Keywords

Summary



Keywords

1 Actions for failure to act - Natural or legal persons - Measures of direct and individual concern to them - Failure to adopt a decision on a complaint that a particular grant of State aid is incompatible with the common market

(EC Treaty, Arts 93(2) and 175, third para. (now Arts 88(2) EC and 232, third para., EC) and Art. 173 (now, after amendment, Art. 230 EC))

2 Actions for failure to act - Institution must be called upon to act - Conditions - Request must be clear and precise

(EC Treaty, Art. 175, second para. (now Art. 232, second para., EC)

3 Actions for failure to act - Actionable omissions - Failure by the Commission to act pursuant to Article 90 of the Treaty (now Article 86 EC)

(EC Treaty, Art. 90 (now Art. 86 EC))

4 Actions for failure to act - Commission under an obligation to act - Decision to be adopted pursuant to Article 92 of the Treaty (now, after amendment, Article 87 EC) and/or Article 93 of the Treaty (now Article 88 EC) - Action to be taken within a reasonable time

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93 and 175 (now Arts 88 EC and 232 EC))

5 Actions for failure to act - Commission under an obligation to act - Failure to adopt a decision pursuant to Article 92 of the Treaty (now, after amendment, Article 87 EC) and/or Article 93 thereof (now Article 88 EC) - Failure to act

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93 and 175 (now Arts 88 EC and 232 EC))

6 Actions for failure to act - Institution must be called upon to act - Position to be defined within the meaning of Article 175, second paragraph, of the Treaty (now Article 232, second paragraph, EC) - Letter addressed, pursuant to Article 6 of Regulation No 99/63, to the author of a complaint alleging infringement of the competition rules

(EC Treaty, Art. 175, second para. (now Art. 232, second para., EC); Commission Regulation No 99/63, Art. 6)

7 Actions for failure to act - Institution must be called upon to act - Position to be defined within the meaning of Article 175, second paragraph, of the Treaty (now Article 232, second paragraph, EC) - Letter addressed, pursuant to Article 90 of the Treaty (now Article 86 EC), to the author of a complaint alleging infringement of the competition rules

(EC Treaty, Arts 90 and 175, second para. (now Arts 86 EC and 232, second para., EC))

Summary

1 Articles 173 of the Treaty (now, after amendment, Article 230 EC) and Article 175 thereof (now Article 232 EC) merely prescribe one and the same method of recourse. The third paragraph of Article 175 of the Treaty must be interpreted as entitling individuals to bring an action for failure to act not only against an institution which has failed to adopt an act to be addressed to them, but also against an institution which they claim has failed to adopt a measure which would have concerned them directly and individually.

An undertaking must be considered to be directly concerned by a decision of the Commission relating to State aid where there is no doubt about the intention of the national authorities to go ahead with their aid proposal.

Moreover, parties concerned, within the meaning of Article 93(2) of the Treaty (now Article 88(2) EC) - that is to say, persons, undertakings or associations whose interests might be affected by the grant of the aid, notably competing undertakings - must be regarded as individually concerned by such a decision.

2 Under the second paragraph of Article 175 of the Treaty (now Article 232, second paragraph, EC), an action for failure to act is admissible only if the institution concerned has first been called upon to act. Giving the institution formal notice is an essential procedural requirement the effects of which are, first, to cause the two-month period within which the institution is required to define its position to begin to run and, secondly, to delimit any action that might be brought should the institution fail to define its position. Whilst there is no particular requirement as to form, the notice must be sufficiently clear and precise to enable the Commission to ascertain in specific terms the content of the decision which it is being asked to adopt and must make clear that its purpose is to compel the Commission to state its position.

3 The wide discretion which the Commission enjoys in implementing Article 90 of the Treaty (now Article 86 EC) cannot undo the protection afforded to individuals by the general principle of Community law that any person must be able to obtain effective judicial review of decisions which may infringe a right conferred by the Treaties. In that connection, the possibility cannot be ruled out that exceptional situations might exist where an individual has standing to bring proceedings against a refusal by the Commission to adopt a decision pursuant to its supervisory functions under Article 90(1) and (3) of the Treaty (now Article 86(1) and (3) EC).

4 In order to rule on the merits of an action for a declaration of failure to act, it is necessary to ascertain whether, at the time when the institution concerned was called upon to act pursuant to Article 175 of the Treaty (now Article 232 EC), it was under an obligation to act.

In so far as the Commission has exclusive jurisdiction to assess the compatibility of a grant of State aid with the common market, it is required, in the interests of the sound administration of the fundamental rules of the Treaty relating to State aid, to conduct a diligent and impartial examination of complaints reporting the grant of aid incompatible with the common market.

Just as the Commission cannot postpone indefinitely defining its position in relation to an application for clearance under Article 85(3) of the Treaty (now Article 81(3) EC), it may not prolong indefinitely its preliminary investigation into State measures in relation to which there has been a complaint under Article 92(1) (now, after amendment, Article 87 EC) of the Treaty where it has, as in this case, agreed to initiate such an investigation.

Whether or not the duration of an administrative procedure of that kind is reasonable must be determined in relation to the particular circumstances of the case and, in particular, its context, the various procedural stages to be gone through by the Commission, the complexity of the case and its importance for the various parties involved.

5 Unless the delay can be justified by exceptional circumstances, the Commission must be considered as having failed to act where - after a preliminary investigation lasting 31 months and on the expiry of the two-month time-limit following the communication from an undertaking calling upon the Commission to act in connection with State measures which might later be classified as State aid - it does not adopt a decision finding that the measures at issue do not constitute aid for the purposes of Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC), or a decision finding that, although they constitute State aid for the purposes of Article 92(1) of the Treaty, such aid is compatible with the common market pursuant to Article 92(2) and (3) of the Treaty (now, after amendment, Article 87(2) and (3) EC), or that it is appropriate to open the procedure provided for under Article 93(2) of the Treaty (now Article 88(2) EC), or, depending on the circumstances, a decision combining those various options.

6 A letter from the Commission addressed to the author of a complaint alleging infringement of the competition rules, which complies with the requirements laid down by Article 6 of Regulation No 99/63, constitutes a definition of position within the meaning of the second paragraph of Article 175 of the Treaty (now Article 232, second paragraph, EC). Such a definition of position terminates the Commission's failure to act and deprives of purpose any action for failure to act brought by the complainant.

7 A letter in which the Commission replies to a complainant calling upon it to act under Article 90 of the Treaty (now Article 86 EC) that the Commission is unable to find that the facts complained of amount to an infringement, and sets out the reasons why the Commission does not intend to initiate the procedure under Article 90 constitutes a definition of position for the purposes of the second paragraph of Article 175 of the Treaty (now Article 232, second paragraph, EC) and thus deprives of purpose any action for failure to act brought by the complainant.