Keywords

Summary



Keywords

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1. Actions for annulment of measures ° Measures against which actions may be brought ° Definition ° Measures with binding legal effects ° Preliminary measures ° Exclusion ° Letter from Commission staff rejecting complaint as to competition ° Inclusion ° Admissibility of an action by the complainant

(EEC Treaty, Art. 173)

2. Competition ° Administrative procedure ° Consideration of complaints ° Obligation to investigate ° Absence ° Decision to close the file ° Judicial review

(Council Regulation No 17, Art. 3)

3. Competition ° Administrative procedure ° Consideration of complaints ° Determination of priorities by the Commission ° Taking account of Community interest in investigating a case ° Obligation to state reasons for the decision to close the file ° Judicial review

(EEC Treaty, Art. 190; Council Regulation No 17, Art. 3)

4. Competition ° Administrative procedure ° Consideration of complaints ° Decision to close the file on ground of lack of Community interest because the practice complained of would shortly cease as a result of the conclusion of an arrangement with a non-member country ° Review by the court of the import of that arrangement

(Council Regulation No 17, Art. 3)

5. Competition ° Administrative procedure ° Consideration of complaints ° Decision to close the file on ground that the authorities of a Member State permit the practice complained of ° Not permissible

(EEC Treaty, Arts 85 and 86; Council Regulation No 17, Art. 3)

Summary

1. Any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision against which an action for annulment may be brought, irrespective of the form of the measure. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision.

An action may be brought by the addressee in respect of a letter emanating from a member of the Commission' s staff in which the writer states clearly, giving reasons, that, unless new evidence is discovered, his department does not intend to investigate under competition law the agreement the subject-matter of the complaint sent to it and sets a time-limit for submitting observations.

It is in the interests of the proper administration of justice and of the correct application of Articles 85 and 86 of the Treaty that natural or legal persons who are entitled pursuant to Article 3(2)(b) of Regulation No 17 to request the Commission to find an infringement of those articles should, if their request is not complied with either wholly or in part, be able to institute proceedings in order to protect their legitimate interests.

2. Although the Commission is not under a duty to carry out an investigation when a complaint under Article 3 of Regulation No 17 is submitted to it, it is however required to consider carefully the factual and legal issues brought to its attention by the complainant, in order to assess whether those issues indicate conduct which is liable to distort competition within the common market and affect trade between Member States. Where the Commission has decided to reject the complaint without holding an investigation, the purpose of judicial review by the Community judicature is to ensure that the challenged decision is based on a correct assessment of the facts and that it is not vitiated by any error of law, manifest error of assessment or abuse of power

3. The Commission is entitled to determine the relative priority to be accorded to the different competition cases pending before it by reference to their Community interest. This possibility does not have the effect of removing such determinations from the scope of judicial review since, as a result of the requirement to state reasons, set out in Article 190 of the Treaty, the Commission may not confine itself to referring in the abstract to that interest. On the contrary, a decision by which the Commission rejects, on the ground of insufficient or no Community interest, a complaint submitted to it is required to set out the legal and factual considerations which led the Commission to conclude that there was not sufficient Community interest to justify an investigation. In particular, when the conduct complained of appears, by its very nature, liable to impair the functioning of the common market by affecting trade between Member States, it is for the Commission to specify the scale of the effects of the alleged infringement on intra-Community trade and to explain in what way those effects are not of sufficient magnitude for it to intervene.

It is by reviewing the lawfulness of those reasons that the Community judicature discharges its duty to review the lawfulness of Commission acts.

4. Where the Commission gives as a reason for rejecting a complaint alleging infringement of the Community competition rules that the conclusion of a commercial consensus between the Community and a non-member State would shortly put an end to the alleged anti-competitive practice, namely the restriction of imports from that State into one of the Member States, the Community judicature should consider whether the conclusion of that consensus is such as to put an end to that practice so that the question arises whether there is a sufficient Community interest in investigating practices which essentially relate to past events.

That is not the case where the consensus is only an unwritten commitment, purely political in import and not made within the context of the common commercial policy, coupled with a transitional period of application of six years and where, although it applies to all types of national restrictions on imports, it appears neither in itself to entail the termination of the practice at issue nor necessarily to apply to it, since the practice is attributable not to the State authorities but to operators on the relevant market. It is accordingly not such as to justify by its existence a decision rejecting the complaint.

5. The Commission cannot, to justify rejecting a complaint alleging infringement of the Community competition rules, rely on the fact that practice complained of, namely the restriction by agreement between economic operators on imports into a Member State of products from a non-member State, is known to the national authorities and permitted by them for reasons of commercial policy.

Such practices are liable to fall within the scope of the Treaty competition rules if they have as their object or effect to restrict imports into a Member State. The fact that the conduct of those economic agents was known, permitted or even encouraged by national authorities is, in any event, irrelevant to the question whether the Treaty competition rules apply.