Case T-273/09

Associazione ‘Giùlemanidallajuve’

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Abuse of dominant position — Rejection of a complaint — Legitimate interest — Community interest — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law’

Summary of the Order

Competition — Administrative proceedings — Examination of complaints — Examination only of the facts and points of law brought to the Commission’s attention — No obligation to conduct an investigation and give a decision on the existence of an infringement

Competition — Administrative proceedings — Examination of complaints — Decision to take no further action motivated by the possibility of the claimant bringing the matter before the national courts — Legality — Condition — Possibility for the claimant’s rights to be safeguarded by the national courts

Competition — Administrative proceedings — Examination of complaints — Commission’s duty to adopt a decision as to the existence of an infringement — Absence — Rejection of a complaint on the ground that the practices complained of had ceased — Conditions — Taking into account the Community interest in investigating a case — Criteria for assessment

Where the Commission bases its reasoning for the rejection of the complaint denouncing alleged infringements of Article 81 EC and 82 EC on two pillars, namely lack of legitimate interest and lack of Community interest, and either of the two pillars alone is a sufficient ground on which to reject the complaint, examination of the plea concerning misapplication by the Commission of the concept of legitimate interest will no longer be necessary if the plea alleging misapplication of the concept of Community interest is rejected. (see paras 31-32)

Where the Commission decides upon certain priorities in examining complaints brought before it concerning infringement of Articles 81 EC and 82 EC, it may establish the order in which those complaints are to be examined and refer to the Community interest in a particular case as being a criterion for determining priority. In assessing the Community interest in continuing its examination of a case, the Commission must, inter alia, balance the significance of the alleged infringement as regards 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 for it to perform, under the best possible conditions, its task of making sure that Articles 81 EC and 82 EC are complied with. Thus, in a situation where intra-Community trade is found to be affected, a complaint relating to infringement of Articles 81 EC and 82 EC will only be investigated by the Commission if there is sufficient Community interest. That can be the position, in particular, where the infringement complained of is capable of giving rise to serious impediments to the proper functioning of the common market. The review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it for dealing with complaints must not lead them to substitute their assessment of the Community interest for that of the Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers. (see paras 33-36)

The concept of affecting trade between Member States, first, and the concept of serious impediments to the proper functioning of the market, second, are separate concepts, clearly defined by the case-law. The concept of affecting trade between Member States is a condition for the application of Articles 81 EC and 82 EC. Where intra-Community trade is not affected, those provisions cannot apply. On the other hand, the issue of serious impediments to the proper functioning of the market is a matter within the discretion of the Commission, on the basis of which it may refrain from an examination of a complaint. That concept constitutes one of the criteria for evaluating whether there is sufficient Community interest in the investigation of a complaint by the Commission. In that context, the Commission is required to assess in each case how serious the alleged interferences with competition are and how persistent their effects. That obligation means in particular that the Commission must take into account the duration and extent of the infringements complained of and their effect on the competition situation in the Union. The Commission is entitled to refrain from examining a complaint in the absence of a significant effect on the functioning of the common market, even if the conduct complained of affects trade between Member States within the meaning of Articles 81 EC and 82 EC. (see paras 49-52)

In competition matters, the Commission is lawfully entitled to decide not to pursue a complaint denouncing practices which were subsequently discontinued provided that it states reasons for its decision. However, if the Commission wishes to base its reasoning on the fact that the conduct has ceased, it is bound to verify whether the anti-competitive effects are still on-going and to take account of the seriousness and duration of the infringement in assessing the Community interest in pursuing the complaint. If it complies with those obligations, it may dismiss the complaint even if the infringements are lengthy and very serious, provided that it does not rely on facts that are substantively incorrect or commit a manifest error of assessment. (see para. 59)

In the context of a complaint for breach of the rules of competition, the fact that a national court or national competition authority is already dealing with a case concerning the compatibility of an agreement or practice with Articles 81 EC and 82 EC is a factor which the Commission may take into account in evaluating the extent to which a case displays a Community interest. Where the effects of the infringements alleged in a complaint are essentially confined to the territory of one Member State and where proceedings in respect of those infringements have been brought before the courts and competent administrative authorities of that Member State, the Commission is entitled to reject the complaint for lack of a Community interest, provided however that the rights of the complainant can be adequately safeguarded by the national courts, which presupposes that the latter are in a position to gather the factual information necessary in order to determine whether the practices at issue constitute an infringement. (see paras 67-68)

In the context of an action against a decision rejecting a complaint in a competition matter, the Commission cannot be criticised for failing to take account of facts which the complainant did not bring to its attention and which could only have been discovered by an investigation. Since the Commission’s only obligation is to examine the factual and legal particulars brought to its notice by the complainant, it is not incumbent on the Commission to prove that it has adopted measures of investigation. It is under no obligation to initiate procedures to establish possible infringements of Community law and that the rights conferred on complainants do not include the right to obtain a final decision as to the existence or non-existence of the alleged infringement. (see paras 81, 101)