Koelman v Commission: ECFI 9 Jan 1996

ECFI 1. The Community judicature manifestly has no jurisdiction to issue directions to the Community institutions, to the Member States or to natural or legal persons or to give a ruling, on the initiative of a natural or legal person, on the compatibility of a Member State’ s or a natural or legal person’ s conduct with the provisions of the Treaty or to annul, in whole or in part, agreements concluded by natural or legal persons.
2. Where a complaint has been submitted to the Commission under Article 3 of Regulation No 17, it is required to examine carefully the facts and points of law brought to its notice by the complainant in order to decide whether they disclose conduct liable to distort competition in the common market and affect trade between Member States. Nevertheless, Article 3 of Regulation No 17 does not confer upon 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 of the Treaty.
It follows that, when rejecting a complaint, the Commission must indicate the reasons why careful examination of the facts and points of law brought to its notice by the complainant do not prompt it to initiate a procedure to establish whether Article 85 of the Treaty has been infringed. In so doing, the Commission may investigate the agreements and practices called into question in the light of Article 85 as a whole and set out the reasons why it considers that assuming that those agreements and practices constitute an infringement of Article 85(1) this provision could in any event be declared ‘inapplicable’ to those agreements and practices under Article 85(3), so that it does not appear to it that careful examination of the complaint must lead it to take the action requested by the complainant. The Commission is therefore entitled to explain its decision to reject the complaint by giving the reasons why it considers, on the basis of the facts and points of law brought to its notice by the complainant, that the agreements satisfy the conditions of Article 85(3), without previously adopting a decision exempting those agreements which has been addressed to the contracting parties, or definitively ruling on the compatibility of those agreements with Article 85(1).
3. A decision to reject a complaint, which does not definitively rule on the question whether or not there is an infringement of Article 85(1) and does not grant an exemption under Article 85(3), is merely an assessment by the Commission of the agreements and practices in question. Accordingly, it has the same legal status as a ‘comfort letter’.
It follows that the assessments made by the Commission in a decision rejecting a complaint of that kind do not prevent a national court which has to rule upon the compatibility with Article 85 of the agreements and practices criticized by the complainant from declaring those agreements and practices to be automatically void under Article 85(2) of the Treaty, having regard to the evidence before it. The fact that, unlike in the case of comfort letters, the Commission’ s assessments are contained in a challengeable measure does not affect that conclusion, since such assessments entail no definitive decision on the issue whether or not Article 85(1) has been infringed or an exemption is to be granted under Article 85(3) on the conditions laid down in Regulation No 17.
When examining whether the agreements or conduct in question are in accord with the abovementioned provisions, the national courts may take into account the Commission’ s assessments as constituting facts, and they can, if necessary, contact the Commission.
4. When the Commission has decided not to take any action with regard to a complaint submitted under Article 3(2) of Regulation No 17 without holding an investigation, the purpose of review by the Community judicature is to ensure that the challenged decision is based on a correct assessment of the facts and that it is not vitiated by any error of law, manifest error of assessment or abuse of power.
5. An action for annulment brought by a natural or legal person against a Commission decision not to initiate proceedings against a Member State for failing to fulfil its obligations is inadmissible.
The Commission is not bound to commence proceedings under Article 169 of the Treaty but enjoys a discretion in that regard which precludes any right of individuals to require it to take a specific position.
An action for annulment (brought by a legal or natural person) against a Commission decision not to issue a directive or a decision to a Member State using the powers which it has under Article 90(3) of the Treaty is also inadmissible. The exercise of those powers is not coupled to an obligation on the part of the Commission to take action.
6. The Community cannot be liable under the second paragraph of Article 215 of the Treaty unless a set of conditions, relating to the existence of actual damage, a causal link between the damage claimed and the conduct alleged against the institutions and the illegality of such conduct, is satisfied.
As regards damage, it is for the applicant to provide the Court with evidence to establish the fact and the extent of the loss which he claims to have suffered.


T-575/93, [1996] EUECJ T-575/93




Updated: 06 June 2022; Ref: scu.172768