Keywords

Summary



Keywords

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)

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.)

Summary

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 institution 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 businessman. 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 responsible 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 expectations meriting the protection of the courts, the Court of First Instance rightly held that the complainant could not rely on the principle of the protection 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 convenience.

( 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 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 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 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 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 Article 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 particularly in the context of a complaint that the competition rules have been infringed, a letter in accordance with the requirements of Article 6 of Regulation 99/63 from the Commission to the author of a complaint lodged under Article 3(2) of Regulation No 17 constitutes a definition of position within the meaning of the second paragraph of Article 175 of the Treaty which terminates 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 )