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

Pursuant to Article 265 TFEU, the action for failure to act is opened to the Member States and to the addressees of the act that the institution has failed to address. The action for failure to act may be initiated, regarding State aid, by all “interested parties” within the meaning of Article 108(3) TFEU .
The action for failure to act is admissible only if the institution concerned has an obliga …

Admissibility

Pursuant to Article 265 TFEU, the action for failure to act is opened to the Member States and to the addressees of the act that the institution has failed to address. The action for failure to act may be initiated, regarding State aid, by all “interested parties” within the meaning of Article 108(3) TFEU .

The action for failure to act is admissible only if the institution concerned has an obligation to act.  Although the legislation does not require interested  parties to provide detailed information for the Commission to be under a duty to act, it must at the very least specify that the measure complained of is alleged to be unlawful aid . The discretion enjoyed by the Commission regarding State aid makes it free to take provisional measures , to bring proceeding for failure to fulfill obligations against the State granting the aid  or to define its position following a complaint . By contrast, the Commission is required to close the two phases of the procedure by way of a decision. Thus, an action for failure to act may be brought, at the end of the preliminary investigation phase, for failure to adopt a non-implementation decision, a decision not to raise objections, or a decision to initiate the formal procedure  or where it does not close the preliminary examination stage by adopting a decision although it is convinced that the national law in question does not constitute a State aid measure since there has been no transfer of resources . The interested party having addressed a complaint to the Commission on the basis of Article 24(2) of Regulation No 2015/1589 may also exercise an action for failure to act and the Commission is required to answer it . Moreover, the Commission has a general obligation to take the necessary measures to comply with a judgment annulling one of its decisions .

The Commission must have been called upon to act. The right to submit comments during the formal procedure cannot be assimilated to the institution's being called upon to act . The action has lost its purpose if the Commission defines its position within a two-month period after being called upon to act. Furthermore, if it defines its position during the proceedings, the EU court finds that there is no further need for the court to adjudicate for loss of purpose . In particular, the following examples constitute definition of position: decision to initiate proceedings other than that set forth in Article 108 TFEU in view of the special nature of the proposed measure , letter of request for observations , letter informing of the insufficient factual and legal elements establishing the infringing nature of the challenged facts  even the mere existence of an investigation when the complaint is submitted . By contrast, the action for failure to act has a purpose where the Commission publishes a notice under a provision other than that referred to in a formal request, or where the anticompetitive behavior complained of has ceased . Furthermore, where the suspension of the aid measure requested of the Commission in the call to act appears at first sight necessarily linked to the substantive examination of the legality and compatibility of that measure with the internal market, the applicant's action for failure to act is admissible insofar as it seeks a declaration that the Commission unlawfully failed to adopt a decision on whether the measure in question constituted an unlawful or incompatible aid measure .

Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, LawLex200500005180JBJ: an undertaking competing with the beneficiary is an interested party; Case T-395/04 Air One v Commission [2006] ECR II-1343, LawLex200700001505JBJ; Case T-167/04 Asklepios Kliniken v Commission [2007] ECR II-2379, LawLex200700001351JBJ: an undertaking in competition with some beneficiaries only is an interested party on that basis.

Case T-442-07 Ryanair Ltd, Judgment of 29 September 2011, LawLex201200000114JBJ.

Case T-107/96 Pantochim v Commission [1996] ECR II-1361, LawLex200500005205JBJ; Case T-297/01 SIC v Commission [2004] ECR II-743, LawLex200500005233JBJ.

Case T-26/01 Fiocchi Munizioni v Commission [2003] ECR II-3951, LawLex200500004828JBJ: decision to open a bilateral examination pursuant to Article 298 EC due to the military nature of the national subsidies at issue.

Case T-297/01 SIC v Commission [2004] ECR II-743, LawLex200500005233JBJ.

Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, LawLex200500003927JBJ, ECLR, 1998, 46, obs. CUMMING; Case T-186/94 Guérin automobiles v Commission [1995] ECR II-1753, LawLex200500003997JBJ; Case T-38/96 Guérin Automobiles v Commission [1997] ECR II-1223, LawLex200500003869JBJ.

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

Case T-702/21 Ekobulkos EOOD, Judgment of 21 December 2022, LawLex202300002214JBJ.

Case C-75/97 Belgium v Commission [1999] ECR I-3671, LawLex200500005080JBJ.

Case T-277/94 AITEC v Commission [1996] ECR II-351, LawLex200500005144JBJ.

Case T-32/93 Ladbroke Racing v Commission [1994] ECR II-1015, LawLex200400003659JBJ; Case C-141/02 P Commission v max-mobil [2005] ECR I-1283, LawLex200500005296JBJ. Contra: Case C-107/95 P, Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947, LawLex200400003558JBJ.

Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, LawLex200500005180JBJ.

Case T-442/07 Ryanair v Commission, LawLex201200000114JBJ.

Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, LawLex200500005180JBJ; Case T-17/96 TF1 v Commission [1999] ECR II-1757, LawLex200400003597JBJ.

Case 59/79 Producteurs de vins de table et vins de pays v Commission [1979] ECR 2425, LawLex200500008219JBJ.

European Competition Law

452. Admissibility

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

452. 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