On January 21 2015 the General Court confirmed the European Commission's rejection of easyJet's complaint over Amsterdam-Schiphol airport charges. The case clarifies the 'serial complainers' provision of Article 13(2) of EU Regulation 1/2003 ("where a competition authority of a Member State or the Commission has received a complaint... already... dealt with by another competition authority, it may reject it"), as well as the functioning of the European Network of Competition Authorities. The commission rejected the complaint based on Article 13(2), as it had been previously considered by the Netherlands Competition Authority. The court upheld the decision, stating that even a superficial review by the first regulator was sufficient grounds for a later authority to reject.
Complainants should choose the forum carefully and work hard to sell their case to the authority. If the first regulator takes a quick look but declines to act, other authorities have an easy reason to reject the case. For defendants dealing with serial complainers, the case offers a welcome opportunity to respectfully suggest to subsequent authorities to which the complainant turns that their resources would be better deployed on other cases.
In September 2008 easyJet lodged two complaints with the Netherlands Competition Authority against Luchthaven Schiphol NV, the operator of the Amsterdam-Schiphol airport, in relation to security and passenger service charges applicable from November 1 2008. The complaints were based on provisions of Dutch air navigation legislation and competition law. In November 2008 easyJet lodged a new complaint based on Dutch air navigation law in relation to the new charges applicable from April 1 2009.
The Netherlands Competition Authority rejected the first complaint on formal grounds (brought out of time) and the remaining two complaints on priority grounds for lack of breach of aviation law.(1) In its rejections, the authority specified that its assessment had been carried out in light of competition law. The concepts of non-discrimination and reasonableness under aviation law (used to assess the charges) were very similar to those referred to in EU and national competition law, and domestic provisions were interpreted in accordance with EU case law in relation to abuse of dominance (Article 102 of the Treaty on the Functioning of the European Union (TFEU)).
easyJet unsuccessfully challenged the decision before a national court. In January 2011 easyJet lodged a complaint with the European Commission, submitting that the charges infringed Article 102 of the TFEU and were excessive and discriminatory. It also claimed that, by rejecting them on priority grounds, the authority had not decided on the merits of the complaints. Three years later, the commission rejected the complaint on the basis of Article 13(2) of Regulation 1/2003 and added, on a subsidiary basis, that it could also have been rejected for lack of EU legal interest due to the "limited likelihood to find an infringement in light of the similar conclusion reached by the Dutch NCA further to its investigation".(2) easyJet brought an annulment action against this decision.
The General Court rejected easyJet's claim that Article 13(2) is applicable only when a national competition authority at least decides that there are no grounds for action following an investigation, and not if the authority rejects the case on priority grounds.
The General Court stated preliminarily that the commission enjoys broad discretion when dealing with complaints. Accordingly, the court's judicial review assesses only whether the commission based its decision on materially inaccurate facts or committed an error of law, manifest error of appraisal or misuse of powers. The review of a national competition authority decision is a matter for national courts.
The court reiterated the principle that when interpreting EU provisions, the wording, the context in which it occurs and the objectives pursued must be considered. In interpreting the expression "complaint… which has already been dealt with by another competition authority", the court emphasised that "what matters is not the outcome of the review of the complaint by [a] competition authority, but the fact that it has been reviewed by [an] authority".(3) As long as a national competition authority is investigating or has investigated the case, the commission (or any other national authority) can lawfully reject a case based on Article 13(2), irrespective of the fact that that a national competition authority rejected it relying on its priority policies. The court also clarified that Article 5 of Regulation 1/2003, invoked by easyJet as the provision listing the only decisions which allow the application of Article 13(2):
"covers all cases in which the competition authority… finds that the information in its possession does not allow it to conclude that the conditions for prohibition are met, without it being necessary for it to have ordered any preliminary measure of inquiry."(4)
Finally, the court considered this claim to be unfounded as it ran counter to the regulation's objectives – namely, the creation of a decentralised system for the implementation of competition law – and also contradicted Article 6 of Regulation 1/2003, which establishes that national courts have the power to apply Articles 101 and 102 of the TFEU.
Similarly, the General Court also confirmed that the commission had not erred in law when it rejected easyJet's complaint on competition grounds relying on a rejection based on national air navigation law (and not on EU or domestic competition law). The court held that:
"no provision of [Regulation 1/2003] prohibits a competition authority of a Member State from relying, in the investigations which it carries out with a view to ascertaining whether there has been compliance with EU competition law rules, on conclusions which it reached as part of the investigation carried out under different national legislation."(5)
The court also found that the Netherlands Competition Authority had dealt with the complaint in light of competition law, as it had established similarities between the concepts of non-discrimination and reasonableness under aviation and competition law and had construed the former in accordance with the case law of EU courts in relation to Article 102 of the TFEU.
Finally, the court rejected easyJet's claim that the commission's decision was inadequately reasoned in the part where it rejected the complaint for lack of EU legal interest on a subsidiary basis. According to the court, the commission had clearly set out the reasons why the case had no EU interest and was unlikely to infringe Article 102 of the TFEU on the basis of the conclusions reached by the Netherland Competition Authority. In any case, even if upheld, the claim would not have led to the annulment of the commission decision due to its subsidiary basis.
The General Court held that a second complaint lodged with a different national authority (or the commission) can be rejected as long as the first national competition authority has formally reviewed it. Similarly, investigations conducted under national laws other than competition laws can also justify a rejection of Article 13(2) of the Regulation 1/2003, "on condition that that review was conducted in the light of the rules of EU competition law".(6) Whenever a complaint "has already been dealt with" by a national authority – even if superficially and under separate provisions of national law – there are valid grounds to request the second authority in charge of the complaint for a rejection on the basis of Article 13(2).
The case assists defendants in seeking to persuade authorities (a not uncommon tactic by an aggrieved complainant to make parallel or sequential complaints to an array of authorities and courts) that serial complainers must not be addressed on the substance, since another forum has considered and dismissed, even superficially, the same complaint. As a complainant, the advice is to choose the forum carefully. Facts should be presented to appeal to the regulator, buttressed with solid evidence to persuade the regulator as to why it should take the case and why it merits the regulator's resources. Starting in the wrong forum – agency or court – can be fatal to the strategy. If the first agency takes even a superficial look and 'passes', later regulators will have an easy way to decline to devote resources to a case that a sister agency has found unattractive.
For further information on this topic please contact Bill Batchelor or Luca Montani at Baker & McKenzie by telephone (+32 2 639 36 11) or email (firstname.lastname@example.org or email@example.com). The Baker & McKenzie website can be accessed at www.bakermckenzie.com.
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(1) See Netherlands Competition Authority, July 14 2009, available at https://www.acm.nl/nl/publicaties/publicatie/2557/Tarieven-en-voorwaarden-Schiphol-per-1-april-2009--easyJet-klachtafhandeling/, and December 16 2009, available at: https://www.acm.nl/nl/publicaties/publicatie/2366/easyJet-v-NV-Luchthaven-Schiphol/.
(2) See European Commission, Case COMP/39.869, easyJet Airline Ltd/NV Luchthaven Schiphol, available at http://ec.europa.eu/competition/antitrust/cases/dec_docs/39869/39869_64_4.pdf.