International Express Carriers Conference (IECC) v Commission of the European Communities, La Poste, United Kingdom of Great Britain and Northern Ireland and The Post Office.
Date: 2001-05-17
35 Admittedly, it is settled case-law that a complainant is entitled to have any uncertainty as to the outcome of his complaint dispelled by means of a Commission decision, which may be the subject-matter of an application for judicial review (Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraph 36). However, Article 3 of Regulation No 17 does not give a person making an application under that article the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 18, and Case Ufex and Others v Commission [1999] ECR I-1341, paragraph 87).
45 In that regard, it should first be observed that the Commission, in the exercise of its discretion, must take into consideration all the relevant matters of law and of fact in order to decide what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention (Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045, paragraph 19; Case 298/83 CICCE v Commission [1985] ECR 1105, paragraph 18; Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 20; and Ufex and Others v Commission, cited above, paragraph 86).
46 However, in view of the fact that the assessment of the Community interest raised by a complaint depends on the circumstances of each case, the number of criteria of assessment to which the Commission may refer should not be limited nor, conversely, should it be required to have recourse exclusively to certain criteria (Ufex and Others v Commission, paragraph 79).
47 Consequently, in considering that the Commission was correct to give priority to a single criterion for assessing the Community interest instead of specifically examining the criteria referred to in Automec v Commission, the Court of First Instance did not err in law.
55 By its third plea in law, the IECC complains, first, that the Court of First Instance made an error of law in considering that the mere assumption that the practices complained of would be amended in the future was sufficient for the Commission to ensure that the general objective laid down in Article 3(g) of the Treaty would be achieved, whereas, on the date on which the contested decision was adopted, it was clear that all the anti-competitive practices referred to in the complaint were continuing and that they would do so for a long time. Second, the Court of First Instance erred in rejecting the IECC's argument that the Commission had infringed Article 85 by rejecting the complaint in spite of having found that the CEPT Agreement was contrary to that article, and had done so notwithstanding the fact that the Community institutions are prohibited from encouraging the adoption of agreements or practices contrary to Community competition law (see Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraphs 51 and 52).
70 Those reasons are sufficiently clear and complete to enable the IECC to ascertain their content and to consider, where necessary, whether it is appropriate to challenge the lawfulness of the decision based on those reasons, as, moreover, it has done by its ninth plea in law.
87 Furthermore, in the context of an application for annulment under Article 173 of the Treaty the legality of a Community measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7), and cannot depend on retrospective considerations of its efficacy (see Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 43, and Case C-375/96 Zaninotto [1998] ECR I-6629, paragraph 66).