On March 12, 2020, the General Court confirmed the Commission’s decision to reject a complaint brought by LL-Carpenter (“Carpenter”), a Czech distributor of motor vehicles, against Subaru for alleged anti-competitive conduct. The judgment serves as a reminder of the Commission’s wide discretion to evaluate and reject complaints.
Carpenter lodged a complaint against Subaru before the Commission in 2012. This followed a narrower complaint to the Czech Competition Authority (“CSA”) in 2010 on some of the same grounds. Carpenter claimed that Subaru had infringed Articles 101 and 102 TFEU by, among other things, refusing to make it an authorized distributor, restricting its authorized distributors from dealing with Carpenter, and refusing to provide spare parts and technical information to Carpenter.
The CSA ended its investigation in 2014 after finding there was insufficient evidence of an infringement. In turn, the Commission rejected the complaint in 2018: (i) with respect to the allegations that had been included in the CSA complaint, on the ground that these had already been dealt with by the CSA, and (ii) for the other allegations, on the basis of the Commission’s discretion in setting enforcement priorities. Carpenter appealed to the General Court, which upheld the Commission’s rejection decision.
The Commission’s discretion to reject complaints already considered by another agency
Under Article 13(2) of Regulation No 1/2003, the Commission may reject a complaint if a national competition authority (“NCA”) has already dealt with the practices at issue. The Commission found that the allegations included in Carpenter’s complaint to the CSA had already been dealt with by that agency, and could therefore be rejected.
The General Court confirmed that the Commission has a broad margin of discretion in applying Article 13(2). The General Court clarified that Article 13(2) covers situations where the NCA has effectively dealt with the complaint, and for this to be the case, that the NCA must have taken certain active steps beyond receiving the complaint. However, it did not require the NCA to adopt a formal decision. In this case, the CSA had invited Subaru to submit observations on the alleged practices and had informed Carpenter of the results of its investigation. Accordingly, the Commission was right to conclude the CSA had dealt with the case. 
The Commission’s discretion to prioritize complaints
With respect to allegations that had not been dealt with by the CSA, the Commission dismissed the complaint after finding that there were insufficient grounds to establish an infringement, and that an in-depth investigation would require considerable resources and was disproportionate given the limited likelihood of finding an infringement.
The General Court confirmed that the Commission is entitled to assign different levels of priority to the complaints it receives, in its role in defining and enforcing EU competition policy. In so doing, the Commission must evaluate the importance of the alleged infringement against the probability of establishing an infringement. The General Court found that Carpenter had failed to demonstrate a manifest error of appraisal in the Commission’s finding that the probability of establishing the existence of the alleged infringement at issue was limited.
The judgment confirms that the Commission enjoys a wide margin of discretion in deciding whether to pursue an antitrust complaint. Given the time- intensive nature of antitrust investigations and the Commission’s need to ensure effective use of its limited resources, some prioritization is inevitable, and there will continue to be many complaints that are not taken further.
To improve the chance of having a complaint accepted, companies should always provide as much evidence as possible to demonstrate the infringement and its impact on consumers. Companies may also show how the case is relevant to the Commission’s current enforcement priorities, or is otherwise deserving of Commission attention, e.g., because there is a need to resolve conflicting application of EU law by national authorities.
 LL-Carpenter s. r. o. v. European Commission (Case T-531/18) ECLI:EU:T:2020:91, para. 20 (“Carpenter v. Commission”).
 Carpenter v. Commission, para. 42.
 Carpenter v. Commission, para. 48.
 Carpenter v. Commission, para. 51.
 Subaru (Case COMP/AT.40037) Commission decision of 26 June 2018 (“Carpenter v. Subaru”), recital 29.
 Carpenter v. Subaru, recital 51.
 Carpenter v. Commission, para. 64.
 Carpenter v. Commission, para. 69.
 Carpenter v. Commission, para. 76.