CJEC, 2nd chamber, October 28, 2004, No C-236/03 P

THE COURT (Second Chamber),

1 By its appeal the Commission of the European Communities requests the Court to set aside paragraph 1 of the operative part of the judgment of the Court of First Instance of the European Communities in Case T-213-00 CMA CGM and Others v Commission [2003] ECR II-913, ('the contested judgment'), in which the Court of First Instance set aside Article 4 of Commission Decision 2000-627-EC of 16 May 2000 relating to a proceeding pursuant to Article 81 of the EC Treaty (IV/34.018 - Far East Trade Tariff Charges and Surcharges Agreement (FETTCSA)).

Legal background

2 Article 1 of Regulation (EEC) No 2988-74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), entitled 'Limitation periods in proceedings', provides:

'1. The power of the Commission to impose fines or penalties for infringements of the rules of the European Economic Community relating to transport or competition shall be subject to the following limitation periods:

(a) three years in the case of infringements of provisions concerning applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying out of investigations;

(b) five years in the case of all other infringements.

...'

3 Article 2(1) of Regulation No 2988-74, entitled 'Interruption of the limitation period in proceedings', provides:

'Any action taken by the Commission, or by any Member State, acting at the request of the Commission, for the purpose of the preliminary investigation or proceedings in respect of an infringement shall interrupt the limitation period in proceedings. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which have participated in the infringement.

Actions which interrupt the running of the period shall include in particular the following:

(a) written requests for information by the Commission, or by the competent authority of a Member State acting at the request of the Commission; or a Commission decision requiring the requested information;

...'

The contested judgment

4 The contested judgment states that it was delivered in an action for annulment of Decision 2000-627. That action was brought by 14 shipping companies which had been parties to the Far East Trade Tariff Charges and Surcharges Agreement ('FETTCSA'). FETTCSA is an agreement between shipping lines operating on the northern Europe/Far East route dated 5 March 1991, which came into force on 4 June 1991 and was brought to an end on 10 May 1994.

5 In Decision 2000-627, the Commission found, inter alia, that, by stipulating that rebates were not to be given on charges and surcharges, FETTCSA infringed Article 81(1) EC, and the Commission imposed fines on the 14 applicants at first instance and on AP Møller-Maersk Sealand.

6 For the purposes of the present appeal the following passages of the contested judgment are relevant.

7 In paragraph 466 of the contested judgment, the Court of First Instance found that there had been a breach of the duty to state reasons and of the principle of equal treatment in the following terms:

'[Decision 2000-627] is vitiated by substantive defects as regards the method used to calculate the fines. The first arises from the fact that [Decision 2000-627] determines the fines for each of the applicants according to the basic amount for [AP Møller-Maersk Sealand] without adequately explaining why the latter is greater than the minimum laid down by the Guidelines [on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3)] for serious infringements. It follows that each of the basic amounts for the applicants is, in turn, vitiated by a failure to state reasons. The second arises from the fact that [Decision 2000-627] determines the fines after dividing the applicants into groups in a way which does not comply with the principle of non-discrimination or, at the very least, with a wholly inadequate statement of reasons for so doing'.

8 The Court did not however specify the legal effects of that finding. At paragraph 467 of the contested judgment it held that 'before ruling on the legal consequences of those substantive defects, however, the Court considers it necessary, given the circumstances surrounding the adoption of [Decision 2000-627] in the present case, to examine the plea in law concerning the limitation period for fines.'

9 By that plea in law, the applicants at first instance submitted that Article 4 of Decision 2000-627, by which the Commission imposed fines on them, should be set aside as being time-barred under Article 1(1) of Regulation No 2988-74. They claim that the last measure which validly interrupted the limitation period for fines was a request for information which the Commission sent to FETTCSA on 24 March 1995 seeking information on its members' turnover for 1993 and 1994. Therefore the five-year limitation period expired on 24 March 2000 whereas Decision 2000-627 was only adopted on 16 May 2000. They further submitted that whilst the Commission sent FETTCSA two requests for information on 30 June 1998 and 11 October 1999 they did not validly stop time running for the purposes of the limitation period because they were not indispensable for the purpose of the preliminary investigation or proceedings in respect of an infringement.

10 In relation to the plea in law based on the limitation period, the Court held first that:

'484 Since the interruption of the limitation period laid down by Article 2 of Regulation No 2988-74 constitutes an exception to the five-year limitation period laid down by Article 1(1)(b) of that regulation, it must be interpreted narrowly.

485 Furthermore, it is apparent from the first subparagraph of Article 2(1)(a) of Regulation No 2988-74 that in order to interrupt the limitation period in accordance with that regulation, written requests for information by the Commission, which are expressly mentioned in that provision as examples of actions interrupting the limitation period, must be "for the purpose of the preliminary investigation or proceedings in respect of an infringement".

486 Pursuant to Article 11 of [Council] Regulation No 17 [of 6 February 1962 - First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87)] and, as regards the transport sector concerned in the present case, Article 19 of Regulation [EEC] No 1017-68 [of the Council of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302)] and Article 16 of Regulation [EEC] No 4056-86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4)], requests for information must, according to the first paragraph of those provisions, be "necessary". According to the case-law, a request for information is "necessary" within the meaning of Article 11(1) of Regulation No 17 if it may legitimately be regarded as having a connection with the putative infringement (Case T-39-90 SEP v Commission [1991] ECR II-1497, paragraph 29). Since the wording of Article 19 of Regulation No 1017-68 and Article 16 of Regulation No 4056-86 is the same, the same principles apply to requests for information based on those provisions.

487 Thus, it follows from the foregoing considerations that in order validly to interrupt the five-year limitation period laid down by Article 1(1)(b) of Regulation No 2988-74 a request for information must be necessary for the preliminary investigation or proceedings.

488 Although a request for information may interrupt the limitation period for fines where its purpose is to enable the Commission to comply with its obligations in fixing the fine, the Commission cannot, for instance, make requests for information the sole purpose of which is to prolong the limitation period artificially so as to preserve the power to impose a fine (see, to that effect, [Case C-99-98] Austria v Commission [[2001] ECR I-1101], paragraphs 45 to 67). Requests for information solely for that purpose cannot be necessary for infringement proceedings. Furthermore, if the Commission were able to interrupt the limitation period by sending requests for information not necessary for the proceedings it would be able systematically to prolong the limitation period up to the 10-year maximum laid down by Article 2(3) of Regulation No 2988-74, thereby subverting the five-year limitation period laid down by Article 1(1) of that regulation and converting it into a 10-year one.'

11 Next, in paragraphs 489 to 515 of the contested judgment, the Court assessed whether the requests for information of 30 June 1998 and 11 October 1999 were necessary for the preliminary investigation or proceedings.

12 Specifically, in paragraphs 493 to 504 of the contested judgment, the Court first took into consideration the context in which those requests for information were sent by the Commission. It held in paragraph 504 that '... the applicants are right to question whether the requests for information of 30 June 1998 and 11 October 1999 were necessary'.

13 Second, in paragraphs 505 to 515 of the contested judgment, the Court addressed the question whether those requests for information were justified, as the Commission submitted, by that institution's duty to calculate the maximum amount of the fines in accordance with the applicable legal provisions.

14 In that respect, the Court held that that was not the case for the following reasons:

'506 ... [The Commission] claims that the only purpose of the turnover figures for 1997 and 1998 given in response to those requests for information was ... not to calculate the fines but solely to check that it had not exceeded the maximum amount permitted for those fines. In the present case, however, those figures did not enable the Commission to make that calculation. Since [Decision 2000-627] was adopted on 16 May 2000, the reference year for the calculation of the maximum amount of the fine was not 1997 or 1998 but 1999, which was the business year preceding the adoption of [that] decision (order of the Court of Justice of 5 June 2002 in Case C-213-00 P Italcementi - Fabbriche Riunite Cemento v Commission, not published in the ECR, paragraph 98). It is common ground that the Commission did not request the applicant's turnover figures for the 1999 business year. In the application the applicants asserted, without being contradicted by the Commission on that point, that most of them release their financial results in March of the following year. It follows that when [Decision 2000-627] was adopted on 16 May 2000 most of the applicants had closed their accounts for the 1999 business year.

507 In the light of the foregoing, it may therefore be accepted that the Commission was in a position to adopt [Decision 2000-627] imposing fines without having at its disposal the turnover figures required to calculate the permitted upper limit of the fines. Whilst that fact alone does not mean that the requests for information of 30 June 1998 and 11 October 1999 could not interrupt the limitation period, since the Commission was free to run the risk of adopting a decision imposing fines without checking that they did not exceed the permitted upper limit under the applicable legal rules, it shows that in the present case, contrary to the Commission's persistently asserted justification for sending the requests for information of 30 June 1998 and 11 October 1999, the obligation to check that the fines do not exceed the upper limit permitted by the applicable legal provisions cannot provide that justification since the Commission did not have that information when it adopted [Decision 2000-627]. The Commission does not advance any other ground to justify the need for the requests for information in question.

...

510 Furthermore, since the Commission felt able to calculate the permitted upper limit of fines on the basis of the turnover figures for 1998, which are not those for the last business year before the adoption of [Decision 2000-627], it could also have done so on the basis of the turnover figures for 1993 and 1994, which it had in its possession since the request for information of 24 March 1995. The Commission does not explain why those turnover figures were not sufficient to enable it to check that the upper limit for fines had not been exceeded and that that fact made it necessary to send the requests for information of 30 June 1998 and 11 October 1999.

...

514 Therefore the Commission's explanations at the hearing, although different from those set out in its written pleadings, again confirm that the purpose of the requests for information of 30 June 1998 and 11 October 1999 could not have been to enable the Commission to calculate the maximum permitted fine since, according to the new explanation, the Commission intended to impose such low fines that no such calculation was necessary. In those circumstances, as the applicants claim, the Commission had at its disposal in the present case all the information necessary to adopt a final decision imposing fines upon receipt of the replies to the request for information of 24 March 1995. The Commission's contention in that regard, formulated for the first time at the hearing, that the decision to impose a modest fine was only taken in 1999, is unsupported by any evidence and cannot therefore be accepted.'

15 The Court held in paragraph 516 of the contested judgment that the requests for information of 30 June 1998 and 11 October 1999 were not necessary for the preliminary investigation or proceedings and they did not therefore validly interrupt the limitation period.

16 It concluded, in paragraph 517 of the contested judgment, that '... Article 4 of [Decision 2000-627] must be annulled in so far as it imposes fines, since they were imposed on 16 May 2000, after the five-year limitation period laid down by Articles 1(1)(b) and 2(1) and (3) of Regulation No 2988-74, which started to run anew with effect from 24 March 1995, had expired'.

17 By paragraph 1 of the operative part of the contested judgment, the Court annulled Article 4 of Decision 2000-627.

The forms of order sought on appeal and the pleas in law supporting the claim for annulment

18 The Commission claims that the Court should:

- annul paragraph 1 of the operative part of the contested judgment;

- dismiss the applicants' action at first instance in its entirety, and

- order the respondents on appeal ('the respondents') to pay the costs.

19 The respondents contend that the Court should:

- dismiss the appeal as inadmissible and/or unfounded, and

- order the Commission to pay the costs.

20 The Commission advances three pleas in law in support of its appeal.

21 First, the Commission challenges the finding of the Court of First Instance, in paragraph 426 of the contested judgment, that the division of the infringing parties into four groups for the purposes of determining the fines is contrary to the principle of equal treatment.

22 Second, it challenges the finding of that Court, in paragraphs 440 and 444 of the contested judgment, that there is a breach of the duty to state reasons in Decision 2000-627 in respect of the division of FETTCSA parties into several groups and the setting of the basic amounts of the fines.

23 Third, the Commission challenges the Court's finding that the fines imposed on the undertakings referred to in Article 4 of the operative part of Decision 2000-627 were time-barred.

The appeal

24 Under Article 119 of the Rules of Procedure of the Court of Justice, the latter may at any time, after hearing the Advocate General, dismiss the appeal where it is clearly inadmissible or clearly unfounded.

The first and second pleas in law

25 As the respondents rightly point out, these pleas do not affect the paragraph of the operative part of the contested judgment which the Commission challenges on appeal. It is clear from paragraphs 467 and 517 of that judgment that, in order to annul Article 4 of Decision 2000-627, the Court of First Instance based its decision not on the findings which the Commission challenges in its first and second pleas in law, but solely on the fact that the limitation period of five years had expired.

26 It is clear from the case-law that a plea in law directed to the grounds of a contested judgment which do not affect the operative part of the judgment is irrelevant and must therefore be rejected (see, to that effect, Joined Cases C-302-99 P and C-308-99 P Commission and France v TF1 [2001] ECR I-5603, paragraphs 26 to 29).

27 It follows that the first and second pleas in law advanced by the Commission in support of its appeal must be rejected.

The third plea in law

28 By its third plea in law, which essentially comprises six parts, the Commission, as it states in its reply, asks the Court of Justice to find that the Court of First Instance erred in law in holding that the requests for information of 30 June 1998 and 11 October 1999 were not for the purpose of the preliminary investigation or proceedings in respect of an infringement within the meaning of Article 2(1) of Regulation No 2988-74.

The first part of the third plea in law

29 By the first part of its third plea in law, the Commission challenges the Court's finding, in paragraph 484 of the contested judgment, that the interruption of the limitation period laid down by Article 2 of Regulation No 2988-74 constitutes an exception to the five-year limitation period laid down by Article 1(1)(b) of that regulation and so must be interpreted narrowly. That assertion is not supported by the express wording of that regulation and does not comply with its spirit.

30 It should be noted in that respect that, as is clear from paragraphs 484 to 487 of the contested judgment, the Court's finding in paragraph 484 is only one of several factors on which the Court based its finding in paragraph 487 that, in order for the five-year limitation period to be validly interrupted, a request for information must be necessary for the preliminary investigation or proceedings in respect of an infringement.

31 However, the Commission does not challenge, in either the application or the reply, the merits of the finding made by the Court in paragraph 487 of the contested judgment.

32 It follows that the first part of the third plea in law, by which the Commission merely challenges one of the planks of the Court's reasoning without even challenging the finding based on that reasoning is irrelevant and must therefore be rejected.

The second part of the third plea in law

33 By the second part of its third plea in law, the Commission alleges a breach of the duty to state reasons on the basis that the Court held in paragraph 494 of that judgment that '...the duration of the procedure in the present case appears, at least at first sight, to have been unreasonable', whereas in paragraph 324 of the same judgment, it held that '...there is no room for consideration of the Commission's duty to exercise its power to impose fines within a reasonable period'. Furthermore, in the case of paragraph 494, the Commission challenges the relevance of the concept of reasonable period in the context of a line of reasoning relating to limitation periods.

34 It should be noted in that connection that, as the respondents rightly point out, paragraphs 324 and 494 form part of two separate lines of reasoning set out by the Court.

35 It is clear from paragraphs 317 to 326 of the contested judgment that paragraph 324 of that judgment forms part of the Court's analysis which essentially concerns the question whether an infringement of the principle of reasonable delay can lead to the annulment of a fine imposed on an undertaking by the Commission or the reduction of the amount of that fine, even if the limitation period under Regulation No 2988-74 has not yet expired. The Court answered that question in the negative in paragraph 324 of the contested judgment on the ground that '... Regulation No 2988-74 established a complete system of rules covering in detail the periods within which the Commission is entitled, without undermining the fundamental requirement of legal certainty, to impose fines on undertakings which are the subject of procedures under the Community competition rules.'

36 Paragraph 11 of the present order makes it clear by contrast that paragraph 494 of the contested judgment forms part of the Court's line of reasoning in response to the question whether the requests for information of 30 June 1998 and 11 October 1999 were necessary for the preliminary investigation or proceedings in respect of an infringement.

37 It cannot be inferred, from the Court's finding that the principle of reasonable delay is not relevant in relation to the Commission's right to impose fines, that that lack of relevance also applies in assessing whether a request for information is necessary for the preliminary investigation or proceedings in respect of an infringement.

38 In those circumstances, the complaint alleging a breach of the duty to state reasons in the contested judgment cannot be upheld.

39 Furthermore, the Commission's argument that the concept of reasonable delay is not relevant in a line of reasoning relating to limitation periods cannot be upheld either. As was noted in paragraph 36 of the present order, the line of reasoning of the Court of which paragraph 494 of the contested judgment forms part concerns the specific question whether the requests for information of 30 June 1998 and 11 October 1999 were necessary for the preliminary investigation or proceedings in respect of an infringement.

40 It follows that the second part of the third plea in law is clearly unfounded.

The third part of the third plea in law

41 By the third part of its third plea in law, the Commission submits that the contested judgment failed to take account of the fact that the procedural steps listed in Article 2(1) of Regulation No 2988-74 enjoy a rebuttable presumption that they are a necessary step in the proceedings and have therefore validly interrupted the limitation period. Thus, the contested judgment contradicts the principle that the Commission holds wide powers of investigation under Regulation No 17.

42 It should be noted in this connection that it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (judgment of 23 March 2004 in Case C-234-02 P European Ombudsman v Lamberts [2004] ECR I-0000, paragraph 76, and the case-law cited).

43 However, the Commission has not identified any particular paragraph of the contested judgment to which its argument under the third part of the third plea in law particularly applies and in which it claims that the Court followed a line of reasoning contradicting that argument.

44 It follows that the third part of the third plea in law is clearly inadmissible.

The fourth part of the third plea in law

45 By the fourth part of its third plea in law, the Commission submits that the situation in the present case is completely different from that in the case giving rise to the judgment in Austria v Commission, to which the Court referred in paragraph 488 of the contested judgment. In Austria v Commission, the Court concluded that the Commission's request was an attempt to gain time. However, that institution formally denies that in the present case its repeated requests may be interpreted as having such an objective. It further adds that it had no interest in prolonging the limitation period in June 1998.

46 It suffices to state in that regard that in the present case the Court certainly did not find, in paragraph 488 of the contested judgment, that the sole purpose of the requests for information of 30 June 1998 and 11 October 1999 was artificially to prolong the limitation period.

47 It follows that the fourth part of the third plea in law is clearly unfounded.

The fifth part of the third plea in law

48 By the fifth part of its third plea in law, the Commission challenges the Court's finding in paragraph 500 of the contested judgment that 'the Commission's investigation in this case was completed by March 1995'. It refers in that regard to the fact that the parties continued to correspond with each other and, in particular, to a letter of 28 July 1995 in which the applicants at first instance proposed that the Commission re-open the discussions about a statement of common legal principles. That letter led the Commission to write again to the applicants on 8 August 1995 to ask them whether the FETTCSA parties were prepared to accept the facts alleged against them. Apart from an acknowledgment of receipt of 9 August 1995, the Commission's file contains no response to that letter.

49 It should be noted under Article 225 EC and Article 58 of the Statute of the Court of Justice an appeal may be brought on questions of law alone. According to settled case-law, the Court of First Instance therefore has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (see, in particular, the judgment of 29 April 2004 in Case C-470-00 P Parliament v Ripa di Meana and Others [2004] I-0000, paragraph 40 and the case-law cited).

50 The date on which the Commission's preliminary investigation came to an end is, as the respondents rightly point out, a question of fact. Furthermore, the Commission has not produced before the Court any evidence to show that the clear sense of the evidence submitted to the Court of First Instance has been distorted or of a substantive inaccuracy in the latter's findings in respect of the evidence on the file. More particularly, the fact that the Commission and the applicants at first instance exchanged correspondence until August 1995 does not suffice to show that the Court erred in finding that the Commission's preliminary investigation had come to an end in March 1995.

51 It follows that the fifth part of the third plea in law is clearly inadmissible.

The sixth part of the third plea in law

52 By the sixth part of its third plea in law, the Commission criticises the Court of First Instance for its reliance on the fact that Decision 2000-627 was not adopted until 2000 to infer that the requests for information of 30 June 1998 and 11 October 1999 were not necessary for the preliminary investigation or the proceedings in respect of an infringement. Thus, the Court did not assess whether those requests for information were necessary at the time they were sent, contrary to what the Court itself accepted in paragraph 492 of the contested judgment.

53 Furthermore, the Commission challenges the Court of First Instance's finding in paragraph 510 of the contested judgment that since, in the present case, the Commission considered that it was able to calculate the maximum permitted amount of the fines on the basis of the turnover figures for 1998, which do not relate to the last financial year preceding the adoption of Decision 2000-627, it could just as well have relied on the turnover figures for 1993 or 1994, which it had in its possession because it had received a reply to its request for information of 24 March 1995.

54 It should be noted in this connection that the Court of First Instance in fact based its decision in paragraph 507 of the contested judgment on the circumstances surrounding the adoption of Decision 2000-627 in assessing whether the requests for information of 30 June 1998 and 11 October 1999 were necessary.

55 The Court could not assert as categorically as it did in that paragraph of the contested judgment that it was not the duty to ascertain whether the amount of the fines did not exceed the maximum authorised by the relevant legal provisions which justified the sending of those requests for information since the Commission did not have that information in its possession when Decision 2000-627 was adopted.

56 The fact that the Commission adopted Decision 2000-627 without having requested the respondents' turnover figures for 1999, for the purposes of calculating the maximum amount of the fines which it intended to impose on the respondents, does not necessarily mean that the requests for information of 30 June 1998 and 11 October 1999 could not have been intended, when they were sent, to elicit information about the turnover for 1997 and 1998 respectively for the purposes of the adoption, in the year in which those requests were sent, of a decision on those fines.

57 Similarly, contrary to the Court's finding in paragraph 510 of the contested judgment, it cannot be inferred, from the Commission's assertion that it considered that it was in a position to calculate the maximum permitted amount of the fines on the basis of the turnover figures for 1998, that it could just as well have based its decision on the turnover figures for 1993 and 1994.

58 The turnover figures for 1998 might have been of some use in estimating the turnover for 1999 which, in the present case, was the reference year for the calculation of the maximum permitted amount of the fines, whilst it is much less plausible that the turnover figures for 1993 and 1994 were as useful for the purposes of such an estimate.

59 However, it must be pointed out that, in accordance with the case-law of the Court of Justice, where one of the grounds adopted by the Court of First Instance is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event do not affect that operative part and, accordingly, a plea relying on such defects is irrelevant and must be dismissed (see, inter alia, the judgment of 29 April 2004 in Case C-496-99 P Commission v CAS Succhi di Frutta [2004] ECR I-0000, paragraph 68 and the case-law cited).

60 The Court did not base its decision to reject the Commission's arguments that the requests for information of 30 June 1998 and 11 October 1999 were intended to enable the Commission to calculate the maximum permitted amount of the fines and were therefore necessary for the purpose of the preliminary investigation or proceedings in respect of an infringement solely on the grounds set out in paragraphs 507 and 510 of the contested judgment.

61 It is clear from paragraph 514 of the contested judgment that the Court also took into account the Commission's explanations that it intended to impose such low fines that it was not necessary to calculate the maximum amount permitted for the fines, whilst declining to uphold the argument, formulated for the first time by the Commission at the hearing, that the latter's decision to impose a modest fine was adopted only in 1999.

62 The Court's finding in that regard is not challenged by the Commission and is a sufficient ground for rejecting the Commission's arguments in relation to the alleged purpose of those requests for information.

63 It follows that the sixth part of the third plea in law must be rejected as ineffective.

64 It follows from the foregoing considerations that the third plea in law advanced by the Commission must be rejected.

65 As all the pleas in law advanced by the Commission are clearly inadmissible or clearly unfounded, its appeal must be dismissed.

Costs

66 Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 118 of those Rules, 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 has been unsuccessful, it must, having regard to the form of order sought by the respondents, be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Dismisses the appeal;

2. Orders the Commission of the European Communities to pay the costs.