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Language of document : ECLI:EU:T:2014:1096

Case T‑201/11

(publication by extracts)

Si.mobil telekomunikacijske storitve d.d.

European Commission

(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)

Summary — Judgment of the General Court (Third Chamber), 17 December 2014

1. Competition — Division of powers between the Commission and national competition authorities — Commission’s right to reject a complaint concerning a case being dealt with by a national competition authority — Conditions

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, eighteenth recital and Art. 13(1))

2. Competition — Division of powers between the Commission and national competition authorities — Commission Notice on Cooperation within the Network of Competition Authorities — Undertakings not entitled to have their cases dealt with by a given competition authority

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, eighteenth recital and Art. 13(1); Commission Notice 2004/C 101/03, points 4 and 31)

3. Competition — Division of powers between the Commission and national competition authorities — Commission’s right to reject a complaint concerning a case being dealt with by a national competition authority — Discretion of the Commission — Judicial review — Scope

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, eighteenth recital and Art. 13(1))

4. Competition — Division of powers between the Commission and national competition authorities — Commission’s right to reject a complaint concerning a case being dealt with by a national competition authority — Expression ‘to deal with’ — Scope

(Arts 101 TFEU, 102 TFEU and 105(1) TFEU; Council Regulation No 1/2003, first, sixth, eighth, eighteenth and thirty-fifth recitals and Art. 13(1))

5. Competition — Division of powers between the Commission and national competition authorities — Commission’s right to reject a complaint concerning a case being dealt with by a national competition authority — Expression ‘same practice’ — Scope — Limits

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, eighteenth recital and Art. 13(1))

1. 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. Accordingly, the application of Article 13(1) of Regulation No 1/2003 cannot be subject to any conditions other than those mentioned above.

Pursuant to Articles 4 and 5 of Regulation No 1/2003, 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 the system established by Regulation No 1/2003 is based on close cooperation between the Commission and those authorities. On the other hand, neither Regulation No 1/2003 nor the Commission Notice on Cooperation within the Network of Competition Authorities (‘the Network Notice’) lays down a rule governing the allocation of powers as between the Commission and the competition authorities of the Member States. Accordingly, even on the assumption that the Commission is particularly well placed to deal with a case and the national authority is not, the applicant does not have a right to have the case dealt with by the Commission.

(see paras 33, 34, 36, 37, 40)

2. See the text of the decision.

(see para. 39)

3. 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. 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.

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 paras 43, 44)

4. The expression ‘to deal with’ as used in Article 13(1) of Regulation No 1/2003 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.

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.

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.

Moreover, 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. 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.

(see paras 47-50, 56, 57)

5. 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, where that practice concerns ‘the same alleged infringements, committed at the same time on the same market’ as those before the Commission.

Moreover, 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. 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.

(see paras 69, 73, 75, 76)