From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9236.4.1 Competition                
Date: Sun, 15 Nov 92 14:11:38 +0100
Organization: VDJ Nuernberg

ENR   : 2439
HD    : 4. Competition
TI    : Action for failure to act - Admissibility
RF    : JUS 9236.4.1
AB    : Four French companies exercising their activity in France, where
        they market Japanese vehicles in free circulation within the
        Community, lodged a complaint with the Commission against certain
        importers of Japanese cars in France. The complaint alleged
        infringement of Articles 85 and 30 of the EEC Treaty by the importers
        in question. As the Commission had not responded to the complaint, in
        November 1989, the plaintiffs addressed a letter requesting it to
        take a position with regard to their complaint. In March 1990, the
        four French companies in question filed an action before the Court of
        Justice against the Commission for failure to act. The purpose of the
        suit was notably to obtain a declaration under Article 175 of the EEC
        Treaty that the Commission had failed to make a decision based on
        Articles 30 and 85 of the EEC Treaty in the case concerning them. By
        a ruling of 23 May 1990, the Court of Justice rejected the suit as
        inadmissible as concerns the Commission's failure to act with regard
        to Article 30 of the Treaty and referred the case to the Court of
        First Instance for the rest.
        Note that, after the introduction of the suit, the Commission
        informed the four French firms on 8 May 1990 that it did not intend
        to act on their complaint. Finally, on 5 December 1991, the
        Commission adopted a formal decision definitively rejecting the
        complaint of the companies in question. The Court noted that, in view
        of the letter of the Commission of 8 May 1990 and its final decision
        of 5 December 1991, there were no longer grounds for the case.
        According to the Court, in a case such as the one at hand, where an
        act is adopted after the introduction of a suit for failure to act
        but before a judgment is made, a declaration of the Court of Justice
        or the Court of First Instance noting the failure to act can no
        longer carry the consequences stipulated in Article 176 of the Treaty
        in that the grounds for the case no longer exist. The petitioners
        also argued before the Court that, in the interest of proper
        administration of justice, it should be possible for them to
        transform their conclusions with regard to an action for failure to
        act into conclusions petitioning for annulment of the Commission's
        letter of 8 May 1990. On rejecting this argument, the Court of First
        Instance observed that:
        - the communications by which the Commission takes a provisional
        position on a complaint, are not decisions subject to an action for
        annulment;
        - although Article 42 of the rules of procedure of the Court of
        Justice (also applicable to the Court of First Instance) and
        Article 48 of the rules of procedure of the Court of First
        Instance, allow certain means to be produced during proceedings
        under certain circumstances, these terms cannot in any case be
        interpreted as meaning that the petitioners are authorized to bring
        new conclusions before the Community judge and thus to change the
        purpose of the case; The Court concluded that it is not admissible
        for the petitioners, who brought the case before the Court on the
        basis of Article 175 of the EEC Treaty, to transform their initial
        conclusions into conclusions for annulment based on Article 173 of
        the Treaty directed against the communication of 8 May 1990. All of
        these considerations led the Court of First Instance to declare that:
        - ruling on the conclusions of the petition was unnecessary in so
        far as it was based on Article 175 of the Treaty;
        - the other conclusions must be rejected as inadmissible.
        Judgment of the Court of First Instance of 18 September 1992, case
        T-28/90 SA Asia Motor France e.a. v. Commission of the European
        Communities, not yet published.
CT    : Competition; Appeal against inaction
DT    : 921023
Newsgroups: de.soc.recht,soc.culture.german