Keywords
Summary

Keywords

1. Competition - Administrative proceedings - Investigation of complaints - Order of priority assigned by the Commission - Account taken of Community interest in the investigation of a case - Discretion enjoyed by the Commission - Commission obliged to state reasons for a decision not to investigate a complaint further - Judicial review

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 3)

2. Competition - Agreements - Prohibition - Block exemptions - Regulation No 123/85 - Withdrawal of the exemption - Commission's exclusive competence - Scope - Retroactive withdrawal of the exemption - Not possible

(Council Regulation No 17, Art. 8; Commission Regulation Nos 123/85, Art. 10, and 1475/95, Art. 8)

3. Competition - Administrative proceedings - Investigation of complaints - Assessment of the Community interest in investigation of a case - Account taken of the cessation of practices in question - Conditions

(Council Regulation No 17, Art. 3)

4. Competition - Administrative proceedings - Investigation of complaints - Assessment of the Community interest in investigation of a case - Account taken of the existence of a number of complaints alleging similar conduct - Assessment of all the evidence - Joinder of administrative proceedings - Commission's discretion

(Council Regulation No 17, Art. 3)

5. Procedure - Production of new pleas in law in the course of proceedings - Conditions - Amplification of an existing plea - Limits

(Rules of Procedure of the Court of First Instance, Art. 48(2))

6. Competition - Administrative proceedings - Investigation of complaints - Commission's obligations - Observance of a reasonable period - Breach - Consequences - Annulment of the decision rejecting a complaint - Excluded

(Council Regulation No 17, Art. 3)

Summary

1. When it decides to assign different priorities to the examination of the complaints submitted to it under Article 3 of Regulation No 17, the Commission may not only decide on the order in which they are to be examined but also reject a complaint on the ground that there is insufficient Community interest in further investigation of the case, except where the complaint falls within its exclusive competence.

However, the discretion which the Commission has for that purpose is not unlimited. Thus, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed to enable the Court effectively to review the Commission's use of its discretion to define priorities.

That review must not lead the Court to substitute its assessment of the Community interest for that of the Commission but focuses on whether or not the contested decision is based on materially incorrect facts, or is vitiated by an error of law, a manifest error of appraisal or misuse of powers.

( see paras 36, 42 )

2. The Commission does not have exclusive competence to find that a dealership agreement does not meet the conditions for the block exemption laid down in Regulation No 123/85 and, hence, that that regulation does not apply to the contract concerned. Admittedly, the situation is different with regard to competence to withdraw the benefit of the block exemption pursuant to Article 10 of Regulation No 123/85. However, that article does not provide for retroactive withdrawal of the benefit of the block exemption. The same holds for Article 8 of Regulation No 1475/95, which replaced Regulation No 123/85 with effect from 1 October 1995. Article 8 of Regulation No 17, which permits retroactive withdrawal of an exemption in certain circumstances, does not apply to block exemptions but only to individual exemptions.

( see para. 38 )

3. As regards the evaluation of the Community interest in investigating a complaint in competition cases, the Court must, inter alia, examine whether it is clear from the decision to close the file that the Commission balanced the significance of the impact which the alleged infringement may have on the functioning of the common market, the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required for it to perform, under the best possible conditions, its task of making sure that Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC) are complied with.

It is not open to the Commission, when deciding the order of priority for dealing with the complaints brought before it, to regard as excluded from its field of action, a priori, certain situations which fall within the scope of its obligations under the Treaty. The Commission is in particular required to assess in each case how serious the alleged interferences with competition are.

It is legitimate for the Commission, when assessing the Community interest in investigating a complaint, to take into account the need to clarify the legal position relating to conduct alleged in the complaint and to define the rights and obligations under Community law of the various economic operators affected by that conduct.

The Community interest in investigating a complaint of infringement of the Community competition rules does not necessarily end when the alleged practices have ceased. In particular, the Commission must ascertain whether anti-competitive effects of such a practice continue and whether the seriousness of the alleged interferences with competition or the persistence of their effects are not such as to give the complaint a Community interest.

( see paras 46-47, 50, 52 )

4. When assessing the Community interest in investigating a complaint the Commission must not investigate it in isolation but rather in the context of the situation on the relevant market in general. The existence of a number of complaints alleging similar conduct by the same operators is one of the factors the Commission must take into account in its assessment of the Community interest.

Similarly, where the Commission assesses the likelihood of being able to establish the existence of an infringement and the extent of the investigative measures needed for that purpose it must take into account all the evidence in its possession and must not merely assess separately the items of evidence submitted by each complainant and conclude that each of the complaints taken in isolation is not supported by sufficient evidence.

However, the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, since the conduct of an investigation falls within the scope of its discretion. In particular, the fact that there are a number of complaints from operators belonging to different categories such as, in the context of the sale of motor vehicles, independent resellers, authorised intermediaries and dealers cannot preclude the dismissal of such of those complaints as appear, according to the evidence available to the Commission, to be unfounded or of insufficient Community interest. In such cases, the fact that the Commission treated the different complaints separately cannot be regarded as such as being improper.

( see paras 55-57 )

5. In a dispute between a complainant and the Commission following a decision not to investigate further a complaint of infringement of the competition rules, the production, in an annex to the Commission's defence, of statements by the undertakings concerned by the complaint cannot be regarded as a new plea in law within the meaning of Article 48(2) of the Rules of Procedure where the Commission has previously mentioned the existence of such observations in a letter to the complainant.

( see para. 67 )

6. Although it is true that the Commission is required to adopt within a reasonable time a decision on a complaint under Article 3 of Regulation No 17, the fact that it exceeds a reasonable time, even if proven, does not necessarily in itself justify annulment of the contested decision.

As regards application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding an infringement, where it has been proved that infringement of that principle has adversely affected the ability of the undertakings concerned to defend themselves. Except in that specific circumstance, failure to comply with the principle that a decision must be adopted within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17.

( see paras 93-94 )