IECC v Commission T-133/95: ECFI 16 Sep 1998

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(2)(b) of Regulation No 17 provides that natural or legal persons claiming a legitimate interest may file a complaint alleging infringement of Articles 85 or 86 of the Treaty. The Commission is therefore entitled, and without prejudice to its right to institute, where appropriate, proceedings ex proprio motu in order to establish an infringement, not to pursue a complaint from an undertaking unable to demonstrate a legitimate interest. Determining the stage of the investigation at which the Commission ascertained that this condition has not been met does not therefore matter.
3 The interception by public postal operators of international ABA remail which, originating within the geographical monopoly of one of those operators, has been transported and put by private companies into the postal system of another country in order to be sent back via the traditional international postal system to the country of origin cannot be regarded as lawful under Article 86 of the Treaty in so far as such interception
– cannot be justified solely by the existence of the postal monopoly and its alleged circumvention by ABA remail,
– cannot be justified by any imbalance between the costs which a public postal operator bears in delivering incoming mail and the remuneration which it receives if such imbalance is the result of an agreement concluded among the public postal operators themselves,
and
– cannot, in the absence of evidence by the Commission to the contrary, be the only means by which the public postal operator of the country of destination can recover the costs involved in delivering that mail.
4 Only acts of the institutions which are tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order are to be treated as non-existent in law. Given the gravity of the consequences attaching to a finding that an act of a Community institution is non-existent, such a finding must, for reasons of legal certainty, be reserved for very extreme situations
5 The statement of reasons for an individual decision must be such as, first, to enable the person to whom it is addressed to ascertain the matters justifying the measure adopted so that he can, if necessary, defend his rights and verify whether or not the decision is well founded and, second, to enable the Community judicature to exercise its power of review. The precise extent of the duty to state reasons, moreover, depends on the nature of the act in question and on the context in which it was adopted.
6 Having regard, first, to the general objective which Article 3(g) of the Treaty assigns to Community action in the area of competition law, second, to the task conferred on the Commission in this area by Article 89(1) of the Treaty and, finally, to the fact that Article 3 of Regulation No 17 does not confer on a person making an application under that article the right to obtain a decision, within the meaning of Article 189 of the Treaty, as to whether or not there has been an infringement of Article 85 or Article 86 of the Treaty or of both those articles, the Commission is lawfully entitled to decide, on condition that it provides reasons for such a decision, that it is not appropriate to pursue a complaint denouncing practices which have subsequently been discontinued.
In particular, subject to review by the Community judicature, the Commission is entitled to take the view that, where operators against which a complaint has been made have given undertakings and the applicant has failed to provide any evidence whatever that those undertakings have been disregarded, and the Commission has carefully examined the facts of the case, it is unnecessary for it to examine that complaint any further.
Nor is the Commission obliged to refer expressly to the concept of `Community interest’. It is sufficient, for that purpose, that this concept should underlie the reasoning on which the decision in question is based.
7 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.
T-133/95, T-133/95, [1998] EUECJ T-133/95
Bailii

Updated: 08 January 2021; Ref: scu.173050