Decision of the European Ombudsman on complaint 1069/98/ADB against the European Commission

Dear Mr P.,
On 14 October 1998 you lodged a complaint with the European Ombudsman concerning the European Commission's refusal to investigate a complaint (IV/36.561/F-2 P. / Mazda Motors Deutschland GmbH) relating to competition issues.
On 29 October 1998, I forwarded the complaint to the President of the European Commission. The European Commission sent its opinion on 15 February 1999 and I forwarded it to you with an invitation to make observations, if you so wished. I received your observations on 29 March 1999 and 28 April 1999. On 30 April 1999 I asked you for some clarifications regarding your case, which you sent to me on 19 May 1999.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

In 1983, the complainant, a German car dealer, concluded a contract for a fixed term of one year with Mazda Motors Deutschland GmbH. Considering that the terms and conditions of this main dealer contract were unlawful, the complainant unsuccessfully brought the case to German Courts. On 21 January 1997 he lodged a complaint with the Directorate General for Competition of the European Commission (complaint ref. at the European Commission IV/36.561/F-2).
According to the complainant, pursuant to a communication of the Commission, the kind of contract he signed with Mazda Motors Deutschland GmbH should have been concluded for a fixed term of at least five years. Given that the contract was actually concluded only for a period of one year it should have received an individual exemption, which as confirmed by the Commission it never received. Moreover, the contract should have been adapted to Regulation (EEC) 123/85. As a result of these irregularities the complainant considers that Mazda Motors Deutschland GmbH owes him compensation.
In this connection, the complainant considers that the contract is eligible for a control by the Commission, which in his view is the only competent authority. Thus, it should have carried out the control of the contract in the framework of his complaint lodged with the European Commission. By refusing to do so, the complainant feels that the Commission has abused its discretion and its powers. Consequently he asked the European Ombudsman to investigate the matter.

THE INQUIRY

The Commission's opinion
The Commission drew up a list of the correspondence relating to the complaint lodged with the European Commission by the complainant, and made a detailed description of the sequence of actions taken in that connection.
The Commission explained that in his application the complainant urged its services to take action (pursuant to Article 189 of the Treaty) against Mazda Motors Deutschland GmbH within two months, otherwise he would take legal steps against the Commission and claim damages.
Regarding the two first arguments of the complainant referring to the eligibility of the contract for a control by the Commission, and the exclusiveness of this control competence, the Commission stated that in the first stage of the procedure(1), on 17 February 1997, it had informed the complainant that his case "did not merit sufficient Community interest to be pursued by the Commission" and in summary put forward the following arguments:

- "the complaint concerned an alleged infringement of subjective rights; any claim would consequently have to be submitted to a national court, which is also in a position to grant damages, as the case may be;

- a formal investigation by the Commission would be non-proportional in relation to the significance of the case, the Commission has to serve the general interest and disposes of limited resources, which can not be used for all cases brought to its attention; it therefore has to set priorities;

- the Commission's task is to investigate in cases where an infringement of competition rules can be established which are lasting; priority can not be attributed to a case which dates back more than 12 years."

The complainant had the opportunity to make observations regarding that position. According to the Commission he basically repeated his claim, made some further requests and invoked additional arguments regarding the substance of his complaint. He in particular informed the Commission that his case had already been dealt with by German Courts, but that the Federal Supreme Court (Bundesgerichtshof) refused the appeal. This was checked by the Commission which was communicated the legally binding judgement.
The complainant however failed to present any additional arguments which would alter the aforementioned view of the Commission on this matter. Therefore, on 13 November 1997, the Commission addressed the complainant a letter pursuant to article 6 of Regulation (EEC) N° 99/63(2) (corresponding to the second stage of the procedure), repeating what was stated in its first letter, and adding the following argument:

"the complaint concerns a case which principally has its effects in one Member State; trade between Member States is - if at all - only affected to a very minor extent;

In reaction to this letter, the complainant once again repeated his claim, without however presenting any new argument which would alter the position of the Commission.
The Commission informed the Ombudsman that the complainant, considering that the European Commission had failed to act in his case, submitted two consecutive applications to the Court of First Instance of the European Communities (CFI) which have been rejected on grounds of non-respect of the imposed delay, and for which no judgement on the substance took place.
Regarding the claim of the complainant according to which the European Commission abused its powers and discretion, the Commission stressed that Regulations 17/62(3) and 99/63 do not confer the complainants any right to obtain a decision. The Commission's obligation is to closely examine the matters of fact and of law brought to its attention by the complainant. It cannot be obliged to continue proceedings up to the stage of a final decision. In the present case the complainant was informed of the arguments which motivated the refusal of the European Commission to examine his case. Therefore, the Commission denied having abused its powers or discretion.
Eventually, the Commission informed the Ombudsman that further to the latest letter of the complainant, the Commission would prepare a decision for complaint IV/36.561/F-2.
The complainant's observations
The European Ombudsman forwarded the European Commission's opinion to the complainant with an invitation to make observations. In his reply of 26 March 1999, the complainant informed the Ombudsman that the decision the Commission claimed to be preparing, was taken on 21 January 1999 and had reached him. He considers that it does not properly assess his claims.
Further, as he already did in a previous letter relating to the present case, he reported about several other complaints he lodged with the European Commission and the German Federal Cartel Office (Bundeskartellamt), which according to him were not properly dealt with by these institutions. Regarding this aspect of the observations, the Ombudsman had already informed the complainant beforehand that it would not be possible to assess the merit of claims which were not part of the original complaint or which concern national institutions which are outside the Ombudsman's remit.
Given that in his observations the complainant expressly mentioned procedures engaged at the CFI, the Ombudsman decided to request some further clarifications from the complainant. On 19 May 1999, the complainant informed the Ombudsman about one application to the CFI which was dismissed because it was belated.

THE DECISION

1 The refusal of the Commission to control the contract
1.1 The complainant has complained to the Commission under article 3(2) of Council Regulation 17/62 implementing articles 81(4) and 82(5) of the Treaty establishing the European Community, and asked the Commission to act pursuant to article 249(6). The Commission declared that the case did not merit sufficient Community interest to be pursued, and that the preservation of subjective rights should be assumed by national courts.
1.2 According to article 3 of Council Regulation 17/62, a natural or legal person who claims legitimate interest may complain to the Commission in case of a possible infringement of articles 81 and 82 of the Treaty.
1.3 In accordance with the case law of the Community Courts(7), the Commission may abstain from pursuing a complaint on the ground that it lacks sufficient Community interest. The reasoning of the Courts is that the Commission's responsibilities in competition matters form part of its general obligation, as the Guardian of the Treaty, to monitor the application of Community law; in discharging this obligation, the Commission is obliged and entitled to give different degrees of priority to the matters before it; within the field of competition, the criterion "Community interest" is relevant and lawful.
1.4 As regards the assessment of Community interest the Court(8) states that "the Commission must take account of the circumstances of the case, (…). The Commission should in particular balance the significance of the alleged infringement as regards the functioning of the common market, the probability of establishing the existence of the infringement and the scope of the investigation required in order to fulfil, under the best possible conditions, its task of ensuring that Articles [81] and [82] are complied with."
1.5 In the present case, the complainant has on three occasions (letters of 17/2/1998, 13/11/1998 and final decision of 21/1/1999), and at each stage of the procedure(9), been informed of the Commission's position regarding his application. In all three letters the Commission has provided the complainant, with an adequate reasoning based on the case's specific features. Furthermore, the complainant was given the opportunity to comment on the Institution's views on his application. Therefore, the Ombudsman considers that the Commission gave reasonable explanations for its refusal to conduct further inquiries.
1.6 Moreover, according to the Court, "the Commission is entitled to reject the complaint through lack of any sufficient Community interest in further investigation of the case provided however that the rights of the complainant or its members can be adequately safeguarded in particular by the national courts"(10).
1.7 In the present case the complainant has asked the Commission to control the legality of a main dealer contract he concluded with Mazda Motors Deutschland GmbH and therefore asked for a protection of his subjective rights. It appears that the Commission did not have sole competence for the control of a contract which actually was the object of a procedure before national courts, which were likely to ensure an adequate protection of the complainant's rights.
1.8 In reviewing the course of action chosen by the Commission, the European Ombudsman finds that the institution acted within the limits of its legal authority and therefore no instance of maladministration has been established.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to be no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) Described in the Judgement T-64/89 Automec Srl v Commission [1990] E.C.R. II-367 par. 45-47

(2) Official Journal 127 , 20/08/1963 p. 2268 - 2270 (English special edition: Series-I (63-64) p. 47)

(3) Official Journal 013 , 21/02/1962 p. 0204 - 0211 (English special edition: Series-I (59-62) p. 87)

(4) Former article 85 as re-numbered by the Treaty of Amsterdam

(5) Former article 86 as re-numbered by the Treaty of Amsterdam

(6) Former article 189 as re-numbered by the Treaty of Amsterdam

(7) Case T-24/90, Automec II, [1992] ECR II-2223

(8) Case T-24/90, Automec II, [1992] ECR II-2223 para. 86

(9) Described in the Judgement T-64/89 Automec Srl v Commission [1990] E.C.R. II-367 par. 45-47

(10) Case T-114/92, BEMIM, [1995] ECR II-147, par. 86