Avis juridique important

61989A0114

European Court reports 1990 Page II-00827 Pub.RJ Page Pub somm

Summary

Action for annulment of measures - Measures against which actions may be brought - Letter addressed by a Member of the Commission to a Member State expressing an opinion as regards the compatibility of an agreement between undertakings with the competition rules of the Treaty - No binding legal effects - Exclusion - Taking account thereof by addressee Member State when adopting national measures - Immaterial ( EEC Treaty, Arts 5, 85 and 173; Regulation No 17 of the Council )

A letter addressed to the authorities of a Member State by a Member of the Commission which merely represents an initial evaluation, by the Commission' s departments, of an agreement between undertakings with regard to Article 85 of the Treaty and confines itself to suggesting amendments thereto, without producing binding legal effects such as those resulting from a decision granting exemption or a decision ordering interim measures, the procedural rights of the parties to the agreement and any person who has lodged a complaint against it being expressly reserved, cannot be regarded as an act whose annulment may be sought in an action under Article 173 of the Treaty.

The fact that the said letter led the national authorities to which it was addressed to adopt measures of domestic law does not alter its legal nature. The Commission has no power either under Article 85 of the Treaty or Regulation No 17 or under Article 5 of the Treaty to address a binding decision to a Member State as regards the conduct to be adopted by the national authorities in connection with an agreement between undertakings falling under Article 85 of the Treaty.

( The grounds of this judgment are not substantively different from those of the judgment, also delivered on 13 December 1990, in Case T-113/89 Nefarma and Others v Commission [1990] ECR II-797 .)

Parties

In Case T-114/89,

Vereniging van Nederlandse Ziekenfondsen, whose registered office is in Zeist ( Netherlands ),

Kontaktorgaan Landelijke Organisaties van Ziektekostenversekeraars, whose registered office is in Houten ( Netherlands ),

Kontaktcommissie Publiekrechtelijke Ziektekostenregelingen voor Ambtenaren, whose registered office is at Nieuwegein ( Netherlands ),

represented by H . P . Utermark, of the Hague Bar, and F . O . W . Vogelaar, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of J . Loesch, 8 rue Zithe,

applicants,

Commission of the European Communities, represented by B . J . Drijber, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

supported by

Kingdom of the Netherlands, represented by J . W . de Zwaan, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Netherlands Embassy, 5 rue C . M . Spoo,

intervener,

APPLICATION for a declaration that one or more decisions alleged by the applicants to be contained in various letters of a Member of the Commission and of a Director of the Directorate-General for Competition are void,

THE COURT OF FIRST INSTANCE ( First Chamber ),

composed of : J . L . Cruz Vilaça, President, H . Kirschner, R . Schintgen, R . García-Valdecasas and K . Lenaerts, Judges,

( The grounds of the judgment are not reproduced .)

Operative part

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Orders the applicants to pay the costs jointly and severally, except those incurred by the intervener, which must be borne by the intervener itself .