Order — ECLI:EU:T:2005:178
Date: 2005-05-25
Language of the case: Spanish
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concentrations between undertakings
Concepts: General;Division of powers between the Commission and the national authorities
Procedure: Action for annulment - inadmissible
Origin: Spain

Summary of the order 
1. Competition — Concentrations — Referral of the examination of a concentration to the 
competent authorities of a Member State — Effects — Exclusive competence of the national 
authorities to make a determination in respect of the transaction — No possibility for the 
Commission to exercise direct control — Possibility of control by initiation of proceedings 
for failure to fulfil obligations 
(Art. 226 EC; Council Regulation No 4064/89, Art. 9(8)) 
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SUMMARY — CASE T-443/03 
2. Actions for annulment — Actionable measures — Refusal of Commission to initiate 
proceedings for failure to fulfil obligations — Exclusion 
(Arts 226 EC and 230, fourth para., EC) 
1. Regulation No 4064/89 on the control of 
concentrations between undertakings 
does not lay down specific rules on the 
division of powers after the decision to 
refer a concentration to the national 
authorities of a Member State has been 
taken which derogate from the system 
provided for in the Treaties. It is true 
that Article 9(8) of Regulation No 
4064/89 does not expressly exclude the 
power of the Commission to monitor 
compliance by the Member States with 
the obligations laid down in the Com­
munity competition rules, from which 
the referral does not have the effect of 
releasing them. However, although that 
article imposes an obligation on the 
Member State concerned, neither the 
Treaties nor the secondary legislation 
provide for a special review procedure 
that must be carried out by the Commis­
sion. 
The Commission may not, therefore, 
monitor compliance with that obligation 
other than by means of the procedure 
established by the Treaties in the case of 
a transaction falling within the jurisdic­
tion of that Member State. As regards a 
concentration over which the Commis­
sion no longer exercises direct control 
after it has been referred to the national 
authorities, the Commission may act 
only under Article 226 EC, by bringing, 
where appropriate, an action against that 
Member State for failure to fulfil its 
obligations. 
(see paras 40, 42-43) 
2. Individuals do not have standing to 
challenge a refusal by the Commission 
to initiate proceedings against a Member 
State for failure to fulfil its obligations. 
In effect, the Commission is not 
required to commence proceedings for 
failure to fulfil obligations, but enjoys a 
discretion which precludes any right for 
individuals to require it to take a specific 
position and to bring an action against 
its refusal to take action. 
(see para. 44) 
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