European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Any natural or legal person may complain to the EU court that an institution of the Union has failed to address to that person any act other than a mere recommendation (Article 265 TFEU). By analogy with Article 263 TFEU , only persons directly and individually concerned by the act are entitled to bring an action for failure. To define whether a person is entitled to bring an action for failure to …

Admissibility

Any natural or legal person may complain to the EU court that an institution of the Union has failed to address to that person any act other than a mere recommendation (Article 265 TFEU). By analogy with Article 263 TFEU , only persons directly and individually concerned by the act are entitled to bring an action for failure. To define whether a person is entitled to bring an action for failure to act against a measure that would have directly and individually concerned him, the court checks whether he would be entitled to seek the annulment of that measure . The institution in question must have first been called upon to act (Article 265 TFEU). The formal notice must be sufficiently clear and precise. It must either refer to a document , or contain a sufficiently detailed description of all alleged infringements .

The admissibility of the action for failure to act assumes the existence of an obligation imposed on the EU authority and the abstention from acting. It is the Commission's failure to take a decision or define its position which is penalized, and not the adoption of a measure which is different from the measure that the claimant would have wished . Abstention is found where the Commission, examining a complaint under Articles 101 and 102, has failed to define its position on the components of the complaint relating to Article 102, when its duty is to examine all the evidence of fact and of law contained in the claim  or where it has failed to act upon expiry of the two-month period following the receipt of the formal notice, or where an investigation has been going on for four years . The Commission's obligation to act arises when it is in a position to examine all evidence of fact or of law brought to its notice and is removed in the event that a request to act is made and subsequently, if the applicant submits further material of such a kind as to influence the assessment by the Commission . The Commission's discretionary power in the field of competition policy limits the cases in which it can be forced to act .

An action may be brought within two months if no answer has been given also within two months to the request to act (Article 265 TFEU) .

See Case T-3/90 Prodifarma v Commission [1991] II-1; Case T-17/96 TF1 v Commission [1999] ECR II-1757, LawLex200400003597JBJ.

Case T-395/04 Air One v Commission [2006] ECR II-1343, LawLex200700001505JBJ.

Case T-17/96 TF1 v Commission [1999] ECR II-1757, LawLex200400003597JBJ: it is not necessary to have the text appear in the letter of formal notice if it refers to a document in which it is cited.

Case T-28/90 Asia Motor France and others v Commission [1992] ECR II-2285, LawLex200500004011JBJ.

Case T-74/92 Ladbroke Racing v Commission [1993] ECR II-535, LawLex200500003999JBJ.

Case T-127/98 UPS Europe v Commission [1999] ECR II-2633, LawLex200500003911JBJ.

Case T-286/97 Goldstein v Commission [1998] ECR II-2629, LawLex200500003871JBJ.

See, on the impossibility to force the Commission to act under Article 106, Case C-141/02 P Commission v max-mobil [2005] ECR I-1283, LawLex200500005296JBJ, overturning Case C-107/95 P Bundesverband der Bilanzbuchhalter eV, Judgment of 20 February 1997, LawLex200400003558JBJ, holding that an individual can, in exceptional circumstances, bring an action against the refusal by the Commission to adopt a decision on the basis of Article 106(3) TFEU.

Case T-190/95 Sodima v Commission [1999] ECR II-3617, LawLex200500003908JBJ, inadmissibility of the action for failure to act brought more than four months after the letter of formal notice was sent to the Commission.

European Competition Law

279. Admissibility

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

279. Admissibility

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise