Keywords

Summary



Keywords

1. Procedure – Introduction of new pleas during the proceedings – Conditions

(Rules of Procedure of the General Court, Art. 48(2))

2. Competition – Administrative procedure – Examination of complaints

(Council Regulations No 17 and No 1/2003; Commission Regulations No 2842/98 and No 773/2004)

3. Actions for annulment – Commission decision involving appraisal of a complex economic matter – Judicial review – Limits

(Arts 81 EC and 230 EC)

4. Competition – Agreements, decisions and concerted practices – Assessment of compatibility with the common market – Compliance with the Guidelines adopted by the Commission

(Art. 81 EC; European Parliament and Council Directive 98/34; Commission Communication 2001/C 3/02, paras 162 and 163)

Summary

1. Under Article 48(2) of the Rules of Procedure of the General Court, a complaint which was put forward for the first time in the reply but which does not arise from matters of law or of fact which came to light in the course of the procedure or expand a plea of law set out in the application is inadmissible.

(see paras 51, 83, 96, 99-100, 103, 128)

2. Regulations No 17, No 2842/98, No 1/2003 and No 773/2004 do not contain express provisions relating to the action to be taken concerning the substance of a complaint and any obligations on the part of the Commission to carry out an investigation. The Commission is under no obligation to initiate procedures to establish possible infringements of Community law and the rights conferred on complainants by those regulations do not include the right to obtain a final decision as to the existence or non-existence of the alleged infringement.

If the Commission is under no obligation to rule on the existence or non-existence of an infringement, it cannot be compelled to carry out an investigation, because such an investigation could have no purpose other than to seek evidence of the existence or non-existence of an infringement which it is not required to establish.

However, although the Commission is not compelled to conduct an investigation, it is nevertheless obliged to examine carefully the factual and legal particulars brought to its notice by the complainant in order to decide whether they disclose conduct of such a kind as to distort competition in the common market and affect trade between the Member States.

Furthermore, 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.

(see paras 57-59)

3. In the context of an action for annulment against a Commission decision rejecting a complaint of infringement of the Community competition rules, the Court must assess whether the contested decision contains an appropriate examination of the factual and legal particulars submitted for the Commission’s appraisal in the context of the administrative procedure. In that regard, the judicial review of Commission measures involving appraisal of complex economic matters, as is the case for allegations of infringements of Article 81 EC, is limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.

(see para. 60)

4. The Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty.

The purpose of the Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements is thus to set out the principles governing the Commission’s assessment, in the light of Article 81 EC, of those agreements and, in particular, of agreements on standards. According to paragraphs 162 and 163 of those guidelines, standards adopted by standards bodies recognised under Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations, and the rules relating to information society services in accordance with a non-discriminatory, open and transparent procedure, and compliance with which is not mandatory, do not, in principle, restrict competition and do not fall under Article 81(1) EC.

In so far as a complainant does not produce information that could call into question the criteria set out in paragraphs 162 and 163 of those guidelines, the Commission is right to examine a complaint in the light of those provisions in order to assess whether the procedure for adoption of a standard is non-discriminatory, open and transparent, and whether the standard is binding.

Where an action for annulment of the decision rejecting such a complaint lodged pursuant to Regulation No 17 is brought before the Community judicature, judicial review of that decision must necessarily be limited to the competition rules as they result from Articles 81 EC and 82 EC, and consequently cannot extend to compliance with other provisions of the Treaty.

(see paras 61-63, 65-66, 137)