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

16 September 1998 (1)

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

In Cases T-133/95 and T-204/95,

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,

in Cases T-133/95 and T-204/95,

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,

Deutsche Post AG, represented by Dirk Schroeder, Rechtsanwalt, Cologne, with anaddress for service in Luxembourg at the Chambers of Loesch and Wolter, 11 RueGoethe,

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,

and, in Case T-133/95,

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,31 Grand-Rue,

interveners,

APPLICATIONS for, in substance, the annulment of the Commission decisions of6 April 1995 and 14 August 1995, by which the Commission definitively rejectedthat part of the complaint filed by the applicant on 13 July 1988 against theinterception, pursuant to Article 25 of the Universal Postal Union Convention, bya number of public postal operators, of mail which had been the subject ofremailing,

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: H. Jung,

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 traditional types of remail should be added so-called 'non-physicalremail‘. In this form of remail, information from Country A is sent electronicallyto Country B, where, with or without processing, it is printed, transported and putinto the postal 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 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 in

large 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 resided.

8.

    It is not disputed that, on 17 January 1995, 14 public postal operators, 12 of themfrom the European Community, signed a preliminary agreement on terminal duesdesigned to replace the 1987 CEPT Agreement. The new agreement, referred toas 'the REIMS Agreement‘ (System for the Remuneration of Exchanges ofInternational Mails between Public Postal Operators with a Universal ServiceObligation), provides essentially for a system whereby the receiving post officewould charge the originating post office a fixed percentage of the former's domestictariff for any post received. A definitive version of this agreement was signed on13 December 1995 and notified to the Commission on 19 January 1996 (OJ 1996C 42, p. 7).

9.

    The first part of the IECC's complaint concerned the application of Article 85 ofthe EC Treaty to the CEPT Agreement.

10.

    In the second part of its complaint, the IECC claimed that a number of publicpostal operators were applying a system designed to allocate national postalmarkets on the basis of Article 23 of the UPU Convention. The IECC claimedthat the public postal operators in the United Kingdom, Germany and France(hereinafter 'the Post Office‘, 'Deutsche Post‘ and 'La Poste‘ respectively) werealso attempting to dissuade commercial companies from using the services ofprivate remail operators such as the IECC's members or that they were trying topersuade other public postal operators not to cooperate with such privateoperators, as becomes apparent from, inter alia, a letter which the Post Office sentin January 1987 to a number of public postal operators, including one within theCommunity.

11.

    The IECC further alleged that, in the spring of 1988, Deutsche Post had attemptedto discourage mailers in Germany from using remail by citing Article 23 of theUPU Convention and by intercepting and returning inbound international maildestined for addressees residing in Germany.

12.

    At the Commission's request, the IECC sent to it an additional memorandum on2 June 1989 dealing with Article 23(1) of the UPU Convention and, in particular,the problem of ABA remail.

13.

    The IECC also supplied information in October 1989 from the company TNTSkypac concerning the interception by La Poste of mail destined for Africa.

The Commission's handling of the complaint

14.

    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.

15.

    In April 1989 the Post Office assured the Commission that it had not itself used thepowers conferred by Article 23(4) of the UPU Convention, and had no intentionof doing so in the future. In June 1989 the Commission was informed by DeutschePost that the latter was prepared to abandon the use of that provision, and inOctober 1989 made it known that it was no longer applying it.

16.

    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‘.

17.

    On 7 April 1993 the Commission informed the IECC that it had adopted astatement of objections on 5 April 1993, and that this was to be sent to the publicpostal operators concerned.

18.

    The Commission sent a letter to the IECC on 13 July 1994 in which it stated: '[...]I am, however, concerned about the increasing number of incidents in which mailwhich was physically created in, e.g., the Netherlands, for the purpose of being sentto German customers, is being intercepted and declared ”non-physical ABAremail” by [Deutsche Post ...]‘.

19.

    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 RegulationNo 17 (OJ, English Special Edition 1963-1964, p. 47, hereinafter 'Regulation

No 99/63‘), should the Commission consider it unnecessary to adopt a decisionprohibiting the actions of the public postal operators.

20.

    On 23 September 1994 the Commission sent a letter to the IECC pursuant toArticle 6 of Regulation No 99/63 concerning that part of the complaint whichrelated to the CEPT Agreement. With regard to the interception of non-physicalABA remail, the Commission stated that its services 'regard this conduct as veryserious and intend to have any such abuse brought to an end‘.

21.

    On 23 November 1994 the IECC called on the Commission to define its positionon the complaint as a whole, pursuant to Article 175 of the Treaty. It alsorequested access to the case-file.

22.

    Since it formed the view that the Commission had not defined its position withinthe meaning of Article 175 of the Treaty, the IECC lodged an application on15 February 1995 for a declaration of failure to act, which was registered as CaseT-28/95.

23.

    On 17 February 1995 the Commission sent to the IECC the decision rejecting itscomplaint as regards the application of Article 85 of the Treaty to the CEPTAgreement and a letter under Article 6 of Regulation No 99/63 informing theapplicant of the reasons why the Commission could not accede to its requestconcerning interception of mail under Article 23 of the UPU Convention.

24.

    On 22 February 1995 the IECC sent to the Commission its observations on thatletter. It commented, inter alia, that:

'So far as the IECC is aware, all of the examples of restriction cited by the IECCrepresented implementation of Article 23(4) of the 1984 Universal PostalConvention against ABC remail. Since your February 17 letter makes no referenceto restrictions on ABC remail, the IECC cannot regard it as an adequatejustification for rejecting the IECC's complaint.‘

25.

    On 6 April 1995 the Commission addressed to the applicant a decision concerningthe second aspect of the complaint, in which, inter alia, it stated:

'4. The comments subsequently submitted by your legal representative, [...], on 22February 1995 do not, for the reasons set out below, contain any arguments whichwould justify a change in the Commission's position. The purpose of the presentletter is to inform you about the final decision which the Commission has reachedwith regard to the allegations in your complaint relating to the interception of mailon the basis of Article [23] of the UPU Convention.

5. Summarised briefly, the Commission's letter sent to you on 17 February 1995pursuant to Article 6 of Regulation No 99/63 identified four types of mail items

which have been subject to interception on the basis of the UPU Convention,namely commercial physical ABA remail, non-commercial or private physical ABAremail, so-called ”non-physical” ABA remail [...] and normal cross-border mail [...]

6. With respect to commercial physical ABA remail, the Commission's position isthat to the extent the commercial collection of mail from residents in country B forsubsequent remailing in country A to final destinations in country B constitutes acircumvention of the national monopoly for domestic letter delivery laid down bythe law of country B, the interception of such mail when it is re-entering countryB may be considered to be legitimate action under the current circumstances andtherefore does not constitute an abuse of a dominant position in the sense ofArticle 86 of the EC Treaty. [...] [The] Commission [...] has [...] specifically notedthat such circumvention of the national monopoly is ”rendered profitable becauseof the present unbalanced levels of terminal dues” and that it is precisely for thisreason that some form of protection is justifiable at this stage. [...]

7. With respect to the interception of non-commercial physical ABA remail, ”non-physical” remail and normal cross-border mail, the Commission's position is thatto the extent the IECC's members do not engage in activities involving this type ofmail, they are not harmed in their business activities by the interception of suchmail and thus have no legitimate interest as required pursuant to Article 3(2) ofRegulation No 17 for applications to the Commission with respect to infringementsof the competition rules.

[...] In the Commission's view [...] so-called ”non-physical remail” involves thefollowing scenario: a multinational company, for example a bank, [...] sets up acentral printing and mailing facility in one particular Member State ”A”;information is sent by electronic means from all the bank's subsidiaries andbranches to the central service centre, where the information is transformed intoactual physical letter-items, e.g. bank statements, which are then prepared forpostage and submitted to the local postal operator [...]

[...] [There] are in our view no indications as to how the IECC's members could beinvolved in this type of arrangement. [...]

8. For the above considerations I inform you that your application of 13 July 1988pursuant to Article 3(2) of Regulation No 17/62, as far as the interception ofcommercial physical ABA remail, non commercial physical ABA remail, ”non-physical” remail and normal cross-border mail is concerned, is hereby rejected.‘

26.

    On 12 April 1995 the Commission addressed to the IECC a letter pursuant toArticle 6 of Regulation No 99/63 regarding application of the competition rules tothe interception of ABC remail. The IECC replied to that letter on 9 June 1995.

27.

    On 14 August 1995 the Commission adopted a final decision concerning theinterception of ABC remail by certain public postal operators, in which it statedinter alia as follows:

'(A) Interception of ABA remail

3.[...] [You] have received a letter dated 6 April 1995 [...] indicating that the partof your complaint relating to the interception of commercial physical ABA remail,non-commercial physical ABA remail, ”non-physical” remail and normal cross-border mail has been rejected. [...]

(B) Interception of ABC remail

[...]

6. The letter from [the IECC] of 9 June 1995 states that (i) the Commission nolonger has jurisdiction to take a further decision in this matter, and (ii) even if theCommission had such jurisdiction, the rejection of this aspect of the complaint [...]was inappropriate for a number of reasons. [...]

[...]

11. On 21 April 1989 the UK Post Office gave assurances to the Commission thatit had not itself used powers under article 23(4) UPU, nor did it intend in futureto do so. Likewise, the then German Bundespost Postdienst informed theCommission on 10 October 1989 that it no longer applied Article 23(4) to ABCremail between Member States. [...]

[...]

13. Although it is true that the Commission may adopt a formal prohibitiondecision regarding anti-competitive behaviour which has in the meantime beenterminated, it is not under an obligation to do so and will decide whether such astep is appropriate in the specific circumstances of an individual case. In the caseat hand there is no evidence that the two postal operators referred to in theIECC's complaint of 1988 [...] have not abided by the undertaking which they eachgave to the Commission in 1989 to refrain from invoking Article 23(4) with respectto ABC remail. [...]

14.5. [...] The Commission would point out that the mere existence of Article 23/25of the UPU is not necessarily contrary to the Community competition rules: it isonly the exercise of the possibilities of action granted by Article 23/25 in certaincircumstances — i.e. between Member States — which may constitute a breach ofthose rules. [...]

15. The IECC's request that strict penalties be imposed on the postaladministrations in order to bring an end to the violations of EC competition law isinconsistent with the IECC's inability to produce any evidence that theinfringements are continuing or that there is a real danger of their resumption. [...]

[...]

18. [...] The French Post Office replied on 24 October 1990 maintaining that itbelieved [...] use of Article 23 UPU to be legitimate under Community law. Theincident [referred to in paragraph 13 of the present judgment] was subsequentlyreferred to in the Statement of Objections of 5 April 1993 [...]: in its response tothe Statement of Objections, the French Post Office reiterated its earlier positionthat the incident was not incompatible with Community law.

19. In the circumstances of the case, taking into account the isolated nature of theincident and that there is no evidence of recurrence of the behaviour, theCommission does not believe that it is necessary to take a prohibition decisionagainst the French Post Office. [...]‘.

Procedure

28.

    By application lodged at the Registry of the Court of First Instance on 20 June1995, the applicant brought an action under Article 173 of the Treaty seekingannulment of the decision of 6 April 1995. That action was registered as CaseT-133/95.

29.

    By application lodged at the Registry of the Court of First Instance on 28 October1995, the applicant brought an action under Article 173 of the Treaty seekingannulment of the decision of 14 August 1995. That action was registered as CaseT-204/95.

30.

    By orders of 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, La Poste and Deutsche Post to intervene in support of the formof order sought by the Commission in Case T-133/95.

31.

    By orders of 13 May 1996, the President of the Third Chamber (ExtendedComposition) of the Court of First Instance granted leave to the United Kingdom,the Post Office, La Poste and Deutsche Post to intervene in support of the formof order sought by the Commission in Case T-204/95.

32.

    On 7 August 1996 La Poste requested withdrawal of its intervention in CaseT-204/95. On 26 November 1996 the President of the Third Chamber (ExtendedComposition) of the Court of First Instance made an order removing La Poste asan intervener in Case T-204/95.

33.

    Following the report of the Judge-Rapporteur, the Court of First Instance (ThirdChamber, Extended Composition) decided to open the oral procedure. As part ofthe measures of procedural organisation, it called on a number of parties to submitdocuments and reply to questions in writing or orally at the hearing. The partiescomplied with those requests.

34.

    In accordance with Article 50 of the Rules of Procedure of the Court of FirstInstance, Cases T-28/95, T-110/95, T-133/95 and T-204/95, all brought by the sameapplicant and related in their subject-matter, were joined for the purposes of theoral procedure by order of the President of the Third Chamber (ExtendedComposition) of the Court of 12 March 1997.

35.

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

36.

    In accordance with Article 50 of the Rules of Procedure, and after hearing theparties, the Court decided to join Cases T-133/95 and T-204/95 for the purposes ofjudgment.

37.

    On 26 September 1997 the applicant requested that the oral procedure be re-opened pursuant to Article 62 of the Court's Rules of Procedure. At the Court'srequest, the Commission, the Post Office, La Poste and Deutsche Post expressedtheir view that it was unnecessary to reopen the oral procedure. The applicantsought once again to have the oral procedure reopened on 26 February 1998. TheCourt takes the view that, in the light of the documents produced by the applicant,it is not appropriate to accede to those requests. The new factors on which theapplicant relies in support of those requests either do not contain any conclusiveelement for the resolution of the proceedings or are limited to establishing theexistence of facts which clearly postdate the adoption of the contested decisions andwhich cannot therefore affect their validity.

Forms of order sought by the parties

In Case T-133/95

38.

    The applicant submits that the Court should:

—    annul the Commission decision of 6 April 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.

39.

    In its observations on the statements in intervention, the applicant further claimsthat the Court should:

—    declare inadmissible the statement in intervention of the Post Office;

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

—    order production of a number of documents.

40.

    The Commission claims that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs.

41.

    Deutsche Post submits that the Court should:

—    dismiss the application;

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

42.

    La Poste submits that the Court should:

—    dismiss the application;

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

43.

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

In Case T-204/95

44.

    In its application, the applicant claims that the Court should:

—    declare the Commission's letter of 14 August 1995 to be non-existent;

—    in the alternative, annul the Commission decision of 14 August 1995 andorder 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.

45.

    In its reply, the applicant further submits that the Court should:

—    declare the Commission's letter of 12 April 1995 to be non-existent;

—    order the Commission, pursuant to Articles 64 and/or 65 of the Rules ofProcedure, to produce, before the hearing, a number of documents onwhich it relied in its decision or in its defence, or, at least, in the event thatconfidentiality is raised, to allow the Court to examine those documents.

46.

    In its observations on the statements in intervention, the applicant also claims thatthe Court should:

—    declare inadmissible the statement in intervention of the Post Office;

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

—    order production of a number of documents.

47.

    The Commission submits that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs.

48.

    Deutsche Post submits that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs, including those of Deutsche Post.

49.

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

Admissibility of the Post Office's statements in intervention

50.

    According to the applicant, the statements in intervention lodged by the Post Officein Cases T-133/95 and T-204/95 do not comply with Article 116(4)(a) of the Rulesof Procedure in so far as they do not indicate in support of which party they weremade and must for that reason be declared inadmissible.

51.

    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 purpose otherthan to support the form of order sought by one of the main parties. It is clearfrom the Post Office's statements in intervention that their purpose was to support

the forms of order sought by the Commission, notwithstanding the fact that therewere no formal submissions to that effect. The applicant could not therefore havebeen in any serious doubt as to the scope or purpose of the statements inintervention. It should also be noted that the Post Office's applications tointervene contained, in accordance with Article 115(2)(e) of the Court's Rules ofProcedure, an indication of the forms of order sought in support of which leave tointervene was being applied for, and that the abovementioned orders of 6 February1996 and 13 May 1996, in paragraph (1) of their respective operative parts, grantedleave to the Post Office to intervene 'in support of the form of order sought by thedefendant‘. In those circumstances, the submission of the applicant must berejected.

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

52.

    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.

53.

    This claim is therefore inadmissible.

Substance

54.

    It is necessary to determine first of all (A) the scope of the decisions of 6 April1995 and 14 August 1995 since the parties hold divergent views in this regard, then(B) to examine the pleas in law specific to Case T-133/95 and (C) to examine theforms of order sought and pleas in law relating to Case T-204/95. Finally, (D) thepleas alleging misuse of powers and breach of certain general principles of law,raised in the two cases, will be considered together.

A — Scope of the decisions of 6 April 1995 and 14 August 1995

Arguments of the parties

55.

    In its reply in Case T-133/95, the applicant states that, according to paragraphs 1to 4 of the decision of 6 April 1995, that decision relates not only to interceptionsof ABA remail but also to interceptions of ABC remail. There was thereforenothing in that decision to suggest that this latter type of interception would be thesubject of the decision of 14 August 1995. Moreover, in its statement of defencein that case, the Commission acknowledged that its letter of 17 February 1995,

pursuant to Article 6 of Regulation No 99/63, related to the entire second part ofthe complaint.

56.

    The Commission, the applicant argues, is seeking to limit a posteriori the scope ofthe decision of 6 April 1995 with the sole objective of rectifying the absence of astatement of reasons by which it is vitiated. Thus, the applicant had since22 February 1995 drawn the Commission's attention to the fact that it hadneglected ABC remail in its letter of 17 February 1995.

57.

    The Commission points out that it had omitted, in its letter of 17 February 1995,to deal with the aspect of the complaint relating to ABC remail, as the applicanthad pointed out to it in its letter of 22 February 1995. This is why the decision of6 April 1995 did not deal with this aspect of the complaint, but only with the otherforms of interception.

Findings of the Court

58.

    It follows from paragraph 8 of the decision of 6 April 1995, which constitutes theconclusion thereof, and from paragraphs 5 to 7, which set out the reasoning of thatdecision, that it is limited to addressing the aspects of the complaint relating tointerception of commercial physical ABA remail, non-commercial physical ABAremail, non-physical remail and normal cross-border mail, as set out in theCommission's letter of 17 February 1995. Furthermore, the applicant had itself, inits letter of 22 February 1995 (cited above in paragraph 24), stressed the limitedscope of the Commission's letter of 17 February 1995 sent pursuant to Article 6 ofRegulation No 99/63 which preceded the adoption of the decision of 6 April 1995.

59.

    It thus follows from a reading of the decision of 6 April 1995 that the part of thecomplaint relating to ABC remail was not covered by that decision.

60.

    The fact that this omission may have resulted from oversight or even beenintentional on the part of the Commission cannot alter the objective delimitationof the scope of the decision of 6 April 1995.

61.

    Furthermore, it follows from the actual wording of the decision of 14 August 1995that that decision relates only to the Commission's final assessment of the part ofthe complaint relating to ABC remail.

62.

    The applicant's objections regarding the scope of the decisions of 6 April 1995 and14 August 1995 must therefore be rejected.

B — Pleas in law specific to Case T-133/95

The first plea in law, alleging breach of Article 190 of the Treaty

Arguments of the parties

63.

    The applicant argues in substance that the decision of 6 April 1995 is vitiated bya defective or inadequate statement of reasons with regard to the rejection of thoseaspects of its complaint concerning ABC remail and non-physical remail.

64.

    The applicant also submits that neither the statement of objections nor the letterof 17 February 1995 sent pursuant to Article 6 of Regulation No 99/63, nor thedecision of 6 April 1995 contain anything to indicate that the Commission examinedthe part of its complaint in which the applicant stated that Article 23 of the UPUConvention was implemented by means of agreements concluded for that purposeby the public postal operators, contrary to Article 85 of the Treaty.

65.

    The applicant adds that it is unacceptable that the Commission should examine thislatter aspect of the complaint in the context of a decision which it would adopt ata subsequent stage (Case T-74/92 Ladbroke v Commission [1995] ECR II-115,paragraph 60, and Case T-95/94 Sytraval and Brink's France v Commission [1995]ECR II-2651, paragraph 62). In so doing, the Commission breached Article 190of the Treaty.

66.

    The Commission maintains that the decision of 6 April 1995 concerns neither theABC remail issues nor the alleged breaches of Article 85 of the Treaty. Furthermore, the decision contains an adequate statement of reasons in regard tonon-physical remail.

Findings of the Court

67.

    It follows first of all from the Court's findings in regard to the scope of the decisionof 6 April 1995 (see paragraphs 58 to 62 above) that that decision did not concernABC remail. The plea alleging defective reasoning of the decision on this point istherefore unfounded.

68.

    Next, in that decision of 6 April 1995, the Commission took the view that theapplicant had failed to provide any information to show that its members might beinvolved in non-physical ABA remailing activities, so that they had no legitimateinterest, within the meaning of Article 3(2) of Regulation No 17. The decisiontherefore reveals, clearly and unequivocally, the Commission's reasoning. In thosecircumstances, the plea alleging an inadequate statement of reasons in this regardmust be dismissed, whilst the issue of the correctness of the Commission'sconclusion is a matter concerning the substance of the case.

69.

    Finally, it is clear from the decision of 6 April 1995 that it does not relate to thealleged infringements of Article 85 of the Treaty by the public postal operators.

It should be pointed out in this regard that the separate treatment of this aspectof the complaint does not affect the examination of its other aspects. Nor does itappear from the case-file that the applicant has argued that those different aspectscould not be treated separately, even though it was clear that the Commission wasconcentrating its examination on the application of Article 85 of the Treaty to theCEPT Agreement and on the application of Article 86 to the alleged interceptionof remail.

70.

    In the light of those factors, the plea must be dismissed in its entirety.

The second plea in law, alleging breach of Article 3(2)(b) of Regulation No 17

Arguments of the parties

71.

    The applicant argues that, by concluding that the IECC's members had nolegitimate interest in challenging the abusive practices of the public postal operatorsin regard to non-physical remail, the Commission has misapplied Article 3(2)(b) ofRegulation No 17.

72.

    First, in order to reach that conclusion, the Commission, according to the applicant,defined the concept of non-physical remail in an unnaturally restrictive way bylimiting it to non-physical ABA remail, in which IECC members, by definition, arenot engaged.

73.

    Second, the applicant submits that, by so doing, the Commission ignored thelegitimate interest which its members have in denouncing practices of the publicpostal operators in the case of non-physical ABCA remail. In this type of remail,the mail physically produced in country B is introduced by a private remail operatorinto the postal system of country C in order to be forwarded to country A. Theapplicant notes that this form of remail is in practice equivalent to ABC remail. However, on the basis of a broad construction of Article 23(1) of the UPUConvention, the public postal operators could intercept this mail by classifying it asnon-physical ABCA remail. Such an interception, under this doctrine of non-physical remail, constitutes a real threat for IECC members, a fact which theCommission overlooked.

74.

    The applicant points out that its complaint and the statement of objectionsmentioned examples of ABC remail which Deutsche Post had attempted to classifyas 'non-physical remail‘. In its letter of 13 July 1994 to the IECC, the Commissionstated that it was 'concerned‘ by the use of this doctrine of non-physical remail. In addition, it had on 5 May 1995 sent a letter to the legal representative of theLanier company, the mail of which had been intercepted by Deutsche Post. Finally,in June 1994, Deutsche Post had intercepted, on the basis of Article 23(1) of the

UPU Convention and the doctrine of non-physical remail, a large consignment ofABC mail sent by the Swiss company Matra AG.

75.

    The applicant points out finally that, in May 1994, the Executive Council of theUPU proposed extending the scope of Article 23(1) of the UPU Convention witha view to facilitating the interception of non-physical mail. That proposal, it says,was adopted in September 1996.

76.

    The Commission acknowledges that, in its statement of objections, it indicated thatthe public postal operators had had difficulties in interpreting the scope of Article23(1) of the UPU Convention. It takes the view, however, that its role is not topromulgate interpretations of the effect of applying competition law to theoreticalscenarios, but to enforce those rules in specific cases.

77.

    In this case, the Commission argues, the applicant confirms that its members arenot concerned with non-physical remail, as defined in the decision of 6 April 1995,and that non-physical ABCA remail is equivalent to ABC remail.

Findings of the Court

78.

    Article 3(2)(b) of Regulation No 17 provides that natural or legal persons claiminga legitimate interest may file a complaint alleging infringement of Articles 85 or 86of the Treaty.

79.

    It follows that the Commission was entitled, and without prejudice to its right toinstitute, where appropriate, proceedings ex proprio motu in order to establish aninfringement, not to pursue a complaint from an undertaking unable todemonstrate a legitimate interest. Determining the stage of the investigation atwhich the Commission ascertained that this condition had not been met does nottherefore matter.

80.

    In the present case, the Commission concluded, in its decision of 6 April 1995, thatthe members of the IECC had no legitimate interest in challenging the practicesrelating to non-physical ABA remail.

81.

    In its written statements, the applicant confirms that its members are, by definition,not involved in non-physical remail transactions, as defined in the decision of6 April 1995.

82.

    The fact, to which the applicant attached considerable emphasis in its writtenstatements, that its members could be concerned by another form of non-physicalremail, namely non-physical ABCA remail, given the use by the public postaloperators of the doctrine of non-physical remail, cannot affect the conclusionreached by the Commission in regard to non-physical ABA remail, the soundnessof which, moreover, the applicant recognises. The applicant also confirms that non-physical ABCA remail is, in reality, equivalent to ABC remail, which was examinedby the Commission in its decision of 14 August 1995 and will therefore beexamined by the Court in the context of the action brought against that decision.

83.

    The plea in law must therefore be rejected.

The third plea in law, alleging infringement of Articles 85 and 86 of the Treaty

The first and second limbs

— Arguments of the parties

84.

    The applicant points out first of all that the Commission bases its decision of6 April 1995, in so far as it relates to commercial ABA remail, on the premiss thatpublic postal operators have the right to intercept any mail which they consider isbeing carried in breach of their statutory monopoly. In the applicant's view, thispractice infringes the principle of the separation of commercial and regulatoryfunctions (Case C-18/88 Régie des Télégraphes et des Téléphones v GB-Inno-BM[1991] ECR I-5941, paragraphs 25 and 26).

85.

    Second, the applicant submits that the Commission's argument that interception ofABA remail is intended to protect the postal monopoly of the public postaloperators should have been justified by reference to Article 90(2) of the Treaty. It points out in this regard that the Commission suggests that ABA remailconstitutes a risk of lost business to public postal operators and also a threat to theuniversal service which they must provide.

86.

    Third, the applicant submits that the decision of 6 April 1995, in so far as it relatesto commercial ABA mail, is based on the current imbalance between costs borneby the public postal operators and terminal dues. This imbalance, it argues, ismerely the result of an unlawful price-fixing agreement between the public postaloperators.

87.

    Fourth, to maintain such a system in place amounts, in the applicant's submission,to discrimination incompatible with Article 86(c) of the Treaty.

88.

    In reply, the Commission first points out that it started from the premiss that publicpostal operators, to which the provision of a universal postal service has beenentrusted, are entitled to protect their monopoly against circumvention, particularlywhere there is an imbalance between the costs borne and the sums recoverableunder the current system of terminal dues. The Commission therefore concludedthat the interception of ABA remail, which in reality is purely internal to countryA, did not constitute an infringement of Article 86 of the Treaty. It explains that,in adopting that position, it did not apply Article 90(2) of the Treaty. In its view,

such interception does not necessarily constitute the exercise of a regulatoryfunction.

89.

    The Commission goes on to stress the difficulty which public postal operators facein enforcing their exclusive rights where post is not returned to them for internaldelivery. The Commission notes that the type of remail in question was notcovered by the CEPT Agreement.

90.

    It submits, finally, that there is no discrimination in this case, since the supplies ofservices which were the subject of different treatment are not equivalent.

91.

    Deutsche Post takes the view that a public postal operator cannot be obliged todeliver mail at a loss where that mail has been unlawfully transported abroad in anattempt to avoid application of the domestic tariff.

92.

    The United Kingdom points out that it is essential for the financial balance ofpublic postal operators, which are under an obligation to provide a universalservice, that adequate revenues be generated through sales of stamps for internalmail.

93.

    La Poste stresses that the cost of delivering mail to its final destination representsthe major part of a public postal operator's overall costs. It also expresses the viewthat the application of Community law can be guaranteed only in so far as itsprinciples are not misused with a view to bypassing legitimate rules of domestic law(Case 130/88 Van de Bijl v Staatssecretaris van Economische Zaken [1989] ECR3039 and Case C-23/93 TV 10 v Commissariaat voor de Media [1994] ECR I-4795).

— Findings of the Court

94.

    In its decision of 6 April 1995, the Commission took the view that commercial ABAremail amounted, in reality, to a circumvention of the statutory postal monopolyof the public postal operators. It went on to hold that interception of this type ofremail was lawful under present circumstances and therefore could not bedescribed as constituting an abuse within the meaning of Article 86 of the Treaty. It thus found that ABA remail prevented the public postal operator of the countryof destination from recovering its costs in delivering the mail in so far as terminaldues are not based on real costs.

95.

    Having regard to the Commission's reasoning, it is necessary to ascertain whetherthe circumstances on which it relies are such as to exclude application of Article86 of the Treaty.

96.

    The existence of the postal monopoly and, consequently, its alleged circumventionby ABA remail cannot be regarded as justifying in themselves interception of thistype of remail.

97.

    Neither national legislation conferring statutory monopolies on public postaloperators nor the UPU Convention require those public postal operators tointercept remailings. Public postal operators thus had a margin of discretionallowing them, if they thought it appropriate, not to intercept mail.

98.

    The necessity for the public postal operators to defend their monopoly cannot, assuch, remove interceptions of inward ABA mail from the scope of application ofArticle 86 of the Treaty. Such reasoning would be tantamount to excluding apractice coming within the scope of that provision solely by virtue of the existenceof a dominant position.

99.

    Contrary to the Commission's contention, the interceptions in dispute cannot beobjectively justified by the fact that the terminal dues, which constitute the publicpostal operators' remuneration in the case of ABA remail, do not enable thoseoperators to cover their costs of delivering the mail.

100.

    Although there is an imbalance between the costs which a public postal operatorbears in delivering incoming mail and the remuneration which it receives, thisimbalance is the result of an agreement concluded among the public postaloperators themselves, including the three public postal operators involved in thepresent case, under which the terminal dues are fixed amounts, determined withouttaking into account the costs actually borne by the public postal operator of thecountry of destination.

101.

    Such a practice, which in the case of an undertaking in a dominant position helpsto offset the adverse effects of a convention which it itself helped to draft and towhich it is a party, cannot be regarded as an objective justification for excludinginterception of commercial ABA mail from the scope of Article 86 of the Treaty.

102.

    Furthermore, it does not appear that the interception of incoming mail is the onlymeans by which the public postal operator of the country of destination can recoverthe costs involved in delivering that mail, as is demonstrated by the fact thatDeutsche Post has, on several occasions, simply recovered the costs from thesenders. It does not appear from the contested decision that the Commissionexamined whether other measures might be regarded as less restrictive thaninterceptions.

103.

    La Poste, the Post Office and, albeit indirectly, the United Kingdom have arguedthat interceptions of commercial ABA remail were justified, under Article 90(2) ofthe Treaty, by the need to ensure that the public postal operators complied withtheir obligation to provide a universal service. However, it is clear from thedecision of 6 April 1995 that the Commission did not refer to that provision anddid not apply it in this case, a fact which it confirmed at the hearing.

104.

    The arguments set out in that regard by those interveners therefore go beyond thescope of these proceedings. In the review of legality which it must perform underArticle 173 of the Treaty, the Court is therefore not required to address thosearguments.

105.

    It must be concluded that the Commission erred in law in finding that interceptionsof commercial ABA remail did not constitute an abuse within the meaning ofArticle 86 of the Treaty.

106.

    Consequently, the decision of 6 April 1995 must be annulled in so far as it dealswith the Commission's assessment of the legality of interceptions of commercialABA remail by public postal operators.

107.

    In those circumstances, it is unnecessary to rule on the other arguments raised bythe applicant in connection with the first and second limbs of this plea.

The third and fourth limbs

108.

    The applicant submits essentially that the Commission failed to uphold Articles 85and 86 of the Treaty by not striking down the efforts of the public postal operatorsto restrict the development of ABC remail and non-physical remail.

109.

    It must be pointed out at the outset that the decision of 6 April 1995 does notconcern the interception of ABC mail (see paragraphs 58 to 62 above) and that theapplicant has failed to establish that it has a legitimate interest in challengingpractices of the public postal operators concerning non-physical remail as definedin that decision.

110.

    The Court accordingly rejects these two limbs of this plea in law.

C — Forms of order sought and pleas in law specific to Case T-204/95

The main claims for an order declaring that the letter of 12 April 1995 and thedecision of 14 August 1995 are non-existent

Arguments of the parties

111.

    The applicant points out that the Commission decision rejecting the ABC remailaspect of its complaint is that of 6 April 1995, not that of 14 August 1995. Accordingly, it submits, the latter is the second decision adopted by theCommission on identical facts, which creates serious confusion regarding thevarious administrative stages.

112.

    The applicant accordingly considers that that decision of 14 August 1995 and theletter sent on 12 April 1995 pursuant to Article 6 of Regulation No 99/63 aresuperfluous. For that reason, those two measures must be declared non-existent(Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraphs48 and 49).

113.

    It adds that the dispatch of a second letter, pursuant to Article 6 of RegulationNo 99/63, and of a new decision on aspects which the decision of 6 April 1995already sought to deal with deprives it of certain essential rights, in particular thoseconferred by Article 6 of the European Convention on Human Rights, such as theright to access to an independent and impartial tribunal, the right to equality ofarms, and the right to obtain justice within a reasonable time.

114.

    Finally, the applicant argues that the Commission cannot rely on its concern toprotect the applicant's procedural rights. In its letter of 22 February 1995, theapplicant had in fact waived all procedural rights relating to the aspects which theCommission had failed to address in its letter of 17 February 1995.

115.

    The Commission contends essentially that the applicant's argument misconstruesthe scope of the decisions of 6 April 1995 and 14 August 1995. It considers that,in any event, the defects which the applicant alleges provide no foundation for adeclaration that the decision of 14 August 1995 is non-existent. Finally, it deniesthat the European Convention on Human Rights is applicable in this case.

Findings of the Court

116.

    It follows from the Court's examination of the scope of the letters of 6 April 1995and 14 August 1995 (see paragraphs 58 to 62 above) that the applicant's reasoningis based on a false premiss. In those circumstances, the argument it advances insupport of its main claim, for an order that the decision of 14 August 1995 and theCommission's letter of 12 April 1995 pursuant to Article 6 of Regulation No 99/63be declared non-existent, is invalid.

117.

    Only acts of the institutions which are tainted by an irregularity whose gravity is soobvious that it cannot be tolerated by the Community legal order are to be treatedas non-existent in law. Given the gravity of the consequences attaching to a findingthat an act of a Community institution is non-existent, such a finding must, forreasons of legal certainty, be reserved for very extreme situations (Commission vBASF and Others, cited above, paragraphs 49 and 50). In the present case, thedefects alleged by the applicant, even if they were well founded, would notconstitute an irregularity of such a nature as to lead to the decision being declarednon-existent.

118.

    This claim must therefore be rejected.

The alternative claim for annulment of the decision of 14 August 1995

1. The first plea in law, alleging infringement of Article 190 of the Treaty

(a) The first limb: failure to state reasons in regard to the alleged infringement ofArticle 85 of the Treaty by the public postal operators

Arguments of the parties

119.

    The applicant contends that the decision of 14 August 1995 infringes Article 190of the Treaty because the Commission has not sufficiently explained its reasons forrejecting the applicant's complaint in relation to the assessment, in the light ofArticle 85 of the Treaty, of the market allocation agreement put into effect by thepublic postal operators.

120.

    The Commission replies that the decision of 14 August 1995 does not relate to theapplication of Article 85 of the Treaty to the agreement in question.

Findings of the Court

121.

    A line of argument identical to this first limb was put forward in the context of thefirst plea in law in Case T-133/95. The Court accordingly dismisses this first limbof the plea on the same grounds as those indicated in paragraph 69 above.

(b) The second limb: insufficient reasoning in regard to ABC remail

Arguments of the parties

122.

    The applicant first submits that the decision of 14 August 1995 fails to explainproperly why there was no risk that Deutsche Post and La Poste would againcommit certain infringements, particularly since the Commission had adopted adifferent view in the statement of objections sent to the public postal operators.

123.

    Second, it points out that the existence of the undertakings given by the publicpostal operators, whose observance the Commission subsequently failed to monitor,does not constitute a sufficient reason justifying the radical change in the analysisby the Commission, which, in its statement of objections, had rejected the idea thatthose undertakings constituted a sufficient response to the issues raised in thecomplaint.

124.

    The Commission replies that the decision of 14 August 1995 was motivated solelyby the fact that since the time when the public postal operators concerned had

provided the undertakings it had not found or obtained any evidence that they werecontinuing to intercept ABC remail.

Findings of the Court

125.

    According to settled case-law, the statement of reasons for an individual decisionmust be such as, first, to enable the person to whom it is addressed to ascertain thematters justifying the measure adopted so that he can, if necessary, defend hisrights and verify whether or not the decision is well founded and, second, to enablethe Community judicature to exercise its power of review (Case T-5/93 Tremblayand Others v Commission [1995] ECR II-185, paragraph 29; Case T-102/92 Viho vCommission [1995] ECR II-17, paragraphs 75 and 76; and Case T-387/94 AsiaMotor France and Others v Commission [1996] ECR II-961, paragraphs 103 and104).

126.

    It is also clear from the case-law that the precise extent of the duty to state reasonsdepends on the nature of the act in question and on the context in which it isadopted (Case 819/79 Germany v Commission [1981] ECR 21, paragraph 19). Itshould be recalled here that in this case the Commission had called into question,in the statement of objections and in subsequent correspondence, certain practicesof the public postal operators concerning ABC remail.

127.

    It is clear from the decision of 14 August 1995 that the Commission formed theview, first, that it was not under any obligation to adopt a prohibition decision inregard to matters in the past.

128.

    Second, the Commission has pointed out that Deutsche Post and the Post Officehad given undertakings that they would no longer intercept ABC remail. Itconcluded that it had not found any evidence that those public postal operatorswere continuing, notwithstanding their undertakings, to intercept ABC remail. Intaking this approach, the Commission adequately fulfilled the obligation whichArticle 190 of the Treaty imposes on it in the present circumstances. Theexplanation that there were no interceptions of ABC mail during a period of morethan five years, including two years following the adoption of the statement ofobjections, indicates clearly the reasons for which the Commission's definitiveassessment differs from its previous one.

129.

    Furthermore, and irrespective of whether the assessment of the facts or thereasoning of the Commission are correct, the Commission provided sufficientreasoning for the decision of 14 August 1995 with regard to the ambiguous natureof the undertakings given by Deutsche Post, since it was reasonably entitled to formthe view that this ambiguity had been dispelled on the ground that the public postaloperator concerned had complied with the Commission's directions for severalmonths after the statement of objections had been adopted.

130.

    Third, the Commission found, in the first place, that one single instance ofinterception of ABC mail by La Poste, dating from 1989, had been identified, andthat there had subsequently been no evidence to indicate any similar interceptionsby La Poste. The Commission points out, finally, that it is not under any obligationto adopt a prohibition decision in regard to matters in the past and it concludes,in those circumstances, that the isolated nature of La Poste's interception did notjustify the adoption of a decision. In this way, the Commission provided a sufficientexplanation as to why it took the view that the interceptions of mail by La Posteshould not be the subject of a prohibition decision.

131.

    This plea must accordingly be dismissed in its entirety.

2. The second plea in law, alleging infringement of Articles 85 and 86 of the Treaty,manifest errors in the assessment of the facts and errors of law

(a) The first limb, concerning ABC remail

Arguments of the parties

132.

    The applicant submits first that the undertakings entered into by the public postaloperators in Germany and the United Kingdom were not made subject toobligations or conditions, such as obligations to submit reports, as is normal in thecontext of Regulation No 17 and Council Regulation (EEC) No 4064/89 of21 December 1989 on the control of concentrations between undertakings (OJ 1989L 395, p. 1). Furthermore, undertakings that are not published cannot eliminatethe harmful consequences of an anti-competitive agreement drawn up within theframework of the UPU Convention.

133.

    Second, the applicant takes the view that the Commission has breached its ownobligation to monitor the application of the undertakings given (Sytraval and Brink'sFrance v Commission, cited above, paragraphs 76 and 77).

134.

    Third, it challenges the view that the undertakings relate to all the practices ofwhich it accused the public postal operators in its complaint. Thus, it complainedthat the Post Office had encouraged other public postal operators to interceptremail originating in Great Britain. The Post Office, it claims, also failed torenounce the use of Article 23(1) of the UPU Convention against ABC remail byapplying the doctrine of non-physical remail.

135.

    Fourth, it draws attention to the fact that the Commission accepts in its writtenstatements that Deutsche Post could not, under German law, refrain from applyingArticle 23 of the UPU Convention and that it therefore could not reasonably give'voluntary assurances‘ incompatible with its statutory obligations.

136.

    Fifth, the applicant considers that the Commission committed a manifest error inassessing the facts when it stated that 'in the case at hand there is no evidence thatthe two postal operators referred to in the IECC's complaint of 1988 [...] have notabided by the undertaking which they each gave to the Commission in 1989 torefrain from invoking Article 23(4) with respect to ABC remail [...]‘. TheCommission ought to have been aware of a document recording efforts by theGerman Postal Regulatory Council (Regulierungsrat) in December 1995 todiscourage the use of remailing services and detailing the interception of ABCremail by Deutsche Post under the doctrine of non-physical remail in cases such asMatra AG, Citibank, GZS Bank, Gartner Group and Lanier. The Commission had,moreover, also recognised the growing number of interceptions in its letters of13 July 1994 and 23 September 1994.

137.

    Sixth, the applicant notes that, at paragraph 14.4 of the decision of 14 August 1995,the Commission stated that 'if such infringements of the undertakings had takenplace, the IECC would have been in a position to provide prima facie evidence ofthem.‘ The applicant considers that, as in the Sytraval case, it was far moredifficult for it than for the Commission to assemble the evidence of infringementsby the public postal operators. The Commission thus underestimated its obligationto investigate the complaints submitted to it.

138.

    Seventh, the applicant points out that, in paragraph 17 et seq. of the decision of14 August 1995, the Commission did not consider it necessary to adopt aprohibition decision against La Poste. The applicant considers that this position,based on the isolated nature of one incident, is unlawful in so far as La Poste hadnot declared any intention to refrain from invoking Article 23 of the UPUConvention. In adopting that decision, the Commission encouraged La Poste tomaintain its restrictive practices, contrary to Article 85 of the Treaty.

139.

    The applicant notes, finally, that the Commission never expressly invoked 'theabsence of Community interest‘ in the decision of 14 August 1995.

140.

    The Commission claims that the applicant never adduced evidence to show that thethree public postal operators concerned were continuing to intercept ABC remail. It points out that, when the decision of 14 August 1995 was adopted, it had notreceived any complaint from the IECC or any other commercial remailerdenouncing interceptions of ABC remail. It challenges the view that, in theabsence of such complaints, it is obliged to employ its limited resources in order toobtain from the public postal operators reports on their activities.

141.

    The Commission also points out that the undertakings given by the public postaloperators differ from those given by the French State in Sytraval and Brink'sFrance. The present situation can be distinguished from that in Sytraval inasmuchas it does not concern a complainant in a State-aid case. Moreover, proof ofpractices by public postal operators in relation to private operators is less difficult

to obtain than proof concerning financial activities between a State and a privatecompany.

142.

    The United Kingdom submits that the Commission is entitled to refuse to adopta prohibition decision if there is no sufficient Community interest. That, it argues,is the case here in view of the undertakings given and the lack of evidence ofsubsequent infringements. It takes the view that the applicant, in its capacity asrepresentative of a large number of companies engaged in remailing, was,moreover, particularly well placed to identify infringements and notify them to theCommission.

143.

    The Post Office argues that it conducted itself in accordance with the undertakinggiven in its letter of 21 April 1989.

144.

    Deutsche Post refers to the content of the letter which it sent to the Commissionon 10 October 1989 containing undertakings relating to ABC remail. It also pointsout that the IECC has failed to adduce any evidence of breaches of thoseundertakings.

Findings of the Court

145.

    It is clear from the decision of 14 August 1995 concerning ABC remail that theCommission did not carry out a definitive examination of the lawfulness of thepractices in question under Article 86 of the Treaty. It essentially took the viewthat, given that there had been infringements in the past and no proof that thesehad been repeated, it was not appropriate for it to exercise its power to hold thatthere had been any infringement and, for that reason, rejected the applicant'scomplaint.

146.

    Having regard, first, to the general objective which Article 3(g) of the Treatyassigns to Community action in the area of competition law, second, to the taskconferred on the Commission in this area by Article 89(1) of the Treaty and,finally, to the fact that Article 3 of Regulation No 17 does not confer on a personmaking an application under that article the right to obtain a decision, within themeaning of Article 189 of the Treaty, as to whether or not there has been aninfringement of Article 85 or Article 86 of the Treaty or of both those articles, itmust be concluded that the Commission was lawfully entitled to decide, oncondition that it provided reasons for such a decision, that it was not appropriateto pursue a complaint denouncing practices which were subsequently discontinued.

147.

    In particular, subject to review by the Community judicature, the Commission isentitled to take the view that, where operators against which a complaint has beenmade have given undertakings and the applicant has failed to provide any evidencewhatever that those undertakings have been disregarded, and the Commission has

carefully examined the facts of the case, it is unnecessary for it to examine thatcomplaint any further.

148.

    It should also be borne in mind that the Commission is not obliged to referexpressly to the concept of 'Community interest‘. It is sufficient, for this purpose,for this concept to underlie the reasoning on which the decision in question isbased.

149.

    In the present instance, the Commission concluded, in its decision of 14 August1995, that it was unnecessary to examine further the complaint in regard to thethree public postal operators against which it was directed. The case of each ofthose public postal operators must be considered in turn.

— Deutsche Post

150.

    In its letter of 30 June 1989 addressed to the Commission, referred to in thestatement of objections, Deutsche Post stated that it was prepared to forgo use ofArticle 23(4) of the UPU Convention for remail within the Community, providedthat its right to use the powers under Article 23(1) to (3) of that Convention wasrecognised. By letter of 10 October 1989, also referred to in the statement ofobjections, it indicated that it was no longer applying Article 23(4) to intra-Community ABC remail.

151.

    It also follows from the replies given by Deutsche Post during the hearing that itis not, as such, obliged under German law to intercept remailed ABC mail (seeparagraph 97 above). The undertakings given by Deutsche Post cannot thereforebe placed in question on the ground that they are incompatible with German law.

152.

    Furthermore, it follows from the replies given to the Court's written questions thatthe applicant had not informed the Commission of any proven cases of interceptionof ABC mail before the decision of 14 August 1995 was adopted. The only casegiving rise to dispute in this regard is the 'Lanier‘ case. That case, dating back to1991, is, however, pending before the German courts, which must determinewhether the intercepted mail was ABA or ABC. The existence of that singledispute, however, cannot by itself cast doubt on the lawfulness of the decision of14 August 1995. At most, the Commission could, depending on the findings of thecompetent German courts, re-open the administrative procedure if it consideredthis necessary.

153.

    The document from the German Postal Regulatory Council (see paragraph 136above) deals with ABA remail and was adopted in December 1995. TheCommission's letters of 13 July 1994 and 23 September 1994 concern thephenomenon of non-physical ABA remail, in respect of which the Commissionquite properly concluded, in its decision of 6 April 1995, that the applicant did not

have any legitimate interest, and not ABC remail. Those documents cannottherefore affect the validity of the decision of 14 August 1995 relating to ABCremail alone.

154.

    While it is true that the undertaking given by Deutsche Post relates only to Article23(4) of the UPU Convention and therefore does not rule out the possibility thatnon-physical ABCA remail, equivalent in reality to physical ABC remail, may beintercepted under a broad interpretation of Article 23(1) of the UPU Conventionby virtue of the doctrine of non-physical remail, it does not appear from thedocuments before the Court that, prior to the adoption of the decision, theapplicant had submitted to the Commission any evidence that this doctrine hadbeen applied by Deutsche Post.

155.

    In the absence of evidence adduced by the applicant, during the administrativeprocedure, that Deutsche Post had intercepted ABC mail notwithstanding itsundertakings, it must be concluded that the Commission quite rightly decided thatthere were no grounds for examining further the complaints made.

— The Post Office

156.

    The undertakings given by the Post Office on 21 April 1989 are unambiguous inregard to the present and future non-application of Article 23(4) of the UPUConvention. The Commission also correctly concluded that it had not beenestablished — or even claimed — that the Post Office had subsequently interceptedmail under that article of the UPU Convention.

157.

    In the absence of evidence provided by the applicant, during the administrativeprocedure, that the Post Office had intercepted ABC mail notwithstanding itsundertakings, it must be concluded that the Commission correctly decided that itwas unnecessary to examine further this aspect of the complaint.

158.

    However, the applicant complains that those undertakings were in two respects toonarrow in scope.

159.

    First, the question of the invitation made to other public postal operators tointercept mail from the United Kingdom is dealt with in paragraph 14.4 of thedecision of 14 August 1995. In that decision, the Commission concluded that therewas no risk that the practices which were the subject of the complaint would beresumed, referring to the undertakings given by the various public postal operatorsand to the fact that it had received no evidence that those undertakings had beenbreached.

160.

    Even if the undertakings given by the Post Office relate only to the case ofinterception of ABC mail by the Post Office itself, those undertakings, consideredin the light of the fact that there had been no allegations of fresh incitement to

intercept mail since the Post Office's letter of January 1987 addressed, in particular,to another Community public postal operator, in the light of the undertaking givenby Deutsche Post and the lack of evidence that mail had been intercepted by otherpublic postal operators, provided a sufficient basis for the Commission to concludethat there was no further risk that the Post Office would resume this practice ofincitement and that it was therefore unnecessary to examine the complaint furtherin that connection.

161.

    With regard, second, to the assessment as to whether the Post Office might invokethe doctrine of non-physical remail under a broad interpretation of Article 23(1)of the UPU Convention, it is sufficient to hold that the applicant has neitherestablished nor even claimed that the Post Office had ever applied that doctrinebefore or after it gave the undertakings in question.

— La Poste

162.

    The finding that the interception of mail by La Poste in October 1989 was anisolated incident has not been contested.

163.

    In those circumstances, and given that there has been no evidence or allegationwhatever that mail was intercepted during a six-year period, the Commission wasentitled to form the view that there was no risk that La Poste would re-offend andthat it was therefore unnecessary to examine the case further or to adopt aprohibition decision in regard to La Poste.

164.

    It follows from all of those factors that the Commission was entitled to conclude,for each of the public postal operators, that it was unnecessary to examine furtherthis aspect of the complaint. It should be borne in mind in this regard that theCommission, in its decision, did not take a definitive position on the application ofArticle 86 of the Treaty to the practices of the public postal operators in regard toABC remail. The decision does not therefore affect the applicant's right to pursueany remedy it considers appropriate should it uncover evidence that practices whichit considers to be unlawful have been resumed.

165.

    The first limb of this plea in law must therefore be rejected in its entirety.

(b) The second limb: the assessment of the existence of Article 23 of the UPUConvention with regard to competition law

Arguments of the parties

166.

    The applicant points out that, in its decision of 14 August 1995, the Commissionconcluded that the mere existence of Article 23 of the UPU Convention is not

necessarily contrary to the Community competition rules and that only the exerciseof the possibilities of action granted by that provision could, in certaincircumstances — that is to say, between Member States — constitute a breach ofthose rules.

167.

    In the applicant's view, however, for the purpose of applying Article 85(1) of theTreaty, there is no need to take account of the concrete effects of an agreementonce it is established that it has as its object the prevention, restriction or distortionof competition (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission[1966] ECR 299). In May 1994, the Executive Committee of the UPU proposedbroadening the scope of Article 23(1) of the UPU Convention. In so far as Article23 of the UPU Convention constitutes an agreement among public postal operatorsto allocate markets, it suffices for these to have acted in concert to support there-enactment of that provision, and for it to be used in the context of the REIMSAgreement, for Article 85 of the Treaty to be infringed.

168.

    The Commission contends that the public postal operators may put into effectagreements, such as the revised UPU Convention, on condition that they do notapply them in a manner contrary to Articles 85 and 86 of the Treaty. Thus, theapplication of Article 23 of the UPU Convention is acceptable provided thatneither the country in which the mail originates nor the country whose authoritiescarry out the remailing are Member States.

Findings of the Court

169.

    The applicant has failed to provide any evidence to underpin its assertion that thesupport given by each public postal operator with a view to maintaining Article 23of the UPU Convention and its use within the context of the REIMS Agreementis the result of an agreement between undertakings, a decision by associations ofundertakings or a concerted practice between undertakings within the meaning ofArticle 85(1) of the Treaty.

170.

    Moreover, even if this were the case, the applicant has not explained how theallegedly concerted support of the public postal operators with a view tomaintaining Article 23 of the UPU Convention could call into question theCommission's conclusion that the mere existence of that provision is not necessarilycontrary to the Community competition rules.

171.

    Finally, it must be pointed out that Article 23 of the UPU Convention, which isformally a convention concluded between States and of a universal nature, does notimpose an obligation to intercept mail which has been remailed. The mere factthat this provision existed could not lead the Commission to conclude that therewas a breach of the Community competition rules on the part of the public postaloperators when investigating a complaint made against them. The Commission wastherefore entitled to conclude that only reliance by the public postal operators on

that provision could come within the scope of the Community competition rules,provided that trade between Member States was affected.

172.

    The second limb of this plea in law must accordingly be rejected.

(c) The third limb: infringement of Articles 85 and 86 of the Treaty by reason ofthe absence of a prohibition decision

Arguments of the parties

173.

    The applicant first points out that interceptions of ABC mail constitute an abuseof a dominant position within the meaning of Article 86 of the Treaty, which cannotbe justified under Article 90(2) of the Treaty. Those interceptions, it claims, were,moreover, carried out pursuant to a market allocation agreement, embodied inArticle 23 of the UPU Convention. Since that agreement is implemented by publicpostal operators, each of whom has a dominant position on its respective market,the public postal operators are also committing an abuse of a collective dominantposition. From this the applicant concludes that the Commission has infringedArticles 85 and 86 of the Treaty by rejecting the complaint without adopting adecision prohibiting interceptions of ABC remail.

174.

    The applicant argues, second, that the public postal operators themselves makecomplex legal assessments concerning the application of competition law, in so faras an assessment of the lawfulness of the interception of ABC mail involves anassessment of the extent to which the postal monopoly is necessary in order toperform the public service tasks entrusted to them. It accordingly takes the viewthat those interceptions infringe the principle of the separation of commercial andregulatory functions, contrary to Article 86 of the Treaty.

175.

    The Commission submits that this limb of the plea is irrelevant. The decision, itstates, is not based on any assumption that the interception of ABC remail iscompatible with competition law.

Findings of the Court

176.

    In its decision of 14 August 1995, the Commission did not in any way approve theinterceptions of ABC mail made under Article 23(4) of the UPU Convention. Itbased its decision, in substance, on the fact that it was unnecessary to prosecutepast practices in regard to which undertakings had been given by the public postaloperators which had not been shown to have been breached. It should be bornein mind in this regard that the Court has confirmed that this assessment was wellfounded.

177.

    In the absence of any approval by the Commission of the abovementionedinterceptions, this part of the plea is irrelevant.

178.

    In view of all those factors, this plea in law must be dismissed.

D — Pleas in law common to Cases T-133/95 and T-204/95

The pleas in law alleging misuse of powers

Arguments of the parties

179.

    The applicant takes the view that the Commission has used its powers in order tofavour the sectoral interests of the public postal operators, thereby neglecting itsduty to safeguard competition.

180.

    It considers that, after an administrative procedure lasting seven years, theCommission deliberately introduced a procedural ambiguity by adopting the letterof 17 February 1995, the decision of 6 April 1995 and the letter of 12 April 1995,thus departing from the symmetry hitherto adopted in the proceedings. Theapplicant considers that this fragmentation of the decisions and the possibleadoption of a final decision on the application of Article 85 of the Treaty to theimplementation by the public postal operators of Article 23 of the UPUConvention were designed to slow down the administrative procedure for politicalreasons.

181.

    It also takes the view that the Commission's attitude runs counter to its consistentpractice, in that it did not condemn an abuse of a dominant position and agreedto terminate its investigation on the strength of mere undertakings by the publicpostal operators in Germany and the United Kingdom without requiring evidencethat those undertakings were in fact being complied with. La Poste has neveraccepted the Commission's position on the interpretation of Article 23 of the UPUConvention. Such a lax attitude on the part of the Commission is explicable onlyby the existence of considerable political pressure.

182.

    The applicant considers that Commission Members Brittan and Van Miert, in theirrespective speeches of 19 May 1992 and 7 April 1993, recognised that the remailcase was being treated in a political manner. It argues that this is also clear fromthe priority which the Commission granted to the adoption of the Green Paper onpostal services as compared with the adoption of prohibition decisions in the remailcase.

183.

    It also points out that, in his letter of 28 March 1995, Mr Van Miert pointed outto the German Minister for Posts and Telecommunications that: 'In conclusion, Iwish to state that the IECC's complaint [...] is now unfounded.‘ Thus, theCommission informed the applicant of the adoption of a final decision relating to

its complaint only after it had informed that Minister. The applicant accordinglytakes the view that the Commission misused its powers by thus submittingconfidential information to third parties prematurely. That letter also demonstratesthe Commission's wish not to intervene in numerous cases of interceptions of mailso as not to displease the German authorities.

184.

    According to the applicant, the Commission's strategy of delaying the procedure inthe remail case is the same as that which it adopted when dealing with othercomplaints lodged against public postal operators.

185.

    In its reply in Case T-204/95, the applicant states that it repeatedly requestedaccess to the file, and this was refused by the Commission, either in writing ororally. In so doing, the applicant claims, the Commission infringed its rights ofdefence, the principle of equality of arms and the right to a hearing, therebyconfirming the Commission's misuse of powers.

186.

    The Commission denies that the decisions of 6 April 1995 and 14 August 1995 arevitiated by a misuse of powers.

187.

    It takes the view that the applicant's arguments concerning access to the fileconstitute new pleas in law which are not based on matters of law or of fact comingto light in the course of the procedure. They are therefore inadmissible underArticle 48(2) of the Court's Rules of Procedure.

Findings of the Court

188.

    It has consistently been held that a decision is vitiated by misuse of powers only ifit appears, 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; Case T-5/93 Tremblayand Others v Commission, cited above, paragraph 87 et seq.).

189.

    In the present cases, the length of the administrative procedure which led to theadoption of the two decisions is justified in large measure by the complexity of theeconomic aspects of the issues raised, the number of public postal operatorsinvolved, the parallel adoption of the Green Paper on postal services, and the factthat implementation of a replacement system such as the REIMS Agreement —which also influenced the Commission in its assessment of the ABA and ABC mailinterceptions — required a considerable length of time.

190.

    In his speech of 19 May 1992, which the applicant itself cites, Sir Leon Brittanstated, moreover, that the Commission was pursuing a twin approach in the postalsector with a view to ensuring in parallel the application of the rules oncompetition and the adoption of legislation designed to liberalise the sector. The

statement of 7 April 1993 by Mr Van Miert, cited by the applicant, must also beconstrued in the light of this twin approach. In a case such as that here at issue,which formed part of the more general background to the Commission's thinkingon the future of the postal sector within the Community, this twin approach wasjustified. There is therefore nothing to justify the view that this twin approachreflects a misuse of powers vitiating the decisions of 6 April 1995 and 14 August1995.

191.

    With regard to the allegedly ambiguous scope of the decision of 6 April 1995 andthe alleged intention on the Commission's part to delay adoption of a final decisionclosing the entire remail case for political reasons by dividing up the case, it issufficient to reiterate that it follows from the actual wording of the letter of17 February 1995 and the decision of 6 April 1995 that the latter decision did notrelate to the whole of the complaint. Furthermore, once the Commission intendedto reject the other aspects of the complaint by adopting a formal decision, it wasrequired, in accordance with Article 6 of Regulation No 99/63, to send to thecomplainant a new letter indicating to it, inter alia, the grounds justifying itsdecision not to uphold its complaint. Nor has the applicant established that thefragmentation of the replies given to the various aspects of the complaint couldhave affected the way in which the complaint was handled by the Commission orthat the Commission had the aim of delaying the processing of the complaint.

192.

    The fact that the Commission informed the German Minister for Posts andTelecommunications of the outcome of the complaint some days before theapplicant itself was notified does not establish that the decision of 6 April 1995 wasadopted for purposes other than those stated.

193.

    Furthermore, the applicant's reference to the manner in which the Commissiondealt with other complaints or legal proceedings, but relating to postal activitiesclearly distinct from remail, is irrelevant in determining whether, in the presentinstance, the adoption of the decisions in question was vitiated by a misuse ofpowers.

194.

    The arguments on access to the file are not a specific plea in law advanced by theapplicant but, according to the applicant, merely an additional indication of themisuse of power alleged in its application. Consequently, the plea of inadmissibilityraised by the Commission on the basis of Article 48(2) of the Rules of Procedureis not well founded.

195.

    However, even if it is assumed that the applicant did not have proper access to thefile, that fact could not in itself establish that the decision of 14 August 1995,annulment of which is sought in Case T-204/95, was adopted for purposes otherthan those stated.

196.

    In those circumstances, the pleas in law alleging misuse of powers must bedismissed.

The plea in law alleging infringement of certain general principles of law

Arguments of the parties

197.

    In the first limb of this plea, the applicant alleges that the Commission infringedthe principles of legal certainty, of the protection of legitimate expectations and ofsound administration by issuing a letter on 12 April 1995 under Article 6 ofRegulation No 99/63 when a final decision addressing the whole of the complainthad already been adopted. The issue of that letter placed the applicant in asituation of uncertainty as to the effects of the decision of 6 April 1995. Thoseprinciples were also infringed in so far as that decision left uncertain theacceptability of the doctrine of non-physical remail.

198.

    In the second limb, the applicant contends that, by sending out warning letters,publishing press releases and speeches of Commission Member Sir Leon Brittan,and adopting a statement of objections in a case similar to earlier cases in whichit had adopted prohibition decisions, the Commission gave to understand that itwould apply the competition rules in this case. That attitude gave rise to a justifiedexpectation on the applicant's part that a final prohibition decision would beadopted.

199.

    In the third limb, the applicant submits that the principle of non-discrimination hasbeen infringed inasmuch as the Commission does not usually rely on such narrowly-drawn and incomplete assurances when refraining from penalising undertakingswhich have infringed competition law.

200.

    In the final limb, the applicant submits that the Commission infringed the principleof sound administration because it took 81 months to adopt the final decision ofrejection (Sytraval and Brink's France v Commission, cited above, paragraph 56).

201.

    The Commission points out that the letter of 12 April 1995 was sent for thepurpose of protecting the applicant's right to be heard. It also points out that,according to the case-law, a complainant does not have a right to obtain a decisionas to the existence of an infringement and cannot therefore have any legitimateexpectation of obtaining such a decision. Finally, the Commission denies that thelength of time taken to deal with the complaint allows the applicant to challengethe manner in which it has exercised its powers.

Findings of the Court

202.

    The first limb of the plea is based on the assumption that the decision of 6 April1995 rejected the complaint in its entirety. It follows from the Court's assessment

of the scope of that decision (see paragraphs 58 to 62 above) that this was not thecase. The first limb of the plea must therefore be rejected.

203.

    With regard to the second limb of the plea, Article 3 of Regulation No 17 does notconfer upon a person who lodges an application under that article the right toobtain from the Commission a decision, within the meaning of Article 189 of theTreaty, regarding the existence or otherwise of an infringement of Article 85 orArticle 86 of the Treaty (see, in particular, Tremblay and Others v Commission,cited above, paragraph 59). Consequently, irrespective of how far the case hadprogressed and the stage which the Commission had reached in examining thecomplaint, the applicant was not entitled to entertain any well-founded expectationthat a decision would be adopted prohibiting the practices of which it complained.

204.

    As regards the third limb, the applicant has failed to establish that, in a situationcomparable to the one here, the Commission would none the less have foundagainst the undertakings in question. The applicant has thus failed to establish itsclaim that the principle of non-discrimination was infringed.

205.

    Finally, as far as the unduly long duration of the administrative procedure isconcerned, reference is made to paragraph 189 et seq. of this judgment setting outin detail the reasons for which the relatively long period of time taken by theCommission in adopting the final decisions of rejection is justified.

206.

    For all those reasons, this plea in law must be dismissed.

The request for production of documents

207.

    In its reply in Case T-204/95 and its observations on the statements in interventionin Cases T-133/95 and T-204/95, the applicant called on the Court to orderproduction of certain documents.

208.

    Within the context of measures of organisation of procedure, the Court orderedthat a number of those documents be produced. Since production of the remainingdocuments does not appear necessary for the purpose of resolving Case T-204/95,it is not necessary to grant the applicant's request in regard to those documents.

Costs

209.

    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 in CaseT-204/95, it shall pay the Commission's costs in that case. Since the Commissionhas been partially unsuccessful in its submissions in Case T-133/95, it shall pay theapplicant's costs in that case.

210.

    In accordance with the first subparagraph of Article 87(4) of the Rules ofProcedure, Member States which intervene in proceedings are to bear their owncosts. The United Kingdom shall therefore bear its own costs. In accordance withthe second subparagraph of Article 87(4) of the Rules of Procedure, the Court mayorder an intervener other than that mentioned in the first subparagraph to bear itsown costs. Since the various public postal operators which have made interventionshave been unsuccessful in their submissions in Case T-133/95 but have succeededin Case T-204/95, it is appropriate that each intervener should bear its own costsin Cases T-133/95 and T-204/95.

On those grounds,

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

hereby:

1.    Joins Cases T-133/95 and T-204/95 for the purposes of the judgment;

2.    Annuls the decision of 6 April 1995 in so far as it concerns commercialphysical ABA remail;

3.    Dismisses the remainder of the actions;

4.    Orders the Commission to bear the applicant's costs in Case T-133/95;

5.    Orders the applicant to bear the Commission's costs in Case T-204/95;

6.    Orders the interveners to bear their own costs in Cases T-133/95 andT-204/95.

Vesterdorf Briët Lindh         Potocki                            Cooke

Delivered in open court in Luxembourg on 16 September 1998.

H. Jung

B. Vesterdorf

Registrar

President

Summary

    The facts

II - 3

        The International Express Carriers Conference (IECC) and remail

II - 3

        Terminal dues and the Universal Postal Union Convention

II - 3

        The IECC's complaint and the 1987 CEPT Agreement

II - 5

        The Commission's handling of the complaint

II - 6

    Procedure

II - 10

    Forms of order sought by the parties

II - 11

        In Case T-133/95

II - 11

        In Case T-204/95

II - 12

    Admissibility of the Post Office's statements in intervention

II - 13

    Admissibility of the claim for an order requiring the Commission to adopt appropriatemeasures to comply with its obligations under Article 176 of the Treaty

II - 14

    Substance

II - 14

        A — Scope of the decisions of 6 April 1995 and 14 August 1995

II - 14

            Arguments of the parties

II - 14

            Findings of the Court

II - 15

        B — Pleas in law specific to Case T-133/95

II - 15

            The first plea in law, alleging breach of Article 190 of the Treaty

II - 16

                Arguments of the parties

II - 16

                Findings of the Court

II - 16

            The second plea in law, alleging breach of Article 3(2)(b) of Regulation No17

II - 17

                Arguments of the parties

II - 17

                Findings of the Court

II - 18

            The third plea in law, alleging infringement of Articles 85 and 86 of theTreaty

II - 19

                The first and second limbs

II - 19

                    — Arguments of the parties

II - 19

                    — Findings of the Court

II - 20

                The third and fourth limbs

II - 22

        C — Forms of order sought and pleas in law specific to Case T-204/95

II - 22

            The main claims for an order declaring that the letter of 12 April 1995 and thedecision of 14 August 1995 are non-existent

II - 22

                Arguments of the parties

II - 22

                Findings of the Court

II - 23

            The alternative claim for annulment of the decision of 14 August 1995

II - 24

                1. The first plea in law, alleging infringement of Article 190 of the Treaty

II - 24

                    (a) The first limb: failure to state reasons in regard to the allegedinfringement of Article 85 of the Treaty by the public postaloperators

II - 24

                    Arguments of the parties

II - 24

                    Findings of the Court

II - 24

                    (b) The second limb: insufficient reasoning in regard to ABC remail

II - 24

                    Arguments of the parties

II - 24

                    Findings of the Court

II - 25

                2. The second plea in law, alleging infringement of Articles 85 and 86 of theTreaty, manifest errors in the assessment of the facts and errors of law

II - 26

                    (a) The first limb, concerning ABC remail

II - 26

                    Arguments of the parties

II - 26

                    Findings of the Court

II - 28

                    — Deutsche Post

II - 29

                    — The Post Office

II - 30

                    — La Poste

II - 31

                    (b) The second limb: the assessment of the existence of Article 23 of theUPU Convention with regard to competition law

II - 31

                    Arguments of the parties

II - 31

                    Findings of the Court

II - 32

                    (c) The third limb: infringement of Articles 85 and 86 of the Treaty byreason of the absence of a prohibition decision

II - 33

                    Arguments of the parties

II - 33

                    Findings of the Court

II - 33

        D — Pleas in law common to Cases T-133/95 and T-204/95

II - 34

            The pleas in law alleging misuse of powers

II - 34

                Arguments of the parties

II - 34

                Findings of the Court

II - 35

            The plea in law alleging infringement of certain general principles of law

II - 37

                Arguments of the parties

II - 37

                Findings of the Court

II - 37

    The request for production of documents

II - 38

    Costs

II - 38

1: Language of the cases: English.

ECR