CJEC, 5th chamber, April 27, 1999, No C-436/97 P

Order

1.

By application lodged at the Registry of the Court of Justice on 29 December 1997, Deutsche Bahn AG (hereinafter 'Deutsche Bahn) brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 21 October 1997 in Case T-229-94 Deutsche Bahn v Commission [1997] ECR II-1689 (hereinafter 'the contested judgment), by which the Court of First Instance dismissed its action for the annulment of Commission Decision 94-210-EC of 29 March 1994 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (IV-33.941 - HOV-SVZ/MCN) (OJ 1994 L 104, p. 34, hereinafter 'the Decision).

2.

In the Decision, the Commission found, first, that Deutsche Bundesbahn (hereinafter 'DB), which was succeeded in 1994 by Deutsche Bahn, had infringed Article 85 of the Treaty in that it had been party to an arrangement prohibited under that provision by concluding an agreement relating to the setting up of a cooperative network known as the 'Maritime Container Network (hereinafter 'the MCN Agreement). That network comprised DB, the Belgian and Netherlands railway companies and two undertakings in the maritime container transport sector, namely Transfracht, a company in which DB had an 80% stake, and Intercontainer, which is a joint subsidiary of 24 European railway undertakings. While Transfracht operated within Germany,Intercontainer was responsible for carriage in Belgium and the Netherlands. The Commission found, secondly, that DB had infringed Article 86 of the Treaty in that it had used its dominant position on the rail transport market in Germany to impose discriminatory tariffs on the market for the inland carriage of sea-borne containers to or from Germany via a German, Belgian or Netherlands port. The Commission fined Deutsche Bahn ECU 11 000 000 for the infringement of Article 86. For a fuller account of the facts of the case, reference should be made to paragraphs 1 to 16 of the contested judgment.

3.

On 14 June 1994 Deutsche Bahn brought an action before the Court of First Instance seeking annulment of the Decision, in the alternative its annulment only in so far as it imposed a fine on it and, in the further alternative, a reduction in the amount of the fine. The Court of First Instance dismissed the action in its entirety.

4.

On 29 December 1997 Deutsche Bahn brought the present appeal, which is confined to the findings of the Court of First Instance relating to Article 86 of the Treaty.

5.

Deutsche Bahn relies on three pleas in law in support of its appeal. The first plea alleges an infringement of the rule of law, under which the allegation must be set out in sufficient detail. The second plea relates to an infringement of the principle requiring the assessment of the evidence to be consistent with 'the rules and laws of logic. The third plea concerns an infringement of the general principle in dubio pro reo, under which an infringement is to be fully established, and doubts and uncertainties as to the proof required are to be decided in favour of the person charged, precluding the imposition of penalties on him.

6.

Deutsche Bahn claims that the contested judgment should be quashed in so far as it rejects the claim for annulment of Articles 2, 3, and 4 of the Decision, that those articles should be declared null and void and that the Commission should be ordered to pay the costs.

7.

The Commission maintains that, by its appeal, Deutsche Bahn in actual fact seeks a fresh examination of the facts by the Court of Justice without specifically stating what infringement of the law the Court of First Instance committed. It therefore contends that the appeal should be dismissed as inadmissible or, in the alternative, as unfounded and that Deutsche Bahn should be ordered to pay the costs.

8.

Under Article 119 of its Rules of Procedure, where an appeal is clearly inadmissible or clearly unfounded, the Court of Justice may at any time dismiss it by reasoned order.

The first plea

9.

In its first plea, Deutsche Bahn claims that the contested judgment does not define sufficiently clearly the allegation against DB but merely sets out circumstantial evidence, without actually establishing the alleged infringement of Article 86 of the Treaty.

10.

In that regard, suffice it to note that it is clear from the contested judgment that the Court of First Instance defined the allegation against DB, namely the abuse of its dominant position by imposing discriminatory tariffs on the market for the inland carriage of sea-borne containers to or from Germany, first, in that it demonstrated in paragraph 86 of the contested judgment that there was a significant difference, which it characterised as discriminatory, between the prices applied on the respective routes and, secondly, in that it found, in paragraphs 80 to 83, that DB had acted in such a way as to influence the setting of prices on the western journeys by using its position within the framework of the MCN Agreement and by unilaterally introducing a new tariff structure which led to an even larger decrease in rates to the benefit of carriage on journeys to and from the north.

11.

<sel>The Court of First Instance thus defined with a sufficient degree of clarity the abuse of a dominant position within the meaning of Article 86 of the Treaty. The first plea is therefore clearly unfounded.

The second plea

12.

In its second plea, Deutsche Bahn alludes to a number of contradictions in the grounds of the contested judgment, all related to the fact that, on the one hand, the Court of First Instance stated that DB intended to maintain Intercontainer's tariffs at a high level while, on the other, it found that the prices which DB charged Intercontainer were on average lower than those which it demanded from Transfracht on the northern journey.

13.

As regards the merits of this ground of appeal, the Commission rightly maintains that a distinction should be drawn between the price demanded by DB from Intercontainer for railway services and the inclusive tariffs which Intercontainer charged its clients for the container carriage services as a whole from the place of departure right onto the cargo vessels. The two are different, the first being merely one of the elements taken into account to determine the level of the second.

14.

While it may indeed appear more reasonable to increase the price of a particular service in order to reach a high overall tariff level, that level may none the less coexist with a low price level for particular services, a situation which, according to the Court of First Instance, arose in the present case. The Court found that DB had clearly adopted such a practice, and that practice showed that it had sought to obtain for itself an advantage over its competitors not by means of certain elements of the price but by deflecting the whole or large parts of the business. It follows that, while the conduct of DB might appear illogical, the reasoning of the Court of First Instance itself is not contradictory in any way and therefore is not flawed.

15.

Accordingly, the second plea is also clearly unfounded.

The third plea

16.

In its third plea, Deutsche Bahn in fact disputes a number of points in the findings made by the Court of First Instance so far as concerns proof of the conduct alleged against DB.

17.

It is clear from Article 168a of the EC Treaty and Article 51 of the EC Statute of the Court of Justice that an appeal must be limited to points of law and be based on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or an infringement of Community law by the Court of First Instance.

18.

It also follows from the foregoing provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts (see, in particular, Case C-7-95 P Deere v Commission [1998] ECR I-3111, paragraph 21).

19.

In the present case, it is apparent on an examination of the arguments relied on by Deutsche Bahn that it merely disputes the assessment of the evidence carried out by the Court of First Instance. Its argument is that the Court should have drawn different conclusions from those which it adopted having regard to the evidence placed before it. As the Court of Justice has repeatedly held, it is, however, for the Court of First Instance alone to assess the value which should be attributed to the evidence placed before it. Thus, save where the clear sense of the evidence has been distorted, which is not pleaded in this case, that assessment does not constitute a point of law which is subject, as such, to review by the Court of Justice (see, to that effect, Case C-53-92 P Hilti v Commission [1994] ECR I-667, paragraph 42, and Case C-291-97 P H v Commission [1998] ECR I-3577, paragraph 19).

20.

The third plea is therefore clearly inadmissible.

21.

It follows that, pursuant to Article 119 of the Rules of Procedure, the appeal must be dismissed in part as clearly inadmissible and in part as clearly unfounded.

Costs

22.

Under Article 69(2) of the Rules of Procedure, applicable to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission hasapplied for costs and Deutsche Bahn has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby orders:

1. The appeal is dismissed.

2. Deutsche Bahn AG is to pay the costs.