Avis juridique important

Order of the Court (First Chamber) of 16 September 1997. - Casper Koelman v Commission of the European Communities. - Appeal - Regulation no 17 - Rejection of a complaint - Statement of reasons. - Case C-59/96 P. European Court reports 1997 Page I-04809

Summary

1 Appeals - Pleas in law - Erroneous assessment of the facts - Inadmissibility

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51)

2 Competition - Administrative procedure - Examination of complaints - Obligation for the Commission to adopt a decision on the existence of an infringement - None - Decision to close the file - Statement of reasons - Relevance for the assessment of the agreement at issue by national courts

(EC Treaty, Art. 85, 86 and 189; Council Regulation No 17, Art. 3)

3 Appeals - Pleas in law - Mere repetition of pleas and arguments presented before the Court of First Instance - Inadmissible - Dismissal

(EC Statute of the Court of Justice, Arts 49 and 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

4 Actions for failure to fulfil obligations - Commission's right of action - Discretion

(EC Treaty, Art. 169)

5 Under Article 168a of the Treaty and Article 51 of the Statute of the Court of Justice, an appeal may be based only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts.

6 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 alleged infringement. When a complaint has been submitted to it, the Commission must, however, examine carefully the facts brought to its notice in order to decide whether they disclose conduct liable to distort competition in the common market and affect trade between Member States and inform the complainant of the reasons for its decision to close the file. The fact that the Commission could have granted an exemption under Article 85(3) of the Treaty in respect of an agreement or concerted practice, even if it breaches Article 85(1), is sufficient reasoning for a decision rejecting a complaint against it, which does not definitively rule on the question whether or not there is an infringement of Article 85(1).

Furthermore, it is always possible for an undertaking which considers itself to have been injured by anti-competitive behaviour, particularly when the Commission decides not to pursue its complaint, to take action before the national courts in order to enforce its rights under Articles 85(1) and 86 of the Treaty, which produce direct effects in relations between individuals.

`Comfort letters', in so far as they are based only on the facts in the Commission's possession, reflect the Commission's assessment of those facts and bring to an end the procedure of examination by the Commission's departments; they do not have the effect of preventing national courts, before which the agreements in question are alleged to be incompatible with Article 85, from reaching a different finding as regards the agreements concerned, on the basis of the information available to them. Whilst it does not bind a national court, the opinion expressed in such letters nevertheless constitutes a factor which national courts may take into account in examining whether the agreements or conduct in question are in accordance with the provisions of Article 85.

7 An appeal merely repeating or reproducing verbatim the pleas in law or arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, fails to satisfy the requirements under Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court and is therefore manifestly inadmissible. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which, by virtue of Article 49 of the EC Statute of the Court of Justice, lies outside the jurisdiction of the Court of Justice.

8 The Commission is not bound to commence proceedings under Article 169 of the Treaty, but enjoys a discretion which precludes any right of individuals to require it to take a specific position.