Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By two actions commenced in June 1984, British American Tobacco Company (hereinafter referred to as BAT) and Reynolds Industries Incorporated (hereinafter referred to as Reynolds) ask the Court to declare void a measure adopted on 22 March 1984 by the Commission of the European Communities. This measure rejected the complaints submitted by the applicants under Article 3 (2) of Regulation No 17 of 6 February 1972 (Official Journal, English Special Edition 1959-62, p. 87) concerning the agreements entered into between Philip Morris Incorporated (hereinafter referred to as Philip Morris) and Rembrandt Group Limited (hereinafter referred to as Rembrandt). According to the Commission, however, those agreements do not in fact contravene Articles 85 and 86 of the EEC Treaty.

2. By orders of 26 September and 28 November 1984 the Court joined the two cases (142/84, BAT, and 156/84, Reynolds) and authorired Philip Morris and Rembrandt to intervene in support of the Commission.

3. Rembrandt's objection is therefore unfounded. However, it has the merit of having brought to light a problem which has not been sufficiently explored and is of some considerable importance to the decision to be adopted in this case: what rights do complainants have and what obligations are incumbent upon the Commission when it rejects an application?

4. In support of their applications, BAT and Reynolds put forward an enormous number of arguments. With a little effort, however, they can be classified in four groups reflecting four main criticisms. For their part, the Commission's defence submissions and the observations of the intervening companies coincide substantially, for which reason I shall be able to consider them together in nearly all cases.

5. In view of their connection with the argument dealt with in part 3 of this Opinion, I shall consider the last two criticisms first. As far as the fourth is concerned, BAT and Reynolds observe that a person whose interests are perceptibly affected by a decision taken by a public authority must be given an opportunity of making his point of view known (judgment of 23 October 1974 in Case 17/74 Transocean Marine Paint Association v Commission [1974] ECR 1063, paragraph 15). The Commission failed to disclose to the two companies a number of items of particularly important information contained in the statement of objections and in the 1981 agreements, relying, by way of justification, upon the need to safeguard the business secrecy claimed by Philip Morris and Rembrandt. Moreover, the decision contains reasons which were not referred to in the letter of 16 December 1983, with the result that the addressees were not able to express their views on them.

6. The problems of procedure, compliance with formal requirements and observance of fundamental rights having been resolved, it is now time to consider the central issue. For that purpose, however, it is first of all appropriate for me to review, in more detail that I could have done at the beginning, the principal characteristics of the companies involved and their market (A), the 1981 agreements (B), the 1984 agreements (C), and the various stages of the long and complex procedure prior to the commencement of the action (D).

7. Let us return to the BAT and Reynolds applications. In considering the first two submissions — infringement of Articles 85 and 86 by virtue of a manifest error of assessment and of Article 190 by virtue of an inadequate statement of reasons — I shall consider only the criticisms relating to the subject-matter of the contested measure, namely the 1984 agreements and the clauses contained in them. I also think it is superfluous to set out the arguments which the applicants base on the possibility available to Philip Morris of changing its position within Rothmans and to consider what effects such a change might have on the competitive relationship between the two companies. In that connection, it is sufficient to bear in mind that Philip Morris must inform the Commission of any initiative capable of changing the status quo and that the Commission may also intervene with respect to events which are not intended by the parties but are capable of affecting their commercial rivalry.

8. What can be said of those submissions? The arguments advanced in support of the first seem to me to go too far; in other words, they ask of the Court more than it is able to give. The two applications, it will be recalled, seek to have a measure rejecting complaints submitted under Article 3 (2) (b) of Regulation No 17/62 declared void. I do not believe that in such cases the Court is entitled to verify all the conditions required for the application of Articles 85 and 86; I do not believe that to be the case because two factors militate against such a verification: on the one hand, the negative content of measures whereby a file is closed and, on the other, the strictly technical nature of the assessment which must be carried out by the administrative authority. Within the limits imposed by those factors, the examination required of the Court must necessarily conclude with recognition of the fact that the decision of 22 March 1984 takes account of all the disputed circumstances and is therefore free of manifest errors.

9. That conclusion, moreover, is firmly supported by the judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299. The Court held that under Article 85 (1) competition may be distorted ... not only by agreements which limit it as between the parties but also by agreements which prevent or restrict it in possible relations between one of the parties and third parties, at least in so far as they are intended to create or guarantee ... an unjustified advantage for the contracting parties. I believe that that principle is applicable in circumstances other than those considered by the Court in that case, and it therefore applies to clauses which, like the one at issue here, form part of an agreement for the purchase of a shareholding. They too can procure for the parties to them an unjustified advantage; and it is a fact, as is stated in the Remia judgment cited earlier, at paragraph 17, that the intrinsically lawful purpose of the agreement in which they appear does not mean that they are immune from an examination designed to determine whether they are compatible with the prohibitions contained in Article 85.

10. In view of all the foregoing considerations I propose that the Court should uphold the applications lodged by British American Tobacco Company Limited and Reynolds Industries Incorporated against the Commission of the European Communities and declare void the decision of 22 March 1984 concerning procedures Nos IV/30.342 and IV/30.926. Pursuant to Article 69 (2) of the Rules of Procedure, the costs should be borne by the Commission, which has failed in its submissions. Each of the interveners should bear its own costs.

1 Translated from the Italian.