JUDGMENT OF THE COURT (Fifth Chamber)

1 October 1998 (1)

(Competition — Article 85(1) of the EC Treaty — Exclusive purchasingagreements for ice-cream — Comfort letter — Prohibition of concluding exclusiveagreements in the future)

In Case C-279/95 P,

Langnese-Iglo GmbH, a company incorporated under German law, established inHamburg (Germany), represented by Martin Heidenhain, Bernhard M. Maassenand Horst Satzky, Rechtsanwälte, Frankfurt am Main, with an address for servicein Luxembourg at the chambers of Jean Hoss, 2 Place Winston Churchill,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Second Chamber, Extended Composition) of 8 June 1995 in CaseT-7/93 Langnese Iglo v Commission [1995] ECR II-1533, seeking to have thatjudgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Wouter Wils, of itsLegal Service, acting as Agent, assisted by Alexander Böhlke, Rechtsanwalt,Frankfurt am Main, with an address for service in Luxembourg at the office ofCarlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

supported by

Mars GmbH, a company incorporated under German law, established in Viersen(Germany), represented by Jochim Sedemund, Rechtsanwalt, Berlin, and by JohnE. Pheasant, Solicitor, with an address for service in Luxembourg at the Chambersof Michel Molitor, 55 Boulevard de la Pétrusse,

intervener at first instance,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinhode Almeida, P. Jann and L. Sevón (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 13 November1997,

gives the following

Judgment

1.

    By application lodged at the Registry of the Court of Justice on 18 August 1995,Langnese-Iglo GmbH 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 8June 1995 in Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533(hereinafter 'the contested judgment‘) in which that Court dismissed in part itsapplication for the annulment of Commission Decision 93/406/EEC of 23December 1992 relating to a proceeding pursuant to Article 85 of the EEC Treatyagainst Langnese-Iglo GmbH (IV/34.072, OJ 1993 L 183, p. 19, hereinafter 'thecontested decision‘).

2.

    The facts to which the present appeal relates are set out in the contested judgmentas follows:

'1    By letter of 6 December 1984, the Bundesverband der deutschenSüsswarenindustrie eV — Fachsparte Eiskrem (Association of the GermanConfectionary Industry — Ice-cream Section, hereinafter ”the Association”)

asked the Commission to send it a ”formal declaration” as to thecompatibility with Article 85(1) of the Treaty of the exclusive agreementsconcluded by the German ice-cream producers with their customers. Byletter of 16 January 1985, the Commission informed the Association that itconsidered that it could not grant the request to make a decision applicableto the industry as a whole.

2    The German undertaking, Schöller Lebensmittel GmbH & Co. KG(hereinafter ”Schöller”) notified to the Commission by letter of 7 May 1985a form of ”supply agreement” governing its relations with its retaildistributors. On 20 September 1985, the Commission Directorate Generalfor Competition sent a comfort letter to the Schöller's lawyer, whichincluded the following paragraphs:

    ”On 2 May 1985, you applied on behalf of Schöller Lebensmittel GmbH &Co. KG, pursuant to Article 2 of Regulation No 17, for a negative clearancefor an 'ice-cream supply agreement‘.

    Pursuant to Article 4 of that regulation, you also notified the agreement inadvance. Subsequently, by letter of 25 June 1985, you provided a standardagreement to serve as a reference for the agreements which Schöller willconclude in the future.

    By letter of 23 August 1985, you clearly indicated that the exclusivepurchasing obligation imposed on the client by the standard agreementnotified, which is accompanied by a prohibition of competition, may becancelled for the first time by giving six months' notice no later than at theend of the second year of the agreement, and thereafter by giving the sameperiod of notice at the end of each year.

    It appears from the information available to the Commission, which isessentially based on that given in your application, that the fixed durationof the agreements to be concluded in the future will not exceed two years. The average duration of all your client's 'ice-cream supply agreements‘ willtherefore fall well short of the period of five years laid down in CommissionRegulation (EEC) No 1984/83 of 22 June 1983 (OJ 1983 L 173, p. 5) as aprecondition for a block exemption to be available in respect of exclusivepurchasing agreements.

    Those facts clearly show that, even if account is taken of the number ofagreements of the same nature, the 'ice-cream supply agreements‘concluded by Schöller do not have the effect, in particular, of eliminatingcompetition for a substantial part of the products concerned. Access forthird-party undertakings to the retail sector remains guaranteed.

    Schöller's 'ice-cream supply agreements‘ which were notified are thereforecompatible with the competition rules of the EEC Treaty. It is thereforeunnecessary for the Commission to take action regarding the agreementsnotified by your client.

    The Commission nevertheless reserves the right to re-open the procedureif there is any appreciable change affecting certain matters of law or of facton which the present assessment is based.

    We also wish to inform your client that the existing ice-cream supplyagreements are the subject of a similar assessment and that it is thereforeunnecessary to notify them if the fixed duration of those agreements doesnot exceed two years after 31 December 1986 and they can thereafter becancelled by giving notice of a maximum of six months at the end of eachyear.

    ...”

3    On 18 September 1991, Mars GmbH (hereinafter ”Mars”) lodged acomplaint with the Commission against the applicant and against Schöllerfor infringement of Articles 85 and 86 of the Treaty and asked thatprotective measures be taken in order to forestall the serious andirreparable damage which, in its opinion, would be caused by the fact thatthe sale of its ice-creams would be severely hampered in Germany by theimplementation of agreements contrary to the competition rules which theapplicant and Langnese had concluded with a large number of retailers.

4    By decision of 25 March 1992 relating to a proceeding under Article 85 ofthe EEC Treaty (IV/34.072 — Mars/Langnese and Schöller — Interimmeasures, hereinafter ”the decision of 25 March 1992”), the Commission,essentially, by way of interim measure, prohibited the applicant and Schöllerfrom enforcing their contractual rights under the agreements concluded bythem or for their benefit, whereby retailers undertook to buy, offer for saleor sell only the ice-cream of those producers, to the exclusion of the ice-cream products ”Mars”, ”Snickers”, ”Milky Way”, and ”Bounty” where thelatter are offered to the final consumer as single-item products. TheCommission also withdrew the benefit of the application of CommissionRegulation (EEC) No 1984/83 of 22 June 1983 on the application of Article85(3) of the Treaty to categories of exclusive purchasing agreements (OJ1983 L 173, p. 5, hereinafter ”Regulation No 1984/83”) to the exclusiveagreements concluded by Langnese to the extent necessary for theapplication of the abovementioned prohibition.

5    It was in those circumstances that, by way of final decision, following thedecision of 25 March 1992, on the ”supply agreements” at issue, theCommission adopted on 23 December 1992 Decision 93/406/EEC relating

to a proceeding pursuant to Article 85 of the Treaty against Langnese-IgloGmbH (IV/34.072 — OJ 1993 L 183, p. 19, hereinafter ”the decision”), theoperative part of which is as follows:

    ”Article 1

    The agreements concluded by Langnese-Iglo GmbH requiring retailersestablished in Germany to purchase single-item ice-cream for resale onlyfrom that undertaking infringe Article 85(1) of the EEC Treaty.

    Article 2

    An exemption pursuant to Article 85(3) of the EEC Treaty for theagreements referred to in Article 1 is hereby refused.

    Article 3

    Langnese-Iglo GmbH is hereby required within three months of notificationof this Decision to inform dealers with whom it has current agreements ofthe kind referred to in Article 1 of the full wording of Articles 1 and 2, andto notify them that the agreements in question are void.

    Article 4

    Langnese-Iglo GmbH may not conclude agreements of the kind referred toin Article 1 until after 31 December 1997.

    ...”‘

3.

    On 23 December 1992 the Commission also adopted against Schöller Decision93/405/EEC relating to a proceeding pursuant to Article 85 of the EEC Treatyagainst Schöller Lebensmittel GmbH & Co. KG (Cases IV/31.533 and IV/34.072— OJ 1993 L 183, p. 1). That decision, in particular Articles 1, 3 and 4 thereof, isessentially the same as the contested decision.

4.

    On 19 January 1993 Langnese-Iglo brought an action before the Court of FirstInstance for annulment of the contested decision.

5.

    By application received at the Registry of the Court of First Instance on 4 February1993, Mars applied for leave to intervene in the proceedings before the Court ofFirst Instance in support of the Commission. By order of 12 July 1993, thePresident of the First Chamber of the Court of First Instance granted thatapplication.

6.

    By the same order and by order of 9 November 1994 of the President of theSecond Chamber, Extended Composition, the Court of First Instance granted,under Article 116(2) of its Rules of Procedure, a request for confidential treatmentsubmitted by Langnese-Iglo.

7.

    In support of its application before the Court of First Instance, the applicant putforward five pleas in law, alleging, first, irregular notification of the decision, in thatthe Commission failed to notify certain annexes; second, breach of the principle ofprotection of legitimate expectations, in that the Commission did not maintain theposition adopted by it in its comfort letter; third, infringement of Article 85(1) ofthe Treaty; fourth, infringement of Article 85(3) of the Treaty and breach of theprinciple of proportionality, in that the Commission withdrew the benefit of theblock exemption provided for by Regulation No 1984/83 from all the contestedsupply agreements; and, fifthly, infringement of Article 3 of Council Regulation No17/62 of 6 February 1962, First Regulation implementing Articles 85 and 86 of theTreaty (OJ, English Special Edition, 1959-1962, p. 87).

8.

    The Commission, supported by Mars, contended that the application should bedismissed.

9.

    In the contested judgment, the Court of First Instance annulled Article 4 of thecontested decision and dismissed the remainder of the application. It also orderedLangnese-Iglo to pay all the costs of the proceedings, including those in respect ofthe application for interim measures (see the order of the President of the Courtof First Instance of 19 February 1993 in Joined Cases T-7/93 R and T-9/93 RLangnese-Iglo and Schöller v Commission [1993] ECR II-131) and those of Mars,with the exception of one-quarter of the costs borne by the Commission. TheCommission therefore bore one-quarter of its own costs.

10.

    Schöller also brought before the Court of First Instance an action for annulmentof Decision 93/405 addressed to it. By judgment of 8 June 1995 in Case T-9/93Schöller v Commission [1995] ECR II-1611, the Court of First Instance, as in thecontested judgment, annulled Article 4 of that decision and dismissed theremainder of the application. Schöller has not appealed against that judgment.

11.

    In its appeal Langnese-Iglo claims that the Court of Justice should set aside thecontested judgment to the extent to which it dismissed its application, annulArticles 1, 2 and 3 of the contested decision and order the Commission to pay thecosts both of the proceedings before the Court of First Instance and of the appeal. In the alternative, Langnese-Iglo claims that the case should be referred back tothe Court of First Instance.

12.

    The Commission contends that the Court should dismiss the appeal, set aside thecontested judgment to the extent to which it upheld Langnese-Iglo's application andannulled Article 4 of the contested decision, and dismiss Langnese-Iglo's appeal.It also contends that Langnese-Iglo should be ordered to pay the costs.

13.

    Mars contends that the appeal should be dismissed and that the contestedjudgment should be set aside to the extent to which it annulled Article 4 of thecontested decision.

14.

    By order of 20 March 1996 the President of the Court of Justice granted, pursuantto the second sentence of Article 93(3) and Article 118 of the Rules of Procedureof the Court of Justice, a request from Langnese-Iglo for confidentiality. Thatorder accords confidential treatment for certain information illustrating the extentof tying-in. This judgment therefore makes no reference to that information.

15.

    In support of its appeal Langnese-Iglo puts forward three pleas, namely:

—    breach of the principle of the protection of legitimate expectations;

—    infringement of Article 85(1) of the Treaty — effect of the exclusivepurchasing agreements on competition;

—    breach of the principles of proportionality and equal treatment.

16.

    In support of its cross-appeal, the Commission, supported by Mars, contends thatthe annulment of Article 4 of the contested decision infringes Article 3 ofRegulation No 17.

17.

    By letter received at the Court of Justice on 27 March 1998 Langnese-Iglo askedthe Court to find of its motion that judgment need not be given on the cross-appealbrought by the Commission. Both the Commission and Mars oppose that request.

The main appeal

The first ground of appeal

18.

    The first ground of appeal concerns paragraphs 35 to 42 of the contested judgmentwhich relate to breach of the principle of the protection of legitimate expectations.

19.

    Before the Court of First Instance Langnese-Iglo submitted that the Commissionwas bound by the assessment it made in its comfort letter in view of the fact thatit was not in a position to show that that letter had been obtained on the basis ofincorrect or incomplete information or that the legal or factual situation prevailingin the ice-cream market had undergone any appreciable change since the letter wassent (paragraphs 28 to 30 of the contested judgment).

20.

    Langnese-Iglo also maintained that even though the comfort letter had been addressed to Schöller, the Commission and the participants — including Langnese-Iglo — in the procedure initiated in response to the Association's letter of 6

December 1984 nevertheless agreed that the notification by Schöller in May 1985concerning the ice-cream supply agreements which it had concluded and therequest made at that time for the issue of a negative clearance were also valid forall the members of the Association. In its view, therefore, the comfort lettercovered all the exclusive agreements existing in the ice-cream market (paragraph31 of the contested judgment).

21.

    In the contested judgment the Court of First Instance considered at the outset, inparagraph 35, that it was not necessary to examine whether the applicant couldlegitimately expect that the Commission's assessment in the comfort letteraddressed to Schöller should also apply to its legal situation or that witnessesshould be heard on this point, as requested by Langnese-Iglo. The Court of FirstInstance considered it sufficient to state that, in any event, the comfort letter couldnot constitute any obstacle to examination by the Commission of the complaintlodged by Mars.

22.

    In paragraph 36 the Court of First Instance noted that, according to settled case-law, a comfort letter constituted neither a decision granting negative clearance nora decision applying Article 85(3) of the Treaty within the meaning of Articles 2 and6 of Regulation No 17, the comfort letter not having been adopted in accordancewith the provisions of that regulation (see the judgments of the Court of Justice inJoined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR2327; Case 37/79 Marty [1980] ECR 2481; Case 99/79 Lancôme [1980] ECR 2511;and Case 31/80 L'Oréal [1980] ECR 3775). The Court of First Instance went onto say, in paragraph 37, that the comfort letter was a communication informing theundertaking concerned, namely Schöller, that the Commission considered itinappropriate, in view of the circumstances, to take action regarding theagreements at issue. Finally, the Court of First Instance considered, in paragraph38, that the Commission had undertaken only a provisional analysis of the marketconditions and had reserved the right, in its comfort letter, to reopen the procedureif there was any appreciable change affecting certain matters of law or of fact onwhich its assessment was based.

23.

    In paragraph 39 of the contested judgment the Court of First Instance found, first,that two new competitors, Mars and Jacobs Suchard, had entered the market afterthe comfort letter was issued, and, second, that, after Mars lodged its complaint,the Commission had become aware of the existence of additional barriers to accessto the market. In paragraph 40 the Court of First Instance considered that thosefactors constituted new circumstances which, particularly in the light of the specificproblems encountered by Mars, justified a more detailed and precise analysis of theconditions of access to the market than that undertaken when the comfort letterwas issued. Consequently, that letter did not prevent the Commission fromreopening the procedure in order to examine, in the specific circumstances, thecompatibility of the contested supply agreements with the competition rules. Inthat connection, the Court of First Instance also relied on the Commission'sobligation to examine complaints.

24.

    In its appeal Langnese-Iglo maintains that the Commission had no authority todepart from the content of the comfort letter and to prohibit the network ofexclusive agreements maintained by Langnese-Iglo, unless an examination hadshown that the legal and factual situation prevailing on the ice-cream market hadchanged appreciably. Langnese-Iglo contests the findings made by the Court ofFirst Instance regarding supervening changes in factual circumstances on themarket.

25.

    It also criticises the contested judgment for stating that, before issuing the comfortletter, the Commission had undertaken only a provisional examination of theconditions prevailing on the market. In Langnese-Iglo's view, even if that findingwere correct, it would have been of no consequence. The undertakings concernedhad to be able to rely on the fact that a comfort letter would be based on anobjective verification of the factual and legal situation prevailing on the relevantmarkets.

26.

    In that connection it must be observed at the outset that, according to settled case-law of the Court of Justice, by virtue of Article 168a of the EC Treaty and the firstparagraph of Article 51 of the EC Statute of the Court of Justice, an appeal maybe based only on grounds relating to the infringement of rules of law, to theexclusion of any appraisal of the facts (see, in particular, Case C-283/90 P Vidrányiv Commission [1991] ECR I-4339, paragraph 12, the order of 17 September 1996in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraphs 36 and39, and Case C-7/95 P Deere v Commission [1998] ECR I-0000, paragraphs 18 and21).

27.

    However, in disputing the new circumstances mentioned by the Court of FirstInstance, namely the appearance of new competitors on the market and theexistence of new obstacles to access to the market of which the Commissionbecame aware after Mars lodged its complaint, Langnese-Iglo is challenging theassessment of the facts made by the Court of First Instance. Such an argument istherefore inadmissible in an appeal. The same applies to Langnese-Iglo'scomplaint concerning the finding by the Court of First Instance that theCommission undertook, before issuing the comfort letter, only a provisional analysisof the market conditions.

28.

    Langnese-Iglo's argument must be understood as also criticising the Court of FirstInstance for recognising that the Commission was entitled to depart from theassessment set out in its comfort letter not only because of changes in factual orlegal circumstances supervening after the issue of the letter but also because ofadditional circumstances which, although existing long before, had not been broughtto the Commission's notice until after the issue of that letter.

29.

    In that connection reference must be made to the grounds of the judgment of theCourt of First Instance regarding the legal nature of comfort letters (paragraphs

36 and 37 of the contested judgment), then to the statement in that letter that inthis case the Commission nevertheless reserved the right to reopen the procedureif there was any appreciable change affecting certain matters of law or of fact onwhich its assessment had been based (paragraph 38 of the contested judgment)and, finally, to the Commission's obligation to examine complaints in anappropriate manner (paragraph 41 of the contested judgment).

30.

    It is clear from those points mentioned by the Court of First Instance, in responseto which Langnese-Iglo has not raised any specific argument in its appeal, that thefact that the Commission has issued a comfort letter cannot mean that it is nolonger entitled to take account of a factual situation which existed before the letterwas sent but was brought to its notice only later, particularly in connection with acomplaint lodged at a later stage.

31.

    It follows that the first ground of appeal is partly inadmissible and partly unfoundedand must therefore be rejected.

The second ground of appeal

32.

    By its second ground of appeal Langnese-Iglo contests the conclusion reached bythe Court of First Instance in paragraphs 94 to 114 that the Commission was rightto consider that Langnese-Iglo's exclusive purchasing agreements involved anappreciable restriction of competition on the relevant market and were thusincompatible with Article 85(1) of the Treaty.

33.

    According to Langnese-Iglo, that conclusion is based on certain factors which didnot appear in the documents before the Court of First Instance and on amisconceived legal assessment of the factual situation.

34.

    In support of that view, Langnese-Iglo states, first, that the documents before theCourt of First Instance were not conducive to the conclusion, in paragraph 105,that the networks of exclusive purchasing agreements set up by it and Schöller gaverise to tying-in exceeding 30% in the aggregate. According to Langnese-Iglo, it isclear from the documents in the case that the extent of tying-in was less than 30%,the percentage considered acceptable by the Commission in its comfort letter andin its Fifteenth Report on Competition Policy, 1985.

35.

    Secondly, Langnese-Iglo maintains that the Court of First Instance's finding that thesystem of lending a large number of freezer cabinets (paragraphs 107 and 108) toretailers on condition that they used them solely to keep its products was merelya repetition of a statement made by the Commission but contested by Langnese-Iglo before the Court of First Instance. The same applies to the rebates grantedby Langnese-Iglo to ensure the sale of a particular percentage of single-item ice-creams (paragraph 109 of the contested judgment). According to Langnese-Iglo,the Commission did not adduce evidence in support of its statements even though

the Court of First Instance stressed, in paragraph 95, that it was for theCommission to establish the existence of the alleged barriers to access to themarket.

36.

    Thirdly, Langnese-Iglo maintains that, even if the extent of tying-in on the relevantmarket for ice-cream fell between the figure put forward by it and the oneaccepted by the Court of First Instance, so that it was slightly above or below 30%,the factual circumstances, in so far as they were properly established by the Courtof First Instance, were not such that it could be concluded that access to themarket was appreciably impeded or indeed prevented.

37.

    It must first be observed that in so arguing Langnese-Iglo is disputing variousmatters of fact established by the Court of First Instance. As pointed out inparagraph 26 of this judgment, the Court of Justice has no jurisdiction to appraisethe facts in an appeal.

38.

    With regard more particularly to matters of evidence, it must be made clear thatit is for the Court of First Instance alone to assess the value which should beattached to the evidence adduced before it, save where the sense of that evidencehas been distorted (see in that connection the order in San Marco v Commission,cited above, paragraph 40, Case C-53/92 P Hilti v Commission [1994] ECR I-667,paragraph 42, and Deere v Commission, cited above, paragraph 22). However,Langnese-Iglo has put forward no solid argument to show that the Court of FirstInstance distorted the sense of the evidence.

39.

    As regards the third part of this ground of appeal, it seems that Langnese-Iglo iscriticising in its entirety the conclusion drawn by the Court of First Instance fromthe facts which it established, contending in particular that a degree of tying-inslightly above or below 30% does not seriously impede access to the market,particularly where the market in question is expanding rapidly.

40.

    On this point, it must be observed that Langnese-Iglo does not specify the errorsof law allegedly committed by the Court of First Instance in its assessment ofmatters of law and is calling in question facts established by the Court. In thosecircumstances, this part of the plea is also inadmissible.

41.

    It is clear from the foregoing considerations that the second plea is inadmissible inits entirety.

The third plea in law

42.

    The third plea in law comprises two parts, alleging, first, breach of the principle ofproportionality and, second, breach of the principle of equal treatment.

The first part of the third plea

43.

    Langnese-Iglo claims that the Court of First Instance infringed the principle ofproportionality in that it held that the Commission had not committed any error inwithdrawing the benefit of the block exemption provided for by Regulation No1984/83 and prohibiting all exclusive purchase contracts concluded by Langnese-Iglo, without first having informed Langnese-Iglo of the extent to which a networkof exclusive purchasing contracts was compatible with Article 85(1) of the Treatyand, therefore, without giving it an opportunity to adjust the network to therequirements of that provision.

44.

    In support of that argument, Langnese-Iglo claims that the reasoning of the Courtof First Instance is contradictory. Thus, it considered, first, in paragraph 131, thata bundle of similar agreements, like Langnese-Iglo's exclusive purchasingagreements, had to be considered as a whole and, therefore, that the Commissionwas right not to examine the agreements separately and, second, in paragraph 193,that, in applying Article 85 of the Treaty, the Commission is not required toindicate which agreements do not make a significant contribution to any cumulativeeffect caused by similar agreements on the market. In Langnese-Iglo's view, theviews expressed by the Court of First Instance conflict with those expressed inparagraphs 207 and 208, to the effect that Article 85(1) does not, as a general rule,preclude the conclusion of exclusive purchasing agreements, provided that they donot contribute significantly to any partitioning of the market, and that theCommission is not empowered, by means of an individual decision, to restrict orlimit the legal effects of a legislative measure such as Regulation No 1984/83.

45.

    As the Advocate General observed in point 27 of his Opinion, Langnese-Iglo basesthat alleged contradiction on considerations deduced from contexts different fromthat of the contested judgment, failing to take account of the fact that the Courtof First Instance drew a clear distinction between, first, the application of Article85(1) to existing agreements and, second, the effects of Article 3 of Regulation No17 on such exclusive purchasing agreements as Langnese-Iglo might conclude in thefuture.

46.

    Contrary to Langnese-Iglo's contention, the reasoning of the Court of First Instancecontains no contradiction in that regard.

47.

    Moreover, Langnese-Iglo does not indicate with sufficient precision the paragraphsof the judgment to which it takes exception. Its argument covers matters which areto be found both in paragraphs 129 to 132 of the contested judgment, whichconcern the part of the plea relating to the Commission's alleged obligation to treatindividual contracts separately, so that some of them escape the prohibitioncontained in Article 85(1) of the Treaty, and in paragraphs 192 to 195 of thecontested judgment, which concern the part of the plea in which it is alleged thatthe total prohibition of supply agreements is contrary to the principle ofproportionality.

48.

    In view of that lack of precision, to which, moreover, the Commission has drawnattention, the Court of Justice is not in a position to examine the merits of this partof the plea. It must be borne in mind that an appeal must indicate precisely thecontested elements of the judgment which the appellant seeks to have set aside andalso the legal arguments specifically advanced in support of the appeal (see, inparticular, the order in San Marco v Commission, cited above, paragraph 37, andthe judgment in Deere v Commission, cited above, paragraph 19).

49.

    The first part of the third plea is therefore inadmissible.

The second part of the third plea

50.

    Langnese-Iglo contends that the prohibition of all its exclusive purchasingagreements is likewise contrary to the principle of equal treatment. It observes thatthe Court of First Instance found, in paragraph 209 of the contested judgment, thatArticle 4 of the contested decision infringed that principle because it excluded thebenefit of Regulation No 1984/83 for certain undertakings in the future, whereasLangnese-Iglo's competitors could exploit the advantage afforded by that regulation.

51.

    According to Langnese-Iglo, the principle of equal treatment should apply in thesame way as regards the past. It contends that it is unacceptable for theCommission to prohibit all exclusive purchasing contracts regardless of whetherthey are caught by Article 85(1) of the Treaty and whether they benefit from anexemption under Regulation No 1984/83, whilst competitors may maintain andimpose similar exclusive purchasing agreements.

52.

    As regards the reference to paragraph 209 of the contested judgment, it isimportant to note that, in criticising the total prohibition of existing agreements, Langnese-Iglo is relying on a consideration put forward by the Court of FirstInstance in relation only to future agreements. Accordingly, that reference isirrelevant.

53.

    Moreover, it must be observed that Langnese-Iglo did not put forward before theCourt of First Instance any plea alleging any breach by the Commission of theprinciple of equal treatment in relation to the total prohibition of existing exclusivepurchasing agreements.

54.

    In that connection, it must be borne in mind in the first place that, pursuant toArticle 48(2) of the Rules of Procedure of the Court of First Instance, no new pleain law may be introduced in the course of proceedings unless it is based on mattersof law or of fact which come to light in the course of the procedure.

55.

    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 to allow

it to bring before the Court of Justice, whose jurisdiction in appeals is limited, acase of wider ambit than that which came before the Court of First Instance. Inan appeal the jurisdiction of the Court of Justice is thus confined to review of thefindings of law on the pleas argued before the Court of First Instance (see, to thateffect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECRI-1981, paragraph 59).

56.

    This part of the third plea is therefore inadmissible.

57.

    The third plea is thus inadmissible in its entirety and must therefore be rejected.

58.

    It follows from the foregoing considerations that the pleas in law put forward byLangnese-Iglo in support of its appeal are partly inadmissible and partly unfounded. Langnese-Iglo's appeal must therefore be dismissed in its entirety.

The cross-appeal

The contested judgment and the arguments of the parties

59.

    In the contested judgment the Court of First Instance annulled Article 4 of thecontested decision, according to which 'Langnese-Iglo may not concludeagreements of the kind referred to in Article 1 until after 31 December 1997‘.

60.

    The Court of First Instance stated in paragraph 205 that Article 3 of RegulationNo 17, according to which '[W]hen the Commission ... finds that there is aninfringement of Article 85 or 86 of the Treaty, it may by decision require theundertakings or associations of undertakings concerned to bring such infringementto an end‘, confers on the Commission only the power to prohibit existing exclusiveagreements which are incompatible with the competition rules.

61.

    In that regard the Court of First Instance observed, first, that, as held in CaseC-234/89 Delimitis [1991] ECR I-935, paragraphs 23 and 24, a supplier's exclusivepurchasing agreements which do not contribute significantly to a cumulative effectare not prohibited by Article 85(1) of the Treaty. According to the Court of FirstInstance, it follows that that provision does not, as a general rule, preclude theconclusion of exclusive purchasing agreements, provided that they do not contributesignificantly to any partitioning of the market. The Court of First Instance rejectedthe Commission's argument that the prohibition of concluding any futureagreements was justified by the need to prevent any attempt to circumvent, byrecourse to Regulation No 1984/83, the prohibition of existing agreements laiddown in Article 1 of the contested decision (paragraphs 206 and 207 of thecontested judgment).

62.

    Second, the Court of First Instance considered, in paragraph 208, that RegulationNo 1984/83, being a measure of general application, did not provide any legal basisfor the benefit of a block exemption to be withheld from future agreements.

63.

    Third, the Court of First Instance considered, in paragraph 209, that it would becontrary to the principle of equal treatment to exclude for certain undertakings thebenefit of a block exemption regulation as regards the future whilst otherundertakings could continue to conclude exclusive purchasing agreements such asthose prohibited by the contested decision.

64.

    The Commission, supported by Mars, contends that the Court of First Instance'sinterpretation of Article 3 of Regulation No 17 is incorrect in law. In its view, thatprovision authorises the Commission to ensure that conduct found to haveconstituted an infringement of the competition provisions does not continue. It istherefore not a means of penalising existing infringements but rather of preventingtheir extending into the future. The Commission considers that, without Article 4of the contested decision, Langnese-Iglo could, through Regulation No 1984/83,benefit from a block exemption for new exclusive purchasing agreements. Thus,the prohibition laid down by Article 4 constitutes a safeguard designed to ensurecompliance with Articles 1 and 2 of the contested decision.

65.

    Before the Court of Justice, the Commission restated its views on the interpretationof Article 4 of the contested decision, indicating that it no longer adhered to itssubmission before the Court of First Instance to the effect that that provision alsoprecluded the conclusion of any exclusive purchasing agreements with new resellers. It states that its cross-appeal criticises the contested judgment only in so far as itannuls Article 4 of the decision as construed narrowly, that is to say, as prohibitingLangnese-Iglo from re-establishing the same network of exclusive purchasingagreements as it had established in the past.

66.

    Langnese-Iglo, on the other hand, maintains that Article 4 of the contested decisionmust be construed as prohibiting it from concluding any exclusive purchasingagreements whatsoever with retailers for the purpose of selling single-item ice-creams. That article does not distinguish an agreement concluded with acontracting party who, at the date of the contested decision, was bound toLangnese-Iglo by an exclusive purchasing agreement from an agreement concludedwith a client whom it contacted only after that date. Moreover, Article 4 prohibitsthe conclusion of any exclusive agreement until 31 December 1997 regardless of thenumber of exclusive purchasing agreements concluded by it until that date andregardless of whether and to what extent the agreement in question, individuallyor in conjunction with other agreements of Langnese-Iglo and of its competitors,is caught by Article 85(1) or enjoys an exemption under Regulation No 1984/83. According to Langnese-Iglo, Article 4 is likewise not necessary to prevent anycircumvention of the prohibition laid down by Article 1 of the contested decision.

67.

    Langnese-Iglo adds that Article 4 of the contested decision differs from thecorresponding provision of other decisions by which in the past the Commission,under Article 3 of Regulation No 17, has required the undertakings concerned tobring an infringement of Article 85 of the Treaty to an end. In such decisions, theCommission required the undertakings concerned to refrain in the future fromconcluding any agreement 'which may have the same or a similar object or effect‘as the prohibited agreements.

68.

    Finally, Langnese-Iglo submits that to uphold the Commission's contention wouldbe to infringe the principle of equal treatment since neither the Commission norMars has appealed against the judgment in Schöller v Commission, cited above.

The claim that there is no need to adjudicate on the cross-appeal

69.

    Since on 31 December 1997, the date specified in Article 4 of the contesteddecision, has now passed, Langnese-Iglo submits that the cross-appeal has becomedevoid of purpose. It follows that the Court of Justice should of its own motionfind that there is no need to adjudicate on the cross-appeal. In that regard,Langnese-Iglo relies on the judgment in Case 56/85 Brother Industries v Commission[1988] ECR 5655.

70.

    The Commission submits, on the other hand, that the whole question of the legalityof Article 4 of the contested decision, as construed narrowly, is still a live issue,both in principle and in practice. Its practical importance derives from the factthat, following the contested judgment, Langnese-Iglo infringed Article 4 of thecontested decision, as construed narrowly. On this point, Mars adds that the rulingon the cross-appeal will affect, in particular, the question whether the contractsconcluded by Langnese-Iglo with different sales outlets in the period before 31December 1997 are valid and whether competitors may, where appropriate, pursuea claim for damages for infringement of Article 85(1) of the Treaty.

71.

    It is true that, in the event of the cross-appeal leading to the setting aside of thecontested judgment to the extent to which it annulled Article 4 of the contesteddecision, the prohibition based on that provision would have no practicalconsequence for the present since that prohibition was laid down only until 31December 1997. As the Commission and Mars have pointed out, however, thatfinding does not make it any less desirable to settle definitively the dispute as to thelegality and scope of Article 4 of the contested decision with a view to determiningits legal effects in the period up to the abovementioned date.

72.

    Moreover, the finding in Brother Industries, cited above, on which Langnese-Iglorelies, cannot be transposed to this case. The two situations are not comparable:in that case the action challenging a regulation had become devoid of purposebecause the regulation had been superseded in the course of the proceedings byanother, which the applicant also contested.

73.

    It must therefore be concluded that the cross-appeal has not become devoid ofpurpose and Langnese-Iglo's claim that there is no need to adjudicate on it musttherefore be rejected.

Substance

74.

    It must first be noted that, for the reasons set out in paragraphs 205 to 209 of thecontested judgment, the Court of First Instance correctly decided that theCommission was not entitled to prohibit Langnese-Iglo from concluding anyexclusive purchasing agreements in the future. The Court of First Instance'sassessment is, moreover, consistent with the case-law of the Court of Justice to theeffect that Article 3 of Regulation No 17 is to be applied according to the natureof the infringement found (see Joined Cases 6/73 and 7/73 Commercial Solvents vCommission [1974] ECR 223, paragraph 45, and Joined Cases C-241/91 P andC-242/91 P RTP and ITP v Commission [1995] ECR I-743, paragraph 90).

75.

    Next, it must be noted that, before the Court of Justice, the Commission expresslyindicated that it did not object to that assessment by the Court of First Instance. It now states that the sole purpose of Article 4 of the contested decision was toprevent Langnese-Iglo from re-establishing the same network of exclusivepurchasing agreements with its retail distributors, without, however, preventing itfrom concluding new exclusive purchasing agreements with other retail distributors. In that respect, its states, the judgment of the Court of First Instance was based ona misinterpretation of the scope of Article 4 of the contested decision.

76.

    That departure by the Commission from its previous view does not howeverconduce to the conclusion that the Court of First Instance erred in law.

77.

    As the Advocate General pointed out in point 40 of his Opinion, the wording ofArticle 4 of the contested decision and point 154 of that decision show an intentionto endow that article with the scope attributed to it by the Court of First Instanceand by Langnese-Iglo. The Court of First Instance's assessment is even less opento criticism in view of the stance taken by the Commission on that point before theCourt of First Instance.

78.

    It must also be observed that the principle of legal certainty requires that every actof the administration which produces legal effects should be clear and precise sothat the person concerned may know without ambiguity what are his rights andobligations and may take steps accordingly (see, to that effect, with regard tolegislative measures of general scope, Joined Cases 92/87 and 93/87 Commission vFrance and United Kingdom [1989] ECR 405, paragraph 22).

79.

    In those circumstances, it is unnecessary to examine the cross-appeal since it isbased on the hypothesis that the legality of Article 4 of the contested decision

should be assessed on the basis of the scope attributed to it by the Commissionbefore the Court of Justice.

80.

    Consequently, the cross-appeal must be dismissed as inadmissible.

Costs

81.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since Langnese-Iglo's appeal has been unsuccessful and theCommission's cross-appeal has been unsuccessful, those parties must be orderedto bear their own costs. Mars, which intervened in support of the Commission onthe appeal and the cross-appeal, must, in accordance with Article 69(4) of theRules of Procedure, be ordered to bear its own costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1.    Dismisses the appeal by Langnese-Iglo GmbH;

2.    Dismisses the cross-appeal by the Commission of the EuropeanCommunities;

3.    Orders Langnese-Iglo GmbH, the Commission of the EuropeanCommunities and Mars GmbH to bear their own costs.

GulmannWathelet Moitinho de Almeida Jann Sevón

Delivered in open court in Luxembourg on 1 October 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: German.