In Case C-424/92,
Ladbroke Racing Limited, represented by Jeremy Lever QC and Christopher Vajda, members of the Bar of England and Wales, and Stephen Kon, Solicitor of S.J. Berwin & Co., with an address for service in Luxembourg at the offices of Winandy & Err, 60 Avenue Gaston Diderich,
applicant,
v
Commission of the European Communities, represented by Francisco Enrique Gonzalez-Diaz and Richard Lyal, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for a declaration that the Commission has unlawfully failed to define its position following the applicant' s complaint based on Articles 3(f), 5, 52, 53, 59, 62, 85, 86, 90(1), 92 and 93 of the EEC Treaty,
THE COURT,
composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg, J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,
Advocate General: C.O. Lenz,
Registrar: J.-G. Giraud,
after hearing the Opinion of the Advocate General,
makes the following
Order
1 By application lodged at the Registry of the Court of Justice on 21 December 1992, Ladbroke Racing Ltd brought an action under Article 175 of the EEC Treaty seeking a declaration that the Commission, in breach of the Treaty, had failed to define its position in relation to the complaint filed by Ladbroke Racing Ltd requesting that it bring to an end, in accordance with Article 3 of Council Regulation No 17 of 6 February 1962 (First Regulation implementing Articles 85 and 86 of the Treaty) (OJ, English Special Edition 1959-1962, p. 87) and Article 90(3) of the Treaty, certain infringements of several rules of the Treaty and, in particular, in relation to the request by Ladbroke Racing Ltd that it send it a letter 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 1963-1964, p. 47) and a similar letter concerning the action sought under Article 90(3) of the Treaty.
2 Ladbroke Racing Ltd brought an identical action before the Court of First Instance (Case T-110/92).
3 By document lodged at the Registry of the Court of Justice on 10 February 1993, the Commission submitted a preliminary request that the Court of Justice declare that the Court of First Instance has sole jurisdiction for that part of the action concerning Regulations No 17 and No 99/63/EEC and dismiss that part of the action concerning Article 90 as inadmissible.
4 By letter lodged at the Registry of the Court of Justice on 15 March 1993, the applicant requested the Court to declare that it had jurisdiction to hear and determine the whole of the action, including that part concerning Regulation No 17, and to grant it an extension of time in which to lodge its observations on the preliminary objection to admissibility raised by the Commission. Those observations were lodged on 15 April 1993.
5 Article 3(1)(c) of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1) (hereafter "Council Decision") provides that the Court of First Instance is to exercise at first instance the jurisdiction conferred on the Court of Justice by the Treaties establishing the Communities and by the acts adopted in implementation thereof in actions brought against an institution of the Communities by natural or legal persons pursuant to the third paragraph of Article 175 of the EEC Treaty relating to the implementation of the competition rules applicable to undertakings.
6 The Commission considers that the Court of Justice has jurisdiction to hear and determine the action in so far as it concerns Article 90 of the Treaty. While recognizing that the Court of Justice has already ruled otherwise (order in Case C-66/90 PTT v Commission [1991] ECR I-2723), it requests the Court to reconsider its position.
7 In support of that request the Commission maintains that Article 90(1) of the Treaty prohibits Member States, in the case of public undertakings and undertakings to which they grant special or exclusive rights, from enacting or maintaining in force any measure contrary to the rules contained in the Treaty, and that Article 90(3) empowers the Commission to lay down general rules defining more specifically the obligations of Member States in relation to the types of undertakings mentioned in Article 90. Accordingly, the Commission argues that those provisions do not concern the conduct of undertakings.
8 That argument cannot be accepted.
9 First, those provisions form part of a section of the Treaty entitled "Rules applying to undertakings". It is to those rules to which Article 3(1)(c) of the Council Decision refers.
10 Next, while it is true that Article 90(1), and the general rules which the Commission may lay down pursuant to Article 90(3), specify the obligations of the Member States, those provisions none the less concern the implementation of the competition rules applicable to undertakings inasmuch as they prohibit the enactment or maintenance in force of State legislation which could affect the application of those rules to undertakings enjoying a particular status.
11 The Commission also stresses that Article 90(1) of the Treaty can be regarded as a special case of Article 5 of the Treaty and that Article 90(3) has the same purpose as Article 169 of the Treaty. To hold that proceedings in relation to Article 90 fall within the jurisdiction of the Court of First Instance, while proceedings in relation to Articles 5 and 169 do not, would, according to the Commission, have the unsatisfactory result that jurisdiction would depend on the private or public character of the undertakings affected by the State' s measures in issue.
12 That argument must also be rejected.
13 According to Article 3(1)(c) of the Council Decision, actions concerning Article 90 of the EEC Treaty fall within the jurisdiction of the Court of First Instance only to the extent to which they are brought by natural or legal persons pursuant to the second paragraph of Article 173 and the third paragraph of Article 175, while those concerning the same provision but brought by an institution of the Communities or a Member State continue to fall within the jurisdiction of the Court of Justice.
14 According to the second paragraph of Article 47 of the Statute of the Court of Justice, where the Court of Justice finds that an action falls within the jurisdiction of the Court of First Instance, it is to refer that action to the Court of First Instance, whereupon that Court may not decline jurisdiction.
15 Since the action in Case C-424/92 constitutes in its entirety an action brought against an institution of the Communities by a legal person pursuant to the third paragraph of Article 175 of the EEC Treaty, and since it concerns the implementation of the competition rules applicable to undertakings, which form the subject-matter of the first section of Chapter 1 of Title 1 of Part Three of the EEC Treaty, the Court of Justice must, by virtue of the second paragraph of Article 47 of the Statute, find that it falls within the jurisdiction of the Court of First Instance and must, accordingly, refer it to that Court.
On those grounds,
THE COURT
hereby orders:
1. Case C-424/92 Ladbroke Racing Limited v Commission of the European Communities is referred to the Court of First Instance.
2. The costs are reserved.
Luxembourg, 3 May 1993.
