From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9235.4.4 Competition                
Date: Sun, 08 Nov 92 16:05:58 +0100
Organization: VDJ Nuernberg

ENR   : 2420
HD    : 4. Competition
TI    : Judgment of the Court of First Instance - competition - obligations of
        the Commission when a complaint is lodged
RF    : JUS 9235.4.4
AB    : Automec Srl, an Italian BMW dealer, lodged a complaint with the
        Commission for infringement of Article 85 of the Treaty by BMW in
        that BMW refused to renew Automec's dealership contract.
        In its complaint, Automec asked the Commission to adopt a decision
        ordering BMW:
        - to terminate its infringement of Article 85 of the Treaty,
        - to fill the orders placed by Automec;
        - to authorize Automec to use the BMW trademarks.
        On 28 February 1990, the Commission adopted a decision by which it:
        - refused to order BMW to deliver its products to Automec and to
        authorize Automec to use the BMW trademark, on the grounds that it
        had no jurisdiction;
        - refused to examine the question further with regard to the point
        of the complaint concerning the obtention of a decision requiring
        BMW to terminate its alleged infringement, on the grounds that
        disputes between Automec and BMW were pending before Italian courts.
        Under these conditions, Automec brought an action before the Court
        of First Instance for annulment of the Commission decision of 28
        February 1990. The Court notably was to:
        - determine whether the Commission had infringed Community law by
        rejecting the application for adoption of the orders in question,
        on the grounds that it did not have jurisdiction to take these
        measures;
        - define the Commission's obligations when a natural or legal
        person lodges a complaint under Article 3 of Regulation No. 17.
        With regard to the first point, the Court observed that, from the
        standpoint of civil law, the infringement of Article 85 (1) of the
        EEC Treaty may result in the annulment of an agreement, among other
        consequences. According to the Court, national law must define the
        other consequences associated with an infringement of Article 85
        of the Treaty, such as an obligation to make good prejudice caused
        to a third party or possibly to conclude a contract. The national
        judge can order an economic agent to contract with another agent.
        The Court concluded that, under the circumstances of the case, the
        Commission did not have the power to adopt specific orders,
        obliging BMW to supply the petitioner and to allow it to use the
        BMW trademarks. Consequently, the Court ruled that the Commission
        did not infringe Community law by rejecting the application for
        adoption of such orders on the grounds that it had no jurisdiction.
        With regard to the obligations of the Commission when a complaint
        is lodged, the Court first recalled the following principles:
        - obtaining a decision as to the alleged existence of an
        infringement is not among the rights conferred on the parties
        lodging a complaint under Regulations No. 17 and 99/63,
        - as the Commission does not have an obligation to make a decision
        on the existence of an infringement, it cannot be forced to
        investigate the question, since the only purpose of an
        investigation could be to find proof of the existence or the non-
        existence of an infringement;
        - the fact that the Commission gives different degrees of priority
        to the dossiers brought before it in the competition field is in
        keeping with the obligations imposed on the Commission by Community
        law;
        - although the Commission cannot be bound to investigate, it is
        required to attentively examine the facts and legal circumstances
        brought to its attention by the party lodging the complaint, in
        order to assess whether the elements show behaviour which may
        distort competition within the common market and affect trade between
        Member States;
        - when, as in this case, the Commission has decided not to pursue
        the complaint without effecting an investigation, the control of
        legality to be exercised by the Court consists of verifying whether
        the disputed decision is not based on materially inaccurate facts,
        does not entail an error in law, nor any manifest error of
        appreciation or misuse of powers. By applying these principles to the
        case, the Court examined whether the Commission had motivated its
        decision correctly on refusing to pursue the complaint, by arguing
        that it has the power to give various degrees of priority to the
        affairs brought before it on one hand, and by referring to the
        interest of the Community that the case presents as a criterion of
        priority on the other. The Court observed that, unlike the civil
        judge, whose role is to safeguard subjective rights of private
        parties in their reciprocal relations, an administrative authority
        must act in the public interest. Consequently, the Court continued,
        the Commission can legitimately refer to the Community interest in
        determining the degree of priority to be given to the various cases
        brought before it. The Court specified, however, that the Commission
        cannot simply make an abstract reference to Community interest; it
        must give the grounds in law and in fact which brought it to the
        conclusion that the interest of the Community is not sufficient to
        justify the adoption of investigatory measures. In this context, the
        Court examined whether the Commission was justified in concluding
        that the Community interest was not sufficient to pursue examination
        of the case, on the grounds that the party lodging the complaint,
        which had already brought the dispute on the termination of
        dealership contracts before the Italian courts, could also submit the
        question of the compliance of the BMW dealership system with Article
        85 of the Treaty to these courts. Here, the Court observed that:
        - the national judge can rule on the compliance of a dealership
        system with Article 85 of the Treaty;
        - although the national court does not have the power to order the
        termination of the infringement he observed and to inflict fines
        on companies which committed that infringement, whereas the
        Commission does have that power, nevertheless, it can apply Article
        85 (2) of the EEC Treaty in relations between private parties, and
        declare that the agreement is nil;
        - by providing for this civil remedy, the Treaty stipulates that
        national law gives the judge the power to safeguard the rights of
        companies suffering from unfair competition.
        The Court observed that in this case, Automec did not provide any
        element from which it can be deduced that Italian law does not
        provide for a legal means by which the national court can
        effectively safeguard Automec's rights. Consequently, the Court
        continued, on referring Automec to the national court, the
        Commission did not misjudge the extent of protection that the
        national court can provide, given the rights it holds under Article
        85 (1) and (2) of the EEC Treaty.
        The Court concluded that Automec's action must be rejected.
        Judgment of the Court of First Instance of 18 September 1992, Case
        T-24/90 Automec Srl v. Commission of the European Communities, not
        yet published.
CT    : Competition; Complaint
DT    : 921016