ECFI (Judgment) 1. When the Commission receives a complaint lodged under Article 3 of Regulation No 17, it is at liberty to determine the priority to be given to that complaint in the light of the Community interest and to decide to initiate and pursue the investigation of the case on the basis of the various provisions of the Treaty invoked in the complaint if that appears to be in the Community interest. Similarly, whilst the Commission must exercise its powers under Article 90(3) of the Treaty to monitor compliance by the Member States with the rules of competition, it cannot be obliged to take action, at an individual’s request, on the basis of that article and, more particularly, with regard to undertakings entrusted with the operation of services in the general economic interest, particularly where such action entails assessing the compatibility of national legislation with Community law.
However, where, having received a complaint of infringements of Articles 85 and 86 and of Article 90 of the Treaty, the Commission gives priority to examining the complaints concerning infringement of Article 90 alleged to be the result of national legislation organizing a monopoly, because it takes the view that the competition issue raised by the complaint can only be resolved by examining the compatibility of the national legislation concerning a statutory monopoly with the Treaty rules and by taking action, if appropriate, under Article 90 of the Treaty, it is not possible for it to reject definitively the complaint under Articles 85 and 86 on the ground that they are inapplicable, without first completing its examination under Article 90, because such a rejection at that stage would not have been preceded by a careful examination of the factual and legal issues brought to its attention by the complaint.
The Commission must either find that the national legislation in question is consistent with the Treaty, in which case the conduct of the impugned undertaking must, if it is in compliance with that legislation, be regarded as compatible with Articles 85 and 86, or, if the conduct does not so comply, it must be examined in order to decide whether it constitutes an infringement of those articles, or the Commission must find that the said legislation is not consistent with the Treaty, whereupon it must be decided whether the fact that an undertaking is in compliance with that legislation may or may not lead to the adoption of measures against it in order to bring the infringements of Articles 85 and 86 to an end.
2. A claim in an action for annulment for an order requiring the Commission to re-examine a complaint is inadmissible. It is not for the Community judicature to address instructions to institutions or to substitute itself for them when exercising its power of judicial review and it is for the institution concerned to take, pursuant to Article 176 of the Treaty, the necessary measures to comply with a judgment given in an action for annulment.
Judges:
J.L. Cruz Vilaca, P
Citations:
T-548/93, [1995] EUECJ T-548/93
Links:
European
Updated: 06 June 2022; Ref: scu.172748
