JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
30 September 2016 (*) (1)
(Competition — Abuse of dominant position — Decision finding an infringement of Article 102 TFEU — Setting of fees by the Split Port Authority for port services in respect of domestic traffic at maximum levels — Rejection of a complaint — Case being dealt with by a competition authority of a Member State — No EU interest)
In Case T‑70/15,
Trajektna luka Split d.d., established in Split (Croatia), represented by M. Bauer, H.-J. Freund and S. Hankiewicz, lawyers,
applicant,
v
European Commission, represented by C. Giolito, C. Urraca Caviedes and I. Zaloguin, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU for the annulment of Commission Decision C(2014) 9236 final of 28 November 2014, rejecting the complaint lodged by the applicant concerning infringements of Article 102 TFEU allegedly committed by the Split Port Authority or of Articles 102 and 106 TFEU committed by the Republic of Croatia or the Split Port Authority (Case AT.40199 — Port of Split),
THE GENERAL COURT (Seventh Chamber),
composed, at the time of deliberation, of M. van der Woude, President, I. Ulloa Rubio (Rapporteur) and A. Marcoulli, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The applicant, Trajektna luka Split d.d., is the private operator of the passenger terminal at the Port of Split in Croatia. Its core activities concern passenger terminal operations in domestic and international traffic including the mooring and unmooring of ships and the embarkation and disembarkation of passengers and vehicles.
2        After its privatisation in 2003, the applicant was granted a concession for a period of 12 years. The legal basis, objectives and terms of the concession are still the subject of proceedings between the applicant and the Split Port Authority before the Croatian courts.
3        For its services, the applicant charges port users, such as ferry operators, fees which cannot exceed the amounts fixed by the Split Port Authority, in accordance with the Croatian regulatory provisions for ports. Those provisions provide that that authority is to ensure that port services are accessible to port users and that, at the same time, the concessionaire remains capable of providing those services.
4        On 22 March 2013, the applicant submitted a complaint to the Croatian National Competition Authority (‘the NCA’) against the Split Port Authority on the basis that the fee amounts applicable for port services were imposed on it at prohibitively low maximum levels, in particular for domestic traffic, and that the same was true of the fees for the supply of water.
5        On 22 August 2013, the applicant also submitted a complaint to the European Commission on the grounds that, first, the Split Port Authority was infringing Article 102 TFEU and abusing its dominant position by fixing port service fees for domestic traffic at prohibitively low maximum levels, thus preventing the applicant from managing its business profitably; secondly, the authority was infringing Article 102 TFEU and was abusing its dominant position by requiring the applicant to charge fees for supplying water to vessels in the port which were lower than the fees that the cargo terminal operator was authorised to charge, thus placing it at a competitive disadvantage; thirdly, the Split Port Authority was infringing, together with the Republic of Croatia, Article 102 TFEU read together with Article 106 TFEU, by requiring the applicant to apply much lower port service fees for domestic traffic operators than for international traffic operators. That complaint was followed by letters addressed to the Commission dated 26 September and 8 November 2013 and 23 April 2014.
6        On 19 September 2013, the NCA gave a decision rejecting the applicant’s complaint.
7        On 27 September 2013, Commission staff interviewed the applicant.
8        On 2 May 2014, in a telephone conversation, the Commission told the applicant that it did not consider its complaint to be a priority.
9        On 23 July 2014, the Commission sent a preliminary assessment letter to the applicant, informing it of its intention to reject the complaint on the ground that there was insufficient EU interest and that the NCA had already dealt with the case.
10      On 19 August 2014, the applicant sent its observations to the Commission by letter.
11      On 28 November 2014, the Commission adopted Decision C(2014) 9236 final rejecting the applicant’s complaint (‘the contested decision’).
12      The contested decision rejected the complaint on the following three grounds: first, the likelihood of establishing the existence of an infringement was limited; secondly, the national courts and authorities appeared best placed to decide the issues raised; thirdly, the impact on the functioning of the internal market appeared to be limited.
Procedure and forms of order sought
13      The applicant brought the present action by application lodged at the Court Registry on 12 February 2015.
14      In accordance with Article 106(3) of the Court’s Rules of Procedure, where no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In the present case, the Court considers that it has sufficient information available to it from the material in the file and has decided, in the absence of such a request, to give a decision without an oral part of the procedure.
15      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay its own costs and those of the applicant.
–        refer the case back to the European Commission for further investigation and a new decision;
–        make such further order as it considers appropriate.
16      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The jurisdiction of the General Court
17      By its third and fourth heads of claim, the applicant requests the Court to order the Commission to conduct a fresh investigation, to give a new decision and to make any other appropriate orders.
18      It should be noted that, according to settled case-law, it is not for the Court, when exercising the jurisdiction to annul acts conferred on it by Article 263 TFEU, to issue directions to the EU institutions. The only possibility open to the Court under Article 264 TFEU is to annul the measure concerned. It is for the institution concerned to take, pursuant to Article 266 TFEU, the measures necessary to give effect to any judgment ordering annulment, exercising, subject to review by the EU judicature, the discretion which it has for that purpose, in compliance with both the operative part and grounds of the judgment it is required to give effect to and the provisions of EU law (see, to that effect, judgments of 24 January 1995, Ladbroke Racing v Commission, T‑74/92, EU:T:1995:10, paragraph 75, and 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 77).
19      Therefore, the third and fourth heads of claim must be rejected as being brought before a court which has no jurisdiction to hear them.
Substance
20      In the present case, the applicant puts forward two pleas in law in support of the action. In the first place, it submits that the Commission committed a manifest error of assessment and an error of law by infringing its obligation to conduct an accurate assessment of EU interest. In the second place, it argues that the Commission committed a manifest error of assessment in not taking into account all the relevant matters of fact and law. Since those two pleas in law largely coincide, they should be joined in a single plea, alleging an error of assessment and an error of law in the assessment of EU interest.
21      In support of that plea, the applicant disputes the Commission’s assessment under each of the three grounds referred to in the contested decision (see paragraph 12 above) and submits that the Commission was best placed to examine the disputed practices (see paragraph 5 above) in that other complaints had been referred to it in respect of those practices.
The first ground, concerning the likelihood of establishing the existence of an infringement
22      The applicant maintains that the Commission did not carry out its own assessment but relied solely on the wording of the NCA decision without asking the applicant for any explanations. First, in order to reject the EU interest, the Commission is precluded from arguing that the NCA had already dealt with the case since it found, in the contested decision, that Article 13(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) was not applicable. Secondly, the NCA did not apply EU law but simply based its decision on national competition law and did not carry out a proper assessment of the situation even under national law.
23      In the first place, it should be noted that the Commission, contrary to what is argued by the applicant, did not merely refer in the contested decision to the wording of the NCA’s decision but did indeed conduct an analysis of the situation before concluding, in paragraph 34 of the contested decision, that there were insufficient grounds for it to conduct a more detailed investigation.
24      Before arriving at that conclusion, the Commission gave the applicant the opportunity to explain its point of view. The Commission officials, as was noted in paragraph 7 above, had a meeting with the applicant on 27 September 2013. During that meeting questions were put to the applicant. As the Commission explained, it was in particular for the applicant to try and show how the port authority, which was not in competition with it, could have an interest in its exit from the market. The applicant was also invited to explain how the alleged abuse of a dominant position could have lasted for several years without having led to its exit from the market, despite its supposedly precarious financial position. The applicant had the opportunity to justify its position, inter alia through its letters dated 8 November 2013 and 23 April 2014, referred to in the contested decision.
25      Furthermore, the Commission also did indeed take into account the circumstances of the case as they appear in the complaint and the subsequent exchanges which it sets out in paragraphs 3 to 11 of the contested decision and which are summarised in paragraphs 1 to 3 above.
26      In the second place, whereas the applicant argues that, in order to rule out the existence of an EU interest, the Commission is precluded from arguing that the NCA had already dealt with the case, while acknowledging, moreover, that Article 13(2) of Regulation No 1/2003 did not apply to the present case, it should be recalled that that provision, as is the case for all of the provisions of that regulation, refers to the situations in which Articles 101 and 102 TFEU are implemented (judgment of 21 January 2015, easyJet Airline v Commission, T‑355/13, EU:T:2015:36, paragraph 43).
27      Consequently, the Commission may reject a complaint on the basis of Article 13(2) of Regulation No 1/2003 only where it has been the subject of a review carried out in the light of EU competition law rules (judgment of 21 January 2015, Easyjet Airline v Commission, T‑355/13, EU:T:2015:36, paragraph 44).
28      However, in the present case, although the parties agree on the fact that the NCA took its decision solely on the basis of Croatian law, it should be noted that, in paragraphs 14 and 15 of the contested decision, the Commission merely confirmed the argument presented by the applicant in its letter of 19 August 2014 that the provisions of Article 13(2) of Regulation No 1/2003 could not be used since the NCA took its decision solely on the basis of national law.
29      The Commission was therefore right to consider, in paragraphs 15 and 18 of the contested decision, that Article 13(2) of Regulation No 1/2003 was not applicable in the present case.
30      Furthermore, as the Commission explains in its defence, which the applicant does not dispute, the provisions of national law on which the applicant based its complaint before the NCA are the equivalent of Articles 101 and 102 TFEU.
31      The Commission was therefore also correct to point out, in paragraph 21 of the contested decision, that the reasoning behind that authority’s decision provided a good indication that the likelihood of establishing the existence of an infringement of Article 102 TFEU appeared limited.
32      The Commission could therefore adopt the reasoning followed by the NCA without itself repeating a similar analysis.
33      In the third place, in respect of the applicant’s argument that the NCA did not apply EU law and did not carry out a proper assessment of the situation, as just noted in paragraph 30 above the applicant does not dispute that the provisions of national law on which it based its complaint are equivalent to Articles 101 and 102 TFEU. Consequently, it must be held that the conclusions of the NCA would have been identical if that authority had carried out its own analysis in the light of those articles.
34      Moreover, economic operators which are allegedly victims of an infringement cannot regard the Commission as an appellate body capable of annulling the decisions of a national authority which has not upheld their complaint. The review of decisions of the competition authorities of Member States is a matter for national courts alone, which perform an essential function in the application of EU competition rules (see, to that effect, judgment of 21 January 2015, easyjet Airline v Commission, T‑355/13, EU:T:2015:36, paragraph 20).
35      Therefore, the argument that the NCA did not apply EU law and did not carry out a proper assessment of the situation cannot succeed.
36      The applicant also points out that the Commission, in paragraph 22 of the contested decision, stated that the issue of discrimination did not seem to be a competition law issue. According to the applicant, although it raised that issue in its complaint, it withdrew it in its letter of 19 August 2014. In referring to that argument, the Commission committed a manifest error of assessment.
37      In that regard, it should be remembered that the Commission must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. It must also consider attentively all the matters of fact and of law which the complainant brings to its attention (see judgment of 11 July 2013, BVGD v Commission, T‑104/07 and T‑339/08, not published, EU:T:2013:366, paragraph 157 and the case-law cited)
38      In the present case, the applicant raised the issue of discrimination in its complaint. Moreover, it is not apparent from the contested decision that the Commission based the first ground for rejection of that complaint on the mere finding that there was no discrimination. The applicant cannot therefore reasonably complain that in the contested decision the Commission found that there was no discrimination, even though the applicant stated in its letter of 19 August 2014 that its complaint no longer covered that issue.
39      Furthermore, the fact remains that the contested decision is not based on that single issue and its outcome would have been the same if the Commission had not considered it.
40      Therefore, it follows from the foregoing that the applicant’s arguments in respect of the first ground must be rejected.
The second ground, concerning the assertion that the national courts and authorities appear best placed to deal with the questions raised.
41      First, according to the applicant, the fact that the contested decision does not provide any explanation why the national authorities are well placed shows that the Commission itself apparently does not consider that those authorities are well placed.
42      It must be held that that argument is irrelevant. It is the applicant itself which brought a complaint before the NCA (see paragraph 4 above). The applicant was therefore apparently itself convinced that the ANC was well placed and cannot call into question its own choice because it is not satisfied with the decision of the NCA. It is not for the Commission to approve or disapprove of the procedural choice made by the applicant.
43      Furthermore, even on the assumption, as the applicant argues, that the Commission was particularly well placed to deal with the case and the national authority, in the present case the NCA, was not well placed to do so, it should be recalled that complainant undertakings, such as the applicant, do not have a right to have their case dealt with by the Commission (judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 40 (not published)).
44      Secondly, the applicant submits that the Commission also erred in its finding that the national courts ‘appear[ed] to be well placed to handle the matters raised’.
45      As regards that issue, in respect of which the applicant refers to the judgment of 18 September 1992, Automec v Commission (T‑24/90, EU:T:1992:97), it should be recalled that it follows from that judgment that the power to apply the provisions of Articles 101 and 102 TFEU is vested concurrently in the Commission and the national courts. That conferral of competence is moreover characterised by the duty of sincere cooperation between the Commission and the national courts (judgment of 18 September 1992, Automec v Commission, T‑24/90, EU:T:1992:97, paragraph 90).
46      That judgment also states that, in the event of doubt, the national court may seek a preliminary ruling from the Court of Justice (judgment of 18 September 1992, Automec v Commission, T‑24/90, EU:T:1992:97, paragraph 92).
47      Furthermore, it should be noted that the Commission did not merely state, in the contested decision, that generally it should refuse to hear a case on the sole ground that the national courts had jurisdiction to hear it.
48      In paragraphs 24 to 27 of that decision, the Commission stated that there were already proceedings before the national courts in related disputes. In particular, in paragraph 26 of the contested decision, the Commission noted that the decisions taken by Split Port Authority in 2003 and 2005 concerning the imposition of fees had been disputed by the applicant before the Trgovački sud u Splitu (Commercial Court, Split, Croatia) on the basis of Croatian law. That court gave two decisions in favour of the Split Port Authority but the applicant appealed against those judgments to the Visoki trgovački sud (High Commercial Court, Croatia) which set aside those judgments on procedural grounds.
49      In those circumstances, reasons pertaining to procedural economy and the sound administration of justice militate in favour of the case being considered by the courts to which related questions had already been referred (see, to that effect, judgment of 18 September 1992, Automec v Commission, T‑24/90, EU:T:1992:97, paragraph 88).
50      Lastly, in the present case, the applicant has not produced any evidence from which it might be inferred that Croatian law provides no legal remedy enabling the national courts to safeguard the applicant’s rights in a satisfactory manner. On the contrary, as has already been stated (see paragraph 30 above), the applicant does not in particular challenge the Commission’s assertion that the provisions of national law on which the applicant based its complaint before the NCA are equivalent in national law to Articles 101 and 102 TFEU.
51      Therefore, it was open to the Commission to maintain, in the present case, that the national courts appeared to be well placed to deal with the issues raised.
52      Thirdly, the applicant maintains that as the Commission did not yet have any experience of the ability of the Croatian national courts to deal with such a case, the Republic of Croatia being a relatively new member of the European Union, it was required to examine their ability in greater depth, since no national court had yet applied EU competition law.
53      It should be observed that the Republic of Croatia was able to join the European Union only after satisfying the political and economic criteria and the obligations incumbent upon candidate States, as established by the Copenhagen (Denmark) European Council of 21 to 22 June 1993. Those criteria require the candidate State, inter alia, to have the ability to take on the obligations of membership, in particular the ability to implement effectively the rules, standards and policies forming the EU legal framework.
54      Therefore, the ability of the Croatian courts to apply EU law cannot be called into question as a matter of principle.
55      In the present case, it must be stated that the applicant has not produced any specific evidence to demonstrate the inability of the Croatian courts to assess the situation at issue.
56      Fourthly, the applicant argues that the Commission has not taken account of the fact that the decisions on the fees set by the Split Port Authority were vitiated by various conflicts of interest involving some of the members of its governing council.
57      In that regard, Articles 101 and 102 TFEU, which are directed at undertakings, are not intended to ensure compliance with the principles of good administration in the decisions taken by national administrative bodies.
58      Therefore, it follows from the foregoing that the arguments of the applicant in respect of the second ground must be rejected.
The third ground, concerning the impact on the functioning of the internal market.
59      First, the applicant argues that the argument set out in paragraph 28 of the contested decision that the disputed practice started during the years 2003 to 2005, that being well before the accession of the Republic of Croatia to the European Union, is irrelevant.
60      In that regard, suffice it to note that in paragraph 28 of the contested decision the Commission merely states that as the disputed practice started at a date prior to the Republic of Croatia’s accession, the rules of EU competition law cannot apply in respect of that period and the conduct of the Split Port Authority should be assessed in accordance with national competition law, which the applicant does not dispute.
61      Moreover, in applying the national competition law, the NCA applied a law containing similar provisions to Articles 101 and 102 TFEU, as was noted in paragraph 30 above.
62      Secondly, the applicant disputes the argument advanced in paragraphs 29 to 31 of the contested decision that the concession granted to it was due to expire in 2015, so that the Commission risked finding itself in a situation where it was investigating a practice which had ceased. The applicant argues that it follows from the proceedings before the national courts that its concession does not expire until June 2016, the date up to which a court could rule on the extent of that concession. Furthermore, the disputed practice would undoubtedly continue after the subsequent grant of the concession to another undertaking.
63      As to that argument, it should be recalled that it is for the complainant to bring to the Commission’s notice the matters of fact and of law underlying its complaint. Before rejecting a complaint on the ground that the practices complained of do not infringe EU competition rules or do not fall within their scope, the Commission is not required, when considering a complaint, to take into account facts which have not been brought to its notice by the complainant. The Commission cannot, therefore, be criticised, in the context of an action against a Commission decision rejecting a complaint in a competition matter, for not taking account of facts which the complainant did not bring to its attention and which could only have been discovered by an investigation (see judgment of 24 November 2011, EFIM v Commission, T‑296/09, not published, EU:T:2011:693, paragraph 41 and the case-law cited).
64      In the present case, it is apparent from the documents before the Court that the fact that a Croatian court was about to rule on issues relating not to the imposition of fees, as in the cases referred to in paragraph 48 above, but to the concession held by the applicant, is information that was not brought to the attention of the Commission in the administrative proceedings. The Commission did not, therefore, in any event, have to take this into account. Furthermore, since the concession was granted for a period of 12 years, it was due to come to an end in 2015. The applicant does not demonstrate how the fact that, because of ongoing proceedings, the concession might be extended by several months should substantially change the Commission’s assessment in the contested decision.
65      As for the applicant’s argument that the Split Port Authority would continue its practice even if a new concession holder took over the activities entrusted to it, it must be stated that that is an unsubstantiated supposition which, moreover, reveals nothing about the applicant’s current situation.
66      Thirdly, the applicant calls into question the Commission’s assessment, set out in paragraph 32 of the contested decision, concerning the extent of passenger traffic in the Port of Split.
67      In paragraph 32, it is stated that, contrary to what is claimed by the applicant in its letter of 19 August 2014, the Port of Split is not, based on the figures supplied by the Statistical Office of the European Union (Eurostat), the third port for passenger traffic in the Mediterranean and is not even within the twelve largest Mediterranean ports. Moreover, it is also stated that in 2012 and 2013, domestic passenger traffic represented 92% and 95% respectively of total passenger traffic in the Port of Split. The extent of passenger traffic in the Port of Split for the internal market seems, therefore, somewhat limited to justify further investigation by the Commission.
68      In the application, the applicant does not dispute the ranking of the Port of Split in respect of its passenger traffic compared with other Mediterranean ports but explains that it arrives at different results. According to the applicant, in 2013 international traffic represented 11% of all traffic.
69      The Commission contends that the difference in the results may be due to a different definition of the word ‘passengers’ or the calculation methods used. In that regard, the Commission points out that whilst the methods applied by Eurostat are explained on its website, the applicant provides no information on that point.
70      In any event, it must be observed that even if the figure put forward by the applicant were correct, it would mean that in 2013 domestic passenger traffic represented 89% of the Port of Split’s total passenger traffic. Therefore, a difference of a few percentage points between the applicant’s results, on the one hand, and those of the Commission, on the other hand, cannot call in question the Commission’s reasoning.
71      Therefore, it follows from the foregoing, that the applicant’s arguments in respect of the third ground must be rejected.
The fact that the Commission has had other complaints referred to it concerning the same case
72      The applicant maintains that, in accordance with point 22 of the Commission Notice on the handling of complaints by the Commission under Articles [101] and [102 TFEU] (OJ 2004 C 101, p. 65), the Commission was better placed to deal with the practices at issue since the applicant had submitted two complaints to the Commission in respect of infringements of Articles 56 and 107 TFEU.
73      As for the complaint concerning Article 56 TFEU, it should be noted that, in paragraph 22 of the contested decision, the Commission stated that competition law is not an adequate basis for the investigation of the applicant’s complaint and that it would bring proceedings under Article 258 TFEU in the event that the Croatian authorities did not provide a satisfactory reply following the Commission’s invitation to them to provide their comments under Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1).
74      The applicant does not dispute that paragraph in the application. Moreover, as was stated in paragraph 23 of the contested decision, the applicant itself admitted, in its letter of 19 August 2014, that unequal treatment of domestic and international traffic was not the subject of its complaint in the present case.
75      As for the complaint under Article 107 TFEU, it is sufficient to find that it is the subject of the proceedings lodged at the Court Registry under case number T‑57/15.
76      Furthermore, it should also be recalled that the Court cannot substitute its own assessment of the EU interest for that of the Commission by considering whether criteria other than those applied by the Commission in the contested decision should have led it to the conclusion that there was an EU interest in continuing its investigation of the case (judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 89 (not published)).
77      Therefore, it follows from the foregoing that the applicant’s arguments concerning the fact that the Commission has had other complaints concerning the same case referred to it must be rejected.
78      It follows from the foregoing that the plea in law must be rejected and the action dismissed in its entirety.
Costs
79      Under Article 134(1) 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.
80      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Trajektna luka Split d.d. to pay the costs.
Van der Woude
Ulloa Rubio
Marcoulli
Delivered in open court in Luxembourg on 30 September 2016.
[Signatures]
* Language of the case: English.
1       The present case is published by extracts.