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Increased knowledge and awareness of EC competition law is an important requisite for its application in national courts but it is not the main drive behind the presumed expansion in private litigation. The most important incentive for increased involvement of national courts is practical and has come from the Commission itself. Its relatively small service with limited resources has been burdened by an enormous workload for many years. Today, the Commission can no longer afford to be the exclusive forum for the enforcement of EC competition law and it cannot be receptive to all complaints.

Increasingly, complaints will only be accepted if they are within the Commission’s exclusive competence or if the Commission considers them of political, economic, or legal significance'"'. In addition to the cases within its exclusive competence such as those involving large mergers. State aid. State measures, public undertakings and undertakings within Article 90 (1) and (2) of the Treaty, the Commission will concentrate on international cartels, cases raising a new point of law, and all other cases having a particular Community interest^. The remainder should be dealt with at national level, where necessary with assistance

from the Commission*^.

In the past, there was no clear way of finally rejecting a complaint*^ but in Automec II, the Court of First Instance

*° See the scenario described at 1.5. below.

Notice on cooperation between national authorities and the Commission in handling cases falling within the scope of Article 85 or 86, O.J. C 313, 15.10.97, p 3, paras 33 - 36.

Notice on cooperation between national courts and the Commission in applying Articles 85 and 86, O.J. [1993] C 39/6,

[1993] 4 C.M.L.R. 12, para 16. See 1.4.3, 5.5. and 5.6. below. Article 6 of Regulation 99/63 is the only provision governing the rejection of a complaint. The Article provides as follows :

’’Where the Commission, having received an application pursuant to Article 3 (2) of Regulation 17, considers that

explicitly confirmed the discretion of the Commission to reject complaints on the basis of priorities'^. It held that, in matters in respect of which the Commission is not exclusively competent, the Commission is entitled to set priorities in its enforcement activities. In particular, it is not obliged, in cases brought to its attention by way of complaint submitted under Article 3 of Regulation 17, to proceed to a decision on the

on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reason and fix a time limit for them to submit any further comments in writing".

The Article requires the Commission to give a preliminary view to the complainant prior to any rejection of the complaint. If the Commission does not produce a view, the complainant can use the procedure under Article 175 to compel the Commission to respond under Article 6. Article 6 also requires the Commission to permit the complainant time in which to adduce new evidence. An "Article 6" letter is therefore not a final decision.

The Court of First Instance held that an Article 6 letter is not a recommendation or opinion for the purposes of Article 175 (3) (Asia Motor France, case T-28/90 [1992] 5 C.M.L.R. 431 at para 29) but instead an act constituting the definition of the Commission's position within the meaning of Article 175 which renders an action for failure to act under that Article inadmissible (G E M A . case 125/78 [1979] E.C.R. 3173, [1980] 2 C.M.L.R. 177, para 17).

The Court did not determine whether an Article 6 letter constituted a decision which might be challenged in an action for annulment under Article 173. It was not until its judgment in Automec II that the Court expressly concluded that an Article 6

letter is not a decision, see below, next footnote.

In order to deal with the uncertainty, the Commission adopted the practice to issue formal decisions in which it confirmed the rejection in the Article 6 letter upon request of the complainant in order to enable the complainant challenge the matter under Article 173. Such decisions confirming the rejection of the complaint need not contain a ruling on the existence of the alleged infringement (GEMA. [1980] 2 C.M.L.R. 177 at p 195) and later confirmed in Automec I I . para 75) and do not estop the Commission from investigating the alleged infringement at a later date. Although it was done regularly, this practice could not be adopted by the Commission as policy to set priorities until the Court confirmed its legality in Automec II. para 47.

Automec Sri v Commission, case T-24/90, Court of First Instance, 18 September 1992, [1992] E.C.R. II 2223, [1992] 5 C.M.L.R. 431.

substance of the complaint under that same Regulation*^.

This means that undertakings have no direct right to obtain a decision from the Commission on the existence of the infringement, except where the Commission has exclusive competence as under Article 85 (3). In summary, the judgment ruled that the Commission can reject a complaint where:

the matter is not of sufficient importance to the Community to be treated by the Commission, and

can be handled in a national court and,

absent a showing to the contrary, the national court seems able to give satisfactory protection to safeguard rights derived from Article 85 (1)2*®.

Provided that the Commission considers a complaint carefully and gives a good reason in its letter under Article 6 of Regulation 99/63*'^ for not pursuing it, the Commission can

*® Slot indicated that this may not be the case for shipping since Article 10 of block exemption Regulation 4056/86 reads

"Acting on receipt of a complaint or on its own initiative, the Commission shall initiate procedures to terminate any infringement of the provisions of Articles 85 (1) or 86 of the Treaty by enforcing Article 7 of this Regulation

In contrast, Article 3 of Regulation 17 reads:

"Where the Commission [...] finds that there is an infringement of Article 85 or Article 86 of the Treaty, it may by decision require undertakings or associations of undertakings concerned to bring such infringement to an end" .

Procedure and Enforcement in EC and US Competition Law, Proceedings of the Leiden Europa Instituut Seminar on User- friendly Competition law. Ed. Slot and McDonnell, 1993, at p XI

(introduction).

*® Paras 88 - 97 of the judgment.

*”' See footnote 43 supra. The reasons must be fairly precise. See BEUC and National Consumer Council v Commission,

case T 37/92, 18 May 1994, [1994] E.C.R. II 258, where the Court of First Instance did not consider the reasons given by the Commission sufficient.

refuse to proceed to a formal decision on the substance in cases which can be dealt with by national courts. Such good reasons (required under Article 190 of the Treaty) may not be confined to referring in the abstract to a lack of sufficient Community interest. The Commission is subject to an obligation to balance the significance of the alleged infringement as regards the functioning of the common market, the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required for it to perform its task of making sure that Articles 85 and 86 are observed^. It is by reviewing the lawfulness of those reasons that the Community Court exercises its responsibility for judicial review of the Commission’s action^.

The Commission should also take into account any proceedings already started before the national courts and the extent to which the national courts in such proceedings are able adequately to safeguard the rights of the complainant. In Automec II, proceedings initiated by the complainant were already pending in

a domestic Italian court and this court was considered to be in a good position to rule on the contractual relationship between the parties.

The judgment poses the question as to what is satisfactory protection. The Community Court held that the Commission does not have to assess whether, in view of the complexity of the case, a particular national court is able to ensure correct

Point 68 of the judgment in BEUC (previous footnote) . See