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

16 September 1998 (1)

(Competition — Remail — Action for annulment — Partial rejection of acomplaint — Community interest)

In Case T-110/95,

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

applicant,

v

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

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by StephanieRidley, of the Treasury Solicitor's Department, and, during the oral procedure, alsoby Nicholas Green QC, acting as Agents, with an address for service inLuxembourg at the British Embassy, 14 Boulevard Roosevelt,

La Poste, represented by Hervé Lehman and Sylvain Rieuneau, of the Paris Bar,with an address for service in Luxembourg at the Chambers of Aloyse May, 31Grand-Rue,

and

The Post Office, represented by Ulick Bourke, Solicitor of the Supreme Court ofEngland and Wales, and, during the oral procedure, also by Stuart Isaacs and SarahMoore, Barristers, with an address for service in Luxembourg at the Chambers ofLoesch and Wolter, 11 Rue Goethe,

interveners,

APPLICATION for the annulment of the Commission decision of 17 February1995 definitively rejecting that part of the complaint filed by the applicant on13 July 1988 denouncing a price-fixing agreement concluded in October 1987 by anumber of public postal operators,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, ExtendedComposition),

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

Registrar: J. Palacio González, Administrator,

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

gives the following

Judgment

The facts

The International Express Carriers Conference (IECC) and remail

1.

    The International Express Carriers Conference (IECC) is an organisationrepresenting the interests of certain undertakings which provide express mailservices. Its members offer, inter alia, 'remail‘ services, consisting in thetransportation of mail originating in Country A to the territory of Country B to beplaced there with the local public postal operator ('public postal operator‘) forfinal transmission by the latter on its own territory or to Country A or Country C.

2.

    It is customary to distinguish between three categories of remail services:

—    'ABC remail‘, where mail originating in Country A is transported byprivate companies to Country B and put into the postal system there forforwarding via the traditional international postal system to Country C,where the final addressee resides;

—    'ABB remail‘, where mail originating in Country A is transported byprivate companies to Country B and put into the postal system there fordelivery to final addressees in Country B; and

—    'ABA remail‘, where mail originating in Country A is transported byprivate companies to Country B and put into the postal system there inorder to be sent via the traditional international postal system back toCountry A, where the final addressee resides.

3.

    To those three types of remail should be added so-called 'non-physical remail‘. In this form of remail, information from Country A is sent electronically to CountryB, where, with or without processing, it is printed, transported and put into thepostal system of Country B or Country C for forwarding via the traditionalinternational postal system to Country A, B or C, where the final addressee resides.

Terminal dues and the Universal Postal Union Convention

4.

    The Universal Postal Union (UPU) Convention, adopted on 10 July 1964 under theaegis of the United Nations Organisation and to which all Member States of theEuropean Community have acceded, provides the framework for relations betweenall postal administrations worldwide. It was also within this framework that theEuropean Conference of Postal and Telecommunications Administrations('CEPT‘) was established, to which all the European postal administrations againstwhich the applicant has complained belong.

5.

    In any postal system, the sorting of 'inward‘ mail and its delivery to finaladdressees involve significant costs for public postal operators. For that reason,UPU members adopted in 1969 a system of fixed compensation rates for each typeof mail, referred to as 'terminal dues‘, thereby reversing a principle in force sincethe UPU was founded, under which each public postal operator bore the costsinvolved in sorting and delivering inward mail without passing on such costs to thepublic postal operators of the countries in which that mail originated. Theeconomic value of the delivery service provided by the various postaladministrations, their cost structures and the charges invoiced to customers mightvary widely. The difference between the prices charged for the delivery of nationaland international mail in the various Member States and the level of terminal duesin relation to the various prices in force at national level lie at the root of theremail phenomenon. Remail operators seek, inter alia, to take advantage of thoseprice differences by proposing to commercial companies to transport their mail tothe public postal operators which offer the best quality/price ratio for a particulardestination.

6.

    Article 23 of the 1984 UPU Convention, now Article 25 of the 1989 UPUConvention, provides as follows:

'1.    A member country shall not be bound to forward or deliver to theaddressee letter-post items which senders resident in its territory post orcause to be posted in a foreign country with the object of profiting by thelower charges in force there. The same applies to such items posted inlarge quantities, whether or not such postings are made with a view tobenefiting from lower charges.

2.    Paragraph 1 shall be applied without distinction both to correspondencemade up in the country where the sender resides and then carried acrossthe frontier and to correspondence made up in a foreign country.

3.    The administration concerned may either return its items to origin or chargepostage on the items at its internal rates. If the sender refuses to pay thepostage, the items may be disposed of in accordance with the internallegislation of the administration concerned.

4.    A member country shall not be bound to accept, forward or deliver to theaddressees letter-post items which senders post or cause to be posted inlarge quantities in a country other than the country in which they reside. The administration concerned may send back such items to origin or returnthem to the senders without repaying the prepaid charge.‘

The IECC's complaint and the 1987 CEPT Agreement

7.

    On 13 July 1988 the IECC lodged a complaint with the Commission underArticle 3(2) of Council Regulation No 17 of 6 February 1962 (First Regulationimplementing Articles 85 and 86 of the Treaty) (OJ, English Special Edition 1959-1962, p. 87, hereinafter 'Regulation No 17‘). The complainant essentially alleged,first, that a number of public postal operators established in the EuropeanCommunity and in non-member countries, meeting in Berne in October 1987, hadconcluded a price-fixing agreement in regard to terminal dues ('the CEPTAgreement‘) and, second, that a number of public postal operators wereattempting to operate a market-allocation scheme on the basis of Article 23 of theUPU Convention with a view to declining delivery of mail posted by customers withpublic postal operators in countries other than those in which they reside.

8.

    In that part of its complaint relating to the CEPT Agreement, the IECC stated,more specifically, that in April 1987 a large number of public postal operators inthe Community had, during a meeting held in the United Kingdom, consideredwhether a common policy ought to be adopted to face the challenge of competitionfrom private companies offering remail services. A working party establishedwithin the CEPT had subsequently proposed, in substance, an increase in terminaldues, the adoption of a code of conduct and improvements in customer services. The applicant claimed that in October 1987 this working party had accordinglyadopted a new terminal dues arrangement (the CEPT Agreement), which proposeda new fixed rate in fact higher than the previous rate.

9.

    In addition, it is not disputed that, on 17 January 1995, 14 public postal operators,12 of them from the European Community, signed a preliminary agreement onterminal dues designed to replace the 1987 CEPT Agreement. The newagreement, referred to as the 'REIMS Agreement‘ (System for the Remunerationof Exchanges of International Mails between Public Postal Operators with aUniversal Service Obligation), essentially provides for a system whereby thereceiving post office would charge the originating post office a fixed percentage ofthe former's domestic tariff for any post received. A definitive version of thisagreement was signed on 13 December 1995 and notified to the Commission on19 January 1996 (OJ 1996 C 42, p. 7).

The Commission's handling of the complaint

10.

    The public postal operators cited in the applicant's complaint submitted theiranswers to the questions put by the Commission in November 1988. Between June1989 and February 1991, copious correspondence was exchanged between, on theone hand, the IECC and, on the other, various officials in the Directorate-Generalfor Competition (DG IV) and the cabinets of Commission Members Bangemannand Brittan.

11.

    On 18 April 1991 the Commission informed the IECC that it 'had decided toinitiate proceedings under the provisions of Council Regulation 17/62 [...] on thebasis of Articles 85(1) and 86 of the EC Treaty‘.

12.

    On 7 April 1993 the Commission informed the IECC that it had adopted astatement of objections on 5 April 1993, which was to be sent to the public postaloperators concerned.

13.

    On 26 July 1994 the IECC called on the Commission, pursuant to Article 175 ofthe Treaty, to send it a letter under Article 6 of Commission Regulation No 99/63of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of CouncilRegulation No 17 (OJ, English Special Edition 1963-1964, p. 47, hereinafter'Regulation No 99/63‘), should the Commission consider it unnecessary to adopta decision prohibiting the actions of the public postal operators.

14.

    On 23 September 1994 the Commission sent a letter to the IECC in which it statedits intention to reject that part of its complaint relating to the application of Article85 of the Treaty to the CEPT Agreement and requested the IECC to submit itsobservations pursuant to Article 6 of Regulation No 99/63.

15.

    By letter of 23 November 1994, the IECC submitted its observations on theCommission's letter and called on the Commission to define its position on thecomplaint.

16.

    As it took the view that the Commission had not defined its position within themeaning of Article 175 of the Treaty, the IECC, on 15 February 1995, lodged anaction for failure to act, registered as Case T-28/95. Two days later, on17 February 1995, the Commission sent to the IECC the final decision rejecting itscomplaint as regards application of Article 85 of the Treaty to the CEPTAgreement. That decision forms the subject-matter of the present action ('thedecision of 17 February 1995‘).

17.

    In its decision of 17 February 1995, the Commission stated as follows:

'5. [...] Our key objection to the system of terminal dues outlined in the 1987CEPT agreement was that it was not based on the costs incurred by a postaladministration in processing incoming international mail. [...] Therefore, theStatement of Objections emphasised that charges levied by postal administrationsfor processing incoming international mail should be based on their costs.

6. The Commission accepted that these costs could be difficult to calculate preciselyand stated that domestic letter tariffs could be deemed an adequate indication ofthese costs. [...]

8. [...] The Commission has been kept informed of progress towards the proposednew ”System for the Remuneration of Exchanges of International Mails between

Public Postal Operators with a Universal Service Obligation” (the ”REIMSscheme”). On 17 January 1995, 14 public postal operators [...] signed a draftagreement on terminal dues with a view to implementation on 1 January 1996. According to information provided on an informal basis by the International PostCorporation, the recently signed draft envisages a system whereby the receivingPPO [public postal operator] would charge the originating PPO a fixed percentageof the former's domestic tariff for any post received. [...]

9. The Commission thus notes that the PPOs are actively working towards a systemof new charges and at this stage believes that the parties are endeavouring toaddress the Commission's concerns under competition law shared by yourcomplaint against the old system. It is the Commission's view that pursuing theinfringement procedure with respect to the soon to be defunct 1987 CEPT schemewould hardly bring about a more favourable result for your clients. Indeed, thelikely result of a prohibition decision would merely be to delay if not disrupt thewide-ranging reform and restructuring of the terminal dues system currently takingplace, whereas the revised system should be implemented in the near future. In thelight of the [...] judgment in the Automec II case, the Commission considers that itwould not be in the interest of the public of the Community to devote its scarceresources to moving, at this stage, towards resolving the terminal dues relatedaspect of your complaint by means of a prohibition decision.

[...]

12. [...] Nevertheless, the REIMS scheme appears to provide at least for atransitional period alternatives to the formerly restrictive clauses which were ofconcern to the Commission. Notably, the REIMS scheme, despite possibleimperfections, provides a link between terminal dues and the domestic tariffstructure [...]

13. There is no doubt that the Commission shall thoroughly analyse the futureREIMS scheme and its implementation under the competition rules. It shall notablyexamine the issue of Community interest both in terms of the substance of thereforms and the pace of their introduction [...]‘.

18.

    On 6 April 1995 the Commission addressed to the applicant a decision rejecting thesecond part of its complaint, in so far as it concerned the interception of ABAremail. That decision forms the subject-matter of Case T-133/95.

19.

    On 14 August 1995 the Commission adopted a decision concerning the applicationof competition rules to the use of Article 23 of the UPU Convention for theinterception of ABC remail. That decision forms the subject-matter of CaseT-204/95.

Procedure

20.

    The applicant brought the present action by way of application lodged at theRegistry of the Court of First Instance on 28 April 1995.

21.

    By orders dated 6 February 1996, the President of the Third Chamber (ExtendedComposition) of the Court of First Instance granted leave to the United Kingdom,the Post Office and La Poste to intervene in support of the form of order soughtby the Commission.

22.

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

23.

    In accordance with Article 50 of the Rules of Procedure, Cases T-28/95, T-110/95,T-133/95 and T-204/95, all brought by the same applicant and concerning the samesubject-matter, were joined for the purposes of the oral procedure by order of thePresident of the Third Chamber (Extended Composition) of 12 March 1997.

24.

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

25.

    On 26 September 1997 the applicant requested that the oral procedure be re-opened pursuant to Article 62 of the Rules of Procedure. At the Court's request,the Commission, the Post Office and La Poste expressed their view that it wasunnecessary to reopen the oral procedure. On 26 February 1998 the applicantsought once again to have the oral procedure reopened. The Court takes the viewthat, in the light of the documents produced by the applicant, it is not appropriateto accede to those requests. The new factors on which the applicant relies insupport of those requests either do not contain any element decisive for theoutcome of the present dispute or are limited to establishing the existence of factswhich clearly postdated the contested decision and which cannot therefore affectthat decision's validity.

Forms of order sought by the parties

26.

    The applicant claims that the Court should:

—    annul the decision of 17 February 1995;

—    order such further or other relief as the Court considers appropriate inorder for the Commission to comply with Article 176 of the Treaty;

—    order the Commission to pay the costs.

27.

    In its observations on the statements in intervention, the applicant also requests theCourt to:

—    declare the Post Office's statement in intervention to be inadmissible;

—    order the interveners to pay the costs relating to the observations on theinterventions;

—    order production of the draft REIMS Agreement.

28.

    The Commission claims that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs.

29.

    The United Kingdom and the Post Office claim that the application should bedismissed.

30.

    La Poste contends that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs of its intervention.

Admissibility of the Post Office's statement in intervention

31.

    In the applicant's view, the Post Office's statement in intervention does not complywith Article 116(4)(a) of the Rules of Procedure since it does not indicate insupport of which party it was made and must for that reason be declaredinadmissible.

32.

    Under the third paragraph of Article 37 of the EC Statute of the Court of Justiceand Article 116(4)(a) of the Rules of Procedure of the Court of First Instance, theform of order sought in a statement in intervention may have no other purposethan to support the form of order sought by one of the main parties. It is clearfrom the Post Office's statement in intervention that its purpose was to support theform of order sought by the Commission, notwithstanding the fact that there wasno formal submission to that effect. The applicant could not therefore have beenin any serious doubt as to the scope or purpose of the statement in intervention. It should also be noted that the Post Office's application to intervene contained,in accordance with Article 115(2)(e) of the Rules of Procedure, an indication of the

form of order sought in support of which leave to intervene was being applied for,and that the abovementioned order of 6 February 1996, in paragraph (1) of itsoperative part, granted leave to the Post Office to intervene 'in support of theform of order sought by the defendant‘. In those circumstances, the submissionof the applicant must be rejected.

Admissibility of the claim for an order requiring the Commission to adoptappropriate measures to comply with its obligations under Article 176 of theTreaty

33.

    According to settled case-law, it is not the function of the Community judicatureto issue directions to the Community institutions or to substitute itself for thoseinstitutions when exercising its powers of review. It is for the institution concerned,under Article 176 of the Treaty, to adopt the measures required to give effect toa judgment delivered in an action for annulment.

34.

    This claim is consequently inadmissible.

Substance

35.

    In support of its action for annulment, the IECC sets out six pleas in law: the firstis based on infringement of Article 85(1) of the Treaty; the second is based oninfringement of Article 4(1) of Regulation No 17 and Article 85(3) of the Treaty;the third is based on an error of law and a manifest error in the assessment of thefacts; the fourth is based on misuse of powers; the fifth is based on infringementof Article 190 of the Treaty; the sixth, finally, is based on infringement of a numberof general principles of law.

36.

    It is appropriate in this case to examine first the third plea raised by the applicant.

The third plea in law: error of law and manifest error in the Commission's assessmentof the Community interest in the case

Arguments of the parties

37.

    In the first part of this plea, the applicant takes the view that the Commission wasno longer entitled to plead an absence of 'Community interest‘ for the purpose ofrejecting its complaint, in so far as that complaint had been definitively investigatedand the Commission had acknowledged that there was a breach of Article 85 of theTreaty (Opinion of Judge Edward, acting as Advocate General, in Case T-24/90Automec v Commission [1992] ECR II-2223 ('Automec II‘), at point 105). Onlyin two situations may the Commission decide not to carry out a full investigationof a case: either where it considers that Articles 85 and 86 have not been infringed

or where, on the basis of a preliminary investigation, it considers that the case doesnot merit priority treatment for lack of sufficient Community interest (Case T-114/92 BEMIM v Commission [1995] ECR II-147). Once those preliminaryprocedural stages have been passed, the Commission may no longer invoke theconcept of Community interest.

38.

    In the second part of this plea, the applicant claims that the Commission erred inlaw and erred manifestly in its assessment of the Community interest. It submitsthat, in this case, there was a Community interest in further investigation of thematter in view of the significance of the alleged infringement as regards thefunctioning of the common market, the probability of establishing the existence ofthat infringement and the scope of the investigation required (Automec II,paragraph 86). The applicant also argues that there was no alternative solution tothe adoption of a decision by the Commission prohibiting the conduct in question,legal action at national level being inappropriate by reason of the internationalcharacter of the CEPT Agreement. In such circumstances, the rejection of acomplaint constitutes a denial of justice. The applicant concludes by pointing outthat the Commission declared in its statement of objections to the public postaloperators that 'there is a real danger of a resumption of the practice which theundertaking has terminated‘ and that 'consequently it is necessary to clarify thelegal position‘. That finding ought to have led the Commission to adopt a decisionholding that there had been a breach of competition law, a fortiori because thatbreach had not yet been brought to an end.

39.

    In the third part of this plea, the applicant claims that the Commission committedan error of law and a manifest error in its assessment of the facts by referring tothe draft REIMS Agreement for the purpose of rejecting the complaint.

40.

    The applicant argues, first, that the Commission erred in law by looking to aproposed draft successor agreement in order to justify refusal to adopt a decisionprohibiting the CEPT Agreement. The Commission, it submits, also manifestlyerred in its appraisal of the facts by stating that the consequence of a decisionprohibiting the CEPT Agreement would 'merely be to delay if not disrupt thewide-ranging reform and restructuring of the terminal dues system‘, whereas thedocuments before the Court show that it was only because of pressure from theCommission that the public postal operators agreed to reform the CEPT system. The applicant considers that a prohibition decision would therefore have forced thepublic postal operators to adopt a new system immediately.

41.

    Next, the applicant takes the view that the Commission's appraisal of the draftREIMS Agreement was erroneous inasmuch as, at the time when the Commissionadopted the contested decision, the agreement had not yet been finalised or signedby the parties involved, and the press was reporting that certain parties did notintend to sign it. The Commission thereby committed a manifest error ofassessment in its appraisal of the facts (see, to this effect, Case T-37/92 BEUC and

NCC v Commission [1994] ECR II-285, paragraph 59), since it did not establishthat the draft REIMS Agreement would necessarily put an end to the infringementwhich had been established.

42.

    Finally, the applicant submits that the REIMS Agreement provides for anexcessively long transitional period and is discriminatory in some respects. Theagreement, it is argued, also maintains in force a number of unlawful provisions ofthe CEPT Agreement, without proposing any solution to the problems raised in thecomplaint (BEUC and NCC, cited above, paragraph 54).

43.

    In reply to the first part of the plea, the Commission states that, in accordance withthe judgment in Case T-5/93 Tremblay and Others v Commission [1995] ECR II-185,it cannot be required to adopt a decision imposing a prohibition, even if it hasconcluded that certain conduct constitutes an infringement of the rules governingcompetition.

44.

    With regard to the second part of the plea, the Commission takes the view that thelist of criteria set out in paragraph 86 of the judgment in Automec II, cited above,is not exhaustive and that it was entitled to take account of the decision of thepublic postal operators to move to the REIMS system.

45.

    Finally, the Commission denies ever having committed any error of assessment orerror of law when examining the REIMS Agreement.

Findings of the Court

46.

    According to settled case-law, Article 3 of Regulation No 17 does not confer on aperson who lodges an application under that article the right to obtain from theCommission a decision, within the meaning of Article 189 of the Treaty, regardingthe existence or otherwise of an infringement of Article 85 or Article 86 or of both(see, in particular, BEMIM, cited above, paragraph 62). Further, the Commissionis entitled to reject a complaint when it considers that the case does not display asufficient Community interest to justify further investigation of the case (BEMIM,paragraph 80).

47.

    Where the Commission rejects a complaint for lack of Community interest, thereview of legality which the Court must undertake focuses on whether or not thecontested decision is based on materially incorrect facts, or is vitiated by an errorof law, a manifest error of appraisal or misuse of powers (Automec II, paragraph80).

48.

    In the present case, the applicant submits, in the first part of its plea, that theCommission could not reject its complaint on the ground of insufficient Communityinterest without thereby committing an error of law, given the advanced stagereached in the investigation. That argument cannot be accepted.

49.

    Such an interpretation would not only be contrary to the actual wording of Article3(1) of Regulation No 17, under which the Commission 'may‘ adopt a decision asto whether the alleged infringement exists, but would also be at variance withsettled case-law (see, in particular, Case 125/78 GEMA v Commission [1979]ECR 3173, paragraph 17), according to which the party making a complaint is notentitled to obtain a decision from the Commission within the meaning of Article189 of the Treaty. In this connection, the Court held in BEMIM that theCommission may take a decision to close its file on a complaint for lack ofsufficient Community interest not only before commencing an investigation of thecase but also after taking investigative measures, if that course seems appropriateto it at that stage of the procedure (paragraph 81).

50.

    In the second part of its plea in law, the applicant argues essentially that theCommission breached the legal rules concerning assessment of the Communityinterest.

51.

    In order to assess the Community interest in further investigation of a case, theCommission must take account of the circumstances of the case, and especially ofthe legal and factual particulars set out in the complaint referred to it. TheCommission should, in particular, after assessing with all due care the legal andfactual particulars submitted by the complainant, balance the significance of thealleged infringement as regards the functioning of the common market, theprobability of establishing the existence of the infringement and the scope of theinvestigation required in order to fulfil, under the best possible conditions, its taskof ensuring that Articles 85 and 86 of the Treaty are complied with (Automec II,paragraph 86).

52.

    When assessing the Community interest, however, the Commission is not requiredto balance solely those matters which the Court listed in its judgment inAutomec II. It is thus entitled to take account of other relevant factors whenmaking its assessment. The assessment of the Community interest is necessarilybased on an examination of the circumstances particular to each case, carried outsubject to review by the Court.

53.

    In the present case, it is clear from an overall reading of the contested decision thatthe Commission rejected the complaint, in regard to the alleged infringement ofArticle 85(1) of the Treaty, on the basis that there was no Community interest, onthe ground that the undertakings against which the complaint had been directedwere to change the conduct complained of in the manner it recommended.

54.

    The Court points out in this regard that the extent of the Commission's obligationsin matters of competition law must be considered in the light of Article 89(1) of theTreaty, which constitutes, with regard to such matters, the specific expression of thegeneral supervisory role conferred on the Commission by Article 155 of the Treaty(Case T-77/92 Parker Pen v Commission [1994] ECR II-549, paragraph 63).

55.

    The task of supervision conferred on the Commission in competition-law mattersincludes the duty to investigate and punish individual infringements, but alsoencompasses the duty to pursue a general policy designed to apply, in competitionmatters, the principles laid down by the Treaty and to guide the conduct ofundertakings in the light of those principles (Joined Cases 100/80 to 103/80 MusiqueDiffusion Française and Others v Commission [1983] ECR 1825, paragraph 105).

56.

    Furthermore, Article 85 of the Treaty is an application of the general objective ofthe activities of the Community laid down by Article 3(g) of the Treaty, namely, theinstitution of a system ensuring that competition in the common market is notdistorted (see, to the same effect, Case 85/76 Hoffmann-La Roche v Commission[1979] ECR 461, paragraph 38).

57.

    In view of this general objective and the task entrusted to the Commission, theCourt considers that, subject to the requirement that it give reasons for such adecision, the Commission may decide that it is not appropriate to investigate acomplaint alleging practices contrary to Article 85(1) of the Treaty where the factsunder examination give it proper cause to assume that the conduct of theundertakings concerned will be amended in a manner conducive to the generalinterest.

58.

    In such a situation, it is for the Commission, as part of its task to ensure that theTreaty is properly applied, to decide whether it is in the Community interest toencourage undertakings challenged in administrative proceedings to change theirconduct in view of the complaints made against them (see, to this effect, JoinedCases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and Others vCommission [1983] ECR 3369, paragraph 15) and to require from them assurancesthat such conduct will in fact be altered along the lines recommended by theCommission, rather than formally holding in a decision that such conduct byundertakings is contrary to the Treaty rules on competition.

59.

    The Commission was therefore entitled to take the view that, in the circumstancesof this case, it was preferable, given its limited resources, to promote the ongoingreform of the terminal dues system rather than penalising that system by a decisionprohibiting the CEPT Agreement.

60.

    So far as concerns the alleged contradiction between the statement of objectionsand the decision of 17 February 1995 in regard to the risk that the public postaloperators might re-offend, the Commission's statement reproduced by the applicant(see paragraph 38 above) referred to interception practices developed by the publicpostal operators on the basis of Article 23 of the UPU Convention, which formsthe subject-matter of Cases T-133/95 and T-204/95. That argument is thusirrelevant within the context of the present case.

61.

    Since the Commission chose to encourage the undertakings concerned to alter thebehaviour in question along the lines advocated in the statement of objections, the

applicant cannot rely on the lack of a national judicial alternative to the adoptionof a prohibition decision since, by adopting this line of conduct consistent with itspolicy towards the postal sector, the Commission has, in this case, also met theobjections raised by the applicant in its complaint and in its subsequentcorrespondence regarding the former pricing system.

62.

    Finally, the applicant submits, in the third part of its plea, that the Commissioncommitted a manifest error of assessment in referring to the draft REIMSAgreement for the purpose of rejecting the complaint.

63.

    That assertion cannot be accepted. The Commission did not commit any error informing the view that, when the decision was adopted, the draft REIMS Agreementprovided sufficient guarantees for the overall success of the process of negotiationsbeing conducted among the public postal operators and seeking to establish asystem based on the actual costs incurred when handling mail at national level. Notwithstanding the transitional and potentially flawed nature of the draft REIMSAgreement, which was, moreover, recognised by the Commission, the document onwhich the Commission relied in the contested decision already described in detailthe new system based on national postal rates to be introduced with effect from1 January 1996. That document described the intermediate but certain state of theprocess of negotiations among all the public postal operators concerned. In thatcontext, it should also be stressed that the Commission never claimed that theexistence of the draft REIMS Agreement had in itself put an end to the anti-competitive aspects of the CEPT Agreement alleged by the applicant.

64.

    Furthermore, the applicant's argument that the draft REIMS Agreement providedfor an excessively long transitional period and was in some respects discriminatorycannot affect the legality of the contested decision. The Court cannot examine indetail all of the provisions of the draft REIMS Agreement, as subsequently notifiedto the Commission, without prejudging the analysis of that agreement which theCommission must still provide under Article 85(1) and (3) of the Treaty within thecontext of that notification.

65.

    The facts underlying the present case are, moreover, distinguishable from thoseexamined by the Court in the abovementioned case of BEUC and NCC vCommission. There, the Court had annulled the Commission decision on groundsof error in the assessment of the facts relating to cessation of the infringement inquestion. That assessment of facts, specific to that case, cannot therefore betransposed to the present dispute. It has, furthermore, already been pointed outin paragraph 63 above that the Commission had in no way claimed in the contesteddecision that the draft REIMS Agreement had in itself put an end to the CEPTAgreement.

66.

    As regards the applicant's argument that the Commission was mistaken in formingthe view that the adoption of a prohibition decision risked impeding the

negotiations on the draft REIMS Agreement, it has been consistently held that theCourt must confine itself to verifying that there are no manifest errors of appraisalwhen examining the consequences which the Commission draws from the factssubmitted for its assessment (BEMIM, paragraph 72). The Court cannot, whencarrying out such a review, substitute its own evaluation of the precise scope of thespecific consequences of complex facts for that of the Commission (Case 78/74Deuka v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1975] ECR 421,paragraphs 9 and 10). In the present case, the Commission could reasonably takethe view that the adoption of a prohibition decision would substantially complicatethe process for the adoption of the draft REIMS Agreement. It did not thereforecommit any manifest error in assessing the consequences which adoption of aprohibition decision might have. The applicant's argument that in the past thepublic postal operators had changed their position on remail only under pressurefrom the Commission does not affect the reasonableness of that assessment.

67.

    The applicant's argument that the draft REIMS Agreement maintains in force anumber of prohibited provisions of the CEPT Agreement, whereas the renewal ofa similar anti-competitive agreement was condemned in paragraph 54 of thejudgment in BEUC and NCC v Commission, must also be rejected. In that case,the mere renewal of the informal agreement in question meant that it wouldcontinue to exist as such, without subsequent monitoring by the Commission,whereas in the present case the draft REIMS Agreement, formally signed by thepublic postal operators and substantially altering the previous factual position, wasanalysed in detail by the Commission as to its compatibility with Article 85 of theTreaty in the context of the notification.

68.

    As regards the argument that the replies provided by the public postal operatorsto the statement of objections must be regarded as reflecting a refusal on their partto bow to the Commission's wishes, an undertaking to which a statement ofobjections has been addressed cannot, when drafting its reply to that statement, berequired simply to indicate its intention to adhere to the Commission's position. Such an undertaking must be allowed to contest the legal and factual assertions ofthe Commission. Any other interpretation would render nugatory the right to replyto the statement of objections provided for in Article 3 of Regulation No 99/63(Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 35).

69.

    In the light of all the foregoing, the plea must be dismissed in its entirety.

The first and second pleas in law: infringement of Article 85(1) of the Treaty andinfringement of Article 4(1) of Regulation No 17 and of Article 85(3) of the Treaty

Arguments of the parties

70.

    In its first plea, the applicant argues, in substance, that the Commission stated inits statement of objections, and subsequently in the decision of 17 February 1995,

that the CEPT Agreement infringed Article 85 of the Treaty. The Commission, itclaims, therefore breached that provision by not taking to task the public postaloperators concerned and by rejecting the applicant's complaint. It refers, in thatregard, to Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro v Zentralezur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, paragraphs 51 and 52, inwhich the Court of Justice prohibited the Community institutions from encouragingthe adoption of agreements or practices contrary to competition law.

71.

    In its second plea, the applicant submits that, in failing to require the public postaloperators to bring to an end the CEPT Agreement, the restrictive nature of whichit had recognised, the Commission granted a de facto exemption to that agreement,despite the absence of prior notification and although the substantive conditionslaid down by Article 85(3) of the Treaty were not satisfied. The applicant alsomaintains that the Commission cannot, in its decision of rejection, rely on thecomplexity of the matter at issue in order to refrain from acting against theinfringements by the public postal operators of the competition rules.

72.

    For its part, the Commission states that it follows from Article 3 of RegulationNo 17 that a complainant is not entitled to obtain a decision finding that there hasbeen an infringement and that it is not required to prosecute proceedings rightthrough to the adoption of a final decision.

73.

    According to the United Kingdom, the possible existence of an error of law in theinterpretation of Article 85(1) of the Treaty could not, in any event, affect thelawfulness of the contested decision, in so far as that decision was not based on anyinfringement of that provision.

Findings of the Court

74.

    The first and second pleas in law of the applicant rest, in substance, on theassumption that, in its decision of 17 February 1995, the Commission establishedthat the CEPT Agreement infringed Article 85(1) of the Treaty. However, that factalone would not suffice to support a finding that the Commission committed anerror of law in this case by not prohibiting, by way of a formal decision, thepractices criticised. As is clear from an examination of the previous plea, even ifit is assumed that the conditions for the application of Article 85(1) of the Treatyare regarded as being met by the Commission, the latter is not under any obligationto adopt a decision confirming the infringement in question and may, in a decisionrejecting the complaint which led to the investigation, take the view that it is notin the Community interest to confirm that infringement.

75.

    Furthermore, the applicant's argument that, in adopting its decision to reject thecomplaint, the Commission 'favoured‘ the adoption or maintenance of an anti-competitive agreement within the meaning of Ahmed Saeed Flugreisen and Silver

Line Reisebüro, cited above, cannot be upheld. The rejection of a complaint based,in substance, on the adoption of the REIMS Agreement addressing the mainobjections raised by the Commission and by the complainant cannot be treated asbeing tantamount to a 'favour‘ granted by the Commission to the CEPTAgreement which was thus replaced.

76.

    The argument that the Commission cannot rely on the complexity of an anti-competitive practice in rejecting a complaint is misplaced. In confining itself torelying on the complexity of the case at issue, in paragraphs 6 and 10 of thedecision of 17 February 1995, in order to explain why it considered that theproblems linked to the existence of the CEPT Agreement were more likely to beresolved by the draft REIMS Agreement than by a prohibition decision, theCommission acted within the law. In any event, the contested decision cannot beconstrued as being based, as such, on the complexity of the case in question in itsrejection of the applicant's complaint.

77.

    The first and second pleas in law must therefore be dismissed in their entirety.

The fourth plea in law: misuse of powers

Arguments of the parties

78.

    The applicant considers that the Commission committed a misuse of power byusing its powers in the field of competition for the purpose of achieving politicalobjectives, namely 'ensuring a good political climate in the relationships betweenthe Commission and the post offices (and thus their Member States)‘.

79.

    The applicant points out that it was repeatedly forced to urge the Commission totake action under Article 175 of the Treaty, and that the Commission's inactionforced it to send numerous letters to a variety of persons responsible within thatinstitution. The applicant also considers that evidence of political pressure isfurnished by, inter alia, the reply of the German postal administration to thestatement of objections, in which it is stated that 'the complaint is at odds with thisclimate of constructive cooperation between European postal authorities and theCommission [...] In order to mitigate political damage, we would suggest that theproceedings not be continued for the foreseeable future‘. Evidence of suchpolitical pressure is also provided by the dichotomy between, on the one hand, thevarious public announcements by Commission officials promising strict applicationof the competition rules and, on the other, the considerable delay by theCommission in dealing with the matter subsequently, and, finally, by the anonymousstatement of a Commission official, reported in The Economist, to the effect that:'There is nobody dealing with that file [...]‘.

80.

    The applicant takes the view that it was also for political reasons that theCommission sought to link the handling of its complaint with the adoption of theGreen Paper on postal services in 1992.

81.

    Finally, the applicant considers that the Commission's attitude in this case, atvariance with its consistent practice of taking action against price-fixing agreements,can be explained only by the considerable political pressure exerted upon it.

82.

    The Commission denies that the rejection of the complaint was motivated bypolitical objectives and contends that the applicant has produced no tangibleevidence that it misused its powers in any way.

Findings of the Court

83.

    According to settled case-law, a decision is vitiated by misuse of powers only if itappears, on the basis of objective, relevant and consistent factors, to have beentaken for the purpose of achieving ends other than those stated (Case C-84/94United Kingdom v Council [1996] ECR I-5755, paragraph 69, and Tremblay andOthers, cited above, paragraph 87 et seq.).

84.

    It does not appear from the facts, the documents submitted or from the applicant'sarguments that the Commission diverted the administrative procedure concernedfrom its avowed object, as expressed in its decision of 17 February 1995.

85.

    The relatively long period of time taken by the Commission in order to adopt thedecision of 17 February 1995 rejecting the complaint and, before that, the timetaken in adopting the statement of objections in 1993 can be justified to a largedegree by the complexity of the economic aspects of the issues raised, the numberof public postal operators involved in the negotiations on the draft REIMSAgreement, the parallel adoption of the Green Paper on postal services, and thetime needed for implementing a replacement system, such as the draft REIMSAgreement.

86.

    As far as the various requests for action made by the applicant to the Commissionare concerned, either the Commission defined its position subsequently, inaccordance with Article 175 of the Treaty, or the applicant did not follow up theserequests by bringing proceedings for failure to act.

87.

    As for the unattributed statements allegedly made by Community officials,published by a magazine such as The Economist, they must be regarded as mereallegations and not as evidence, or prima facie evidence, of misuse of powers.

88.

    As it is apparent from the Court's examination that the Commission properlyformed the view that there was no Community interest in continuing its

investigation, it does not appear that that institution improperly gave preference tothe efforts to establish a regulatory framework to the detriment of the applicationof the competition rules. Finally, it must be observed that the contested decisionrefers to the Green Paper on postal services only as a means of demonstrating thatthe draft REIMS Agreement would resolve the objections raised in relation to theCEPT Agreement, and does not reject the complaint simply on the ground that theGreen Paper had been issued.

89.

    In light of the foregoing, the plea in law must be dismissed.

The fifth plea in law: infringement of Article 190 of the Treaty

Arguments of the parties

90.

    The applicant takes the view that, after almost seven years of procedure, includingthe adoption of a statement of objections, the Commission was obliged to addresscomprehensively and with particular care the issues which the applicant had raised. It considers that the contested decision fails completely to meet those highstandards. The contested decision, it claims, does not state why there was noCommunity interest in adopting a prohibition decision, fails to show how thepositive effects of the REIMS Agreement would be compromised by such adecision, and does not explain why it should be necessary to refer to the REIMSAgreement in order to resolve the problems raised in the complaint. The applicantalso points out that if a decision departs from a well-established line of decisions,the Commission cannot merely adopt a summary decision but must give an explicitaccount of its reasoning (Joined Cases 142/84 and 156/84 BAT and Reynolds vCommission [1987] ECR 4487, paragraph 71).

91.

    The applicant also refers to paragraph 86 of the judgment in Automec II andmaintains that the Commission has not met any of the criteria set out in thatjudgment regarding assessment of the Community interest.

92.

    Finally, the applicant takes the view that it could not be regarded as having beenadequately informed of the reasons for the adoption of the decision because it hadobtained only a copy of the preliminary draft outline of the REIMS Agreementdated 4 February 1994, and not a copy of the provisional agreement signed on17 January 1995.

93.

    The Commission maintains that it did give sufficient reasons for its rejectiondecision, in so far as that decision states clearly that its main objection to the CEPTAgreement was that it was not based on the actual costs of the public postaloperators, and that the REIMS Agreement was intended precisely to create a linkbetween terminal dues and the domestic tariff structure.

Findings of the Court

94.

    It has been consistently held that the statement of reasons on which an individualdecision is based must, first, be such as to enable the person concerned to ascertainthe matters justifying the measure adopted so that, if necessary, he can defend hisrights and verify whether the decision is well founded, and, secondly, enable theCommunity judicature to exercise its power of review of the legality of the decision(Tremblay and Others, cited above, paragraph 29, Case T-102/92 Viho v Commission[1995] ECR II-17, paragraphs 75 and 76, and Case T-387/94 Asia Motor France andOthers v Commission [1996] ECR II-961, paragraphs 103 and 104).

95.

    It also follows from the case-law that the extent of the duty to state reasonsdepends on the nature of the act in question and on the circumstances in which itwas adopted (Case 819/79 Germany v Commission [1981] ECR 21, paragraph 19). In particular, in paragraph 85 of its judgment in Automec II the Court explainedthat the obligation to provide a statement of reasons under Article 190 of theTreaty is essential for the exercise of judicial review of the way in which theCommission uses the concept of Community interest in rejecting certain complaints.

96.

    The Court considers that, in the present case, the Commission met its obligationto state reasons. The decision of 17 February 1995 sets out in detail the specificreasons for rejecting the complaint, referring specifically to the context of the case. Far from referring to the concept of Community interest in the abstract, thedecision clearly states in paragraph 12 that the complaint had to be rejected byreason of the fact that the draft REIMS Agreement met the Commission's mainobjection to the CEPT Agreement.

97.

    The argument that the Commission failed to justify its decision in regard to thethree criteria set out in paragraph 86 of the Automec II judgment must also berejected. It has been held above, during the examination of the third plea in law,that the Commission was not under an obligation to examine whether it wasappropriate to reject the complaint in question solely in the light of those criteria. The Commission cannot therefore be obliged to set out reasons for its decision ofrejection in relation to those criteria alone.

98.

    Furthermore, in the abovementioned judgment in BAT and Reynolds v Commission(paragraphs 23 and 24), the Court of Justice held that the administrative procedureprovides, inter alia, an opportunity for the companies concerned to bring theagreements or practices complained of into conformity with the rules laid down inthe Treaty, and that this possibility presupposes that the companies and theCommission can enter into confidential negotiations in order to determine whichalterations are necessary to satisfy the Commission's objections. The legitimateinterests of complainants are thus fully protected where they are informed of theoutcome of the negotiations in the light of which the Commission proposes to closeits file on their complaints, without their having the right as such to access to the

specific documents which were the subject of those negotiations. The applicant stillhas, in any event, the opportunity to submit its observations on the draft REIMSAgreement when this is examined under Article 85(1) and (3) of the Treaty in thecontext of the abovementioned notification of that agreement.

99.

    Since the Commission provided proper reasons for its decision, to the effect thatthe existence of the draft REIMS Agreement accounted for the lack of anyCommunity interest in pursuing its investigation, the Court takes the view that theCommission has also adequately explained how the adoption of a prohibitiondecision would have lessened the determination of the public postal operators toparticipate together in the negotiating procedure on the draft REIMS Agreement.

100.

    Furthermore, paragraph 12 of the contested decision provides sufficient explanationas regards the speculative nature of the information which the Commissionpossessed regarding the draft REIMS Agreement. The extent to which theCommission could lawfully rely on that allegedly speculative information has beenconsidered in the context of the examination of the third plea in law, which hasbeen dismissed above.

101.

    For all of those reasons, the fifth plea in law must be dismissed.

The sixth plea in law: infringement of certain general principles of law

Arguments of the parties

102.

    In the first part of this plea, the applicant claims that the Commission infringed theprinciples of legal certainty and of the protection of legitimate expectations in thatit did not enforce the rules of competition law, although it had given reason tobelieve that it would. It points out that in Case T-83/91 Tetra Pak v Commission[1994] ECR II-755, at paragraph 29, the Commission is recorded as stating that 'nolegitimate expectation of escaping the consequences of past actions can arisemerely because of a change of conduct for the future‘.

103.

    In the second part of its plea, the applicant claims that the Commission infringedthe principle of proportionality in closing the procedure. The inadequacy of themeasures taken and the uncertain character of the REIMS Agreement were, theapplicant argues, out of proportion to the blatant infringement of competition lawconstituted by the CEPT Agreement.

104.

    In the third part of its plea, the applicant claims that the Commission infringed the principle of non-discrimination in that it treated the applicant's complaintdifferently from other cases raising similar issues.

105.

    Finally, in the fourth part of its plea, the applicant takes the view that theCommission infringed the principle of sound administration by forcing it repeatedlyto take the appropriate legal measures to compel it to act.

106.

    The Commission confines its response to pointing out that, according to thejudgment in Tremblay and Others, cited above, a complainant has no right to obtaina decision establishing the existence of an infringement and cannot therefore haveany legitimate expectation that it will obtain such a decision. The Commission alsodenies that it failed to respect the general principles invoked by the applicant.

Findings of the Court

107.

    With regard to the first part of this plea in law, the Commission cannot be treatedas having infringed the principles of legal certainty or of the protection oflegitimate expectations since a complainant, as is clear from the case-law cited bythe Commission, cannot be regarded as having a right to obtain from theCommission a decision finding against a practice complained of. It also followsfrom the Court's examination of the third plea that, in adopting the decision of17 February 1995, the Commission lawfully relied on the concept of Communityinterest for the purpose of rejecting the complaint, without wrongfully exercisingits margin of discretion.

108.

    The criticism made in the second part of the plea refers, in fact, to the question ofthe extent to which the Commission was entitled to rely on the existence of thedraft REIMS Agreement in order to reject the applicant's complaint. Thatcriticism must, therefore, be rejected on the same grounds as those set out abovein the assessment of the third part of the third plea in law.

109.

    So far as the third part of the present plea is concerned, the applicant has notestablished that, in a situation identical to that of the present case, the Commissionwould, in contrast to its position in this case, have taken a decision against theundertakings in question. The applicant has therefore failed to establish thealleged infringement of the principle of non-discrimination.

110.

    Finally, it follows from the foregoing and from the fact that the Commissionlawfully relied on the lack of any Community interest that the Commission did notinfringe the principle of sound administration.

111.

    For all of those reasons, the sixth plea in law must be dismissed.

The request for production of documents

112.

    In its observations on the statements in intervention, the applicant called on theCourt to order that the draft REIMS Agreement be produced.

113.

    As one of the measures of procedural organisation, the Court requested thatdocument to be produced. That request was complied with.

Costs

114.

    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'ssubmissions. Since the applicant has been unsuccessful in its submissions and theCommission and the intervening party La Poste have asked that costs be awardedagainst the applicant, the applicant must be ordered to pay those costs. The PostOffice, which did not make any application for costs, shall bear its own costs.

115.

    The United Kingdom shall bear its own costs, in accordance with the firstsubparagraph of Article 87(4) of the Rules of Procedure.

On those grounds,

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

hereby:

1.    Dismisses the action for annulment as unfounded;

2.    Orders the applicant to bear its own costs, as well as those of theCommission and La Poste;

3.    Orders the United Kingdom of Great Britain and Northern Ireland and thePost Office to bear their own costs.

VesterdorfBriët Lindh             Potocki                        Cooke

Delivered in open court in Luxembourg on 16 September 1998.

H. Jung

B. Vesterdorf

Registrar

President

1: Language of the case: English.

ECR