Order — ECLI:EU:T:2004:119
Date: 2004-04-29
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;General
Procedure: Action for annulment - inadmissible
Origin: Germany

Summary of the Order 1. Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Letter sent by an institution (Art. 230 EC) 2. Actions for annulment – Action seeking annulment of a decision confirming an earlier decision not contested in good time – Inadmissible – Meaning of a ‘confirmatory’ decision – Decision adopted after reconsideration of an earlier decision and on the basis of new evidence – Not included (Art. 230 EC) 3. Competition – Fines – Facilities for payment – Replacement of proceedings for interim relief by an administrative procedure for review of the payment arrangements for a fine – Not permissible 1. Only acts which produce binding legal effects capable of affecting an applicant’s interests by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC; in order to ascertain whether an act produces such effects, it is necessary to look to its substance. In this respect, not every letter sent by a Community institution in response to a request from the person to whom it is addressed is a decision within the meaning of Article 230 EC, against which an action for annulment may be brought. (see paras 39-40) 2. An action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings is inadmissible. A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed. However, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply. In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. If a request for reconsideration of a decision which has become definitive is based on substantial new facts, the institution concerned is required to comply with the request and an action brought against a decision refusing to reconsider a decision in such circumstances must be declared admissible. On the other hand, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it will be declared inadmissible. These considerations also apply in a case where the institution did not refuse the request for reconsideration but replied to the applicant’s request by means of the contested measure, stating, however, that this reply was not a decision, as it merely confirmed an earlier decision that had become definitive. (see paras 51-55) 3. An administrative procedure for review of a decision of the Commission concerning the payment arrangements for a fine is neither comparable nor equivalent to proceedings for interim relief. Whereas the court hearing applications for interim relief would examine both the urgency and the prima facie soundness of the action in the light of the main proceedings brought against the decision imposing the fine, in the administrative review procedure the Commission would have to confine itself to assessing the question of urgency and the financial situation of the applicant. If one were to permit proceedings for interim relief to be replaced by such an administrative procedure, it would be possible to circumvent the provisions on judicial proceedings for interim relief, under which the assessment may not be based solely on the financial aspects of the case. With regard to Article 7 of the Internal procedure provisions relating to the recovery of fines and penalties by the Commission under the EEC Treaty, under which the competent member of the Commission can grant additional, possibly staged payment deadlines in response to an appropriately reasoned written request from the addressee, although this provision created an autonomous administrative procedure, it has its place in the context of the actual recovery of fines set by the Commission. Appropriate judicial protection in relation to the refusal to grant the facilities for payment provided for in Article 7 is therefore to be provided in the context of proceedings for interim relief (Article 242 EC) or proceedings to suspend enforcement (the fourth paragraph of Article 256 EC) of the decision imposing a fine. (see paras 65, 67)