Judgment of the General Court Tenth Chamber, Extended Composition of 15 December 2021, Oltchim v Commission, T-565/19

• Date: 15 December 2021
• Year: 2021

48

and, what is more, with the general scheme of the system relating to the application of the EU

competition rules. Thus, first, in the exercise of its prerogatives in competition matters,

87

the

Commission is not under any obligation to rule on whether or not there has been an infringement of

the relevant competition rules, to find and penalise any anticompetitive conduct, or even, in the

context of an investigation procedure giving rise to a statement of objections, to rule in the final

decision on each objection referred to in that statement. Secondly, from the point of view of the

general scheme of Regulation No 1/2003,

88

the Court notes that Article 10 of that regulation provides

for a specific legal basis for the adoption of a ‘negative’ decision on the substance, which is specifically

intended to make a finding that Article 101 TFEU does not apply to specific conduct. Furthermore, the

Court notes that, according to the case-law,

89

the adoption by a national competition authority of a

decision that there are no grounds for action under the second paragraph of Article 5 of Regulation

No1/2003 does not lead to a declaration of non-liability capable of precluding a subsequent finding of

an infringement.

In the present case, given that the initial decision was not adopted on the basis of Article 10 of that

regulation, there is nothing to justify regarding it as a declaration of non-liability, even though it

amounts, in the circumstances of the present case, to a decision that there were no grounds for

action.

In those circumstances, the Court holds that no breach of the principle ne bis in idem may be alleged

against the Commission.

Lastly, after rejecting the claims for annulment in their entirety, the Court also rejects the claim for

reduction of the amount of the fine imposed jointly and severally on the applicants by the

Commission. In that regard, considering it appropriate to adhere to the method of calculation used by

the Commission in the contested decision, the Court rejects the applicants’ complaints concerning the

application of that method in the present case.

4.2 State aid

Judgment of the General Court (Tenth Chamber, Extended Composition) of 15 December

2021, Oltchim v Commission, T-565/19

Link to the complete text of the judgment

State aid – Measures taken by Romania to support a petrochemical company – Non-enforcement,

accumulation and cancellation of public claims – Action for annulment – Period within which proceedings

must be brought – Point from which time starts to run – Article 24(1) of Regulation (EU) 2015/1589 –

Interest in bringing proceedings – Existence of one or more measures – State resources – Imputability to

the State – Applicability of the private creditor test – Application of the private creditor test – Obligation to

state reasons

The financial situation of Oltchim SA, a Romanian undertaking active in the manufacture of

petrochemical products, deteriorated progressively over the period from 2007 to 2012.

87

The Court refers, in the present case, to Article 105(1) TFEU, Article 55(1) of the EEA Agreement, the EC-Switzerland Air Transport Agreement,

Regulation No1/2003 and the implementing provisions of Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport

Agreement.

88

Council Regulation (EC) No1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and

102 TFEU] (OJ 2003 L 1, p. 1).

89

See, inter alia, judgment of 3 May 2011, Tele2 Polska (C-375/09, EU:C:2011:270, paragraphs 22 to 28).