Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

II — Conclusions of the parties

The case in which I am to deliver my Opinion today concerns the limits placed on the powers and legal position of the Commission of the European Communities, the undertakings which are being investigated on suspicion that they abused their dominant position on the market, and the persons and groups of persons who have a legitimate interest in a finding that there has been a breach of Article 86 of the EEC Treaty. In particular, the case is concerned with the question of the extent to which the Commission may permit a complainant under Article 3 (2) (b) of Regulation No 17 to examine commercial documents belonging to an undertaking which the Commission is investigating on suspicion that it is acting in breach of Article 86 of the EEC Treaty.

1. The applicants, AKZO Chemie BV and AKZO Chemie UK Ltd, are part of the AKZO Group, which is the largest supplier in the Community of benzoyl peroxide, a chemical product which is used in the making of plastics and as a bleach for the treatment of flour.

2. On 15 June 1982, ECS requested the Commission of the European Communities, the defendant in this case, to institute proceedings against the applicants on the ground that they had infringed Article 86 of the EEC Treaty by pursuing a policy of predatory pricing designed to force ECS from the market.

3. By a decision of 29 July 1983 the Commission ordered AKZO Chemie UK Ltd, subject to a periodic penalty payment for failure to comply and pending the adoption of a decision concluding the Commission proceeding, to:

4. On 3 September 1984, the Commission issued a statement of objections addressed to the applicants, in which it alleged in particular that they had abused their dominant position on the market by threatening to sell to ECS's customers at particularly low, discriminatory and uneconomic prices and by actually selling or offering products on those conditions in order to take customers away from ECS and thereby do serious damage to the viability of its business. The statement of objections was accompanied by 127 annexes.

5. In order to exercise fully its right under Article 19 (2) of Regulation No 17 to be heard during the administrative procedure, ECS applied, by letter of 19 November 1984, for access to the annexes to the statement of objections.

II — Conclusions of the parties

1. The applicants claim that the Court should:

2. The Commission contends that the Court should:

3. The intervener contends that the Court should:

B — My opinion on this case is as follows :

I — Admissibility

1. The Commission and the intervener regard the application for annulment as inadmissible since there is no decision against which proceedings may be instituted under Article 173 of the EEC Treaty.

2. In my view, several groups of problems must be distinguished in considering the question of the admissibility of the application for annulment:

3. However, that does not apply to the applicants' claim that the defendant should be ordered to demand the return of the confidential documents transmitted to the intervener.

II — Substance

The applicants have based their application on three grounds:

1. Breach of the obligation of professional secrecy.

Article 214 of the EEC Treaty reads as follows :

Article 20 (2) of Regulation No 17 provides that:

Finally, Article 21 of Regulation No 17 provides as follows:

4. Costs

Since in my view the applicants should succeed in their main submissions and fail only in their claim concerning the consequences which the defendant should draw from a declaration by the Court that its decision is void, I consider that the defendant should be ordered to pay the costs pursuant to Article 69 of the Rules of Procedure, excluding the costs of the intervener. The intervener should be ordered to bear its own costs.

In conclusion, I propose that in Case 53/85 the Court should:

1 Translated from the German.

2 Regulation No 17 — First Regulation implementing Articles 85 and 86 of the Treaty (Official Journal, English Special Edition 1959-62, p. 87.)

3 Official Journal 1983, L 252, p. 13.

4 Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition 1963-64, p. 47).

5 An internal memorandum of the applicants concerning business relations with ECS.

6 Official Journal 1985, L 374, p. 1.

7 Judgment of 11 November 1981 in Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9 of the decision.

8 Judgment of 11 November 1981 in Case 60/81 IBM v Commission [1981] ECR 2639.

9 Judgment of 11 November 1981 in Case 60/81 supra paragraph 10 of the decision.

10 Judgment of 11 November 1981 in Case 60/81 supra.

11 Judgment of 17 January 1980 in Case 792/79 R Camera Carey Commission [1980] ECR 119, paragraph 19 of the decision.

12 Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ L 339, p. 1); since replaced by Regulation (EEC) No 2176/84 of 23 July 1984 (OJ L 201, p. 1).

13 Case 264/82 Timex Corporation and Others v Council and Commission [1985] ECR 849.

14 See Pernice in: Grabilz, Kommentar zum EWG-Vertrag,note 8 on Article 20 of Regulation No 17; Hummer in: Grabitz, Kommentar zum EWG-Vertrag, note 14 on Article 214.

15 See Hummer, op. cit., Gleiss/Hirsch, Kommentar zum EWG-Kartcllrcchl, note 9 on Article 20 of Regulation No 17

16 Gleiss/Hirsch, op. cit., note 13

17 Sec Pernice, op. cit., note 24 on Article 19 of Regulation No 17, Gleiss/Hirsch, op. cit., note II on Article 20 of Regulation No 17

18 Deringer, op. cit., note 9 on Article 20 of Regulation No 17; Pernice, op. cit., note 9 on Article 20 of Regulation No 17.

19 Judgment of 29 October 1980 in Joined Cases 209 to 215 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 46 of the decision; my italics.

20 Judgment of 20 March 1985 in Case 264/82 Tmex Corporation and Others v Council and Commission [1985] ECR 849, paragraph 29 et seq. of the decision.

21 See, for example, Gleiss/Hirsch, note 6 on Article 21 of Regulation No 17.

22 Judgment of 13 November 1978 in Case 87/78 Welding v Hauptzollamt Hambtirg-Waltershof [1978] ECR 2457.

23 See judgment of 4 July 1963 in Case 24/62 Germany v Commission [1963] ECR 63.