Commission of the European Communities v T-Mobile Austria GmbH.
Date: 2005-02-22
20. While the Commission enjoys a wide discretion both in relation to the action which it considers necessary to be taken and in relation to the means appropriate for that purpose (see, in particular, the judgment in Bundesverband der Bilanzbuchhalter  v Commission , cited above, paragraph 27), the Court of First Instance pointed out, in paragraphs 55 to 57 of the judgment under appeal, that, in so far as the Commission is required to undertake a diligent and impartial examination of a complaint, compliance with that obligation does not, however, mean that its decision on whether or not to take action pursuant to that complaint can avoid being amenable to the same judicial review as that in cases where infringements have been established in the areas covered by Articles 85 and 86 of the Treaty (see, in particular, Case 26/76 Metro  v Commission  [1977] ECR 1875, paragraph 13).  The Court of First Instance also cited point 97 of the Opinion of Advocate General Mischo in Commission and France  v TF1 , cited above, to the effect that the same must apply in regard to infringements of Article 90(3) of the Treaty.  The Court of First Instance stated further that such judicial review is also one of the general principles that are common to the constitutional traditions of the Member States, as is confirmed by Article 47 of the Charter of Fundamental Rights.
32. The Court of First Instance also pointed out that the contested measure had been adopted following a number of meetings between max.mobil and the Commission in a context with which max.mobil was familiar and which allowed it to understand the reasons set out in the grounds of the contested measure.  It was therefore not possible to hold that there was an absence or insufficiency of reasoning, as was the position in the judgment in Case 294/81 Control Data  v Commission [1983] ECR 911, at paragraph 15.  The Court of First Instance accordingly concluded that the contested measure did contain an adequate statement of reasons for the purposes of Article 190 of the EC Treaty (now Article 253 EC).
Procedure before the Court
45. It is first of all necessary to reject the reasoning developed by max.mobil with reference to the judgment in Commission and France  v TF1 .  In that judgment the Court, confirming the decision delivered at first instance by the Court of First Instance that it was unnecessary to give a ruling in the case, held that the Court of First Instance could reach a decision without having to rule on the admissibility of the action brought before it in view of the order in which the questions were examined ( Commission and France  v TF1 , paragraphs 25 to 28).
48. Under the third paragraph of Article 49 of that Statute, the Community institutions do not have to show any interest in order to bring an appeal against a judgment of the Court of First Instance ( Commission  v Anic Partecipazioni, cited above, paragraph 171).
66. Article 90(3) of the Treaty requires the Commission to ensure that the Member States comply with the obligations imposed on them, in regard to the undertakings covered by Article 90(1) of that Treaty, and expressly confers on it the power to take action for that purpose by way of directives and decisions.  The Commission is empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law ( Bundesverband der Bilanzbuchhalter  v Commission , paragraph 23).
68. It follows from paragraph 24 of the judgment in Bundesverband der Bilanzbuchhalter  v Commission  that individuals may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 90(3) of the Treaty if the conditions laid down in the fourth paragraph of Article 173 of the EC Treaty (now, following amendment, the fourth paragraph of Article 230 EC) are satisfied.