On 17 December 2014, the EU General Court ("GC") delivered a judgment in case T-201/11 in which it validated the European Commission's rejection of a request to investigate a complaint on the grounds that a parallel procedure had been initiated at national level by a national competition authority ("NCA"). This judgment is noteworthy as it is the first instance that an EU court has ruled on the question of the Commission's rejection of a complaint on the grounds that an NCA is already dealing with the case. In so doing, the GC has firmly ruled against forum shopping as regards the choice of competition authority to deal with a complaint.
This case stems from allegations brought to the Commission in 2009 by Si.Mobil of Slovenia. Si.Mobil claimed that Mobitel, the dominant player on the Slovenian retail telephone market, had abused its dominant position on both the retail and wholesale markets. It argued that Mobitel was involved in applying an exclusionary strategy contrary to Article 102 TFEU. More specifically, the allegations related to margin squeezing and predatory pricing. By way of written correspondence, the Commission informed Si.Mobil that the Slovenian competition authority had already initiated an investigation with regard to the same conduct and that it did not intend to pursue the case. Later, on 24 January 2011, the Commission issued a formal decision rejecting the complaint on the grounds that the Slovenian competition authority was already dealing with the case and that there was not a sufficient EU interest for it to proceed.
In its recent judgment, the GC interpreted for the first time the provisions of Regulation 1/2003 on the determination of the authority to deal with a competition case. Under Recital 18 and Article 13(1) of Regulation 1/2003, competition cases are to be dealt with by the most appropriate competition authority: the relevant NCA or the EU Commission as the case may be.
The principle novelty of this judgement is the GC's ruling based on Si.Mobil's plea about the appropriate authority. Si.Mobil was of the view that the Commission had made a manifest error in its application of Article 13(1) of Regulation 1/2003. Recital 18 of Regulation 1/2003 provides that, in order to ensure that cases are dealt with by the most appropriate authority, a competition authority may suspend or close a case on the ground that another authority is dealing with it or has already dealt with it. Further, as envisaged under Article 13(1), sufficient reasons must be provided in order for the Commission to reject a complaint in such a situation: (i) an NCA must be dealing with the case; and (ii) the case must be in relation to the same agreement, decision of an association or anti-competitive practice. The GC clarified that the requirement to provide sufficient reasons would be met upon satisfaction of these two criteria.
The GC emphasised that Regulation 1/2003 grants parallel powers to the Commission and NCAs and provides for a system of close cooperation between them. Si.Mobil was not justified in making the argument that there was a right to have a case dealt with by one particular authority over another. The GC added that its judicial review of Article 13 of Regulation 1/2003 is limited to verifying whether there had been a breach of procedural rules, in this way the Commission is left with a wide discretion in its application of the provision.
The GC also ruled that the Commission had not erred in deeming that it had not been determined that there was a sufficient degree of EU interest in this case. The GC affirmed that the Commission benefits from a certain level of discretion in its enforcement priorities. In this regard, the Commission must take the facts of each case into account and carry out a balancing exercise so as to ascertain the level of EU interest in a case. The GC did not accept that the Commission is bound by an exhaustive list of criteria in determining the level of EU interest and that the Commission may give weight to just one criterion in making such a determination – as it did in the case at hand.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
