Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

17 December 2014 (*)

(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 (1)

 Background to the dispute

…

 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

…

 2. Substance

…

 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

…

 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.

Delivered in open court in Luxembourg on 17 December 2014.

[Signatures]

* Language of the case: English.

1 Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.

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