JUDGMENT OF THE COURT (Fifth Chamber)

30 March 2000 (1)

(Appeal - Competition - Closure of procedure on a complaint in the absence ofa response by the complainants within the time-limit notified to them -Compatibility with Article 85(1) of the Treaty of a fee levied on suppliers whohave concluded agreements relating to the delivery of floricultural products toundertakings established on the premises of a cooperative auction society -Compatibility with Article 85(1) of the EC Treaty of an exclusive purchaseobligation accepted by certain wholesalers reselling such products to retailers ina specific trading area forming part of the same premises - Discrimination -Effect on trade between Member States - Assessment by reference to a body ofrules taken as a whole - Lack of appreciable effect)

In Case C-266/97 P,

Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer BA (VBA),established in Aalsmeer (Netherlands), represented by G. van der Wal, of theBrussels bar, with an address for service in Luxembourg at the Chambers of A.May, 398 Route d'Esch,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Second Chamber, Extended Composition) of 14 May 1997 in CaseT-77/94 VGB and Others v Commission [1997] ECR II-759, seeking to have thatjudgment set aside,

the other parties to the proceedings being:

Vereniging van Groothandelaren in Bloemkwekerijproducten (VGB), Florimex BV,Inkoop Service Aalsmeer BV and M. Verhaar BV, established in Aalsmeer(Netherlands), represented by J.A.M.P. Keijser, of the Nijmegen Bar, with anaddress for service in Luxembourg at the Chambers of A. Kronshagen, 22 RueMarie-Adélaïde,

defendants at first instance,

and

Commission of the European Communities, represented by B.J. Drijber, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida, acting for the President of the Chamber,L. Sevón, J.-P. Puissochet, P. Jann (Rapporteur) and M. Wathelet, Judges,

Advocate General: A. Saggio,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 17 December 1998,at which Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer BA(VBA) was represented by G. van der Wal, Vereniging van Groothandelaren inBloemkwekerijproducten (VGB), Florimex BV, Inkoop Service Aalsmeer BV andM. Verhaar BV by J.A.M.P. Keijser and the Commission by W. Wils, of its LegalService, acting as agent,

after hearing the Opinion of the Advocate General at the sitting on 8 July 1999,

gives the following

Judgment

1.

    By application lodged at the Registry of the Court of Justice on 19 July 1997,Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer BA(hereinafter 'VBA‘) brought an appeal pursuant to Article 49 of the EC Statuteof the Court of Justice against the judgment of the Court of First Instance of 14May 1997 in Case T-77/94 VGB and Others v Commission [1997] ECR II-759(hereinafter 'the contested judgment‘) by which it annulled the decision of theCommission contained in a letter of 20 December 1993 (hereinafter 'the contesteddecision‘), refusing to act on the complaints lodged by the Vereniging vanGroothandelaren in Bloemkwekerijproducten (hereinafter 'the VGB‘), FlorimexBV (hereinafter 'Florimex‘), Inkoop Service Aalsmeer BV (hereinafter 'InkoopService Aalsmeer‘) and M. Verhaar BV (hereinafter 'Verhaar‘) concerning thetrade agreements concluded by the VBA with a number of its suppliers.

2.

    By document lodged at the Registry of the Court of Justice on 30 October 1997,the VGB, Florimex, Inkoop Service Aalsmeer and Verhaar brought a cross-appealagainst the contested judgment in so far as it had dismissed their pleas in law andarguments concerning the Commission's refusal to uphold their complaints againstthe agreements relating to the Cultra commercial centre (hereinafter 'the Cultraagreements‘) concluded by the VBA with certain wholesalers.

The facts before the Court of First Instance

3.

    It is apparent from the contested judgment that the VBA is a cooperative societyconstituted under Netherlands law, whose members are growers of flowers andornamental plants, which organises, on its premises at Aalsmeer, Netherlands,auction sales of floricultural products. A part of its premises is reserved for therenting-out, in particular to wholesalers of and dealers in indoor plants, of'processing rooms‘ for the purposes of wholesale trade in floricultural products(paragraph 1).

4.

    The VGB is an association comprising numerous Netherlands wholesalers offloricultural products and wholesalers established on the VBA's premises(paragraph 2).

5.

    Florimex is an undertaking engaged in the flower trade, established in Aalsmeerclose to the VBA complex. It imports floricultural products from Member Statesof the European Community, mainly for resale to wholesalers established in theNetherlands (paragraph 3).

6.

    Verhaar is a wholesaler of floricultural products established on the premises of theVBA complex. Inkoop Service Aalsmeer is a subsidiary of Verhaar established inthe Cultra commercial centre, on the VBA's premises (paragraph 4).

7.

    Article 17 of the VBA's statutes requires its members to sell through it all productsfit for sale cultivated on their holdings. A fee or commission ('auction fee‘) isinvoiced to the members for the services provided by the VBA. In 1991, that feeamounted to 5.7% of the proceeds of sale (paragraph 5).

8.

    Until 1 May 1988, Article 5(10) and (11) of the VBA's auction rules prevented theuse of its premises for supplies, purchases and sales of floricultural products notpassing through its own auctions. In practice, the VBA granted authorisation forcommercial transactions on its premises in products not passing through its auctionsonly under certain standard contracts known as 'handelsovereenkomsten‘ (tradeagreements) or against payment of a 10% levy (paragraph 6).

9.

    Under those trade agreements, the VBA allowed certain dealers to sell and supplyto purchasers approved by it, against payment of a levy, certain floriculturalproducts bought in other auctions in the Netherlands or cut flowers of foreignorigin (paragraphs 7 and 8).

10.

    Following a complaint from Florimex, the Commission adopted Decision88/491/EEC on 26 July 1988 relating to a proceeding pursuant to Article 85 of theEEC Treaty (IV/31.379 - Bloemenveilingen Aalsmeer, OJ 1988 L 262, p. 27,hereinafter 'the 1988 decision‘) (paragraph 13).

11.

    In the operative part of the 1988 decision the Commission declared, in particular,that the agreements concluded by the VBA whereby the dealers established on theVBA's premises and their suppliers were required, first, to deal in and/or havedelivered on the VBA's premises floricultural products not bought through theVBA only with the consent of the VBA and under the conditions laid down by itand, secondly, to store on the VBA's premises such products only against paymentof a fee determined by the latter constituted infringements of Article 85(1) of theEC Treaty (now Article 81(1) EC).

12.

    It found moreover that the charges for the prevention of irregular use of the VBAfacilities imposed by the VBA on the dealers established on its premises as well asthe trade agreements concluded between the VBA and those dealers alsoconstituted, as notified to the Commission, such infringements (paragraph 14).

13.

    As from 1 May 1988, the VBA formally removed the purchase obligations andrestrictions on the free disposal of goods imposed by its auction rules but at thesame time introduced a 'user fee‘ ('facilitaire heffing‘). The VBA also introducedamended versions of the trade agreements (paragraph 15).

14.

    The user fee is levied, on the basis of the number of stalks (cut flowers) or ofplants supplied, on deliveries made by third parties to dealers established on theVBA's premises. The amount of the fee is determined by the VBA on the basis ofthe annual average prices achieved in the course of the previous year for thevarious floricultural products concerned. According to the VBA, a factor of around4.3% of the average annual price of the category concerned is applied. Instead ofa fee levied per stalk or per plant, a supplier may opt to pay a fee of 5%, alsocovering collection of payments by the VBA (paragraph 16).

15.

    By circular of 29 April 1988, the VBA removed, with effect from 1 May 1988, therestrictions previously contained in the trade agreements. Since then three types oftrade agreement have existed. All the agreements apply a fee of 3% of the grossvalue of the goods supplied to customers on the VBA's premises. According to theVBA, the products concerned are for the most part those not grown in sufficientquantities in the Netherlands (paragraphs 17 and 18).

16.

    Small dealers, in general retailers, are in practice excluded from the auction sales.However, they have an opportunity to buy at the Cultra commercial centreestablished on the VBA's premises, comprising six 'cash-and-carry‘ stores, of whichtwo are wholesalers of cut and dried flowers, two are wholesalers of indoor plants(one of them being Inkoop Service Aalsmeer), one is a wholesaler of garden plantsand one is a wholesaler of hydroponic plants. With the exception of the one sellinghydroponic plants, those wholesalers are contractually required to obtain theirgoods through the VBA (paragraph 20).

17.

    On 19 July 1988, the VBA notified the Commission of a number of amendmentsto its rules, relating in particular to the new user fee, but that notification did notconcern the new trade agreements. On 15 August 1988, additional amendments tothe VBA rules were notified to the Commission (paragraphs 21 and 23).

18.

    The Cultra agreements were also notified to the Commission on 15 August 1988(paragraph 24).

19.

    By letters of 18 May, 11 October and 29 November 1988, Florimex formally lodgeda complaint against the user fee with the Commission. The VGB lodged a similarcomplaint by letter of 15 November 1988 (paragraphs 25 and 26).

20.

    By letters of 3 May 1989, Florimex and the VGB expressed their opposition to theCommission's intention to adopt a favourable decision regarding the user fee andthe Cultra agreements, and lodged formal complaints regarding the tradeagreements (paragraph 29).

21.

    On 3 May 1989 Verhaar and Inkoop Service Aalsmeer also lodged a complaintwith the Commission concerning the Cultra agreements and the new tradeagreements (paragraph 30).

22.

    On 7 February 1990, the VBA notified the new trade agreements to theCommission (paragraph 31).

23.

    By letter of 24 October 1990, the Commission informed the complainants of itsintention to adopt a decision favourable to the VBA, in particular with regard tothe obligation to sell by auction imposed on VBA members and the user fee. It alsoindicated that the file concerning the Cultra agreements would be closed withouta formal decision being adopted. The Commission also stated its intention to closethe file concerning the new trade agreements without adopting a formal decision(paragraph 32).

24.

    The complainants repeated their arguments in letters of 26 November and 17December 1990 and at a meeting with Commission staff dealing with the matter on27 November 1990. In particular, they asked the Commission formally to processthe complaints lodged with it (paragraph 33).

25.

    By letter of 4 March 1991, the Commission informed the complainants inaccordance with Article 6 of Commission Regulation No 99/63/EEC of 25 July 1963on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17(OJ, English Special Edition 1963-64, p. 47), that the information obtained did notenable the Commission to uphold their complaints regarding the user fee levied bythe VBA (paragraph 34).

26.

    The considerations of fact and law which led the Commission to reach thatconclusion are set out in detail in a document annexed to the aforementioned letterof 4 March 1991 (paragraph 35).

27.

    In that document, the Commission concluded:

'It is clear from a comparison of the auction fees and the user fees that broadequality of treatment is guaranteed as between suppliers. Admittedly, a proportionof the auction fees, which cannot be precisely determined, represents payment forthe service provided by the auction, but in so far as the rate of the auction fees canbe compared with that of the user fees in this case, that service is a quid pro quofor the assumption of supply obligations. Dealers who have concluded tradeagreements with the VBA also assume such supply obligations. Consequently, therules on user fees do not have effects which are not compatible with the commonmarket‘ (paragraph 37).

28.

    By letter of 17 April 1991, the complainants stated in reply to the letter of 4 March1991 that they maintained their complaints regarding the user fee, the Cultraagreements and the trade agreements. They also claimed that that letter did notdeal either with the Cultra agreements or with the new trade agreements, so thata letter under Article 6 of Regulation No 99/63 was lacking in that connection(paragraph 38).

29.

    By decision of 2 July 1992, the Commission definitively rejected the applicants'complaints regarding the user fee (paragraph 39).

30.

    By letter of 5 August 1992, the Commission wrote to the applicants in the followingterms:

'On the basis of the information you have provided in connection with your actionsand on the basis of the information obtained by the Commission throughnotifications and through its own investigation, the Directorate General forCompetition has, for the time being at least, closed its investigation in the presentcases regarding the ”type I, II and III agreements” and the ”Cultra agreements”.

It is most unlikely, in the light of the following observations, that your applicationswill be upheld.

1.    The trade agreements

The trade agreements focus on securing, as is considered necessary by the VBA,additional supply on its premises. In order to guarantee such additional supply, theVBA enters into agreements with traders who are prepared to commit themselvesto offering a specific quantity of products.

The traders who enter into such trade agreements do not have to pay the user feefor the specific products mentioned in the agreement. They pay a collectioncommission of 3%. For other products which they offer for sale, they must pay theuser fee.

Provided that they pay the user fee, all traders established on the VBA's premisesmay offer for sale products also offered by the holders of trade agreements.

A comparison between the financial burdens imposed by the VBA on traders whoare parties to trade agreements and traders who have not concluded suchagreements would indicate that the holders of trade agreements are privileged. Onthe other hand, they enter into obligations vis-à-vis the VBA regarding the supplyof certain products.

It cannot therefore be considered that the VBA applies dissimilar conditions toequivalent transactions with other trading parties, within the meaning of Article85(1)(d) of the EEC Treaty. Moreover, the file contains no conclusive evidence thattrade between Member States might be appreciably affected, even if there were arestriction of competition within the meaning of Article 85(1).

2.    The Cultra agreements

...

The VBA and the dealers established at the Cultra centre have a contractualrelationship whose purpose and effect is to restrict competition, involving both alimitation on the business activities of those dealers and a limitation on theirsources of supply (this does not apply to the dealer in hydroponic plants). However,the file contains no conclusive evidence to show that trade between Member Statesis thereby appreciably affected. The limited economic impact on the markets inquestion rules this out. Since the information which the Commission has obtainedin that regard comprises business secrets of the undertakings concerned, it is notpossible to allow you access to it.

In view of those considerations, and to the extent to which it is possible to judgeat this stage, continuing the procedure is likely to result in a formal rejection of thecomplaints.

On the basis of this - still provisional - assessment of your application, I thus havethe intention of dispensing with any such formal procedure and of bringing thematter to a close. I shall take the necessary measures for that purpose unless youinform me within four weeks that you wish to maintain your complaint with a viewto continuation of the procedure, and set forth the arguments on which you intendto rely to that end‘ (paragraph 40).

31.

    On 21 September 1992, Florimex and the VGB instituted proceedings before theCourt of First Instance in Cases T-70/92 and T-71/92 against the Commission'sdecision of 2 July 1992. The Commission's letter of 5 August 1992 is annexed to theapplications in those cases and is described by the applicants as a letter pursuantto Article 6 of Regulation No 99/63 (paragraph 41).

32.

    On 22 December 1992, the applicants' lawyer replied on behalf of the fourcomplainants to the letter of 5 August 1992, stating that certain circumstances hadprevented him from reacting earlier. He stated that the applicants wished tomaintain their complaints and he also expressed the wish that the Commissionextend the time-limit of four weeks mentioned in the aforementioned letter(paragraph 42).

33.

    That letter of 22 December 1992 drew no response from the Commission. Since thehealth of their lawyer had seriously deteriorated, the applicants appointed a newlawyer on 3 November 1993. By letter of 9 December 1993, the new lawyer askedthe Commission to take a position on the letter of 22 December 1992 (paragraph43).

34.

    By letter of 20 December 1993, the Commission replied to the letter of 9December 1993, referring to the last paragraph of its letter of 5 August 1992, andadding the following:

'When the letter of 22 December 1992 was received, the period of four weeksgranted to your client to submit observations on the content of the registered letterof 5 August 1992 had expired months earlier.

The Commission Directorate-General for Competition took account of theinformation provided in your letter of 22 December 1992, on its own initiative.However, a provisional examination then carried out did not disclose any reasonto take action under Articles 85(1) or 86 of the Treaty‘ (paragraph 44).

35.

    By application lodged on 16 February 1994, the VGB, Florimex, Inkoop ServiceAalsmeer and Verhaar instituted proceedings before the Court of First Instanceagainst the contested decision (paragraph 45).

36.

    By a document lodged on 4 May 1994, the Commission raised an objection ofinadmissibility under Article 114(1) of the Rules of Procedure of the Court of FirstInstance (paragraph 47).

37.

    By order of the President of the First Chamber of the Court of First Instance of4 July 1994, the VBA was granted leave to intervene in support of the Commission(paragraph 49).

38.

    By order of the Court of First Instance (First Chamber) of 14 July 1994, thedecision on the objection of inadmissibility was reserved for the final judgment(paragraph 50).

The contested judgment

39.

    So far as concerns admissibility, the Court of First Instance found, in paragraph 69of the contested judgment that, essentially, the Commission relied on three mainarguments, namely that: the letter of 5 August 1992 formed part of the first of thethree procedural stages described in Automec I, the procedure never having in thiscase led to a letter under Article 6 of Regulation No 99/63, still less a formalrejection of the complaints; because of the applicants' failure to react to the letterof 5 August 1992, the complaint was to be regarded as having already been closedbefore their letter of 22 December 1992 was received, the applicants having,through inaction, forfeited the status of complainants; and the letter of 20December 1993 therefore merely informed the complainants of the stage reachedin the procedure and did not constitute a decision rejecting their complaints.

40.

    First of all, as regards the first argument, the Court of First Instance held, inparagraph 70, that the Commission's letter of 5 August 1992 was to be regardedas having been sent pursuant to Article 6 of Regulation No 99/63.

41.

    Secondly, as regards the Commission's second argument, that the applicants hadalready forfeited their status as complainants by the date of their letter of 22December 1992, the Court of First Instance accepted, in paragraph 75, that acomplainant who lacks diligence during the administrative procedure, in particularby not replying to a letter pursuant to Article 6 of Regulation No 99/63, may beregarded, in the interests of legal certainty, as consenting to the definitive closureof the procedure on his complaint, announced by the Commission in such a letter.

42.

    The Court of First Instance nevertheless considered, in paragraph 76, that acomplainant's consent to closure of the procedure on his complaint cannot beirrebuttably presumed merely because the time-limit was not observed. It held thatit would not be consistent with the right to a fair hearing for the Commission to beable to close the procedure on the complaint where special circumstances mightlegitimately account for the failure to observe a time-limit which the Commissionitself set.

43.

    The Court of First Instance considered, in paragraph 77, that in the instant case thenon-observance of the time-limit of four weeks laid down in the letter of 5 August1992, during a holiday period, did not in itself justify the conclusion that theapplicants consented to the closure of the procedure on their complaints. It pointedout that, for a period of more than three years, they had persistently maintainedtheir complaints and repeatedly asked the Commission to adopt a formal decision.

44.

    The Court of First Instance held, in paragraph 78, that that conclusion wascorroborated by the fact that, on 21 September 1992, Florimex and the VGB hadinstituted proceedings before it in Joined Cases T-70/92 and T-71/92, in which theycriticised the Commission for not dealing with their complaints relating to the tradeagreements and the Cultra agreements in its decision of 2 July 1992 concerning theuser fee, and stated that they intended to maintain those complaints.

45.

    In paragraph 79, the Court of First Instance also found that the content of theletter of 21 December 1992 finally sent by the applicants showed that they hadalways intended to maintain their complaints, since they requested an extension ofthe time-limit for submitting observations and the adoption by the Commission ofa formal decision.

46.

    The Court of First Instance considered that it could not discount the possibility thatthe delay with which the applicants' lawyer had replied to the letter of 5 August1992 could be attributed to the serious illness from which he was suffering at thetime.

47.

    In those circumstances, the Court of First Instance held, in paragraph 81, that theCommission was not entitled to conclude, solely because the time-limit set in theletter of 5 August 1992 had not been observed and without contacting theapplicants, that their complaints were to be regarded as having lapsed before 22December 1992.

48.

    Finally, so far as concerns the third argument of the Commission, the Court of FirstInstance considered, at paragraph 85, that in the specific circumstances of the casebefore it, the letter of 20 December 1993, read in context, was to be regarded asa definitive rejection of the complaints on their merits. It thus held that the actionwas admissible.

49.

    With regard to the trade agreements, the Court of First Instance first examined theargument that the VBA did not apply dissimilar conditions to equivalenttransactions with other trading parties, within the meaning of Article 85(1)(d) ofthe Treaty. It pointed out, in paragraph 116, that, in its letter of 5 August 1992, theCommission had concluded, after comparing the financial burdens imposed by theVBA on traders who are parties to trade agreements and traders who have notentered into such agreements, that the former were privileged. The Court of FirstInstance considered that the calculations produced by the VBA, which related tocalculation of the rent of certain holders of trade agreements who were also tenantsof the VBA, did not detract from that conclusion, since the user fee was not leviedon VBA tenants.

50.

    The Court of First Instance referred to its judgment delivered on the same day inJoined Cases T-70/92 and T-71/92 Florimex and VGB v Commission, and observed,in paragraph 118, that, contrary to what the Commission claimed, it had not beenestablished that the holders of trade agreements had accepted obligations vis-à-visthe VBA capable of justifying the difference between the 3% fee from whichcertain outside suppliers benefited and the rate of the user fee.

51.

    It concluded that the letter of 5 August 1992 was vitiated by an error of fact or ofassessment in so far as it stated that the difference of rate between the user feeand the 3% fee applicable to the trade agreements was justified by the existenceof such obligations.

52.

    Secondly, as regards the argument put forward by the Commission that the filecontained no conclusive proof that trade between Member States might beappreciably affected, the Court of First Instance pointed out first, in paragraph 120,that, in the 1988 decision, the Commission considered that the previous tradeagreements then in force formed an integral part of the VBA's rules and that thoserules, as a whole, were liable to affect trade between Member States.

53.

    Next, the Court of First Instance observed, in paragraph 123, that, instead of anexclusive purchase obligation, the VBA had adopted the principle in its new tradeagreements that direct supplies to dealers established on its premises were as ageneral rule subject to a levy collected by it, namely either the user fee or the 3%fee provided for in the trade agreements.

54.

    In those circumstances, the Court of First Instance considered, in paragraphs 124and 125, that the trade agreements could be appraised only in the context of theVBA's rules as a whole.

55.

    Finally, in so far as it was not disputed that the VBA's rules as a whole were liableto affect trade between Member States, the Court of First Instance found, inparagraph 126, that it was of no importance whether or not, in isolation, they affecttrade between Member States to a sufficient extent.

56.

    The Court of First Instance accordingly annulled the contested decision to theextent to which it rejected the applicants' complaints concerning the tradeagreements.

57.

    As regards the Cultra agreements, the Court of First Instance was called on toadjudicate only as to the legality of the Commission's finding that the slighteconomic impact on the markets in cut and dried flowers and garden and indoorplants meant that the Cultra agreements did not have an appreciable effect ontrade between Member States, with the result that Article 85(1) of the Treaty didnot apply.

58.

    In this connection, it first of all observed, in paragraph 134, that the Cultraagreements were not directed towards exports but were concerned with the resaleby wholesalers of products of Netherlands origin to retailers most of whom werethemselves established in the Netherlands.

59.

    The Court considered, in paragraph 135, that, even if it were assumed that, as theapplicants asserted, sales to German retailers represented a proportion of Cultrasales, that fact was not in itself sufficient to establish the existence of anappreciable affect on trade between Member States, since the applicants hadproduced no specific evidence to show the extent of the sales in question, in termseither of market share or of turnover.

60.

    Next, as regards the applicants' essential argument that the effect of the Cultraagreements could be appraised only in the context of the VBA rules as a whole,taking account of the fact that, taken in conjunction with the user fee and the tradeagreements, those agreements represented a substantial obstacle to penetration ofthe Netherlands market by exports from other Member States, the Court of FirstInstance considered, in paragraph 143, that the Cultra agreements did notconstitute an essential part of the VBA's rules concerning auction sales or directsupplies to dealers established on its premises, in particular with a view to exportof the products concerned, but related rather to a supplementary and separatebusiness, namely the resale of VBA products to retailers by the 'cash-and-carry‘method. The Court concluded that those agreements had no direct link with theother aspects of the VBA's rules which were capable taken as a whole of affectingtrade between Member States.

61.

    Finally, as to the possibility that the Cultra agreements, in isolation, affected tradebetween Member States by making it appreciably more difficult for competitorsfrom other Member States to penetrate the Netherlands national market, the Courtof First Instance held, in paragraph 144, that the applicants had not producedspecific concrete evidence to enable it to find that those agreements were capableof having a significant effect in that respect.

62.

    The Court of First Instance therefore be rejected the applicants' pleas andarguments concerning the Cultra agreements.

The application for leave to submit written observations following the AdvocateGeneral's Opinion

63.

    By letter of 2 December 1999 addressed to the Registry of the Court of Justice, theVBA applied for leave to submit written observations after the Advocate Generalhad delivered his Opinion on 8 July 1999, which had only reached it a few daysearlier. It relies in that respect on the case-law of the European Court of HumanRights concerning the scope of Article 6(1) of the Convention for the Protectionof Human Rights and Fundamental Freedoms, in particular on the judgment of 20February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996I, p. 224).

64.

    For the reasons given by the Court of Justice in its order of 4 February 2000 inCase C-17/98 Emesa Sugar (not yet published in the ECR), it is not appropriate togrant that application.

The main appeal

65.

    In support of its appeal, the VBA puts forward five grounds of appeal.

The first ground of appeal

66.

    By its first ground of appeal, the VBA submits that the Court of First Instancewrongly held the action to be admissible. In particular, it erred in law in findingthat the right to a fair hearing precludes the closure of the procedure oncomplaints where the complainants do not respond to a letter pursuant to Article6 of Regulation No 99/63 within the time-limit set for that purpose if specialcircumstances legitimately account for the failure to observe such a time-limit.

67.

    In this connection, the VBA states that time-limits are set in the interests of goodadministration and legal certainty, in particular in respect of the undertaking whichis the subject of the complaint. In any event, in the present case there are nospecial circumstances which might legitimately account for the failure to observesuch a time-limit.

68.

    In the first place, the fact that the time-limit covered a holiday period does notconstitute, according to the VBA, such a circumstance, given that it was incumbentupon the complainant to apply to the Commission for an extension of that time-limit. Secondly, neither does the fact that the complainants had maintained theircomplaints for several years constitute a special circumstance. The institution ofproceedings in Cases T-70/92 and T-71/92 by Florimex and the VGB also suggeststhat they intended to concentrate on that aspect of the matter and that, moreover,they were not about to respond to the letter under Article 6 of Regulation No99/63. Thirdly, the VBA states that the complainants' lawyer worked intensively ontheir case, even during the period after the aforementioned letter was sent, despitehis health problems.

69.

    In those circumstances, the VBA contends that the statement of the Court of FirstInstance that it could not discount the possibility that the failure to reply within thetime-limit set by the Commission was connected with the serious illness from whichhe was suffering at the time is pure speculation and is not supported by thedocuments before the Court of First Instance.

70.

    It should be observed, first of all, that the VBA has not called in question thefinding of the Court of First Instance that the Commission's letter of 5 August 1992was to be regarded as having been sent pursuant to Article 6 of RegulationNo 99/63.

71.

    Next, in finding that special circumstances could preclude the Commission fromclosing the procedure on complaints where the complainant has not responded toa letter under Article 6 of Regulation No 99/63 within the time-limit set by theCommission, the Court of First Instance correctly balanced the requirements ofgood administration and legal certainty on the one hand against those of ensuringthe procedural safeguards provided for complainants on the other.

72.

    Finally, the Court of First Instance was right in finding that circumstances such asthose obtaining in the present case were special circumstances which couldlegitimately account for the failure to observe a time-limit laid down in the letterunder Article 6 of Regulation No 99/63.

73.

    It follows from the foregoing that the Court of First Instance was right in holdingthat, in the specific circumstances of this case, the letter of 20 December 1993, readin context, was to be regarded as a definitive rejection of the complaints on theirmerits.

74.

    Accordingly, the first ground of appeal must be dismissed.

The second to the fifth grounds of appeal

75.

    By its second to fifth grounds of appeal, the VBA calls in question the finding ofthe Court of First Instance that the letter under Article 6 of Regulation No 99/63was vitiated by an error of fact or of assessment in so far as it stated that thedifference of rate between the user fee and the 3% fee applicable to the tradeagreements was justified by the existence of obligations entered into by holders oftrade agreements vis-à-vis the VBA.

76.

    By its second ground of appeal, the VBA submits that any difference in rates is notthe result of an agreement concluded between two or more undertakings. Itmaintains that it decided unilaterally to conclude trade agreements providing fora 3% levy and to apply the user fee to direct supplies.

77.

    In that connection, it must be observed that the Court of First Instance confineditself to examining the two arguments on which the Commission had based therejection of the complaints regarding the trade agreements, namely that the VBAdid not apply dissimilar conditions to equivalent transactions with other tradingparties, within the meaning of Article 85(1)(d) of the Treaty, and that there was noconclusive evidence of an appreciable effect on trade between Member States, evenif there were a restriction of competition within the meaning of Article 85(1). Onthe other hand, the Court of First Instance was not called upon to rule on whetheror not there existed an agreement between undertakings.

78.

    It must be borne in mind that an appeal must indicate precisely the contestedelements of the judgment which it is requested to have set aside and also the legalarguments which specifically support that request (see, in particular, the order inCase C-317/97 Smanor et Ségaud v Commission [1998] ECR I-4269, paragraph 20).

79.

    To allow a party to put forward for the first time before the Court of Justice a pleain law which it has not raised before the Court of First Instance would be toauthorise it to bring before the Court of Justice, whose jurisdiction in appeals islimited, a case of wider ambit than that which came before the Court of FirstInstance. In an appeal the jurisdiction of the Court of Justice is thus confined toreview of the findings of law on the pleas argued before the Court of First Instance(see, in particular, the order in Case C-422/97 Sateba v Commission [1998] ECRI-4913, paragraph 30).

80.

    It follows that the second ground of appeal must be dismissed as inadmissible.

81.

    By its third ground of appeal, the VBA submits that there is no discrimination asbetween the holders of trade agreements and direct suppliers, inasmuch as thereare differences between their situations. The holders of trade agreements had tobear higher rental charges, they were exempt from the purchasing standards, whichwas why they had to pay a rental supplement to the VBA, and they were obligedto guarantee a specific additional supply.

82.

    By its fourth ground of appeal, the VBA submits that the Court of First Instancecommitted an error in law in considering that the user fee was not levied on VBA'stenants.

83.

    Thus, the Court of First Instance did not carry out a comparison with the rentwhich was to be paid by the tenants of a trading area who have concluded a tradeagreement with the VBA and the rent paid by other tenants. Contrary to what isstated in the judgment of the Court of First Instance, the user fee is also levied ondealers established on the premises of the VBA where they deal in products whichdo not come from the VBA and then supply them to other dealers who are alsoestablished on its premises.

84.

    By its fifth ground of appeal, the VBA criticises the Court of First Instance forhaving made a manifestly erroneous finding in holding that it had not beenestablished that the holders of trade agreements had accepted obligations vis-à-visthe VBA capable of justifying the difference between the 3% arrangement fromwhich certain outside suppliers benefited and the rate of the user fee. In so far as,in paragraph 119 of the contested judgment, the Court of First Instance found anerror of fact or of assessment in the letter pursuant to Article 6 of Regulation No99/63, its conclusion is, moreover, in contradiction with the one it arrived at inJoined Cases T-70/92 and T-71/92, in which it found that the statement of reasonsfor the contested decision did not establish to the requisite legal standard theexistence of such obligations.

85.

    Referring to the wording of the various trade agreements, produced at firstinstance, the VBA claims that it rents out trading areas only to purchasers whopresent an interest for it, but not to flower traders who wish to establish themselveson its premises for reasons other than the purchase of VBA products. The holdersof trade agreements are in a special situation inasmuch as they are intended toguarantee an additional supply. Since the activity of the holders of suchagreements relates to products which are not sold on the VBA'S premises, they areexempt from the obligation to purchase the VBA's products. However, they paya rent supplement to compensate for that exemption.

86.

    The VBA maintains that the trade agreements are concluded in respect of productsthat are specifically designated. Exemption from the user fee applies only to thoseproducts, which are subject to a levy of 3%. If the holder of a trade agreementdoes not guarantee the additional supply of a product as specified in the contract,the VBA terminates the contract, trade agreements always being concluded for aterm of a year.

87.

    In those circumstances, the VBA claims that the Court of First Instance committedan error in law in considering that the holders of trade agreements enjoyed anunjustified advantage.

88.

    The Commission contends that the contested judgment contradicts the judgmentin Florimex and VGB v Commission, cited above, inasmuch as, in the latter, theCourt of First Instance held, wrongly in the Commission's submission, that the userfee, taken in isolation, was contrary to Article 85(1) of the Treaty, whilst, in thecontested judgment, the Court of First Instance accepted that the user fee formedan integral part of the VBA's supply rules as a whole.

89.

    On the other hand, the Commission submits that the trade agreements areseparable from the VBA's rules in so far as they are entered into with certaintraders and contain specific conditions.

90.

    By those grounds of appeal, which it is appropriate to consider together, the VBAcontests the findings of the Court of First Instance that, first, the trade agreementsdo not provide for specific supply obligations and, secondly, the user fee is notlevied on its tenants. Such findings relate to the facts of the case.

91.

    Under Article 168a of the EC Treaty (now Article 225 EC), and 51 of the ECStatute of the Court of Justice, however, an appeal may be based only on groundsrelating to the infringement of rules of law, to the exclusion of any appraisal of thefacts (see, in particular, Case C-8/95 New Holland Ford v Commission [1998] ECRI-3175, paragraph 25).

92.

    The Court of First Instance alone has jurisdiction, first, to make a finding as to thefacts, save where the substantive inaccuracy of such findings is apparent from thedocuments submitted to it and, second, to assess those facts (New Holland Ford vCommission, cited above, paragraph 25). Furthermore, such inaccuracy must beobvious without its being necessary to undertake a fresh assessment of the facts(New Holland Ford v Commission, cited above, paragraph 72).

93.

    In the present case, the arguments put forward by the VBA do not reveal theexistence of a manifest substantive error in the findings of fact made by the Courtof First Instance in that connection.

94.

    As to the alleged contradiction between the contested judgment and the judgmentin Florimex and VGB v Commission, cited above, in which the Court of FirstInstance described as an inadequate statement of reasons what it held, in thecontested judgment, to be an error of fact or of assessment, reference should bemade to the judgment delivered today in Case C-265/97 P VBA v Florimex andOthers, paragraphs 140 to 143, from which it follows, first, that the Court of FirstInstance committed an error in law when it held that the contested decision did notcontain a sufficient statement of reasons in that regard and, secondly, that theaforementioned decision was vitiated in that respect by a manifest error ofassessment. The Court of First Instance was therefore right, in the contestedjudgment, in finding that the Commission had committed an error of assessmenton that point.

95.

    As regards the Commission's argument that there is a contradiction between, onthe one hand, the statement, in paragraph 125 of the contested judgment, that theuser fee is an integral part of the VBA's rules and, on the other, the allegedlyisolated examination of the user fee in the judgment in Florimex and VGB vCommission, cited above, it need merely be observed that, in the contestedjudgment, the Court of First Instance was only called upon to examine whether theeffects of the trade agreements were to be appraised in the context of the rules onsupplies to the VBA's premises. By replying to that question in the affirmative, theCourt of First Instance committed no error in law and did not prejudge thequestion whether the user fee could, by itself, infringe Article 85(1) of the Treaty.

96.

    It follows that the third to fifth grounds of the appeal must be dismissed.

97.

    It is clear from all the foregoing that the appeal must be dismissed in its entirety.

The cross-appeal

98.

    So far as concerns the dismissal of the application to the extent that it relates tothe Cultra agreements, the VGB, Florimex, Inkoop Services Aalsmeer and Verhaarhave brought a cross-appeal against the contested judgment, claiming that, contraryto the findings of the Court of First Instance, those agreements clearly favour thesale of VBA products, which are Netherlands products. Those agreementstherefore exert a potential influence on the patterns of trade between MemberStates. Moreover, those who benefit from the Cultra agreements export on a largescale. It is not true that only small retailers have recourse to sellers who haveentered into such agreements. Since the Court of First Instance did not takeaccount of that factor, it committed an error in law.

99.

    In that regard, it need merely be observed that, by those arguments, the partieswho have brought the cross-appeal sought to challenge findings of fact made by theCourt of First Instance in paragraphs 134 to 139 and in paragraphs 144 and 145 ofthe contested judgment. As has been stated in paragraphs 90 to 92 of the presentjudgment, such findings cannot be effectively challenged on appeal.

100.

    Accordingly, the cross-appeal must be dismissed.

Costs

101.

    Under the first paragraph of Article 122 of the Rules of Procedure, where theappeal is unfounded or where the appeal is well founded and the Court of Justiceitself gave final judgment in the case, the Court is to make a decision as to costs.Under Article 69(2) of the Rules of Procedure, which apply to appeal proceedingsby virtue of Article 118, the unsuccessful party is to be ordered to pay the costs ifthey are applied for in the successful party's pleadings. Since the VGB, Florimex,Inkoop Service Aalsmeer and Verhaar have requested that VBA be ordered to paythe costs and the latter has been unsuccessful, it must be ordered to bear its owncosts and pay the costs incurred by the abovementioned association and companiesrelating to the appeal. On the other hand, since the latter have been unsuccessfulin their cross-appeal, they must be ordered to bear their own costs and pay thecosts incurred by the VBA relating to the cross-appeal. The Commission, which hasbeen essentially unsuccessful, must bear its own costs.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1.    Dismisses the main appeal and the cross-appeal;

2.    Orders Coöperatieve Vereniging De Verenigde Bloemenveilingen AalsmeerBA (VBA) to bear its own costs and to pay those of Vereniging vanGroothandelaren in Bloemkwekerijproducten (VGB), Florimex BV, InkoopServices Aalsmeer BV and M. Verhaar BV relating to the appeal;

3.    Orders Vereniging van Groothandelaren in Bloemkwekerijproducten (VGB),Florimex BV, Inkoop Services Aalsmeer BV and M. Verhaar BV to beartheir own costs and to pay those of Coöperatieve Vereniging De VerenigdeBloemenveilingen Aalsmeer BA (VBA) relating to the cross-appeal;

4.    Orders the Commission of the European Communities to bear its owncosts.

Moitinho de AlmeidaSevón Puissochet Jann Wathelet

Delivered in open court in Luxembourg on 30 March 2000.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: Dutch.