Order — ECLI:EU:C:2000:686
Date: 2000-12-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Appeals;General
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: France

Summary of the Order 
1. Actions for failure to act — Time-limits — Time-barred — Possibility of relying on 
the principle of the protection of legitimate expectations — Condition 
(EC Treaty, Art. 175 (now Art. 232 EC» 
2. Actions for failure to act — Failure remedied after commencement of proceedings — 
Action rendered devoid of purpose — No need to adjudicate — Letter pursuant to 
Article 6 of Regulation No 99/63 
(EC Treaty, Arts 175 and 176 (now Arts 232 EC and 233 EC); Commission Regulation 
No 99/63, Art. 6) 
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SUMMARY — CASE C-44/00 P 
3. Appeals — Grounds — Plea directed against the decision of the Court of First 
Instance on costs — Inadmissible if all other pleas dismissed 
(EC Statute of the Court of Justice, Art 51, second para.) 
1. In order to be able to rely on the 
principle of the protection of legitimate 
expectations so as to avoid being time-
barred as a result of the expiry of the 
time-limit for initiating proceedings for 
failure to act, the applicant must be 
able to show expectations based on 
specific assurances by the Community 
institution or conduct by that institu­
tion such as to give rise to pardonable 
confusion in the mind of a party acting 
in good faith and with all the diligence 
required of a normally informed busi­
nessman. That does not apply to public 
statements of a general nature by a 
member of the Commission or repeated 
contacts between the person concerned 
and the Commission after a letter of 
formal notice to it. 
Where it is clear from the very general 
terms of a letter addressed by the 
Member of the Commission respons­
ible for competition questions to a 
complainant pursuant to Article 3(2) 
of Regulation No 17 that the letter was 
in no way such as to give the company 
concerned specific assurances or to 
create pardonable confusion which 
would have aroused justified hopes 
capable of leading to legitimate expect­
ations meriting the protection of the 
courts, the Court of First Instance 
rightly held that the complainant could 
not rely on the principle of the protect­
ion of legitimate expectations in order 
to remedy the expiry of time-limits for 
instituting proceedings, those time-
limits being a matter of public policy, 
so that it is not for the parties to 
determine them at their own conveni­
ence. 
(see paras 50-52) 
2. The remedy provided for in Article 175 
of the Treaty (now Article 232 EC) is 
founded on the premise that the unlaw­
ful inaction on the part of the institu­
tion concerned enables the matter to be 
brought before the Court of Justice 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 (now 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 aforesaid declaration may 
give rise. Where the act whose absence 
constitutes the subject-matter of the 
proceedings was adopted after the 
action was brought but before judg­
ment, a declaration by the Court to the 
effect that the initial failure to act is 
unlawful can no longer bring about the 
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SODIMA V COMMISSION 
consequences prescribed by Article 176 
of the Treaty. It follows 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 and there is 
no longer any need for the Court to 
give a decision. The fact that the 
position adopted by the institution 
has not satisfied the applicant is of no 
relevance in this respect because Art­
icle 175 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 persons 
concerned. 
In that connection, and more particu­
larly in the context of a complaint that 
the competition rules have been 
infringed, a letter in accordance with 
the requirements of Article 6 of Regu­
lation 99/63 from the Commission to 
the author of a complaint lodged under 
Article 3(2) of Regulation No 17 con­
stitutes a definition of position within 
the meaning of the second paragraph of 
Article 175 of the Treaty which termin­
ates the Commission's failure to act 
and deprives an action brought by the 
complainant for failure to act of its 
subject-matter 
(see paras 83-84) 
3. Where all the other pleas in an appeal 
have been rejected, a plea concerning 
the alleged illegality of the decision of 
the Court of First Instance as to costs 
must be rejected as inadmissible under 
the second paragraph of Article 51 of 
the EC Statute of the Court of Justice, 
which provides that no appeal is to lie 
regarding only the amount of the costs 
or the party ordered to pay them. 
(see para. 93) 
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