Opinion of the Advocate General — ECLI:EU:C:1997:234
Date: 1997-05-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Agreements, decisions and concerted practices;Free movement of goods;Quantitative restrictions;Concerted practices;Dominant position;State monopolies of a commercial character
Procedure: Action for annulment;Appeal - successful
Origin: United Kingdom

Summary of the Judgmen t 
Competition — Administrative procedure — Examination of compUints — Compkint alleging 
infringement of Articles 85 and 86 and of Article 90 of the Treaty — Rejection of the compUint 
relating to Articles 85 and 86 before completion of the examination — Whether permissible 
(EC Treaty, Arts 85, 86 and 90) 
I -6265 
SUMMARY — lOINED CASES C-359/95 P AND C-379/95 P 
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 Commu­
nity 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 undertak­
ings by national legislation or if the latter 
creates a legal framework which itself elimi­
nates 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 pro­
visions 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 affect­
ing such conduct should therefore be 
directed solely to ascertaining whether that 
legislation prevents undertakings from 
engaging in autonomous conduct which pre­
vents, restricts or distorts competition. 
I - 6266