Judgment — ECLI:EU:T:2002:20
Date: 2002-01-30
Language of the case: German
Court formation: Second Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Statement of reasons;General;Public undertakings;Rights of the defence and procedural guarantees
Procedure: Action for annulment - unfounded
Origin: Austria

Summary of the Judgment 
1. Community law — General principles of law — Right to sound administration — 
Diligent and impartial treatment of complaints — Reference to the Charter of 
Fundamental Rights of the European Union 
(Charter of Fundamental Rights of the European Union, Art. 41(1)) 
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SUMMARY — CASE T-54/99 
2. Competition — Administrative procedure — Commission's obligations — Obli­
gation to undertake a diligent and impartial examination of complaints — Procedural 
rights of persons concerned — No impact 
(EC Treaty, Arts 85, 86, 90 and 93 (now Arts 81 EC, 82 EC, 86 EC and 88 EC) and 
Art. 92 (now, after amendment, Art. 87 EC)) 
3. Competition — Public undertakings and undertakings to which the Member States 
grant special or exclusive rights — Commission's powers under its duty of super­
vision •—· Discretion — Different from Commission's discretion as to whether to 
bring Treaty-infringement proceedings 
(EC Treaty, Arts 90(3) and 169 (now Arts 86(3) EC and 226 EC)) 
4. Actions for annulment — Actionable measures — Commission's refusal to continue 
the examination of a complaint in which it is requested to take action under 
Article 90(3) of the Treaty (now Article 86(3) EC) •—• Admissibility 
(EC Treaty, Art. 90(3) (now Art. 86(3) EC)) 
5. Acts of the institutions — Statement of reasons — Obligation — Scope 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
1. The diligent and impartial treatment of 
a complaint is associated with the right 
to sound administration which is one 
of the general principles that are 
observed in a State governed by the 
rule of law and are common to the 
consti tutional tradit ions of the 
Member States. Article 41(1) of the 
Charter of Fundamental Rights of the 
European Union proclaimed at Nice on 
7 December 2000 confirms that 
'[e]very person has the right to have 
his or her affairs handled impartially, 
fairly and within a reasonable time by 
the institutions and bodies of the 
Union'. 
(see para. 48) 
2. The Commission's general duty of 
supervision and its corollary, the obli­
gation to undertake a diligent and 
impartial examination of complaints 
submitted to it, must apply, as a matter 
of principle, without distinction in the 
context of Articles 85, 86, 90 and 93 of 
the Treaty (now Articles 81 EC, 82 EC, 
86 EC and 88 EC) and Article 92 of the 
Treaty (now, after amendment, 
Article 87 EC), even though the precise 
manner in which such obligations are 
discharged varies according to the 
specific areas to which they apply and, 
in particular, to the procedural rights 
expressly conferred by the Treaty or by 
secondary Community law in those 
areas to the persons concerned. 
(see para. 53) 
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MAX.MOBIL. v COMMISSION 
3. Articles 90(3) and 169 of the Treaty 
(now Articles 86(3) EC and 226 EC) 
both give rise to procedures involving 
the Commission and a Member State, 
in which the Commission performs its 
general duty of supervision under 
Article 155 of the Treaty (now 
Article 211 EC). However, whilst 
under Article 169 of the Treaty the 
Commission 'may' commence Treaty-
infringement proceedings against a 
Member State, Article 90(3) of the 
same Treaty provides that the Com­
mission is to adopt the appropriate 
measures 'where necessary'. Those 
words clarify the power granted to 
the Commission by Article 90(3) of the 
Treaty and thereby indicate that the 
Commission must be in a position to 
decide as to the 'necessity' of its inter­
vention, which in turn implies that it 
has a duty to undertake a diligent and 
impartial examination of complaints, 
on completion of which it regains its 
discretion as to whether there are 
grounds for conducting an investi­
gation and, if there are, for talcing 
measures against the Member State or 
States concerned. In contrast to the 
position regarding its decisions to com­
mence Treaty-infringement proceed­
ings under Article 169 of the Treaty, 
the Commission's power to apply 
Article 90(3) of the Treaty is thus not 
entirely discretionary. 
(see para. 54) 
4. The fact that the Commission enjoys a 
broad discretion regarding the appli­
cation of Article 90(3) of the Treaty 
(now Article 86(3) EC) does not in 
itself prevent an action being brought 
for annulment of a decision refusing to 
continue the examination of a com­
plaint concerning the taking of action 
under that article of the Treaty, par­
ticularly where such a decision is 
addressed to the author of the com­
plaint. An action for annulment 
brought by a complainant against the 
measure embodying the Commission's 
decision not to take action against a 
Member State on the basis of 
Article 90(3) of the Treaty is therefore 
admissible. 
(see paras 64, 71) 
5. The statement of reasons required by 
Article 190 of the Treaty (now 
Article 253 EC) must disclose in a clear 
and unequivocal fashion the reasoning 
followed by the institution which 
adopted the measure in question in 
such a way as to enable the persons 
concerned to ascertain the reasons for 
the measure in order to defend their 
rights and to enable the Community 
judicature to exercise its power of 
review. 
(see para. 78) 
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