Judgment of the General Court (Eighth Chamber) of 11 July 2013 —
BVGD v Commission
(Joined Cases T‑104/07 and T‑339/08)
Competition — Agreements and abuse of a dominant position — Rough diamond market — ‘Supplier of Choice’ (SOC) system of distribution — Decision rejecting a complaint — No Community interest — Legal basis — Procedural rights of a complainant — Access to documents — Obligations in relation to the investigation of a complaint — Market foreclosure effects — Manifest error of assessment
1. Acts of the institutions — Withdrawal — Unlawful acts — Conditions — Compliance with duty to act within a reasonable time and with the principle of the protection of legitimate expectations — Measure not conferring subjective rights — Principle of legitimate expectations not applicable (see paras 63-65, 68)
2. Acts of the institutions — Withdrawal — Conditions — Unlawfulness of measure withdrawn (see para. 80)
3. Competition — Administrative procedure — Rights of complainants — Access to documents — Scope — Limits (Arts 81 EC and 82 EC; Commission Regulation No 773/2004, Arts 8(1), 15(1), and 16(1); Commission Notice 2004/C 101/05, points 59 and 64 to 69, and 2005/C 325/07, points 7, 8, 30 and 31) (see paras 84, 87-90, 102, 103)
4. Competition — Administrative procedure — Examination of complaints — Successive phases of the procedure — Communication by the Commission of its first reaction to the complainant — Letter provided for by Article 7(1) of Regulation No 773/2004 — Temporary confusion as to the nature of the letter sent by the Commission — Right of complainants to be closely associated with the procedure — No effect (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 7(2); Commission Regulation No 773/2004, Arts 7(1), and 17; Commission Notice 2004/C 101/05, points 54 to 57, 60 to 62 and 68) (see paras 123, 124, 126-132)
5. Competition — Administrative procedure — Examination of complaints — Submission of observations by the complainant — Time-limits fixed by the Commission — Extension — Discretionary power of the Commission — Judicial review — Limits — Starting-point of the time-limit fixed — Notification — Concept (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 7(2); Commission Regulation No 773/2004, Arts 7 and 17; Commission Notice 2004/C 101/05, points 70 and 71) (see paras 136-146)
6. Competition — Administrative procedure — Examination of complaints — No obligation to conduct an investigation and rule by decision on the existence of an infringement — Discretion of the Commission as to the extent of investigation of a complaint — Limit — Duty of diligence (Arts 81 EC, 82 EC and 85 EC; Council Regulation No 1/2003, Art. 7(2); Commission Notice 2004/C 101/05, points 45 and 79) (see paras 155, 168, 169, 211)
7. Competition — Administrative procedure — Examination of complaints — Taking into account the Community interest in investigating a case — Criteria for assessment — Discretion of the Commission — Limits — Judicial review (Arts 81 EC, 82 EC and 85 EC; Council Regulation No 1/2003, Arts 7(2), and 20; Commission Notice 2004/C 101/05, points 41 to 45) (see paras 156, 157, 212, 214-216, 218-220)
8. Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Requirement of a necessary link between the information requested and the infringement investigated (Arts 81 EC, 82 EC and 85 EC; Council Regulation No 1/2003, Arts 18 and 23) (see paras 171, 174, 175, 182)
9. Competition — Administrative procedure — Examination of complaints — Assessment of the Community interest in investigating a case — Account to be taken of the existence of numerous complaints of similar conduct — Assessment of all the evidence — Joinder of administrative procedures — Discretion of the Commission (Arts 81 EC, 82 EC and 85 EC; Council Regulation No 1/2003, Art. 7(2); Commission Notice 2004/C 101/05) (see paras 190-195, 198)
10. Competition — Administrative procedure — Examination of complaints — Taking into account the Community interest in investigating a case — Criteria for assessment — Inadmissibility of the dismissal of a complaint solely on the basis that the infringement complained of has ceased (Arts 81 EC, 82 EC and 85 EC; Council Regulation No 1/2003, Art. 7(2); Commission Notice 2004/C 101/05, points 41 to 44) (see para. 201)
11. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) (see para. 291)
12. Agreements, decisions and concerted practices — Notification — Decision of the Commission suspending the procedure — Legal nature — Subsequent opening of infringement proceedings — Account to be taken of a factual element prior to the decision to take no action — Conditions (Arts 81(1) EC, 82 EC and 85 EC; Council Regulation No 1/2003, Art. 7(2)) (see para. 318)
13. Competition — Administrative procedure — Undertaking to the Commission by undertakings entered into in the context of a proceeding for applying the competition rules — Follow-up mechanism comprising the designation of an independent third party — Independence of the third party — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 9) (see paras 321-324)
14. Competition — Administrative procedure — Examination of complaints — Duty to state reasons for a decision to take no further action — Scope (Arts 81 EC, 82 EC and 253 EC; Council Regulation No 1/2003, Art. 7(2); Commission Regulation No 773/2004, Art. 7; Commission Notice 2004/C 101/05, points 74 and 75) (see paras 362-364)
Re:
| APPLICATIONS for the annulment of the Commission’s Decisions of 26 January 2007 (Case COMP/39.221/B‑2 — BVGD/De Beers) and of 5 June 2008 (Case COMP/39.221/E‑2 — De Beers/DTC Supplier of Choice) rejecting the applicant’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements. |
Operative part
The Court:
2. | | Orders Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD) to bear its own costs and to pay those incurred by the European Commission; |
3. | | Orders De Beers and De Beers UK Ltd to bear their own costs. |