<TI><P>Second ground of appeal: Misunderstanding of the concept of an actionable decision</P></TI>27.In their second ground of appeal the appellants submit that the Court of First Instance misunderstood the concept of an actionable decision. In view of the circumstances under which it was drafted and in the light of its contents, the contested letter constitutes a rejection decision amenable to annulment proceedings.As regards the context of the contested letter, the appellants point in particular to the letter of 9 January 1992 in which the Commission gave notice that it would write more fully with its conclusions. This choice of words presages a definitive position which was then taken in the contested letter of 10 March 1992. The Court of First Instance, it is alleged, gave no consideration to the letter of 9 January 1992 and did not take a position on the significance of the head of claim based on that letter, so that to that extent the order of the Court of First Instance is based on an inadequate statement of reasons. Moreover, they allege that there is a great similarity between the contested letter and the other letter from the Commission of 10 March 1992, which undeniably constitutes a decision.
In regard to the contested letter itself the appellants submit that a decision in which the Commission rejects a complaint is characterized by the fact that it first concludes the investigation instituted, secondly contains an assessment of the agreements in question and thirdly precludes the complainant, unless he brings forward new evidence, from demanding the resumption of the investigation. The contested letter satisfies these requirements, as its wording and context show. In its order the Court based itself on its judgment in the Automec I case, but incorrectly applied that case-law.
28.The Commission opposed that ground of appeal by stating that it concerned questions of fact and was therefore inadmissible. On the interpretation of the contested letter the Commission continues to put forward its point of view already expressed at first instance that it was only a preliminary statement of the Commission's position.29.Allow me first to address the complaint that the interpretation of the contested letter by the Court of First Instance was incorrect. In my opinion that is an assessment of facts which as such escapes review by the appeal court. However, it is true that the dividing line between questions of fact and law is very difficult to draw. One would be entirely justified in taking the view that the interpretation of the contested letter is intended to establish whether it is an actionable decision with the result that in the final analysis the question of fact is subsumed under a set of legal preconditions as to the facts, thus finally raising a point of law.However, that interpretation would not in my view be appropriate. It would entail the consequence that the notion of point of law would be very widely interpreted and would be extended to cover the assessment of facts by the Court of First Instance. That would run counter to the objective pursued by the establishment of the Court of First Instance. The establishment of a second court was intended to improve legal protection in the Community by enabling the Court of Justice in particular in the case of actions requiring close examination of complex facts to concentrate its activities on its fundamental task of ensuring uniform interpretation of Community law.See the third and fourth recitals in the preamble to Council Decision No 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a court of first instance of the European Communities (OJ 1988 C 215, p. 1) and also the first recital in the preamble to Council Decision No 93/350/Euratom, ECSC, EEC of 8 June 1993 amending Decision No 88/591 (OJ 1993 L 144, p. 21).
The lightening of the workload of the Court of Justice intended thereby would be set at nought if one were to interpret point of law so widely as to include the determination of the contents of a document. If it were so, the Court of Justice would be required in the present case itself to examine whether the contested letter of 10 March 1992 constituted a definitive decision, thus substituting its assessment for that of the Court of First Instance. If it did so the Court would not be acting as a court of appeal on a point of law as defined in the Treaty, but rather as a court of appeal with full jurisdiction.
30.Support for the view that in interpreting the concept of point of law a restrictive approach is appropriate may also be found in the Court's case-law. Of particular relevance is the judgment in the Vidrányi case in which the Court held that an appeal may rely only on grounds relating to the infringement of rules of law by the Court of First Instance, to the exclusion of any appraisal of the facts.Judgment in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 12 (emphasis added).
An appeal is therefore admissible only in so far as it is claimed that the decision of the Court of First Instance is incompatible with the rules of law the application of which it had to ensure.Ibid., (footnote 15), paragraph 13.
31.The view I have expressed does not necessarily mean that the Court of First Instance is entirely free in its assessment of the facts and that its assessment may only be reviewed in the event of an infringement of legal rules. In my view it would be entirely possible (and appropriate) to allow an appeal where the Court of First Instance in its assessment of the facts has manifestly misdirected itself, e.g. has offended against the laws of logic.32.In my view that possibility does not need to be discussed further here since there is no such manifest error. The interpretation of the content of the contested letter of 10 March 1992 by the Court of First Instance appears to be reasonable.33.Indeed, the appellants rightly point out that in several places the wording of that letter conveys the impression that the Commission has already terminated the investigation initiated upon the complaint by SFEI. Particularly, is that true of the first two sentences of the section quoted aboveSee paragraph 9 above.
in which the word would is used twice. One could also mention in this connection the formulation to be found in the last paragraph of that letter we do not propose to pursue enquiries under Article 86. The last-mentioned expression, it seems, does not preclude another interpretation, although I naturally do not wish to presume to interpret with any claim to authority an expression from a foreign language.Nor is there any indication in the letter that it is merely a preliminary statement of position. Similarly, no attempt is made to draw the attention of the addressee of the letter to the possibility of submitting further arguments. That is all the more significant since in the XXth report on competition policy, which I shall come back to, the Commission itself, stated that it would in future pay heed to the concern that it should not be charged with the ambiguous drafting of administrative letters capable of giving the complainant the impression that its application had been definitively rejected.Cf. XXth report on Competition Policy (1990), Brussels/Luxembourg 1991, No 165.
The view expressed by the representative of the Commission at the hearing that the letter contained an implicit demand to the addressee to inform the Commission whether it was of the same view can hardly be supported by the terms of the letter.
34.It should however be borne in mind that the contested letter contains no specific assessment under Article 86 of the facts submitted by SFEI to the Commission. As the Court of First Instance correctly stated the letter merely explains the decision on merger control of 2 December 1991 and the connection existing in the Commission's view between this decision and SFEI's complaint.Ibid., (footnote 1), paragraph 42.
In the contested letter the Commission points out that in its decision of 2 December 1991 it had arrived at the conclusion that the establishment of a joint venture between the French postal authorities and the other parties did not create or reinforce a dominant position in such a way as significantly to impede effective competition.In examining the compatibility of the joint venture against the yardstick of the merger control regulation the situation on the French market was also discussed.Cf. numbers 33 and 42 et seq. of the decision of 2 December 1991. The full text of that decision is, as far as is apparent, has not been printed in any journal or any other publication. However, except for information covered by business secrecy, it is available from the Commission.
It may therefore be safely assumed that as a result of the findings made in the decision of 2 December 1991 a decision on the question whether in the present case, as had been alleged in SFEI's complaint, there was an abuse of a dominant position had already been prejudged. In its letter of 10 March 1992 the Commission seems to have assumed that to be the case. There is no express finding that any such abuse could be established. If one has regard in particular to the two paragraphs of the contested letter cited by me it is difficult to escape the impression that many words are devoted to the consequences of the decision of 2 December 1991 as regards the complaint of SFEI though little of substance is said. This lack of content and clarity is regrettable. It cannot however alter the fact that the interpretation given by the Court of First Instance to these statements is plausible.
Finally, there is the argument of the appellants that the contested letter had to be construed as a decision since it was sent on the same day as the letter concerning Article 92 and was couched in very similar terms. The Commission's representative convincingly refuted this argument at the hearing by quoting the actual wording of the letter. The letter bearing number 06873 speaks unambiguously of the Commission decision to terminate the examination of the complaint under Article 92.The last paragraph of this letter (which was available to the Court of First Instance) reads: Je suis donc au regret de vous faire part de la décision des services compétents de clôturer, en raison des circonstances précisées ci-dessus, le dossier ouvert à la suite de votre demande du 21.12.1990 (I therefore regret to inform you of the decision of the competent services to close, for the reasons stated above, the file opened following your application of 21 December 1990.)
35.This ancillary examination of the contested letter of 10 March 1992 has brought to light elements in it which seem to indicate that the complaint is being definitively rejected. On the other hand, factors of some weight may be adduced in support of the Commission's assertion that it was simply a preliminary statement of position. In my view, the latter predominate with the result that the assessment by the Court of First Instance is unimpeachable.Nevertheless, the Commission cannot escape criticism for having created that lack of clarity and ambiguity by the manner in which it formulated its letter; a warning was already given about this in the judgment of the Court of First Instance in the Automec I case and the Commission itself promised in the XXth Report on Competition Policy to discontinue this practice. However, these defects alone provide no warrant for deeming the contested letter to constitute an actionable decision by having recourse to the theory of ostensible validity (Rechtschein), as the appellants suggest. The concept of an actionable decision must (as I will show below) be interpreted on the basis of objective considerations. The principle whereby responsibility for ambiguities in a declaration must be borne by the person making the declaration may also be observed by taking it into consideration appropriately in the decision as to the costs of the proceedings.
36.I now turn to the complaint that the Court of First Instance did not give consideration to the letter of 9 January 1992. At first sight this also appears to be a question of fact of which the appellate court may not take cognizance. In my opinion, however, that view would be wrong. The assessment by the Court of First Instance of the facts should indeed, as I have already explained, only be reviewable within very strict limits.Cf. paragraph 31 above.
If, however, the Court of First Instance in its decision does not give its mind to the arguments of the party concerned then no factual assessment has in fact taken place. As the Court of Justice held in the Vidrányi case that constitutes an irregularity amounting to a failure to state reasons, that is a failure to observe a general principle which places on every court the obligation to state the reasons on which its decisions are based, by indicating in particular the reasons which led it not to uphold a complaint expressly raised before it.Ibid, (footnote 15), paragraph 29.
37.However, it should not be forgotten that the abovementioned judgment concerned the infringement of a legal provision which in the applicant's view had not been examined. In this case, however, it is a document to which in the appellant's view the Court of First Instance did not pay sufficient heed. One cannot however expect the Court of First Instance to examine in its decision all the factual matters mentioned by the parties in the course of the proceedings. Yet an error of law amenable to correction by the appellate court may be assumed to have been made where it concerns a material fact which, had it been considered, might have resulted in a different decision by the Court of First Instance.38.It may not even be necessary to go into this question following the recent judgment in the Pincherle case.Judgment in Case C-244/91 P Pincherle v Commission [1993] ECR I-6965.
In that case the appellant had alleged, inter alia, that in the judgment appealed against the Court of First Instance had failed to give consideration to three documents submitted by him. The Court of Justice rejected this allegation on the ground that it was not proven that the Court of First Instance had not examined the documents in question.Ibid., (footnote 24), paragraph 33.
I am inclined to the view that this statement was tailored to the specific circumstances of that case. It would be clearly inappropriate to elevate that statement to the status of a general rule. If it were, an appellant would hardly ever be able successfully to claim that the Court of First Instance had overlooked essential facts in its decision because it would be difficult for him to prove that the Court of First Instance had committed such an error. The only basis on which such proof can be established is the actual judgment of the Court of First Instance which of course will contain no submissions on the facts in question.
39.The question, therefore, is whether the letter of 9 January 1992 was considered by the Court of First Instance and whether, if that should turn out not to be the case, that letter carries appreciable significance for the present case. Indeed, the Commission submitted that the circumstances surrounding the contested letter were unimportant where the significance of the letter clearly and unambiguously appears from its contents. That is however not the case here. Even the Commission's representative at the hearing had to concede that the contested letter contained an element of ambiguity.In my view the first question may be answered relatively easily. The Court of First Instance mentions the letter of 9 January 1992 in several places (paragraphs 17, 24 and 25 of its order), in which it deals with the arguments of the parties. In the legal evaluation, on the other hand, the letter no longer appears. Solely in paragraph 46 of the order would it be possible to read a reference to that document into the reference to paragraph 25. However, the contents of that paragraph militate against any such interpretation. The Court of First Instance there states that SFEI's letter to the Commission of 15 November 1991 is not to be construed as a request to take a position within the meaning of Article 175 of the EEC Treaty. On the question whether those statements were necessary for the decision to be reached there is no need for me to express an opinion. In any event there is scarcely any doubt that neither in this nor in any other place does the Court of First Instance in its order express an opinion on the possible significance of the letter of 9 January 1992 for the interpretation of the contested letter.
40.In my view, however, that question may in the end remain open since the letter of 9 January 1992 contributes nothing of substance to the interpretation of the letter under examination in this case. The Director General of DG IV refers in that letter to the decision of 2 December 1991 and its possible effects on the treatment of the complaint lodged by SFEI. He states that the Commission will shortly be taking a position on this question. The assumption that this gives notice of a preliminary statement of position which was then given in the letter contested in these proceedings is entirely plausible.The appellants have attached particular importance to the fact that the letter of 9 January 1992 speaks in this connection of conclusions. Their interpretation that this term points to a definitive statement of position is entirely possible. On the other hand I do not consider it be persuasive (or even mandatory). The use of this term is entirely consistent with the idea that the contested letter constitutes a preliminary statement of position. In that case the letter of 9 January 1992, as the Commission submits, could be simply construed as giving notice of that preliminary statement of position.
41.In accordance with what has been stated hitherto the interpretation given to the contested letter by the Court of First Instance should be regarded as entirely possible and arguable. As I have already said there are certain factors which militate in favour of the interpretation advocated by the appellants. But, since the interpretation of the Court of First Instance is not vitiated by manifest errors, it may not be annulled on this ground.42.I will now turn to the question whether the Court of First Instance correctly construed the concept of an act actionable under Article 173. This is evidently a question of law which may be the subject of an appeal on a point of law, as is confirmed by the Court's existing case-law.Cf. judgment in Case C-132/90 P Schwedler v Parliament [1991] ECR I-5745, paragraph 13; judgment in Case C-107/90 P Hochbaum v Commission [1992] ECR I-157, paragraph 16.
43.In its order the Court evidently relied on its judgment in Automec I.See footnote 2.
In that judgment the Court of First Instance held that three successive stages must be distinguished in the course of Commission proceedings under Article 3(2) of Regulation No 17 and Article 6 of Regulation No 99/63.Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition 1963-64, p. 47). Under Article 19(1) of Regulation No 17 before giving a decision under Article 3 the Commission must hear the parties concerned. Article 6 of Regulation 99/63 provides as follows: If the Commission is of the opinion that the circumstances as ascertained by it do not give grounds for upholding an application brought under Article 3(2) of Regulation No 17, it should notify the applicants of the grounds for that decision and set them a period for submitting any written observations.
During the first of those stages, following the submission of the complaint, the Commission collects the information referred to in Article 6 of Regulation No 99/63, on the basis of which it will decide what decision it will take on the complaint. That stage may include inter alia an informal exchange of views and information between the Commission and the complainant with a view to clarifying the factual and legal issues with which the complaint is concerned and to allowing the complainant an opportunity to expand on his allegations in the light of any initial reaction from the Commission. Preliminary observations made by Commission officials in the context of informal contacts cannot be regarded as measures open to challenge.
In the second stage, the Commission informs the complainant, in the notification prescribed in Article 6 of Regulation No 99/63, of the reasons for which it considers that there are insufficient grounds for granting the application and gives the applicant the opportunity to submit any further comments within a time-limit fixed by the Commission. The notification cannot be treated as a decision ...
In the third stage of the procedure, the Commission takes cognizance of the observations submitted by the complainant. Although Article 6 of Regulation No 99/63 does not explicitly provide for the possibility, this stage may end with a final decision.Ibid., (footnote 2), paragraphs 45 to 47.
44.This exposition by the Court of First Instance I consider to be entirely helpful in illustrating the procedure for investigating a complaint. It is not necessary for these purposes to go into the questions specifically raised by this conception of the procedure.The last-mentioned section of the judgment specifically leaves open the question whether the Commission if it does not wish to uphold a complaint, must upon application by the complainant reject the complaint by means of a formal decision (and not only may) which the complainant may then proceed against under Article 173 of the EEC Treaty. In my view the complainant is entitled to that much. The judgment of the Court of First Instance in the Antomec II case (judgment in Case T-24/90 Automec v Commission [1992] ECR II-2223 which points in this direction (cf. paragraph 85) is therefore to be welcomed).
If, upon examination, the question arises whether a measure is in the nature of a decision or not, the scheme described above permits the relevant measure to be assigned to the relevant stage of the proceedings.45.However, in several places the order of the Court of First Instance appealed against conveys the impression that the Court of First Instance has reversed this logic: a measure cannot be an actionable act because it is to be assigned to the first (or the second) of the abovementioned procedural stages. I am referring to paragraphs 41 and 43 of the order appealed against. That argument of course amounts to nothing more than a petitio principii. The same may also be said of the Commission's argument that the contested letter could not be a decision since the Commission had not previously sent to the complainant a letter under Article 6 of Regulation No 99/63 (requiring him to state his views within a stated time-limit).This argument was, moreover, used by the Court of First Instance in the Automec I case, ibid., footnote 2, paragraph
If that was in point of fact the view of the Court of First Instance it must necessarily be refuted. Under the Court's consistent case-law what is decisive in determining whether an act is actionable under Article 173 is whether the measure in question is intended to produce legal effects, irrespective of its form.Judgment in Case 22/70 Commission v Council [1971] ECR 263, paragraph 42; cf. most recently the judgment in Case C-325/91 France v Commission [1993] ECR I-3283 paragraph 9.
In the case of acts which are formulated in the course a multiphase procedure an act will indeed in principle be actionable only in the case of measures which definitively determine the Commission's viewpoint and not in the case of preparatory measures.Cf. judgment in Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 9 et seq.
In all cases, however, it is the content of the measure in question which is relevant.
46.In the Philip Morris case the Court of Justice mentioned certain criteria which may be availed of in determining whether a Commission letter is to be construed as a conclusive rejection of a complaint. In that case it established that the relevant letters concluded the investigation, contained an assessment of the agreements in question and precluded the complainants from seeking a resumption of the investigation, unless they could bring forward new evidence.Judgment in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 12.
47.The order appealed against reveals that this judgment was brought to the attention of the Court of First Instance. Thus, in paragraphs 42 and 43 of its order the Court of First Instance states that the contested letter contains no assessment of the facts submitted by the complainant and does not have the effect of terminating the procedure.48.I am therefore of the opinion that those places in the order in which the Court of First Instance appears to draw inferences as to the legal nature of the letter from the stage of the procedure to which in its view the letter belonged, are merely attributable to a confused mode of expression. In accordance with the findings referred to above,See paragraph 47.
the Court of First Instance must be assumed to have been familiar with the applicable law and also to have applied that law. The mere fact that the terms in which the order appealed against is couched to that extent give grounds for certain doubts does not warrant the setting aside of that order. The appellate Court merely has to examine whether the Court of First Instance infringed rules of law. No such error can be established with certainty in this case. In the present case it must also be borne in mind that the interpretation by the Court of First Instance of the contested letter appears as such to be entirely defendable. To regard the order as vitiated by legal defects simply owing to certain confused formulations would therefore be difficult to reconcile with the principle of the economy of legal proceedings.49.Nevertheless, the order contains detailed elucidations on a question (interpretation of the terms of the complaint of 21 December 1990) which are manifestly superfluous.See paragraph 26 above.
This factor makes it necessary to subject the other statements of the Court of First Instance to a particularly critical examination. Since in the end the order appealed against is not founded on the statements in question, that factor also can provide no warrant for setting aside the order appealed against.