Keywords
Summary

Keywords

1. Procedure ° Action brought by a natural or legal person seeking a ruling against natural or legal persons ° Outside the jurisdiction of the Community judicature

(EC Treaty, Art. 164 et seq.)

2. Actions for failure to act ° Failure to act ° Concept ° Refraining from acting ° Action not giving satisfaction ° Precluded

(EC Treaty, Art. 175)

3. Actions for annulment ° Judgment annulling the contested measure ° Measures giving effect ° Refusal to take measures going beyond the replacement of the measure annulled ° Dispute relating to the extent of the obligation to give effect to the judgment ° Remedy ° Action for failure to act ° Challenge to the legality of the measure adopted to replace the measure annulled ° Remedy ° Action for annulment

(EC Treaty, Arts 173, 175 and 176)

4. Competition ° Administrative procedure ° Examination of complaints ° Decision to close the file ° Judicial review

(EC Treaty, Art. 85)

5. Competition ° Community rules ° Scope ratione materiae ° Conduct imposed by State measures ° Precluded ° Conditions

(EC Treaty, Art. 85)

6. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision applying competition rules

(EC Treaty, Art. 190)

7. Procedure ° Originating application ° Formal requirements ° Identification of the subject-matter of the dispute ° Summary of the pleas raised ° Action seeking reparation for damage caused by a Community institution

(EEC Statute of the Court of Justice, Art. 19; Rules of Procedure of the Court of First Instance, Art. 44(1)(c)

Summary

1. The Community courts have no jurisdiction to give a ruling in a direct action on the compatibility of natural or legal persons' conduct with the provisions of the Treaty.

2. Article 175 of the Treaty refers to failure to act in the sense of failure to take a decision or to define a position, and not failure to adopt a measure different from that desired or considered necessary by the persons concerned. By adopting, in order to give effect at a complainant' s request to a judgment annulling a measure, a decision to replace the measure in question, the Commission defines a position, clearly and definitively, on the complainant' s request.

3. A dispute relating to the conformity of an institution' s conduct with its obligations under Article 176 of the Treaty in the event that one of its measures has been annulled should be the subject of an action for failure to act where the dispute relates to whether, in addition to replacing the measure annulled, the institution was also bound to take other measures relating to other acts which were not challenged in the initial action for annulment. Where what is sought is solely to contest the legality of the measure adopted to replace the measure annulled, that issue must be raised in an action for annulment under Article 173 of the Treaty.

4. Except where the subject-matter of a complaint falls within its exclusive purview, the Commission is under no obligation to rule on whether or not there has been an infringement of Article 85 of the Treaty alleged in a complaint. However, where the Commission rejects a complaint on the ground that there has been no infringement of the competition rules of the Treaty, it is under a duty to set out in its decision the facts and considerations on which that conclusion is based. In such cases, judicial review should involve verifying whether the facts have been accurately stated and whether there has been any manifest error in assessing the facts or a misuse of powers or any errors of law.

5. Even if the conduct of an undertaking may escape the application of Article 85(1) of the Treaty on account of a lack of autonomy on its part, it does not follow that all conduct sought or directed by the national authorities falls outside the scope of that provision. Thus, if a State measure encompasses the elements of an agreement concluded between traders in a given sector or is adopted after consulting the traders concerned and with their agreement, those traders cannot rely on the binding nature of the rules in order to escape the application of Article 85(1).

In contrast, where a binding regulatory provision capable of affecting the free play of competition within the common market and of affecting trade between Member States has no link with conduct on the part of undertakings of the kind referred to in Article 85(1) of the Treaty, mere compliance by undertakings with such a regulatory provision falls outside the scope of Article 85(1). In such a case, the margin of autonomy on the part of economic operators implied by Article 85(1) of the Treaty is absent.

In the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission is entitled to find that there was a want of autonomy on the part of the undertakings in question only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses.

6. The statement of reasons for a decision adversely affecting a person must, first, enable the person concerned to ascertain the matters justifying the measure adopted so that he can if necessary defend his rights and verify whether or not the decision is well founded and, secondly, enable the Community courts to exercise their power of review.

In that respect, the Commission is not obliged to adopt a position, in stating the reasons for the decisions which it is led to take in order to apply the competition rules, on all the arguments relied on by the parties concerned in support of their request; it is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision.

7. Under Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, an application must state the subject-matter of the proceedings and a summary of the pleas in law on which it is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to give a ruling, if necessary without other supporting information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and comprehensible.

In order to satisfy those requirements, an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage