Opinion of the Advocate General — ECLI:EU:C:2004:297
Date: 2004-05-06
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - successful
Origin: Ireland

Summary of the Judgment 1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Dismissal –Definition of the legal nature of the facts – Admissibility (Art. 225 EC) 2. Actions for annulment – Measures against which actions may be brought – Concept – Measures producing binding legal effects – Institution’s silence or inaction – Refunding of a sum overpaid in relation to a fine with no decision taken as to the request for payment of interest presented by the undertaking making the claim – Excluded (Art. 230 EC) 1. Although the Court of Justice has no jurisdiction to review the assessment of the facts made by the Court of First Instance, it does have jurisdiction pursuant to Article 225 EC to review the definition of the legal nature of those facts and the determination of the legal consequences made by the Court of First Instance. (see para. 36) 2. Any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 230 EC for a declaration that it is void. As a rule, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of Community law. While not excluding that in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal, it is to be considered that, in the case of a judgment of the Court of First Instance reducing the amount of a fine, followed by a letter addressed by the appellant to the Commission, asking the latter to refund the overpaid part of the fine together with interest, the Commission’s paying of the principal sum only without explicitly taking a position on the request for payment of interest does not amount to an implied decision rejecting that request. (see paras 44-45)