Keywords

Summary



Keywords

1 Actions for failure to act - Failure remedied after initiation of the proceedings - Subject-matter of the action ceasing to exist - No need to adjudicate

(EC Treaty, Arts 175 and 176)

2 Non-contractual liability - Conditions - Unlawfulness - Commission precluded from adopting measures outside its sphere of competence - Not covered

(EC Treaty, Arts 93(2) and 215)

Summary

3 The remedy provided for in Article 175 of the Treaty is founded on the premiss that unlawful inaction on the part of an institution enables an action to be brought before the Community judicature 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, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Community judicature, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise.

Where the act whose omission is the subject of proceedings was adopted after they were brought but before pronouncement of judgment, a declaration of the Court of First Instance finding the initial failure to act to be unlawful can no longer lead to the consequences envisaged by Article 176. It follows that, in such a case, just as in the case where the defendant institution has responded to a request to act within the two-month period, the action has lost its purpose so that there is no need to adjudicate.

The fact that the institution's adoption of that position does not satisfy the applicant is irrelevant in that respect, since Article 175 refers to a failure to act in the sense of failure to take a decision or to define a position, and not the adoption of a measure different from that desired or considered necessary by the persons concerned.

4 The Community can incur non-contractual liability only on fulfilment of a number of conditions as regards the unlawfulness of the action alleged against the Community institution, actual damage and the existence of a causal link between the wrongful act and the damage complained of.

As regards the first of those conditions, the Commission's refusal, in the context of an administrative procedure under Article 93(2) of the Treaty, to adopt measures which are clearly beyond the powers conferred upon it does not constitute unlawful conduct and, consequently, the Community cannot thereby incur liability.

In that connection, the Commission's adoption of an interim measure directing a Member State to exempt the applicant undertaking from a tax which is contested under the Treaty rules on State aid clearly lies outside the powers conferred on the Commission in respect of the administrative procedure provided for by Article 93(2). When, in such a procedure, the Commission finds that aid has been introduced without being notified to it in advance, the only interim measure it can take is to direct the Member State concerned to suspend payment of the aid immediately - even if only partially - and to provide it, within a period of time determined by the Commission, with all the documents, information and data necessary for examining whether the aid is compatible with the common market.