Keywords

Summary



Keywords

1 Competition - Administrative procedure - Examination of complaints - Successive stages in the procedure - Letter provided for in Article 6 of Regulation No 99/63 - Definition

(Commission Regulation No 99/63, Art. 6)

2 Competition - Administrative procedure - Examination of complaints - Lack of any response to the letter provided for in Article 6 of Regulation No 99/63 - Consequences for the complainant

(Commission Regulation No 99/63, Art. 6)

3 Actions for annulment - Actionable measures - Definitive rejection of a complaint alleging infringement of the competition rules - Concept

(EC Treaty, Art. 173)

4 Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Assessment of a set of agreements, not of each agreement in isolation

(EC Treaty, Art. 85(1))

5 Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Appreciable effect - Scope of the notice on agreements of minor importance - Criteria of assessment - Accessibility of the market - Significant contribution by the contracts at issue to any partitioning of the market as a result of a large number of similar agreements

(EC Treaty, Art. 85(1))

Summary

6 For the purpose of the administrative procedure for the examination of complaints alleging infringement of the competition rules, where, following the adoption of an initial position, signalling its intention to close the cases in question without a formal decision, and subsequent correspondence with the complainants, in the course of which the latter have asked it to deal with the complaints formally, the Commission replies in a letter which sets out the reasons for which it does not appear justified to uphold the complaints, referring expressly to closure of the file and setting a time-limit for the reply, such a letter must be regarded as an Article 6 letter even if it does not expressly refer to Article 6 of Regulation No 99/63.

7 Although the Commission is entitled to draw certain inferences from the fact that a complainant fails to reply to a letter sent under Article 6 of Regulation No 99/63 within the period laid down pursuant to that article, provided that the time-limit is reasonable, the complainant's consent to closure of the procedure on its complaint cannot be irrebuttably presumed merely because the time-limit was not observed. It would not be consistent with the right to a fair hearing for the Commission to be able to close the procedure on the complaint where special circumstances might legitimately account for the failure to observe a time-limit which the Commission itself set.

8 An action for annulment brought by a complainant against a letter from the Commission which, following an initial adoption of a position and a letter sent under Article 6 of Regulation No 99/63, constitutes a response to the complainant's request that a formal decision be adopted on its complaint and finds, after a re-examination of the substance, that it is not appropriate to take action is admissible since such a response can be regarded only as a definitive rejection of the complaint.

9 Where a set of agreements is liable to affect trade between Member States, it is of no importance whether, in isolation, they affect trade between Member States to a sufficient extent.

10 To be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty, an agreement between undertakings must make it possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that it is capable of hindering the attainment of a single market between Member States.

An agreement falls outside the prohibition in Article 85 when it has only an insignificant effect on the markets, taking into account the weak position which the persons concerned have on the market for the products in question.

In that connection, the mere fact that a set of agreements causes the thresholds laid down by the notice on agreements of minor importance to be exceeded does not allow it to be concluded with certainty that the agreements in question are capable of affecting trade between Member States to an appreciable extent.

However, consideration of the effects of an agreement for the purposes of Article 85(1) of the Treaty implies that regard must be had to the economic and legal context of the agreement, in which it might combine with others to have a cumulative effect on competition. Likewise, the cumulative effect of several similar agreements constitutes one factor among others in ascertaining whether, by a possible distortion of competition, trade between Member States is capable of being affected, particularly in so far as the agreements in question have the effect of preventing competitors from other Member States from establishing themselves on the market in question, thus hampering the economic interpenetration sought by the Treaty. However, Article 85(1) of the Treaty applies only to agreements which contribute significantly to any closing-off of the market.