JUDGMENT OF THE GENERAL COURT (Third Chamber)
17 December 2014 (*) (1)
(Competition — Abuse of dominant position — Slovenian mobile telephone services market — Decision rejecting a complaint — Case being dealt with by the competition authority of a Member State — No EU interest)
In Case T‑201/11,
Si.mobil telekomunikacijske storitve d.d., established in Ljubljana (Slovenia), represented initially by P. Alexiadis and E. Sependa, Solicitors, and subsequently by P. Alexiadis, P. Figueroa Regueiro and A. Melihen, lawyers,
applicant,
v
European Commission, represented initially by C. Giolito, B. Gencarelli and A. Biolan, and subsequently by C. Giolito and A. Biolan, acting as Agents,
defendant,
supported by
Republic of Slovenia, represented by T. Mihelič Žitko and V. Klemenc, acting as Agents,
and by
Telekom Slovenije d.d. (formerly Mobitel, telekomunikacijske storitve d.d.), established in Ljubljana (Slovenia), represented by J. Sladič and P. Sladič, lawyers,
intervening parties,
APPLICATION for annulment of Commission Decision C(2011) 355 final of 24 January 2011 rejecting the applicant’s complaint concerning infringements of Article 102 TFEU allegedly committed by Mobitel on a number of wholesale and retail mobile telephone markets (Case COMP/39.707 — Si.mobil/Mobitel),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood and E. Bieliūnas (Rapporteur), Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 9 July 2014,
gives the following
Judgment
Background to the dispute
1 The applicant, Si.mobil telekomunikacijske storitve d.d., is a company governed by Slovenian law which operates in the mobile telephone sector and is wholly owned by Telekom Austria Group.
2 The intervener, Telekom Slovenije d.d., is a company governed by Slovenian law in which the Slovenian State has a majority shareholding. It succeeded to the rights of Mobitel, telekomunikacijske storitve d.d. (‘Mobitel’), the historic operator on the mobile telephone market in Slovenia, which it took over.
Administrative procedure
3 On 14 August 2009, the applicant lodged a complaint with the European Commission concerning an alleged infringement by Mobitel of Article 82 EC on the wholesale and retail mobile telephone markets in Slovenia. That complaint was followed by a letter to the Commission on 16 October 2009.
4 In its complaint, the applicant criticised the application by Mobitel of an exclusionary strategy, consisting of two elements. First, Mobitel ousted its competitors on the retail mobile telephone market by introducing, in 2008, its ‘Džabest’ product, which created a margin squeeze. Second, Mobitel reinforced the effects of its action on the retail market by applying a strategy aimed at forcing rivals out of the wholesale mobile access and call origination services market. Mobitel’s strategy, which consisted in enlarging the pool of ‘on-net’ calls, inter alia by selling mobile access and call origination at extremely low rates, had the effect of preventing the applicant from acquiring new customers on both the wholesale and retail markets and, therefore, from expanding its network.
5 By letter of 24 November 2009, the Commission informed the applicant that the Urad Republike Slovenije za varstvo konkurence (Slovenian competition authority) (‘the UVK’) had instigated proceedings on 19 March 2009 and that that authority was dealing with the same practices as those which the applicant had referred to in its complaint to the Commission. In that letter, the Commission went on to invite the applicant to withdraw its complaint and to pursue its case before the UVK.
6 On 18 February 2010, the applicant submitted a ‘supplementary complaint’ with the Commission in which it claimed that Mobitel’s conduct on the retail market amounted to predatory pricing. That ‘supplementary complaint’ was followed by a letter to the Commission on 18 March 2010.
7 By letter of 3 June 2010, the Commission informed the applicant, in accordance with Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), that it was of the opinion that there was not a sufficient degree of European Union interests in conducting a further investigation into the alleged infringements on the wholesale market. The Commission also informed the applicant, in accordance with Article 9 of Regulation No 773/2004, that the abuse on the retail market alleged in the ‘supplementary complaint’ was being dealt with by the UVK. In response, the applicant sent letters to the Commission on 5 July and 8 and 20 September 2010.
Contested decision
8 By Decision C(2011) 355 final of 24 January 2011 (Case COMP/39.707 — Si.mobil/Mobitel) (‘the contested decision’), the Commission rejected the applicant’s complaint.
9 First, as regards the infringements alleged on the retail market, namely margin squeezing and/or predatory pricing, the Commission rejected the applicant’s complaint under Article 13(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), which provides that that institution may reject a complaint on the ground that a competition authority of a Member State is dealing with the case.
10 Second, as regards the infringements alleged on the wholesale market, the Commission rejected the applicant’s complaint under Article 7(2) of Regulation No 773/2004, on the ground that there was not a sufficient degree of European Union interests in conducting a further investigation of the case.
Procedure and forms of order sought by the parties
11 By application lodged at the Registry of the General Court on 4 April 2011, the applicant brought the present action.
12 By document lodged at the Court Registry on 24 June 2011, Mobitel requested leave to intervene in support of the form of order sought by the Commission.
13 By document lodged at the Court Registry on 8 September 2011, the Republic of Slovenia applied for leave to intervene in support of the form of order sought by the Commission.
14 By orders of 8 November 2011, the President of the Fifth Chamber of the General Court granted those applications for leave to intervene.
15 By document lodged at the Court Registry on 24 February 2012, Tušmobil d.o.o. sought leave to intervene in support of the form of order sought by the applicant. By order of 16 November 2012 the President of the Fifth Chamber of the General Court dismissed that application.
16 Owing to the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in the Third Chamber.
17 Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
18 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 9 July 2014.
19 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
20 The Commission and the interveners contend that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
1. Admissibility
21 The Commission submits that the arguments put forward in certain parts of the application bear no relation to the subject-matter of the dispute, as defined by the two pleas in law relied on by the applicant, and must therefore be dismissed as inadmissible pursuant to Article 44(1)(c) of the Rules of Procedure of the General Court.
22 Under Article 44(1)(c) of the Rules of Procedure, an application must state a summary of the pleas in law on which the application is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (judgment of 12 January 1995 in Viho v Commission, T‑102/92, ECR, EU:T:1995:3, paragraph 68). Similar requirements are called for where a submission is made in support of a plea in law (judgment of 14 May 1998 in Mo och Domsjö v Commission, T‑352/94, ECR, EU:T:1998:103, paragraph 333).
23 In the present case, it is apparent from the application that the applicant relies on two pleas in law in support of its action. The first plea alleges a manifest error on the part of the Commission in applying the rules governing the attribution of powers set out in Regulation No 1/2003 and in the Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) (‘the Network Notice’). The second plea alleges a manifest error on the part of the Commission in carrying out the balancing test established in the judgment of 18 September 1992 in Automec v Commission, T‑24/90, ECR, EU:T:1992:97.
24 Moreover, the legal rules referred to and the submissions made in the various parts of the application, which, according to the Commission, bear no relation to the subject-matter of the dispute as defined in the two pleas in law relied on by the applicant, are put forward to substantiate those pleas and they make their meaning and scope clear.
25 It follows that the application is sufficiently clear and precise to enable the defendant to prepare its defence and the Court to decide the case.
26 In those circumstances, the objection of inadmissibility raised by the Commission must be dismissed.
2. Substance
27 The applicant relies on two pleas in law in support of its application, as is apparent from paragraph 23 above.
The first plea in law, alleging a manifest error on the part of the Commission in applying the rules on the allocation of powers laid down in Regulation No 1/2003 and in the Network Notice
28 The applicant argues, in essence, that the Commission applied Article 13(1) of Regulation No 1/2003, read in the light of the Network Notice, manifestly incorrectly when it rejected its complaint.
29 By that argument, the applicant is essentially making two complaints, the first alleging misinterpretation of the conditions laid down in Article 13(1) of Regulation No 1/2003 and the second misapplication of those conditions.
The conditions laid down in Article 13(1) of Regulation No 1/2003
30 The applicant takes issue with the contested decision in so far as the Commission stated that there was no need ‘to apply a balancing test to ascertain if there is sufficient interest of the European Union in investigating the case as regards the retail practices’. Moreover, the applicant maintains that the Commission was particularly well placed to deal with the case within the meaning of paragraph 15 of the Network Notice, whereas the UVK was not well placed to deal with the case for the purpose of paragraph 8 of the notice.
31 In that regard, it should be noted, first, that recital 18 in the preamble to Regulation No 1/2003 states that ‘[t]o ensure that cases are dealt with by the most appropriate authorities within the network, a general provision should be laid down allowing a competition authority to suspend or close a case on the ground that another authority is dealing with it or has already dealt with it, the objective being that each case should be handled by a single authority’ and that ‘[t]his provision should not prevent the Commission from rejecting a complaint for lack of Community interest, as the case-law of the Court of Justice has acknowledged it may do, even if no other competition authority has indicated its intention of dealing with the case’.
32 Moreover, Article 13(1) of Regulation No 1/2003 provides that ‘[w]here competition authorities of two or more Member States have received a complaint or are acting on their own initiative under Article 81 [EC] or Article 82 [EC] against the same agreement, decision of an association or practice, the fact that one authority is dealing with the case shall be sufficient grounds for the others to suspend the proceedings before them or to reject the complaint’ and that ‘[t]he Commission may likewise reject a complaint on the ground that a competition authority of a Member State is dealing with the case’.
33 It is apparent from the clear wording of Article 13(1) of Regulation No 1/2003 that the Commission is entitled to reject a complaint on the basis of that provision if it is satisfied that, first, a competition authority of a Member State ‘is dealing with’ the case that has been referred to the Commission and, second, the case relates to ‘the same agreement, decision of an association or practice’. In other words, if those two conditions are fulfilled, the Commission has ‘sufficient grounds’ on which to reject the complaint referred to it.
34 Accordingly, the application of Article 13(1) of Regulation No 1/2003 cannot be subject to any conditions other than those set out at paragraph 33 above.
35 The applicant is not, therefore, justified in claiming that the Commission failed to have regard to the rule on the allocation of powers as between the Commission and the competition authorities of the Member States. Nor is the applicant justified in maintaining that the Commission was required to carry out a balancing test and ascertain whether the EU had an interest in the Commission conducting a further investigation of its complaint.
36 In any event, it should be recalled, in the first place, that Articles 4 and 5 of Regulation No 1/2003 provide that the Commission and the competition authorities of the Member States have parallel powers for the purpose of the application of Articles 81 [EC] and 82 [EC] and that the system established by Regulation No 1/2003 is based on close cooperation between the Commission and those authorities (judgment of 16 October 2013 in Vivendi v Commission, T‑432/10, EU:T:2013:538, paragraph 26; see also, to that effect, judgments of 13 July 2011 in ThyssenKrupp Liften Ascenseurs and Others v Commission, T‑144/07, T‑147/07 to T‑150/07 and T‑154/07, ECR, EU:T:2011:364, paragraph 75, and of 6 February 2014 in CEEES and Asociación de Gestores de Estaciones de Servicio v Commission, T‑342/11, ECR, EU:T:2014:60, paragraph 68).
37 On the other hand, neither Regulation No 1/2003 nor the Network Notice lays down a rule governing the allocation of powers as between the Commission and the competition authorities of the Member States.
38 First, it cannot be said that recital 18 in the preamble to Regulation No 1/2003 or Article 13(1) of that regulation establish a criterion for allocating or dividing up cases or competences between the Commission and the national authority or authorities that may have an interest in the case in question (see, to that effect, judgment of 8 March 2007 in France Télécom, T‑340/04, ECR, EC:T:2007:81, paragraph 130).
39 Second, paragraph 4 of the Network Notice states that consultations and exchanges within the network are matters between public enforcers, and, according to paragraph 31, the Notice does not create individual rights for the companies involved to have the case dealt with by a particular authority (judgment of 8 March 2007 in France Télécom, T‑339/04, ECR, EU:T:2007:80, paragraph 83). More generally, neither Regulation No 1/2003 nor that notice create rights or expectations for an undertaking to have its case dealt with by a specific competition authority (see, to that effect, judgment in ThyssenKrupp Liften Ascenseurs and Others v Commission, paragraph 36 above, EU:T:2011:364, paragraph 78).
40 Accordingly, even on the assumption that the Commission had been particularly well placed to deal with the case and the UVK had not been well placed to do so, the applicant did not have a right to have the case dealt with by the Commission.
41 In the second place, it is apparent from recital 18 in the preamble to Regulation No 1/2003 that the Council intended to enable the competition authority members of the European competition network to rely on a new ground for rejecting a complaint that is different from the ground based on lack of EU interest, which may justify the Commission’s rejection of a complaint. The Commission was not therefore required, in implementing Article 13 of Regulation No 1/2003, to carry out a balancing test and ascertain whether the EU had an interest in the Commission conducting a further investigation of the applicant’s complaint, in so far as the complaint related to the retail market.
Whether the conditions laid down in Article 13(1) of Regulation No 1/2003 were complied with
42 The applicant takes issue with the Commission, in essence, for failing to have regard to the conditions laid down in Article 13(1) of Regulation No 1/2003 in the contested decision. It submits that the UVK was not dealing with the case effectively and criticises the Commission for taking the view that the case investigated by the UVK concerned ‘the same alleged infringement on the same market within the same timeframe’.
43 It should be recalled in that regard that Article 13 and recital 18 of Regulation No 1/2003 reflect the broad discretion which the national authorities joined together in the network of competition authorities have in order to ensure that cases are dealt with by the most appropriate authorities within the network (see, to that effect, judgment of 14 February 2012 in Toshiba Corporation and Others, C‑17/10, ECR, EU:C:2012:72, paragraph 90). In view of the role entrusted to the Commission by the Treaty and Regulation No 1/2003, it also enjoys, a fortiori, broad discretion when applying Article 13 of that regulation.
44 Thus, as the Commission enjoys broad discretion for the purpose of implementing Article 13 of Regulation No 1/2003, review by the EU judicature must be confined to verifying whether the rules on procedure and the requirement to state reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see, by analogy, judgment of 11 June 2014 in Communicaid Group v Commission, T‑4/13, EU:T:2014:437, paragraph 95).
45 It is in the light of those principles that it is necessary to determine whether the Commission complied with the two conditions laid down in Article 13(1) of Regulation No 1/2003 and referred to at paragraph 33 above.
– The case as dealt with by the UVK
46 The applicant claims that the Commission disregarded the evidence which should have led it to the conclusion that the UVK should not continue with its investigation and that that competition authority did not therefore have the necessary competence to deal with the case. That evidence relates to the existence of institutional shortcomings within the UVK. Those shortcomings consisted in: (i) the fact that the competition authority lacks operational independence vis-à-vis the ministry responsible for overseeing the intervener; (ii) the fact that the two-year period within which a decision must be adopted under Slovenian law had expired; (iii) the fact that the UVK has insufficient financial resources; and (iv) the shortcomings detected as regards the Agencija za pošto in elektronske komunikacije (the Slovenian post and electronic telecommunications regulatory authority) (’the APEK’). Thus, by arguing that the UVK should not continue with its investigation, the applicant is claiming, in essence, that it is impossible for the UVK to deal with the case effectively.
47 In the first place, it is necessary to clarify the meaning of the expression ‘to deal with’ as used in Article 13(1) of Regulation No 1/2003 and examine how that provision was applied by the Commission in the present case.
48 The expression ‘to deal with’ cannot simply mean that another authority has received a complaint or that that authority has taken steps on its own initiative in relation to a case. Where a complaint has been submitted by a complainant to a competition authority of a Member State or where such an authority has acted in a case on its own initiative, that constitutes an act which, in itself, is evidence neither of the use by the competition authority of a Member State of its powers or, a fortiori, of an examination of the relevant facts and points of law in the case in question. Accordingly, the Commission would be failing to fulfil the general supervisory role entrusted to it by Article 105(1) TFEU if it were authorised to reject a complaint solely on the ground that a competition authority of a Member State had received a complaint or that it had taken up the complaint of its own initiative, without those acts in any way being followed up and the case in question dealt with.
49 However, where the Commission applies Article 13(1) of Regulation No 1/2003 to an individual case, that provision does not require it to carry out an assessment as to whether the approach adopted by the competition authority of a Member State dealing with the case is well founded.
50 Accordingly, where the Commission rejects a complaint pursuant to Article 13(1) of Regulation No 1/2003, it must, on the basis of the information available to it at the time it gives its decision, be satisfied, inter alia, that the competition authority of a Member State is investigating the case.
51 In the present case, the contested decision is based on a letter of 18 November 2009 sent to the Commission by the UVK in which the latter confirmed that it had instigated an investigation and was actively dealing with the case.
52 Furthermore, the Commission stated in the contested decision that it was in regular contact with the UVK concerning the case in question and that it appeared from that contact that the competition authority was actively dealing with the case.
53 It is apparent from other documents before the Court that the UVK was dealing with the case, in particular a letter sent to the Commission by the applicant on 18 February 2010 in which the applicant itself acknowledged, in connection with a presentation of the proceedings being conducted by the UVK concerning the retail market, that the competition authority had forwarded to the applicant a questionnaire on 10 February 2010.
54 The Commission was thus entitled, in the circumstances, to take the view that the UVK was dealing with the case within the meaning of Article 13(1) of Regulation No 1/2003.
55 In the second place, it is necessary to reject the applicant’s argument that the Commission failed to have regard to its obligation to ensure the proper application of the EU competition rules when it rejected its complaint, in so far as the complaint related to the retail market, on the ground that the UVK was dealing with the case.
56 It is apparent from the preamble to Regulation No 1/2003, in particular recitals 1, 6, 8 and 35, that the purpose of the greater participation of the competition authorities of the Member States in the implementation of Articles 81 EC and 82 EC and the obligation they are under to apply those provisions when trade between Member States is liable to be affected is precisely to ensure that the objective pursued by the regulation, namely the effective application of EU competition rules, is attained.
57 Accordingly, the requirement to ensure the effective application of EU competition rules cannot, without calling into question the scope of Article 13 of Regulation No 1/2003, have the effect of imposing an obligation on the Commission to verify, in implementing that particular provision, whether the competition authority concerned has the institutional, financial and technical means available to it to enable it to accomplish the task entrusted to it by that regulation.
58 In any event, the evidence submitted by the applicant to the Commission does not establish to the requisite standard that there were institutional shortcomings within the UVK, in particular a lack of independence, of means or of due diligence within that competition authority which prevented it from accomplishing its task.
59 It should be noted in that regard, first, that the independence of the UVK is provided for by statute, that it is apparent from the evidence before the Court, in particular the evidence produced by the applicant, that that competition authority is in fact operationally independent and has already investigated alleged anticompetitive conduct on the part of a number of historical operators in which the State has a majority shareholding.
60 Moreover, it is not manifestly apparent from the documents produced by the applicant that the UVK lacks the means necessary to enable it to conduct an investigation and deal with the case in question.
61 Furthermore, with regard to the applicant’s argument that the UVK exceeded the two-year time-limit for adopting a decision, it should be noted that the contested decision was given before that time-limit expired. In any event, it is apparent from the documents submitted to the Court by the applicant and from what was stated by the Republic of Slovenia at the hearing that that time-limit is not mandatory and that, if it were exceeded, that would not preclude the adoption of a decision by the UVK, together, where necessary, with corrective measures. It cannot therefore be claimed that the Commission failed in its duty to relieve the UVK of its competence under Article 11(6) of Regulation No 1/2003 on the ground that the competition authority was unduly prolonging a procedure.
62 Other documents produced by the applicant are irrelevant, since they relate not to the UVK but to the APEK.
63 With regard to the applicant’s arguments that the UVK failed to apply Article 102 TFEU effectively after the adoption of the contested decision, it is sufficient to observe that those arguments are irrelevant in the context of the present dispute, as they relate to facts that postdate the adoption of that decision.
64 It is settled case-law that the legality of an EU measure is assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. It follows that elements post-dating the adoption of the EU measure cannot be taken into account in assessing the legality of that measure (see judgment of 9 September 2011 in France v Commission, T‑257/07, ECR, EU:T:2011:444, paragraph 172 and the case-law cited).
65 Lastly, the statement made by the former President of the UVK that appears in a press article of 22 June 2011 to the effect that, at the material time, that competition authority was in favour of the Commission examining the case does not show that the UVK did not have the capacity to deal with it. Moreover, as is apparent from that statement and was stated by the Commission at the hearing, there was in fact an exchange of letters between the UVK and the Commission during June and July 2009, that is, before the applicant lodged its complaint with the Commission, at the stage of the initial division of work between those two members of the European competition network.
66 In the third place, the applicant’s argument by which it claims that it is deprived of procedural rights in domestic proceedings must be rejected as ineffective, since it cannot affect the finding that the Commission was entitled to take the view that the UVK was dealing with the case. It should be added that, as it stated at the hearing, the applicant chose not to seek to intervene before the UVK because it thought that the Commission was seriously contemplating dealing with the case. However, it is not apparent from the written submissions before the Court or from the documents produced in support of those submissions that the applicant maintained, or, a fortiori, demonstrated that the Commission had given it precise assurances that it would deal with the case.
67 It follows from the foregoing that the Commission did not make a manifest error when it rejected the applicant’s complaint, in so far as that complaint related to the retail market, by taking the view that the UVK was dealing with the case.
– Whether the practices dealt with by the UVK are the same
68 The applicant maintains that the Commission made a manifest error when, in the contested decision, it expressed the view that the claims made to the Commission and the case investigated by the UVK concerned ‘the same alleged infringements on the same market within the same timeframe’. The applicant also contends that the Commission made an artificial and incorrect distinction between the aspects of the case relating to the retail market and those relating to the wholesale market.
69 In the first place, it is apparent from Article 13(1) of Regulation No 1/2003 that the Commission may reject a complaint on the ground that it has received a complaint relating to the ‘same practice’ as that currently being dealt with by a competition authority of a Member State.
70 It should also be noted that, in its complaint, the applicant criticised, inter alia, the application by the intervener of a strategy aimed at forcing rivals out of the retail mobile telephone market by introducing, in 2008, its ‘Džabest’ product, which created a margin squeeze. It also claimed that the intervener’s conduct on the retail market amounted to predatory pricing (see paragraphs 4 and 6 above).
71 In the contested decision, the Commission stated that, in a letter of 18 November 2009, the UVK had informed it that it was investigating a possible abuse of a dominant position by the intervener, inter alia on the retail mobile telephone market, from 2008, adding that that investigation related, inter alia, to the retail product ‘Džabest’ launched by the intervener, and was also investigating whether the latter had engaged in a margin squeeze and/or predatory pricing.
72 Accordingly, as confirmed by the UVK’s letter of 18 November 2009, the complaint submitted by the applicant to the Commission and the case dealt with by the UVK concerned the intervener’s conduct from 2008. That complaint therefore related to the conduct of the same undertaking during the same period. Moreover, the practices complained of by the applicant and the case dealt with by the UVK also concerned the same geographic market, namely the Slovenian market. Lastly, it is not disputed that the complaint received by the Commission related to a practice of margin squeezing and/or predatory pricing on the retail mobile telephone services market that was the subject of proceedings before the UVK, which subsequently confirmed in that letter that it was investigating that practice.
73 It follows that the Commission did not make a manifest error of assessment in the contested decision in finding that the procedure before the UVK concerned ‘the same alleged infringements on the same market within the same timeframe’ as those referred to on the retail market in the complaint submitted to the Commission by the applicant.
74 In the second place, the applicant’s argument that the Commission separated, incorrectly and artificially, the aspects of the case relating to the retail market and those relating to the wholesale market cannot be accepted.
75 Where the Commission is minded to reject a complaint on the basis of Article 13(1) of Regulation No 1/2003, it must, inter alia, satisfy itself that the case being dealt with by the competition authority of the Member State concerned relates to the same factual matrix as that set out in the complaint.
76 On the other hand, the Commission cannot be bound by the subject-matter or the cause of action identified by complainants or by the manner in which the latter characterise the matters of which they complain.
77 Thus, in the present case, as the Commission satisfied itself that the case being dealt with by the UVK related to the same factual matrix as that described by the applicant in one part of its complaint, it was entitled to apply Article 13(1) of Regulation No 1/2003 to that part of the complaint and to ascertain whether there was an EU interest in conducting a further investigation into the other part of the complaint.
78 In the light of all the foregoing, the first plea must be rejected.
The second plea, alleging a manifest error on the part of the Commission in carrying out the balancing test established by case-law
79 The applicant claims, in essence, that the Commission committed a manifest error when applying Article 7(2) of Regulation No 773/2004 in the light of the judgment in Automec v Commission (paragraph 23 above, EU:T:1992:97).
80 It should be recalled that Article 7 of Regulation No 773/2004 does not give the complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (see, to that effect, judgment of 19 September 2013 in EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraphs 57 and 82, and order of 31 March 2011 in EMC Development v Commission, C‑367/10 P, EU:C:2011:203, paragraph 73).
81 The Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of the principles laid down in Articles 101 TFEU and 102 TFEU, is responsible for defining and implementing the orientation of EU competition policy. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and may exercise its discretion in that regard. The Commission is entitled, inter alia, to refer to the interest of the EU in determining the degree of priority to be given to the various complaints it receives (see the judgment of 30 May 2013 in Omnis Group v Commission, T‑74/11, EU:T:2013:283, paragraphs 43 and 44 and the case-law cited).
82 The discretion enjoyed by the Commission in that regard is not unlimited, however (see, to that effect, judgment in EFIM v Commission, paragraph 80 above, EU:C:2013:575, paragraph 58). The Commission is required to consider attentively all the matters of fact and of law which the complainant brings to its attention (judgment of 4 March 1999 in Ufex and Others v Commission, C‑119/97 P, ECR, EU:C:1999:116, paragraph 86, and order in EMC Development v Commission, paragraph 80 above, EU:C:2011:203, paragraph 74).
83 In order to assess the EU interest in further investigation of a case, the Commission must take account of the circumstances of the individual case, especially the matters of law and fact set out in the complaint referred to it. In particular, the Commission is required, after evaluating with all due care the matters of fact and law identified by the complainant, to weigh up the significance of the alleged infringement as regards the functioning of the internal market against the probability of its being able to establish the existence of the infringement and the extent of the investigative measures necessary in order to fulfil, under the best possible conditions, its task of ensuring that Articles 101 TFEU and 102 TFEU are complied with (judgments in Automec v Commission, paragraph 23 above, EU:T:1992:97, paragraph 86, and of 15 December 2010 in CEAHR v Commission, T‑427/08, ECR, EU:T:2010:517, paragraph 158).
84 However, given that the assessment of the EU interest raised by a complaint depends on the circumstances of each individual case, the number of assessment criteria to which the Commission may refer should not be limited, nor, conversely, should the Commission be required to have recourse exclusively to certain criteria. In view of the fact that, in an area such as that governed by competition law, the legal and factual context may vary considerably from one case to another, it is possible to apply criteria which had not hitherto been envisaged or to give priority to a single criterion in assessing the EU interest (see judgment in EFIM v Commission, paragraph 80 above, EU:C:2013:575, paragraph 85 and the case-law cited).
85 Lastly, it should be noted that judicial review of decisions rejecting complaints must not lead to the General Court substituting its own assessment of the EU interest for that of the Commission and must focus on whether or not the contested decision is based on materially incorrect facts or is vitiated by an error of law, a manifest error of appraisal or misuse of powers (see judgments in Automec v Commission, paragraph 23 above, EU:T:1992:97, paragraph 80, and CEAHR v Commission, paragraph 83 above, EU:T:2010:517, paragraph 65).
86 In the present case, the applicant maintains that the Commission artificially separated the subject-matter of its claims and the practices complained of. However, that argument must be rejected on the same grounds as those set out at paragraphs 76 and 77 above.
87 The applicant also takes issue with the Commission for failing, in its assessment of whether there was an EU interest, to have regard to a number of the criteria referred to in its Notice on the handling of complaints by the Commission under Articles 81 [EC] and 82 [EC] (OJ 2004 C 101, p. 65; corrigendum OJ 2004 C 148, p. 10).
88 That argument cannot be accepted.
89 It is apparent from the case-law cited at paragraph 85 above that the Court cannot substitute its own assessment of the EU interest for that of the Commission by considering whether criteria other than those applied by the Commission in the contested decision should have led it to the conclusion that there was an EU interest in continuing its investigation of the case.
90 Lastly, the applicant contends that the Commission made an incorrect assessment of the significance of the alleged infringement as regards the functioning of the internal market, the probability of its being able to establish the existence of the infringement and the complexity of the investigative measures necessary. The Court must therefore consider whether the contested decision is lawful in that light of those criteria.
The significance of the alleged infringement as regards the functioning of the internal market
91 The applicant maintains that the Commission was incorrect to consider in the contested decision that the abuse alleged would have a limited impact on the functioning of the internal market. The applicant argues in particular that the concept of an effect on trade between Member States, as interpreted by the EU judicature and applied by the Commission in competition cases, fully justifies the claim that the complaint has an interest for the EU.
92 It should be noted, in the first place, that it is common ground that the centre of gravity of the practices complained of on the wholesale market is in Slovenia. Similarly, the applicant does not dispute that the particular characteristics of the Slovenian markets at issue as described in the contested decision, namely the dominant position of the intervener on both the call termination market and the access and call origination market.
93 In the second place, according to case-law and contrary to what is claimed by the applicant, the fact that the practice complained of may affect trade between Member States is not, in itself, significant as regards the functioning of the internal market (see, to that effect, judgment of 23 April 2009 in AEPI v Commission, C‑425/07 P, ECR, EU:C:2009:253, paragraph 68).
94 Moreover, that assessment is not affected by the applicant’s argument relating to the fact that the measures envisaged by the APEK for the mobile call termination market or the mobile access and call origination market were notified on a number of occasions to the Commission, in accordance with Article 7(3)(b) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).
95 It is not possible to assess the significance of an undertaking’s alleged abusive conduct as regards the functioning of the internal market by reference to the concept of effect on trade, which, for the purpose of implementing the procedures laid down in Directive 2002/21, relates to the effects of the measures which a national regulatory authority is contemplating adopting.
96 In the third place, the Commission cannot be criticised for taking the view, in the contested decision, that it could not be excluded that the effect of the alleged abuse on the wholesale market would be limited if an abuse on the retail market were to be established and consequently remedied by the UVK.
97 First, it should be noted that, in so far as the system established by Regulation No 1/2003 is based on close cooperation between the Commission and the competition authorities of the Member States, the Commission may, in its assessment of whether there is an EU interest, take account of the measures adopted by the national authorities (judgment in Vivendi v Commission, paragraph 36 above, EU:T:2013:538, paragraph 26) or which may be so adopted. In response to the applicant’s first plea, the Court found that the Commission was entitled, in rejecting the applicant’s complaint in so far as it related to the retail market, to take the view that the UVK was dealing with the case.
98 Second, the structure of the applicant’s complaint and the terms in which some parts of the complaint are worded indicate that the margin squeeze on the Slovenian mobile telephone market is presented as the primary abusive practice, whereas forcing rivals out of the wholesale call origination market is presented as secondary. More generally, it is apparent from the applicant’s complaint and its subsequent correspondence with the Commission that the conditions of competition on the retail market have an impact on the situation of operators on the wholesale market and on their ability to increase their network capacity.
99 In view of all the foregoing, the Commission did not make a manifest error of assessment in considering that the infringement alleged by the applicant on the wholesale market was of limited significance as regards the functioning of the internal market.
The probability of being able to establish the existence of the infringement and the complexity of the investigative measures necessary
100 As a preliminary point, it should be noted that, according to the case-law cited at paragraph 84 above, the Commission is entitled to give priority to a single criterion in assessing whether there is an EU interest in conducting a further investigation of a case. Accordingly, the Court has found that the Commission was entitled to reject a complaint on the sole ground that the infringement alleged did not have a significant effect on the functioning of the internal market (see, to that effect, order of 19 March 2012 in Associazione ‘Giùlemanidallajuve’ v Commission, T‑273/09, ECR, EU:T:2012:129, paragraphs 87 and 110). The Court has also held that the Commission’s finding that the probability of being able to establish a possible infringement was very low was sufficient in itself for it to be entitled to conclude that there was no EU interest in conducting a further investigation of the case (see, to that effect, judgments in Vivendi v Commission, paragraph 36 above, EU:T:2013:538, paragraph 127, and Omnis Group v Commission, paragraph 81 above, EU:T:2013:283, paragraph 95).
101 Thus, each one of the two criteria set out in the contested decision for the purpose of dismissing the claim that there was an EU interest in conducting a further investigation of the case justified, in itself, the rejection of that claim on the basis of Article 7(2) of Regulation No 773/2004. The applicant’s arguments alleging errors in the assessment of the likelihood of being able to establish the existence of the infringement and the complexity of the investigations necessary are, therefore, directed at grounds included in the contested decision for the sake of completeness.
102 In any event, during the written procedure before the Court, the applicant acknowledged that the case was complex.
103 Moreover, contrary to what is claimed by the applicant, the Commission did not fail to have regard to the scale differences alleged in the complaint. In its analysis of the likelihood of being able to establish the existence of an infringement, the Commission simply pointed out that Article 102 TFEU does not prohibit the dominant position of an undertaking as such but only the abuse of such a position.
104 Furthermore, the applicant cannot validly claim that the reasoning of the contested decision is insufficient in so far as it states that it could be argued that buying call termination bundled with call origination is not equivalent to buying call termination as a stand-alone product. That statement, which alludes to the fact that discrimination consists, inter alia, in applying dissimilar conditions to equivalent transactions with other trading parties, make it possible to understand the reasoning followed by the Commission in the contested decision.
105 Moreover, with regard to the errors of analysis alleged by the applicant, it is not manifestly apparent from the evidence produced before the Court that the Commission erred in concluding that it was very unlikely that it would be possible to establish the existence of an infringement on the wholesale market consisting in a practice of targeted and selective rebates, a practice of predatory pricing or indeed a practice linked to the fact that it was possible for the intervener to control retail prices charged to its customers on the wholesale access and call origination services market.
106 Lastly, the applicant acknowledged in its application that the resources to be expended relative to the anticipated outcomes would be disproportionate if it were to be concluded that the wholesale issues could be assessed independently of the retail issues.
107 Furthermore, the evidence produced by the applicant does not demonstrate to the requisite legal standard that the Commission made a manifest error in concluding that a thorough examination of the practices complained of would be disproportionate in view of the complexity of the investigation required and the limited likelihood of establishing the existence of an infringement. In that regard, the intervener’s dominant position on both the call termination market and the call origination market alleged by the applicant may, as the latter claims, possibly make it easier to prove the existence of an infringement. However, such a dual dominant position is also indicative of an unusual competitive situation and would thus serve as a precedent of little probative value for the purposes of the decision to be taken. Even if it were proven, such a dual dominant position would not, therefore, demonstrate that the Commission made a manifest error in concluding that a thorough investigation of the practices complained of would be disproportionate.
108 In the light of all the foregoing, the applicant’s second plea must be rejected and the action must therefore be dismissed in its entirety.
Costs
109 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(4) of those rules, Member States which intervene in the proceedings are to bear their own costs.
110 As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the Commission and Telekom Slovenije, which intervened in support of the form of order sought by the Commission, as applied for in those parties’ pleadings.
111 The Republic of Slovenia, which intervened in support of the form of order sought by the Commission, is to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Si.mobil telekomunikacijske storitve d.d. to bear its own costs and to pay the costs incurred by the European Commission and by Telekom Slovenije d.d;
3. Orders the Republic of Slovenia to bear its own costs.
Papasavvas | Forwood | Bieliūnas |
Delivered in open court in Luxembourg on 17 December 2014.
[Signatures]