Satellimages TV 5 SA v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 61999TJ0095
• ECLI: ECLI:EU:T:2002:62
• Date: 07 March 2002
• Docket Number: T-95/99
• Court: General Court (European Union)
• Procedure Type: Recours en annulation - irrecevable

61999A0095

Judgment of the Court of First Instance (Second Chamber) of 7 March 2002. - Satellimages TV 5 SA v Commission of the European Communities. - Action for annulment - Competition - Complaint - Commission letter addressed to the complainant - Preparatory measure - Inadmissibility. - Case T-95/99.

European Court reports 2002 Page II-01425

Summary Parties Grounds Decision on costs Operative part

Keywords

Actions for annulment - Actionable measures - Definition - Measures with binding legal effects - Preparatory measures - Excluded

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

Summary

$$Only measures which produce binding legal effects and are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position constitute measures challengeable by an action for annulment under Article 173 of the EC Treaty (now, after amendment, Article 230 EC). In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, in principle, an act is reviewable only if it is a measure definitively establishing the position of the Commission at the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision.

In those circumstances, where the Commission makes it clear in a letter to the complainant which constitutes the contested measure that the assessments contained therein are of a provisional nature, the content of the contested measure confirms that statement, and the Commission makes it clear that its comments are subject to any further observations that the applicant might wish to make, it must be concluded that the contested measure is to be regarded as a preparatory statement of position. Since the contested measure is not one which definitively establishes the Commission's position, it does not produce binding legal effects capable of affecting the complainant's interests, and is not therefore a reviewable act for the purposes of Article 173 of the Treaty.

( see paras 32, 34, 36-38, 41 )

Parties

In Case T-95/99,

Satellimages TV 5 SA, established in Paris (France), represented by E. Marissens, lawyer, with an address for service in Luxembourg,

applicant,

supported by

French Republic, represented initially by K. Rispal-Bellanger, and, subsequently, G. de Bergues and F. Million, acting as Agents, with an address for service in Luxembourg,

intervener,

v

Commission of the European Communities, represented by B. Doherty and K. Wiedner, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

Deutsche Telekom AG, established in Bonn (Germany), represented by F. Roitzsch and K. Quack, lawyers, with an address for service in Luxembourg,

intervener,

APPLICATION for the annulment of the alleged decision by the Commission of 15 February 1999 relating to a complaint by the applicant under Article 86 of the EC Treaty (now Article 82 EC) (IV/36.968 - Satellimages TV 5/Deutsche Telekom),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: R.M. Moura Ramos, President, J. Pirrung and A.W.H. Meij, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 11 December 2001,

gives the following

Judgment

Grounds

Background

1 The applicant is a broadcasting undertaking charged with providing a service in the public interest whose shareholders are public undertakings providing French-language broadcasting services and based in France, Belgium, Switzerland and Canada.

2 By letter of 18 March 1998, the applicant filed a complaint with the Commission, requesting that it declare that by requiring broadcasters to pay a tariff for the transmission of their programmes on the cable that it owns, Deutsche Telekom AG (hereinafter Deutsche Telekom) abused its dominant position on the cable distribution market, thereby infringing Article 86 of the EC Treaty (now Article 82 EC). The applicant submitted, essentially, that the principle of levying tariffs in itself constituted a breach of Article 86 of the EC Treaty, whatever the precise level of the tariff.

3 In that context, the applicant also requested the Commission to take interim measures requiring suspension of the tariff increases for cable distribution imposed by Deutsche Telekom.

4 In parallel, on 15 June 1998, the applicant lodged a complaint with the German post and telecommunications regulator, the Regulierungsbehörde für Telekommunikation und Post concerning the level of tariff increases imposed by Deutsche Telekom in the field of cable distribution.

5 In its observations of 24 April 1998 on the request for interim measures, Deutsche Telekom referred to an interim report drawn up by the Commission on 22 October 1993 in the context of Case IV/34.463 - VPRT/DPB Telekom concerning the complaint filed in September 1990 by the VPRT, a trade association of commercial broadcasters active in Germany (hereinafter the VPRT report). In that case, the VPRT complained, essentially, of Deutsche Telekom's method of levying tariffs, a method which, according to VPRT, discriminated between broadcasters using private satellite services and those using public satellite services. In that report, after carrying out a technical and commercial analysis of the cable distribution market, the Commission proposed a number of measures that would allow Deutsche Telekom to obtain...