Keywords

Summary



Keywords

Actions for failure to act - Institution formally invited to act - Definition of a position under Article 175, second paragraph, of the Treaty - Meaning - Letter addressed in accordance with Article 6 of Regulation No 99/63 to the author of a complaint of breach of the competition rules - Not open to action for annulment - Complainant's right of action - Rules

(EC Treaty, Arts 85(1), 86, 173 and 175, second para.; Council Regulation No 17, Art. 19, second para.; Commission Regulation No 99/63, Arts 5 and 6)

Summary

A letter from the Commission addressed to the author of a complaint of breach of the competition rules which complies with the requirements of Article 6 of Regulation No 99/63 constitutes a definition of a position within the meaning of the second paragraph of Article 175 of the Treaty.

However, since such a letter constitutes a preparatory measure, it cannot be the subject of an action for annulment. In the case of acts or decisions adopted by a procedure in stages, in particular where they are the culmination of an internal procedure such as that set up by Regulation No 99/63, a measure is in principle open to review only if it is a measure definitively laying down the position of the Commission or the Council on the conclusion of that procedure, and not a provisional measure, such as the notification under Article 6 of that regulation, which is intended to pave the way for the final decision.

Consequently, although the author of a complaint of breach of the competition rules may not bring an action challenging that notification, he is entitled under Article 6 of Regulation No 99/63 to submit written observations thereon. The purpose of that intermediate phase in the administrative procedure before the Commission is, in fact, to safeguard the rights of the complainant, to whom an unfavourable decision should not be addressed without first giving him the opportunity to submit observations regarding the grounds upon which the Commission intends to rely.

Furthermore, that does not authorize the Commission to persist in its failure to act. Once that stage of the procedure has been completed the Commission is bound either to initiate a procedure against the subject of the complaint - a procedure in which the complainant is entitled to participate in accordance with the second paragraph of Article 19 of Regulation No 17 and Article 5 of Regulation No 99/63 - or to adopt a definitive decision rejecting the complaint, which may be the subject of an action for annulment before the Community courts. In the context of such an action the complainant may rely on any legal defects in the provisional measures preceding the definitive decision.

If the Commission fails either to initiate a proceeding against the subject of the complaint or to adopt a definitive decision within a reasonable time after receiving the observations, the complainant may rely on Article 175 of the Treaty in order to bring an action for failure to act.

Moreover, any undertaking which considers that it has suffered damage as a result of restrictive practices may rely before the national courts, particularly where the Commission decides not to act on a complaint, on the rights conferred on it by Article 85(1) and Article 86 of the Treaty, which have direct effect in relations between individuals.