Keywords

Summary



Keywords

1 Actions for annulment - Jurisdiction of the Community judicature - Claim in an application that a direction be issued to an institution - Inadmissible (EC Treaty, Arts 173 and 176) 2 Acts of the institutions - Individual decision - Notification - Meaning (EC Treaty, Art. 191, third para.) 3 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision finding an infringement of the competition rules - Agreements of minor importance (EC Treaty, Arts 85(1) and 190) 4 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Criteria of assessment - Economic and legal context - Rail transport - Agreement establishing an international railway grouping within the meaning of Directive 91/440 - Possibility of market access (EC Treaty, Art. 85(1); Council Directive 91/440, Arts 3 and 10) 5 Transport - Rail transport - Competition rules - Regulation No 1017/68 - Directive 91/440 - Definition of an international grouping of railway undertakings within the meaning of Article 3 of Directive 91/440 (Council Regulation No 1017/68, Art. 5; Council Directive 91/440, Arts 3 and 10) 6 Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Restrictions on competition which are indispensable - Products or services necessary or essential for access to the market (EC Treaty, Art. 85(3)) 7 Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Agreement setting up a joint venture in the transport sector - Temporary exemption - Duration of the exemption - Factors to be taken into account (EC Treaty, Art. 85(3); EEA Agreement, Art. 53(3); Council Regulation No 1017/68, Art. 5)

Summary

1 A claim in an application for annulment that the Court should issue a direction to the Commission to adopt specific measures is inadmissible. The Community judicature is not entitled to issue directions to the institutions or to assume the role assigned to them; rather, it is for the administration concerned to adopt the necessary measures to implement a judgment given in such proceedings. 2 A decision is duly notified once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Where notification is made by registered letter with postal acknowledgment of receipt, the question whether it has been properly effected depends on whether the national rules applicable to mail deliveries in the Member State concerned have been complied with. However, where a measure is notified to the registered office of an undertaking, its validity is in no way conditional on its having been actually brought to the notice of the person competent to deal with it according to that undertaking's internal rules. A decision is not properly notified where it is delivered by the postal services of the State concerned to a person in the addressee undertaking who is not authorised under the national postal regulations to take delivery of registered mail. Consequently, the period of time allowed for commencing proceedings contesting that decision begins to run only from the date of signature of the form for acknowledgment of receipt which the Commission has enclosed with the notified decision. 3 Whilst, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 190 of the Treaty to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Court and the persons concerned the circumstances in which it has applied the Treaty. Other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court. Where horizontal agreements between undertakings reach or only very slightly exceed the 5% threshold regarded by the Commission itself as critical and such as to justify application of Article 85(1) of the Treaty, the Commission must provide an adequate statement of its reasons in relation to the analytical data examined, particularly with regard to the market shares of the undertakings concerned, for concluding that the essential elements of a situation in which Article 85 applies are in fact present, unless such data were not challenged by the parties during the prior administrative procedure. 4 In assessing an agreement under Article 85(1) of the Treaty, account should be taken of the actual conditions in which it functions, in particular the economic and legal context in which the undertakings operate, the services covered by the agreement and the actual operational conditions and structure of the market concerned, unless it is an agreement containing obvious restrictions of competition such as price-fixing, market-sharing or the control of outlets. The examination of conditions of competition is based not only on existing competition between undertakings already present on the relevant market but also on potential competition, in order to ascertain whether, in the light of the structure of the market and the economic and legal context within which it functions, there are real concrete possibilities for the undertakings concerned to compete among themselves or for a new competitor to penetrate the relevant market and compete with the undertakings already established. In the context of the rail transport market as organised by Directive 91/440 on the development of the Community's railways, although the railway undertakings operating on their national networks are to a certain extent potential competitors for international passenger services, provided that they form an international grouping within the meaning of Article 10 of the Directive, the fact remains that an international grouping between railway undertakings for the purposes of operating particular international routes cannot have the effect of an appreciable restriction of existing competition between those undertakings in so far as Directive 91/440 requires the railway undertaking established in each State concerned by the route in question to be an obligatory trading partner, and thus prevents other railway undertakings from competing with the international grouping on the rail links concerned. As regards the analysis of the potential restrictive effects on competition, affecting the subsidiaries of national rail undertakings, engendered by an agreement to form an international rail grouping, account must be taken of the economic context, particularly the structure of the relevant market, and, more specifically, the cost of access to the market, in order to determine the likelihood of actual or potential competitors. 5 Under Article 3 of Directive 91/440 on the development of the Community's railways, an international grouping is defined as any association of at least two railway undertakings established in different Member States for the purpose of providing international transport services between Member States; the form taken by such an association is immaterial. The categories defined by Directive 91/440 are therefore misapplied where a decision confines the term `international grouping' to cooperative associations among railway undertakings, such as traditional joint operation agreements, to the exclusion of any other form such as a cooperative, or even concentrative, joint venture. The requirement laid down in the same provision, regarding possession of the means to provide rail haulage in order to fall within the definition of railway undertaking does not necessarily imply ownership of the haulage equipment. It follows that an international grouping of railway undertakings cannot be denied the status of such a grouping for the purposes of Directive 91/440 on the ground that they do not own haulage equipment. 6 Where, pursuant to Article 85(3) of the Treaty, the Commission lays down, in respect of an agreement setting up a joint venture, conditions designed to prevent the restrictions of competition from going beyond what is indispensable, requiring that access to infrastructure, products or services be provided to third parties under the same conditions as to the joint venture on the ground that they are necessary or even that they constitute essential facilities, particularly from the point of view of access to the market, neither the parent undertakings nor the joint venture thus set up may be regarded as being in possession of infrastructure, products or services which are necessary or essential for entry to the relevant market unless such infrastructure, products or services are not interchangeable and unless, by reason of their special characteristics - in particular the prohibitive cost of and/or time reasonably required for reproducing them - there are no viable alternatives available to potential competitors of the joint venture, which are thereby excluded from the market. 7 The duration of an exemption granted under Article 85(3) of the Treaty - or Article 5 of Regulation No 1017/68 applying rules of competition to certain transport sectors - and Article 53(3) of the EEA Agreement must be sufficient to enable the beneficiaries to achieve the benefits justifying such exemption. Where such benefits cannot be achieved without considerable investment, the length of time required to ensure a proper return on that investment is necessarily an essential factor to be taken into account when determining the duration of the exemption, particularly in a case where the exemption concerns an agreement to set up a joint venture offering services which are completely new, involving major investments and substantial financial risks and requiring the pooling of know-how by the participating undertakings.