Judgment — ECLI:EU:T:1998:206
Date: 1998-09-15
Language of the case: Spanish
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Applications by natural or legal persons;Preliminary review;Definition of the institution's position
Procedure: Action for annulment - decision unnecessary;Action for failure to act - successful
Origin: Spain

Summary of the J u d g m e n t 
1. State aid — Investigation by the Commission — Obligation on the Commission to adopt a 
decision following a comphint by an individual 
(EC Treaty, Arts 92 and 93) 
2. Actions for failure to act — Natural or legal persons — Actionable omissions — Failure to 
adopt a decision as to how to respond to a complaint seeking to have State aid declared 
incompatible with the common market — Measure of direct and individual concern to indi­
viduals — Whether admissible 
(EC Treaty, Art. 93(2), Art. 173, fourth para., and Art. 175, third para.) 
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SUMMARY — CASE T-95/96 
3. Actions for failure to act — Commission's obligation to act — 'Reasonable' time for the pur­
poses of adopting a decision under Articles 92 and 93 of the Treaty — Definition of position 
for the purposes of Article 175, second paragraph, of the Treaty 
(EC Treaty, Arts 92, 93 and 175, second para.) 
4. Actions f or failure to act — Failure to act — Definition of position for the purposes of Article 
175, second paragraph, of the Treaty — Meaning 
(EC Treaty, Art. 175, second para.) 
1. Where interested third parties for the 
purposes of Article 93(2) of the Treaty 
submit complaints to the Commission 
relating to State measures which have not 
been notified under Article 93(3), the 
Commission is bound, in the context of 
the preliminary stage referred to above, to 
conduct a diligent and impartial examina­
tion of the complaints in the interests of 
sound administration of the fundamental 
rules of the Treaty relating to State aid, 
which may make it necessary for it to 
examine matters not expressly raised by 
the complainants. 
On completion of that examination, the 
Commission should, in regard to the 
Member State, adopt a decision declaring 
that the State measure does not constitute 
aid within the meaning of Article 92(1) of 
the Treaty, or that the measure does con­
stitute aid but is compatible with the 
common market under Article 92(2) or 
(3), or that the procedure under Article 
93(2) should be initiated. It may also 
adopt a hybrid decision combining, 
according to the circumstances, one or 
more of the decisions of principle set out 
above in respect of different aspects of the 
State measures in question. 
2. In relation to the fourth paragraph of 
Article 173 of the Treaty, which allows 
individuals to bring an action for annul­
ment against a measure of an institution 
not addressed to them provided that the 
measure is of direct and individual con­
cern to them, the third paragraph of 
Article 175 must be interpreted as enti­
tling them to bring an action for failure to 
act against an institution which they 
claim has failed to adopt a measure which 
would have concerned them in the same 
way. 
Where an undertaking has brought a 
complaint alleging the existence of State 
aid incompatible with the common mar­
ket, it must be considered to be directly 
affected by the Commission's failure to 
rule on that complaint where there is no 
doubt that the national authorities intend 
to implement their plan to grant aid or 
where the aid in question has already 
been granted. Such an undertaking is 
individually concerned by such a failure 
within the meaning of the third paragraph 
of Article 175 where it must be consid­
ered to be an interested person for the 
purposes of Article 93(2), a concept 
which includes persons, undertakings or 
associations whose interests might be 
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GESTEVISIÓN TELECINCO ν COMMISSION 
affected by the grant of aid, particularly 
competing undertakings and professional 
organisations. 
3. In the context of an action for failure to 
act, it is appropriate to examine whether, 
at the time when the Commission was 
formally called upon to define its position 
within the meaning of the second para­
graph of Article 175 of the Treaty, it was 
under a duty to act. Since it has exclusive 
jurisdiction to assess the compatibility of 
State aid with the common market, the 
Commission must, in the interests of 
sound administration of the fundamental 
rules of the Treaty relating to State aid, 
conduct a diligent and impartial examina­
tion of a complaint alleging aid to be 
incompatible with the common market. 
Furthermore, in relation to State aid, it is 
a general principle of Community law 
that the Commission must act within a 
reasonable time in adopting a decision 
under Articles 92 or 93 of the Treaty. It 
follows that the Commission cannot pro­
long indefinitely its preliminary investiga­
tion into State measures in relation to 
which there has been a complaint by an 
individual, where it has agreed to initiate 
such an investigation. However, whether 
or not the duration of an administrative 
procedure is reasonable must be deter­
mined in relation to the particular cir­
cumstances of each case and, especially, 
its context, the various procedural stages, 
the complexity of the case and its impor­
tance for the various parties involved. 
4. A letter from an institution called upon 
to act, which states that the institution 
concerned wishes to examine the ques­
tions raised in the notice, does not 
amount to the defining of a position for 
the purposes of the second paragraph of 
Article 175. 
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