Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
1. Actions for failure to act Time-limits Time-barred Possibility of relying on the principle of the protection of legitimate expectations Condition
(EC Treaty, Art. 175 (now Art. 232 EC))
2. Actions for failure to act Failure remedied after commencement of proceedings Action rendered devoid of purpose No need to adjudicate Letter pursuant to Article 6 of Regulation No 99/63
(EC Treaty, Arts 175 and 176 (now Arts 232 EC and 233 EC); Commission Regulation No 99/63, Art. 6)
3. Appeals Grounds Plea directed against the decision of the Court of First Instance on costs Inadmissible if all other pleas dismissed
(EC Statute of the Court of Justice, Art 51, second para.)
Summary
1. In order to be able to rely on the principle of the protection of legitimate expectations so as to avoid being time-barred as a result of the expiry of the time-limit for initiating proceedings for failure to act, the applicant must be able to show expectations based on specific assurances by the Community institution or conduct by that institution such as to give rise to pardonable confusion in the mind of a party acting in good faith and with all the diligence required of a normally informed businessman. That does not apply to public statements of a general nature by a member of the Commission or repeated contacts between the person concerned and the Commission after a letter of formal notice to it.
Where it is clear from the very general terms of a letter addressed by the Member of the Commission responsible for competition questions to a complainant pursuant to Article 3(2) of Regulation No 17 that the letter was in no way such as to give the company concerned specific assurances or to create pardonable confusion which would have aroused justified hopes capable of leading to legitimate expectations meriting the protection of the courts, the Court of First Instance rightly held that the complainant could not rely on the principle of the protection of legitimate expectations in order to remedy the expiry of time-limits for instituting proceedings, those time-limits being a matter of public policy, so that it is not for the parties to determine them at their own convenience.
( see paras 50-52 )
2. The remedy provided for in Article 175 of the Treaty (now Article 232 EC) is founded on the premise that the unlawful inaction on the part of the institution concerned enables the matter to be brought before the Court of Justice in order to obtain a declaration that the failure to act is contrary to the Treaty, in so far as it has not been repaired by the institution concerned. The effect of that declaration, under Article 176 of the Treaty (now Article 233 EC), is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise. Where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 176 of the Treaty. It follows that in such a case, as in cases where the defendant institution has responded within a period of two months after being called upon to act, the subject-matter of the action has ceased to exist and there is no longer any need for the Court to give a decision. The fact that the position adopted by the institution has not satisfied the applicant is of no relevance in this respect because Article 175 refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned.
In that connection, and more particularly in the context of a complaint that the competition rules have been infringed, a letter in accordance with the requirements of Article 6 of Regulation 99/63 from the Commission to the author of a complaint lodged under Article 3(2) of Regulation No 17 constitutes a definition of position within the meaning of the second paragraph of Article 175 of the Treaty which terminates the Commission's failure to act and deprives an action brought by the complainant for failure to act of its subject-matter
( see paras 83-84 )
3. Where all the other pleas in an appeal have been rejected, a plea concerning the alleged illegality of the decision of the Court of First Instance as to costs must be rejected as inadmissible under the second paragraph of Article 51 of the EC Statute of the Court of Justice, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them.
( see para. 93 )
Parties
In Case C-44/00 P,
Société de Distribution Mécanique et d'Automobiles SA (Sodima), in judicial liquidation, established at Istres (France), represented by J.C. Fourgoux, of the Paris Bar, with an address for service in Luxembourg at the Chambers of P. Schiltz, 4 Rue Béatrix de Bourbon,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) in Joined Cases T-190/95 and T-45/96 Sodima v Commission [1999] ECR II-3617, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by G. Marenco, Principal Legal Adviser, and F. Siredey-Garnier, national official seconded to the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of the same Service, Wagner Centre, Kirchberg,
defendant at first instance,
THE COURT (Second Chamber),
composed of: V. Skouris, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1 By application lodged at the Court Registry on 14 February 2000, Société de Distribution Mécanique et d'Automobiles SA (Sodima) brought an appeal, pursuant to Article 49 of the EC Statute of the Court of Justice, against the judgment of the Court of First Instance of 13 December 1999 in Joined Cases T-190/95 and T-45/96 Sodima v Commission [1999] ECR II-3617 (hereinafter the contested judgment), dismissing as inadmissible its application in Case T-190/95, finding that there was no longer any need to adjudicate on the application for a declaration for failure to act in Case T-45/96, dismissing the remainder of the application in the latter case as inadmissible and ordering Sodima to pay the costs in Case T-190/95 and ordering the parties to bear their own costs in Case T-45/96.
The facts and proceedings before the Court of First Instance
2 The facts of the case and the proceedings before the Court of First Instance are set out in paragraphs 1 to 17 of the contested judgment as follows.
3 Sodima had been a concessionaire of Peugeot cars since 1984. The distribution agreement was terminated by Automobiles Peugeot SA, the manufacturer of Peugeot and Citroën cars (PSA), on a date which is not clear from the file. On 17 December 1992 Sodima filed a declaration of suspension of payments. On 24 July 1996 it was put into judicial liquidation.
4 Proceedings are pending before the French courts between Sodima and PSA in which the former has applied for PSA to be ordered to meet its liabilities of FRF 14 million.
5 On 1 July 1994 Sodima lodged a complaint with the Commission against PSA under Article 3(2) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ English Special Edition, First Series 1959-62, p. 87). Sodima claimed that the distribution agreement entered into by it was, in regard both to its wording and its implementation, incompatible with Article 85 of the EC Treaty (now Article 81 EC) and Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicles distribution and servicing agreements (OJ 1985 L 15, p. 16). Sodima asked the Commission to withdraw the benefit of the block exemption in accordance with Article 10 of Regulation No 123/85 and Article 8 of Regulation No 17, and to adopt interim measures.
6 On 5 August 1994 the Commission sent Sodima's complaint, together with a list of the documents produced by Sodima as evidence, to PSA for comment. On 26 October 1994, having received several similar complaints, the Commission sent PSA a request for information under Article 11 of Regulation No 17.
7 PSA asked to be sent all the documents submitted by Sodima and the Commission then asked Sodima if it had any business-secrecy objection to that. Sodima consented, subject to its documents not being supplied to third parties or used in other procedures being dealt with by the Commission.
8 By letters of 13 December 1994 and 16 January 1995 and then of 23 January, 7 February and 1 March 1995, Sodima asked the Commission to send it the request for information sent to PSA and PSA's comments on its complaint, but it received no reply.
9 On 15 February 1995 PSA replied to the Commission's request for information, but refused permission to send its replies to Sodima on grounds of business confidentiality. On 27 February 1995 PSA sent the Commission its comments on Sodima's complaint.
10 In a letter of 14 March 1995 Sodima formally called upon the Commission to adopt a position under Article 175 of the EC Treaty (now Article 232 EC) as soon as possible.
11 On 12 October 1995 Sodima brought the action in Case T-190/95, which was followed by a supplementary pleading of 17 May 1996. Sodima claimed that the Court of First Instance should:
declare that the Commission had failed to act in that it had illegally refrained from adopting a position following Sodima's complaint;
annul the Commission's implicit refusal to send Sodima documents from the file;
annul the Commission's implicit decision to join Sodima's complaint with other complaints;
find non-contractual liability on the part of the Commission and order it to pay damages of EUR 200 000 per annum from 14 March 1995;
order the Commission to pay the costs.
12 By separate document of 8 December 1995 the Commission raised a plea, pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, that the action was inadmissible. This plea was joined with the substance of the case by order of 30 January 1997.
13 By letter of 4 January 1996 Sodima again formally called upon the Commission, pursuant to Article 175 of the Treaty, to notify PSA of the complaints.
14 On 27 March 1996 Sodima lodged the application in Case T-45/96, the subject-matter of which was identical to that in Case T-190/95.
15 On 27 January 1997 the Commission notified Sodima under 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 (OJ, English Special Edition 1961-64, p. 47) of its intention to dismiss the complaint. Under cover of that letter, the Commission sent Sodima the information provided by PSA not covered by business secrecy. On 13 March 1997 Sodima replied that it was not in a position validly to submit its observations because only part of the file had been disclosed to it.
16 By decision of 5 January 1999 the Commission dismissed Sodima's complaint. Sodima then brought an action for the annulment of that decision before the Court of First Instance (Case T-62/99).
17 By order of 21 January 1999 the President of the First Chamber of the Court of First Instance decided to join Cases T-190/95 and T-45/96 for the purposes of the hearing and judgment.
18 By letter which reached the Registry of the Court of First Instance on 25 March 1999, Sodima requested that Case T-62/99 be joined to these two joined cases. It stated that it would withdraw its application for a declaration of failure to act if the two cases were joined with Case T-62/99. As those cases were ready to be determined, the Court of First Instance considered it inappropriate to grant the application for joinder.
The contested judgment
19 First of all, with regard to Sodima's application in Case T-190/95, the Court of First Instance found, in paragraph 24 of the contested judgment, that the letter of formal notice sent by Sodima to the Commission was dated 14 March 1995 and that, although it was not clear from the file when the Commission received the letter, Sodima did not dispute that the total period of four months provided for in the second paragraph of Article 175 of the Treaty had expired when it brought its action.
20 In paragraph 25 of the contested judgment the Court of First Instance stated that Sodima could not rely on the principle of the protection of legitimate expectations in order to avoid application of the second paragraph of Article 175 of the Treaty, by reference to the contact it had with the Commission after the letter of formal notice. Observing that the time-limits for initiating proceedings were a matter of public policy and were not subject to the discretion of the Court or the parties, the Court concluded that neither statements by the Commission in its correspondence with Sodima nor public declarations of its position could affect the admissibility of the action.
21 The Court added in paragraph 26 that in any event the statements relied on by Sodima in this case related to the manner in which the Commission intended to deal with the complaint and the Commission's activities in the automobile sector in general, but contained no information which might be capable of creating confusion in relation to time-limits for initiating proceedings laid down in the second paragraph of Article 175 of the Treaty.
22 The Court concluded in paragraph 29 of the contested judgment that in Case T-190/95 the application for failure to act should be dismissed as inadmissible.
23 With regard to the application for annulment in that case, in paragraph 31 of the contested judgment the Court observed that acts or decisions against which an action for annulment might be brought under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) were measures which produced binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal position, but mere silence on the part of an institution could not produce such effects other than where that result was expressly contemplated by a provision of Community law.
24 As the Court observes in paragraph 32 of the contested judgment, Community law provides that, in certain specific instances, silence on the part of an institution is deemed to constitute a decision where the institution has been called upon to express its view and has not done so by the end of a given period. However, where there are no such express provisions laying down a deadline by which an implied decision is deemed to have been taken and prescribing the content of the decision, an institution's inaction could not be deemed to be equivalent to a decision without calling into question the system of remedies instituted by the Treaty. In paragraph 33 of the contested judgment the Court goes on to point out that Regulations Nos 17 and 99/63 do not provide that silence on the part of the Commission following a request for documents constitutes an implied refusal. According to the Court of First Instance, if no action were taken following its request, the complainant could either give the Commission formal notice under Article 175 of the Treaty and, if appropriate, bring an action for failure to act, or invoke any illegality arising as a result in an action for annulment of the decision ultimately adopted by the Commission at the close of the procedure.
25 In paragraph 34 of the contested judgment the Court concludes from this that the Commission's failure to grant Sodima's request for certain documents could not be deemed to constitute an actionable decision.
26 With regard to the alleged implied decision to join the cases, the Court observes in paragraph 36 of the contested judgment that Sodima had not shown that such a decision was taken or demonstrated how joining the cases could adversely affect it. In particular, the criticism that the Commission had sent documents submitted by Sodima to other complainants had not been corroborated by anything on the case-file.
27 In paragraph 37 of the contested judgment the Court concludes that the application for annulment in Case T-190/95 was inadmissible.
28 With regard to the claim for compensation in that case, the Court found as follows:
41 Under Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court of First Instance to decide the case, if appropriate without further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see, for example, the order made by the Court of First Instance in Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraph 21, and the judgment in Case T-195/95 Guérin Automobiles v Commission [1997] ECR II-679, paragraph 20).
42 In order to satisfy those requirements, an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there is a causal link between that conduct, the damage it claims to have suffered, and the nature and extent of that damage (Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961, paragraph 107).
43 In this case, in its pleadings the applicant accuses the Commission of having dealt with its complaint in a dilatory manner and claims that the delay caused it damage.
44 However, as regards the nature and scope of that damage and the causal link, the applicant merely alludes, without further particulars, to an action for damages which it has brought against PSA in the French courts. The applicant also refers, in this context, to "payment of its liabilities" without, however, specifying the basis of its action in national law. Nor does it give any detail as to the stage the proceedings have reached or the defence raised by PSA. It is true that it claims that its action for damages in the national courts will be delayed until the Commission has ruled on its complaints, but it gives no concrete indication as to the influence of any decision by the Commission on the decision to be taken by the national court. Furthermore, it mentions an application for a stay of proceedings made by PSA but provides no detail as to the date of, or grounds for, that application, or as to its actual or possible outcome.
45 The application therefore does not identify the nature and scope of the harm which the applicant alleges it has suffered or the causal link between that alleged harm and the conduct of which it accuses the Commission. It does not therefore enable the Community judicature to exercise judicial review or the Commission to defend itself.
46 It follows that the requirements of Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance have not been fulfilled.
47 Accordingly, the action for damages is inadmissible.
29 Secondly, with regard to Sodima's action in Case T-45/96, the Court of First Instance observed in paragraph 48 of the contested judgment that this action for a declaration of failure to act had become devoid of purpose because on 27 January 1997 the Commission had sent Sodima a letter under Article 6 of Regulation No 99/63, and a final decision dismissing Sodima's complaint was adopted by the Commission on 5 January 1999. In paragraph 49 the Court found that there was consequently no need to rule on the application.
30 In paragraph 50 of the contested judgment the Court found that in Cases T-45/96 and T-190/95 Sodima sought exactly the same relief in relation to the same alleged decisions and compensation for the same damage. In support of those claims, Sodima was relying on the same pleas in law and arguments. The Court therefore concluded in paragraph 51 that the claims for annulment and damages in Case T-45/96 were inadmissible for the same reasons as those given in Case T-190/95.
31 Finally, with regard to costs, the Court held in paragraph 52 of the contested judgment that, as Sodima had been unsuccessful in Case T-190/95, it should be ordered to pay the costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.
32 In paragraph 53 of the contested judgment the Court found that, in Case T-45/96, there was no further need to determine the application for failure to act, so that the Court was free to rule on costs in accordance with Article 87(6) of the Rules of Procedure. Finding also that Sodima had been unsuccessful in its application for annulment and compensation in that case, the Court decided to apply Article 87(3) of the Rules of Procedure and to order each party to bear its own costs.
The appeal
33 By its appeal, Sodima seeks the annulment of the contested judgment and an order that the Commission pay the entire costs.
34 The Commission asks the Court to dismiss the appeal as manifestly inadmissible or, in any case, clearly unfounded and to order Sodima to pay the costs.
The Court's assessment
35 Under Article 119 of the Rules of Procedure of the Court of Justice, where an appeal is manifestly inadmissible or clearly unfounded, the Court may at any time by reasoned order dismiss the appeal without opening the oral procedure.
36 On this point it must be observed, firstly, that it is clear from Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice that an appeal is limited to points of law and must be based on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant, or infringement of Community law by the Court of First Instance (see, in particular, Case C-284/98 P Parliament v Bieber [2000] ECR I-1527, paragraph 30).
37 Furthermore Article 112(1)(c) of the Rules of Procedure states that the appeal is to contain the pleas in law and legal arguments relied on.
38 It is clear from the abovementioned provisions that the appeal can be based only on grounds of infringement of rules of law, excluding any assessment of the facts. The Court of First Instance has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. When the Court of First Instance has found or appraised the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, the judgment in the case of Parliament v Bieber, cited above, paragraph 31).
39 It also follows from the abovementioned provisions that in any appeal a precise statement must be given of the parts of the judgment under appeal with which the appellant takes issue and of the legal arguments upon which the appeal is specifically founded. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see, in particular, the judgment in Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35).
40 Sodima's appeal must be considered in the light of these principles.
41 The appeal may be divided into six different grounds which must be examined in succession.
The first ground of appeal
42 By its first ground of appeal Sodima complains that there was an error in appraisal of law and of fact by the Court of First Instance in finding that the application in Case T-190/95 for a declaration for failure to act was inadmissible.
43 According to Sodima, in the contested judgment the Court of First Instance did not take proper account of the principle of protection of legitimate expectations when determining whether the action for failure to act had been initiated by Sodima out of time.
44 The letter of 28 June 1995 from the Member of the Commission responsible for competition matters to Sodima stating that the latter's complaint had already given rise to a thorough investigation which would enable the Commission to take a decision shortly was such as to lead Sodima to believe that its complaint was being dealt with and would have a favourable outcome. In view of the authority of the signatory of the letter, the letter was obviously intended to induce Sodima not to immediately initiate proceedings for failure to act following the letter of formal notice of 14 March 1995.
45 Sodima adds that the legitimate expectations on its part which the Commission thereby created were strengthened by repeated public statements and comments by the same Commission member.
46 Sodima initiated its action immediately after receiving a copy of a letter dated 12 September 1995 from the Commission to PSA, which made it clear that no progress had been made with regard to its complaint. Under those circumstances the action should be deemed to have been brought within the prescribed time-limits and therefore to be admissible.
47 In ruling on this ground, it must be observed at the outset that, as is evident from paragraphs 36 and 38 of this order, an appeal can be based only on grounds of infringement by the Court of First Instance of rules of law, excluding any finding as to, or appraisal of, the facts.
48 Consequently the appeal is admissible only in so far as it complains that the Court of First Instance gave its decision in disregard of rules of law which it was its duty to uphold.
49 It follows that Sodima's first ground must be dismissed as manifestly inadmissible in so far as it is based on an error in appraisal of fact by the Court of First Instance.
50 For the rest, it must be observed that, as the Court of Justice has consistently held, to be able to rely on the principle of the protection of legitimate expectations so as to avoid being time-barred as a result of the expiry of the time-limit for initiating proceedings for failure to act, the applicant must be able to show expectations based on specific assurances by the Community institution or conduct by that institution such as to give rise to pardonable confusion in the mind of a party acting in good faith and with all the diligence required of a normally informed businessman. That does not apply to public statements of a general nature by a member of the Commission or repeated contacts between the person concerned and the Commission after a letter of formal notice to it (see, to that effect, Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26, and Case C-285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I-4069, paragraph 27).
51 Under those circumstances the Court of First Instance rightly held, in paragraphs 25 and 26 of the contested judgment, that Sodima could not rely on the principle of the protection of legitimate expectations in order to remedy the expiry of time-limits for instituting proceedings, those time-limits being a matter of public policy, so that it is not for the parties to determine them at their own convenience (see Joined Cases 193/87 and 194/87 Maurissen and Union Syndicale v Court of Auditors [1989] ECR 1045, paragraph 39).
52 As the Commission correctly points out, it is clear from the very general terms of the letter of 28 June 1995 from the Member of the Commission responsible for competition questions to Sodima's legal adviser that the letter was in no way such as to give Sodima specific assurances or to create pardonable confusion which would have aroused justified hopes capable of leading to legitimate expectations meriting the protection of the courts.
53 In the present case this is all the more the case because that letter gave no indication at all of what decision would be taken by the Commission, so that Sodima had no justification whatever for thinking that the outcome of its complaint would be favourable to itself.
54 In view of the foregoing, the first ground of appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.
The second ground of appeal
55 Sodima's second ground of appeal is that there was an error of appraisal by the Court of First Instance and that it breached procedural safeguards by dismissing as inadmissible the application for annulment in Case T-190/95.
56 This ground of appeal consists of two limbs.
57 In support of the first limb, Sodima contends that, by not annulling the Commission's implicit refusal to send it certain documents in the file following its letter of formal notice dated 14 March 1995, the Court of First Instance infringed the rights of defence and Sodima's right to a fair hearing. As the Commission's refusal constituted a violation of fundamental rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which form part of the general principles of Community law, the Court of First Instance ought to have examined this complaint of its own motion.
58 On this point it must be observed that this part of Sodima's application before the Court of First Instance was for the annulment of an alleged decision of the Commission implicitly refusing to send Sodima certain documents in the file following its letter of formal notice dated 14 March 1995.
59 Before determining the merits of that application, the Court of First Instance considered whether the decision in question could, in the present case, be described as an act capable of forming the subject-matter of an application for annulment. The Court rightly concluded that that was not the case here, for the reasons given in paragraphs 31 to 33 of the contested judgment, which are set out in paragraphs 23 and 24 of this order. Consequently the Court logically dismissed Sodima's application for annulment as inadmissible and did not have to give a ruling on the alleged illegality of the alleged decision by the Commission.
60 Sodima's arguments in the first limb of the second ground of appeal do not, by virtue of their object or effect, touch upon this conclusion of the Court of First Instance. They relate entirely to the substance of the case and do not call into question the findings in paragraphs 32 and 33 of the contested judgment, which state, firstly, that in a situation such as the present the Commission's inaction could not be regarded as an actionable decision and, secondly, that the question whether the Commission's conduct was illegal could only be determined in the context of an action for the annulment of the Commission's final decision on the applicant's complaint.
61 Under those circumstances the first limb of this ground is inoperative and therefore manifestly unfounded.
62 In support of the second limb of the second ground of appeal, Sodima contends that the Court of First Instance, in finding that the complaints had not been joined and that it had not been shown that the documents produced by Sodima were sent to other complainants, failed to have regard to the condition of confidentiality expressly imposed by Sodima's legal adviser in the letter to the Commission of 8 December 1994, which stated that Sodima objected to the letters disclosed to PSA being sent to third parties or used in other proceedings conducted by the Commission.
63 The Commission's letter to PSA of 12 September 1995, which refers to four separate files of complaints concerning PSA, shows that the Commission wished to set up a system of communicating vessels between Sodima's file and other complaints and that the files were in fact joined, in breach of the principle of confidentiality.
64 Secondly, Sodima contends that the Court of First Instance was wrong in finding that the said joinder had no adverse effect on Sodima, as it did away with any possibility for the distributor to negotiate a settlement of its dispute with PSA.
65 In ruling on the second limb of the second ground of appeal, it must be observed that in the contested judgment the Court of First Instance found that Sodima's complaint that documents produced by it were sent to other complainants by the Commission was not corroborated by anything on the case-file and that Sodima had not shown that an implicit decision to join the cases had been taken by the Commission.
66 It must be noted that this is a finding of fact by the Court of First Instance and it is not open to review.
67 Therefore, in so far as the second limb of Sodima's second ground of appeal is directed against this finding of fact, it must be dismissed as manifestly inadmissible.
68 The same applies to the complaint that the alleged joinder of cases affected Sodima's situation in that it jeopardised its chances of reaching a settlement with PSA, in so far as this argument assumes that there was in fact a decision to join Sodima's case with other complaints.
69 Accordingly the second limb of Sodima's second ground of appeal is manifestly inadmissible.
70 This ground of appeal must therefore be dismissed in its entirety.
The third ground of appeal
71 Sodima's third ground of appeal submits that there was a manifest error in appraisal of law and of fact by the Court of First Instance in finding that the claim for compensation in Case T-190/95 was inadmissible.
72 In this context Sodima complains that the Commission treated its complaint in a dilatory fashion, even though the Member of the Commission responsible for competition matters recognised the Community interest in expediting the matter in his letter of 28 June 1995. The refusal to send Sodima all the documents in the file shows a lack of transparency in the Commission's handling of the matter and its failure to take action caused Sodima damage by delaying the proceedings instituted against PSA in the French courts in respect of its liabilities of FRF 14 million. The damage can be evaluated as the interest on that sum at the rate of 10%, i.e. EUR 200 000 per annum from the date of the letter of formal notice.
73 For the same reasons as those given in paragraphs 36, 38 and 47 to 49 of this order, Sodima's third ground of appeal must be dismissed as manifestly inadmissible in so far as it is based on an alleged manifest error of appraisal of the facts by the Court of First Instance in the judgment in question.
74 In so far as the third ground of appeal is based on an alleged manifest error of appraisal of law, it must be observed that Sodima puts forward not the slightest argument to show specifically that the contested judgment infringed Community law by dismissing its claim for compensation in Case T-190/95 as inadmissible. In paragraphs 74 to 79 of its appeal, Sodima merely reproduces almost word for word paragraphs 29 to 34 of its application to the Court of First Instance.
75 In this connection it must be noted that Sodima's arguments in this ground of appeal aim to show that the Commission's conduct caused it damage in such a way as to give rise to non-contractual liability on the part of the Community.
76 These submissions therefore relate exclusively to the substance of the case, although the Court of First Instance found that Sodima's claim for compensation was inadmissible.
77 Therefore this part of the ground of appeal constitutes in reality a request for re-examination of the application lodged at first instance.
78 As is clear from paragraphs 38 and 39 of this order, the Court of Justice only has jurisdiction to consider whether the Court of First Instance gave judgment in infringement of a rule of law and it may not re-examine the substance of the case.
79 It follows that the third ground of appeal is manifestly inadmissible in its entirety.
The fourth ground of appeal
80 Sodima's fourth ground of appeal complains that there was a manifest error in appraisal of fact and law by the Court of First Instance in finding merely that the action for a declaration of failure to act in Case T-45/96 had become devoid of purpose by reason, in particular, of the Commission's final decision of 5 January 1999 dismissing the complaint.
81 Sodima contends that, even though the Court of First Instance was right in finding that the failure to act had ceased at that date, it ought nevertheless to have found that no action had been taken by the Commission during the period prior to the adoption of the final decision, as otherwise this would encourage illegal inaction on the part of the institution concerned. Furthermore, a finding of failure to act would have proved the existence of fault, generating damage which gave a right to compensation.
82 For the same reasons as those given in paragraphs 36, 38, 47 to 49 and 73 of this order, Sodima's fourth ground of appeal must be dismissed as manifestly inadmissible in so far as it claims that the Court of First Instance misappraised the facts.
83 In so far as this ground of appeal is based on an alleged error in appraisal of law by the Court of First Instance, it must be observed that it has consistently been held that the remedy provided for in Article 175 of the Treaty is founded on the premiss that the unlawful inaction on the part of the institution concerned enables the matter to be brought before the Court of Justice in order to obtain a declaration that the failure to act is contrary to the Treaty, in so far as it has not been repaired by the institution concerned. The effect of that declaration, under Article 176 of the EC Treaty (now Article 233 EC), is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise. In circumstances such as those in this case, where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 176. It follows that in such a case, as in cases where the defendant institution has responded within a period of two months after being called upon to act, the subject-matter of the action has ceased to exist and there is no longer any need for the Court to give a decision. The fact that the position adopted by the institution has not satisfied the applicant is of no relevance in this respect because Article 175 refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned (see Case 377/87 Parliament v Council [1988] ECR 4017, paragraphs 9 and 10; Case 383/87 Commission v Council [1988] ECR 4051, paragraphs 9 and 10, and Joined Cases C-15/91 and C-108/91 Buckl and Others v Commission [1992] ECR I-6061, paragraphs 14 to 17).
84 With regard more particularly to a situation such as that in the present case, the Court has also consistently held that a letter in accordance with the requirements of Article 6 of Regulation 99/63 from the Commission to the author of a complaint lodged under Article 3(2) of Regulation No 17 constitutes a definition of position within the meaning of the second paragraph of Article 175 of the Treaty which terminates the Commission's failure to act and deprives the action brought by Sodima for that purpose of its subject-matter (see Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 21, and Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503, paragraphs 30 and 31).
85 Under those circumstances, there was no error in law on the part of the Court of First Instance in finding that the application for a declaration of failure to act in Case T-45/96 had become devoid of purpose, because, firstly, on 27 January 1997 the Commission had sent Sodima notification under Article 6 of Regulation No 99/63 and, secondly, on 5 January 1999 the Commission had adopted a final decision dismissing Sodima's complaint.
86 Consequently, the fourth ground of appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.
The fifth ground of appeal
87 In its fifth ground of appeal, Sodima submits that the Court of First Instance was wrong in finding that its application for annulment and compensation in Case T-45/96 was inadmissible.
88 As the Court's decision on these points merely referred to the reasons it had given in relation to the application for annulment and compensation in Case T-190/95, Sodima refers to the pleas in law and arguments it put forward on the same points in the present appeal.
89 In this connection it is sufficient to observe that, by doing no more than refer to its objections to the dismissal by the contested judgment of its application for annulment and compensation in Case T-190/95 on the ground of inadmissibility, Sodima is raising the same arguments as those supporting the second and third grounds of the present appeal (see paragraphs 55 to 57, 62 to 64 and 71 and 72 of this order).
90 Consequently Sodima's fifth ground of appeal must be dismissed on the same grounds as those which led the Court to dismiss the second and third grounds in support of the appeal (see paragraphs 58 to 61, 65 to 70 and 73 to 79 of this order).
The sixth ground of appeal
91 Sodima's sixth ground of appeal merely states that there was an error in appraisal of fact and law by the Court of First Instance in not ordering the Commission to pay the costs.
92 In this connection it must be observed, firstly, that this ground is manifestly inadmissible in so far as it relates to an alleged error of the Court of First Instance in assessing the facts (see paragraphs 36, 38, 47 to 49, 73 and 82 of this order).
93 Secondly, it is sufficient to observe that the Court has consistently held that, where all the other pleas in an appeal have been rejected, a plea concerning the illegality of the decision of the Court of First Instance as to costs must be rejected as inadmissible under the second paragraph of Article 51 of the EC Statute of the Court of Justice, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (see, in particular, Case C-396/93 P Henrichs v Commission [1995] ECR I-2611, paragraph 66, and the order of 16 October 1997 in Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 56).
94 Under these circumstances Sodima's sixth ground of appeal must be dismissed as manifestly inadmissible in its entirety.
95 It follows from all the foregoing considerations that the grounds put forward by Sodima in support of its appeal are in part manifestly inadmissible and in part manifestly unfounded.
96 Consequently the appeal must be dismissed pursuant to Article 119 of the Rules of Procedure.
Decision on costs
Costs
97 Under Article 69(2) of the Rules of Procedure of the Court of Justice, which apply to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for an order for costs against Sodima and as the latter has failed in its submissions, it must be ordered to pay the costs of the present proceedings.
Operative part
On those grounds,
THE COURT (Second Chamber)
hereby orders:
1. The appeal is dismissed.
2. Société de Distribution Mécanique et d'Automobiles SA (Sodima) is ordered to pay the costs of the present proceedings.
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