Opinion of the Advocate General — ECLI:EU:C:2001:7
Date: 2001-01-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - unfounded
Origin: Switzerland;Provisional data

Summary of the Judgment 
1. Competition — Administrative procedure — Examination of complaints — Obliga­
tion for the Commission to adopt a decision on the existence of an infringement — 
None — Account taken of Community interest attached to the investigation of a 
case — Commission's discretion 
(Council Regulation No 17, Art. 3) 
I - 3875 
SUMMARY — CASE C-449/98 P 
2. Competition — Administrative procedure — Examination of complaints — 
Account taken of Community interest attached to the investigation of a case — 
Criteria of assessment 
(Council Regulation No 17, Art. 3) 
3. Actions for annulment — Contested act — Assessment of legality on the basis of 
information available at the time when the act was adopted — Retrospective 
considerations — No effect 
(EC Treaty, Art. 173 (now Art. 230 EC)) 
1. Although a complainant is entitled to 
have any uncertainty as to the outcome 
of his complaint dispelled by means of 
a Commission decision, which may be 
the subject-matter of an application for 
judicial review, Article 3 of Regulation 
No 17 does not give him the right to 
insist that the Commission take a final 
decision as to the existence or non­
existence of the alleged infringement 
and does not oblige the Commission to 
continue the proceedings, whatever the 
circumstances, right up to the stage of a 
final decision. 
The existence of the discretion which 
the Commission enjoys to give differing 
degrees of priority to the complaints 
brought before it does not depend on 
the more or less advanced stage of the 
investigation of a case. That element 
forms part of the circumstances of the 
case which the Commission is required 
to take into consideration when exer­
cising its discretion. 
(see paras 35-37) 
2. The Commission, in the exercise of its 
discretion, must take into considera­
tion all the relevant matters of law and 
of fact in order to decide what action to 
take in response to a complaint. More 
particularly, it must consider atten­
tively all the matters of fact and of 
law which the complainant brings to its 
attention. However, in view of the fact 
that the assessment of the Community 
interest raised by a complaint depends 
on the circumstances of each case, the 
number of criteria of assessment to 
which the Commission may refer 
should not be limited nor, conversely, 
I - 3876 
IECC V COMMISSION 
should it be required to have recourse 
exclusively to certain criteria. 
(see paras 45-46) 
3. In the context of an application for 
annulment under Article 173 of the 
Treaty (now Article 230 EC) the leg­
ality of a Community measure must be 
assessed on the basis of the facts and 
the law as they stood at the time when 
the measure was adopted and cannot 
depend on retrospective considerations 
of its efficacy. 
(see para. 87) 
I - 3877