Keywords
Summary

Keywords

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1. Actions for annulment of measures ° Actionable measures ° Preparatory measures ° Excluded ° Commission letter notifying person complaining of State aid of the Commission' s refusal to bring infringement proceedings before the Court for failure by the Member State concerned to comply with a decision finding the aid in issue illegal ° Excluded

(EC Treaty, Arts 93(2), second subpara., and 173)

2. Actions against Community institutions for failure to act ° Natural or legal persons ° Actionable omissions ° Failure to bring infringement proceedings in a matter concerning State aid ° Inadmissible

(EC Treaty, Arts 93(2), second subpara., and 175)

3. Actions against Community institutions for failure to act ° Natural or legal persons ° Actionable omissions ° Failure to adopt a decision on the action to be taken in response to a complaint concerning non-compliance with a decision relating to aid ° Inadmissible

(EC Treaty, Arts 93(2), 94 and 175)

Summary

1. Where a complaint is lodged with the Commission requesting it to bring proceedings before the Court of Justice under the second subparagraph of Article 93(2) of the Treaty for a declaration that a Member State has failed to comply with a decision finding that aid is illegal, and directed against a Commission letter by which, without adopting a definitive position on the complaint, it informed the complainant that it considered that, as matters stood, no purpose would usefully be served in bringing the matter before the Court of Justice but that it intended to monitor implementation of its decision by the Member State concerned, an action for annulment subsequently brought by the complainant is inadmissible.

First, the mere fact that a letter is sent by a Community institution to its addressee in response to a request made by the latter is not enough for it to be treated as a decision within the meaning of Article 173 of the Treaty, thereby entitling its recipient to bring an action for its annulment.

Second, in the case of acts or decisions worked out in stages, in particular at the end of an internal procedure, only measures definitively laying down the position of the institution at the end of that procedure, and not intermediate measures intended to pave the way for the final decision, are, in principle, acts against which an action for annulment will lie.

Lastly, private individuals are not entitled to bring proceedings for annulment of a Commission refusal to institute proceedings against a Member State for failure to fulfil its obligations.

2. An action for failure to act brought against an institution by a natural or legal person concerned in a proceeding under Article 93(2) of the Treaty is inadmissible inasmuch as it seeks a declaration that, by failing to bring proceedings before the Court of Justice pursuant to the second subparagraph of Article 93(2) to establish that the government of a Member State has not complied with a Commission decision holding aid to be unlawful, as requested in a complaint submitted by that person, the institution has failed, in breach of the Treaty, to give a decision on the matter.

A natural or legal person may bring proceedings before the Court of First Instance under the third paragraph of Article 175 of the Treaty only in order to have established that there has been a failure, contrary to the Treaty, to adopt an act of which that person is the potential addressee. A decision to bring proceedings before the Court of Justice is an internal preparatory measure adopted jointly by the Members of the Commission, normally on a proposal from the Member in charge of the case. Such an act is not addressed to any person. It is followed by the institution of proceedings before the Court of Justice against the Member State concerned, which, as such, is not a measure addressed to any person either, but merely renders the case judicially pending.

Furthermore, even assuming that the fact of being directly concerned by a measure to be taken, whilst not being its addressee, might give a natural or legal person a right of action for failure to act, neither a decision by the Commission to bring proceedings before the Court of Justice, nor the institution of such proceedings, nor a judgment of the Court of Justice itself, would be of direct concern to a complainant which had requested that proceedings be brought before the Court of Justice.

Lastly, it is apparent from the second subparagraph of Article 93(2) of the Treaty and, more generally, from all the provisions of that article, that the Commission is not bound to commence the proceedings provided for in that provision but has a discretion which excludes the right of any individual to require it to adopt a specific position.

3. An action for failure to act is inadmissible when brought against an institution by a natural or legal person, concerned in a proceeding under Article 93(2) of the Treaty, for a declaration that, by failing to address to that person a decision on the action it intends to take in response to his complaint concerning a Member State' s non-compliance with a decision finding aid to be illegal, the Commission has, in breach of the Treaty, failed to take a decision on the matter.

First of all, in the absence of any implementing regulations as provided for by Article 94 of the Treaty, no provision of Community law provides for the adoption of a decision of that kind. Second, whilst the first subparagraph of Article 93(2) provides for involvement of interested parties in the procedure, the second subparagraph makes no further mention of it. Following the adoption of a decision finding that aid has been illegally granted, the Commission necessarily has a wide discretion as to the way in which that decision is to be complied with, which may raise complex issues concerning the recovery of the illegal aid.