VIII — · Metro SB-Großmärkte GmbH & Co. KG v Commission of the European Communities (26/76)

VIII —Before the Verband submitted its application to intervene, the written procedure between the other parties having terminated, the Court of Justice asked those parties to reply to a number of questions, including a first question on the admissibility of the application, taking account of the second paragraph of Article 173 of the EEC Treaty and Article 3 (2) (b) of Regulation No 17.The applicant Metro considers that its application is admissible because the decision of exemption adopted by the Commission is of direct and individual concern to it The conditions laid down by Article 3 (2) (b) of Regulation No 17 are also fulfilled. Metro is directly concerned in so far as the decision of exemption entitles SABA to refuse to supply Metro. Furthermore, the contested decision exposes Metro to legal proceedings before the German courts if it obtains supplies of SABA products. Metro is individually concerned because it lodged a complaint against the draft decision of exemption and because it took part in the administrative procedure in accordance with Article 19 (2) of Regulation No 17. The same grounds justify the admissibility of the application pursuant to Regulation No 17.The intervener the Verband concurs.The Commission also considers that the application is admissible.Measures in connexion with which, in accordance with the case-law of the Court of Justice, applications for annulment have been declared inadmissible on the ground that such measures were not of individual concern to the applicants have all been in the nature of binding legislation, either of a direct nature, in the form of regulations of the Council or the Commission, or indirect, being decisions addressed to the Member States enabling or requiring them to enact legislation. On the other hand, the contested decision concerns a measure relating exclusively to private law, that is the determination of the sales policy of an undertaking in the form of standard agreements concluded with its trading partners. Decisions of this nature cannot be treated as equivalent to measures relating to the adoption of rules of public law and this difference should also be manifested in the extent of the protection which the courts will provide for the persons concerned. A decision of the Commission exempting a distribution system contains an important individual element with regard to the traders concerned in so far as the criteria for admission to the distribution system for which exemption has been granted constitute the subject-matter of agreements concluded between the manufacturer and traders, or permit the manufacturer to refuse to conclude such individual agreements with traders who do not fulfil such criteria.The Commission observes finally that it would be impossible in practice for the Court of Justice to review decisions of exemption if third parties affected by them could not contest them, since persons to whom such decisions are addressed generally have no interest in contesting them. The Commission adds the further point that once a decision of exemption has been adopted third parties affected by it can no longer claim before the national courts that a restriction on competition is void, since the national courts are bound by the Commission's decisions of exemption. Accordingly, review by the Court of Justice could be envisaged only within the framework of a request for a preliminary ruling.It is impossible to adopt the existence of the procedure laid down in Article 19 (2) and (3) of Regulation No 17 as a basis for denying that it is necessary to make separate provision for applications against the decision of exemption. That procedure merely relates to the right to submit observations and does not make provision for review of the decision.In order to assess whether the application is admissible in the present case it must be established whether the decision of exemption is of direct and individual concern to the applicant, since that decision implies the partial rejection of the application which it submitted pursuant to Article 3 (2) (b) of Regulation No 17. The Court of Justice has in fact already dismissed as inadmissible applications submitted in cases where the Commission had refused to grant an application by the applicant: in such cases the determining factor with regard to admissibility resides in the legal nature of the measure which was requested but refused (judgment of the Court of Justice of 8 March 1972 in Case 42/71, Nordgetreide v Commission [1972] ECR 110; judgment of the Court of Justice of 1 March 1966 in Case 48/65, Lütticke [1966] ECR 19; judgment of the Court of Justice of 18 November 1970 in Case 15/70, Chevalley[1970] ECR 975).In all those cases the application related to the adoption either of measures which were not binding or of legislation, that is to say to the adoption of measures which could not be contested so that the applications were of necessity considered inadmissible.In the present case the situation is different The applicant has submitted an application on the basis of Article 3 (2) (b) of Regulation No 17, which permits the submission of applications by persons who claim a legitimate interest in decisions of the Commission finding that there is an infringement or requiring the termination thereof. By submitting an application the applicant intervened in the procedure for authorization which was already under way. The procedure initiated by the complaint was pursued exhaustively. The two procedures were closed with regard to their substance by the contested decision of exemption in which the complaint was in part taken into consideration and in part dismissed.The contested decision is of individual concern to the applicant by reason of certain circumstances in which the latter is differentiated from all other persons and thereby distinguishes it individually just as in the case of the person addressed. Since SABA has in fact begun to operate its distribution system in the form for which exemption was granted this suffices for Metro to be considered to be directly concerned.The intervener SABA considers that Article 3 (2) (b) of Regulation No 17 cannot be relied upon to refute the inadmissibility of the application, since Metro is not ‘concerned’ by the contested decision.

Metro SB-Großmärkte GmbH & Co. KG v Commission of the European Communities (26/76)

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