61992B0087(01)

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Procedure ° Intervention ° Persons having an interest ° Case concerning the validity of a decision applying the competition rules ° Action for the annulment of a decision exempting a system of selective distribution for de luxe cosmetics ° Association whose statutes specify that its object is to promote the cosmetics industry and which represents undertakings operating distribution systems such as that with which the decision is concerned

(EEC Statute of the Court of Justice, Art. 37, second para.; Rules of Procedure of the Court of First Instance, Art. 115)

In Case T-87/92,

BVBA Kruidvat, a company governed by Belgian law, established in Saint-Nicolas, Belgium, represented by Onno Willem Brouwer, of the Amsterdam Bar, and Yves van Gerven, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicant,

v

Commission of the European Communities, represented by Berend-Jan Drijber, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 92/428/EEC of 24 July 1992 relating to a proceeding under Article 85 of the EEC Treaty (Case No IV/33.542 ° Parfums Givenchy system of selective distribution) (OJ 1992 L 236, p. 11, "the Parfums Givenchy decision"),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: R. Schintgen, President, R. García-Valdecasas, H. Kirschner, K. Lenaerts and C.W. Bellamy, Judges,

Registrar: H. Jung,

makes the following

Order

1 By application lodged at the Registry of the Court of First Instance on 17 March 1993, the Comité de Liaison Européen de l' Industrie de la Parfumerie, des Produits Cosmétiques et de Toilette (European Liaison Committee of the Perfumes, Cosmetics and Toiletries Industry, hereinafter "Colipa"), an international scientific association governed by Belgian law, having its seat in Brussels, represented by Stephen Kon, Solicitor of the Supreme Court, and Francis Herbert, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Lydie Err, 60 Avenue Gaston Diderich, sought leave to intervene in Case T-87/92 in support of the defendant.

2 The application to intervene was made in accordance with Article 115 of the Rules of Procedure of the Court of First Instance and was submitted pursuant to the second paragraph of Article 37 of the (EEC) Statute of the Court of Justice which, by virtue of the first paragraph of Article 46 thereof, applies to proceedings before the Court of First Instance.

3 Pursuant to the third subparagraph of Article 116(1) of the Rules of Procedure, the President of the First Chamber referred the application to intervene to the chamber.

4 In its application to intervene, Colipa states that it is an association of the national trade federations of the Member States of the Communities, whose members are the manufacturers, importers and distributors of perfumes, beauty products and toiletries, and that its object is to promote the perfumes, cosmetics and toiletries industry. Many of the members of the national federations belonging to Colipa market their products by a selective distribution system.

5 In the pursuit of its object, Colipa submitted observations to the Commission during the procedure leading up to the adoption of the contested decision. Colipa considers that it has a direct interest in the decision both by reason of the activities of the members of the national federations and because the case could have a considerable effect on the perfumes sector in Europe. The Commission has stated in a press release that the Parfums Givenchy decision covers all the legal aspects relevant to the selective distribution of perfumes and cosmetics and determines the basic rules of Community law which will be applied to all the undertakings in that sector.

6 The application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure.

7 By document lodged at the Court Registry on 2 April 1993, the defendant informed the Court that it had no observations on the application to intervene.

8 By document lodged on 7 April 1993, the applicant asked the Court to dismiss the application to intervene and, if the application were to be allowed, to order Colipa to bear its own costs under Article 87(4) of the Rules of Procedure.

9 The applicant argues, essentially, that Colipa is neither the addressee of the decision nor empowered by its statutes to pursue an economic object which could give it an interest in the result of the case.

10 Regarding the second point, the applicant refers to Colipa' s object, as set out in Article 2 of its statutes (appended to the application to intervene), namely "to promote the ... perfumes industry", principally by carrying out scientific and legal studies and circulating their results. Article 1 of the Statutes specifies that Colipa is an "international scientific association governed by the Belgian Law of 25 October 1919, as amended by the Law of 6 December 1954". As an annex to its observations, the applicant produces the text of that Law, Article 1 of which provides that the object of such an association must be "philanthropic, religious, scientific, artistic or pedagogical". It thus considers that Colipa' s object must be assessed within that framework if its statutes are not to be interpreted in a manner inconsistent with the law governing them. It further states that the Fédération des Associations Internationales établies en Belgique (FAIB ° Federation of International Associations established in Belgium) is seeking, but has not yet obtained, an enlargement of the definition of the objects which international associations may pursue, to include economic objects.

11 The applicant submits that, in accordance with the order of the Court of Justice of 11 December 1973 in Joined Cases 41/73, 43/73 to 48/73, 50/73, 111/73, 113/73 and 114/73 Générale Sucrière and Others v Commission [1973] ECR 1465, paragraph 7, the interest of a legal person in intervening in a case must be assessed in the light of the objects specified in its constitutive document. Colipa' s statutes do not specify a pertinent object and it thus cannot establish an interest in the result of the case. The fact that Colipa submitted observations during the administrative procedure and has been allowed to intervene in the parallel Case T-19/92 Galec v Commission has no bearing on the matter if the question of the object of the association has not been raised before.

12 The Court notes that Colipa' s object, according to Article 2 of its statutes, is "to promote the perfumes, cosmetics and toiletries industry and to take charge of its economic and legal objectives". Colipa represents, at a European level, undertakings which manufacture, import and distribute such products, many of which operate selective distribution systems. The problems raised in the present case could lead the Court to rule in its judgment on questions of principle having an appreciable effect on the operation of selective distribution systems in the field of prestige cosmetics.

13 Since Colipa thus meets the requirements of the second paragraph of Article 37 of the (EEC) Statute of the Court, in particular in that its object, expressed in its statutes as being "to promote the perfumes ... industry" is prima facie sufficiently wide to give it an interest in the result of the case, it is not necessary for the Court to rule on the question of Belgian law raised by the applicant.

14 Colipa therefore has an interest in intervening in the present case in support of the defendant.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The Comité de Liaison Européen de l' Industrie de la Parfumerie, des Produits Cosmétiques et de Toilette is granted leave to intervene in Case T-87/92 in support of the form of order sought by the defendant.

2. A period shall be prescribed in which the intervener must state in writing the pleas relied on in support of the form of order which it seeks.

3. The Registrar shall serve on the intervener a copy of every document served on the parties.

4. Costs are reserved.

Luxembourg, 8 December 1993.