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2018:373 Agria Polsk sp. z o.o. and Others v European Commission

Court

Court of Justice

Date of ruling

20 September 2018

Case name (short version)

Agria Polska sp. z o.o. and Others v European Commission

Case Citation

C-373/17 P

ECLI:EU:C:2018:756

Key words

Appeal — Competition — Rejection of a complaint by the European Commission — Lack of Union interest

Basic context

By their appeal, Agria Polska sp. z o.o., Agria Chemicals Poland sp. z o.o., Star Agro Analyse und Handels GmbH (‘Star Agro’) and Agria Beteiligungsgesellschaft mbH ask the Court to set aside the judgment of the General Court of the European Union of 16 May 2017, Agria Polska and Others v Commission (T480/15, ‘the judgment under appeal’, EU:T:2017:339), by which the General Court dismissed their action seeking the annulment of Commission Decision C(2015) 4284 final of 19 June 2015 (Case AT.39864 — BASF (formerly AGRIA and Others v BASF and Others)), rejecting their complaint concerning infringements of Article 101 TFEU and/or Article 102 TFEU allegedly committed, essentially, by 13 producers and distributors of plant protection products, with the assistance of or through four professional organisations and a law firm (‘the decision at issue’)

Points arising – admissibility

31      In accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law and is to lie on the grounds of lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Court.

 

32      The General Court therefore has exclusive jurisdiction to find the facts, except in a case where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to evaluate the evidence adduced. The establishment of those facts and the evaluation of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice (order of 25 March 2009, Scippacercola and Terezakis v Commission, C159/08 P, not published, EU:C:2009:188, paragraph 33 and the case-law cited).

 

33      In addition, under Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested. Consequently, according to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the relevant ground of appeal will be declared inadmissible (judgments of 23 April 2009, AEPI v Commission, C425/07 P, EU:C:2009:253, paragraph 25; of 19 September 2013, EFIM v Commission, C56/12 P, not published, EU:C:2013:575, paragraph 21; and of 6 June 2018, Apcoa Parking Holdings v EUIPO, C32/17 P, not published, EU:C:2018:396, paragraph 38).

 

36      In so far as the Commission argues that the appellants merely repeat arguments raised before the General Court, it must, subject to the observations in the preceding paragraph, be noted that the appellants have, in essence, challenged the interpretation or application of EU law by the General Court. In those circumstances, the points of law examined at first instance may be discussed again in the course of the present appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, to that effect, order of 25 March 2009, Scippacercola and Terezakis v Commission, C159/08 P, not published, EU:C:2009:188, paragraph 36 and the case-law cited, and judgment of 23 April 2009, AEPI v Commission, C425/07 P, EU:C:2009:253, paragraph 24).

 

Points arising – substance

The first ground of appeal – the appellants dispute the General Court’s conclusion that the Commission had not committed a manifest error of assessment of the circumstances having a bearing on the decision to open an investigation

 

60      Secondly, it is true that, as the appellants argue before the Court of Justice, the latter has held that when the Commission evaluates the Union interest in opening an investigation, it is required to assess in each case how serious the alleged interferences with competition are and how persistent their consequences are and that that obligation means in particular that it must take into account the duration and extent of the infringements complained of and their effect on the competition situation in the European Union (judgment of 23 April 2009, AEPI v Commission, C425/07 P, EU:C:2009:253, paragraph 53 and the case-law cited).

 

61      However, in view of the fact that the assessment of the Union interest raised by a complaint depends on the circumstances of each case, the number of criteria of assessment the Commission may refer to should not be limited, nor conversely should it be required to have recourse exclusively to certain criteria (judgments of 4 March 1999, Ufex and Others v Commission, C119/97 P, EU:C:1999:116, paragraph 79, and of 17 May 2001, IECC v Commission, C449/98 P, EU:C:2001:275, paragraph 46). Given that, in a field such as competition law, the factual and legal circumstances may differ considerably from case to case, it is permissible to apply criteria which have not hitherto been considered (judgment of 4 March 1999, Ufex and Others v Commission, C119/97 P, EU:C:1999:116, paragraph 80) or to give priority to a single criterion for assessing that Union interest (judgment of 17 May 2001, IECC v Commission, C449/98 P, EU:C:2001:275, paragraph 47).

 

The second ground of appeal – the appellants dispute the conclusion, in paragraph 83 of the judgment under appeal, that the Commission did not disregard the effectiveness of Articles 101 and 102 TFEU

 

83      In addition, in accordance with the settled case-law of the Court of Justice, which the General Court correctly referred to in paragraphs 80 to 82 and 84 of the judgment under appeal, it is open to applicants to bring actions before the national courts for compensation of the damage allegedly caused by the conduct the subject of a complaint, in order to obtain compliance with Articles 101 and 102 TFEU and to assert their rights under those provisions before a national court, in particular when the Commission decides not to pursue their complaint.

 

86      Thirdly, the appellants submit that the possibility of bringing an action for compensation before the national courts is not genuine and the General Court ought to have analysed the actual possibilities open to them of instituting proceedings before those courts.

 

87      As provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C64/16, EU:C:2018:117, paragraph 34), and not for the Commission to make up for any shortcomings in judicial protection at national level by opening an investigation requiring considerable resources where the likelihood of finding an infringement of Articles 101 and 102 TFEU is low.

 

Third ground of appeal – the appellants submit that in dismissing their action and endorsing the decision at issue adopted without fully examining the case as to the substance, the General Court infringed the principle of effective judicial protection, the right to an effective remedy before a tribunal and the principle of sound administration

 

97      Moreover, the General Court did not err in law in rejecting that argument. As it correctly pointed out in paragraph 94 of the judgment under appeal, Article 7 of Regulation No 1/2003 does not give a complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement (see, to that effect, judgment of 4 March 1999, Ufex and Others v Commission, C119/97 P, EU:C:1999:116, paragraph 87, and order of 31 March 2011, EMC Development v Commission, C367/10 P, not published, EU:C:2011:203, paragraph 73).

 

99      Thirdly, as regards the appellants’ argument based on the duration of the procedure before the Commission, it is important to bear in mind that since in an appeal the review by the Court of Justice is confined to the findings of law on the pleas and arguments debated before the General Court, a party cannot put forward for the first time before the Court of Justice an argument which it did not raise before the General Court (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C43/15 P, EU:C:2016:837, paragraph 43, and of 13 December 2017, Telefónica v Commission, C487/16 P, not published, EU:C:2017:961, paragraph 84).

 

102    In addition, the appellants wrongly claim that the General Court ought to have examined of its own motion the duration of that procedure (see, by analogy, order of 13 December 2000, SGA v Commission, C39/00 P, EU:C:2000:685, point 45).

 

Intervention

Interim measures

Order

1.      Dismisses the appeal;

 

2.      Orders Agria Polska sp. z o.o., Agria Chemicals Poland sp. z o.o. and Agria Beteiligungsgesellschaft mbH to bear their own costs and to pay those incurred by the European Commission;

 

3.      Orders Star Agro Analyse und Handels GmbH to bear its own costs.

Fine changed

Case duration

15 months

Judge-rapporteur

Jürimäe

Advocate-general

Wahl

Notes on academic writings

Idot, Laurence: Rejet de plainte, Europe 2018 Mois Comm. nº 11 p.28 (FR)

 

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law.He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters.He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.
Kiran Desai

About the Author

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law. He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters. He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.


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