Keywords
Summary

Keywords

Competition - Administrative procedure - Examination of complaints - Complaint alleging infringement of Articles 85 and 86 and of Article 90 of the Treaty - Rejection of the complaint relating to Articles 85 and 86 before completion of the examination - Whether permissible

(EC Treaty, Arts 85, 86 and 90)

Summary

When the Commission receives a complaint alleging infringement of Articles 85 and 86 and of Article 90 of the Treaty, it may reject the complaint relating to Articles 85 and 86 definitively, on the ground that those articles are not applicable and there is no Community interest in pursuing the investigation, before it has completed its examination of the complaint relating to Article 90.

The compatibility of national legislation with the Treaty rules on competition cannot be regarded as decisive in the context of an examination of the applicability of Articles 85 and 86 of the Treaty to the conduct of undertakings which are complying with that legislation. Although an assessment of the conduct of the undertakings requires a prior evaluation of the relevant national legislation, the sole purpose of that evaluation is to determine what effect that legislation may have on such conduct.

Articles 85 and 86 of the Treaty apply only to anti-competitive conduct engaged in by undertakings on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings.

Articles 85 and 86 may apply, however, if it is found that the national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition.

When the Commission is considering the applicability of Articles 85 and 86 of the Treaty to the conduct of undertakings, a prior evaluation of national legislation affecting such conduct should therefore be directed solely to ascertaining whether that legislation prevents undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition.