ECJ 1 A claim in an action for annulment that the Commission should be required to adopt appropriate measures to comply with its obligations under Article 176 of the Treaty is inadmissible. While it is for the institution concerned, under that provision, to adopt the measures required to give effect to a judgment delivered in an action for annulment, it is not the function of the Community judicature to issue directions to the Community institutions or to substitute itself for those institutions when exercising its powers of review.
2 Article 3 of Regulation No 17 does not confer on a person who lodges an application under that article the right to obtain from the Commission a decision, within the meaning of Article 189 of the Treaty, regarding the existence or otherwise of an infringement of Article 85 or Article 86 of the Treaty or of both. Further, the Commission is entitled to reject a complaint when it forms the view, either before commencing investigation of the case or after taking investigative measures, that the case does not display a sufficient Community interest to justify further investigation.
In order to assess the Community interest in further investigation of a case, the Commission must take account of the circumstances of the case, and especially of the legal and factual particulars set out in the complaint referred to it. The Commission should, in particular, after assessing with all due care the legal and factual particulars submitted by the complainant, balance the significance of the alleged infringement as regards the functioning of the common market, the probability of establishing the existence of the infringement and the scope of the investigation required in order to fulfil, under the best possible conditions, its task of ensuring that Articles 85 and 86 are complied with. However, since the assessment of the Community interest is necessarily based on an examination of the circumstances particular to each case, the Commission is entitled to take account of other relevant factors when making its assessment.
In this regard, given the general objective of the activities of the Community laid down by Article 3(g) of the Treaty, namely, the institution of a system ensuring that competition in the common market is not distorted, and the general supervisory role conferred on the Commission by Articles 89 and 155 of the Treaty, the latter may, subject to the requirement that it give reasons for such a decision, decide that it is not appropriate to investigate a complaint alleging practices contrary to Article 85(1) of the Treaty where the facts under examination give it proper cause to assume that the conduct of the undertakings concerned will be amended in a manner conducive to the general interest.
In such a situation, it is for the Commission, as part of its task to ensure that the Treaty is properly applied, to decide whether it is in the Community interest to encourage undertakings challenged in administrative proceedings to change their conduct in view of the complaints made against them and to require from them assurances that such conduct will in fact be altered along the lines recommended by the Commission, rather than formally holding in a decision that such conduct by undertakings is contrary to the Treaty rules on competition.
3 Where the Commission rejects, on grounds of a lack of Community interest, an application for a finding under Article 3 of Regulation No 17 that an infringement has been committed, the review of legality which the Community judicature must undertake focuses on whether or not the contested decision is based on materially incorrect facts, or is vitiated by an error of law, a manifest error of appraisal or misuse of powers.
4 A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for the purpose of achieving ends other than those stated.
5 The statement of reasons on which an individual decision is based must, first, be such as to enable the person concerned to ascertain the matters justifying the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded, and, secondly, enable the Community judicature to exercise its power of review of the legality of the decision.
The extent of the duty to state reasons depends on the nature of the act in question and on the circumstances in which it was adopted. The obligation to provide a statement of reasons under Article 190 of the Treaty is essential for the exercise of judicial review of the way in which the Commission uses the concept of Community interest in rejecting certain complaints.
In regard to the Commission’s obligation to state reasons when conducting an examination under Article 3 of Regulation No 17, the legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the undertakings concerned by the investigation and the Commission in order to determine which alterations are necessary to satisfy the latter’s objections, without their having the right as such to access to the specific documents which were the subject of those negotiations.
Citations:
[1998] EUECJ T-110/95
Links:
European
Updated: 06 June 2022; Ref: scu.173033
