Keywords

Summary



Keywords

1. Actions for annulment – Actionable measures – Measures producing binding legal effects

(Art. 230 CE)

2. Actions for annulment – Action against a Commission decision relating to an application for negative clearance or for exemption adopted pursuant to Regulation No 17 – Judgment annulling a measure – Effects

(Art. 230 EC; Council Regulations Nos 17 and 1/2003)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Adverse effect on competition – Criteria for assessment

(Art. 81(1) EC)

Summary

1. A Commission decision which grants only limited clearance to certain aspects of an agreement coupled with an exemption for a period shorter than that sought for other aspects thereof produces binding legal effects such as to affect the interests of the parties to an agreement between undertakings which have notified that agreement in order to obtain negative clearance or, failing that, an exemption for the entire duration of that agreement. The action of one of those parties, which seeks annulment of that decision only in so far as it implies that the agreement falls in part within the scope of Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area is, consequently, admissible.

(see paras 45-46)

2. The Commission is obliged, where a decision relating to an application for negative clearance or for exemption which it has adopted pursuant to Regulation No 17 is annulled, to take a new decision on the provisions of the notified agreement affected by that annulment and to adjudicate on the application for negative clearance, by reference to the date of notification and by carrying out its examination under Regulation No 17. The fact that Regulation No 1/2003 has since put an end to the notification procedure therefore has no effect on the enforcement of a judgment granting the application for annulment of such a Commission decision.

(see para. 48)

3. In order to assess whether an agreement is compatible with the common market in the light of the prohibition laid down in Article 81(1) EC, it is necessary to examine the economic and legal context in which the agreement was concluded and to take into consideration the criteria relating to the object of the agreement, to its effects, and to the effect on intra-Community trade taking into account the economic context in which the undertakings operate, the products or services covered by the agreement and also the structure of the market concerned and the actual conditions in which it functions. That method of analysis is of general application and is not confined to a category of agreements.

In a case where it is accepted that the agreement does not have as its object a restriction of competition, the effects of the agreement should be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent. The competition in question must be understood within the actual context in which it would occur in the absence of the agreement in dispute; the interference with competition may in particular be doubted if the agreement seems really necessary for the penetration of a new area by an undertaking. Such a method of analysis, as regards in particular the taking into account of the competition situation that would exist in the absence of the agreement, does not amount to carrying out an assessment of the pro- and anti-competitive effects of the agreement and thus to applying a ‘rule of reason’, which the Community judicature has not deemed to have its place under Article 81(1) EC.

Thus, the examination required in the light of Article 81(1) EC consists essentially in taking account of the impact of the agreement on existing and potential competition and the competition situation in the absence of the agreement, the two factors being intrinsically linked.

The examination of competition in the absence of an agreement appears to be particularly necessary as regards markets undergoing liberalisation or emerging markets, as in the case of the third generation mobile communications market, where effective competition may be problematic owing, for example, to the presence of a dominant operator, the concentrated nature of the market structure or the existence of significant barriers to entry.

Consequently, a Commission decision relating to a notified agreement on infrastructure sharing and national roaming for the third generation of GSM mobile telecommunications must be annulled where, first, it contains no objective analysis of what the competition situation would have been in the absence of that agreement, which distorts the assessment of the actual and potential effects of the agreement on competition and, second, it does not demonstrate, in concrete terms, in the context of the relevant emerging market, that the provisions of the agreement on roaming have restrictive effects on competition, but is confined, in this respect, to a petitio principii and to broad and general statements.

(see paras 66-69, 71-72, 116)