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

JUDGMENT OF THE COURT (Fifth Chamber)

30 March 2000 (1)

(Appeal - Competition - Decision rejecting a complaint - Compatibility withArticle 2 of Regulation No 26 of a fee charged to external suppliers onfloricultural products supplied to wholesalers established on the premises of acooperative society of auctioneers - Statement of reasons)

In Case C-265/97 P,

Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer BA (VBA),established in Aalsmeer (Netherlands), represented by G. van der Wal, of theBrussels Bar, with an address for service in Luxembourg at the Chambers of A.May, 31 Grand-Rue,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Second Chamber, Extended Composition) of 14 May 1997 in JoinedCases T-70/92 and T-71/92 Florimex and VGB v Commission [1997] ECR II-693,seeking to have that judgment set aside,

the other parties to the proceedings being:

Florimex BV and Vereniging van Groothandelaren in Bloemkwekerijprodukten(VGB), established in Aalsmeer (Netherlands), represented by J.A.M.P. Keijser, ofthe Nijmegen Bar, with an address for service in Luxembourg at the Chambers ofA. Kronshagen, 22 Rue Marie-Adéläide,

applicants at first instance,

and

Commission of the European Communities, represented by B.J. Drijber, of itsLegal Service, acting as Agent, with an address for service in Luxembourg at theoffice of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Sixth Chamber, acting asPresident of the Fifth Chamber, L. Sevón, J.-P. Puissochet, P. Jann (Rapporteur)and M. Wathelet, Judges,

Advocate General: A. Saggio,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 17 December 1998,at which Coöperatieve Vereniging De Verenigde Bloemenveilingen Aalsmeer BA(VBA) was represented by G. van der Wal, Florimex BV and Vereniging vanGroothandelaren in Bloemkwekerijprodukten (VGB) by J.A.M.P. Keijser and theCommission by W. Wils, of its Legal Service, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 8 July 1999,

gives the following

Judgment

1. By application lodged at the Court Registry on 19 July 1997, the CoöperatieveVereniging De Verenigde Bloemenveilingen Aalsmeer BA (hereinafter 'the VBA)brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justiceagainst the judgment of the Court of First Instance of 14 May 1997 in Joined CasesT-70/92 and T-71/92 Florimex and VGB v Commission [1997] ECR II-693 ('thecontested judgment), by which it annulled the Commission Decision (IV/32.751 -Florimex/Aalsmeer II and IV/32.990 - VGB/Aalsmeer, 'the contested decision)contained in a letter of 2 July 1992, rejecting the complaints lodged by Florimex BV(hereinafter 'Florimex) and Vereniging van Groothandelaren inBloemkwekerijprodukten (hereinafter 'the VGB) concerning the levying of feesfor the use of the VBA's premises which it charges in respect of the supply ofproducts by suppliers who are not members of the VBA.

   Facts before the Court of First Instance

2. According to the contested judgment, the VBA is a cooperative society constitutedunder Netherlands law, whose members are growers of flowers and ornamentalplants. It represents more than 3 000 undertakings, the great majority of which arefrom the Netherlands, a small minority being Belgian (paragraph 1).

3. On its premises at Aalsmeer (Netherlands), the VBA organises auction sales offloricultural products. Those products are covered by Regulation (EEC) No 234/68of the Council of 27 February 1968 on the establishment of a common organisationof the market in live trees and other plants, bulbs, roots and the like, cut flowersand ornamental foliage (OJ, English Special Edition 1968 (I), p. 26) (paragraph 2).

4. The VBA's premises at Aalsmeer are used primarily for the actual auction sales,but an area is reserved for the renting-out of 'processing rooms for the purposesof wholesale trade in floricultural products, in particular sorting and packaging.Those tenants are mainly cut-flower wholesalers (paragraph 4).

5. Florimex is an undertaking engaged in the flower trade, established in Aalsmeerclose to the VBA complex. It imports floricultural products from Member Statesof the European Community and from non-member countries, mainly for resale towholesalers established in the Netherlands (paragraph 5).

6. The VGB is an association comprising numerous Netherlands wholesalers offloricultural products, including Florimex and a number of wholesalers establishedon the VBA's premises (paragraph 6).

7. Article 17 of the VBA's statutes requires its members to sell through it all productsfit for sale cultivated on their holdings. A fee or commission ('auction fee) isinvoiced to the members for the services provided by the VBA. In 1991, that feeamounted to 5.7% of the proceeds of sale (paragraph 7).

8. Until 1 May 1988, the VBA auction rules, contained in Article 5(10) and (11),included provisions designed to prevent the use of its premises for supplies,purchases and sales of floricultural products not passing through its own auctions(paragraph 8).

9. In practice, the VBA granted authorisation for commercial transactions on itspremises in such products only under certain standard contracts known as'handelsovereenkomsten (trade agreements) or against payment of a 10% levy(paragraph 9).

10. In its trade agreements, the VBA allowed certain dealers to sell and supply topurchasers approved by it certain floricultural products bought in other auctions inthe Netherlands or cut flowers of foreign origin to purchasers approved by it,against payment of a levy (paragraphs 10 and 11).

11. Following a complaint from Florimex, the Commission adopted on 26 July 1988Decision 88/491/EEC relating to a proceeding pursuant to Article 85 of the EECTreaty (IV/31.379 - Bloemenveilingen Aalsmeer) (OJ 1988 L 262, p. 27).

12. In the operative part of that decision the Commission declared, in particular, thatthe agreements concluded by the VBA whereby the dealers established on theVBA's premises and their suppliers were required to deal in or have delivered onthem floricultural products not bought through the VBA only with the consent ofthe VBA and under the conditions laid down by it and to store temporarily on theVBA's premises floricultural products not bought through the VBA only againstpayment of a fee determined by the latter, constitute infringements of Article 85(1)of the EC Treaty (now Article 81(1) EC).

13. It found moreover that the charges for the prevention of irregular use of the VBAfacilities imposed by the VBA on the dealers established on its premises as well asthe trade agreements concluded between the VBA and those dealers alsoconstituted, as notified to the Commission, such infringements (paragraph 18).

14. With effect from 1 May 1988, the VBA formally removed the purchase obligationsand restrictions on the free disposal of goods imposed by its auction rules, as wellas the contested system of charges, but at the same time introduced a 'user fee('facilitaire heffing). The VBA also introduced amended versions of the tradeagreements (paragraph 19).

15. In the version at the material time, Article 4(15) of the auction rules provided thatthe supply of products within the auction premises could be subject to a user fee.Under that provision, the VBA adopted, with effect from 1 May 1988, rules on userfees, which were subsequently amended. The rules applied to direct supplies todealers established on the VBA's premises, on the basis that the goods in questionwere disposed of without recourse to the VBA's services (paragraph 20).

16. The rules, as in force in 1991, included the following requirements:

    (a) the fee is payable by the supplier, that is to say the person by whom or onwhose instructions the products are brought on to the auction premises.Delivery is monitored at the entry to the premises. The supplier is requiredto indicate the name and nature of the products concerned, but not theirdestination;

    (b) the fee, which is subject to annual review, is levied on the basis of thenumber of stalks (cut flowers) or plants supplied and fixed at levels whichvary according to various categories of product;

    (c) the fee is determined by the VBA on the basis of the annual average pricesachieved in the previous year for the categories concerned. According to theVBA, a factor of around 4.3% of the annual average price for the categoryconcerned is applied;

    (d) according to the 'detailed provisions governing the user fee, introduced bythe VBA with effect from February 1990, suppliers may pay a fee of 5% asan alternative to the system described in paragraphs (b) and (c) above;

    (e) a tenant of a processing room who brings goods onto the VBA's premisesis exempt from the user fee if he has purchased the products in question atanother flower auction in the Community or has imported them on his ownbehalf into the Netherlands, provided that he does not resell them todealers on the auction premises (paragraph 21).

17. By circular of 29 April 1988, the VBA removed, with effect from 1 May 1988, therestrictions previously contained in the trade agreements. Since then three types oftrade agreement have existed. All those agreements apply a charge of 3% of thegross value of the goods supplied to customers on the VBA's premises. Accordingto the VBA, the products concerned are for the most part those not grown insufficient quantities in the Netherlands (paragraphs 22 and 23).

18. By letters of 18 May, 11 October and 29 November 1988, Florimex formally lodgeda complaint against the user fee with the Commission. The VGB lodged a similarcomplaint by letter of 15 November 1988 (paragraphs 29 and 30).

19. At the end of the administrative procedure, by letter of 4 March 1991 (hereinafter'the Article 6 letter), the Commission informed the complainants, in accordancewith Article 6 of Commission Regulation No 99/63/EEC of 25 July 1963 on thehearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ,English Special Edition 1963-64, p. 47), that the information obtained did notenable the Commission to uphold their complaints regarding the user fee levied bythe VBA (paragraph 37).

20. The considerations of fact and law which prompted the Commission to reach thatconclusion are set out in detail in a document annexed to the Article 6 letter. TheCommission also sent that document to the VBA on 4 March 1991, stating that itwas the preliminary draft of a decision which it proposed to adopt under the firstsentence of Article 2(1) of Regulation No 26 of the Council of 4 April 1962applying certain rules of competition to production of and trade in agriculturalproducts (OJ, English Special Edition, Series I 1959-1962, p. 129) (paragraph 38).

21. In the part of that document entitled 'legal assessment, the Commission found,first, that the provisions concerning supplies for auction sales and the rules ondirect supplies to dealers established on the VBA's premises formed part of a bodyof decisions and agreements concerning the supply of floricultural products on theVBA's premises which were covered by Article 85(1) of the Treaty. Secondly, itfound that those decisions and agreements were necessary for attainment of theobjectives set out in Article 39 of the EC Treaty (now Article 33 EC), within themeaning of the first sentence of Article 2(1) of Regulation No 26 (paragraph 39).

22. First of all, as regards the application of the first sentence of Article 2(1) ofRegulation No 26 to direct supplies to dealers established on the VBA's premises,the Commission considered, in point II.2(b), that:

    'The user fees constitute an essential feature of the VBA distribution system,without which its competitive capacity and therefore its survival would becompromised. Consequently, they are also necessary for attainment of theobjectives set out in Article 39.

    If the VBA, which specialises in exports, wishes to be in a position to achieve itsobject as an undertaking, in other words if it seeks to be able to develop andmaintain its position as an important source of supply for international trade inflowers, it is necessary, because of the perishable and fragile nature of the productsdealt in (floricultural products), that the export dealers should be geographicallyclose to it. Geographical concentration of demand on its premises, which the VBAseeks in its own interest, is the consequence not only of the fact that a full rangeof products is offered there but also, and most importantly, of the fact that thosedealers have services and facilities available there which help them carry on theirtrade.

    The geographical concentration of supply and demand on the VBA's premisesconstitutes an economic advantage which is the result of significant efforts, in bothtangible and intangible terms, made by the VBA.

    If dealers were able to enjoy that benefit without paying for it, the VBA's survivalwould be compromised because the resultant discriminatory treatment of supplierslinked with the VBA would prevent it from amortising unavoidable costs andcovering current operating costs (paragraph 41).

23. Next, as regards whether, through the user fee, the VBA obtained an unjustifiedadvantage resulting in a restriction of competition, the Commission took the view,in the fifth and sixth subparagraphs of point II.2(b), that it was not necessary tocalculate the fees with mathematical precision by apportioning the various costs onthe basis of the internal organisation of the undertaking, but that it was sufficientto compare the levels of fees invoiced to the individual suppliers. The Commissionconcluded in the seventh subparagraph of point II.2(b):

    'It is clear from a comparison of the auction fees and the user fees that broadequality of treatment is guaranteed as between suppliers. Admittedly, a proportionof the auction fees, which cannot be precisely determined, represents payment forthe service provided by the auction, but in so far as the rate of the auction fees canbe compared with that of the user fees in this case, that service is a quid pro quofor the assumption of supply obligations. Dealers who have concluded tradeagreements with the VBA also assume such supply obligations. Consequently, therules on user fees do not have effects which are not compatible with the commonmarket (paragraph 42).

24. Finally, in the sixth subparagraph of point II.2(b), the Commission took the viewthat the effect of the user fee was similar to that of the auction reserve price.According to the Commission: '(t)he lower the price actually achieved, the greaterthe fee. As a result, supply is discouraged at times of excess supply, which iscertainly desirable (paragraph 43).

25. By letter of 17 April 1991, Florimex and the VGB stated in reply to the Article 6letter that they maintained their complaints regarding the user fees (paragraph 44).

26. On 2 July 1992, the Commission sent the applicants' lawyer a registered letter, withform of acknowledgment of receipt, which stated that the reasons given in itsupplement and clarify those given in its Article 6 letter, to which it refers. TheCommission continues:

    'The Commission's appraisal under competition law is based on the whole body ofdecisions and agreements concerning supplies of floricultural products on theVBA's premises. The rules on direct supplies to dealers established on thosepremises form only part of that body. In the Commission's opinion, the whole bodyof those decisions and agreements is in principle necessary for attainment of theobjectives indicated in Article 39 of the EEC Treaty. The fact that, to date, theCommission has not yet adopted a formal decision to that effect under Article 2of Regulation No 26/62 does not detract from the positive attitude adopted by theCommission on this subject (paragraphs 45 and 46).

27. On 21 September 1992, Florimex and the VGB respectively brought actions, inCases T-70/92 and T-71/92, against the contested decision (paragraph 52).

28. By a document lodged on 16 October 1992 in each of those cases, the Commissionraised an objection of inadmissibility under Article 114(1) of the Rules ofProcedure of the Court of First Instance (paragraph 53).

29. By order of the Court of First Instance (First Chamber) of 6 July 1993, the decisionon the objection of inadmissibility was reserved for the final judgment (paragraph55).

30. By order of the President of the First Chamber of the Court of First Instance of13 July 1993, the VBA was granted leave to intervene in Joined Cases T-70/92 andT-71/92 (paragraph 56).

    The contested judgment

31. By the contested judgment, the Court of First Instance allowed the application andannulled the contested decision.

32. First of all, it stated, at paragraph 137 of the contested judgment, that, in thedocument annexed to the Article 6 letter, which formed an integral part of thestatement of the reasons on which the contested decision is based, the Commissionfound that the user fee did not fall within Article 85(1) of the Treaty solely becauseit constituted 'an essential feature of the VBA's distribution system, which was,according to the Commission, 'necessary for attainment of the objectives set outin Article 39 of the Treaty, within the meaning of the first sentence of Article 2(1)of Regulation No 26.

33. For that reason, the Court of First Instance took the view, in paragraph 138, thatit was thus not called upon to adjudicate on the arguments put forward by the VBAat the hearing concerning the non-application of Article 85(1) of the Treaty or thepossible application of the second sentence of Article 2(1) of Regulation No 26, butonly on the legality of the conclusion reached by the Commission in the contesteddecision that the user fee falls within the first sentence of Article 2(1) of RegulationNo 26.

34. In examining the pleas in law alleging that the first sentence of Article 2(1) ofRegulation No 26 was not applicable and that adequate reasons were not given inthat regard, the Court of First Instance examined, in particular, the statement ofreasons on which the contested decision was based and set out a number ofpreliminary considerations.

35. In particular it stated at paragraph 146 that the case before it was concerned withthe rules of an agricultural cooperative which levied a fee on transactions betweentwo categories of third party, namely, independent wholesalers established on theVBA's premises and suppliers wishing to supply to such purchasers either productsfrom other Community agricultural producers or products from non-membercountries which were in free circulation in the Community. Such a fee, accordingto the Court of First Instance, goes beyond the scope of internal relations betweenmembers of the cooperative and, by its nature, constitutes a barrier to tradebetween independent wholesalers and flower growers who are not members of thecooperative concerned.

36. In paragraph 147, the Court of First Instance pointed out that, until then, theCommission had never found that an agreement between the members of acooperative which affects free access by non-members to agricultural producers'channels of distribution was necessary for attainment of the objectives set out inArticle 39 of the Treaty.

37. The Court of First Instance went on to state, in paragraphs 148 to 150 of thecontested judgment, first, that the Commission's practice in earlier decisions hadgenerally been to conclude that agreements not included amongst the meansindicated by the regulation providing for a common organisation in order to attainthe objectives set out in Article 39 were not 'necessary within the meaning of thefirst sentence of Article 2(1) of Regulation No 26, secondly, that the commonorganisation of the market in live trees and other plants, bulbs, roots and the like,cut flowers and ornamental foliage, established by Regulation No 234/68 did notmake provision for agricultural cooperatives to impose such a fee on third partiesand, thirdly, that the Commission had confirmed that it had no knowledge of anyfee similar to the user fee in other agricultural sectors. The Court thus held, inparagraph 151, that it was incumbent on the Commission to set out its reasoningin a particularly explicit manner, since the scope of its decision went appreciablyfurther than that of earlier decisions. It made reference in that respect to Case73/74 Papiers Peints v Commission [1975] ECR 1491, paragraphs 31 to 33.

38. In paragraph 152, the Court of First Instance, referring to Case C-399/93 OudeLuttikhuis and Others v Verenigde Coöperatieve Melkindustrie [1995] ECR I-4515,paragraphs 23 to 28, further held that the obligation to state reasons was all themore stringent because, since it constitutes a derogation from the general rule inArticle 85(1) of the Treaty, Article 2 of Regulation No 26 must be interpretedstrictly.

39. As a further preliminary consideration, the Court of First Instance pointed out, inparagraph 153, that the first sentence of Article 2(1) of Regulation No 26 appliesonly if the agreement between the members of a cooperative is conducive toattainment of all the objectives of Article 39. In support of that finding, it citedCase 71/74 Frubo v Commission [1975] ECR 563, paragraphs 22 to 27, and OudeLuttikhuis, cited above, paragraph 25. Moreover, the Commission's statement ofreasons should have shown how the agreement at issue fulfilled each of theobjectives of Article 39 or, at the very least, how the Commission was able toreconcile those sometimes divergent objectives so as to enable the first sentence ofArticle 2(1) of Regulation No 26 to be applied.

40. It is in the light of those preliminary considerations that the Court of First Instanceexamined the statement of reasons for the contested decision in relation to whatit considered to be the three main arguments put forward to justify the user fee inthe light of the first sentence of Article 2(1) of Regulation No 26, namely: the needto ensure the survival of the VBA; the existence of a quid pro quo for the user fee;and the fact that the user fee has an effect analogous to that of an auction reserveprice.

41. As regards the need to ensure the VBA's survival, the Court of First Instance firstof all acknowledged, at paragraph 156, that the cooperative form adopted by theVBA in principle met the objectives set out in Article 39 of the Treaty. Whiledoubting that the VBA's survival was threatened if there were no user fee, theCourt none the less accepted, in paragraph 159, the hypothesis that, if there wereno such fee, certain present members of the VBA might have an interest in leavingit and that such a development entailed the risk that the very viability of the VBA'ssystem might be undermined.

42. The Court of First Instance considered, however, that it did not automaticallyfollow that the user fee or a system of auction sales necessitating such a fee fulfilledall the conditions of Article 39 of the Treaty, in accordance with the case-law of theCourt of Justice. It found inter alia, in paragraph 161, that the user fee was capableof adversely affecting other Community agricultural producers who were not VBAmembers but whose interests were also covered by Article 39 of the Treaty.

43. In particular, the Court of First Instance took the view, in paragraph 162, that a feelevied by an agricultural cooperative on supplies by non-member producers toindependent buyers normally has the effect of increasing the price of suchtransactions and constitutes at the very least a significant impediment to thefreedom of other agricultural producers to sell through the distribution channels inquestion.

44. In paragraph 163, the Court of First Instance concluded that, even though theVBA's system meets certain of the objectives set out in Article 39 of the Treaty,the user fee is capable of operating in certain respects in a manner inimical tothose objectives, such as those referred to in Article 39(1)(b), (d) and (e), bypreventing producers who are not members of the VBA from increasing theirindividual earnings, impeding the availability of supplies from those other producersand precluding price developments which are favourable from the consumer's pointof view.

45. The Court of First Instance found, moreover, in paragraph 164 that, if for certainproducers direct sales to the purchasers established on its premises were less costlyor more efficient than the VBA's present system, the user fee might, as an essentialmeans, for the VBA, of dissuading its membership, in particular its largestmembers, from leaving the VBA, adversely affect the rational development ofagriculture, increases in the individual earnings of those engaged in agriculture andthe prices at which supplies reach consumers, contrary to the objectives set out inArticle 39(1)(a), (b) and (e) respectively. In the view of the Court of First Instance,such a provision would have the effect of excessively restricting the freedom of amember of an agricultural cooperative to leave it and would be difficult to reconcilewith the objectives set out in Article 39 of the Treaty.

46. Having thus established that the Commission was confronted with a complexsituation, involving the divergent and conflicting interests of smaller and largermembers of the VBA, of other Community agricultural producers and of theintermediaries concerned, the Court held, at paragraph 165, that in suchcircumstances the Commission's statement of reasons could not be confined to thesingle consideration that the VBA's survival in its present form would bejeopardised without the user fee. The statement of reasons should also, accordingto the Court, have taken account of the effects of the user fee on other Communityproducers and the Community interest in maintaining undistorted competition.

47. In paragraphs 166 to 168, the Court of First Instance found that there was nostatement of reasons of that nature; nor were any explicit reasons given to explain,first, how the user fee, or a system of auction sales which cannot survive withoutsuch a fee, met each of the various objectives set out in Article 39(1)(a) to (e) ofthe Treaty or, secondly, how the Commission reconciled those different objectivesin such a way that the user fee can be regarded as 'necessary to their attainmentwithin the meaning of the first sentence of Article 2(1) of Regulation No 26.

48. So far as concerns the question as to whether the user fee was justified by an actualand proportionate quid pro quo, the Court of First Instance also held, in paragraph170, that, in the context of the first sentence of Article 2(1) of Regulation No 26,the Community interest in ensuring the survival of the VBA, important though itmay be, could not be reconciled with the - likewise legitimate - Community interestin ensuring access for other agricultural producers to distribution channels, unlessthe user fee is levied on a proportionate basis, as a quid pro quo for a service orother advantage whose value was such as to justify the amount charged.

49. In fact, in paragraph 171, the Court of First Instance found that, if the user feewere not justified by real value of that kind, or if its amount exceeded the valuethus given, it would have the effect of placing certain agricultural producers at adisadvantage, thereby benefiting existing members of the VBA, and wouldconstitute a disguised restriction of competition, with no sufficient objectivejustification. Since the first sentence of Article 2(1) of Regulation No 26 is to beinterpreted strictly, a fee having such an effect could not be regarded as'necessary for attainment of the objectives set out in Article 39 of the Treaty,within the meaning of that provision.

50. In paragraphs 172 to 175 the Court of First Instance stated that the concentrationof supply and demand on the VBA's premises was therefore the only advantagementioned as a quid pro quo for the user fee levied by it.

51. The Court of First Instance concluded, in paragraph 178, that the statement of thereasons for the contested decision must enable the parties and, as the case may be,the Court itself to verify that the fee in question does not exceed properremuneration for the economic advantage invoked.

52. The Court of First Instance observed, in paragraph 179, that the 'economicadvantage represented by the concentration of demand was described in thecontested decision only in very general terms, without specifying how the value ofthat advantage, and the amount of the resultant user fee, could be calculated andexpressed in actual figures.

53. In paragraphs 180 and 181 the Court of First Instance rejected the justification thatthe amount of the user fee approximately corresponded to the auction fee, whichestablished equality of treatment as between the suppliers concerned in thatalthough those selling by auction enjoyed all the services of the VBA, they alsoaccepted a supply obligation vis-à-vis the VBA to which the other suppliers werenot subject.

54. In the absence of figures in the contested decision for the calculation of the variouscosts connected with use by the various suppliers of the VBA's different servicesand facilities, the Court of First Instance found that it was not in a position toverify whether the user fee exceeded proper remuneration for that advantage orwhether the amount levied was necessary for attainment of the objectives set outin Article 39 of the Treaty.

55. As to the reasoning in the contested decision to the effect that the user fee wasanalogous to that of an auction reserve price, the Court of First Instance observedin paragraph 185 that that consideration did not constitute a sufficient statementof reasons to establish that the user fee was necessary for attainment of theobjectives set out in Article 39, within the meaning of the first sentence of Article2(1) of Regulation No 26.

56. Thus, the Court of First Instance found, in paragraph 186, that the contesteddecision contained no statement of reasons to explain the merits of the approachaccording to which the protection of the minimum prices of an agriculturalcooperative organised on the basis of auction sales takes precedence over theinterest of other agricultural producers who are not members of the cooperativein selling their products freely to independent dealers. Nor did the contesteddecision, according to the Court of First Instance, contain any statement of reasonsto show that all the objectives of Article 39 of the Treaty were thus fulfilled.

57. From all the foregoing considerations the Court of First Instance concluded atparagraph 187 that the plea in law as to the inadequacy of the statement of reasonson which the contested decision was based, as regards the application of the firstsentence of Article 2(1) of Regulation No 26, must be held to be well founded.

58. The Court also upheld the plea alleging unequal treatment as between outsidesuppliers and holders of trade agreements as regards the rate of the user fee andthe rate laid down by the trade agreements.

59. In that connection, the Court found in paragraph 192 that the trade agreements didnot provide for specific supply obligations, which justified a rate lower than that ofthe user fee. The only 'obligation consisted in the fact that, if the holder of atrade agreement did not sell the contractual products to the VBA's satisfaction, theagreement, which was for a term of one year, was simply not renewed.

60. The Court of First Instance concluded, in paragraph 194, that the contesteddecision did not contain a sufficient statement of reasons to enable it to verify themerits of the Commission's finding that the difference of treatment as between thetwo groups of suppliers concerned was objectively justified.

61. In those circumstances, the Court of First Instance annulled the contested decisionwithout finding it necessary to consider the other pleas put forward by Florimex orthe VGB.

    The application for leave to submit written observations following the AdvocateGeneral's Opinion

62. By letter of 2 December 1999 addressed to the Registry of the Court of Justice, theVBA applied for leave to submit written observations after the Advocate Generalhad delivered his Opinion on 8 July 1999, which had only reached it a few daysearlier. It relies in that respect on the case-law of the European Court of HumanRights concerning the scope of Article 6(1) of the Convention for the Protectionof Human Rights and Fundamental Freedoms, in particular on the judgment of 20February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996I, p. 224).

63. For the reasons given by the Court of Justice in its order of 4 February 2000 inCase C-17/98 Emesa Sugar [2000] ECR I-0000, it is not appropriate to grant thatapplication.

    The appeal

64. In support of its appeal, the VBA puts forward eight grounds of appeal.

65. The first, fourth, fifth and sixth grounds of appeal concern both the thoroughnessof the review carried out by the Court of First Instance of the Commission'sdecision and the accuracy of its assessment. The second and third pleas relate tothe delimitation, by the Court of First Instance, of the subject-matter of the dispute.The seventh and eighth grounds of appeal concern other specific criticisms whichthe Court of First Instance made in respect of the contested decision.

    The first, fourth, fifth and sixth grounds of appeal

66. By its first ground of appeal, the VBA claims that the Court of First Instancecommitted an error in law in applying unduly stringent requirements as to thestatement of the reasons on which the contested decision was based. In doing so,the Court of First Instance disregarded the discretion which the Commission enjoysunder Article 39 of the Treaty in conjunction with Article 2(1) of Regulation No26.

67. The VBA observes in that respect that the five objectives of the commonagricultural policy, set out in Article 39(1) of the Treaty, could prove to be inimicaland run counter to competition law. In that context, Article 2(1) of Regulation No26 must, according to the VBA, be understood as giving precedence to theobjectives set out in Article 39 of the Treaty. The VBA refers, in that regard, toCase C-311/94 Ijssel-Vliet [1996] ECR I-5023, paragraph 31.

68. The VBA maintains that the extent of the obligation to state reasons variesaccording to the measure in question and that, in a decision rejecting a complaintin matters of competition, the Commission is not required to take a position on allthe arguments put to it by the complainants but may instead restrict itself to settingout the facts and legal arguments which are of central importance in the schemeof the decision.

69. As regards the thoroughness of the review of the legality of the contested decision,the VBA submits that the Court of First Instance should have restricted itself toverifying whether the Commission had committed a manifest error of assessment.According to the VBA, the Court of First Instance, while purporting to analyse theaccount of the facts set out in the decision, undertook a very detailed examinationof the accuracy of the assessment of the merits carried out by the Commission. TheCourt of First Instance thus infringed the second paragraph of Article 173 of theEC Treaty (now, after amendment, the second paragraph of Article 230 EC).

70. The Court of First Instance, moreover, failed to take account of the powers of theCommission, which had considered that all the VBA's rules fell within the scopeof Article 85(1) of the Treaty but satisfied the conditions laid down in Article 2(1)of Regulation No 26, when it held that the user fee as such fell within the scope ofArticle 85(1) of the Treaty and that it was therefore necessary to examine whetherthe conditions laid down in Article 2(1) of Regulation No 26 were fulfilled withrespect to that fee.

71. Furthermore, the VBA claims that, according to the judgment of the Court of FirstInstance in Case T-24/90 Automec v Commission [1992] ECR II-2223, theCommission is not required to make a finding of infringement and may reject acomplaint for lack of Community interest. If in cases such as the present one theCommission were required to prove that the rules of a cooperative society werenecessary for the attainment of each of the objectives of the common agriculturalpolicy, it would have to reject many more complaints on the basis of that case-law.The VBA doubts whether such a tendency is in conformity with the generalinterest.

72. In response to the first ground of appeal, Florimex and the VGB submit that, inthe context of Regulation No 26, the Commission does not have any discretionarypower, but may only ascertain whether or not it is satisfied that the conditions laiddown in Article 2(1) of that regulation have been met. Since that provisionconstitutes an exception to Article 85(1) of the Treaty, which must be interpretedstrictly, the Court of First Instance could not, according to Florimex and the VGB,be satisfied with a marginal review of the contested decision. Accordingly, theobligation to provide a statement of reasons had to be strictly observed.

73. According to Florimex and the VGB, the Court of First Instance did indeed drawa distinction between the requirement to state reasons and the assessment of themerits. Moreover, the view according to which the user fee was covered, as such,by the prohibition laid down in Article 85(1) of the Treaty was not made by theCourt itself but fully expounded by Florimex and the VGB during the proceedings.

74. The Commission states that the present case raises an essentially institutional issue,concerning the distribution of competences between itself and the Court of FirstInstance, as well as the scope and thoroughness of review by the Court of decisionsrejecting complaints lodged by individuals against other individuals. According tothe Commission, such review must only be marginal. Accordingly, it fully endorsesthe first ground of appeal put forward by the VBA.

75. By its fourth ground of appeal, the VBA submits that the Court of First Instanceerred in law in its finding that the contested decision was based on aninterpretation of the first sentence of Article 2(1) of Regulation No 26 that wasbroader than the interpretation the Commission had given it in earlier decisions.

76. The VBA claims that it is wrong to consider that any restriction agreed upon oradopted in the context of an agricultural cooperative must of itself be necessary forthe attainment of the objectives set out in Article 39 of the Treaty. On the contrary,if such a cooperative contributes to the attainment of the objectives referred to inArticle 39 of the Treaty and if, in view of its importance, the user fee proves to beessential and proportionate in that context, it is no longer necessary, in the view ofthe VBA, to review the user fee in the light of the objectives set out in Article 39of the Treaty.

77. The VBA challenges, moreover, the reasoning of the Court of First Instance to theeffect that the Commission concluded that the agreements which are not includedamong the range of means provided for by rules establishing a commonorganisation for the attainment of the objectives referred to in Article 39 are notnecessary. The VBA claims that not every common organisation of the market hasa complete and exhaustive set of rules. In the present case, the scope of RegulationNo 234/68 is more restricted than the common organisation of the markets in mostother agricultural sectors.

78. Florimex and the VGB submit, on the other hand, that the disposal of agriculturalproducts is affected by the imposition of a fee on dealings between third partieswhich are not members of the cooperative and purchasers. They contend, inreliance on paragraphs 12 and 13 of the judgment in Oude Luttikhuis, cited above,that the fact that the cooperative as such is not regarded as a practice restrictiveof competition does not mean that the provisions in the statutes of that cooperativeautomatically fall outside the prohibition in Article 85(1) of the Treaty.

79. The Commission argues that the preliminary considerations put forward by theCourt of First Instance are based on a premiss which is wrong in three respects:first, it is not correct to describe the user fee as a fee on transactions between thirdparties. That fee is, rather, levied in exchange for the opportunity offered toproducers who are not members of the cooperative to deliver and to sell flowerson the VBA's premises. Next, it is also inaccurate to state that the user fee as suchfalls within the scope of the prohibition laid down in Article 85(1) of the Treaty,since such a view does not follow, in any event, from the contested decision. Finally,it is erroneous to assume that the rules relating to the user fee cannot be justifiedunder the first sentence of Article 2(1) of Regulation No 26 unless it contributesto the attainment of each of the objectives set out in Article 39 of the Treaty, witha separate statement of reasons in respect of each objective.

80. By its fifth ground of appeal, the VBA rejects the conclusion arrived at by theCourt of First Instance that the account of the facts set out in the contendeddecision, so far as concerns the VBA's survival in its current form, is not sufficient,by itself, to demonstrate that the user fee was necessary for attainment of theobjectives set out in Article 39 of the Treaty.

81. The Court of First Instance erred in its examination of the effects of the user feeby observing that it was capable of adversely affecting other Community agriculturalproducers who were not VBA members and that it would have the effect ofincreasing the price of transactions between such producers and independentbuyers. That assessment of the facts is not at all borne out by the documents beforethe Court. The conclusion that the user fee prevented producers who were notmembers of the VBA from increasing their individual earnings is thus alsoincorrect.

82. The VBA criticises, furthermore, the conclusion arrived at by the Court of FirstInstance that the Commission should have provided a more detailed statement ofreasons as regards whether the user fee constituted a means of dissuading membersof the VBA from leaving it and could have adverse effects on certain of theobjectives set out in Article 39 of the Treaty. That conclusion is not compatiblewith the premiss of the reasoning of the Court of First Instance, which admits thehypothesis that the user fee was necessary in order to prevent the auctions fromlosing their usefulness.

83. Florimex and the VGB claim that the Court of First Instance was right inexamining the question whether the specific rules satisfied all the conditions inArticle 39 of the Treaty, even if the cooperative as such met in principle theobjectives set out in that provision. As for the restrictive effects on competitionexerted by the rules on the user fee, Florimex and the VGB maintain that thatmatter was thoroughly dealt with before the Court of First Instance.

84. The Commission endorses the arguments of the VBA and states that if it isaccepted that the cooperative society meets the objectives set out in Article 39, thesame must necessarily be true as regards the system of auction sales, which requiresa user fee.

85. So far as concerns the restrictive effects allegedly exerted over competition by theuser fee, the Commission acknowledges that what is involved is an assessment bythe Court of First Instance of the facts, but it maintains that findings of fact thatare not borne out by the documents before the Court of First Instance and whichare clearly wrong cannot avoid censure by the Court of Justice.

86. Moreover, the finding that the user fee prevented producers who are not membersof the VBA from increasing their individual earnings is not relevant to the presentcase, since the applicants at first instance are wholesalers. Likewise, theCommission maintains that the considerations regarding the interests of the otherCommunity agricultural producers and on the Community interest in maintainingundistorted competition as well as the rules for leaving the cooperative which areapplicable to its members bear no relation to the subject-matter of the complaints.

87. By its sixth ground of appeal, the VBA alleges that the Court of First Instancecommitted an error in law by declaring that a fee charged in the interest of theVBA's survival could not be accepted unless it be levied, on a proportionate basis,as a quid pro quo for a service or other advantage.

88. The VBA criticises that reasoning, maintaining that any undertaking may,ordinarily, define the conditions for access to its site or premises. None of thepossible derogations to that rule requires to be applied in the present case.

89. It is moreover incorrect to say that the outside suppliers on whom the user fee waslevied did not derive a benefit from the numerous services offered by the VBA.

90. In any event, according to the VBA, the Court of First Instance committed an errorin law by requiring that the statement of the reasons for the contested decision besuch as to enable it to verify that the fee at issue was appropriate remunerationand that its amount did not exceed the value of the economic advantage fromwhich the outside direct suppliers benefited.

91. Florimex and the VGB contend, on the other hand, that it was right to regard theuser fee as a disguised restriction on competition, inasmuch as it prevented thirdparties from obtaining access to the market. In order for it to fall within the scopeof the derogation provided for in Article 2(1) of Regulation No 26, it had thereforeto be justified by a quid pro quo proportionate to its value.

92. The Commission, following, in this respect, the VBA, maintains that therequirement that the user fee be justified by an actual and equitable quid pro quohas no legal basis. To the extent that it criticises the absence of specific figures andcalculations relating to the amount of the user fee in the statement of the reasonsfor contested decision, the reasoning of the Court of First Instance does notconcern the statement of reasons, as such, but rather the assessment of the factson which it is based.

93. So far as concerns those four grounds of appeal, which it is appropriate to examinetogether, the Court points out, first, that it is settled case-law that the statement ofreasons required by Article 190 of the EC Treaty (now Article 253 EC) must beappropriate to the act at issue and must disclose in a clear and unequivocal fashionthe reasoning followed by the institution which adopted the measure in question insuch a way as to enable the persons concerned to ascertain the reasons for themeasure and to enable the competent Community Court to exercise its power ofreview. The requirement to state reasons must be evaluated according to thecircumstances of each case, in particular the content of the measure in question,the nature of the reasons given and the interest which the addressees of themeasure, or other parties to whom it is of direct and individual concern, may havein obtaining explanations. It is not necessary for the reasoning to go into all therelevant facts and points of law, since the question whether the statement ofreasons meets the requirements of Article 190 of the Treaty must be assessed withregard not only to its wording but also to its context and to all the legal rulesgoverning the matter in question (see, in particular, Case C-367/95 P Commissionv Sytraval and Brink's France [1998] ECR I-1719, paragraph 63).

94. So far as concerns a Commission decision rejecting a complaint in a competitionmatter on the basis of the first sentence of Article 2(1) of Regulation No 26, itmust next be observed that the Court of First Instance was right to require, on thestrength of the judgments in Frubo v Commission and Oude Luttikhuis, cited above,that the statement of reasons on which the decision is based must show how theagreement between the members of a cooperative satisfies each of the objectivesof Article 39 or how the Commission was able to reconcile those objectives so asto enable that derogating provision, which must be interpreted strictly, to beapplied.

95. Furthermore, the precedence which the common agricultural policy takes over theobjectives of the Treaty in the field of competition, relied upon by the applicant,cannot exonerate the Commission from carrying out an examination aimed atascertaining whether the objectives set out in Article 39 of the Treaty are actuallyattained by the said agreement.

96. Finally, the applicant's reference to the judgment of the Court of First Instance inAutomec v Commission is entirely irrelevant. In paragraph 80 of that judgment, theCourt of First Instance found that, where the Commission has decided to close thefile on a complaint without carrying out an investigation, the review of legalitywhich the Court of First Instance must undertake focuses on the question whetheror not the contested decision is based on materially incorrect facts or is vitiated byan error of law, a manifest error of appraisal or misuse of powers. In the light ofthose principles, the Court of First Instance then examined whether theCommission had given a proper statement of reasons for its decision in the light of,in particular, the Community interest in the case as the priority criterion.

97. It follows that the statement of the reasons for a decision rejecting a complaint forlack of Community interest in it is also not immune to judicial review.

98. Moreover, it was not on reasoning of that kind that the Commission relied in orderto reject the complaint before it, but rather on reasoning based on the applicabilityof the first sentence of Article 2(1) of Regulation No 26. It follows that the Courtof First Instance committed no error in law in examining whether that reasoningwas consistent and complete.

99. It follows from the foregoing considerations that the Commission was required tostate reasons for its decision by showing how the agreements concluded within theVBA were necessary for the attainment of each of the objectives set out inArticle 39 of the Treaty or, in any event, how those objectives could be reconciled.It is therefore not necessary to examine on their merits the grounds of thejudgment of the Court of First Instance concerning the impact of the measuresintroduced by Regulation No 234/68 or the scope of the Commission's decisionwhich exceeded, according to the Court of First Instance, that of the earlierdecisions.

100. Those considerations did not have in the present case any impact on the extent ofthe obligation to state reasons for the contested decision, which the Court of FirstInstance correctly assessed in the light of the first sentence of Article 2(1) ofRegulation No 26.

101. As regards the statement of the reasons for the contested decision, in so far as itrelates to the VBA's survival, the complaint put forward by the applicant and theCommission that the Court of First Instance erred in law by examining the user feein isolation is unfounded.

102. While it did not make specific findings of fact, the Court of First Instance didhowever set out a number of general considerations concerning the effects whichthe user fee was capable of having on other Community agricultural producers whowere not members of the VBA.

103. In light of the effects which the user fee was capable of producing in respect of anumber of operators whose interests number among those mentioned in Article 39of the Treaty, the Court of First Instance could properly take the view that astatement of reasons justifying such a fee on the ground of its beneficial effects onlywith respect to the members of the VBA was inadequate.

104. If the provisions in the statutes of a cooperative governing relations between itselfand its members do not automatically escape the prohibition laid down in Article85(1) of the Treaty (Oude Luttikhuis, cited above, paragraph 13), the same mustbe true a fortiori of provisions which produce effects vis-à-vis third parties whichhave not subscribed to them.

105. It follows, moreover, from the judgment in Oude Luttikhuis, cited above, that, asthe appellant has stated, examination of the restrictions established by acooperative must not solely relate to their effects, taken as a whole.

106. Moreover, contrary to what the Commission maintains, the considerations regardingthe interests of the other Community agricultural producers and the Communityinterest in maintaining undistorted competition clearly relate to the subject-matterof the complaints. Whether the first sentence of Article 2(1) of Regulation No 26,which has direct consequences for the situation of the complainants, appliesdepends specifically on those interests being taken into account.

107. It follows from the foregoing that the Court of First Instance was right in holdingthat the statement of the reasons for the contested decision, in so far as it relatesto the VBA's survival, was inadequate for the purpose of establishing that the userfee was necessary for the attainment of the objectives mentioned in Article 39 ofthe Treaty.

108. As regards the question whether the user fee had to be justified by an actual andproportionate quid pro quo, the finding of the Court of First Instance that theconcentration of supply and demand on the VBA's premises is the only economicadvantage mentioned as a quid pro quo in return for such a fee is a finding of factwhich cannot be challenged on appeal.

109. Moreover, it should be observed that in the paragraph of the contested decisionwhere that question was considered the point was whether the VBA was obtaining,by means of the user fee, an unjustified advantage the effect of which was torestrict competition. The Commission came to the view in that respect that thevarious user fees could not be criticised where they guaranteed equal treatment ofall supplies with a view to sale by auction and of direct supplies to dealersestablished on the VBA's premises.

110. However, even though, in the contested judgment, the Court of First Instance wentfurther than the Commission in explaining how the user fee could constitute adisguised restriction on competition, it restricted itself, in the further course of itsreasoning, to following the analysis of the Commission, according to which thevarious methods of supply had to be treated equally.

111. In that regard, the Court of First Instance did not regard as adequate the reasonthat the suppliers selling by auction and the outside suppliers paid approximatelythe same level of fee. Given that the concentration of supply and demand on theVBA's premises was the only advantage from which the outside suppliers benefited,the Court of First Instance held that equality of treatment of all suppliers was notestablished.

112. It must be observed that the contested decision clearly states the reasons for whichthe Commission considered that suppliers selling by auction and outside supplierson whom the user fee was levied were treated equally.

113. It follows that, in that respect, a sufficient statement of reasons was given for thecontested decision.

114. In that connection, it must be remembered that infringement of Article 190 of theTreaty and manifest error of assessment are two distinct pleas, each of which maybe raised in proceedings under Article 173 of the Treaty. The first, alleging absenceof reasons or inadequacy of the reasons stated, goes to an issue of infringement ofessential procedural requirements within the meaning of that article and, involvinga matter of public policy, must be raised by the Community judicature of its ownmotion. By contrast, the second, which goes to the substantive legality of thecontested decision, is concerned with infringement of a rule of law relating to theapplication of the Treaty within the meaning of Article 173 itself, and can beexamined by the Community judicature only if it is raised by the applicant (seeCommission v Sytraval and Brink's France, cited above, paragraph 67).

115. It is clear from the contested judgment that the Court of First Instance did in factcriticise the Commission for having committed a manifest error of assessment.Thus, it did not draw the necessary distinction between the requirement to statereasons and the substantive legality of the contested decision.

116. It must nevertheless be pointed out that that error in law is of no relevance to theoutcome of the case.

117. The contested decision was in actual fact vitiated by a manifest error of assessmentand that error was raised by the defendants at first instance.

118. First, the Commission committed a manifest error of assessment in considering thatit sufficed to compare the rates of the fees to which the various suppliers weresubject in order to satisfy itself that equal treatment was guaranteed as betweenthem. Such an approach does not take account of the fact that those suppliers whowere not members of the VBA benefited from only one advantage deriving fromthe concentration of supply and demand, whereas the members of the VBA couldcall on numerous other services.

119. Secondly, as is clear from paragraphs 108, 113 and 114 of the contested judgment,Florimex and the VGB criticised the Commission for having committed an errorof assessment so far as concerns the quid pro quo for the user fee.

120. It follows that, even though the Court of First Instance should have dismissed thepleas alleging inadequacy of the reasons stated for the contested decision, it wasbound to uphold the plea relating to manifest error of assessment, which is wellfounded.

121. It should be borne in mind that it is settled case-law that if the grounds of ajudgment of the Court of First Instance reveal an infringement of Community lawbut the operative part appears well founded on other legal grounds, the appealmust be dismissed (see Case C-30/91 P Lestelle v Commission [1992] ECR I-3755,paragraph 28, and Case C-294/95 P Ojha v Commission [1996] ECR I-5863,paragraph 52).

122. It follows that the first, fourth, fifth and sixth grounds of appeal must be dismissed.

     The second and third grounds of appeal

123. By its second and third grounds of appeal, the VBA challenges paragraphs 137 and138 of the contested judgment, in which the Court of First Instance held that it wasnot called upon to adjudicate on the arguments put forward by the VBAconcerning the non-application of Article 85(1) of the Treaty or the possibleapplication of the second sentence of Article 2(1) of Regulation No 26, but only onthe legality of the conclusion reached by the Commission in the contested decisionof 2 July 1992 that the user fee falls within the first sentence of Article 2(1) ofRegulation No 26.

124. First, the VBA submits that the Commission did not restrict its assessment to thefirst sentence of Article 2(1) of Regulation No 26. In the document appended tothe Article 6 letter, referred to in paragraph 41 of the contested judgment, theCommission stated that the user fee was an essential feature of the VBAdistribution system, which was a condition for the application of the secondsentence of Article 2(1) of Regulation No 26. The VBA contends, accordingly, thatrejection of the complaint implicitly entails the application of that provision.

125. Secondly, the VBA submits that the Court of First Instance should have verifiedwhether the Commission had taken account of the fact that Communitycompetition law does not preclude a cooperative society from applying andmaintaining in force restrictions which are necessary to ensure that it functionsproperly and maintains its contractual power in relation to producers (Case C-250/92 DLG [1994] ECR I-5641, paragraphs 34 and 35). According to the judgmentin Oude Luttikhuis, cited above, such restrictions do not fall within the scope ofArticle 85(1) of the Treaty.

126. In that connection, it need merely be observed that the Commission based thecontested decision on the single ground that the user fee was an essential featureof the VBA distribution system, which was, according to the Commission, necessaryto the attainment of the objectives set out in Article 39 of the Treaty, within themeaning of the first sentence of Article 2(1) of Regulation No 26, and that it is theapplication of that latter provision which was the subject-matter of the actionbrought by Florimex and the VGB before the Court of First Instance. The Courtof First Instance was therefore right not to adjudicate on the arguments putforward by the VBA concerning the non-application of Article 85(1) of the Treatyor the possible application of the second sentence of Article 2(1) of Regulation No26.

127. The second and third grounds of appeal must therefore be dismissed.

     The seventh ground of appeal

128. By its seventh ground of appeal, the VBA submits that the Court of First Instancewrongly held, in paragraphs 184 to 186 of the contested judgment, that theCommission also based its rejection of Florimex's and the VGB's complaints on theground that the user fee had an effect analogous to that of an auction reserveprice, and consequently found that such a consideration did not constitute asufficient statement of reasons.

129. In that regard, the VBA submits that the passage in question of the documentappended to the Article 6 letter has no significance of its own and that the Courtof First Instance was not entitled to refer to it in order to annul the contesteddecision.

130. The VBA puts forward a number of arguments to show that the user fee cannothave the same object or the same effect as a set of rules establishing a minimumprice.

131. It should be observed that the VBA itself maintains, correctly, that that part of thestatement of the reasons for the contested decision has no significance of its own.Even though the Court of First Instance expressly referred to that ground, the saiddecision was based on other factors and vitiated in their respect, as has alreadybeen held in this judgment, by defects which justify its annulment.

132. It follows that the complaint raised by the VBA against that part of the reasoningof the Court of First Instance is of no consequence.

     The eighth ground of appeal

133. By its eighth ground of appeal, the VBA submits that the Court of First Instanceerred in law by requiring that the charges levied by the VBA on holders of tradeagreements be equal to the charge levied on direct outside suppliers, unless it couldbe proved that there is a difference between the two types of supply.

134. Article 85 does not, according to the VBA, prohibit it from distinguishing betweenthe various means of supply when determining fees and, by virtue of its freedomof contract, it may choose the undertakings with which it intends to enter into tradeagreements. Article 85(1) of the Treaty is not applicable to agreements which anundertaking concludes with various other undertakings and in which different ratesare applied. In the present case, VBA decided unilaterally to conclude tradeagreements and to levy a user fee on direct supplies. On the other hand, it did notgive an undertaking to third parties that it would apply and maintain different rates.

135. The Commission refutes the finding of the Court of First Instance that the tradeagreements do not provide for specific supply obligations. Such contracts, on thecontrary, specify the variety of flowers to which they apply and it is only in respectof the supply of such products that a trader benefits from the reduced rate of 3%.A trade agreement is only offered to a trader willing to supply the requisitevarieties of flowers.

136. As regards the reasons given for the contested decision in that respect, theCommission points out that it is not required to examine, in a decision rejecting acomplaint, all the assertions made by the complainant.

137. In that connection, it must be observed that, in paragraphs 191 to 194 of thecontested judgment, the Court of First Instance, like the Commission, consideredthat equality of treatment had to be guaranteed as between the various suppliers.It examined the only argument which the Commission and the VBA put forwardin order to justify the difference in the rate of the user fee, namely the existenceof supply obligations imposed on the holders of trade agreements. The Court ofFirst Instance found that such specific supply obligations did not exist. Such afinding is a finding of fact.

138. Under Articles 168a of the EC Treaty (now Article 225 EC), and 51 of the ECStatute of the Court of Justice, however, an appeal may be based only on groundsrelating to the infringement of rules of law, to the exclusion of any appraisal of thefacts (see, in particular, Case C-8/95 P New Holland Ford v Commission [1998]ECR I-3175, paragraph 25).

139. The Court of First Instance alone has jurisdiction, first, to make a finding as to thefacts, save where the substantive inaccuracy of such findings is apparent from thedocuments submitted to it and, second, to assess those facts (New Holland Ford vCommission, cited above, paragraph 25). Furthermore, such inaccuracy must beobvious from the documents before the Court without its being necessary toundertake a fresh assessment of the facts (New Holland Ford v Commission, citedabove, paragraph 72).

140. In the present case, the arguments put forward in support of the view that thetrade agreements provided for specific supply obligations, arguments whichmoreover are essentially identical to those submitted before the Court of FirstInstance, do not reveal the existence of a manifest substantive error in the findingsof fact made by the Court of First Instance in that connection.

141. It is, however, true that the Court of First Instance considered that the contesteddecision did not contain a sufficient statement of reasons to enable it to verify themerits of the Commission's finding that the difference of treatment between thetwo groups of suppliers concerned was objectively justified, while at the same timeit criticised the Commission for having committed an error of assessment on thatpoint.

142. None the less, on the same grounds as those set out in paragraphs 115 to 119 ofthe present judgment, that error in law remains irrelevant to the outcome of thecase.

143. First, the absence of any supply obligation found by the Court of First Instance sofar as concerns the holders of trade agreements shows that the Commissioncommitted a manifest error of assessment in considering (see paragraph 23 of thepresent judgment) that there was equality of treatment between those persons andthe other suppliers on whom the user fee was levied.

144. Secondly, it may be seen from paragraph 188 of the contested judgment thatFlorimex and the VGB had specifically argued before the Court of First Instancethat the difference between the rate provided for by the trade agreements and therate of the user fee was discriminatory.

145. It follows that the eighth ground of appeal must be dismissed.

146. It is clear from all the foregoing considerations that the appeal must be dismissedin its entirety.

     Costs

147. Under the first paragraph of Article 122 of the Rules of Procedure, where theappeal is unfounded or where the appeal is well founded and the Court of Justiceitself gave final judgment in the case, the Court is to make a decision as to costs.Under Article 69(2) of the Rules of Procedure, which apply to appeal proceedingsby virtue of Article 118, the unsuccessful party is to be ordered to pay the costs ifthey are applied for in the successful party's pleadings. Since Florimex and theVGB have requested that the VBA be ordered to pay the costs and the latter hasbeen unsuccessful, it must be ordered to bear its own costs and pay the costsincurred by Florimex and the VGB. The Commission, which has also beenunsuccessful, must bear its own costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Coöperatieve Vereniging De Verenigde Bloemenveilingen AalsmeerBA (VBA) to bear its own costs and to pay those of Florimex BV andVereniging van Groothandelaren in Bloemkwekerijprodukten (VGB) relatingto the proceedings before the Court of Justice;

3. Orders the Commission to bear its own costs.

Moitinho de AlmeidaSevón Puissochet JannWathelet

Delivered in open court in Luxembourg on 30 March 2000.

R. Grass D.A.O. Edward

Registrar President of the Fifth Chamber

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1: Language of the case: Dutch.