Judgment — ECLI:EU:T:2004:213
Date: 2004-07-07
Language of the case: French
Court formation: Fourth Chamber
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition;General provisions;Principles, objectives and tasks of the Treaties
Concepts: Applications by undertakings or their associations;Actions for failure to act;Admissibility and examination of applications, forms of order sought and pleas in law
Procedure: Action for annulment - inadmissible;Action for failure to act - inadmissible
Origin: France

Summary of the Order 
1. Applications for interim measures — Suspension of operation of a measure — 
Conditions for granting — Negative administrative decision — Decision refusing to 
take measures against a Member State — Suspension could not change applicant's 
position — Applicant's interest in obtaining the suspension sought — No such 
interest 
(Art. 39, second para., CS) 
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SUMMARY — JOINED CASES T-107/01 R AND T-175/01 R 
2. Application for interim measures — Interim measures — Application for an order 
directing the Commission to make a finding under Article 88 CS that a Member State 
has failed to fulfil obligations — Measure incompatible with the distribution of 
powers between institutions — Measure which is not merely protective •— Dismissal 
(Arts 39, third para., CS and 88 CS) 
3. Application for interim measures — Interim measures •—· Application for an order 
directing the Commission to issue directions to a Member State which has allegedly 
failed to fulfil obligations — Application based on an action for annulment of the 
Commission's refusal to find that the Member State has failed to fulfil obligations — 
Requested measure to produce effects for a third person not party to the main 
proceedings — Competence to issue directions not conferred on the Commission by 
Article 88 CS — Dismissal 
(Arts 35 CS, 88 CS, 232 EC and 243 EC) 
1. An application for suspension of oper­
ation cannot, in principle, be envisaged 
against a negative administrative 
decision, since the grant of suspension 
in such a case could not have the effect 
of changing the applicant's position. 
The judge ruling on the application 
therefore cannot order suspension of 
the operation of the Commission's 
refusal to adopt measures against a 
Member State which has allegedly 
failed to fulfil obligations since such 
suspension would not have the effect of 
requiring the Commission to declare 
the alleged breach of obligations and 
would thus be of no interest to the 
applicant. 
(see paras 48-49) 
2. The judge ruling on the application for 
interim measures cannot order the 
Commission to make a finding under 
Article 88 CS that a Member State has 
failed to fulfil its obligations. 
First, in doing so, the judge would be 
assuming the role of the Commission, 
which would constitute an interference 
with the exercise of that institution's 
power, incompatible with the distribu­
tion of powers between the various 
Community institutions, as intended by 
the authors of the ECSC Treaty. 
Second, the interim measures which the 
judge may order under Article 88 CS 
can only be protective, which would 
not be the case with a finding of a 
failure to fulfil obligations, which is 
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LORMINES v COMMISSION 
not a preparatory measure but the final 
result of a procedure. 
(see paras 52-58) 
3. Even if the main action on which the 
application before him is based chal­
lenges the Commission's refusal to 
make a finding under Article 88 CS 
that a Member State has failed to fulfil 
its obligations, the judge ruling on the 
application for interim measures can­
not order the Commission to issue 
instructions to the Member State con­
cerned with a view to remedying the 
alleged breach. 
First, it cannot order interim measures 
which do not fall within the framework 
of the final decision which may be 
given on the main action, to which the 
Member State is not a party. 
Second, Article 88 CS does not provide 
that the Commission has competence 
to issue such directions to a Member 
State. 
(see paras 59-61) 
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