Judgment — ECLI:EU:T:1999:119
Date: 1999-06-03
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;Agreements, decisions and concerted practices
Concepts: General;Applications by natural or legal persons;Preliminary review;Institution called upon to act;Definition of the institution's position
Procedure: Action for annulment - decision unnecessary;Action for failure to act - inadmissible;Action for failure to act - decision unnecessary;Action for failure to act - successful
Origin: France

Summary of the Judgment 
1. Actions for failure to act — Natural or legal persons — Measures of direct and 
individual concern to them — Failure to adopt a decision on a complaint that a 
particular grant of State aid is incompatible with the common market 
(EC Treaty, Arts 93(2) and 175, third para, (now Arts 88(2) EC and 232, third para., 
EC) and Art. 173 (now, after amendment, Art. 230 EC)) 
II - 1757 
SUMMARY — CASE T-17/96 
2. Actions for failure to act — Institution must be called upon to act — Conditions — 
Request must be clear and precise 
(EC Treaty, Art. 175, second para, (now Art. 232, second para., EC) 
3. Actions for failure to act — Actionable omissions — Failure by the Commission to act 
pursuant to Article 90 of the Treaty (now Article 86 EC) 
(EC Treaty, Art. 90 (now Art. 86 EC)) 
4. Actions for failure to act — Commission under an obligation to act — Decision to be 
adopted pursuant to Article 92 of the Treaty (now, after amendment, Article 87 EC) 
and/or Article 93 of the Treaty (now Article 88 EC) — Action to be taken within a 
reasonable time 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93 and 175 (now 
Arts 88 EC and 232 EC)) 
5. Actions for failure to act — Commission under an obligation to act — Failure to adopt 
a decision pursuant to Article 92 of the Treaty (now, after amendment, Article 87 EC) 
and/or Article 93 thereof (now Article 88 EC) — Failure to act 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93 and 175 (now 
Arts 88 EC and 232 EC)) 
6. Actions for failure to act — Institution must be called upon to act — Position to be 
defined within the meaning of Article 175, second paragraph, of the Treaty (now 
Article 232, second paragraph, EC) — Letter addressed, pursuant to Article 6 of 
Regulation No 99/63, to the author of a complaint alleging infringement of the 
competition rules 
(EC Treaty, Art. 175, second para, (now Art. 232, second para., EC); Commission 
Regulation No 99/63, Art. 6) 
7. Actions for failure to act — Institution must be called upon to act — Position to be 
defined within the meaning of Article 175, second paragraph, of the Treaty (now 
Article 232, second paragraph, EC) — Letter addressed, pursuant to Article 90 of the 
Treaty (now Article 86 EC), to the author of a complaint alleging infringement of the 
competition rules 
(EC Treaty, Arts 90 and 175, second para, (now Arts 86 EC and 232, second para., 
EC)) 
1. Articles 173 of the Treaty (now, after 
amendment, Article 230 EC) and Arti­
cle 175 thereof (now Article 232 EC) 
merely prescribe one and the same 
method of recourse. The third para­
graph of Article 175 of the Treaty must 
be interpreted as entitling individuals 
to bring an action for failure to act not 
only against an institution which has 
failed to adopt an act to be addressed 
to them, but also against an institution 
which they claim has failed to adopt a 
measure which would have concerned 
them directly and individually. 
An undertaking must be considered to 
be directly concerned by a decision of 
the Commission relating to State aid 
where there is no doubt about the 
II - 1758 
TF1 V COMMISSION 
intention of the national authorities to 
go ahead with their aid proposal. 
Moreover, parties concerned, within 
the meaning of Article 93(2) of the 
Treaty (now Article 88(2) EC) — that 
is to say, persons, undertakings or 
associations whose interests might be 
affected by the grant of the aid, notably 
competing undertakings — must be 
regarded as individually concerned by 
such a decision. 
2. Under the second paragraph of Arti­
cle 175 of the Treaty (now Article 232, 
second paragraph, EC), an action for 
failure to act is admissible only if the 
institution concerned has first been 
called upon to act. Giving the institu­
tion formal notice is an essential pro­
cedural requirement the effects of 
which are, first, to cause the two-
month period within which the institu­
tion is required to define its position to 
begin to run and, secondly, to delimit 
any action that might be brought 
should the institution fail to define its 
position. Whilst there is no particular 
requirement as to form, the notice must 
be sufficiently clear and precise to 
enable the Commission to ascertain in 
specific terms the content of the deci­
sion which it is being asked to adopt 
and must make clear that its purpose is 
to compel the Commission to state its 
position. 
3. The wide discretion which the Com­
mission enjoys in implementing Arti­
cle 90 of the Treaty (now Article 86 
EC) cannot undo the protection affor­
ded to individuals by the general prin­
ciple of Community law that any 
person must be able to obtain effective 
judicial review of decisions which may 
infringe a right conferred by the Trea­
ties. In that connection, the possibility 
cannot be ruled out that exceptional 
situations might exist where an indivi­
dual has standing to bring proceedings 
against a refusal by the Commission to 
adopt a decision pursuant to its super­
visory functions under Article 90(1) 
and (3) of the Treaty (now Arti­
cle 86(1) and (3) EC). 
4. In order to rule on the merits of an 
action for a declaration of failure to 
act, it is necessary to ascertain whether, 
at the time when the institution con­
cerned was called upon to act pursuant 
to Article 175 of the Treaty (now 
Article 232 EC), it was under an obli­
gation to act. 
In so far as the Commission has 
exclusive jurisdiction to assess the 
compatibility of a grant of State aid 
with the common market, it is 
required, in the interests of the sound 
administration of the fundamental 
rules of the Treaty relating to State 
aid, to conduct a diligent and impartial 
examination of complaints reporting 
the grant of aid incompatible with the 
common market. 
II - 1759 
SUMMARY — CASE T-l 7/96 
Just as the Commission cannot post­
pone indefinitely defining its position 
in relation to an application for clear­
ance under Article 85(3) of the Treaty 
(now Article 81(3) EC), it may not 
prolong indefinitely its preliminary 
investigation into State measures in 
relation to which there has been a 
complaint under Article 92(1) (now, 
after amendment, Article 87 EC) of 
the Treaty where it has, as in this case, 
agreed to initiate such an investigation. 
Whether or not the duration of an 
administrative procedure of that kind is 
reasonable must be determined in rela­
tion to the particular circumstances of 
the case and, in particular, its context, 
the various procedural stages to be 
gone through by the Commission, the 
complexity of the case and its impor­
tance for the various parties involved. 
5. Unless the delay can be justified by 
exceptional circumstances, the Com­
mission must be considered as having 
failed to act where — after a prelimin­
ary investigation lasting 31 months and 
on the expiry of the two-month time-
limit following the communication 
from an undertaking calling upon the 
Commission to act in connection with 
State measures which might later be 
classified as State aid — it does not 
adopt a decision finding that the mea­
sures at issue do not constitute aid for 
the purposes of Article 92(1) of the 
Treaty (now, after amendment, Arti­
cle 87(1) EC), or a decision finding 
that, although they constitute State aid 
for the purposes of Article 92(1) of the 
Treaty, such aid is compatible with the 
common market pursuant to Arti­
cle 92(2) and (3) of the Treaty (now, 
after amendment, Article 87(2) and (3) 
EC), or that it is appropriate to open 
the procedure provided for under Arti­
cle 93(2) of the Treaty (now Arti­
cle 88(2) EC), or, depending on the 
circumstances, a decision combining 
those various options. 
6. A letter from the Commission 
addressed to the author of a complaint 
alleging infringement of the competi­
tion rules, which complies with the 
requirements laid down by Article 6 of 
Regulation No 99/63, constitutes a 
definition of position within the mean­
ing of the second paragraph of Arti­
cle 175 of the Treaty (now Article 232, 
second paragraph, EC). Such a defini­
tion of position terminates the Com­
mission's failure to act and deprives of 
purpose any action for failure to act 
brought by the complainant. 
7. A letter in which the Commission 
replies to a complainant calling upon 
it to act under Article 90 of the Treaty 
(now Article 86 EC) that the Commis­
sion is unable to find that the facts 
complained of amount to an infringe­
ment, and sets out the reasons why the 
Commission does not intend to initiate 
the procedure under Article 90 consti­
tutes a definition of position for the 
purposes of the second paragraph of 
Article 175 of the Treaty (now Arti­
cle 232, second paragraph, EC) and 
thus deprives of purpose any action for 
failure to act brought by the complai­
nant. 
II - 1760