JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
21 March 2002 (1) (Competition - Beer supply agreements - Individual exemption - Article 81(3) EC)
In Case T-231/99,
Colin Joynson, residing in Manchester (United Kingdom), represented by B. Bedford, Barrister, instructed by Messrs Ferdinand Kelly, Solicitors,
applicant,
v
Commission of the European Communities, represented by K. Wiedner, acting as Agent, assisted by N. Khan, Barrister, with an address for service in Luxembourg,
defendant,
supported by
Bass plc, established in London (United Kingdom), represented by M. Farquharson, J. Block and N. Green, Solicitors, with an address for service in Luxembourg,
intervener,
APPLICATION for annulment of Commission Decision 1999/473/EC of 16 June 1999 relating to a proceeding pursuant to Article 81 [EC] (Case IV/36.081/F3 - Bass) (OJ 1999 L 186, p. 1),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: J. Azizi, President, K. Lenaerts and M. Jaeger, Judges,
Registrar: J. Palacio González, Administrator,
having regard to the written procedure and further to the hearing on 26 April 2001,
gives the following
Judgment
Facts of the dispute
1.
Bass PLC (Bass) is a company quoted on the London Stock Exchange. The Bass group is an international group operating in the field of hotels, leisure and the manufacture of drinks, especially beer, in Europe, the United States and other countries.
2.
In June 1996 the Bass group owned some 4 182 public houses in the United Kingdom, of which 2 736 were managed by an employee of the group and 1 446 leased. In March 1997 the Bass group's leased estate comprised 1 430 pubs, including 106 in Scotland. Of those 1 430 pubs, 1 186 were let on standard leases, 178 on tenancies at will, and 42 on short-term foundation agreements, and the remaining 24 were let under other agreements or were unoccupied.
3.
During 1998 the Bass group progressively sold a large part of its leased estate, retaining only about 20 pubs.
4.
The contractual relations between the Bass group and most of its tied lessees were governed by a standard lease, under which one of the companies in the Bass group made a licensed house available to the lessee, with the fixtures and fittings needed to operate it, in return for the payment of rent and an undertaking to buy the beers specified in the lease from Bass or a supplier designated by Bass.
5.
The standard lease thus contained an exclusive purchasing obligation and a non-competition obligation.
6.
The exclusive purchasing obligation required the tied tenant to buy exclusively from the other party to the agreement or a person designated by it the beers specified in the agreement, although with the possibility of purchasing beer from another brewery under the national provision generally known as the guest beer provision.
7.
The non-competition obligation prohibited the tied tenant from selling or offering for sale in his establishment or bringing into the establishment for the purpose of sale any beer of the same type as a specified beer but not supplied by the other party to the contract or a person designated by it, except for a beer packaged in bottles, cans or other small containers or a draught beer if that beer was customarily sold in draught form or was necessary to satisfy a sufficient demand from the pub's customers.
The administrative procedure
8.
In February 1995 the Office of Fair Trading (OFT) opened an inquiry, at the request of the Commission, into the wholesale pricing policies of the United Kingdom breweries. Following that inquiry, which related to Bass among others, the OFT in May 1995 adopted a report Inquiry into breweries' wholesale pricing policy in the United Kingdom and issued a press release on that report on 16 May 1995.
9.
On 11 June 1996, Bass Holdings Ltd and Bass Lease Company Ltd, wholly-owned subsidiaries of Bass, notified pursuant to Article 4 of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), the standard lease for a public house with an on-licence in England and Wales. They sought negative clearance or, failing that, confirmation by the Commission that the agreements could benefit from the application of Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article [81(3)] of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5), as amended by Commission Regulation (EC) No 1582/97 of 30 July 1997 (OJ 1997 L 214, p. 27), or from an individual exemption under Article 81(3) EC, with retroactive effect from the date of conclusion of the agreements. Regulation No 1984/83 contains in Title II special provisions relating to beer supply agreements.
10.
The Commission supplemented the information in the notification by carrying out a verification at Bass's premises in accordance with Article 14(2) of Regulation No 17, and by sending several requests for information. The Commission sought in particular confirmation of the data communicated by Bass.
11.
Following publication in the Official Journal of the European Communities, in accordance with Article 19(3) of Regulation No 17, of a notice in which it announced its intention to grant Bass an exemption with retroactive effect pursuant to Article 81(3) EC, the Commission received 20 responses from interested third parties. Sixteen of them followed a model drawn up by an action group of tied lessees. The Commission also received observations from three other tied lessees and from an accountant.
12.
In those circumstances, the Commission adopted Decision 1999/473/EC of 16 June 1999 relating to a proceeding pursuant to Article 81 [EC] (Case IV/36.081/F3 - Bass) (OJ 1999 L 186, p. 1, the contested decision). It decided that the standard lease notified fell within Article 81(1) EC, but declared that provision inapplicable on the basis of Article 81(3) EC, with effect from 1 March 1991 to 31 December 2002.
13.
Mr Joynson operated a public house in Bolton (United Kingdom) belonging to Bass Holdings from July 1992 under a standard lease. The agreement ended when Bass Holdings sold the pub in February 1998. During the administrative procedure, Mr Joynson submitted observations in response to the Commission's notice pursuant to Article 19(3) of Regulation No 17.
Procedure and forms of order sought by the parties
14.
Those were the circumstances in which the applicant on 12 October 1999 brought the present action.
15.
By order of 13 April 2000 the President of the Third Chamber of the Court of First Instance granted the applicant legal aid.
16.
By order of 4 July 2000 the President of the Third Chamber of the Court of First Instance granted Bass leave to intervene in support of the form of order sought by the Commission.
17.
Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure. The parties presented argument and answered the Court's oral questions at the hearing which took place in public on 26 April 2001.
18.
The applicant claims that the Court should:
- annul the contested decision;
- order the Commission and Bass to pay the costs.
19.
The Commission, supported by Bass, contends that the Court should:
- dismiss the application as unfounded;
- order the applicant to pay the costs.
Admissibility
20.
The Commission questions the applicant's interest in bringing proceedings, and Bass questions his capacity to bring proceedings.
1. Interest in bringing proceedings
Arguments of the parties
21.
The Commission observes that the applicant ceased to be a Bass tied lessee in 1998. It notes that the applicant has not shown that he has brought proceedings in the English courts against Bass for damages for the inclusion in the lease of an unlawful exclusive purchasing obligation. It is therefore uncertain as to the applicant's interest in bringing proceedings.
22.
The applicant considers that he can claim a sufficient interest in bringing proceedings.
Findings of the Court
23.
A natural or legal person must show that he has a vested and present interest in the annulment of the contested act (Case T-138/89 NBV and NVB v Commission [1992] ECR II-2181, paragraph 33).
24.
The supporting documents produced by the applicant during the procedure and the information obtained from him and the intervener show that he brought an action for damages against Bass in the English courts, seeking compensation for the damage allegedly suffered as a result of having been subjected in the standard lease, which was exempted by the Commission in the contested decision, to obligations contrary to Article 81 EC, and that the action is pending.
25.
The applicant therefore retains a pecuniary and non-pecuniary interest in the outcome of the present proceedings notwithstanding the termination of the lease.
2. The applicant's capacity to bring proceedings
Arguments of the parties
26.
Bass considers that the principle of legal certainty prevents the applicant from questioning the validity of the contested decision with respect to all its tied lessees. The applicant must show that the solution adopted by the Commission is incompatible with his specific situation, and he has not done so.
27.
The applicant considers that he is entitled to bring proceedings.
Findings of the Court
28.
It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth paragraph of Article 230 EC only if that decision affects them by reason of attributes peculiar to them or by reason of factual circumstances differenting them from all other persons...
