Order — ECLI:EU:C:1997:404
Date: 1997-09-16
Language of the case: Dutch
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Intellectual, industrial and commercial property
Concepts: General;Appeals;Division of powers between the Commission and the authorities of the Member States;Bringing matters before the Commission
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Netherlands

Summary of the O r d e r 
1. Appeals — Pleas in Uw — Erroneous assessment of the facts — Inadmissibility 
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51) 
2. Competition — Administrative procedure — Examination of compUints — Obligation for 
the Commission to adopt a decision on the existence of an infringement — None — Deasion 
to close the file — Statement of reasons — Relevance for the assessment of the agreement at 
issue by national courts 
(EC Treaty, Art. 85, 86 and 189; Council Regulation No 17, Art. 3) 
3. Appeals — Pleas in Lw — Mere repetition of pleas and arguments presented before the Court 
of First Instance — Inadmissible — Dismissal 
(EC Statute of the Court of Justice, Arts 49 and 51; Rules of Procedure of the Court of Justice, 
Art. 112(l)(c)) 
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SUMMARY — CASE C-59/96 P 
4. Actions for failure to fulfil obligations — Commission's right of action — Discretion 
(EC Treaty, Art. 169) 
1. Under Article 168a of the Treaty and 
Article 51 of the Statute of the Court of 
Justice, an appeal may be based only on 
grounds relating to infringement of rules 
of law, to the exclusion of any appraisal 
of facts. 
2. Article 3 of Regulation N o 17 does not 
confer upon a person who lodges an 
application under that article the right to 
obtain from the Commission a decision 
within the meaning of Article 189 of the 
Treaty regarding the existence or other­
wise of an alleged infringement. When a 
complaint has been submitted to it, the 
Commission must, however, examine 
carefully the facts brought to its notice in 
order to decide whether they disclose 
conduct liable to distort competition in 
the common market and affect trade 
between Member States and inform the 
complainant of the reasons for its 
decision to close the file. The fact that the 
Commission could have granted an 
exemption under Article 85(3) of the 
Treaty in respect of an agreement or con­
certed practice, even if it breaches Article 
85(1), is sufficient reasoning for a decision 
rejecting a complaint against it, which 
does not definitively rule on the question 
whether or not there is an infringement 
of Article 85(1). 
Furthermore, it is always possible for an 
undertaking which considers itself to 
have been injured by anti-competitive 
behaviour, particularly when the Com­
mission decides not to pursue its com­
plaint, to take action before the national 
courts in order to enforce its rights under 
Articles 85(1) and 86 of the Treaty, which 
produce direct effects in relations 
between individuals. 
'Comfort letters', in so far as they are 
based only on the facts in the Commis­
sion's possession, reflect the Commis­
sion's assessment of those facts and bring 
to an end the procedure of examination 
by the Commission's departments; they 
do not have the effect of preventing 
national courts, before which the agree­
ments in question are alleged to be 
incompatible with Article 85, from reach­
ing a different finding as regards the 
agreements concerned, on the basis of the 
information available to them. Whilst it 
does not bind a national court, the opin­
ion expressed in such letters nevertheless 
constitutes a factor which national courts 
may take into account in examining 
whether the agreements or conduct in 
question are in accordance with the pro­
visions of Article 85. 
3. An appeal merely repeating or reproduc­
ing verbatim the pleas in law or argu­
ments previously submitted to the Court 
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KOELMAN V COMMISSION 
of First Instance, including those based 
on facts expressly rejected by that Court, 
fails to satisfy the requirements under 
Article 51 of the EC Statute of the Court 
of Justice and Article 112(l)(c) of the 
Rules of Procedure of the Court and is 
therefore manifestly inadmissible. In real­
ity, such an appeal amounts to no more 
than a request for re-examination of the 
application submitted to the Court of 
First Instance, which, by virtue of Article 
49 of the EC Statute of the Court of Jus­
tice, lies outside the jurisdiction of the 
Court of Justice. 
4. The Commission is not bound to com­
mence proceedings under Article 169 of 
the Treaty, but enjoys a discretion which 
precludes any right of individuals to 
require it to take a specific position. 
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