Keywords

Summary



Keywords

Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects

(Art. 230 EC and Art. 256, fourth para., EC; Council Regulation No 2988/74, Art. 5(1)(a))

Summary

Measures whereby the Commission orders an undertaking to pay the outstanding balance of a fine for breach of the competition rules and threatens to take steps to enforce the bank guarantee provided by that undertaking must be regarded as giving notice of enforcement of the decision which imposed the fine, and, as such, whether they occur before or after any time-bar, cannot be regarded as having produced legal effects binding on, and capable of affecting the interests of the fined undertaking, since in reality they merely constitute acts purely preparatory to enforcement. It follows that such measures do not constitute measures that are capable of forming the subject-matter of an action for annulment.

That interpretation is not invalidated, where the Commission agrees by those measures that interest should cease to accrue at a time subsequent to the Court judgment confirming the fine, by the presence of the of the term ‘decision’ in Article 5(1)(a) of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions in the area of competition law, according to which the limitation period for the enforcement of sanctions shall be interrupted by ‘notification of a decision varying the original amount of the fine, penalty or periodic penalty payments or refusing an application for variation’. Even if a decision within the meaning of that provision constitutes, in all events, an act open to challenge for the purposes of Article 230 EC, the Commission does not, by the measures referred to above, notify the fined undertaking of a decision ‘varying the original amount of the fine, penalty or periodic penalty payments’ within the meaning of the former provision.

Furthermore, the mere fact that the Commission agrees to the cessation of interest accrual at a time subsequent to the Court judgment which confirmed the fine cannot be deemed capable of transforming into an act open to challenge an act which does not constitute such an act. That fact as such cannot produce, in relation to the situation resulting from the decision which imposed the fine, legal effects binding on, and capable of affecting the interests of, the fined undertaking.

Nor, finally, can it be argued against that interpretation that there would be a legal vacuum if the contested measures were not open to challenge under Article 230 EC. Enforcement of a decision of the Commission which imposes a pecuniary obligation on a person is governed by Article 256 EC which, in its fourth paragraph, provides for effective judicial protection. In any event, the fact remains that, although the requirement for admissibility of an annulment action as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the limits of the jurisdiction conferred by the EC Treaty on the Community courts.

(see paras 28-33)