Keywords
Summary

Keywords

1. Competition – Administrative procedure – Examination of complaints – Assessment of the Community interest in investigating a case

(Arts 81 EC and 82 EC)

2. Competition – Agreements, decisions and concerted practices – Effect on trade between Member States – Meaning

(Arts 81 EC and 82 EC)

3. Appeals – Grounds – Grounds of a judgment vitiated by a confusion between two legal concepts – Operative part well founded on other legal grounds – Rejection

Summary

1. The Commission is responsible for defining and implementing Community competition policy and for that purpose has a discretion as to how it deals with complaints lodged with it. When the Commission determines the order of priority for dealing with the complaints brought before it, it may legitimately refer to the Community interest. In this context, it is required to assess in each case how serious the alleged interferences with competition are and how persistent their consequences are. That obligation means in particular that it must take into account the duration and extent of the infringements complained of and their effect on the competition situation in the European Community.

Consequently, in a situation where intra-Community trade is found to be affected, a complaint relating to infringement of Articles 81 EC and 82 EC will be investigated by the Commission rather than by the national competition authorities if there is sufficient Community interest. That may inter alia apply where the infringement complained of is capable of giving rise to serious impediments to the proper functioning of the common market.

(see paras 31, 53-54)

2. The concepts of, first, an effect on intra-Community trade and, secondly, of serious impediments to the proper functioning of the common market are two separate concepts.

The effect on trade between Member States serves as a criterion to define the scope of Community competition law, in particular Articles 81 EC and 82 EC, as against that of national competition law. If it is established that the alleged infringement is not capable of affecting intra-Community trade or of affecting it only in an insignificant manner, then Community competition law, and more specifically Articles 81 EC and 82 EC, do not apply. Furthermore, if an agreement between undertakings is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it has an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might harm the attainment of the objectives of a single market between Member States.

As for the concept of serious impediments to the proper functioning of the common market, it may constitute one of the criteria for evaluating whether there is sufficient Community interest to necessitate the investigation of a complaint by the Commission.

An effect on intra-Community trade does not in itself give rise to serious impediments to the proper functioning of the common market.

(see paras 48-52)

3. A confusion of concepts by the Court of First Instance in a judgment under appeal is not capable of giving rise to the annulment of that judgment if the operative part of the judgment is shown to be well founded for other legal reasons.

(see para. 55)