Court of Justice of the European Communities (including Court of First Instance Decisions)

received the copy on 22 September 1993. The author of the letter expressed himself as follows: 'I can confirm that a draft decision under Article 15(6) of Regulation No 17 is to be submitted, as part of a written procedure, to the Commission for adoption at the end of this week, once all the necessary language versions are available. The approval of the departments concerned has already been obtained ... My department envisages that it should be possible to notify [the applicants] formally of the decision in the first half of October 1993'.

that FNK had infringed Article 85(1) of the Treaty from 15 December 1979 to 28 April 1992 by applying a system of recommended and internal rates, which had enabled its members to predict each other's pricing policy (Article 1). It also found that SCK had infringed Article 85(1) of the Treaty from 1 January 1991 to 4 November 1993 (with the exception of the period between 17 February 1992 and 9 July 1992) by prohibiting its affiliated firms from hiring cranes from firms not affiliated to SCK (Article 3). In addition, it ordered the applicants to terminate those infringements forthwith (Articles 2 and 4) and imposed a fine of ECU 11 500 000 on FNK and one of ECU 300 000 on SCK (Article 5).

those cases, together with any other files which formed the basis for the contested decision.

Forms of order sought

- declare the Community liable for the damage which they are suffering and will continue to suffer as a result of the Commission's unlawful conduct;

- order the Community to pay compensation for that damage, to determine the extent thereof in consultation with the applicants and, if an amicable settlement is not reached in that regard, to determine the amount of the damage itself, if need be after appointing an expert to quantify it precisely;

- order the Commission to pay the costs.

- dismiss the action;

- order the applicants jointly and severally to pay the costs, including the costs of the application for interim measures.

- declare that the contested decision is non-existent, since, in its operative part, the Commission decides that Article 85(1) applies and fines the applicants in that connection but does not rule on the applicants' request for an exemption under Article 85(3) of the Treaty;

- in the alternative, declare the contested decision to be unconditionally void;

- in the further alternative, annul it because it infringes Article 85 of the Treaty, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ('the European Convention on Human Rights'), general principles of law and the obligation to give reasons (Article 190 of the Treaty);

- in the further alternative, annul it in part so that no fine is imposed on the applicants;

- order the Commission to pay the costs;

- order the interveners to pay the costs relating to the intervention.

- dismiss the action;

- order the applicants to pay the costs.

- give judgment for the Commission in the terms sought by it;

- order the applicants to pay the costs, including those of the interveners.

The action for damages (Case T-213/95)

The first plea: infringement of Article 6 of the European Convention on Human Rights

Summary of the arguments of the parties

the Commission a statement of objections with respect to the application of that provision (statement of objections of 16 December 1992, see paragraph 9 above).

Findings of the Court

and FNK on 6 February 1992 (see paragraphs 6 and 7 above), the contested decision, dated 29 November 1995, was not adopted within a 'reasonable time' for the purposes of Article 6(1) of the European Convention on Human Rights, under which '... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...'.

firms to which the contested decision relates, namely the prohibition on hiring (the second indent of Article 7 of the rules on certification), entered into force on 1 January 1991. The applicants apparently saw no need to seek the Commission's opinion on their statutes and rules before Van Marwijk and ten other undertakings submitted a complaint to the Commission on 13 January 1992. SCK's statutes and its rules on the certification of crane-hire firms were not notified to the Commission until 15 January 1992 and FNK's statutes and internal rules were not notified until 6 February 1992.

conceded at the hearing before the Court that, in its letter to the Commission of 21 October 1993 (to Mr Dubois in DG IV), SCK made clear for the first time the need for the case to be dealt with rapidly and as a matter of urgency. FNK did not take such a step before the decision was adopted on 13 April 1994. The letter of formal notice of 3 June 1994 from the applicants' adviser to the Commission is the first indication given by FNK of its interest in having the case dealt with rapidly. Furthermore, it is common ground that at the very time when SCK was first making clear to DG IV the need for the procedure to progress rapidly, the applicants requested DG III to intervene with DG IV with a view to obtaining a successful outcome to their application for an exemption (see, in particular, the letter of 5 October 1993 from the applicants' adviser to Mr McMillan, the Head of Unit III.B.3). While such an approach is perfectly proper, the applicants should have realized that the intervention requested from DG III was going to slow down the procedure, in particular as DG III does not have to be consulted in a proceeding for exemption under Article 85(3) of the Treaty or in a proceeding for the finding of an infringement under Article 85(1).

The second plea: breach of the principle of legal certainty

Summary of the arguments of the parties

Findings of the Court

The third plea: breach of the principle of the protection of legitimate expectations

Summary of the arguments of the parties

Findings of the Court

ECR II-361, paragraph 67, and order of 11 March 1996 in Case T-195/95 Guérin Automobiles v Commission [1996] ECR II-171, paragraph 20).

The fourth plea: breach of the audi alteram partem rule

Summary of the arguments of the parties

matters which may have emerged during the administrative procedure and, secondly, to the Commission's rejection of any compromise. The interest which they had in such a hearing would have justified any procedural delay, at least during the period preceding the adoption of the decision under Article 15(6).

Findings of the Court

2. Causal link

Summary of the arguments of the parties

Findings of the Court

Regulation No 17, the fact remains that the position so taken did not bind the national court. Mr Giuffrida's assessment of the prohibition was merely a factor which the Gerechtshof could take into account in examining the question whether that practice was in accordance with Article 85 of the Treaty (Joined Cases 253/78, 1/79, 2/79 and 3/79 Procureur de la République v Giry and Guerlain [1980] ECR 2327, paragraph 13, and Case T-575/93 Koelman v Commission [1996] ECR II-1, paragraph 43). Besides, as will become apparent from the analysis of the action for annulment brought against the contested decision, the view taken by the Commission during the administrative procedure and set out in the contested decision is based on a correct interpretation of Article 85(1) of the Treaty. Thus, if SCK was threatened with withdrawal of its accreditation, that threat was due to the fact that SCK had been required to put an end to an infringement of Article 85(1). The Commission cannot be held responsible for such 'harm'.

The action for a declaration that the contested decision is non-existent or for its annulment (Case T-18/96)

1. Claim for a declaration that the contested decision is non-existent

Summary of the arguments of the parties

Findings of the Court

FNK, that 'it is ... not possible ... to grant exemption under Article 85(3) of the Treaty'. Similarly, in paragraph 39 it expressly concludes that 'it is ... not possible ... to grant exemption under Article 85(3) of the Treaty' as regards SCK's prohibition on hiring.

2. Claim for annulment of the contested decision

The first plea: infringement of Articles 3, 4, 6 and 9 of Regulation No 17

Summary of the arguments of the parties

Findings of the Court

The second plea: infringement of Article 85(1) of the Treaty

fourth part of the plea it is alleged that it erred in its assessment of the effect on trade between Member States.

The first part of the plea, to the effect that SCK was mistakenly classified as an undertaking within the meaning of Article 85(1) of the Treaty

- Summary of the arguments of the parties

- Findings of the Court

The second part of the plea, alleging that the Commission, first, erred in law with regard to the reference to the criteria of transparency, openness, independence and acceptance of equivalent guarantees offered by other systems in assessing whether a certification system is compatible with Article 85(1) of the Treaty and, secondly, erred in its assessment when it found that the prohibition on hiring had as its object or effect the restriction of competition within the meaning of Article 85(1)

- Summary of the arguments of the parties

in a sector where none yet exists, because the first system established would not have the possibility of recognizing other, comparable, systems.

- Findings of the Court

Commission took the view that the anti-competitive nature of the prohibition on hiring could be assessed only by reference to the nature of the certification system with which that prohibition was associated. For that purpose, it laid down four criteria - namely openness, independence, transparency and acceptance of equivalent guarantees offered by other systems - which the certification system had to comply with in order for it to be possible for the prohibition on hiring to fall outside Article 85(1).

of the Treaty, it should be noted that when the setting up of SCK was discussed at a meeting of the Noord Holland Region of FNK on 27 September 1983, those taking part did not have in mind at all an intensification in competition between them but rather an increase in market prices. The minutes of that meeting (produced by the applicants by letter of 10 April 1997) thus recorded one of the participants as saying: 'Such a [certification] institute is a very healthy thing. It should have an effect on prices if the proposal is implemented well.' Another participant at the same meeting considered that the certification proposal was a 'good idea'. He added that 'in a business, the turnover achieved is more important than the rate of use of the machines'. A crane-hire firm which does not increase the rate of use of its machines will achieve an increase in turnover only by increasing its charges.

participation were higher for the former than for the latter; the requirements imposed by the certification system were drawn up on the basis of the position in the Netherlands, thereby hindering access by foreign firms. Thus, until 1 May 1993, it was necessary under SCK's certification system to register with the Chamber of Commerce and, until 21 October 1993, FNK's general conditions had to be applied (paragraph 24 of the contested decision).

SCK's certification system was not completely open (or at the very least that it was not until 21 October 1993) and did not allow equivalent guarantees offered by other systems to be accepted. Accordingly, the prohibition on hiring which reinforced the non-open nature of the certification system and had the effect of raising a substantial obstacle to access by third parties to the Netherlands market, and in particular firms established in another Member State (see paragraphs 145 to 148 above), in fact constitutes a restriction of competition within the meaning of Article 85(1) of the Treaty. That conclusion would be no different if the applicants could show that the clause is necessary in order to preserve the coherence of SCK's certification system. The fact that the system is not open and equivalent guarantees offered by other systems are not accepted means that the system itself is incompatible with Article 85(1) even if it were proved, as the applicants claim, that it gave added value compared with the Netherlands legislation. A specific clause in such a system, such as the clause prohibiting hirings from uncertified firms, does not become compatible with Article 85(1) because it is needed to preserve the coherence of that system, since the latter is by definition incompatible with Article 85(1).

The third part of the plea, alleging that the Commission committed an error of assessment in finding that the system of recommended and internal rates had as its object or effect the restriction of competition within the meaning of Article 85(1) of the Treaty

- Summary of the arguments of the parties

- Findings of the Court

(a) The system of recommended and internal rates

internal rules. One of the participants at that meeting added that 'provision should be made for penalizing such breaches of the rules by the imposition of a fine' (see, to the same effect, the minutes of the meeting of the Oost Nederland Region of 16 April 1986, point 3).

'Mr De Blank observes that the Noord Region has seen intense cooperation on rates. Initially in groups and then jointly with the three province-regions. That has certainly borne fruit'; minutes of the meeting of the Midden Nederland Region of 28 February 1991, point 4; minutes of the meeting of FNK members using tracked cranes, of 12 November 1991, point 3: 'There is the impression that the market rates also are increasing because of the agreements on internal rates'.

(b) FNK's responsibility in the setting of internal rates

meetings of firms using hydraulic cranes of more than 150 tonnes, of 25 September 1990, point 6, and of 26 November 1991, point 6).

The fourth part of the plea, alleging that the Commission erred in its assessment of the effect on trade between Member States

- Summary of the arguments of the parties

- Findings of the Court

located near the Netherlands border are among the undertakings which submitted a complaint to the Commission against SCK and FNK. It would be surprising if they took such a step if they had no possibility of entering the Netherlands market.

The third plea: infringement of Article 85(3) of the Treaty

Summary of the arguments of the parties

- Refusal by the Commission to exempt SCK's prohibition on hiring

- Refusal by the Commission to exempt the system of recommended and internal rates

rates are indispensable. The situation of the mobile crane-hire firms differs from that of the banks in a number of respects: banks are required to work in partnership because they have to cooperate with the bank chosen by their client to carry out a transfer, while mobile crane-hire firms themselves choose their sub-contractors; banks are confronted with a number of much more significant transactions; finally, the internal rates are coupled with recommended rates applicable to clients, while the Commission, in Decision 87/103, did not authorize concerted action by banks on the rates charged to their customers.

Findings of the Court

the statutory requirements, the Commission found in the contested decision: 'It has not been established that the SCK certification system does provide real added value over and above the statutory rules applicable. The requirements imposed on the affiliated firms are virtually identical to the statutory ones ...' (first subparagraph of paragraph 37). The Commission thus stated that the majority of the safety requirements imposed by SCK were already imposed by Netherlands law. The same applied to 'most of the non-safety-related requirements which SCK imposes, such as those relating to the payment of tax and social security contributions, registration with the Chamber of Commerce, third-party insurance, creditworthiness and application of the collective labour agreements' (third subparagraph of paragraph 37). The Commission added that 'SCK goes beyond statute law by imposing requirements regarding the manner of conducting business, but that alone is insufficient to justify the restrictions of competition imposed' (end of the third subparagraph of paragraph 37).

- Refusal by the Commission to exempt the system of recommended and internal rates

(paragraph 19 of FNK's notification), they did not submit to the Commission any evidence to prove that, as regards the system of internal rates, the first three conditions in Article 85(3) were satisfied. They cannot therefore claim that the Commission committed a manifest error of assessment in finding that 'it [had] not been established' (paragraph 34 of the contested decision) that the system of internal rates satisfied the first two conditions in Article 85(3).

with mandatory prices and, in particular, the unquestionable disadvantage resulting from the system's object of increasing prices in relation to market prices. Accordingly, the applicants, who in their application stated merely that the advantage of the system of recommended rates was that it increased the transparency of the market, have not demonstrated that the Commission committed a manifest error of assessment in finding that, 'irrespective of the alleged aim of increasing transparency' (paragraph 34 of the contested decision), the first two conditions in Article 85 of the Treaty were not satisfied.

The fourth plea: infringement of the rights of the defence

Summary of the arguments of the parties

Findings of the Court

under review in this case. It is not disputed that, in their reply to the statement of objections of 21 October 1994, the applicants waived their right to a hearing before the adoption of the contested decision. The second part of the plea must also therefore be rejected.

The fifth plea: infringement of Article 190 of the Treaty

Summary of the arguments of the parties

of SCK and FNK which were under investigation restricted competition and affected trade between Member States.

Findings of the Court

were raised during the administrative procedure (BAT and Reynolds v Commission, cited above, paragraph 72, and Tiercé Ladbroke v Commission, cited above, paragraph 150). In addition, it is not apparent from any document in the case that the Commission failed to take account of a fundamental matter which had been raised during the administrative procedure (see Publishers Association v Commission, cited above, paragraphs 41 and 42).

3. Subsidiary claims for annulment or reduction of the fines

The first plea: infringement of Article 15(2) of Regulation No 17

Summary of the arguments of the parties

SCK is thus in breach of the condition set out in Paragraph 2.5 of the accreditation criteria').

The second plea: breach of the principle of proportionality

Summary of the arguments of the parties

account for only 40% of the firms operating in the market and therefore do not occupy an important part of the crane-hire market. Finally, FNK voluntarily maintained the status quo which had resulted from compliance with the order of 11 February 1992, despite its being set aside on appeal on 9 July 1992. Such an attitude, which would have provided grounds for not imposing any fine (Commission Decision 79/934/EEC of 5 September 1979 relating to a proceeding under Article 85 of the EEC Treaty (IV/29.021 - BP Kemi - DSDF) (OJ 1979 L 286, p. 32)), is in any event sufficient reason for the fine to be substantially reduced.

Findings of the Court

6 February 1992 only (paragraph 46 of the contested decision), the fact that FNK did not apply its system of recommended and internal rates after 11 February 1992 is in fact irrelevant when assessing the gravity of an infringement in the period prior to 6 February 1992.

was not entitled to take account of the turnover of FNK's members when it fixed the amount of the fine to be imposed on that association.

The third plea: infringement of Article 190 of the Treaty

Summary of the arguments of the parties

Findings of the Court

needed in order to establish whether or not the fines imposed on them were well founded and enabled the Court to carry out its review as to legality.

Costs

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

hereby:

1. Joins Cases T-213/95 and T-18/96 for the purposes of the judgment;

2. Reduces to ECU 100 000 the fine imposed on the Stichting Certificatie Kraanverhuurbedrijf by Article 5(2) of Commission Decision 95/551/EC of 29 November 1995 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 - Stichting Certificatie Kraanverhuurbedrijf and the Federatie van Nederlandse Kraanverhuurbedrijven);

3. For the rest, dismisses the applications;

4. Orders the applicants to bear their own costs and to pay the costs incurred by the Commission, including those relating to the proceedings for interim measures, and the interveners' costs.

Lenaerts Lindh Azizi Cooke Jaeger

Delivered in open court in Luxembourg on 22 October 1997.

H. Jung P. Lindh

Registrar President