Order — ECLI:EU:T:2001:261
Date: 2001-11-08
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: Costs
Procedure: Action for annulment;Application as to costs
Origin: Ireland

Summary of the Judgment 
1. Competition — Administrative procedure — Principle of full disclosure between 
parties — Scope — Limits — Disclosure of the file to complainants 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 17, 
Art. 19) 
2. Competition — Administrative procedure — Examination of complaints — Obliga­
tions of the Commission 
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SUMMARY — CASE T-65/96 
3. Acts of the institutions — Statement of reasons — Obligation — Scope — Commis­
sion decision rejecting a complaint alleging infringement of the competition rules — 
Reference to a document annexed 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
4. Competition — Dominant position — Relevant market — Delimitation — Criteria 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
5. Acts of the institutions — Statement of reasons — Contradictory — Effects 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
1. The principle that there must be full 
disclosure in the administrative proce­
dure before the Commission in matters 
concerning the competition rules 
applicable to undertakings applies only 
to undertakings which may be pena­
lised by a Commission decision finding 
an infringement of Articles 85 or 86 of 
the Treaty (now Articles 81 EC and 82 
EC), since the rights of third parties, as 
laid down by Article 19 of Regulation 
No 17, are limited to the right to 
participate in the administrative proce­
dure. In particular, third parties cannot 
claim to have a right of access to the 
file held by the Commission on the 
same basis as the undertakings under 
investigation. 
(see para. 34) 
2. Once the Commission decides to pro­
ceed with an investigation of a com­
plaint referred to it, it must, in the 
absence of a duly substantiated state­
ment of reasons, conduct it with the 
requisite care, seriousness and diligence 
so as to be able to assess with full 
knowledge of the case the factual and 
legal particulars submitted for its 
appraisal by the complainants. 
Where the Commission's investigation 
was carried out over a period of more 
than four years, during which the 
Commission collected comments from 
a significant number of undertakings in 
the sector, analysed them and gave the 
complainant an opportunity to put 
forward, on several occasions, all such 
information as could be taken into 
account, the Commission carried out 
all its activities with the requisite care, 
seriousness and diligence. 
(see paras 45-46) 
3. A reference in a document to a separate 
document must be considered in the 
light of Article 190 of the EC Treaty 
(now Article 253 EC) and does not 
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KISH GLASS V COMMISSION 
breach the obligation to state reasons 
incumbent on the Community institu­
tions. 
In particular, a Commission decision 
sent to the author of a complaint that 
gave rise to an investigation, which 
referred to a document containing the 
grounds of the rejection of the com­
plaint, disclosed with sufficient clarity 
the reasons for which that complaint 
was rejected, and thus fulfilled the 
obligation to state reasons under Arti­
cle 190 of the Treaty. 
(see para. 51) 
4. For the purposes of investigating the 
possibly dominant position of an 
undertaking on a given market, the 
possibilities of competition must be 
judged in the context of the market 
comprising the totality of the products 
which, with respect to their character­
istics, are particularly suitable for satis­
fying constant needs and are only to a 
limited extent interchangeable with 
other products. 
The absence of interchangeability 
between different types and dimensions 
of a product from the point of view of 
the specific needs of the user does not 
imply that, for each of those types and 
dimensions, there is a distinct market 
for the purposes of determining whe­
ther there is a dominant position. 
Furthermore, since the determination 
of the relevant market is useful in 
assessing whether the undertaking con­
cerned is in a position to prevent 
effective competition from being main­
tained and behave to an appreciable 
extent independently of its competitors 
and customers and consumers, an 
examination to that end cannot be 
limited to the objective characteristics 
only of the relevant products but the 
competitive conditions and the struc­
ture of supply and demand on the 
market must also be taken into con­
sideration. 
(see para. 62) 
5. A contradiction in the statement of the 
reasons on which a decision is based 
constitutes a breach of the obligation 
laid down in Article 190 of the Treaty 
(now Article 253 EC) such as to affect 
the validity of the measure in question 
if it is established that, as a result of 
that contradiction, the addressee of the 
measure is not in a position to ascer­
tain, wholly or in part, the real reasons 
for the decision and, as a result, the 
operative part of the decision is, wholly 
or in part, devoid of any legal justifica­
tion. 
(see para. 85) 
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