On February 9, 2022, the General Court annulled another Commission decision rejecting an antitrust complaint, because the Commission failed to properly examine and address alleged systemic and generalized rule of law deficiencies in Poland which question the possibility of a fair trial before the Polish Competition Authority.[1]


In November 2016, the Polish shipping company Sped-Pro lodged a complaint with the Commission alleging that state-owned PKP Cargo abused its dominant position in rail freight forwarding services in Poland by failing to provide access to its carrier services through cargo trains on non- discriminatory terms. In August 2019, the Commission rejected the complaint because it related solely to Poland, and would thus be best handled by the Polish Competition Authority.[2] In doing so, the Commission disregarded Sped-Pro’s argument that the Polish Competition Authority would not guarantee a fair trial due to general rule of law concerns in Poland, including the lack of independence of the national antitrust agency and the competent courts.[3] Sped-Pro appealed to the General Court.

General Court

The General Court recalled that the Commission and the Member States authorities have parallel competence to apply competition rules, in close and sincere cooperation, respecting the principles of mutual recognition and trust. Although the Commission is entitled to reject a complaint without a Union interest, it can only do so if the complainant’s rights will be sufficiently safeguarded by national authorities. The General Court found that the Commission did not properly examine the evidence indicating a real and individual risk of a lack of fair trial. Instead, the Commission limited its reasoning to a brief statement that the arguments put forward by Sped-Pro were unsubstantiated allegations.[4] Accordingly, the General Court annulled the Commission decision in its entirety. Interestingly, the Commission recently disregarded the lack of rule of law argument in Terminals at Warsaw Airport and PPL/Modlin airport,[5] and Polish Sands,[6] though the parties did not appeal.

Although the merits of the Sped-Pro judgment reflect the particular situation of a Member State, it does, together with the Gazprom judgment addressed above, more broadly reiterate that the Commission’s discretion in the handling of complaints is subject to a corresponding obligation to provide sufficient reasoning for its decision.

This may potentially cause the Commission to become more cautious when handling complaints, which might, in turn, result in more burdensome requests for information being sent to the subjects of antitrust complaints in the future.

Editors: Conor Opdebeeck-Wilson and Thorsten Schiffer

[1] Sped-Pro S.A. v European Commission (Case T-791/19), EU:T:2022:67.

[2] Rail Freight Forwarding in Poland (Case COMP/AT.40459), Commission decision of August 12, 2019.

[3] See Rail Freight Forwarding in Poland (Case COMP/AT.40459), Commission decision of August 12, 2019, para. 25 (v). The Commission applied, by analogy, the lessons of the judgment in LM (Case C-216-18 PPU), EU:C:2018:586, where the Court of Justice concluded that European Arrest Warrants may be suspended only after the executing authority has applied the following two-pronged test to analyze the rule of law situation in the country: (i) evaluate whether there are generalized rule of law deficiencies impairing the independence of the courts and potentially leading to breaches of the fundamental right to a fair trial; and (ii) evaluate whether there are serious grounds to believe that, following the surrender, the person concerned actually runs a real and individual risk.

[4] The Commission explained that “[Sped-Pro’s] arguments in this regard contain only supported presumptions. In particular, the fact that the Chairman of the OCCP is appointed by the Prime Minister does not prejudge the lack of independence of the OCCP’s decision towards PKP Cargo” (para. 25).

[5] Terminals at Warsaw Airport and PPL/Modlin airport (Joined Cases COMP/AT.40558 and COMP/AT.40570), Commission decision of July 2, 2021, para. 95.

[6] Polish Sands (Case COMP/AT.40498), Commission decision of July 23, 2019, paras. 22-23.