International Business Machines Corporation v Commission of the European Communities.
Date: 1981-11-11
8 ACCORDING TO ARTICLE 173 OF THE TREATY PROCEEDINGS MAY BE BROUGHT FOR A DECLARATION THAT ACTS OF THE COUNCIL AND THE COMMISSION OTHER THAN RECOMMENDATIONS OR OPINIONS ARE VOID . THAT REMEDY IS AVAILABLE IN ORDER TO ENSURE , AS REQUIRED BY ARTICLE 164 , THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATY THE LAW IS OBSERVED , AND IT WOULD BE INCONSISTENT WITH THAT OBJECTIVE TO INTERPRET RESTRICTIVELY THE CONDITIONS UNDER WHICH THE ACTION IS ADMISSIBLE BY LIMITING ITS SCOPE MERELY TO THE CATEGORIES OF MEASURES REFERRED TO IN ARTICLE 189 .
9 IN ORDER TO ASCERTAIN WHETHER THE MEASURES IN QUESTION ARE ACTS WITHIN THE MEANING OF ARTICLE 173 IT IS NECESSARY , THEREFORE , TO LOOK TO THEIR SUBSTANCE . ACCORDING TO THE CONSISTENT CASE-LAW OF THE COURT ANY MEASURE THE LEGAL EFFECTS OF WHICH ARE BINDING ON , AND CAPABLE OF AFFECTING THE INTERESTS OF , THE APPLICANT BY BRINGING ABOUT A DISTINCT CHANGE IN HIS LEGAL POSITION IS AN ACT OR DECISION WHICH MAY BE THE SUBJECT OF AN ACTION UNDER ARTICLE 173 FOR A DECLARATION THAT IT IS VOID . HOWEVER , THE FORM IN WHICH SUCH ACTS OR DECISIONS ARE CAST IS , IN PRINCIPLE , IMMATERIAL AS REGARDS THE QUESTION WHETHER THEY ARE OPEN TO CHALLENGE UNDER THAT ARTICLE .
10 IN THE CASE OF ACTS OR DECISIONS ADOPTED BY A PROCEDURE INVOLVING SEVERAL STAGES , IN PARTICULAR WHERE THEY ARE THE CULMINATION OF AN INTERNAL PROCEDURE , IT IS CLEAR FROM THE CASE-LAW THAT IN PRINCIPLE AN ACT IS 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 INTENDED TO PAVE THE WAY FOR THE FINAL DECISION .
12 FURTHERMORE , IT MUST BE NOTED THAT WHILST MEASURES OF A PURELY PREPARATORY CHARACTER MAY NOT THEMSELVES BE THE SUBJECT OF AN APPLICATION FOR A DECLARATION THAT THEY ARE VOID , ANY LEGAL DEFECTS THEREIN MAY BE RELIED UPON IN AN ACTION DIRECTED AGAINST THE DEFINITIVE ACT FOR WHICH THEY REPRESENT A PREPARATORY STEP .
18 OTHER EFFECTS RELIED ON BY IBM DO NOT ADVERSELY AFFECT THE INTERESTS OF THE UNDERTAKING CONCERNED . ONE SUCH IS THE FACT THAT INITIATION OF A PROCEDURE UNDER ARTICLE 9 ( 3 ) OF REGULATION NO 17 PUTS AN END TO THE JURISDICTION OF THE AUTHORITIES IN THE MEMBER STATES - A RESULT WHICH DID NOT IN FACT OCCUR IN THIS INSTANCE AS THERE WERE NO NATIONAL PROCEEDINGS , AND WHICH ESSENTIALLY RESULTS IN PROTECTING THE UNDERTAKING CONCERNED FROM PARALLEL PROCEEDINGS BROUGHT BY THE AUTHORITIES OF THE MEMBER STATES . ANOTHER SUCH EFFECT IS THE FACT THAT COMMUNICATION OF THE STATEMENT OF OBJECTIONS IS RECOGNIZED AS CRYSTALLIZING THE COMMISSION ' S POSITION , WHICH MEANS IN EFFECT THAT THE COMMISSION IS PREVENTED , PURSUANT TO ARTICLE 4 OF REGULATION NO 99/63 , FROM RELYING IN ITS DECISION , IN THE ABSENCE OF A FRESH STATEMENT OF OBJECTIONS , ON THE EXISTENCE OF ANY OBJECTIONS OTHER THAN THOSE ON WHICH THE UNDERTAKING     HAS BEEN GIVEN AN OPPORTUNITY TO MAKE KNOWN ITS VIEWS , THOUGH IT DOES NOT PREVENT THE COMMISSION FROM WITHDRAWING ITS OBJECTIONS AND THEREBY ALTERING ITS STANDPOINT IN FAVOUR OF THE UNDERTAKING .
19 A STATEMENT OF OBJECTIONS DOES NOT COMPEL THE UNDERTAKING CONCERNED TO ALTER OR RECONSIDER ITS MARKETING PRACTICES AND IT DOES NOT HAVE THE EFFECT OF DEPRIVING IT OF THE PROTECTION HITHERTO AVAILABLE TO IT AGAINST THE APPLICATION OF A FINE , AS IS THE CASE WHEN THE COMMISSION INFORMS AN UNDERTAKING , PURSUANT TO ARTICLE 15 ( 6 ) OF REGULATION NO 17 , OF THE RESULTS OF THE PRELIMINARY EXAMINATION OF AN AGREEMENT WHICH HAS BEEN NOTIFIED BY THE UNDERTAKING . WHILST A STATEMENT OF OBJECTIONS MAY HAVE THE EFFECT OF SHOWING THE UNDERTAKING IN QUESTION IT IS INCURRING A REAL RISK OF BEING FINED BY THE COMMISSION , THAT IS MERELY A CONSEQUENCE OF FACT , AND NOT A LEGAL CONSEQUENCE WHICH THE STATEMENT OF OBJECTIONS IS INTENDED TO PRODUCE .
20 AN APPLICATION FOR A DECLARATION THAT THE INITIATION OF A PROCEDURE AND A STATEMENT OF OBJECTIONS ARE VOID MIGHT MAKE IT NECESSARY FOR THE COURT TO ARRIVE AT A DECISION ON QUESTIONS ON WHICH THE COMMISSION HAS NOT YET HAD AN OPPORTUNITY TO STATE ITS POSITION AND WOULD AS A RESULT ANTICIPATE THE ARGUMENTS ON THE SUBSTANCE OF THE CASE , CONFUSING DIFFERENT PROCEDURAL STAGES BOTH ADMINISTRATIVE AND JUDICIAL . IT WOULD THUS BE INCOMPATIBLE WITH THE SYSTEM OF THE DIVISION OF POWERS BETWEEN THE COMMISSION AND THE COURT AND OF THE REMEDIES LAID DOWN BY THE TREATY , AS WELL AS THE REQUIREMENTS OF THE SOUND ADMINISTRATION OF JUSTICE AND THE PROPER COURSE OF THE ADMINISTRATIVE PROCEDURE TO BE FOLLOWED IN THE COMMISSION .