Related Practices

Si.mobil and EasyJet: Two More Reasons for the European Commission to Reject an Article 102 TFEU Complaint

January 23, 2015

In two recent judgments, the General Court (GC) has upheld the European Commission’s (EC) decision to reject an abuse of dominance complaint under Article 102 TFEU.  Below, we look at Si.mobil telekomunikacijske storitve (Si.mobil) v Commission (T-201/11) and easyJet Airline Co. Ltd (easyJet) v Commission (T-355/13).  Si.mobil is the first case where the GC ruled on the EC’s rejection of an abuse of dominance complaint on the ground that a National Competition Authority (NCA) is already moving forward with the case.  In easyJet, the GC confirmed that the EC can reject a complaint that has previously been rejected by a NCA on priority grounds.

1.  Si.mobil

a. Background to the Dispute

Si.mobil is a Slovenian company that operates in the mobile telephony sector.  Mobitel teleomunikacijske storitve (Mobitel) is the incumbent operator in the Slovenian mobile telephony market.  In 2009, Si.mobil filed a complaint with the EC, which it supplemented in 2010, in which it alleged that Mobitel was abusing its dominant position by engaging in anticompetitive conduct on: (a) the retail mobile telephony market and (b) the wholesale mobile access and call origination services market.

In 2011, the EC issued a decision rejecting Si.mobil’s complaint.  With respect to the retail mobile telephony market, the EC noted that the Slovenian NCA was already investigating the alleged Article 102 TFEU infringement.  As for the wholesale mobile access and call origination services market, the EC found that there was not a sufficient degree of EU interest in conducting an investigation.  Si.mobil appealed before the GC the EC’s decision to reject its complaint.

b. The GC Judgment

The GC upheld the EC’s decision and took the opportunity to interpret – for the first time – Article 13(1) of Regulation 1/2003, which ensures that cases are dealt with by the most appropriate authorities in the European Competition Network

Specifically, in relation to the part of Si.mobil’s complaint that dealt with the retail mobile telephony market, the GC held that the EC could reject the complaint given that:

  1. The Slovenian NCA was already investigating the case referred to the EC: The EC and the Slovenian NCA were in regular contact and it appeared that the Slovenian NCA was actively dealing with the case.  Si.mobil put forth a number of arguments as to the Slovenian NCA’s ability to manage the case – including the Slovenian NCA’s apparent lack of institutional, financial, and/or technical means.  The GC held that Article 13(1) of Regulation 1/2003 does not require the EC to make such an evaluation.  In any case, from the evidence available, it did not appear that the Slovenian NCA suffered from any institutional shortcomings, such as a lack of independence, means, or due diligence. 
  2. The case related to the same agreement, decision of an association, or practice: The EC satisfied itself that the case that the Slovenian NCA was dealing with related to the “same factual matrix” as the one described by Si.mobil – regardless of how Si.mobil characterized it in its complaint to the EC.

Neither Regulation 1/2003 nor the Network Notice provides any additional rules on how powers should be allocated between the EC and NCAs.  For example, the EC does not need to engage in any type of balancing test or assess the NCA’s approach in a case.  Furthermore, they do not provide companies with any rights or expectations to have a case dealt with by a particular authority (the EC or an NCA). 

2.  EasyJet

a. Background to the Dispute

EasyJet is a British air carrier that, among other things, flies into and out of Schiphol Airport in Amsterdam, the Netherlands.  Luchthaven Schiphol NV (Luchthaven) operates the airport.  In 2008, easyJet filed three complaints with the Dutch NCA that certain security and passenger service charges Luchthaven was levying were discriminatory and excessive.  The first and third complaints were based on Dutch aviation law.  The second complaint was based on Dutch competition law and Article 102 TFEU.  Relatively quickly, the Dutch NCA rejected the first complaint for procedural reasons.  In 2009, the Dutch NCA rejected the third complaint on the ground that easyJet failed to show that Luchthaven had infringed Dutch aviation law.  EasyJet was unsuccessful in challenging the NCA’s decision before the national courts.  The Dutch NCA subsequently rejected the second complaint, which was based on an alleged abuse of the airport’s dominant position.  In its rejection decision, the Dutch NCA highlighted the similarities between Dutch aviation law (which Luchthaven did not infringe) and Dutch and EU competition law.  The Dutch NCA also explained that, among other things, it had construed the provisions of Dutch aviation law in accordance with Article 102 TFEU case-law when reviewing the second complaint.  As a result, a review of the charges under Article 102 TFEU would have had the same outcome as the NCA’s review under Dutch aviation law.  Therefore, in line with its priority policy, the Dutch NCA rejected the second complaint.

In 2011, easyJet filed an abuse of dominance complaint with the EC concerning the same charges that it had brought to the Dutch NCA’s attention.  In the complaint, easyJet explained that it had filed complaints with the Dutch NCA, which had been rejected.  The EC subsequently issued a decision rejecting the complaint on the basis of Article 13(2) of Regulation 1/2003, but it stated that it could also have rejected it because the EU lacked a legal interest since, based on the Dutch NCA’s findings, it was unlikely that an Article 102 TFEU infringement would be established.  EasyJet appealed before the GC the EC’s decision to reject its complaint.

b. The GC Judgment

In this case, the GC looked at Article 13(2) of Regulation 1/2003, instead of Article 13(1).  The difference between the two paragraphs is that paragraph (1) applies when a case is already being dealt with; whereas paragraph (2) permits an NCA or the EC to reject a complaint when the complaint has already been dealt with by another competition authority.  That is, in the latter case, the matter is over. 

Looking at the preamble in Regulation 1/2003, which relates to Article 13, the GC remarked that the EC can reject a complaint for lack of EU interest even if no other competition authority has indicated that it intends to deal with the case.  Looking more specifically at Article 13(2), the GC noted that when an authority has already dealt with a case, this does not mean that the authority had to arrive at any one outcome when reviewing the case.  The only necessity is for the review to have been conducted in light of EU competition law.  Reading the preamble and Article 13(2) together, the EC can reject a complaint that an NCA has reviewed in light of EU competition law, but rejected based on priority grounds.  The GC also looked at the Network Notice, which affirmed its view.

3.  Concluding Remark

As evidenced in the above cases, if a complainant does not like how a competition authority is managing an investigation, it cannot rely on Regulation 1/2003 or the Network Notice to get the investigation transferred to what it may consider be a more desirable or appropriate forum.  There is no balancing test.  It is more or less left to the discretion of the authorities.  Therefore, potential Article 102 TFEU complainants should carefully consider which competition authority they go to first.