Judgment — ECLI:EU:T:1998:36
Date: 1998-02-17
Language of the case: French
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Formal investigation procedure;General;Basis of liability
Procedure: Action for damages - unfounded;Action for failure to act - decision unnecessary
Origin: Belgium

Summary of the Judgmen t 
1. Actions for failure to act — Failure remedied after initiation of the proceedings — Subject-
matter of the action ceasing to exist — No need to adjudicate 
(EC Treaty, Arts 175 and 176) 
2. Non-contractual liability — Conditions — Unlawfulness — Commission precluded from 
adopting measures outside its sphere of competence — Not covered 
(EC Treaty, Arts 93(2) and 215) 
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SUMMARY — CASE T-107/96 
1. The remedy provided for in Article 175 
of the Treaty is founded on the premiss 
that unlawful inaction on the part of an 
institution enables an action to be 
brought before the Community judica­
ture in order to obtain a declaration that 
the failure to act is contrary to the Treaty, 
in so far as it has not been repaired by the 
institution concerned. The effect of that 
declaration, under Article 176 of the 
Treaty, is that the defendant institution is 
required to take the necessary measures 
to comply with the judgment of the 
Community judicature, without prejudice 
to any actions to establish non­
contractual liability to which the afore­
said declaration may give rise. 
Where the act whose omission is the sub­
ject of proceedings was adopted after 
they were brought but before pronounce­
ment of judgment, a declaration of the 
Court of First Instance finding the initial 
failure to act to be unlawful can no longer 
lead to the consequences envisaged by 
Article 176. It follows that, in such a case, 
just as in the case 'where the defendant 
institution has responded to a request to 
act within the two-month period, the 
action has lost its purpose so that there is 
no need to adjudicate. 
The fact that the institution's adoption of 
that position does not satisfy the appli­
cant is irrelevant in that respect, since 
Article 175 refers to a failure to act in the 
sense of failure to take a decision or to 
define a position, and not the adoption of 
a measure different from that desired or 
considered necessary by the persons con­
cerned. 
2. The Community can incur non­
contractual liability only on fulfilment of 
a number of conditions as regards the 
unlawfulness of the action alleged against 
the Community institution, actual dam­
age and the existence of a causal link 
between the wrongful act and the damage 
complained of. 
As regards the first of those conditions, 
the Commission's refusal, in the context 
of an administrative procedure under 
Article 93(2) of the Treaty, to adopt 
measures which are clearly beyond the 
powers conferred upon it does not con­
stitute unlawful conduct and, conse-
quendy, the Community cannot thereby 
incur liability. 
In that connection, the Commission's 
adoption of an interim measure directing 
a Member State to exempt the applicant 
undertaking from a tax which is contested 
under the Treaty rules on State aid clearly 
lies outside the powers conferred on the 
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PANTOCHIM v COMMISSION 
Commission in respect of the administra­
tive procedure provided for by Article 
93(2). When, in such a procedure, the 
Commission finds that aid has been 
introduced without being notified to it in 
advance, the only interim measure it can 
take is to direct the Member State con­
cerned to suspend payment of the aid 
immediately — even if only partially — 
and to provide it, within a period of time 
determined by the Commission, with all 
the documents, information and data nec­
essary for examining whether the aid is 
compatible with the common market. 
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