Judgment — ECLI:EU:T:1999:317
Date: 1999-12-13
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: General;Pleas in law;Bringing matters before the Commission;Termination of infringements: powers of the Commission
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - inadmissible;Action for failure to act
Origin: France

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Meaning — Measures producing 
binding legal effects — Administrative proceeding in implementation of the competi­
tion 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) 
II - 3587 
SUMMARY — JOINED CASES T-189/95, T-39/96 AND Τ-123/96 
3. Actions for annulment — Pleas in law — Breach of essential procedural require­
ments — 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 — Adop­
tion of interim measures — Powers of the Commission — Conditions governing the 
exercise of those powers 
(Council Regulation No 17, Art. 3(1)) 
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 affect­
ing 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 provi­
sions 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 implemen­
tation of the competition rules, since 
neither Regulation No 17 nor Regula­
tion 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 differ­
ent 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 Com­
munity interest in further investigation 
of the case. 
The discretion enjoyed by the Commis­
sion for that purpose is not unlimited, 
however. Accordingly, the Commission 
II - 3588 
SGA V 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 assess­
ment 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 infringe­
ment 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 infrin­
gement and of the extent of the mea­
sures 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 eco­
nomic operators affected by that con­
duct. 
When investigating a complaint alle­
ging infringement of Article 85 of the 
Treaty in the motor vehicle sector, since 
the respective rights and obligations of 
the authorised agents, car manufactur­
ers and dealers have been defined and 
set out in the block exemption regula­
tions, by a Commission communica­
tion 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 com­
plainant's rights under Community 
law. 
II - 3589 
SUMMARY — JOINED CASES T-189/95, T-39/96 AND Τ-123/96 
Thus, where the Commission is faced 
with a situation where numerous fac­
tors 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 con­
centrate its efforts on one of the under­
takings concerned, whilst at the same 
time indicating to the economic opera­
tors 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 perfor­
mance of the supervisory task confer­
red upon it by the Treaty and Regula­
tion 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 under­
takings 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. Sec­
ondly, 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. 
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