Keywords
Summary

Keywords

1 Actions for annulment - Actionable measures - Meaning - Measures producing binding legal effects - Administrative proceeding in implementation of the competition rules - Failure of the Commission to respond to a request to act - Not an actionable measure

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC); Council Regulation No 17; Commission Regulation No 99/63)

2 Competition - Administrative proceedings - Investigation of complaints - Order of priority assigned by the Commission - Account taken of the 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 - Decision subject to judicial review

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

3 Actions for annulment - Pleas in law - Breach of essential procedural requirements - Court may consider that question of its own motion

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC))

4 Competition - Administrative proceedings - Investigation of complaints - Account to be taken of the Community interest in the investigation of a case - Factors to be taken into account - Need to clarify the legal position relating to the sector concerned - Motor vehicle distribution sector - Commission entitled, where several complaints allege similar unlawful conduct on the part of several undertakings, to investigate one complaint only - Open to the other complainants to apply to the national courts

(Council Regulation No 17, Art. 3)

5 Competition - Administrative proceedings - Termination of infringements - Adoption of interim measures - Powers of the Commission - Conditions governing the exercise of those powers

(Council Regulation No 17, Art. 3(1))

Summary

1 The acts or decisions against which an action for annulment may be brought under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) are those measures which produce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal position. Mere silence on the part of an institution cannot produce such effects unless express provision is made by Community law for it to do so.

Where there are no such express provisions laying down a deadline by which an implied decision is deemed to have been taken and prescribing the tenor of the decision, an institution's inaction cannot be deemed to be equivalent to a decision without calling into question the system of remedies instituted by the Treaty.

In respect of proceedings in implementation of the competition rules, since neither Regulation No 17 nor Regulation No 99/63 provide that failure on the part of the Commission to respond to a request to act may amount to a decision, its declining to do so cannot be construed as an actionable measure.

2 Where the Commission assigns different priorities to complaints submitted to it under Article 3 of Regulation No 17, it is entitled not only to decide the order in which the complaints are to be examined but also to reject a complaint for lack of a sufficient Community interest in further investigation of the case.

The discretion enjoyed by the Commission for that purpose is not unlimited, however. Accordingly, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and the reasons stated must be sufficiently precise and detailed to enable the Court of First Instance effectively to review the Commission's use of its discretion to define priorities.

That review may not lead the Court of First Instance to substitute its assessment of the Community interest for that of the Commission, but focuses on whether 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.

3 The Court of First Instance may of its own motion consider the question of infringement of essential procedural requirements and, in particular, of the procedural guarantees conferred by Community law.

4 In order to evaluate the Community interest in investigating a complaint submitted to it pursuant to Article 3 of Regulation No 17, the Commission must balance the significance of the alleged infringement as regards 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.

To that end, it is legitimate for the Commission to take account not only of the seriousness of the alleged infringement and of the extent of the measures of investigation required in order to prove it, but also of 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.

When investigating a complaint alleging infringement of Article 85 of the Treaty in the motor vehicle sector, since the respective rights and obligations of the authorised agents, car manufacturers and dealers have been defined and set out in the block exemption regulations, by a Commission communication and by judgments of both the Court of Justice and the Court of First Instance, the Commission is entitled to reach the conclusion - and commits no manifest error in so doing - that the national courts and administrative authorities were capable of dealing with the infringements alleged in the complaint and of protecting the complainant's rights under Community law.

Thus, where the Commission is faced with a situation where numerous factors give rise to a suspicion of anti-competitive conduct on the part of several large undertakings in the same economic sector, it is entitled to concentrate its efforts on one of the undertakings concerned, whilst at the same time indicating to the economic operators who may have suffered damage as a result of the anti-competitive conduct of the other parties concerned that it was open to them to bring an action in the national courts.

5 It is for the Commission, in the performance of the supervisory task conferred upon it by the Treaty and Regulation No 17 in competition matters, to decide, pursuant to Article 3(1) of that Regulation, whether it is necessary to adopt interim measures when these are requested.

In order for such measures to be granted, two conditions must be met. First, the practices of certain undertakings must be prima facie such as to constitute a breach of the Community rules on competition in respect of which a penalty could be imposed by a decision of the Commission. Secondly, there must be urgency in order to prevent the occurrence of a situation likely to cause serious and irreparable damage to the party applying for the measures or intolerable damage to the public interest.