Agria Polska sp. z o.o. and Others v European Commission.
Date: 2018-09-20
33


In addition, under Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested. Consequently, according to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the relevant ground of appeal will be declared inadmissible (judgments of 23 April 2009, AEPI v Commission, C‑425/07 P, EU:C:2009:253, paragraph 25; of 19 September 2013, EFIM v Commission, C‑56/12 P, not published, EU:C:2013:575, paragraph 21; and of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraph 38).
36


In so far as the Commission argues that the appellants merely repeat arguments raised before the General Court, it must, subject to the observations in the preceding paragraph, be noted that the appellants have, in essence, challenged the interpretation or application of EU law by the General Court. In those circumstances, the points of law examined at first instance may be discussed again in the course of the present appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, to that effect, order of 25 March 2009, Scippacercola and Terezakis v Commission, C‑159/08 P, not published, EU:C:2009:188, paragraph 36 and the case-law cited, and judgment of 23 April 2009, AEPI v Commission, C‑425/07 P, EU:C:2009:253, paragraph 24).
47


In addition, contrary to what is apparent from paragraph 62 of the judgment under appeal, the lodging of a complaint before a national competition authority cannot, according to the General Court’s case-law, be considered an argument in favour of the exclusive jurisdiction of that authority. It cannot be deduced from the broad logic of Regulation No 1/2003 that the possible jurisdiction of such a national authority may preclude the opening of a procedure by the Commission, all the more so when the national procedure has not been opened for procedural reasons. In the present case, the significance of the infringements alleged, their scale and lengthy duration, as underlined by the appellants in their complaint to the Commission, ought to have an influence on the assessment of the Union interest, as is apparent from the judgment of 23 April 2009, AEPI v Commission (C‑425/07 P, EU:C:2009:253, paragraph 53).
60


Secondly, it is true that, as the appellants argue before the Court of Justice, the latter has held that when the Commission evaluates the Union interest in opening an investigation, it is required to assess in each case how serious the alleged interferences with competition are and how persistent their consequences are and that that obligation means in particular that it must take into account the duration and extent of the infringements complained of and their effect on the competition situation in the European Union (judgment of 23 April 2009, AEPI v Commission, C‑425/07 P, EU:C:2009:253, paragraph 53 and the case-law cited).
61


However, in view of the fact that the assessment of the Union interest raised by a complaint depends on the circumstances of each case, the number of criteria of assessment the Commission may refer to should not be limited, nor conversely should it be required to have recourse exclusively to certain criteria (judgments of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraph 79, and of 17 May 2001, IECC v Commission, C‑449/98 P, EU:C:2001:275, paragraph 46). Given that, in a field such as competition law, the factual and legal circumstances may differ considerably from case to case, it is permissible to apply criteria which have not hitherto been considered (judgment of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraph 80) or to give priority to a single criterion for assessing that Union interest (judgment of 17 May 2001, IECC v Commission, C‑449/98 P, EU:C:2001:275, paragraph 47).
62


The rules set out in the preceding paragraph cannot be called in question by the case-law cited by the appellants and referred to in paragraph 60 above, which must be interpreted in the light of the particular context in which it is set out (see, to that effect, judgment of 19 September 2013, EFIM v Commission, C‑56/12 P, not published, EU:C:2013:575, paragraph 86).
87


As provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34), and not for the Commission to make up for any shortcomings in judicial protection at national level by opening an investigation requiring considerable resources where the likelihood of finding an infringement of Articles 101 and 102 TFEU is low.
97


Moreover, the General Court did not err in law in rejecting that argument. As it correctly pointed out in paragraph 94 of the judgment under appeal, Article 7 of Regulation No 1/2003 does not give a complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement (see, to that effect, judgment of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraph 87, and order of 31 March 2011, EMC Development v Commission, C‑367/10 P, not published, EU:C:2011:203, paragraph 73).
99


Thirdly, as regards the appellants’ argument based on the duration of the procedure before the Commission, it is important to bear in mind that since in an appeal the review by the Court of Justice is confined to the findings of law on the pleas and arguments debated before the General Court, a party cannot put forward for the first time before the Court of Justice an argument which it did not raise before the General Court (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 43, and of 13 December 2017, Telefónica v Commission, C‑487/16 P, not published, EU:C:2017:961, paragraph 84).