Lack of European Union interest

Insufficient grounds for acting by conducting a further investigation ('lack of European Union interest')

The ECJ has ruled that the right to complain entails a right to receive a reasoned decision of the Commission that can be appealed to the European Union Courts. 1 Notwithstanding, the case law has recognised that the Commission is entitled to give differing degrees of priority to the complaints that it receives, taking into account the duration and extent of the infringements complained of and their effect on the competition situation in the European Union. It is therefore entitled to reject complaints when there are insufficient grounds for acting by conducting a further investigation into the alleged infringement (also known as 'lack of European Union interest'). 2

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The Court has held that in order to assess the European Union interest in further investigating a case, the Commission must take account of the circumstances of the case and, in particular, of the matters of law and fact set out in the complaint referred to it. In particular, it must weigh the significance of the alleged infringement as regards the functioning of the internal market against the probability of it 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 compliance with Articles 101 and 102 TFEU. 3

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Under the case law, the Commission must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention. 4 The case team may contact complainants in order to explore the background and facts underpinning the complaint and to gain a fuller understanding of the matter.

Other Considerations

The Commission may not, under the case law, exclude a priori and in general certain situations from its task as enforcer of the competition rules. A rejection for lack of European Union interest must therefore be based on the specific circumstances of the individual case, reflect a thorough examination of the facts and be based on a consistent set of reasons.

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The Commission has publicly identified the elements it looks at for determining whether a complaint submitted to it contains sufficient grounds for acting. 5 Under the case law, the Commission is not limited to the criteria already accepted by the Court. 6 It is therefore not excluded that new grounds for rejection may still arise in individual cases.

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When deciding whether there is a sufficient degree of European Union interest for acting, the Commission will normally look at the following criteria referred to above: the extent or complexity of the investigation required, the likelihood of establishing an infringement and whether in light of these elements it is proportionate to conduct an in-depth investigation;

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the significance of the impact on the functioning of competition in the internal market, as indicated in particular by: – the geographic scope of the conduct complained of, or the economic significance of the conduct complained of, or the size of the market, or the importance for end consumers of the products concerned or of the conduct complained of; or – the market position of the undertakings targeted by the complainant or the overall functioning of the market in question;

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the possibility of the complainant to bring the case before a national court, in particular taking into account whether the case is or has already been the subject of private enforcement or is of a type that can appropriately be dealt with by national courts;

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the appropriateness of acting on an individual complaint that concerns (a) specific legal issue(s) which the Commission is already in the process of examining in one or several cases or which it has already examined and/or which is the subject of proceedings before European Union courts;

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the cessation or modification of the conduct complained of, in particular where commitments have been made binding by a Commission decision pursuant to Article 9 of Regulation 1/2003 or where the undertaking(s) complained of has/have changed its/their behaviour for other reasons, provided that neither significant persisting anti-competitive effects nor the seriousness of the alleged infringement(s) constitute sufficient grounds for conducting a further investigation in spite of the cessation or modification; and

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the importance of other areas of European Union or national law affected by the conduct complained of, compared to the importance of the competition concerns raised by the complainant. This criterion relates for example to issues that contain some competition law elements but that would primarily and more appropriately be dealt with under the rules governing the functioning of the internal market.

The Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed to enable the Court effectively to review the Commission's use of its discretion to define priorities. The General Court verifies whether this condition has been complied with. 7

Complaints may contain a range of allegations. Sometimes part of a complaint gives rise to a priority investigation, while the remainder is not considered a priority. If the 'remainder' is a separate alleged infringement, it will in principle be treated as a complaint in its own right and may hence need to be rejected separately. In these cases, contacts with the complainant in view of withdrawal are particularly recommended.

Resources

See Also

References

• Information about Lack of European Union interest in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] Case C-282/95 P Guérin automobiles v. Commission [1997] ECR I-1503, paragraph 36.
[Note 2] Cf. in particular Case T-24/90 Automec II [1992] ECR II-2223 and Case C-119/97 P Ufex [1999] ECR I-1341.
[Note 3] Case T-427/08 Confédération européenne des associations d'horlogers-réparateurs (CEAHR)/Commission, judgment of 15 December 2010, paragraph 158.
[Note 4] Case C-119/97 P Ufex [1999] ECR I-1341, paragraph 86; Case T-427/08 Confédération européenne des associations d'horlogers-réparateurs (CEAHR)/Commission, judgment of 15 December 2010, paragraph 28.
[Note 5] See the Annual Report on Competition Policy 2005 and Notice on the handling of complaints, paragraph 44.
[Note 6] Cf. previous footnote.
[Note 7] Case T-427/08 Confédération européenne des associations d'horlogers-réparateurs (CEAHR)/Commission, judgment of 15 December 2010, paragraph 28.

Further Reading

• Information about Lack of European Union interest in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)