Case T‑355/13

easyJet Airline Co. Ltd

v

European Commission

‛Competition — Abuse of a dominant position — Airport services market — Decision rejecting a complaint — Article 13(2) of Regulation (EC) No 1/2003 — Case dealt with by a competition authority of a Member State — Rejection of the complaint on priority grounds — Decision of the competition authority drawing conclusions, in competition law, from an investigation conducted under national legislation applicable to the sector in question — Obligation to state reasons’

Summary — Judgment of the General Court (Second Chamber), 21 January 2015

Competition — Division of jurisdiction between the Commission and national competition authorities — Right of the Commission to take account of measures undertaken by the national authorities

Competition — Administrative procedure — Commission decision to take no action on a complaint already heard and rejected on priority grounds by a national competition authority — Decision based on the conclusions of a decision of a national competition authority based on an investigation conducted under sectoral provisions of national law — Lawfulness

Competition — Division of jurisdiction between the Commission and national competition authorities — Commission decision to take no action on a complaint already heard and rejected on priority grounds by a national competition authority — Lawfulness

Competition — Division of jurisdiction between the Commission and national competition authorities — Commission decision to take no action on a complaint already heard and rejected on priority grounds by a national competition authority — Judicial review — Respective powers of the EU judicature and national courts

Competition — Administrative procedure — Examination of complaints — Decision of the Commission suspending the procedure — Discretion of the Commission — Statement of reasons for the decision to take no action — Scope — Judicial review

See the text of the decision. (see paras 17-20, 69, 70, 72)

The purpose of judicial review of a Commission decision based on Article 13(2) of Regulation No 1/2003 is to verify that the contested decision is not based on materially incorrect facts and that the Commission has not erred in law, made a manifest error of assessment or misused its powers in finding that a competition authority of a Member State has already dealt with a complaint. By contrast, 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. Thus, the General Court’s review must not lead to an assessment of the merits of the national competition authority’s decision or of the procedure or methodology used by the latter, which is a matter for the national courts. (see paras 20, 51)

The expression ‘complaint … which has already been dealt with by another competition authority’, appearing in Article 13(2) of Regulation No 1/2003, has a broad scope in that it is capable of including all cases of complaints which have been examined by another competition authority, whatever may have been the outcome. That literal interpretation is in accordance with the general scheme of that regulation, from which it is apparent that what matters is not the outcome of the review of the complaint by that competition authority, but the fact that it has been reviewed by that authority. That interpretation appears, moreover, to be consistent with one of the main objectives of Regulation No 1/2003, which is to establish an efficient decentralised system for applying EU competition rules. That regulation thus put an end to the previous centralised regime and, in accordance with the principle of subsidiarity, established a wider association of Member States’ competition authorities, authorising them to implement EU competition law. The contrary interpretation would have the effect of requiring the Commission to review a complaint systematically each time a competition authority of a Member State has investigated a complaint but has not taken one of the decisions envisaged by Articles 5 and Article 13(2) of Regulation No 1/2003. Such an obligation on the Commission would amount to transferring to the Commission the power to review decisions of those authorities, which is a matter for the national courts alone. It follows that the Commission may legitimately reject a complaint on the ground that it has already been rejected by decision of a competition authority of a Member State on priority grounds. (see paras 26-28, 33, 36, 37, 39, 40)

A decision of a national competition authority to reject a complaint on priority grounds constitutes a decision adopted on the basis of the provisions of the second paragraph of Article 5 of Regulation No 1/2003. (see paras 32, 34)

No provision of Regulation No 1/2003 prohibits a competition authority of a Member State from relying, in the investigations which it carries out with a view to ascertaining whether there has been compliance with EU competition law rules, on conclusions which it reached as part of the investigation carried out under different national legislation. The Commission may thus, in order to reject a complaint on the basis of Article 13(2) of Regulation No 1/2003, properly rely on the ground that a competition authority of a Member State has previously rejected that complaint following a review based on conclusions reached by that authority in the course of an investigation conducted under separate provisions of national law, on condition that that review was conducted in the light of the rules of EU competition law. (see paras 45, 46)

Article 13(2) of Regulation No 1/2003, and indeed the provisions of that regulation as a whole, refers to the ‘competition authority of a Member State’ without distinguishing between the different departments of that authority. Consequently, it is unnecessary to establish the composition of the teams which investigated the applicant’s complaint on the basis of legislation other than competition law, since the national competition authority conducted a review of the applicant’s complaint in the light of competition law and it is apparent that that authority was properly entitled to rely on the analysis carried out in connection with the complaint based on the other legislation. (see para. 60)