Opinion of the Advocate-General
1. The French Republic (in Case C-308/99 P) and the Commission (in Case C-302/99 P), both supported by the Kingdom of Spain, have applied to the Court of Justice for the judgment of the Court of First Instance in the case of TF1 v Commission to be partially set aside on the ground that the Court held TF1's action to be admissible in so far as it was directed against the Commission's failure to act pursuant to Article 90 of the EC Treaty (now Article 86 EC).
2. The French Republic also appeals against the Court's order that it bear the costs incurred by the applicant at first instance as a result of its intervention.
The facts and the judgment under appeal
3. The judgment under appeal states that, on 10 March 1993, the applicant at first instance, Télévision Française 1 SA (TF1), a private television broadcasting channel, submitted a complaint to the Commission concerning the methods used to finance and operate the France-Télévision public broadcasting channels. It is common ground that TF1's complaint expressly alleged infringement of Article 85 (now Article 81 EC), Article 90(1) (now Article 86(1) EC) and Article 92 (now, after amendment, Article 87 EC) of the EC Treaty.
4. Having received no satisfactory response to its complaint, by letter of 3 October 1995, TF1 formally requested the Commission and, in so far as was necessary, gave it formal notice to define its position and act upon the submissions set out in its complaint of 10 March 1993.
5. By letter of 11 December 1995 the Commission informed TF1 that its inquiry into the matters complained of was still in progress.
6. On 2 February 1996 TF1 brought an action before the Court of First Instance seeking a declaration, pursuant to Article 175 of the EC Treaty (now Article 232 EC), that the Commission had failed to fulfil its obligations under the Treaty by not defining its position on TF1's complaint and, in the alternative, and on the basis of Article 173 of the Treaty (now, after amendment, Article 230 EC), annulment of the Commission's purported decision rejecting its complaint contained in that institution's letter of 11 December 1995. The French Republic intervened in support of the form of order sought by the Commission.
7. During the course of the proceedings, the Commission placed before the Court a copy of a letter which it sent on 15 May 1997 to TF1 pursuant to Article 6 of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty. In that letter the Commission had informed TF1 that, on the basis of the information in its possession, it was unable to uphold its complaint in so far as it alleged infringement of Articles 85 and 86 of the Treaty. The Commission went on to invite TF1 to submit its comments within two months of 15 May 1997, adding that, having considered the allegation of infringement of Article 90 of the Treaty, it had been unable to establish that the matters complained of amounted to an infringement.
8. By the judgment under appeal, the Court of First Instance, inter alia,
- held that, in so far as it was directed against the Commission's failure to act pursuant to Article 90 of the Treaty, the action was admissible (paragraph 57);
- held that, by its letter of 15 May 1997 to the complainant, the Commission had defined its position within the meaning of the second paragraph of Article 175 of the Treaty and that there was no longer any need to adjudicate on the claim for a declaration of failure to act in so far as a declaration was sought that the Commission had unlawfully failed to act pursuant to Article 90 of the Treaty (paragraph 103 and the second paragraph of the operative part);
- ordered, pursuant to Article 87(4) of the Rules of Procedure, that the French Republic should bear its own costs, together with the costs incurred by the applicant as a result of its intervention (paragraph 110 and the sixth paragraph of the operative part).
9. The Court of First Instance gave the following analysis:
Admissibility of the action in so far as it is directed against the Commission's failure to act in pursuance of Article 90 of the Treaty
- Pleas in law and arguments of the parties
45 The Commission maintains, first, that this part of the action is inadmissible because the letter of 3 October 1995 cannot be regarded as calling on it, within the meaning of Article 175 of the Treaty, to act with regard to the part of the complaint of 10 March 1993 which relates to Article 90 of the Treaty.
46 Next, the Commission argues that this part of the action is inadmissible in any event because the wide discretion it enjoys in implementing Article 90 of the Treaty excludes any obligation on its part to take action. It follows that legal or natural persons who request it to act under Article 90(3) of the Treaty do not have the right to bring an action against a decision of the Commission refusing to use its powers or against its failure to use its powers (judgment in Case T-32/93 Ladbroke Racing v Commission [1994] ECR II-1015; order in Case T-84/94 Bilanzbuchhalter v Commission [1995] ECR II-101).
47 The applicant accepts that the Commission has a wide discretion in implementing Article 90 of the Treaty, but points out that Article 90(3) of the Treaty requires it to ensure the application of the provisions of that article and, where necessary, to address appropriate directives or decisions to Member States. Those provisions imply that the Commission should act within a reasonable period, failing which an action for failure to act may be brought against it.
- Findings of the Court
48 First of all, contrary to the Commission's view, the letter of 3 October 1995, in so far as the applicant formally requests the Commission to act "on the submissions set out in the complaint" of 10 March 1993, must be held to be a proper call upon the Commission, within the meaning of the second paragraph of Article 175 of the Treaty, to act pursuant to Article 90 of the Treaty.
49 Secondly, it is appropriate to consider to what extent an action for failure to act may be directed against a failure on the part of the Commission to act pursuant to Article 90 of the Treaty. It should be observed that Article 90(3) of the Treaty requires the Commission to ensure that Member States comply with their obligations as regards the undertakings referred to in Article 90(1) and expressly empowers it to take action for that purpose by way of directives and decisions. The Commission is empowered, inter alia, to determine, by means of a decision taken on the basis of Article 90(3) of the Treaty, that a given State measure is incompatible with the rules of the Treaty, including those in Articles 85 to 94 (now Article 89 EC) 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 (Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, paragraphs 22 to 30).
50 Next, it should be observed that, owing to its position in the general structure of the Treaty and its purpose, Article 90(3) of the Treaty figures among the rules whose object is to ensure freedom to compete, and is therefore intended to protect economic operators against measures whereby a Member State might frustrate the fundamental economic freedoms enshrined in the Treaty. Thus it is to be inferred, as much from the position of those provisions in the Treaty as from their purpose, that, where, with regard to public undertakings or undertakings which benefit from special or exclusive rights, a Member State enacts or keeps in force measures which have an anti-competitive effect equivalent to that produced by anti-competitive conduct on the part of any other undertaking, an individual may not be deprived of the protection of his legitimate interests. In this connection it is appropriate also to observe that, by virtue of case-law, one of the general principles of Community law is that any person must be able to obtain effective judicial review of decisions which may infringe a right conferred by the Treaties (see, in particular, Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, Case C-249/88 Commission v Belgium [1991] ECR I-1275, paragraph 25, and Case T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraph 23).
51 The wide discretion which the Commission enjoys in implementing Article 90 of the Treaty cannot undo that protection. Indeed, in its judgment in Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947, at paragraph 25, the Court of Justice held that the possibility cannot be ruled out that exceptional situations might exist where an individual had standing to bring proceedings against a refusal by the Commission to adopt a decision pursuant to its supervisory functions under Article 90(1) and (3) of the Treaty.
52 It is therefore appropriate to consider whether, in the present case, the applicant is in such an exceptional situation that it has standing to bring an action against the Commission for its failure to adopt a decision pursuant to Article 90 of the Treaty.
53 It is common ground that the applicant is the largest private television channel in France, enjoying a 42% share of the viewing audience in 1992 and a 55% share of the advertising market. Furthermore, because of its generalist programming (news, sport, feature films, drama, general entertainment, magazine programmes, documentaries), it competes directly with the France-Télévision channels for the same viewing audience. Similarly, it is established that TF1 and the two France-Télévision channels compete directly, as regards both the acquisition of rights to show cinematographic and audiovisual works and to broadcast sporting events and the sale of their advertising space to advertisers.
54 It is also appropriate to observe that, according to the applicant, the various subsidies, benefits, practices, agreements and regulations reported in the complaint are inter-connected and form a body of measures whose purpose or effect is to distort competition between the applicant and the two France-Télévision channels.
55 The applicant also asserted, without being contradicted by the defendant, that the various measures laid down by the French State in favour of France-Télévision were having an appreciable effect upon its financial situation.
56 Lastly, the Court notes that, unlike the complainant in the matter which led to the judgment in Bundesverband der Bilanzbuchhalter v Commission, cited in paragraph 51 above, which intended, by means of its action directed against the Commission's refusal to adopt a decision, pursuant to Article 90(1) and (3) of the Treaty, with regard to the Federal Republic of Germany, indirectly to force that Member State to adopt legislation having general application, the applicant in the present case seeks to have the Commission define its position, pursuant to Article 90 of the Treaty, on the various State measures complained of, which it alleges favour two particular economic operators who are clearly identified and with whom it is in direct competition.
57 It follows from the foregoing considerations that, in so far as it is directed against the Commission's failure to act pursuant to Article 90 of the Treaty, the application is admissible.
Observations submitted to the Court
10. In support of their argument that the Court of First Instance should have dismissed as inadmissible TF1's action for failure to act in so far as it concerned Article 90 of the Treaty, the Commission and the French Republic make a twofold criticism of the Court's reasoning. First, they seek to show by a number of arguments that the Court erred in law in applying Articles 90(3) and 175 of the Treaty. They then go on to say that the Court wrongly interpreted the judgment in Bundesverband der Bilanzbuchhalter v Commission, cited above.
11. The Commission emphasises first and foremost the breadth of its discretion in applying Article 90(3) of the Treaty, which, it says, is such that it cannot be compelled to act upon a complaint made by an individual.
12. According to the Commission, not only does the wording itself of Article 90(3) favour that interpretation, in that it contains no mention of complainants and merely provides that the Commission is to act where necessary, but also the provision should be likened to Article 169 of the EC Treaty (now Article 226 EC), in relation to which the Court of Justice has held that the Commission has a discretion which excludes the right for individuals to require that institution to adopt a specific position.
13. Also, a distinction must be drawn between Article 90(3) and Article 93 of the EC Treaty (now Article 88 EC), under which interested third parties enjoy a special position, as is confirmed by the regulation adopted by the Council.
14. Secondly, the Commission says that the breadth of its discretion is confirmed by settled case-law. In particular, it quotes at length from the judgment in Ladbroke Racing v Commission, cited above, in which the Court of First Instance itself held that the exercise of the power to assess the compatibility of State measures with the Treaty rules, conferred by Article 90(3) of the Treaty, is not coupled with an obligation on the part of the Commission to take action which may be relied on in seeking a declaration that the Commission has failed to act (paragraph 38).
15. The Commission also emphasises that, in Ladbroke Racing, the Court of First Instance added that the applicant was not directly and individually concerned by the potential measure which the Commission failed to address to it, a condition which the Court failed to apply in the judgment under appeal.
16. Lastly, the Commission stresses the fact that the Court held in Ladbroke Racing that individuals may not put the Commission on notice to act under Article 90(3) of the Treaty, since such action may be taken, depending on the circumstances, by adopting a decision or a directive, a legislative measure of general scope addressed to the Member States the adoption of which cannot be required by individuals.
17. According to the Commission, subsequent case-law, namely the order of the Court of First Instance in Bilanzbuchhalter v Commission, cited above, its judgments in ITT Promedia v Commission and Vlaamse Televisie Maatschappij v Commission, the judgment of the Court of Justice in Bilanzbuchhalter v Commission, cited above, and its order in Koelman v Commission, confirms that individuals cannot bring an action for failure to act in the event that the Commission declines to take action on a complaint under Article 90(3) of the Treaty, and this, again, is borne out by the similarity between that provision and Article 169 of the Treaty.
18. In the Commission's submission, it follows from all of the foregoing that the Court of First Instance made an error of interpretation in finding, at paragraph 50 of the judgment under appeal, that Article 90(3) of the Treaty is designed to protect the interests of economic operators.
19. Then, according to the Commission, there is a second reason why the Court erred in its interpretation: it implied that it must be possible to bring an action for failure to act if the principle that there must be effective legal remedies is to be upheld, whereas it is clear from the settled case-law of the Court of Justice that Article 90(1) of the Treaty is a provision having direct effect and, consequently, individuals are in a position to obtain protection of their rights from their national courts.
20. The French Republic is of the same opinion as the Commission, although it bases its opinion on only some of the arguments put forward by the Commission.
21. In an analysis which it expressed slightly differently at the hearing, it argues that the existence of an obligation on the part of the defendant institution to take action is a condition of admissibility of any proceedings for failure to act, and not a substantive criterion according to which such an action is to be judged. However, both the terms of the Treaty and case-law clearly show that the Commission is under no obligation to act pursuant to Article 90(3) of the Treaty.
22. The French Republic goes on to argue, in the alternative, that the Court of First Instance erred in its appraisal of the legal import of the facts in that it held that the case involved an exceptional situation within the meaning of the case-law of the Court of Justice. It misconstrued the necessarily narrow ambit of that concept and yet the arguments which it sought to draw from the nature of the State measures at issue and from the competitive position of TF1 show that the situation in question is, on the contrary, a quite ordinary one.
23. The Kingdom of Spain supports the appellants' arguments in relation to Article 90 of the Treaty and the Commission's wide discretion under that provision.
24. It also stresses that the applicant must be the potential addressee of the measure which the institution stands accused of failing to adopt or must, at very least, be directly and individually concerned by it.
25. In addition, it shares the view that the case does not, in any event, involve any exceptional situation within the meaning of the judgment in Bundesverband der Bilanzbuchhalter v Commission.
26. TF1's response to those submissions is that, as guardian of the Treaties, the Commission has certain obligations under Article 90 of the Treaty. In particular, it is under a duty to respond to any complaints submitted. As a corollary to the Commission's supervisory duty, Article 90 implies certain rights for complainants and it should not be compared to Article 169 of the Treaty.
27. That view, according to TF1, is confirmed by the judgment in Bundesverband der Bilanzbuchhalter v Commission. The concept of exceptional situation, which figures in that judgment, should not be interpreted so restrictively as to mean the same thing as direct and personal interest. It is a separate concept and should be interpreted by reference to the factual and legal configuration of each case.
Assessment
I - Forms of order sought in chief
28. It is appropriate to analyse, first of all, the purpose of the appeals before the Court.
29. The appellants ask that the second paragraph of the operative part of the judgment under appeal, which states that there is no need to adjudicate on the allegation that the Commission failed to act pursuant to Articles 85 (now Article 81 EC) and 90 (now Article 86 EC) of the EC Treaty, be set aside.
30. They submit that, by making that ruling, the Court of First Instance necessarily, albeit implicitly, held TF1's action against the Commission's failure to act in accordance with Article 90 of the Treaty to be admissible.
31. I do not share that view.
32. It is in fact clear from the settled case-law of the Court of Justice that, where it rules that there is no need to adjudicate on an application that has ceased to have any purpose, there is no need for the admissibility of that application to be considered.
33. It follows that the paragraph of the operative part which the appellants wish to be set aside did not decide, implicitly or explicitly, the question of admissibility.
34. That question was, however, explicitly considered by the Court in the grounds of the judgment which I mentioned earlier and to which the appellants' pleas relate.
35. The question thus arises whether the appellants are entitled to pursue the setting aside of the judgment by reason of what is stated in the grounds.
36. It must be remembered in this connection that, under Article 113 of the Rules of Procedure of the Court of Justice, an appeal may seek to set aside, in whole or in part, the decision of the Court of First Instance. It must, therefore, address the operative part of the judgment under appeal, not the grounds of the judgment.
37. That requirement must be treated all the more rigorously where, as in the present case, the grounds under criticism do not, as we have seen, provide necessary support for the operative part.
38. In this regard the circumstances of the present case are fundamentally different from those in France v Comafrica, a judgment on which the French Republic relies.
39. It is clear from the judgment at first instance in that case that the Court's decision to dismiss the action after examination of the substantive merits, rather than declare it inadmissible, necessarily implies that it regarded the action to be admissible. That is confirmed, moreover, by the Court's dismissal of an objection to admissibility.
40. Nevertheless, the appellants still argue that their interpretation of the operative part of the judgment under appeal is confirmed by the grounds that I mentioned earlier and that the operative part must be construed in the light of those grounds.
41. It must, however, be emphasised that the Court of First Instance also found, in a part of the statement of the grounds which the appellants do not criticise, that the Commission informed TF1 by letter of 15 May 1997 that, having considered the merits of its complaints based on Article 90 of the Treaty, it had been unable to establish that the matters complained of amounted to an infringement, and that the Commission stated the reasons why it did not intend to initiate a procedure under Article 90 of the Treaty.
42. The Court of First Instance quite rightly added that the content of the Commission's letter clearly showed that it had stated therein the outcome of its examination of the applicant's complaint under Article 90 of the Treaty, which, in its view, justified its opinion that there was no need to proceed with the complaint.
43. It follows from the foregoing - and the point has not been disputed on appeal - that the Court of First Instance established that, as regards that aspect of the complaint, the Commission adopted a position within the meaning of the second paragraph of Article 175 of the Treaty after commencement of the action and before delivery of the judgment.
44. By virtue of the settled case-law of the Court of Justice outlined above, it follows that there was no longer any need to adjudicate on that part of the action because it no longer had any purpose.
45. Thus, the statement of reasons for the second paragraph of the operative part of the judgment meets the relevant legal standard.
46. The case is therefore one that is governed by well-established case-law according to which, if one of the grounds relied on by the Court of First Instance is sufficient to justify its judgment, pleas put forward in opposition to other grounds mentioned in the judgment must be dismissed as inoperative.
47. It follows from the foregoing that the appeals should be dismissed in so far as they challenge the solution offered by the Court of First Instance to the action against the Commission for failure to act pursuant to Article 90 of the Treaty.
48. The appeal brought by the French Republic also seeks the setting aside of the sixth paragraph of the operative part of the Court of First Instance's judgment, whereby the Court ordered it to bear the costs occasioned to TF1 by its intervention.
49. The fate of that plea cannot be separated from that reserved to the remainder of the appeal, for to do so would be to disregard the prohibition on appeals which relate solely to the legality of the Court of First Instance's decision on costs, which is set out in the second paragraph of Article 51 of the Statute of the Court of Justice.
50. That is confirmed by the case-law of the Court of Justice, the Court having held on a number of occasions that, where all the other pleas put forward in an appeal against a decision of the Court of First Instance are rejected, a plea concerning the legality of the Court's decision on costs must be regarded as inadmissible.
51. It follows from the foregoing that the appeals of both appellants are inadmissible in their entirety.
52. The observations which follow are offered in the alternative, should the Court adopt a different analysis of the purpose of the appeals in relation to the operative part of the judgment under appeal and take the view that the operative part does contain an implicit decision regarding the admissibility of the action.
II - Opinion offered in the alternative
53. As has been seen, the appellants complain that the Court of First Instance held TF1's action for failure to act to be admissible under Article 90 of the Treaty even though not all of the conditions of admissibility were satisfied.
54. It is appropriate to recall in this connection the terms of the third paragraph of Article 175 of the Treaty, pursuant to which:
Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or opinion.
55. It follows - as the case-law of the Court of Justice bears out - that an action for failure to act is subject to a number of conditions relating, first, to its admissibility and, secondly, to the substance of the dispute.
56. The first set of conditions relate to the procedure followed and to the capacity of the applicant. There is no issue in the present case in relation to the procedural requirements flowing from the second paragraph of Article 175 since the parties are agreed that the applicants validly gave the Commission formal notice and that the time allowed the Commission to respond expired without it putting an end to its alleged failure to act.
57. As regards the applicant's locus standi, it is clear from the wording of Article 175 of the Treaty, as interpreted by the Court of Justice, that an action for failure to act brought by an individual is admissible only if the trader concerned ... would be the addressee of the measure which the Commission is alleged to have failed to adopt, or at least directly and individually concerned by it ..., as the Kingdom of Spain points out moreover.
58. I might emphasise, in this regard, that in those cases where the Court of Justice has acknowledged an individual's right to bring an action for failure to adopt a measure that would have been addressed to some other person or entity (albeit that the measure in question would also have concerned the applicant directly and individually), the measure was one which would have directly benefited the applicant.
59. In ENU v Commission, the applicant was a firm producing uranium concentrates that had asked the Commission to order the Euratom Supply Agency to purchase from it a certain quantity of that product. In T. Port, cited above, a banana importing firm had asked for a supplementary tariff quota.
60. As regards the substance of the dispute, it is for the applicant to show that the defendant's failure to act is unlawful, that is to say, to demonstrate that the defendant is under an obligation to act. I shall return to this point on considering the argument which the French Republic draws from it.
61. First, I shall examine in the light of the foregoing considerations the appellants' criticisms of the judgment under appeal.
62. The Commission emphasises the fact that, contrary to the precedent in Ladbroke Racing v Commission, cited above, the Court of First Instance did not in the present case hold that the complainant must be directly and individually concerned by the measure which it had called upon the Commission to adopt.
63. According to the Commission, the Court of First Instance regarded the admissibility of the action as being subject only to the conditions that the complainant must be a competitor in the market in question, must have relied in its complaint on other provisions also, must have alleged infringement of the competition rules or have identified two competing economic operators benefiting from the law of which it complained.
64. There is no question that the Court did not explicitly consider the applicant's locus standi, as defined in the case-law of the Court of Justice and described above. Indeed, it made no reference to direct and individual concern.
65. On the other hand, its approach to analysing the applicant's situation was plainly different. As we have seen, it considered whether the case involved an exceptional situation within the meaning of Bundesverband der Bilanzbuchhalter v Commission.
66. Paragraph 25 of that judgment reads as follows:
The possibility cannot be ruled out that exceptional situations might exist where an individual or, possibly, an association constituted for the defence of the collective interests of a class of individuals has standing to bring proceedings against a refusal by the Commission to adopt a decision pursuant to its supervisory functions under Article 90(1) and (3).
67. However, I do not think that the Court meant, by that obiter dictum, to alter the conditions laid down by Article 175 of the Treaty. Nor could it do so.
68. For my part, I understand the Court's reasoning in the following manner.
69. At paragraph 24 of its judgment in Bundesverband der Bilanzbuchhalter v Commission, the Court stated that it was apparent from the judgment in Netherlands and Others v Commission, cited above, that individuals may, in some circumstances, be entitled to bring an action for annulment, under the fourth paragraph of Article 173 of the Treaty, against a decision of the Commission taken on the basis of Article 90(3) of the Treaty. That is quite understandable, since that case concerned a decision addressed by the Commission to the Kingdom of the Netherlands taking issue with an exclusive franchise granted by law to PTT Nederland NV for the transport of letters not exceeding 500 g. The decision therefore directly and individually concerned the Dutch post office because it sought to alter the circumstances in which that public company might operate. There was thus no difficulty in finding the action to be admissible.
70. Next, in paragraph 25 of Bundesverband der Bilanzbuchhalter v Commission, the Court merely sought to point out that it could not be ruled out that an exceptional situation might arise in the future where, with regard to a measure that an institution has failed to address to a Member State pursuant to Article 90 of the Treaty, an individual might satisfy the conditions laid down in Article 175 of the Treaty.
71. That passage of the judgment cannot be interpreted as meaning that, at least where certain exceptional circumstances prevail, undertakings could now bring actions against an institution for failure to adopt a measure which would not concern them directly and individually.
72. Moreover, I take the same view as the appellants and regard the circumstances on which the Court of First Instance relied as being unexceptional.
73. The Court, in fact, seems to have attached primary importance to establishing that the applicant had a special interest in bringing the action.
74. That is why it emphasised that the applicant is the largest private television channel in France and that, because of its generalist programming, it is in direct competition with the France-Télévision channels for the same viewing audience, as it is in both the acquisition of rights to show cinematographic works and to broadcast sporting events and the sale of advertising space to advertisers.
75. However, as the appellants have shown, the circumstances thus described by the Court of First Instance do not indicate that the applicant's situation was exceptional. They undoubtedly show that the applicant would most likely find its competitive position improved as a result of measures which the Commission might adopt, but it cannot be said that the situation described by the Court is of such rarity as to enable it to be regarded as exceptional.
76. It seems to me, in fact, that it is quite the norm in a market where there is a limited number of competitors and where those competitors include undertakings which fall within the scope of Article 90 of the Treaty and which benefit from state measures which are alleged to infringe Article 90.
77. The same applies to the Court's finding that the various subsidies, benefits, practices, agreements and regulations reported in the complaint are inter-connected and have the purpose or effect of distorting competition between the applicant and the two France-Télévision channels and have an appreciable effect upon its financial situation.
78. Secondly, the Court of First Instance regarded as relevant the fact that the applicant sought by its action to compel the Commission to define its position with regard to State measures concerning certain clearly identified operators, rather than to compel it to adopt measures of general effect.
79. In this connection the French Republic raises a number of examples drawn from the Commission's decision-making practice and rightly points out that a situation such as the one at hand cannot be regarded as exceptional in the context of application of Article 90 of the Treaty, which is frequently invoked in connection with packages of measures which allegedly benefit one or more specifically identified undertakings.
80. I therefore take the view that the Court of First Instance erred in finding that the dispute before it involved an exception situation within the meaning of the judgment in Bundesverband der Bilanzbuchhalter v Commission.
81. That does not, in and of itself, mean that the Court failed in its duty to establish whether or not the applicant was directly and individually concerned by the measure of which it sought the adoption. It is, in fact, conceivable that the characteristics of the applicant's situation as described by the Court are such as to imply the existence of direct and individual concern, even though the judgment under appeal does not, as we have seen, make any explicit reference thereto.
82. However, it plainly follows from what I have already said that there is no such implication.
83. The points examined by the Court of First Instance which I have just analysed unquestionably show that the applicant has a direct interest in any measures which the Commission might have adopted pursuant to its complaint.
84. The position is, however, different as regards the existence of an individual interest.
85. Indeed, leaving aside the fact that the applicant is the largest private television channel in France, the other circumstances on which it relies are likely to apply to any private television channel broadcasting to the French viewing public and one would search in vain for any feature that distinguishes the applicant from all other private television channels operating in the French market or in a position to penetrate that market.
86. As regards the fact that the applicant is the strongest competitor of the public television channels, that alone does not make its situation qualitatively different, for the purposes of any measures the Commission might adopt, from the situation of any other operator or potential operator in the market.
87. It is clear from consistent case-law that, in the case of persons other than the addressee of a measure, individual interest exists only where the act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and [where] by virtue of those factors it distinguishes them individually just as in the case of the person addressed.
88. It follows from the foregoing that the Court of First Instance held the action to be admissible without first establishing that the applicant was directly and individually concerned by the measure at issue.
89. Thus the appeal appears to be well founded on this alternative argument also and the judgment of the Court of First Instance should be set aside in that it held the action to be admissible in so far as it was directed against the Commission's failure to act pursuant to Article 90 of the Treaty.
90. Consequently, there is no need to consider the remainder of the appellants' argument mentioned earlier. It is only in the further alternative that I would go on to state the following.
91. The remainder of the appellants' case essentially concerns the effect of the discretion which, according to case-law, the Commission enjoys in the matter of applying Article 90(3) of the Treaty.
92. I would say at the outset that the extent of this discretion, which the appellants regard as being dictated as much from the wording of Article 90 as from comparison with Articles 169, 85, 86 and 93 of the Treaty and from settled case-law, is not open to debate.
93. The question of the degree, if any, to which Article 90 of the Treaty is intended to protect the interests of individuals is immaterial because, in any event, the breadth of the Commission's discretion has been confirmed by the Court on countless occasions and that necessarily implies that it is under no obligation to act.
94. I therefore suggest that the Court of First Instance erred by holding, in paragraphs 50 and 51 of its judgment, that the principle that every person must be able to obtain effective judicial remedies overrides the Commission's broad discretion in implementing Article 90 of the Treaty. It was the authors of the Treaty who decided what effective judicial remedies must be open to individuals and it was they who decided that actions for failure to act could not succeed in the absence of an obligation to act. The Community Courts cannot substitute their own view of what is required to protect the rights of individuals effectively for that of the authors of the Treaty.
95. Nevertheless, it should be emphasised that the fact that the Commission enjoys a broad discretion does not, in and of itself, imply that the action is necessarily inadmissible.
96. In fact, according to consistent case-law, the Commission has no discretion in deciding whether or not to apply Article 90(3) of the Treaty, whereas it does have a discretion in deciding whether or not to bring an action for failure to fulfil obligations on the basis of Article 169 of the Treaty, which was the issue in Star Fruit v Commission, cited above, upon which the French Republic relies.
97. It necessarily follows that, broad as it may be, the Commission's discretion is subject to judicial review, albeit minimal. Moreover, case-law offers numerous examples illustrating this.
98. It follows that the existence of a broad discretion, which nevertheless must be exercised, precludes neither the right to bring an action for annulment where a decision has been adopted, nor the right to bring an action for failure to act where no decision has been adopted.
99. Furthermore, I take the view that it would, in any event, be wrong to draw from the fact that the Commission has considerable room for manoeuvre conclusions as to the admissibility of an action directed against a decision of the Commission or its failure to adopt a decision.
100. It seems to me that a coherent and systematic approach would in fact require that questions concerning the extent of obligations on the part of a defendant institution be treated as relating not to the admissibility, but to the substance of the dispute.
101. The case-law relating to actions for annulment leaves little doubt on this point. It clearly shows that actions for annulment brought against the Council or the Commission and involving a domain in which the Court has held those institutions to enjoy a broad discretion are in no way inadmissible. Such actions may, on the other hand, have little prospect of succeeding on their merits.
102. The same applies to actions for failure to fulfil obligations: actions brought by the Commission concerning a field in which Community law allows the Member States a broad discretion are not inadmissible, but are unlikely to succeed on their merits.
103. That analysis, applied to actions for failure to act, indicates that the question whether the Commission is under an obligation - such an obligation being a corollary to its discretionary power - goes to the substance, rather than to the admissibility of the action.
104. Furthermore, it is appropriate to emphasise in this connection that, in several judgments, the Court has taken the approach, and sometimes explicitly held that it is on examining the substance of the dispute that it must establish whether or not an institution defending an action for failure to act is under an obligation to act.
105. Thus, at paragraph 26 of its judgment in Parliament v Council, which concerned the common transport policy, the Court held that in the present case the Council's observations in relation to its discretion in implementing the common transport policy are not germane to the question whether the specific conditions in Article 175 were complied with. They relate to the more general issue of whether the absence of a common transport policy can amount to a failure to act for the purposes of that provision, an issue which will be considered subsequently in this judgment.
106. That approach finds ample support in legal theory.
107. It follows that the parties' argument in relation to the extent of the Commission's discretion are capable only of leading to conclusions concerning the substance of the dispute. On the contrary, they cannot lead to a decision on the preliminary issue of the admissibility of the action, with which the present appeal is concerned.
108. The appellants also complain that the Court was wrong to stress the need to protect the rights of individuals which are, in any event, protected in that they may, in proceedings before a national court, rely on the fact that Article 90 of the Treaty is a provision having direct effect. It must nevertheless be observed that the Court did not hold that an action for failure to act afforded the only means of protecting the rights of individuals.
Consequences
109. Having reached the conclusion (albeit only in the alternative, it must be remembered) that the judgment under appeal should be set aside in that it implicitly ruled the action for failure to act admissible, it is necessary to consider the consequences of that conclusion.
110. I would observe at the outset that the dispute has reached a stage where it is possible to give judgment on the substantive issues.
111. I have already noted that the Court of First Instance established to the relevant legal standard that the Commission adopted the measure which was the object of the action after commencement of the proceedings but before delivery of its judgment. According to case-law, it follows that the action for failure to act has become devoid of purpose. Even if the Court of Justice were to accept the argument I have put forward in the alternative, there would no longer be any reason for it to give judgment.
112. Thus, the operative part of the judgment handed down by the Court of First Instance would, in any event, stand. That confirms the argument which I have set out in chief, unless the Court should see fit to reverse the existing line of case-law which dictates that an action becomes devoid of purpose and its admissibility no longer requires to be considered where the defendant institution adopts the measure at issue after the commencement of proceedings but before delivery of the judgment.
113. Furthermore, I would emphasise that, even if the case were to be referred back to the Court of First Instance, that Court would be unable, I think, to word the operative part of its judgment differently.
The costs which the French Republic has been ordered to pay
114. The French Republic, supported by the Commission and by the Kingdom of Spain, also asks the Court to set aside the Court of First Instance's judgment in so far as it ordered France to bear not only its own costs, pursuant to Article 87(4) of the Rules of Procedure of the Court of First Instance, but also the costs incurred by the applicant as a result of its intervention.
115. The French Republic states that it is unclear what provision the Court relied on in making that order and maintains that, whether it be paragraph 4, 2 or 6 of Article 87 of the Rules of Procedure, it erred in law in so doing.
116. The provisions just mentioned read as follows:
Article 87
...
2. The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings.
Where there are several unsuccessful parties the Court of First Instance shall decide how the costs are to be shared.
...
4. The Member States and institutions which intervened in the proceedings shall bear their own costs.
...
6. Where a case does not proceed to judgment, the costs shall be in the discretion of the Court of First instance.
117. The French Government argues that the purpose of Article 87(4) of the Rules of Procedure is to neutralise the effects, in terms of the position as to costs, of intervention by a Member State or an institution. The costs incurred by interveners are therefore dissociated from the outcome of the application made by the party in support of which they intervene. If that provision is to be applied fairly and with a sense of reciprocity, a Member State which intervenes in support of a defendant should not be ordered to pay the costs incurred by the applicant as a result of its intervention.
118. Moreover, any different solution would be likely, because of its budgetary implications for Member States, to limit their ability to intervene in disputes in which they might nevertheless have a genuine interest.
119. As regards Article 87(6) of the Rules of Procedure, France observes that the Court of First Instance's finding in the present case that there was no need to give judgment concerned only some of the pleas put forward, yet it ordered it to pay all of the costs incurred by the applicant as a result of its intervention, including those attributable to pleas which the Court held to be founded or inadmissible.
120. As regards Article 87(2) of the Rules of Procedure, France emphasises that that provision applies to the principal parties and not to interveners.
121. Lastly, it alleges that the Court ruled ultra petita in that the applicant did not ask for the form of order granted by the Court.
122. It is, however, clear from the statement lodged in response to the French Government's intervention that TF1 asked the Court to make an appropriate order as to costs.
123. Nevertheless, I share the French Government's view regarding the Court's decision on costs.
124. In 1990 the Court of Justice made a proposal to the Council for the insertion of a new Article 69(4) into its Rules of Procedure, drafted as follows:
The Member States and the institutions which intervene in the proceedings shall bear their own costs.
The Court may order an intervener other than those mentioned in the preceding subparagraph to bear his own costs.
125. The Council accepted that amendment and similar wording was subsequently inserted into the Rules of Procedure of the Court of First Instance at Article 87(4).
126. In its statement of reasons for that proposal, which is a public document, the Court of Justice explained the need for the amendment in the following terms:
As regards the new paragraph (4), it should be pointed out that, in the absence of special provisions, the question of costs in the case of intervention is governed by Article 69(2). If the party supported by an intervener succeeds, the party who fails is thus ordered to pay the costs not only of the successful party but also of the intervener.
The result of this is that the burden entailed for an unsuccessful party ordered to pay the costs may increase disproportionately owing to the intervention by Member States and institutions which have no direct interest in the result of the case. Such a situation is contrary to the principle that the burden of costs should be shared fairly. The last subparagraph provides therefore that Member States and Community institutions which intervened in the proceedings are to bear their own costs.
Since private interveners have to prove an interest in the result of the case, the rule laid down in Article 69(2) may in principle be applied to these. However, having regard to the diversity of the interests which may arise, it seems necessary to enable the Court to make exceptions to that rule where fairness so requires and to order a private intervener to bear his own costs.
127. It is clear from that passage that the provisions of Article 69(2) (or Article 87(2) in cases before the Court of First Instance) continue to apply only to private individuals who intervene.
128. The position as regards public bodies, Member States and institutions which intervene is, since the amendment, governed exclusively by paragraph 4 of Article 69 (or Article 87).
129. The aim of that provision is to protect unsuccessful private litigants against the risk of having to bear the costs incurred by Member States which intervene in their disputes in support of the opposing party. Conversely, where a Member State intervenes in support of the form of order sought by the unsuccessful party it is not required to bear part of the costs of the successful party.
130. Paragraph 4 is not intended to shelter successful parties from the significantly lesser risk of incurring some additional costs as a result of the intervention of a Member State. In fact, in such a hypothesis, the Rules of Procedure would still work against Member States and institutions which intervene, first, because the latter could derive no advantage from the success of any party they support and, secondly, they would remain at risk of having to pay part of the costs of the opposing party.
131. That would be unbalanced and unfair.
132. The risk to which an individual remains exposed, namely of incurring some additional costs as a result of the intervention of a Member State, is in any event limited because, by definition, an intervener may only put forward arguments in support of one of the principal parties.
133. It follows from the foregoing that the French Republic's appeal should be upheld and the judgment under appeal should be set aside in so far as the Court ordered France to bear the costs incurred by the applicant at first instance as a result of its intervention.
134. I would therefore suggest, once again in the alternative, that points 5 and 6 of the operative part of the judgment under appeal be set aside in conformity with the partial setting aside of the Court of First Instance's judgment on appeal and with the claims of the French Republic in this regard.
135. As regards the first of those two considerations, which the Commission asks to be taken into account, I take the view that the Commission should remain liable for its own costs and for those of the applicant at first instance. Even if upheld, the present appeal would not alter the findings of the Court of First Instance in relation to the Commission's failure to apply the provisions of the Treaty regarding State aid.
136. On the other hand, for the reasons set out above, it would be appropriate for the French Republic to bear its own costs only.
137. As far as the costs of the procedure before the Court of Justice are concerned, it must be observed that, in any event, only some of the appellants' arguments will have been upheld and I would therefore suggest that, in both actions, the principal parties bear their own costs, as should the interveners, pursuant to Article 69(3) and (4) respectively of the Rules of Procedure of the Court of Justice.
138. Having said that, I would reiterate that those are proposals offered in the alternative and that the appeals should, in my view, be held inadmissible for the reasons set out in paragraphs 28 to 51 of this Opinion.
Conclusion
139. In view of the opinion I have given in chief, I propose that the Court should:
- declare the appeals brought by the French Republic and the Commission inadmissible;
- order the appellants to pay the costs except for the costs of the interveners;
- order the interveners to pay their own costs.
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