission, cited above, paragraph 22, and Case T-29/92 SPOand Others v Commission [1995] ECR II-289, paragraph 229).

180.

    In this case, it is not disputed that SCK's prohibition on hiring and FNK'srecommended rates apply to the whole of the Netherlands. The same is true ofcertain internal rates (see paragraph 166 above). Those practices, which restrictcompetition (see paragraphs 141 to 150 and 157 to 164 above), thus affect inter-State trade by their very nature. Furthermore, SCK itself acknowledged in itsnotification for the purpose of obtaining negative clearance or an exemptionpursuant to Article 85(3) of the Treaty (see paragraph 7 above) that the rules onthe certification of crane-hire firms could have a negative effect on trade betweenMember States (paragraph 4.3 of the notification).

181.

    As to the question whether the practices referred to in Articles 1 and 3 of thecontested decision are capable of having an appreciable effect on inter-State trade,although the parties do not agree on the exact market share held by FNK'smembers and the firms certified by SCK, the applicants themselves haveacknowledged that in 1991 the firms certified by SCK accounted for 37%, andFNK's members for roughly 40%, of the Netherlands mobile crane-hire market. Even if the market share of the firms certified by SCK and of FNK's members was'only‘ 37% or 40% of the Netherlands market, the applicants were large enoughand had sufficient economic power for their practices, to which the contesteddecision relates (including the prohibition on hiring and the recommended rateswhich applied to the whole of the Netherlands), to be capable of having anappreciable effect on trade between Member States (Case 19/77 Miller vCommission [1978] ECR 131, paragraph 10).

182.

    It follows from the above that the fourth part of the second plea must be rejected.

183.

    It follows from all of the above that the plea relating to infringement ofArticle 85(1) of the Treaty must be rejected in its entirety.

The third plea: infringement of Article 85(3) of the Treaty

Summary of the arguments of the parties

184.

    The applicants argue in the alternative that, by not declaring Article 85(1) of theTreaty inapplicable in this case, the Commission infringed Article 85(3), becauseSCK's certification system, the publication of recommended rates and of costestimates, and the setting of internal rates satisfied all the requirements ofArticle 85(3).

— Refusal by the Commission to exempt SCK's prohibition on hiring

185.

    The applicants submit that the certification system improves the position of mobilecrane-hire firms in that it helps to create a transparent market in which firmscomply with quality requirements exceeding the statutory requirements. Thatadded value of the certification system (see paragraph 128 above), backed up bya much more active monitoring policy than the statutory monitoring, ultimatelybenefits clients. Since clients are represented within SCK, it is also clear thatconsumers are allowed a fair share of the resulting benefit. For the reasons alreadygiven (see paragraph 126 above), the prohibition on hiring is the only means ofsafeguarding the operation of the certification system in the particularcircumstances of the market at issue, so that any restriction of competition isnecessary in order to achieve the objective of implementing a certification system. The certification system does not eliminate competition but strengthens it, in thatit permits keen competition between certified firms on price and other conditions,ensuring a high level of quality in a transparent market and, at the same time, notaffecting the opportunity for competition between certified and uncertified firms.

186.

    The Commission states in response that paragraph 37 of the contested decisionshows that two of the four conditions laid down in Article 85(3) of the Treaty werenot met. As regards the condition requiring a contribution to the improvement ofproduction or distribution, it has not been established that the certification systemhas an added value. In any event, the restrictions imposed on affiliated firms andthe resulting disadvantages for non-affiliated firms clearly outweighed anyadvantages. The Commission considers in fact that most of the conditions forcertification of a crane-hire firm are statutory requirements monitored by severalbodies. It also denies that, operationally, SCK adopts a more active monitoringpolicy than that pursued by Keboma. As regards the condition requiring that therestrictions imposed in order to attain the objectives of SCK's certification systembe indispensable, the Commission relies on the arguments set out in paragraph 130above to show that a prohibition on hiring was not indispensable.

— Refusal by the Commission to exempt the system of recommended and internalrates

187.

    The applicants take the view that the publication of recommended rates and costestimates also complies with the conditions in Article 85(3) of the Treaty. It hasthus been recognized in the Commission's decision-making practice (seeCommission Decision 93/174/EEC of 24 February 1993 relating to a proceedingunder Article 85 of the EEC Treaty (IV/34.494 — Tariff structures in the combinedtransport of goods) (OJ 1993 L 73, p. 38) and Commission Regulation (EEC)No 3932/92 of 21 December 1992 on the application of Article 85(3) of the Treatyto certain categories of agreements, decisions and concerted practices in theinsurance sector (OJ 1992 L 398, p. 7)) that the existence of a tariff structurecontributes to transparency of the market and economic progress in the sectorconcerned inasmuch as consumers can make a better comparison of theundertakings operating in it. Consumers therefore obtain a fair share of thatbenefit. Such transparency of the market can be achieved only by the publicationof those rates, so that any resulting restriction of competition is indispensable. Finally, publication does not lead to the elimination of a substantial part ofcompetition, because the published rates are not mandatory, allowing the operatorsin the market to depart from them and, therefore, to compete with one another.

188.

    The internal rates must also be exempted under Article 85(3) of the Treaty. Thesituation of firms hiring out mobile cranes is comparable to that of banks inasmuchas they regularly enter into bilateral relations with each other by such hiring. Sincethe Commission has declared Article 85(1) of the Treaty inapplicable to a tariffagreement entered into by banks in relation to services which they provide on areciprocal basis (Commission Decision 87/103/EEC of 12 December 1986 relatingto a proceeding under Article 85 of the EEC Treaty (IV/31.356 — ABI) (OJ 1987L 43, p. 51)), equal treatment must be accorded to the applicants as regards thesetting of internal rates. Those rates improve production and increase efficiencybecause they avoid price negotiations each time that crane-hire firms hire a cranefrom another certified firm. That gain in efficiency also benefits clients, so that afair share of the benefit reverts to consumers. In so far as those rates createrestrictions of competition, the restrictions are indispensable in order to attain thatgain in efficiency. Finally, competition is not eliminated to a substantial extentbecause, on any specific transaction, any party who was involved in the formulationof the internal rates may always charge a different price or not enter into thetransaction.

189.

    The Commission refers to paragraph 34 of the contested decision. It adds thatFNK cannot rely on Decision 93/174 because the particular features of that caseare lacking in this case. The recommended rates concern the total price and notone or other element of it and the need for transparency in the mobile crane-hiremarket is not as great as in the market at issue in that decision. Nor, finally, canFNK rely on the decision regarding inter-bank charges to prove that the internal

rates are indispensable. The situation of the mobile crane-hire firms differs fromthat of the banks in a number of respects: banks are required to work inpartnership because they have to cooperate with the bank chosen by their client tocarry out a transfer, while mobile crane-hire firms themselves choose their sub-contractors; banks are confronted with a number of much more significanttransactions; finally, the internal rates are coupled with recommended ratesapplicable to clients, while the Commission, in Decision 87/103, did not authorizeconcerted action by banks on the rates charged to their customers.

Findings of the Court

190.

    It is settled case-law that the review undertaken by the Court of the complexeconomic appraisals made by the Commission when it exercises the discretionconferred on it by Article 85(3) of the Treaty, with regard to each of the fourconditions laid down in that provision, is necessarily limited to verifying whether therules on procedure and on the giving of reasons have been complied with, whetherthe facts have been accurately stated and whether there has been any manifesterror of assessment or a misuse of powers (Joined Cases 142/84 and 156/84 BATand Reynolds v Commission [1987] ECR 4487, paragraph 62, CB and Europay vCommission, cited above, paragraph 109, Case T-17/93 Matra Hachette vCommission [1994] ECR II-595, paragraph 104, and SPO and Others v Commission,cited above, paragraph 288).

191.

    In this case the Commission's refusal to exempt the rules and statutes of FNK andSCK respectively is based on the finding that two of the four conditions laid downin Article 85(3) of the Treaty are not satisfied. Since the four conditions forobtaining an exemption under Article 85(3) are cumulative (Joined Cases 43/82 and63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 61, and SPO andOthers v Commission, cited above, paragraph 267), the Commission was not in factrequired to consider each of them.

— Refusal by the Commission to exempt SCK's prohibition on hiring

192.

    It is clear from paragraph 37 of the contested decision that the Commissionrejected the application for exemption of SCK's certification system, and inparticular of the prohibition on hiring, after finding that the first and the thirdconditions of Article 85(3) of the Treaty were not satisfied. It considered thatSCK's certification system did not provide real added value, either substantively orin its operation, compared with the statutory requirements. The system accordinglydid not contribute to improving production or promoting technical or economicprogress (the first condition in Article 85(3)). Moreover, even if the certificationsystem yielded advantages which outweighed the resulting disadvantages foruncertified firms, the prohibition on hiring was not indispensable for the operationof that system (the third condition in Article 85(3)).

193.

    The applicants consider that the Commission infringed Article 85(3). In their view,SCK's certification system has sufficient added value to justify the restriction oncompetition alleged to result from the prohibition on hiring. First, SCK pursues amore active monitoring policy in relation to the statutory requirements thanKeboma, the public body responsible for the inspection of cranes in theNetherlands and, secondly, SCK's certification system imposes requirements,relating both to technical matters and to the management of the firm, which gobeyond the statutory requirements.

194.

    As regards, first, the allegedly more effective monitoring of the statutoryrequirements carried out by SCK (the alleged operational added value), it must beborne in mind that it is in principle the task of public authorities and not of privatebodies to ensure that statutory requirements are complied with (Case T-30/89 Hiltiv Commission [1991] ECR II-1439, paragraph 118). An exception to that rule maybe allowed where the public authorities have, of their own will, decided to entrustthe monitoring of compliance with statutory requirements to a private body. In thiscase, however, SCK set up a monitoring system parallel to the monitoring carriedout by the public authorities without there being any transfer to SCK of themonitoring powers exercised by the public authorities. Furthermore, the statementin the second subparagraph of paragraph 37 of the contested decision that 'firmswhich do not participate in the SCK certification system can likewise demonstratethat they meet the statutory requirements‘ is not seriously disputed by theapplicants. Thus, it has not shown that there were gaps in the monitoring of thestatutory requirements carried out by the public authorities which could have madeit necessary to set up a private monitoring system. Even if it were shown that themonitoring of the statutory requirements carried out by SCK is more effective thanthat of the Netherlands public authorities, the applicants still have not in any wayproved that the statutory monitoring system was insufficient. It should be notedthat SCK, which was set up in 1985, did not insert the clause providing for theprohibition on hiring into its rules on certification until 1 January 1991. In replyto a question put by the Court at the hearing, counsel for the applicants concededthat, before the introduction of the prohibition on hiring, not a single complainthad been made to SCK by clients regarding the use, by a certified firm, of cranes —which would necessarily have been inspected by the public authorities only — hiredfrom uncertified firms. That being so, the Commission was entitled to take theview that 'the restrictions imposed on affiliated firms and the disadvantages whichresult for non-affiliated firms clearly outweigh any advantages claimed by SCK‘(second subparagraph of paragraph 37 of the contested decision). Accordingly, theCommission's assessment to the effect that the added value claimed for theoperation of the certification system did not satisfy the first condition inArticle 85(3) of the Treaty was in any event not vitiated by a manifest error.

195.

    As regards, next, the substantive added value claimed for SCK's certification systemand said to result from the imposition by the system in question of conditions,relating both to technical matters and to the management of the firm, going beyond

the statutory requirements, the Commission found in the contested decision: 'It hasnot been established that the SCK certification system does provide real addedvalue over and above the statutory rules applicable. The requirements imposed onthe affiliated firms are virtually identical to the statutory ones ...‘ (firstsubparagraph of paragraph 37). The Commission thus stated that the majority ofthe safety requirements imposed by SCK were already imposed by Netherlands law. The same applied to 'most of the non-safety-related requirements which SCKimposes, such as those relating to the payment of tax and social securitycontributions, registration with the Chamber of Commerce, third-party insurance,creditworthiness and application of the collective labour agreements‘ (thirdsubparagraph of paragraph 37). The Commission added that 'SCK goes beyondstatute law by imposing requirements regarding the manner of conducting business,but that alone is insufficient to justify the restrictions of competition imposed‘ (endof the third subparagraph of paragraph 37).

196.

    The lawfulness of a decision refusing an exemption must be assessed in the lightof the matters relied upon by the parties in the notification, as clarified in thecourse of the administrative procedure (see, for example, Case C-360/92 PPublishers Association v Commission [1995] ECR I-23, paragraphs 39, 40 and 41).

197.

    In its notification SCK explained that the certification system imposed three kindsof obligation on firms: first, requirements relating to mobile cranes, secondly,general requirements relating to the firm and, thirdly, requirements relating to thefirm's staff.

198.

    As for the first group of requirements, which correspond to the 'safetyrequirements‘ mentioned in the contested decision, SCK expressly states in itsnotification that those obligations 'also apply by virtue of national law‘(paragraph 26 of the notification). It adds that the same applies to therequirements relating to the firm's staff. It explains: '... in issue are ...requirements which are already imposed by law. SCK seeks merely to ensure thatcertified firms can demonstrate that they satisfy those statutory obligations‘(paragraph 28 of the notification).

199.

    As to the general obligations relating to the firm, SCK explains in its notification:'[they] relate to fiscal requirements, insurance requirements and solvency. Herealso, the requirements are already largely imposed on the firms by nationallegislation, certification providing a further safeguard that those statutoryrequirements are actually complied with. That applies in particular to therequirements relating to the payment of tax and to registration with the Chamberof Commerce and to the obligation to be insured‘ (paragraph 27 of thenotification). In its notification SCK mentions only three non-statutoryrequirements for certified firms: a solvency and minimum liquidity requirement, anobligation (since withdrawn) to apply FNK's general conditions and an obligationto take out third-party insurance.

200.

    As regards the added value claimed for the certification system in question, SCKconcentrated in its notification on the need for increased monitoring of the existingstatutory requirements (operational added value) rather than on substantive addedvalue. With regard to substantive added value, the Commission faithfully took upin the contested decision (see paragraph 195 above) the argument which SCK hadput forward in its notification (see paragraphs 198 and 199 above), namely that therequirements imposed by its certification system roughly corresponded to thestatutory requirements in force. In principle, such a finding should be sufficient toreject the claim that the Commission committed a manifest error of assessment infinding that SCK's certification system did not provide real substantive added valuecompared with the statutory requirements.

201.

    In the course of the administrative procedure, however, the applicants gave greaterweight to the substantive added value claimed for the system. Thus, in their replyto the statement of objections of 16 December 1992, they contended, by referenceto a table forming Annex 3 to that reply, that the certification system imposed anumber of safety and performance requirements not laid down by Netherlands law(paragraph 9 of the reply). In their reply to the statement of objections of 21October 1994, they referred to the same table in order to demonstrate that therewas substantive added value (paragraph 32 of the reply; Annex 19 to theapplication). That table lists the conditions imposed by the certification system andindicates whether each is statutory or non-statutory. A similar explanation was setout in paragraphs 101 to 118 of the application to the Court.

202.

    In truth, it is difficult to reconcile the argument put forward by the applicants intheir replies to the statements of objections and in their application to the Courtwith the description of the requirements of the certification system given by SCKin its notification (paragraphs 26, 27 and 28 of the notification; see paragraphs 198and 199 above). The added value of a certification system does not derive merelyfrom the fact that it imposes obligations not laid down by law. SCK's certificationsystem could have real added value only if the conditions imposed by it wereappropriate for the purpose of attaining the objective pursued, which is toguarantee clients increased safety (see, in that regard, paragraphs 80 to 87 of theapplication). The applicants have failed to explain why and to what extent the non-statutory conditions were appropriate for attaining the objective pursued. Therefore, by concentrating, during the administrative procedure and in their reply,solely on proving that a number of requirements of the certification system werenon-statutory, on the assumption that the system provides substantive added valuein that way, they have not succeeded in proving that the Commission committed amanifest error of assessment in finding, first, that 'it has not been established thatthe SCK certification system does provide real added value over and above thestatutory rules applicable‘ (first subparagraph of paragraph 37 of the contesteddecision) and, secondly, that the few non-statutory conditions imposed are notsufficient 'to justify the restrictions of competition imposed‘ (end of the thirdsubparagraph of paragraph 37).

203.

    It follows that the applicants have not proved that the Commission's assessment tothe effect that SCK's certification system and the prohibition on hiring associatedwith it do not satisfy the first of the four conditions set out in Article 85(3) of theTreaty is vitiated by a manifest error (see, for example, Van Landewyck and Othersv Commission, cited above, paragraph 185). Since the four conditions for grantingan exemption under Article 85(3) are cumulative, there is no need to considerwhether the Commission manifestly erred in its assessment of the question whetheror not the prohibition on hiring was indispensable under SCK's certification system(see, for example, the order of 25 March 1996 in Case C-137/95 P SPO and Othersv Commission [1996] ECR I-1611, paragraph 48, and the judgment in CB andEuropay v Commission, cited above, paragraphs 110 and 115).

204.

    The plea alleging infringement of Article 85(3) of the Treaty must accordingly berejected in so far as it concerns the prohibition on hiring.

— Refusal by the Commission to exempt the system of recommended and internalrates

205.

    The Commission based its refusal to exempt FNK's system of recommended andinternal rates on the finding that the first two conditions in Article 85(3) of theTreaty were not satisfied. It thus found in paragraph 34 of the contested decision:'It has not been established that the obligation to apply ”reasonable” rates,irrespective of the alleged aim of increasing transparency on the market,contributes to improving the crane-hire business and that consumers, in this casethe firms which hire cranes, enjoy a fair share of the resulting benefit. On thecontrary, according to [an] independent sectoral survey ..., the recommended andinternal rates applied, which were fixed by FNK in order to spell out what is meantby ”reasonable” rates, were generally above the market rates. The authors of thesurvey saw part of the explanation in the fact that ”on the market one has to dealwith competition”.‘

206.

    It is settled case-law that, where an exemption is sought under Article 85(3) of theTreaty, it is incumbent upon the notifying undertakings to provide the Commissionwith evidence that the four conditions laid down in that provision are met (VBVBand VBBB v Commission, cited above, paragraph 52, and Matra Hachette vCommission, cited above, paragraph 104).

207.

    As regards, first, the internal rates, in the section of its notification relating toArticle 85 of the Treaty FNK claimed solely that those rates did not eliminatecompetition (paragraph 25 of the notification). Likewise, in their replies to thestatements of objections of 16 December 1992 and 21 October 1994, the applicantsdid not adduce any new evidence enabling the internal rates to be assessed withregard to Article 85(3). While the applicants adopted an approach during theadministrative procedure which was perfectly in harmony with their analysis to theeffect that FNK had nothing to do with the setting of the internal rates

(paragraph 19 of FNK's notification), they did not submit to the Commission anyevidence to prove that, as regards the system of internal rates, the first threeconditions in Article 85(3) were satisfied. They cannot therefore claim that theCommission committed a manifest error of assessment in finding that 'it [had] notbeen established‘ (paragraph 34 of the contested decision) that the system ofinternal rates satisfied the first two conditions in Article 85(3).

208.

    As for FNK's recommended rates, the applicants have claimed in the procedurebefore the Court that such a system increases market transparency. Users, that isto say their members' clients, benefit from that transparency, which simplifies thecomparisons which they may make between competing offers. The applicantsconsider that the two other conditions in Article 85(3) are also satisfied, since therestrictions of competition are indispensable to the attainment of those objectivesand a substantial part of competition is not eliminated.

209.

    Although FNK did not seek in its notification to justify the grant of an exemptionby claiming that the transparency of the market was improved, the applicantsnevertheless used that argument in the administrative procedure, and particularlyin their reply to the statement of objections of 21 October 1994 (paragraph 28 ofthat reply).

210.

    An increase in market transparency is in fact inherent in any system ofrecommended rates set and published by an association which represents asignificant proportion of undertakings operating in a given market. Accordingly,demonstrating an increase in market transparency linked to a system ofrecommended rates is not sufficient proof that the first condition in Article 85(3)is satisfied. Besides, the applicants' line of argument and the Commission'sassessment of the recommended rates in paragraph 34 of the contested decisionoperate on different planes. The Commission never contended that the system ofrecommended rates did not increase the transparency of the market. It merelyconsidered that 'irrespective of the alleged aim of increasing transparency on themarket‘, the first two conditions in Article 85(3) were not satisfied. In thecontested decision, it rightly considered that FNK's members were obliged toadhere to the recommended rates (see paragraphs 159 to 164 above) because thoserates gave substance to the concept of the reasonable rate which FNK's memberswere required to charge under Article 3(b) of its internal rules (paragraph 20 of thecontested decision). In addition, it is not disputed that those rates were indeedhigher than the market rates (paragraph 34 of the contested decision andparagraph 18 of FNK's notification).

211.

    The Commission, therefore, after finding that FNK's rates were mandatory and,moreover, higher than market prices, held in paragraph 34 of the contesteddecision that even if the system increased transparency — a point on which it didnot have to rule — the possible advantages of the system, namely the increasedtransparency of the market, could not outweigh the harm to competition associated

with mandatory prices and, in particular, the unquestionable disadvantage resultingfrom the system's object of increasing prices in relation to market prices. Accordingly, the applicants, who in their application stated merely that theadvantage of the system of recommended rates was that it increased thetransparency of the market, have not demonstrated that the Commission committeda manifest error of assessment in finding that, 'irrespective of the alleged aim ofincreasing transparency‘ (paragraph 34 of the contested decision), the first twoconditions in Article 85 of the Treaty were not satisfied.

212.

    It follows from the above that the third plea, that Article 85(3) of the Treaty wasinfringed, must be rejected in its entirety.

The fourth plea: infringement of the rights of the defence

Summary of the arguments of the parties

213.

    There are three parts to this plea.

214.

    In the first part, the applicants submit that the Commission failed to comply withthe requirement imposed by Article 6 of the European Convention on HumanRights to come to a decision within a reasonable time. They submit that theCommission deliberately caused the administrative procedure to last a long time,since it has acknowledged that it did not regard the case as a priority because itwas also pending before the Netherlands court and because the infringements hadceased once the Arrondissementsrechtbank, Utrecht, made its order of11 February 1992. That state of affairs changed only after delivery by theGerechtshof, Amsterdam, of the judgment of 9 July 1992 which allowed SCK toreintroduce the prohibition on hiring. The applicants also point out that, in thecourse of the administrative procedure, the Commission sent them two statementsof objections. The second statement, served 22 months after the first, did notcontain any change in the Commission's assessment of the facts and the applicationof the law to those facts. Such slowness in the decision-making process, when theapplicants had emphasized the urgency of the matter in October 1994 by waivingtheir right to a hearing, constitutes a serious abuse of procedure.

215.

    In the second part of the plea the applicants submit that the Commission infringedthe same article of the European Convention on Human Rights by adopting adecision under Article 15(6) of Regulation No 17 without an oral hearing.

216.

    Finally, in the third part of the plea, they submit that the Commission infringedtheir rights of defence by refusing to let them examine the file (see paragraph 24above). The Commission cannot claim that they waived their right of access to thefile because they failed to invoke it before replying to the statement of objections(see the 12th Report on Competition Policy). Furthermore, the position taken bythe Commission is unreasonable, because it deprives the party concerned of the

opportunity to prepare his defence to best advantage when the Commission'sdecision is reviewed by the Court, without it being clear what interest of theCommission is served by this. Finally, the applicants do not seek access only to the'file‘ but also to the internal memoranda exchanged in this case by DG III andDG IV from 18 November 1993 to 27 September 1994 (see paragraph 28 above). Although, in principle, such memoranda are not open to inspection, the applicantsclaim that an exception is justified, because those memoranda could help toestablish whether there has been a misuse of powers in this case (Opinion of JudgeVesterdorf acting as Advocate General in Case T-1/89 Rhône-Poulenc vCommission [1991] ECR II-867, at p. II-891).

217.

    In responding to the first part of the plea, the Commission refers to its defence inCase T-213/95. As regards the second part of the plea, its response is that, sincethere is no legislation requiring the undertakings or associations concerned to begiven an oral hearing and there were no specific circumstances which meant thatin this case the rights of the defence could in fact be safeguarded only by a hearing,it was not in any way required to seek the applicants' views at a hearing, havingpreviously sought them in writing. As for the third part of the plea, it points outthat, according to the case-law, the purpose of providing access to the file incompetition cases is to enable the addressees of statements of objections toexamine evidence in the Commission's file so that they are in a position effectivelyto express their views on the conclusions reached by the Commission in itsstatement of objections on the basis of that evidence (see Case T-30/91 Solvay vCommission [1995] ECR II-1775, paragraph 59). Since the applicants did not takeadvantage of the opportunity to examine the Commission's file after service of thestatement of objections, there is no longer any reason to let them see the file at asubsequent stage in the procedure, and certainly not after the adoption of thecontested decision.

Findings of the Court

218.

    The applicants have already put forward, in Case T-213/95, the first part of thisplea, alleging a failure to comply with the requirement imposed by Article 6 of theEuropean Convention on Human Rights to come to a decision within a reasonabletime. That part of the plea must be rejected for the reasons set out inparagraphs 53 to 70 above.

219.

    As for the second part, to the effect that the applicants should have been given ahearing before the Commission adopted its decision of 13 April 1994 underArticle 15(6) of Regulation No 17, it should be noted that even if Community lawhad required the Commission to give the parties concerned an oral hearing beforethe adoption of such a decision, the failure to comply with that obligation wouldhave affected the legality of the Commission's decision of 13 April 1994 only, andnot that of the contested decision, that being the only measure whose legality is

under review in this case. It is not disputed that, in their reply to the statement ofobjections of 21 October 1994, the applicants waived their right to a hearing beforethe adoption of the contested decision. The second part of the plea must alsotherefore be rejected.

220.

    As regards the final part of the plea, to the effect that the Commission refused theapplicants access to the file, it will be observed that they did not request accessuntil after the contested decision had been adopted. Consequently, the legality ofthe contested decision cannot in any circumstances be affected by the Commission'srefusal to grant the requested access (see Case T-145/89 Baustahlgewebe vCommission [1995] ECR II-987, paragraph 30). Moreover, the applicants have notadduced any evidence to show that the file might contain information exoneratingthem. Nor have they contended that they have not had access to all thedocumentary evidence against them. They likewise do not claim, with regard to theexchange of views between DG III and DG IV, that those internal memoranda,which in principle are not available to third parties (Case T-7/89 HerculesChemicals v Commission [1991] ECR II-1711, paragraph 54, and Case C-310/93 PBPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 25),could exonerate them. They contend that those memoranda could help to establishwhether there was a misuse of powers in this case. In their application, they didnot even think it necessary to set out a plea based on misuse of powers in orderto prove that the contested decision was unlawful.

221.

    Accordingly, the third part of the plea must also be rejected.

222.

    For the same reasons, the applicants' request of 9 July 1996 for measures of inquiryor measures of organization of procedure to be adopted (see paragraph 28 above)cannot be granted.

223.

    It follows that the fourth plea, that the rights of the defence were infringed, mustbe rejected in its entirety.

The fifth plea: infringement of Article 190 of the Treaty

Summary of the arguments of the parties

224.

    The applicants contend that the Commission infringed Article 190 of the Treaty. In this case, it was under a duty to give a fuller statement of reasons because it wasfaced for the first time with the question whether a certification system compliedwith the Community rules on competition. It also failed to take account of thecomments made by the applicants in the course of the administrative procedure. The applicants consider in particular that the Commission's reasoning wasinadequate on the following points: the classification of SCK as an undertakingwithin the meaning of Article 85(1) of the Treaty and the finding that the practices

of SCK and FNK which were under investigation restricted competition andaffected trade between Member States.

225.

    The Commission has not responded specifically to this plea.

Findings of the Court

226.

    According to settled case-law, the purpose of the statement of the reasons on whichan individual decision is based is to give the person concerned sufficientinformation to enable it to ascertain whether the decision is well founded orwhether it is vitiated by a defect which may permit its legality to be contested, andto enable the Community judicature to carry out its review of the legality of thedecision. The extent of that obligation depends on the nature of the measure inquestion and on the context in which it was adopted (see, in particular, CaseC-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, andCase T-504/93 Tiercé Ladbroke v Commission [1997] ECR II-923, paragraph 149). Accordingly, the Commission must explain its reasoning when it adopts a decisionwhich goes appreciably further than its previous decisions (Case 73/74 Papier Peintsv Commission [1975] ECR 1491, paragraph 31).

227.

    As regards, first, the alleged need for a fuller statement of reasons in this case, itmust be stated that although the Commission ruled, in the operative part of thecontested decision, only on the prohibition on hiring and the system ofrecommended and internal rates, it nevertheless set out the criteria to be met bya certification system — openness, independence, transparency and acceptance ofequivalent guarantees offered by other systems — in order for it to be regarded ascompatible with Article 85(1) of the Treaty (paragraph 23 of the contesteddecision). The applicants cannot claim in relation to the infringements referred toin the operative part of the contested decision (the prohibition on hiring and thesystem of recommended and internal rates) that the decision goes appreciablyfurther than the Commission's previous decisions. In any event, the Commissionexplained in detail in the contested decision why the system of recommended andinternal rates and the prohibition on hiring constituted infringements ofArticle 85(1) of the Treaty (paragraphs 20 to 31 of the contested decision) and whythose practices could not be exempted under Article 85(3) (paragraphs 32 to 39). It also gave sufficient explanation of the reasons for which it considered SCK to bean undertaking within the meaning of Article 85(1) (paragraph 17).

228.

    As to the argument that the Commission should have taken account of thecomments made by the applicants in the course of the administrative procedure,it should be pointed out that, although the Commission is required underArticle 190 of the Treaty to set out the circumstances justifying the adoption of adecision and the legal considerations which led it to adopt that decision, thatprovision does not require it to discuss all the matters of fact and of law which

were raised during the administrative procedure (BAT and Reynolds v Commission,cited above, paragraph 72, and Tiercé Ladbroke v Commission, cited above,paragraph 150). In addition, it is not apparent from any document in the case thatthe Commission failed to take account of a fundamental matter which had beenraised during the administrative procedure (see Publishers Association vCommission, cited above, paragraphs 41 and 42).

229.

    Accordingly, the plea that Article 190 of the Treaty was infringed is unfounded.

230.

    It follows from all of the above that the claim for annulment of the contesteddecision must be rejected.

3. Subsidiary claims for annulment or reduction of the fines

231.

    The applicants put forward three pleas in support of their subsidiary claims forannulment or reduction of the fines. The first alleges infringement of Article 15(2)of Regulation No 17, the second breach of the principle of proportionality and thethird infringement of Article 190 of the Treaty.

The first plea: infringement of Article 15(2) of Regulation No 17

Summary of the arguments of the parties

232.

    The applicants submit that the imposition of fines was not justified. In their viewthe finding in paragraph 44 of the contested decision that 'FNK and SCK cannothave been unaware of the fact that the offending behaviour served to restrictcompetition, or at any rate has that effect‘ is incorrect.

233.

    SCK cannot be deemed to be aware of the object or, at any rate, theanticompetitive effect of the prohibition on hiring because, first, the Raad voor deCertificatie recognized that that prohibition constituted the only means ofpreserving the coherence of the certification system and, secondly, the Commissionitself recognized, in its defence in Case T-213/95, the complexity of that case, bothconceptually and in terms of competition policy. In any event, the Commission hasaccepted previously that the fact that it has never before ruled on a particular typeof infringement is a sufficient reason for not imposing fines (Decision 88/501/EECof 26 July 1988 relating to a proceeding under Articles 85 and 86 of the EECTreaty (IV/31.043 — Tetra Pak I (BTG licence)) (OJ 1988 L 272, p. 27)).

234.

    As regards FNK's recommended rates, the applicants refer to Article 5 ofCommission Regulation (EEC) No 4087/88 of 30 November 1988 on theapplication of Article 85(3) of the Treaty to categories of franchise agreements (OJ1988 L 359, p. 46), to Article 1(1) of Council Regulation (EEC) No 1534/91 of31 May 1991 on the application of Article 85(3) of the Treaty to certain categories

of agreements, decisions and concerted practices in the insurance sector (OJ 1991L 143, p. 1) and to the judgment of the Court of Justice in Case 161/84 Pronuptia[1986] ECR 353, according to which merely applying recommended rates, which arenot mandatory in nature, was not to be regarded as contrary to Community law. In so far as FNK may be held responsible for the formulation of the internal rates,it could reasonably have been unaware that that practice constituted aninfringement of Article 85(1) of the Treaty, since the Commission had alreadyapproved, on two occasions, identical internal rates arrangements in the bankingsector (Decision 87/103 and Commission Decision 89/512/EEC of 19 July 1989relating to a proceeding under Article 85 of the EEC Treaty (IV/31.499 — Dutchbanks) (OJ 1989 L 253, p. 1)).

235.

    The Commission points out that, according to settled case-law, it is not necessaryfor an undertaking to have been aware that it was infringing Article 85 for aninfringement to be regarded as having been committed intentionally. It is sufficientthat it could not have been unaware that the contested conduct had as its objectthe restriction of competition (Case 246/86 Belasco and Others v Commission [1989]ECR 2117, paragraph 41). Such a situation arose in the applicants' case. FNKcannot rely on the judgment in Pronuptia, on Regulations No 4087/88 orNo 1534/91 or on the previous decisions of the Commission in the banking sector,because they concerned optional charging arrangements whereas, in this case, therecommended and internal rates were mandatory and applied to clients.

Findings of the Court

236.

    According to settled case-law, the infringements of competition law which are liableto be sanctioned are those which are committed deliberately or negligently and itis sufficient for this that the party committing the act in question must have knownthat its conduct would result in a restriction of competition (see Case T-43/92Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 142, and the case-law cited).

237.

    SCK's arguments to the effect that it was unaware that the prohibition on hiringconstituted a restriction of competition cannot be accepted. First, there is nodocument on the file in which the Raad voor de Certificatie stated that theprohibition on hiring constituted the only means of complying with the conditionas to the coherence of the certification system in Paragraph 2.5 of its accreditationcriteria. Its final report of 22 April 1992, to which the applicants refer, merelystates that SCK no longer complies with that paragraph, having withdrawn theprohibition on hiring following the interim order by the national court withoutproviding for an alternative solution ('SCK, acting on the court's decision, revokedthe provision in question (prohibition on hiring), but does not yet have anotherprovision to meet the underlying objective, namely that when use is made of otherfirms' cranes, there is no doubt that those cranes will also meet the conditions.

SCK is thus in breach of the condition set out in Paragraph 2.5 of the accreditationcriteria‘).

238.

    Nor, secondly, does the Commission's recognition of the complexity of the caseconstitute a justification for SCK's 'unawareness‘. It is in fact inconceivable thatSCK could have considered that the prohibition on hiring, which limits thecontractual freedom of certified firms and affects the position of uncertified firms,was not liable to result in a restriction of competition in the market and to poseproblems with regard to Community competition law.

239.

    Thirdly, the decision by the Commission not to impose a fine in Decision 88/501because of the relatively novel nature of the infringements found does not grant'immunity‘ to undertakings committing infringements which have not previouslybeen penalized by the Commission. The Commission exercises its discretion in thespecific context of each case when deciding whether it is appropriate to impose afine in order to sanction the infringement found and to protect the effectiveness ofcompetition law. In that regard, the applicants must have been aware of theanticompetitive effects of a prohibition on hiring within a certification system whichwas not open and made no provision for the acceptance of equivalent guaranteesoffered by other systems.

240.

    As regards FNK, the system of recommended and internal rates was mandatory innature (see paragraphs 159 to 164 above) and was concerned not only withrelations between FNK members (internal rates) but also with relations betweenthem and clients (recommended rates). Those features make this casefundamentally different from the situations analysed in Pronuptia, in RegulationNo 4087/88, in Regulation No 1534/91 as applied by Regulation No 3932/92 andin the Commission's previous decisions in the banking sector, to which theapplicants refer (see paragraph 234 above). Furthermore, the system ofrecommended and internal rates was intended to increase market prices (seeparagraphs 163 and 164 above). FNK must, therefore, have been aware that itssystem of recommended and internal rates was going to result in a restriction ofcompetition.

241.

    It follows that the first plea must be rejected.

The second plea: breach of the principle of proportionality

Summary of the arguments of the parties

242.

    The applicants submit that the factors specified by the Commission in paragraph 45of the contested decision for the purpose of determining the amount of the finesare inappropriate. First, the amount of the fine is not proportionate to the allegeddisturbance of the common crane-hire market. Next, the Commission incorrectlyassumes that there are close links between SCK and FNK, which, taken together,

account for only 40% of the firms operating in the market and therefore do notoccupy an important part of the crane-hire market. Finally, FNK voluntarilymaintained the status quo which had resulted from compliance with the order of11 February 1992, despite its being set aside on appeal on 9 July 1992. Such anattitude, which would have provided grounds for not imposing any fine(Commission Decision 79/934/EEC of 5 September 1979 relating to a proceedingunder Article 85 of the EEC Treaty (IV/29.021 — BP Kemi — DSDF) (OJ 1979 L286, p. 32)), is in any event sufficient reason for the fine to be substantiallyreduced.

243.

    Furthermore, the fines are excessive, because FNK and SCK do not possess thefinancial means to pay them. In the case of SCK, the short duration of theinfringement (Commission Decision 75/75/EEC of 19 December 1974 relating toa proceeding under Article 86 of the EEC Treaty (IV/28.851 — General MotorsContinental) (OJ 1975 L 29, p. 14)) and the fact that the Commission had neverprecisely determined the application of the competition rules to certificationsystems (Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 163) aremitigating circumstances justifying a reduction in the fine imposed. In the case ofFNK, the Commission was not entitled to take account of the turnover of itsmembers when setting the fine, because the contested decision was addressed tothe association and not to its individual members. Finally, the fact that, in theadministrative procedure, the Commission took more than a reasonable time toadopt a decision, contrary to Article 6 of the European Convention on HumanRights, should result in a reduction in the fines imposed.

244.

    In their observations on the statement in intervention, the applicants also refer toCommission Decision 96/438/EC of 5 June 1996 relating to a proceeding pursuantto Article 85 of the EC Treaty (IV/34.983 — Fenex) (OJ 1996 L 181, p. 28) in whichthe Commission imposed a fine of only ECU 1 000 for an infringement withfeatures comparable to those of the infringement allegedly committed by FNK.

245.

    The Commission responds by stating that the applicants cannot claim that adisturbance of the Community market did not take place. The two applicants,taken together, occupy an important part of the Netherlands market. Next, thesystem of recommended and internal rates had existed for more than ten yearswhen FNK ended it following the interim order of the President of theArrondissementsrechtbank, Utrecht, of 11 February 1992. The fines are notexcessive because the turnover of the applicants' respective members amounts tomore than ECU 200 million. Account is taken of the relatively short duration ofthe infringement in the case of SCK. Finally, no infringement of Article 6 of theEuropean Convention of Human Rights was committed.

Findings of the Court

246.

    According to settled case-law, the amount of a fine must be fixed at a level whichtakes account of the circumstances and the gravity of the infringement and, in orderto fix its amount, the gravity of the infringement is to be appraised by taking intoaccount in particular the nature of the restrictions on competition (Case T-77/92Parker Pen v Commission [1994] ECR II-549, paragraph 92).

247.

    In paragraph 45 of the contested decision, the Commission assessed the gravity ofthe infringements for the purpose of fixing the amount of the fines to be imposedon the applicants. It noted first that FNK's system of rates and SCK's prohibitionon hiring 'artificially control or restrict the Netherlands crane-hire market and thusdistort the Community market in crane hire‘. It then took account of the fact thatthe applicants, 'which are linked closely to each other, comprise a great manyundertakings which occupy together an important part of the crane-hire market‘and that 'the restrictions were dropped only after a court order to that effect‘.

248.

    Since there can be no doubt as to the appropriateness of those criteria for assessingthe gravity of the infringements, it is necessary to consider whether thecorresponding findings are substantively correct.

249.

    As already stated, SCK's prohibition on hiring and FNK's system of recommendedand internal rates infringed Article 85(1) of the Treaty. The prohibition on hiring,which was associated with a certification system that was not completely open anddid not provide for the acceptance of equivalent guarantees offered by othersystems, restricted the competitive opportunities of uncertified firms, in particularfirms from outside the Netherlands. In addition, FNK's system of ratessubstantially restricted competition between its members. The practices of FNKand SCK at issue thus considerably disturbed the common market in crane-hire. As regards the links between FNK and SCK, they themselves state in theirapplication 'that FNK has roughly the same number of members as SCK and thatthey are largely the same firms‘. The Commission did not err either by findingthat FNK's members and the firms certified by SCK constituted an important partof the mobile crane-hire market. It considered that FNK and SCK accounted for78% or 51% of the Netherlands crane-hire market (paragraph 6 of the contesteddecision). The figure of 51% had, moreover, been put forward by the applicantsthemselves during the administrative procedure. In paragraph 26 of their reply tothe statement of objections of 21 October 1994, the applicants, disputing the figureof 75% put forward by the Commission, stated that FNK's members together held,on 31 December 1993, 1 544 mobile cranes out of a total of approximately 3 000in the hire sector, that is to say a market share of 51%. The applicants' argumentthat FNK and SCK, which group together essentially the same firms, hold 'only‘40% of the Netherlands crane-hire market must therefore be rejected. In anyevent a market share of 40% constitutes an important part of the Netherlandscrane-hire market. Next, FNK cannot secure the annulment of the fine or areduction in its amount by claiming that it maintained the situation resulting fromcompliance with the order of 11 February 1992, even though that order was setaside on appeal on 9 July 1992. Since the fine covered the period up to

6 February 1992 only (paragraph 46 of the contested decision), the fact that FNKdid not apply its system of recommended and internal rates after 11 February 1992is in fact irrelevant when assessing the gravity of an infringement in the period priorto 6 February 1992.

250.

    It will be recalled that the plea regarding infringement of Article 6(1) of theEuropean Convention of Human Rights is not well founded (see paragraphs 53 to70 above). Accordingly, the argument that the fines should be reduced on the basisof the alleged breach of the principle that action must be taken within a reasonabletime cannot itself be accepted.

251.

    Nor can the applicants use Decision 96/348 as an argument. It is clear from thatdecision that the rates proposed by Fenex were no more than guidelines. Whatwas concerned was not, therefore, a system of rates which, such as the one in pointin this case, was binding on members of the association by virtue of an obligationto adhere to reasonable rates (see paragraphs 159 to 164 above). Furthermore, itis not disputed that, unlike FNK (interim order of 11 February 1992 made by thePresident of the Arrondissementsrechtbank, Utrecht; see paragraph 8 above),Fenex was not required by a national court or other public authority to end itspractice of circulating rates. Moreover, Fenex had already voluntarily stoppedcirculating recommended rates before the Commission decided, on its own initiativeand not following a complaint, to initiate a proceeding against it.

252.

    As for the argument that the amount of the fines offends against the principle ofproportionality in the light of the applicants' financial means, the use of the generalterm 'infringement‘ in Article 15(2) of Regulation No 17, inasmuch as it coverswithout distinction agreements, concerted practices and decisions of associations ofundertakings, indicates that the upper limits for fines laid down in that provisionapply in the same way to agreements and concerted practices as to decisions ofassociations of undertakings. It follows that the upper limit of 10% of turnovermust be calculated by reference to the turnover of each of the undertakings whichare parties to those agreements and concerted practices or of the undertakings, asa whole, which were members of the said associations of undertakings, at leastwhere, by virtue of its internal rules, the association is able to bind its members. The correctness of this view is borne out by the fact that the influence which anassociation of undertakings has been able to exert on the market does not dependon its own 'turnover‘, which discloses neither its size nor its economic power, butrather on the turnover of its members, which constitutes an indication of its sizeand economic power (judgments in CB and Europay v Commission, cited above,paragraphs 136 and 137, and in SPO and Others v Commission, cited above,paragraph 385).

253.

    In this case, it is not disputed that FNK is an association of undertakings(paragraph 8 of FNK's notification). Moreover, under Article 6 of its statutes itcan bind its members. The applicants therefore cannot claim that the Commission

was not entitled to take account of the turnover of FNK's members when it fixedthe amount of the fine to be imposed on that association.

254.

    As for the fine imposed on SCK, however, the Commission correctly characterizedSCK as an undertaking in the contested decision (paragraph 17) and not as anassociation of undertakings. It was accordingly not entitled to take account of theturnover of the certified firms to justify the amount of the fine. SCK's annualaccounts for 1994 show a turnover of HFL 608 231, which is the equivalent ofapproximately ECU 288 750. Although the Commission complied with the upperlimit in Article 15(2)(a) of Regulation No 17, it is apparent that the fine ofECU 300 000 imposed on SCK, which exceeds its total turnover in the yearpreceding the adoption of the contested decision, is disproportionate.

255.

    The Court, in the exercise of its unlimited jurisdiction, accordingly considers thatit is appropriate to reduce the amount of that fine to ECU 100 000.

The third plea: infringement of Article 190 of the Treaty

Summary of the arguments of the parties

256.

    The applicants submit that the Commission's reasoning in support of the amountof the fines is incomplete (Case 45/69 Boehringer Mannheim v Commission [1970]ECR 769, point 53, Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73,113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663,paragraph 612, and Joined Cases 100/80, 101/80, 102/80 and 103/80 MusiqueDiffusion Française and Others v Commission [1983] ECR 1825, paragraph 120).

257.

    The Commission relies on paragraphs 45 and 46 of the contested decision.

Findings of the Court

258.

    The purpose of the obligation to state the reasons on which a decision adverselyaffecting a person is based is to provide him with the necessary information so thathe may establish whether it is well founded and to enable the Communityjudicature to carry out its review of the legality of the decision (see the case-lawcited at paragraph 226 above and Case T-150/89 Martinelli v Commission [1995]ECR II-1165, paragraph 65).

259.

    In paragraph 44 of the contested decision the Commission found that theapplicants could not have been unaware of the fact that the offending behaviourhad served to restrict competition, or at any rate had that effect. In paragraphs 45and 46 respectively, it appraised the gravity and the duration of the infringementsfor the purpose of fixing the amount of the fines to be imposed on the applicants. The latter two paragraphs provided the applicants with the information which they

needed in order to establish whether or not the fines imposed on them were wellfounded and enabled the Court to carry out its review as to legality.

260.

    The third plea therefore cannot be upheld.

261.

    It follows from all the foregoing considerations that the claims for annulment of thefines must be rejected and that the fine imposed on SCK must be reduced.

Costs

262.

    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. However, Article 87(3) provides that the Court may order that costs beshared or that the parties bear their own costs if each party succeeds on some andfails on other heads. In this case, the applicants have been unsuccessful on all theirheads of claim in Case T-213/95 and on their main heads of claim and on theessential aspects of their subsidiary heads of claim in Case T-18/96. It isaccordingly not appropriate to apply Article 87(3) of the Rules of Procedure. Theapplicants must therefore be ordered to pay the defendant's costs, including thoserelating to the proceedings for interim measures. They must also be ordered to paythe interveners' costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber, ExtendedComposition)

hereby:

1.    Joins Cases T-213/95 and T-18/96 for the purposes of the judgment;

2.    Reduces to ECU 100 000 the fine imposed on the Stichting CertificatieKraanverhuurbedrijf by Article 5(2) of Commission Decision 95/551/EC of29 November 1995 relating to a proceeding pursuant to Article 85 of the ECTreaty (IV/34.179, 34.202, 216 — Stichting Certificatie Kraanverhuurbedrijfand the Federatie van Nederlandse Kraanverhuurbedrijven);

3.    For the rest, dismisses the applications;

4.    Orders the applicants to bear their own costs and to pay the costs incurredby the Commission, including those relating to the proceedings for interimmeasures, and the interveners' costs.

Lenaerts                        Lindh Azizi             Cooke                        Jaeger

Delivered in open court in Luxembourg on 22 October 1997.

H. Jung

P. Lindh

Registrar

President

Table of Contents

    Background and procedure

II - 3

    Forms of order sought

II - 8

    The action for damages (Case T-213/95)

II - 9

        1. The allegedly unlawful conduct of the Commission

II - 10

            The first plea: infringement of Article 6 of the European Convention on HumanRights

II - 10

                Summary of the arguments of the parties

II - 10

                Findings of the Court

II - 12

            The second plea: breach of the principle of legal certainty

II - 17

                Summary of the arguments of the parties

II - 17

                Findings of the Court

II - 17

            The third plea: breach of the principle of the protection of legitimateexpectations

II - 18

                Summary of the arguments of the parties

II - 18

                Findings of the Court

II - 18

            The fourth plea: breach of the audi alteram partem rule

II - 19

                Summary of the arguments of the parties

II - 19

                Findings of the Court

II - 20

        2. Causal link

II - 21

            Summary of the arguments of the parties

II - 21

            Findings of the Court

II - 21

    The action for a declaration that the contested decision is non-existent or for its annulment(Case T-18/96)

II - 22

        1. Claim for a declaration that the contested decision is non-existent

II - 22

            Summary of the arguments of the parties

II - 22

            Findings of the Court

II - 23

        2. Claim for annulment of the contested decision

II - 24

            The first plea: infringement of Articles 3, 4, 6 and 9 of Regulation No 17

II - 24

                Summary of the arguments of the parties

II - 25

                Findings of the Court

II - 25

            The second plea: infringement of Article 85(1) of the Treaty

II - 25

                The first part of the plea, to the effect that SCK was mistakenly classified asan undertaking within the meaning of Article 85(1) of the Treaty

II - 26

                    — Summary of the arguments of the parties

II - 26

                    — Findings of the Court

II - 26

                The second part of the plea, alleging that the Commission, first, erred in lawwith regard to the reference to the criteria of transparency, openness,independence and acceptance of equivalent guarantees offered by othersystems in assessing whether a certification system is compatible withArticle 85(1) of the Treaty and, secondly, erred in its assessment whenit found that the prohibition on hiring had as its object or effect therestriction of competition within the meaning of Article 85(1)

II - 27

                    — Summary of the arguments of the parties

II - 27

                    — Findings of the Court

II - 29

                The third part of the plea, alleging that the Commission committed an errorof assessment in finding that the system of recommended and internal

rates had as its object or effect the restriction of competition within themeaning of Article 85(1) of the Treaty

II - 34

                    — Summary of the arguments of the parties

II - 34

                    — Findings of the Court

II - 35

                    (a) The system of recommended and internal rates

II - 36

                    (b) FNK's responsibility in the setting of internal rates

II - 38

                The fourth part of the plea, alleging that the Commission erred in itsassessment of the effect on trade between Member States

II - 39

                    — Summary of the arguments of the parties

II - 40

                    — Findings of the Court

II - 40

            The third plea: infringement of Article 85(3) of the Treaty

II - 42

                Summary of the arguments of the parties

II - 42

                    — Refusal by the Commission to exempt SCK's prohibition on hiring

II - 42

                    — Refusal by the Commission to exempt the system of recommended andinternal rates

II - 43

                Findings of the Court

II - 44

                    — Refusal by the Commission to exempt SCK's prohibition on hiring

II - 44

                    — Refusal by the Commission to exempt the system of recommended andinternal rates

II - 48

            The fourth plea: infringement of the rights of the defence

II - 50

                Summary of the arguments of the parties

II - 50

                Findings of the Court

II - 51

            The fifth plea: infringement of Article 190 of the Treaty

II - 52

                Summary of the arguments of the parties

II - 52

                Findings of the Court

II - 53

        3. Subsidiary claims for annulment or reduction of the fines

II - 54

            The first plea: infringement of Article 15(2) of Regulation No 17

II - 54

                Summary of the arguments of the parties

II - 54

                Findings of the Court

II - 55

            The second plea: breach of the principle of proportionality

II - 56

                Summary of the arguments of the parties

II - 56

                Findings of the Court

II - 57

            The third plea: infringement of Article 190 of the Treaty

II - 60

                Summary of the arguments of the parties

II - 60

                Findings of the Court

II - 60

1: Language of the case: Dutch.