T-Mobile Austria GmbH, formerly max-mobil Telekommunikation Service GmbH

(Appeal – Article 90(3) of the EC Treaty (now Article 86(3) EC) – Amount of the fees imposed by the Republic of Austria on operators of GSM networks – Partial rejection of the complaint – Admissibility)

Opinion of Advocate General Poiares Maduro delivered on 21 October 2004

Judgment of the Court (Grand Chamber), 22 February 2005

Summary of the Judgment

(EC Statute of the Court of Justice, Art. 49, first para.)

(Art. 90(1) and (3) of the EC Treaty (now Article 86(1) and (3) EC) and Art. 173, fourth para. of the EC Treaty (now, after amendment, Art. 230, fourth para. EC))

1.Decisions which dispose of a procedural issue concerning an objection of inadmissibility, within the terms of the first paragraph of Article 49 of the EC Statute of the Court of Justice, adversely affect one of the parties where they uphold or reject that objection of inadmissibility. An appeal brought by the Commission against that part of a judgment of the Court of First Instance expressly rejecting the objection of inadmissibility which the Commission had raised against the action brought against the refusal to act on a complaint addressed to it is therefore admissible, even though the Court of First Instance ultimately dismissed that action as being unfounded.

(see para. 50)

2.Article 90(3) of the Treaty (now Article 86(3) EC) requires the Commission to ensure that the Member States comply with the obligations imposed on them, in regard to the undertakings covered by Article 90(1) of that Treaty, and expressly confers on it the power to take action for that purpose by way of directives and decisions. The Commission is empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law.

3.Individuals may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 90(3) of the Treaty if the conditions laid down in the fourth paragraph of Article 173 of the Treaty (now, following amendment, the fourth paragraph of Article 230 EC) are satisfied. It follows, however, from the wording of Article 90(3) of the Treaty and from the scheme of that article as a whole that the Commission is not obliged to bring proceedings within the terms of those provisions, as individuals cannot require the Commission to take a position in a specific sense. The fact that an applicant has a direct and individual interest in annulment of the Commission’s decision to refuse to act on its complaint is not such as to confer on it a right to challenge that decision. Nor can that applicant claim a right to bring an action pursuant to Regulation No 17, which is not applicable to Article 90 of the Treaty. That finding is not at variance with the principle of sound administration or with any other general principle of Community law. No general principle of Community law requires that an undertaking be recognised as having standing before the Community Courts to challenge a refusal by the Commission to bring proceedings against a Member State on the basis of Article 90(3) of the Treaty.

(see paras 66, 68-72)

22 February 2005 (1)

(Appeal – Article 90(3) of the EC Treaty (now Article 86(3) EC) – Amount of the fees imposed by the Republic of Austria on operators of GSM networks – Partial rejection of the complaint – Admissibility)

In Case C-141/02 P,

APPEAL under Article 49 of the EC Statute of the Court of Justice, brought on 15 April 2002

Commission of the European Communities, represented by W. Mölls and K. Wiedner, acting as Agents, with an address for service in Luxembourg,

appellant,

supported by: French Republic, represented by G. de Bergues and F. Million, acting as Agents, with an address for service in Luxembourg,

intervener in the appeal,

the other parties to the proceedings being:

T-Mobile Austria GmbH, formerly max-mobil Telekommunikation Service GmbH, established in Vienna (Austria), represented by A. Reidlinger, M. Esser-Wellié and T. Lübbig, Rechtsanwälte, with an address for service in Luxembourg,

applicant at first instance,

Kingdom of the Netherlands, represented by H.G. Sevenster, acting as Agent, with an address for service in Luxembourg,

intervener at first instance,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský, J. Klučka and U. Lõhmus, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M.-F. Contet, Principal Administrator,

having regard to the written procedure and following the hearing on 7 September 2004,

after hearing the Opinion of the Advocate General at the sitting on 21 October 2004,

gives the following

1This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

The judgment under appeal

In the judgment under appeal, the Court of First Instance, after setting out in its opening observations the context of its decision and, in particular, the scope of Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I‑947, dealt in turn with the issues of whether the application was admissible and whether it was well founded.

Opening observations of the Court of First Instance

15The Court of First Instance first pointed out, in paragraph 48 of the judgment under appeal, that the diligent and impartial treatment of a complaint is justified by the right to sound administration of individual situations, which is one of the general principles that are common to the constitutional traditions of the Member States and which is set out in Article 41(1) of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (‘the Charter of Fundamental Rights’).

16The Court of First Instance went on, in paragraphs 49 and 51 of the judgment under appeal, to state that the obligation to undertake a diligent and impartial examination of a complaint has been imposed on the Commission in the areas coming under Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC), in addition to those coming under Article 92 of the EC Treaty (now, after amendment, Article 87 EC) and Article 93 of the EC Treaty (now Article 88 EC). The Court of First Instance took the view that Article 90 of the Treaty had to be interpreted in the same way as the Treaty provisions on competition, which expressly grant procedural rights to complainants. It took the view that max.mobil was in a situation comparable to that referred to in Article 3 of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87), by virtue of which it was entitled to submit a complaint to the Commission.

17The Court of First Instance concluded by pointing out, in paragraphs 52 and 53 of the judgment under appeal, that the existence of an obligation to undertake a diligent and impartial examination was justified by the general duty of supervision to which the Commission is subject. That had to apply without distinction in the context of Articles 85, 86, 90, 92 and 93 of the EC Treaty, even though the precise manner in which such obligations are discharged varies according to the specific areas to which they apply and, in particular, to the procedural rights expressly conferred by the Treaty or by secondary Community law in those areas on the persons concerned. Consequently, the Commission’s argument, first, that Article 90(3) of the Treaty did not extend to individuals and, second, that the protection of individuals was ensured by the obligations directly imposed on Member States was irrelevant.

18In paragraph 54 of the judgment under appeal, the Court of First Instance drew a distinction between the procedures set out in Article 90(3) of the Treaty and in Article 169 of the EC Treaty (now Article 226 EC). According to that Court, whereas under Article 169 of the Treaty the Commission ‘may’ commence Treaty-infringement proceedings against a Member State, Article 90(3) of the same Treaty provides, by contrast, that the Commission is to adopt the appropriate measures ‘where necessary’. Those words indicate that the Commission must undertake a diligent and impartial examination of complaints, on completion of which it exercises its discretion as to whether there are grounds for conducting an investigation and, if there are, to decide whether to take measures against the Member State or States concerned. In contrast to the position regarding its decisions to commence Treaty-infringement proceedings under Article 169 of the Treaty, the Commission’s power to act on a complaint pursuant to Article 90(3) of the Treaty, although discretionary, is none the less subject to judicial review (see, to that effect, point 96 of the Opinion of Advocate General Mischo in Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I‑5603).

19While the Commission enjoys a wide discretion both in relation to the action which it considers necessary to be taken and in relation to the means appropriate for that purpose (see, in particular, the judgment in Bundesverband der Bilanzbuchhalter v Commission, cited above, paragraph 27), the Court of First Instance pointed out, in paragraphs 55 to 57 of the judgment under appeal, that, in so far as the Commission is required to undertake a diligent and impartial examination of a complaint, compliance with that obligation does not, however, mean that its decision on whether or not to take action pursuant to that complaint can avoid being amenable to the same judicial review as that in cases where infringements have been established in the areas covered by Articles 85 and 86 of the Treaty (see, in particular, Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 13). The Court of First Instance also cited point 97 of the Opinion of Advocate General Mischo in Commission and France v TF1, cited above, to the effect that the same must apply in regard to infringements of Article 90(3) of the Treaty. The Court of First Instance stated further that such judicial review is also one of the general principles that are common to the constitutional traditions of the Member States, as is confirmed by Article 47 of the Charter of Fundamental Rights.

20In order to respect the discretion of the Commission in a case where the contested measure is a Commission decision not to use the power conferred on it by Article 90(3) of the Treaty, the role of the Community judicature must, in the view of the Court of First Instance, be limited to a circumscribed review in which it checks that the contested measure includes a statement of reasons which reflects due consideration of the relevant aspects of the case, that the facts are materially accurate, and that the assessment of those facts is not vitiated by any manifest error.

In view of its preliminary observations, the Court of First Instance upheld the admissibility of the action brought by max.mobil, setting out the grounds of its judgment as follows.

22First, in paragraph 65 of the judgment under appeal, it classified the Commission’s letter of 11 December 1998, in which the latter informed max.mobil that it did not intend to act on its complaint under Article 90 of the Treaty, as a decision which could be the subject of an application for annulment.

23Next, the Court of First Instance ruled in paragraphs 70 and 71 of that judgment that that decision was addressed to max.mobil and pointed out that that company was, for several reasons, individually concerned by that decision.

24The Court first pointed out that the contested measure constituted a reaction by the Commission to a formal complaint made by max.mobil.

26Second, the Court stated that the Commission had held several meetings with max.mobil for the purpose of examining various matters raised in the complaint.

27Third, according to the Court of First Instance, when the GSM licence was awarded to max.mobil, it had only one competitor, Mobilkom, which had benefited from the State measures objected to in that part of the complaint which the Commission had considered, in the contested measure, not to require further investigation.

28Fourth, the Court of First Instance noted that max.mobil was the only one of Mobilkom’s two competitors which was required to pay the same fee as Mobilkom, whereas the other competitor, Connect Austria, was required to pay a substantially lower fee than that imposed on Mobilkom or max.mobil.

29Fifth, it was not disputed, according to the Court of First Instance, that the amount of the fee imposed on Mobilkom, with which the complaint and the contested measure were mainly concerned, was calculated automatically by reference to the amount of the fee proposed by max.mobil in the tendering procedure for the second GSM licence in Austria.

30Sixth, the Court of First Instance pointed out that the measure to which the complaint and the contested measure referred applied individually to Mobilkom and did not constitute a measure of general application such as that in the case of Bundesverband der Bilanzbuchhalter v Commission.

31After pointing out, in paragraphs 73 and 75 of the judgment under appeal, that the review which it carries out is limited to verification of the Commission’s compliance with its duty to undertake a diligent and impartial examination of complaints and that the contested measure was based on facts the materiality of which was not contested, the Court of First Instance took the view that the Commission was able, without committing any manifest error of assessment, to conclude that the imposition on Mobilkom of a fee identical to that paid by max.mobil was not in itself sufficient to show that Mobilkom had been induced to abuse its dominant position. That conclusion was, moreover, consistent with the Commission’s previous practice.

32The Court of First Instance also pointed out that the contested measure had been adopted following a number of meetings between max.mobil and the Commission in a context with which max.mobil was familiar and which allowed it to understand the reasons set out in the grounds of the contested measure. It was therefore not possible to hold that there was an absence or insufficiency of reasoning, as was the position in the judgment in Case 294/81 Control Data v Commission [1983] ECR 911, at paragraph 15. The Court of First Instance accordingly concluded that the contested measure did contain an adequate statement of reasons for the purposes of Article 190 of the EC Treaty (now Article 253 EC).

Procedure before the Court

33The Commission of the European Communities lodged an appeal with the Court of Justice on 12 April 2002.

34On 1 August 2002 the French Republic sought leave to intervene in support of the form of order sought by the Commission. The President of the Court granted that request by order of 24 October 2002.

35The max.mobil company lodged a cross-appeal in its response of 9 August 2002. The Commission replied to this by a statement in reply of 15 November 2002. A rejoinder was lodged by max.mobil on 25 February 2003.

Forms of order sought in the appeal and in the cross-appeal

36The Commission claims that the Court should:

set aside the judgment under appeal so far as it declares admissible the action for annulment brought by max.mobil against the Commission’s letter of 11 December 1998;

dismiss as inadmissible the action for annulment brought by max.mobil against the contested measure;

dismiss the cross-appeal brought by max.mobil;

order max.mobil to pay the costs.

The max.mobil company contends that the Court should:

primarily, dismiss the Commission’s appeal as being inadmissible or, in the alternative, as unfounded;

set aside the judgment under appeal to the extent to which it dismissed max.mobil’s action for annulment as being unfounded;

annul the contested measure;

order the Commission to pay the costs.

In its statement in intervention, the French Republic claims that the Court should:

–set aside the judgment under appeal in so far as it declares the application for annulment brought by max.mobil to be admissible under Article 90 of the Treaty;

–order max.mobil to pay the costs of the proceedings.

The appeal

The admissibility of the main appeal

Arguments of the parties

39The Commission contends that the appeal is admissible, basing its arguments on two points.

40First, it submits that the appeal is admissible under the first paragraph of Article 49 of the EC Statute of the Court of Justice (now the first paragraph of Article 56 of the Statute of the Court of Justice) in so far as the judgment under appeal disposes of a procedural issue concerning admissibility by declaring the action admissible. The judgment under appeal thus adversely affects the Commission in its capacity as defendant before the Court of First Instance on this point. The fact that, on the substance, the Court of First Instance declared the action to be unfounded has no bearing on the admissibility of the Commission’s appeal seeking annulment of the judgment under appeal, which held that the contested measure could be the subject of judicial proceedings (judgment in Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraphs 50 and 52).

41Second, the Commission contends that the appeal is admissible under the third paragraph of Article 49 of the EC Statute of the Court of Justice. The Commission is one of the parties which can appeal against a contested judgment independently of the findings on the merits, as the Court implicitly acknowledged in its judgment in Case C-73/97 P France v Comafrica and Others [1999] ECR I‑185, or even without having to show an interest, as the Court stressed in its judgment in Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 171.

42The max.mobil company takes the view that, as the Commission has been successful, the second paragraph of Article 49 of the EC Statute of the Court of Justice applies and precludes the admissibility of the Commission’s appeal. Furthermore, in this case, the issue of admissibility was not dealt with as a procedural issue but in the context of the examination of the substantive issues. The judgment under appeal deals with the action in its totality, a position which is confirmed by Article 114(4) of the Rules of Procedure of the Court of First Instance.

43The Commission’s interpretation of the third paragraph of Article 49 of the EC Statute of the Court of Justice is also challenged by max.mobil. Community institutions, it argues, cannot benefit from a position different from that of other parties. They cannot bring an appeal solely for the purpose of having the Court clarify one of the legal issues dealt with in one judgment, and consequently not independent, as is clear from the judgment in Council v Boehringer, cited above, paragraph 51, confirmed by the judgment in Commission and France v TF1, cited above.

44The max.mobil company concludes by noting that the context of the judgment in France v Comafrica and Others, cited above, was different. In that case the Court was faced with a bundle of decisions by the Court of First Instance, with the result that reference to that judgment is inappropriate.

Findings of the Court

45It is first of all necessary to reject the reasoning developed by max.mobil with reference to the judgment in Commission and France v TF1. In that judgment the Court, confirming the decision delivered at first instance by the Court of First Instance that it was unnecessary to give a ruling in the case, held that the Court of First Instance could reach a decision without having to rule on the admissibility of the action brought before it in view of the order in which the questions were examined (Commission and France v TF1, paragraphs 25 to 28).

46In the present case, by contrast, the Court of First Instance formally ruled on the admissibility of the action before it dealt with the case on its merits.

The first paragraph of Article 49 of the EC Statute of the Court of Justice provides:

47‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the Court of First Instance and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility.’

48Under the third paragraph of Article 49 of that Statute, the Community institutions do not have to show any interest in order to bring an appeal against a judgment of the Court of First Instance (Commission v Anic Partecipazioni, cited above, paragraph 171).

49In the present case, the Commission’s appeal requests the Court to set aside that part of the judgment under appeal, that is to say, paragraphs 65 to 72, in which the Court of First Instance expressly rejected the plea of inadmissibility raised by the Commission, on the ground that that part constitutes a decision disposing of a procedural issue within the terms of the first paragraph of Article 49 of the EC Statute of the Court of Justice.

50Decisions which dispose of a procedural issue concerning a plea of inadmissibility, within the terms of that provision, are decisions which adversely affect one of the parties by upholding or rejecting that plea of inadmissibility. The Court thus allowed an appeal against a judgment of the Court of First Instance in so far as the latter had rejected a plea of inadmissibility raised by one party against an action, even though the Court of First Instance had subsequently, in the remainder of the same judgment, dismissed that action as being unfounded (see France v Comafrica and Others and Council v Boehringer, paragraph 50).

51In the present case, given that, as has just been seen, the Court of First Instance intended to rule by decision on the admissibility of the action brought by max.mobil before dismissing it on the merits, the appeal by the Commission against that decision adversely affecting it must be treated as being admissible.

52The objection of inadmissibility raised by max.mobil against the appeal must therefore be rejected.

The admissibility of the action before the Court of First Instance

Arguments of the parties

53While the Commission acknowledges that it is under an obligation to carry out a diligent examination of complaints which it receives in the area covered by Article 90 of the Treaty, it considers, as does the French Government, that the Court of First Instance erred in law in forming the view that the Commission’s decision as to whether to pursue the infringement of the competition rules was amenable to judicial review.

54The Commission submits that the Court of First Instance misconstrued the scope of the judgment in Bundesverband der Bilanzbuchhalter v Commission in forming the view that the solution upheld in that case, namely that the Commission has a discretionary power in regard to pursuing infringements, is merely an exception to the general right to have complaints examined. The Commission submits that the Court, by contrast, ruled in paragraph 25 of that judgment that standing to bring proceedings against a refusal by the Commission to act under Article 90(3) of the Treaty can, at most, exist only in exceptional situations.

55In the present case, the Commission argues, as does the French Government, that max.mobil is not in an exceptional situation within the meaning of that case-law.

56The Commission, supported by the French Government, also challenges the classification by the Court of First Instance, at paragraphs 64 to 68 and 71 of the judgment under appeal, of the Commission’s letter of 11 December 1998 as a ‘decision’. Its letters, the Commission contends, should be regarded as being merely informative.

57The Commission submits that the procedural rights, including the right to obtain a Commission decision, which are recognised by Regulation No 17 are not applicable in the context of Article 90(3) of the Treaty.

58The Commission accordingly argues that the Court of First Instance could not refer to the case-law precedents concerning the rights derived from application of Articles 85 and 86 of the Treaty.

59Finally, the Commission expresses the view that the principle of the proper administration of individual situations, hitherto unknown in the case-law of the Court but on which the Court of First Instance bases its reasoning, is too general to constitute a basis to support procedural rights for the benefit of individuals, a fortiori as the Charter of Fundamental Rights invoked in support of that principle is not applicable. The third indent of Article 41(2) of that Charter, moreover, merely repeats the obligation to state reasons set out in Article 190 of the Treaty. Article 41(4) of that Charter reflects the third paragraph of Article 21 EC, as it results from the Treaty of Amsterdam, which was not yet in force on 11 December 1998, the date of the contested measure, construed as a decision challenged at first instance.

60The max.mobil company submits essentially that it does have locus standi. Drawing support from points 99, 100, 103 and 107 of the Opinion of Advocate General Mischo in Commission and France v TF1, the judgment in Case C‑225/91 Matra v Commission [1993] ECR I-3203, paragraphs 23 and 25, and from the Opinion of Advocate General La Pergola in Bundesverband der Bilanzbuchhalter v Commission, max.mobil argues that, in the judgment in the latter case, the inadmissibility which the Court upheld was based, not on the broad discretion claimed by the Commission, but on the fact that the complaint related to a measure of general scope against which a challenge by an individual was itself inadmissible.

61As the Court of First Instance acknowledged in the judgment under appeal, for the reasons set out in paragraphs 24 to 30 of the present judgment, max.mobil claims that it was individually concerned by the Commission’s decision not to act on its complaint.

62Thus, max.mobil submits, the conferral on the Commission of a broad discretion does not automatically mean that actions brought against decisions taken pursuant to that discretion are inadmissible.

63The possibility of judicial review of Commission decisions refusing to examine complaints brought by individuals, irrespective of the nature of the measures under challenge, cannot therefore be discounted. The max.mobil company relies in this regard on paragraphs 24 and 25 of the judgment in Bundesverband der Bilanzbuchhalter v Commission.

64The max.mobil company also takes the view that it is in an exceptional situation within the terms of that judgment and of that in Case T-17/96 TF1 v Commission [1999] ECR II-1757. In that latter judgment, it argues, the Court of First Instance derived the exceptional nature of the situation in issue from the special competitive position which the applicant held vis-à-vis the other television networks and from the fact that the action was directed at an individual decision and not a measure of general scope, in contrast to the judgment in Bundesverband der Bilanzbuchhalter v Commission.

65Finally, max.mobil submits that the Commission’s reasoning that the Charter of Fundamental Rights has no force in law is mistaken inasmuch as that document reproduces and confirms the fundamental rights of the European Union. Article 41(2) of that Charter establishes clearly the right to proper administration of individual situations. It also claims that the express grant of procedural rights cannot constitute a condition for the respect of a person’s rights of defence (Case C-301/87 France v Commission [1990] ECR I-307 (‘Boussac Saint Frères’)).

Findings of the Court

66

Article 90(3) of the Treaty requires the Commission to ensure that the Member States comply with the obligations imposed on them, in regard to the undertakings covered by Article 90(1) of that Treaty, and expressly confers on it the power to take action for that purpose by way of directives and decisions. The Commission is empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law ( Bundesverband der Bilanzbuchhalter v Commission , paragraph 23).

67

In the present case, max.mobil, the applicant at first instance, had requested the Commission to find that the Republic of Austria had infringed the combined provisions of Articles 86 and 90(1) of the Treaty. It alleged in its complaint that, by not drawing a distinction between the fee charged to max.mobil and that charged to its competitor, Mobilkom, even though the latter company, in its capacity as a subsidiary, received the support of the PTA for the establishment and operation of its GSM network, the Austrian authorities had unlawfully conferred advantages on Mobilkom in the allocation of frequencies.

68

It follows from paragraph 24 of the judgment in Bundesverband der Bilanzbuchhalter v Commission that individuals may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 90(3) of the Treaty if the conditions laid down in the fourth paragraph of Article 173 of the EC Treaty (now, following amendment, the fourth paragraph of Article 230 EC) are satisfied.

69

It follows, however, from the wording of Article 90(3) of the Treaty and from the scheme of that article as a whole that the Commission is not obliged to bring proceedings within the terms of those provisions, as individuals cannot require the Commission to take a position in a specific sense.

70

The fact that max.mobil has a direct and individual interest in annulment of the Commission’s decision to refuse to act on its complaint is not such as to confer on it a right to challenge that decision. The letter by which the Commission informed max.mobil that it was not intending to bring proceedings against the Republic of Austria cannot be regarded as producing binding legal effects, with the result that it is not a challengeable measure that is capable of being the subject of an action for annulment.

71

Nor can max.mobil claim a right to bring an action pursuant to Regulation No 17, which is not applicable to Article 90 of the Treaty.

72

That finding is not at variance with the principle of sound administration or with any other general principle of Community law. No general principle of Community law requires that an undertaking be recognised as having standing before the Community judicature to challenge a refusal by the Commission to bring proceedings against a Member State on the basis of Article 90(3) of the Treaty.

73

The max.mobil company did not therefore have standing to bring an action before the Court of First Instance challenging the Commission’s decision to refuse to pursue and sanction an alleged infringement of the rules on competition resulting from the decision by the Austrian Government not to draw a distinction between the amount of the fee charged to max.mobil and that charged to its competitor, Mobilkom, for the operation of their mobile telephony networks.

74

It must accordingly be held that the Court of First Instance erred in declaring the action brought by max.mobil against the contested measure to be admissible.

75

It follows, without its being necessary to examine the other pleas in law of the Commission and the form of order sought in the cross-appeal, that the judgment of the Court of First Instance must be set aside and that the action brought by max.mobil against the contested measure must be dismissed.

Costs

76

Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has asked for max.mobil to be ordered to pay the costs, and as the latter has been unsuccessful, max.mobil must be ordered to pay the costs.

On those grounds, the Court (Grand Chamber) hereby:

[Signatures]

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Language of the case: German.