Effect on trade between Member States serves as a criterion to define the scrope of Community competition law
23-04-2009 Print this page
It cannot be alleged that the Court of First Instance did not examine whether the Commission stayed, in the contested decision, within the bounds of its discretion when handling complaints lodged with it. The judgment under appeal is not, therefore, vitiated by failure to state the grounds in that regard.
Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts.
"45. Consequently, it is not possible to uphold the ar-guments put forward by the appellant, in particular in the context of its fourth ground of appeal, which seek to show that trade between Member States is affected, namely the fact that it collects royalties in Greece relat-ing to the use of music not only of Greek authors, but also of authors established in other Member States of the European Union, and the fact that it pays the royal-ties collected, on the basis of reciprocal representation agreements, to equivalent bodies established in other Member States, which are responsible, like AEPI, for the collective management of copyright in musical works."
The effect on trade between Member States thus serves as a criterion to define the scope of Community competition law.
"As regards the first concepts, it is apparent from the wording of Article 81 EC and 82 EC that those Articles are applicable to agreements restricting competition and abuse of a dominant position only if those agree-ments and that abuse may affect intra-Community trade. The effect on trade between Member States thus serves as a criterion to define the scope of Community competition law, in particular Articles 81 EC and 82 EC, as against that of national competition law. If it is established that the alleged infringement is not capable of affecting intra-Community trade or of affecting it only in an insignificant manner (see, to that effect, Case C-238/05 Asnef-Equifax et Administración del Estado [2006] ECR I-11125, paragraph 34 and the case-law cited, and Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 90 and the case-law cited), then Community competition law, and more specifically Articles 81 EC and 82 EC, do not apply."
As for the concept of serious impediments to the proper functioning of the common market, it may constitute one of the criteria for evaluating whether there is sufficient Community interest to necessitate the inves-tigation of a complaint by the Commission.
"53. Therefore, when the Commission determines the order of priority for dealing with the complaints brought be-fore it, it may legitimately refer to the Com-munity interest. In this context, it is required to assess in each case how serious the alleged interferences with compe-tition are and how persistent their consequences are. That obligation means in particular that it must take into account the duration and extent of the in-fringements complained of and their effect on the com-petition situation in the European Community (Ufex and Others, paragraph 93). (…).
56. It is apparent inter alia from a combined reading of paragraphs 49, 50 and 54 of the judgment under appeal that the operative part of that judgment appears to be based on grounds which can be summarised by the finding made by the Court of First Instance in para-graph 54 of the judgment that the applicant had not ad-duced any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market.
57. It follows from that that, irrespective of the con-siderations in the judgment under appeal relating to the issue of the effect on intra-Community trade for the purposes of Articles 81 EC and 82 EC, the Court of First Instance dismissed the action on the basis that there was no specific evi-dence to establish the actual or potential existence of serious impediments to the proper functioning of the common market as a criterion for evaluating whether there is sufficient Community interest to necessitate the investigation of a complaint by the Commission."
Even if the practices complained of potentially affect intra-Community trade for the purposes of Articles 81 EC and 82 EC, as the appellant claims, such an effect does not in itself entail the potential existence of serious impediments to the proper functioning of the common market.
"67. In its fifth ground of appeal, the appellant criticises the Court of First Instance’s finding, in paragraph 54 of the judgment under appeal, that it did not adduce any spe-cific evidence to establish the actual or potential existence of serious impediments to the proper func-tioning of the common market, but confined itself to attempting to show that the practices complained of po-tentially affect intra-Community trade for the purposes of Articles 81 EC and 82 EC."
IPPT20090423, CJEU, AEPI v Commission
C-425/07 P - ECLI:EU:C:2009:253
