Judgment — ECLI:EU:T:2008:9
Date: 2008-01-16
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Concepts: General;Applications by natural or legal persons;Bringing matters before the Commission
Procedure: Action for annulment - unfounded
Origin: Belgium

summary way that it found that AIA did not engage in excessive pricing, without allowing the applicants to know the figures used in its analysis or to identify the calculations behind the refusal to open an in-depth investigation. 164 Further, the applicants claim that the Commission failed in its duty of care and infringed the principle of sound administration. In accordance with settled case-law, it is for the Commission, when supplied with sufficient prima facie evidence of the existence of an abuse of a dominant position as a result of excessive pricing, to establish beyond doubt that the practices complained of are either non-existent or pure conjecture or speculation. However, there is no suggestion in the contested decision that the Commission examined the prima facie evidence put forward by the applicants during the administrative procedure. Further, the contested decision does not include any information about AIA’s costs and revenues as supplied in AIA’s response to the Commission’s request for information. 165 Second, the applicants claim in the reply that the fundamental reason which the Commission put forward in the contested decision to justify the rejection of the complaint is the lack of Community interest. However, the Commission did not provide adequate reasoning in the contested decision as to precisely what that Community interest comprises. 166 The applicants accept that the Commission has a certain discretion in fixing its priorities according to the degree of Community interest, and accordingly that it may reject a complaint when it considers that there is insufficient Community interest to justify the initiation of an in-depth investigation (Case T‑24/90 Automec v Commission, cited in paragraph 91 above). However, although the lodgment of a complaint does not oblige the Commission to initiate an investigation, that institution is nevertheless required to examine with all due care the factual and legal aspects of the complaint in order to determine whether they disclose conduct that may distort competition in the common market (Schmidt v Commission, cited in paragraph 66 above, and Riviera Auto Service and Others v Commission, cited in paragraph 91 above). 167 It follows, according to the applicants, that the Commission cannot refer to a lack of Community interest in the abstract if it is rejecting the complaint on that ground (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85). It is required to disclose in a clear and unequivocal fashion, and not in a summary way, the matters of fact and of law which led it to conclude that there was no Community interest, so as to enable the Community judicature to exercise its powers of review of the pleas in law invoked and the applicant to defend its rights (Case T‑575/93 Koelman v Commission [1996] ECR II‑1, paragraph 83, and Asia Motor France and Others v Commission, cited in paragraph 97 above, paragraph 103). Nor can the Commission simply invoke lack of priority as an excuse for not initiating an investigation. It is required to assess how serious the alleged infringements are and how persistent their effects (Commission Notice on the handling by the Commission of complaints lodged under Articles 81 EC and 82 EC (OJ 2004 C 101, p. 65, point 44)). 168 In the present case, the Commission did not examine the complaint with due care and failed to evaluate correctly the factual and legal particulars of the case before deciding to reject it for lack of Community interest. Consequently, contrary to Article 253 EC, the contested decision failed to set out properly and clearly the considerations of fact and of law on the basis of which the complaint was rejected, with the result that the applicants are not in a position to assert their rights before the Court and the Court is not able to carry out its review of legality. 169 Furthermore, the Commission did not ensure that the Treaty is properly applied, particularly the competition rules. In order to fulfil its functions conferred by Article 85 EC, and in view of the objectives of Article 3(g) EC, the Commission should have investigated the matter and established whether an infringement of Article 82 EC had in fact taken place. 170 The applicants maintain in that regard that case-law applies three strict criteria to the Commission’s right to reject a complaint for lack of Community interest, namely the significance of the alleged infringement for the functioning of the common market, the probability of being able to establish the existence of the infringement, and the scope of the investigation required in order for the Commission to be able to fulfil under the best possible conditions the task of ensuring that Articles 81 EC and 82 EC are complied with (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 86, and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 42). Given AIA’s dominant position and the significance of the potential infringement of Article 82 EC, they take the view that the Commission was not entitled to reject the complaint of 5 July 2002 for lack of Community interest, since the difficulty and the need for more resources for further investigations are not an excuse that can relieve the Commission of its obligations and responsibilities under the Treaty and certainly cannot be regarded as constituting adequate grounds for rejecting the complaint for lack of Community interest. 171 Finally, the Commission’s duty of care and diligence is more demanding in cases where it decides not to reject the complaint at an early stage for lack of Community interest. Although the Commission is not obliged to take up a complaint, it decided in the present case to take it up initially by undertaking a preliminary evaluation of the market power of the undertaking concerned and by accepting indirectly that there might be an infringement that could affect trade between Member States. It went on to reject the complaint because the likelihood of establishing an infringement was too small in the light of the findings of its initial limited investigation. According to the applicants, the Commission should have properly weighed up the probability of being able to establish the existence of the infringement through a full investigation against the significance of such an infringement for the functioning of the common market. However the Commission failed not only to carry out that balancing exercise, but also, as a result, to state clearly its conclusions on that balancing exercise. Thus, the applicants are unable to understand clearly on what basis the Commission considered that the infringement was not significant for the functioning of the common market. 172 The Commission contends that this plea should be rejected. Findings of the Court 173 First, it must be borne in mind that the contested decision is essentially based on the lack of Community interest in pursuing an investigation of the practices criticised in the complaint. That is the only ground on which the complaint of 5 July 2002 was rejected so far as the allegedly excessive passenger terminal utilities and airport car parking charges are concerned. As regards the alleged infringement related to the security charge, the Commission additionally took the view that the practices in question did not fall within the scope of Article 82 EC. 174 Next, it must be borne in mind that the Commission is under an obligation to state reasons if, as in this case, it declines to continue with the examination of a complaint for lack of Community interest. Since 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, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 90 and 91; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 29). 175 In the present case, it is apparent from the contested decision that the Commission analysed the evidence adduced by the applicants during the administrative procedure, that it compared the charges to those imposed at other established airports in the European Community, and that it sent a request for information to, inter alia, AIA. 176 Its conclusion that there was no Community interest in pursuing the investigation of the practices complained of was based on the finding that the likelihood of an infringement was small in the light of the evidence in the complaint and the results of an initial investigation, that the efforts required to establish any infringement of Article 82 EC would be disproportionate, and that the significance of the infringement complained of was low as regards the functioning of the common market (paragraphs 43, 78, 79, 92, 136 to 138 and 140 of the contested decision). As regards the alleged infringement related to the car parking charge, the Commission refers further to the fact that the centre of gravity of the infringement lies in Greece, with the result that the complainants could bring an action before the Greek courts or lodge a complaint with the national competition authority (paragraph 139 of the contested decision). 177 As regards the alleged infringement related to the security charge, the Commission explains in paragraphs 47 to 57 of the contested decision why it considers further that the activities in question do not fall within the scope of Article 82 EC. 178 Moreover, it follows from the analysis of the first plea in law that more precise figures for any calculations carried out by the Commission during the administrative procedure or for AIA’s costs and revenues were not necessary in order for the applicants to be aware of the reasons for the contested decision or to enable the Court of First Instance to undertake its review. 179 Accordingly, it must be held that the contested decision rejecting the complaint is sufficiently reasoned. 180 Finally, the applicants’ argument that the Commission is obliged, in a decision rejecting a complaint, to establish beyond any doubt that the practices complained of do not infringe the competition rules is an argument that concerns the lawfulness of the substance of the contested decision and cannot be accepted either. It has consistently been held that the Commission is not obliged to take a final decision as regards the existence or otherwise of an infringement of the Treaty rules on competition (GEMA v Commission, cited in paragraph 91 above, paragraphs 17 and 18; Ufex and Others v Commission, cited in paragraph 91 above, paragraph 87; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 75; and RivieraAuto ServiceandOthers v Commission, cited in paragraph 91 above, paragraph 48). 181 Second, the applicants make various submissions in the reply concerning the allegedly inadequate reasoning for a lack of Community interest in pursuing the investigation of the practices criticised in the complaint. 182 However, as is apparent from paragraphs 175 and 176 above and from the substantive examination of the first plea in law, it must be held that sufficient reasons are given in the contested decision on that point. In fact, the contested decision sets out clearly the matters of law or of fact which, according to the Commission, justified rejecting the complaint for lack of Community interest. 183 Furthermore, it must be noted that a number of arguments which the applicants raised in the reply in relation to the first plea in law concern errors of law or of assessment by the Commission in rejecting the complaint for lack of Community interest. This applies to the applicants’ argument that, by overlooking the significance of a possible infringement as regards the functioning of the common market, the Commission did not correctly weigh up the three criteria set out in Case T‑24/90 Automec v Commission, cited in paragraph 91 above (paragraph 86), for the rejection of a complaint for lack of Community interest. The same applies to the arguments that the Commission should have undertaken an in-depth investigation because AIA has a dominant position and the alleged abuse could affect trade between the Member States, or because it had decided not to reject the complaint at an earlier stage. 184 The applicants also maintain in the reply that the Commission did not examine with all due care the factual and legal aspects of the complaint and that it should have investigated the matter and established whether Article 82 EC had indeed been infringed. 185 As to whether the arguments referred to in paragraphs 183 and 184 above are included in the application, it must be observed that, while the applicants did not set out a plea in law relating specifically to the Commission’s alleged manifest error of assessment in considering that the practices criticised in the complaint did not represent a sufficient Community interest to justify an in-depth investigation, they nevertheless complained within the first plea in law of the fact that the Commission had not paid due attention to the content of the complaint before concluding that it was not in the Community interest to open an in-depth investigation. However, since the Commission must consider attentively the matters of fact and of law which a complainant brings to its attention in order to assess the Community interest in pursuing the investigation of a case (Schmidt v Commission, cited in paragraph 66 above, paragraph 19, and Ufex and Others v Commission, cited in paragraph 91 above, paragraph 86), the arguments put forward in relation to the first plea in law relate implicitly but necessarily to the Commission’s assessment of the Community interest in pursuing the investigation of the practices in question. It follows that the argument mentioned in paragraph 184 above is incorporated in the first plea raised in the application and that it has already been addressed in the Court’s assessment of that plea. 186 By contrast, the arguments mentioned in paragraph 183 above do not concern the assessment of the matters of fact and of law which the complainants brought to the Commission’s attention. They are, therefore, new submissions which are not included in the first plea in the application. Such submissions must be declared inadmissible under Article 48(2) of the Rules of Procedure (Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 156, and Case T‑274/02 Ritek and Prodisc Technology v Council [2006] ECR II‑4305, paragraph 75). 187 For the sake of completeness, as regards the criteria set out in Case T‑24/90 Automec v Commission, cited in paragraph 91 above (paragraph 86), it must be borne in mind that, in order to reject a complaint for lack of Community interest, the Commission must weigh up the significance of the alleged infringement for 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, so that it may perform, under the best possible conditions, its task of supervising compliance with Articles 81 EC and 82 EC (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 86; Riviera AutoService and Others v Commission, cited in paragraph 91 above, paragraph 46; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 42). 188 It must be held that, in the present case, the Commission gave priority to investigating two of the three criteria set out in the preceding paragraph, namely the probability of being able to establish the existence of an infringement and the extent of the investigative measures required. An in-depth investigation of the significance of the alleged infringement for the functioning of the common market was carried out by the Commission only in relation to the car parking charge (paragraphs 138 and 139 of the contested decision). 189 Nevertheless, the Court of Justice has also held that, since the assessment of the Community interest raised by a complaint depends on the circumstances of each case, the number of criteria to which the Commission may refer for its assessment should not be limited, nor conversely should it be required to have recourse exclusively to certain criteria (Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 79 and 80, and Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 58). 190 It follows from this that the Commission did not err in law in giving priority to the investigation of two of the three criteria set out in the case-law referred to in paragraph 187 above (Case C‑450/98 P IECC v Commission, cited in paragraph 189 above, paragraph 59). 191 As regards the other arguments advanced in the reply, it must be borne in mind that the Commission is not obliged to carry out an investigation when a complaint is lodged (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 76). Furthermore, when carrying out an initial investigation, it is not precluded thereby from rejecting the complaint for lack of Community interest. The existence of the Commission’s discretion in that regard does not depend on the stage to which the investigation of a case has advanced (Case C‑449/98 P IECC v Commission, cited in paragraph 92 above, paragraph 37). 192 Finally, the argument that the Commission is required to open an in-depth investigation where the undertaking to which the complaint relates holds a dominant position is unsupported by case-law and, on the contrary, is at odds with the Commission’s discretion in that area which has been recognised by the Community judicature (see, to that effect, Case C‑449/98 P IECC v Commission, cited in paragraph 92 above, paragraph 37, and Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 76). 193 It follows from all the foregoing that this last plea in law must also be rejected. The measures of organisation of procedure applied for 194 It must be noted that, as a result of the measures of organisation of procedure taken by the Court of First Instance, the Commission lodged a non-confidential version of AIA’s reply of 27 August 2004 to the Commission’s request for information. 195 However, the applicants are critical of the fact that neither the contested decision nor the non-confidential version of AIA’s reply of 27 August 2004 contains specific details of AIA’s costs and revenues. They request that the figures relating to security service costs and revenues supplied by AIA for 2001 to 2004 be submitted to the Court of First Instance, so that these can be verified and assessed in the light of their arguments to show that AIA is making excessive profits. They also seek the production of all documents proving the true cost of construction of the airport (and the names of the constructors and of the suppliers concerned), and an explanation of the economic reasons justifying the increase in the security charge in 2002. 196 In that regard, it must be held that it follows from the foregoing considerations in relation to the various pleas in law relied on by the applicants that the Court of First Instance has been able to rule on the present action in the light of the documents submitted by the parties during the written procedure and the documents supplied by the Commission in the context of the measure of organisation of procedure (Case T‑281/01 Huygens v Commission [2004] ECR‑SC I‑A‑203 and II‑903, paragraph 145). As regards, in particular, the lawfulness of the assessment of the Community interest made in the contested decision, it should be borne in mind, first, that the non-confidential version of AIA’s reply (p. 4) confirms that, as far as its air activities are concerned, AIA’s charges do not even cover its costs and, second, that the lawfulness of the Commission’s assessment does not depend on the material accuracy of the information supplied by AIA. It is, in particular, the complexity of the analysis which would have had to be undertaken to establish an infringement of Article 82 EC and the small probability of the existence of such an infringement which caused the Commission not to verify the reliability of the confidential information on AIA’s costs and revenues and to reject the complaint for lack of Community interest (see paragraphs 76, 78, 90 to 92, 135 and 140 of the contested decision). 197 Accordingly, the applicants’ applications must be dismissed in so far as they relate to documents other than the non-confidential version of AIA’s reply to the Commission’s request for information. 198 In the light of all those considerations, the action must be dismissed. Costs 199 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Isabella Scippacercola and Ioannis Terezakis to pay the costs. Vilaras Martins Ribeiro Jürimäe Delivered in open court in Luxembourg on 16 January 2008. E. Coulon M. Vilaras Table of contents Legal framework Community legal framework applicable to complaints relating to infringements of the competition rules of the EC Treaty Legal framework applicable until 30 April 2004 Legal framework in force from 1 May 2004 Greek legal framework Facts and administrative procedure The contested decision Procedure and forms of order sought by the parties Admissibility Arguments of the parties Findings of the Court Substance Preliminary observations First plea in law, alleging an error of law and a manifest error of assessment in that the Commission did not carry out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of car parking services, by failing to verify the reliability of the information supplied by AIA and by failing to examine one by one the economic and financial data submitted by the applicants Arguments of the parties Findings of the Court – Preliminary observations – The comparison between the charges levied at Athens airport and those imposed by other airports – The alleged failure to take sufficient account of the evidence submitted by the complainants during the administrative procedure – The failure to verify the information supplied by AIA Second plea in law, alleging an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity and, second, the car parking services did not constitute a relevant market for the purposes of that article Arguments of the parties Findings of the Court Third plea in law, alleging an error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights Arguments of the parties Findings of the Court Fourth plea in law, alleging an infringement of Article 253 EC and a departure from established rights and procedures Arguments of the parties Findings of the Court The measures of organisation of procedure applied for Costs * Language of the case: English.