AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE v Commission of the European Communities.
Date: 2009-04-23
24. It is also apparent from the case-law that, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see Case C-240/03 P Comunità montana della Valnerina  v Commission  [2006] ECR I-731, paragraph 107, and, inter alia, the orders in Case C‑488/01 P Martinez  v Parliament  [2003] ECR I-13355, paragraph 39, and Case C-338/05 P Front National and Others  v Parliament and Council  [2006], paragraph 23, summary published at ECR I‑88).
25. Furthermore, 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 (see Comunità montana della Valnerina  v Commission , paragraph 105, and, inter alia, the orders in Martinez  v Parliament , paragraph 40, and Front National and Others  v Parliament and Council , paragraph 24).
31. The Court of First Instance was right to hold, in paragraph 38 of the judgment under appeal, that the Commission is responsible for defining and implementing Community competition policy and for that purpose has a discretion as to how it deals with complaints lodged with it (see to that effect Case C-119/97 P Ufex and Others  v Commission  [1999] ECR I-1341, paragraphs 88 and 89).
44. It must be borne in mind at the outset that, according to settled case-law, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (see Case C 390/95 P Antillean Rice Mills and Others  v Commission  [1999] ECR I-769, paragraph 29, and Case C‑237/98 P Dorsch Consult  v Council and Commission  [2000] ECR I‑4549, paragraph 35).
50. As regards the first concepts, it is apparent from the wording of Article 81 EC and 82 EC that those Articles are applicable to agreements restricting competition and abuse of a dominant position only if those agreements and that abuse may affect intra-Community trade. The effect on trade between Member States thus serves as a criterion to define the scope of Community competition law, in particular Articles 81 EC and 82 EC, as against that of national competition law. If it is established that the alleged infringement is not capable of affecting intra‑Community trade or of affecting it only in an insignificant manner (see, to that effect, Case C‑238/05 Asnef-Equifax et Administración del Estado  [2006] ECR I‑11125, paragraph 34 and the case-law cited, and Case C-407/04 P Dalmine  v Commission  [2007] ECR I-829, paragraph 90 and the case-law cited), then Community competition law, and more specifically Articles 81 EC and 82 EC, do not apply.
53. Therefore, when the Commission determines the order of priority for dealing with the complaints brought before it, it may legitimately refer to the Community interest. In this context, it is required to assess in each case how serious the alleged interferences with competition are and how persistent their consequences are. 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 Community ( Ufex and Others , paragraph 93).
55. Although it is true, in that regard, that, in the judgment under appeal, the Court of First Instance did not draw a clear and specific distinction between those two concepts but confused them, as the Advocate General pointed out in paragraphs 40 to 45 of his Opinion, that finding cannot give rise to the annulment of that judgment if the operative part of the judgment is shown to be well founded for other legal reasons (see to that effect, inter alia, Case C-30/91 P Lestelle  v Commission  [1992] ECR I-3755, paragraph 28, and Case C-210/98 P Salzgitter  v Commission  [2000] ECR I-5843, paragraph 58).