European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Article 106(3) gives the Commission the power to ensure the application of the provisions of Article 106 and, where necessary, address appropriate directives or decisions to Member States . Under Article 106(3) the Commission has a wide discretion and may choose between proceedings for failure to act or a decision under Article 106(3) without committing any abuse of process .
The Commission is not …

The Commission's power of action

Article 106(3) gives the Commission the power to ensure the application of the provisions of Article 106 and, where necessary, address appropriate directives or decisions to Member States . Under Article 106(3) the Commission has a wide discretion and may choose between proceedings for failure to act or a decision under Article 106(3) without committing any abuse of process .

The Commission is not obligated, at the request of an individual, to exercise the Article 106(3) power of review of compliance with the rules of competition by Member States . When an undertaking that has been entrusted with the operation of a service of general economic interest is pursued under Article 101 and 102 TFEU and relies on Article 106 by way of incidental plea of defense, the EU courts consider that it is for the national courts to determine whether the undertaking in question may rely on the provision  and to check whether the rules of competition prevent the task entrusted to it from being accomplished . However, the Commission must carry out an evaluation of the national legislation in respect of the Treaty provisions if such an assessment of compatibility is necessary to handle a complaint lodged on the basis of Articles 101 or 102 . The Commission must also ensure that the rights of defense are respected . The discretionary power conferred on the Commission in its application of Article 106(3) implies, however, a limited review on the part of the EU courts, which cannot substitute their assessment for that of the Commission. The Courts' review must be limited to verification of the Commission's fulfillment of its duty to undertake a diligent and impartial examination of the complaint alleging infringement . Finally, after initially holding  that individuals could not apply to a national court to obtain the removal of prerogatives granted to a public undertaking , the Court of Justice ruled that the derogation under Article 106(2) fell within the jurisdiction of both the Commission and the national courts, which may be seized by litigants in order to obtain review of the compliance with the conditions which it lays down . 

Does inaction on the part of the Commission give rise to the initiation of an action for failure to act? In order to be admissible under Article 265 TFEU duty to act must be on the institution concerned. Now, the Commission has a discretionary power on whether to examine a complaint under Article 106(3). Initially the Court of Justice held that exceptional situations might exist justifying bringing an action as long as the object of such action was not to compel that Member State to adopt legislation of general application . The mere fact that there was a situation of competition between the complainant undertaking and the undertaking entrusted with exclusive rights was not enough to characterize an exceptional situation . Then, contrary to what the General Court had first asserted , the Court of Justice held that no general principle of EU law required that an undertaking be recognized as having standing before the EU judicature to challenge a refusal by the Commission to bring proceedings against a Member State on the basis of Article 106(3) TFEU . An action could only be admissible when the Commission had effectively taken a decision but not in the case of a refusal to act under Article 106 TFEU.

In any case, the Commission's power of review of State measures under Article 106(3) TFEU is not affected by the Council power to adopt directives in the sector concerned .

The Commission is free to choose between these two instruments: Case C-163/99 Portugal v Commission [2001] ECR I-2613, LawLex200400003024JBJ; Cases C-48/90 and C-66/90 Netherlands and PTT Nederland v Commission [1992] ECR I-565, LawLex200500003833JBJ. See also Commission Directive No 2006/111 of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings, authorizing the Commission to review compensation for financial burdens imposed by the public authorities, recital 13, Article 3.

See Case C-163/99 Portugal v Commission [2001] ECR I-2613, LawLex200400003024JBJ; Commission Decision No 2001/176/EC of 21 December 2000, the provision of certain new postal services with a guaranteed day- or time-certain delivery in Italy, LawLex200400002978JBJ.

Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947, LawLex200400003558JBJ; Case T-17/96 TF1 v Commission [1999] ECR II-1757, LawLex200400003597JBJ.

Case T-52/00 Coe Clerici Logistics v Commission [2002] ECR II-2553, LawLex200400003531JBJ.

Case T-54/99 max.mobil v Commission [2002] ECR II-313, LawLex200400003573JBJ

Case C-141/02 P Commission v max-mobil [2005] ECR I-1283, LawLex200500005296JBJ.

Case C-163/99 Portugal v Commission [2001] ECR I-2613, LawLex200400003024JBJ.

See particularly Case T-111/96 ITT Promedia v Commission [1998] ECR II-2937, LawLex200400002940JBJ; Case T-575/93 Koelman v Commission [1996] ECR II-1, LawLex200400003643JBJ.

Case 127/73 BRT v SABAM [1974] ECR 51, LawLex200400002886JBJ.

Case 66/86 Ahmed Saeed Flugreisen and others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, LawLex200400002928JBJ.

Case T-24/90 Automec v Commission [1992] ECR II-2223, LawLex200500004904JBJ.

Cases C-48/90 and C-66/90 Netherlands and PTT Nederland v Commission [1992] ECR I-565, LawLex200500003833JBJ.

Case T-52/00 Coe Clerici Logistics v Commission [2002] ECR II-2553, LawLex200400003531JBJ; Case T-54/99 max.mobil v Commission [2002] ECR II-313, LawLex200400003573JBJ.

Case C-10/71 Ministère public luxembourgeois v Muller, Judgment of 14 July 1971, LawLex200900001435JBJ; and more recently Case C-172/82 Inter-huiles Judgment of 10 March 1983, LawLex200900001602JBJ.

Case C-218/00 Cisal, Judgment of 22 January 2002, LawLex200400003570JBJ

European Competition Law

25. The Commission's power of action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

25. The Commission's power of action

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise