Keywords

Summary



Keywords

1. Actions for failure to act – Omission repaired after commencement of proceedings – Subject-matter of the action ceasing to exist – No need to adjudicate

(Arts 232 EC and 233 EC)

2. Actions for failure to act – Natural or legal persons – Complaint concerning an infringement of the competition rules – Commission formally called upon to define its position – Conditions

(Arts 81 EC, 82 EC and 232 EC; Council Regulation No 1/2003, Art. 7; Commission Regulation No 773/2004, sixth and seventh recitals and Art. 5(1))

Summary

1. The remedy provided for in Article 232 EC, which serves different purposes from the remedy provided for in Article 226 EC, is founded on the premiss that the unlawful inaction on the part of the institution 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 233 EC, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court of Justice without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise.

In circumstances where the act whose absence constitutes the subject-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 is unlawful can no longer bring about the consequences prescribed by Article 233 EC. 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, so that there is no longer any need to adjudicate. The fact that the position adopted by the institution has not satisfied the applicant is of no relevance in this respect 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 persons concerned.

(see para. 26)

2. To assess whether the Commission unlawfully failed to act in relation to an alleged abuse of a dominant position, it is appropriate to examine whether, at the time when the Commission was formally called upon to define its position within the meaning of Article 232 EC, that institution was under a duty to act.

When the Commission is seised of a complaint in accordance with the provisions of Regulations Nos 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC and 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC, in respect of infringement of those articles, it is obliged to examine carefully the factual and legal considerations brought to its notice by the complainant in order to decide, within a reasonable time, whether it must initiate the procedure for establishing the infringement, reject the complaint without initiating the procedure or decide not to pursue the matter. If the Commission decides that the investigation of a complaint under Article 82 EC is unwarranted or unnecessary, it must inform the applicant of its decision, stating its reasons, in order to allow judicial review of the legality of the decision.

However, according to recitals 6 and 7 in the preamble to Regulation No 773/2004, in order to be treated as a complaint alleging an infringement of the competition rules laid down in Articles 81 EC and 82 EC, a complaint must comply with Article 5 of Regulation No 773/2004 concerning the admissibility of complaints, which expressly provides, firstly, that natural and legal persons must show a legitimate interest in order to be entitled to lodge a complaint for the purposes of Article 7 of Regulation No 1/2003 and, secondly, that complaints must contain the information required by Form C annexed to that Regulation No 773/2004.

(see paras 52-53, 55)