According to established case-law, the Commission, entrusted by Article 105(1) TFEU with the task of ensuring the application of Articles 101 and 102 TFEU, is responsible for defining and implementing the competition policy of the European Union and for that purpose has a discretion as to how it deals with complaints (judgments of 26 January 2005, Piau v Commission, T‑193/02, EU:T:2005:22, paragraph 80; of 12 July 2007, AEPI v Commission, T‑229/05, not published, EU:T:2007:224, paragraph 38; and of 15 December 2010, CEAHR v Commission, T‑427/08, EU:T:2010:517, paragraph 26). In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it (see judgment of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraph 88 and the case-law cited).

When, in the exercise of that discretion, the Commission decides to assign different priorities to the examination of complaints submitted to it, the Commission may not only decide on the order in which they are to be examined, but also reject a complaint on the ground that there is an insufficient European Union interest in further investigation of the case (judgments of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 60, and of 14 February 2001, Sodima v Commission, T‑62/99, EU:T:2001:53, paragraph 36). As the assessment of the European Union interest raised by a complaint concerning competition depends on the factual and legal circumstances in each case (judgment of 12 July 2007, AEPI v Commission, T‑229/05, not published, EU:T:2007:224, paragraph 38), the number of assessment criteria to which the Commission may refer should not be limited, nor, conversely, should the Commission be required to have recourse exclusively to certain criteria (judgments of 17 May 2001, IECC v Commission, C‑450/98 P, EU:C:2001:276, paragraph 58, and of 16 January 2008, Scippacercola and Terezakis v Commission, T‑306/05, not published, EU:T:2008:9, paragraph 189).

The Commission’s discretion is not unlimited, however (judgment of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraph 89). It must consider attentively all the relevant matters of fact and of law which the complainant brings to its attention in order to decide on what action to take in response to a complaint (see judgment of 17 May 2001, IECC v Commission, C‑450/98 P, EU:C:2001:276, paragraph 57 and the case-law cited).

Where the Commission decides, as in the present case, not to initiate an investigation, it is not required to establish that there has been no infringement in support of such a decision (see, to that effect, judgment of 16 January 2008, Scippacercola and Terezakis v Commission, T‑306/05, not published, EU:T:2008:9, paragraphs 130 and 180 and the case-law cited).

Accordingly, in such a situation, the Court must examine, not if the complainant had, in its complaint, provided sufficient evidence to find an infringement of competition law, but whether it is clear from the contested decision that the Commission balanced the significance of the impact which the alleged infringement may have on the functioning of the common market, the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required for it to perform, under the best possible conditions, its task of ensuring that Articles 101 and 102 of the TFEU are complied with (judgments of 18 September 1992, Automec v Commission, T‑24/90, EU:T:1992:97, paragraph 86; of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 62; and of 12 July 2007, AEPI v Commission, T‑229/05, not published, EU:T:2007:224, paragraph 41). Moreover, the review by the Courts of the European Union must not lead them to substitute their assessment of the European Union interest (see judgment of 16 January 2008, Scippacercola and Terezakis v Commission, T‑306/05, not published, EU:T:2008:9, paragraph 97 and the case-law cited).

In order to allow the General Court to review effectively the Commission’s use of its discretion to define priorities, that institution is however under an obligation to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed (judgments of 4 March 1999, Ufex and Others v Commission, C‑119/97 P, EU:C:1999:116, paragraphs 90 and 91, and of 14 February 2001, Sodima v Commission, T‑62/99, EU:T:2001:53, paragraph 42).

In the present case, the Commission considered, in the contested decision, that there was insufficient EU interest to justify opening an investigation on the ground that the likelihood of an infringement of Article 101 and/or Article 102 TFEU seemed limited, that the scope of the investigations needed would probably be disproportionate in the light of that limited probability and that the national authorities and courts seemed to be in a better position to deal with the issues raised.

It is in that context and having regard to the references to the case-law, set out in paragraphs 34 to 39 of this judgment, that the first part of the second plea must be examined.

As regards the fact that, in the contested decision, the Commission considered that the likelihood of establishing the alleged infringement seemed to be limited, the Court observes that the factual evidence provided by the applicants certainly made it possible to establish that they had been the subject of simultaneous and concurring complaints, mainly in 2005 and 2006, but also, in 2008 and from 2010 to 2012, to the Austrian and Polish authorities, which complaints were likely to have been made by some of the producers and distributors of plant protection products referred to in the complaint, even if this fact is not established with certainty or precision.

In that regard, the Court finds, as the Commission pointed out in the contested decision, that the evidence submitted by the applicants in order to demonstrate the likelihood of an agreement or concerted practice on the part of producers and distributors of plant protection products concerned, in essence (i) the simultaneous nature of the complaints against the applicants before the national authorities; (ii) the fact that those producers and distributors met in the context of sectoral associations of which they were members, notably on 14 and 15 June 2005 during a joint meeting between PSOR and IVA and (iii) the fact that two law firms had been mandated to inform the various national authorities of the alleged infringements, committed by the original complainant companies, of the legislation applicable to trade in plant protection products.

Article 101 TFEU strictly precludes any direct or indirect contact between economic operators the object or effect of which is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market. However, the economic operators retain the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (judgments of 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 174, and of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80, paragraph 720). Thus, undertakings may act, inter alia, in the defence of their legitimate interests in the event of infringement by their competitors of applicable provisions, such as, in the present case, regulations relating to trade in plant protection products. On the other hand, Article 7 of Regulation No 1/2003 allows undertakings, such as the applicants, to file a complaint with the Commission concerning any infringement committed by their competitors of Articles 101 and 102 TFEU.

In the present case, it could have been envisaged that, solely on the basis of the elements submitted unilaterally in the complaint by the applicants, there was evidence of potential coordination between the entities referred to in the complaint concerning the definition of a collective strategy to disclosure alleged infringements committed by the applicants of the reporting rules, relating in particular to parallel trade in plant protection products.

However, as regards the likelihood of establishing the existence of a cartel or a concerted practice, the General Court considers, in the light of the explanations provided by certain entities referred to in the complaint, that they had to deal with the infringements of the original complainant companies at the same time of year, namely the period when the need for plant protection products for farmers was highest, that the Commission did not make a manifest error of assessment in deciding, in the contested decision, that such elements of response could justify the simultaneous complaints of producers and distributors of those products to the national authorities.

Furthermore, as regards the likelihood of establishing that the subject matter of these simultaneous complaints was potentially anticompetitive, the Court considers that, in general, having regard in particular to the risks of damage to their reputation or of adverse effects on the original condition of the products traded, it may be legitimate for producers and distributors of plant protection products to inform the competent national authorities of possible infringements by their competitors of the provisions in force, in particular in the context of parallel trade in such products. As regards the participation of certain of the entities referred to in the complaint in the inspections carried out by the national authorities at the premises of the applicants, the EU rules, such as Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2003 L 196, p. 7), and Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 (OJ 2013 L 181, p. 15), provide, in certain cases, for the possible presence of holders of intellectual property rights in order to determine, in the course of inspections, any infringement of those rights.

It is therefore also without committing a manifest error of assessment that the Commission considered, in the contested decision, that the entities referred to in the complaint were entitled to inform the national authorities of the alleged infringements committed by the applicants of the applicable rules and, where appropriate, to cooperate with those authorities in the context of the inspections that they carried out.

Finally, as regards the assimilation of the administrative inspections and the administrative and criminal proceedings in respect of the applicants to the conduct of the entities referred to in the complaint, the Court finds that the decisions to conduct off-site and on-site inspections and to institute administrative and criminal proceedings against the applicants, which gave rise to difficulties for those applicants in pursuing their commercial activities in those circumstances, were attributable to those national authorities which, as the applicants acknowledge, act in the public interest and whose decisions fall, as such, within their discretion. Despite the references made in the reply of 16 January 2017 to certain provisions of Polish and Austrian legislation, the wording of which does not necessarily make it possible to support their positions, the applicants have failed to prove that those national authorities were acting with limited discretion in the sense that, under those national legislations, those authorities had an obligation to act solely on the ground of having received information from third parties.

The Court considers that, in the present case, it was not excluded that those national authorities could have decided, under their national legislation, that the information submitted to them, whether anonymously or not, did not show or provide evidence of suspected infringements by the applicants of the applicable administrative, tax or criminal law provisions and, therefore, did not justify prosecution of the applicants. Furthermore, as the Commission pointed out in paragraph 52 of the contested decision, some of the inspections carried out by the Polish authorities, in particular in 2008, were in any event carried out ex officio and not as a result of a request by competitors of the applicants.

Leaving aside the issue of the assessment by the Austrian and Polish authorities as to whether it was appropriate to carry out inspections or to bring proceedings against the applicants, the Court observes that, according to the information provided by the applicants, 57 decisions, each relating to a different product marketed by the applicants, were adopted in Austria as a result of the administrative inspection procedures which allowed the national authorities to find infringements of the applicable law by the applicants and that, in the case of Poland, administrative fines were imposed on the applicants in the amounts, essentially, of PLN (Polish zlotys) 21 759 969.92, PLN 48 247 161.60 and PLN 375 056.56. In that regard, some of the abovementioned decisions and fines were subsequently annulled, in part or in whole, by the competent national courts ruling on the actions brought by the applicants. However, the fact remains that the national authorities had initially held, in decisions adopted under national law, that the applicants had infringed the provisions applicable to trade in plant protection products and that, in any event, any irregularities committed by the national authorities could not be attributed to the entities referred to in the complaint.

Those findings by the Polish and Austrian authorities made it possible, as the Commission held in the present case, to put into perspective the applicants’ assertion that the statements and complaints, allegedly made by the producers and distributors of the plant protection products referred to in the complaint, were misleading or dishonest and were part of a collective effort to eliminate the applicants as competing companies. Moreover, in that regard, the Court observes that the applicants have failed to explain the specific reasons why they have not brought, under national law, defamation actions before the Polish and Austrian national courts against the companies they accuse, in the present case, of making misleading or deceptive statements about them.

In the light of those considerations, it was not obvious, prima facie, that, in the present state of EU law, it would have been easy for the Commission to establish that the behaviour of the entities referred to in the complaint, as described and documented by the applicants, could as such, be regarded as forming part of the context of a cartel within the meaning of Article 101 TFEU or a collective dominant position within the meaning of Article 102 TFEU.

Consequently, the Commission could, without committing a manifest error of assessment, find in the contested decision that the likelihood of establishing an infringement of Article 101 or 102 TFEU appeared to be low.

In so far as the applicants, by the complaint and by the present action, challenged the conduct and the decisions of the national authorities, in this case the German, Austrian and Polish authorities, in particular their consultations with a view to fulfilling their duties of monitoring compliance, by operators marketing plant protection products, of the applicable legislation, it must be held that such conduct and decisions by the authorities of the Member States fall outside the scope of Articles 101 and 102 TFEU, since those articles are intended to govern the conduct of undertakings only (see, to that effect, judgment of 5 April 1984, van de Haar and Kaveka de Meern, 177/82 and 178/82, EU:C:1984:144, paragraph 24). In that regard, the circumstance, referred to by the applicants in the reply of 16 January 2017, that those authorities were influenced in their decisions to carry out inspections by applications made to them by instructed law firms does not alter the fact that those decisions are decisions of national authorities.

Moreover, the Commission could rightly consider that the investigation, as requested in the complaint, which would have been necessary in order to prove or, conversely, disprove the existence of an infringement of Article 101 and/or Article 102 TFEU, would have required committing substantial resources. While the applicants only provided evidence in respect of some of the entities covered by the complaint, in particular RWA, they nevertheless called into question a large number of other companies and professional organisations.

Furthermore, contrary to the applicants’ submissions, the fact that the Commission found that the investigation, as requested in the complaint, would have been far-reaching if it had to be opened was not, in itself, a decisive criterion compelling it to open such an investigation. That also applies to the fact that the conduct complained of was allegedly adopted in several Member States.

In that regard, the Commission argues in the present case that the conduct complained of in the complaint was essentially confined to one Member State, namely Poland, in which the main warehouses of Agria Polska were situated.

In that regard, even if certain inspections may have taken place in Austria and resulted, in that Member State, in the imposition of penalties on the applicants, it is clear from the documents before the Court that most of the difficulties encountered by the applicants in their dealings with the national authorities concerned their activities in Poland and, only to a lesser extent, those in Austria.

However, the Court notes that the applicants brought a national complaint only in Poland. In their reply of 16 January 2017, they confirmed that they had not lodged a similar complaint with the Bundeswettbewerbsbehörde (federal competition authority, Austria) and, in that regard, they explained, at the hearing, that the failure to file a complaint before that authority was due to the decision of the Luxembourg company Cera Chem to refer the case to the Commission, which was in their view, after the refusal of the UOKiK to deal with the national complaint, the entity naturally best placed to hear the complaint.

Independently of those explanations, the Court considers that the applicants could have lodged a complaint with the federal competition authority in so far as, first, they accuse RWA of having instructed an Austrian law firm which it is claimed, in turn instructed a Polish law firm to file complaints with the national administrative and criminal authorities against the applicants and, secondly, they were subject, in April 2012, to inspections by the federal office for food safety.

Moreover, the fact that the applicants have lodged a complaint only in Poland confirms the fact that, in their minds and as the Commission found, in essence, in the contested decision, the UOKiK could be best placed to deal with the objections raised in the complaint, as well as the Polish and even Austrian courts in the context of the action that the applicants might bring in order to obtain compensation for the damage resulting from the alleged infringement, by the producers of plant protection products, of Articles 101 and 102 TFEU.

Even accepting that the complaint concerned the conduct of the applicants’ competitors both in Austria and Poland, or, despite the absence of relevant and substantial evidence in that regard, in Germany and Luxembourg, the fact that the alleged conduct took place in several Member States, in this case, essentially, in two of them, must be treated as merely indicating that an action at EU level could be more effective than various actions at national level (see, to that effect, judgment of 15 December 2010, CEAHR v Commission, T‑427/08, EU:T:2010:517, paragraph 176). However, such evidence would not, in itself, suffice to justify the opening of an investigation by the Commission.

In any event, even on the assumption that, to a certain extent, the Commission had also been well placed to deal with the case, in so far as the conduct alleged in the complaint concerned several Member States and with due regard to the fact that the UOKiK rejected the analogous national complaint on a ground relating to a national rule on limitation, the applicant did not have any right to have the case dealt with by the Commission (see, to that effect, judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 40), since it is clear from the documents before the Court that, in the present case, that conduct concerned, essentially, only two Member States and that, without making a manifest error of assessment in that regard, the Commission found that the possibility of proving an infringement was limited, a finding which, in itself, could lead to the conclusion that there was no European Union interest in further investigation of the case (see, to that effect, judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 100 and the case-law cited).

The applicants dispute the position taken by the Commission in the contested decision, according to which the case-law resulting from the judgments of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266), was not applicable in the present case and therefore did not make it possible to consider the coordinated conduct of the entities referred to in the complaint as anticompetitive. They also consider that the practices described in the complaint provided an opportunity for the Commission to develop EU competition law, which is one of the grounds recognised by the Commission Notice on the handling of complaints under Article [101 TFEU] and [102 TFEU] (OJ 2004 C 101, p. 65).

It should be pointed out in that regard that, in the contested decision, the Commission justified the difficulty of establishing the infringement complained of on the ground, inter alia, that according to that institution, the fact that undertakings informed the national authorities, or, in the words of the applicants, reported possible infringements to those national authorities, did not fall within the concepts of ‘vexatious action’ or ‘abuse of regulatory procedures’ within the meaning of the case-law developed from the concept of abuse of a dominant position, resulting from the judgments of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266). It is therefore necessary to examine the relevance of that case-law in the present case.

In that regard, in paragraphs 60 and 61 of the judgment of 17 July 1998, Promedia v Commission (T‑111/96, EU:T:1998:183), read in conjunction with paragraph 55 of that judgment, the General Court pointed out that access to the courts, including by an undertaking in a dominant position, was a fundamental right and a general principle ensuring the rule of law and that it was therefore only in wholly exceptional circumstances that bringing a legal action, by an undertaking in a dominant position against its competitor, could constitute an abuse of a dominant position within the meaning of Article 102 TFEU. Thus, in order to conclude that a legal action may in fact constitute an abuse of a dominant position, two cumulative conditions must be met. It is necessary that the action (i) cannot reasonably be considered as an attempt to establish the rights of the undertaking concerned and can therefore only serve to harass the opposite party and (ii) it is conceived in the framework of a plan whose goal is to eliminate competition. Those two criteria must be interpreted and applied restrictively in a manner which does not frustrate the general rule of access to the courts (judgment of 13 September 2012, Protégé International v Commission, T‑119/09, not published, EU:T:2012:421, paragraph 49).

In the case giving rise to the judgment of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266), the EU Courts held that an undertaking which holds a dominant position cannot use ‘regulatory procedures’ in such a way as to prevent or make more difficult the entry of competitors on the market, in the absence of grounds relating to the defence of the legitimate interests of an undertaking engaged in competition on the merits or in the absence of objective justification (judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraphs 672 and 817, confirmed on appeal by judgment of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:C:2012:770, paragraph 134). According to the Court of Justice, the illegality of abusive conduct under Article 102 TFEU is unrelated to its compliance or non-compliance with other legal rules and, in the majority of cases, abuses of dominant positions consist of behaviour which is otherwise lawful under branches of law other than competition law (judgment of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:C:2012:770, paragraph 132).

The judgments of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266), however, involved conduct different from that attributed, in the present case, by the applicants to the entities referred to in the complaint.

It must be held that, in the two cases which gave rise to the judgments of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266), the administrative and judicial authorities seised by the undertakings in a dominant position concerned had no discretion as to whether it was appropriate to follow up or otherwise the applications made by those undertakings, whether that was a counterclaim brought before a national court or the decision of an undertaking to withdraw its application for authorisation to place a medicinal product on the market. First, the court to which that counterclaim was made was required to rule on it. Secondly, the authority which granted the marketing authorisation could not decide to maintain that authorisation in force contrary to the will of the holder of that authorisation.

On the other hand, as was found in paragraphs 49 and 50 of the present judgment, the administrative and criminal authorities which, in the present case, decided to inspect or prosecute, or indeed impose sanctions on the applicants, could have adopted those decisions independently of the information allegedly supplied to them by the producers and distributors of plant protection products. Conversely, they could also have found, on the basis of the information which they had received, including that received anonymously, that there was no need to carry out inspections or to prosecute the applicants.

Consequently, apart from the fact that it was not clear, on the basis of the information provided in the complaint, as to whether there was a collective dominant position of the undertakings referred to in the complaint or a dominant position of one of them, in the present case RWA, the Court considers that the Commission could, without committing a manifest error of assessment in that regard, find that the likelihood of establishing an infringement in the present case in Articles 101 and/or 102 TFEU was low, not least because it was not clear that the conduct at issue in the present case could fall within the concept of abuse of a dominant position within the meaning of the case-law resulting from the judgments of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266). That finding is borne out by the fact that in the judgment of 17 July 1998, ITT Promedia v Commission (T‑111/96, EU:T:1998:183), the EU courts stressed the exceptional nature of acknowledging an abuse of a dominant position in the situation referred to in the present case.

Finally, in view of the Commission’s broad discretion in setting priorities for the development of EU competition law, the fact that a case may potentially contribute to the development of a new aspect of that law cannot have the effect of compelling the Commission to carry out an investigation, contrary to what the applicants suggest.

In the light of the foregoing considerations, the first part of the second plea must be rejected as unfounded.