Judgment — ECLI:EU:T:2004:48
Date: 2004-02-19
Language of the case: Portuguese
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Definition of the institution's position
Procedure: Action for failure to act - decision unnecessary
Origin: Portugal

Summary of the Judgment 
1. Action for failure to act — Failure remedied after commencement of proceedings — 
Sttbject-matter of the action ceasing to exist — No need to adjudicate 
(Arts 226 EC, 232 EC and 233 EC) 
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SUMMARY — JOINED CASES T-297/01 AND T-298/01 
2. Action for failure to act — Scope ratione materiae — Dispute relating to the extent of 
the obligation to give effect to an annulling judgment — Included 
(Arts 232 EC and 233 EC) 
3. Action for failure to act — Institution must be called on to act — Definition of 
position within the meaning of the second paragraph of Article 232 EC — Concept 
(Arts 230 EC and 232, second para., EC) 
1. The remedy provided for in Article 232 
EC, which pursues different objectives 
from the remedy provided for in 
Article 226 EC, is founded on the 
premiss that unlawful inaction on the 
part of the institution concerned 
enables the matter to be brought before 
the Court in order to obtain a declar­
ation that the failure to act is contrary 
to the Treaty, in so far as it has not 
been remedied by that institution. The 
effect of that declaration, under 
Article 233 EC, is that the defendant 
institution is required to take the 
necessary measures to comply with 
the judgment of the Court, without 
prejudice to any actions to establish 
non-contractual liability to which the 
declaration may give rise. Where the 
act whose absence constitutes the sub­
ject-matter of the proceedings was 
adopted after the action was brought, 
but before judgment, a declaration by 
the Court to the effect that the initial 
failure to act was unlawful can no 
longer bring about the consequences 
prescribed by Article 233 EC. It fol­
lows that in such a case, as in cases 
where the defendant institution has 
responded within a period of two 
months after being called upon to act, 
the subject-matter of the action has 
ceased to exist, so that there is no 
longer any need to adjudicate. The fact 
that the definition of its position by the 
institution does not satisfy the appli­
cant is, in that regard, irrelevant, 
because Article 232 EC refers to failure 
to act in the sense of failure to take a 
decision or to define a position, not the 
adoption of a measure different from 
that desired or considered necessary by 
the applicant. 
(see para. 31) 
2. An action for failure to act is the 
appropriate means of bringing before 
the Court a dispute relating to whether, 
in addition to replacing the measure 
annulled, the institution was also 
bound, in accordance with Article 233 
EC, to take other measures relating to 
other acts which were not challenged in 
the initial action for annulment. It 
follows that an action for failure to 
act is also the appropriate means for 
obtaining a declaration that an institu-
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SIC v COMMISSION 
tion unlawfully railed to take the 
measures required in order to comply 
with such a judgment. 
(see para. 32) 
3. An act which is not challengeable by an 
annulment action may constitute a 
definition of position terminating the 
failure of an institution to act if it is the 
prerequisite for the next step in a 
procedure which has, in principle, to 
culminate in a legal act that itself will 
be challengeable by an action for 
annulment. 
(see para. 53) 
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