CFI, 3rd chamber, July 6, 1998, No T-286/97

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

Facts and procedure

1. The applicant is a British national residing in the United Kingdom. He is a qualified medical practitioner and in January 1990, following specialist training, he obtained a Certificate of Specialist Training (in rheumatology) from the General Medical Council ('the GMC), which has regulatory authority over the medical profession in the United Kingdom.

2. According to the Commission, however, the specialist training completed by the applicant does not meet the requirements of the regulations applicable in the United Kingdom - which, inter alia, implement Council Directive 93-16-EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1) - in such a way as to enable him to gain recognition as a specialist medical practitioner there.

3. On 10 August 1993, the applicant lodged a complaint with the Commission under Article 3 (2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), seeking a declaration that the GMC, the medical Royal Colleges, the medical training committees and the private medical insurance companies had infringed Articles 85 and 86 of the EC Treaty. He complained that the GMC had not published in the Medical Register a list of holders of a 'Community Medical Specialist Diploma in accordance with Directive 93-16. He further alleged that it had imposed rules denying 'Community Medical Specialists access to the market for specialist medical services and restricting them from advertising effectively to the general public.

4. He subsequently exchanged a great deal of correspondence with the Commission.

5. On 18 December 1994, he called on the Commission, within the meaning of Article 175 of the EC Treaty, to define its position on his abovementioned complaint.

6. By letter of 9 February 1995, the Commission informed him, pursuant to Article 6 of Commission Regulation No 99-63-EEC of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47) (hereinafter simply 'Article 6), that it did not expect to be able to uphold his complaint, but invited him to present any comments he might have in that regard.

7. On 20 September 1995, after several extensions of the time allowed, the Commission received the applicant's comments, dated 12 September 1995, in which he requested it, inter alia, not to take a final decision on his complaint until it had been able to examine his re-amended statement of claim in the action he had brought in the High Court against the GMC.

8. On 28 November 1995, the applicant again sent the Commission a formal request pursuant to Article 175 of the Treaty, at the same time submitting a series of further considerations to be examined in the context of his complaint.

9. On 6 December 1995, the Commission replied to the effect that in view of the considerable bulk of documents which the applicant had sent and continued to send, examination of his complaint could not be completed within two months.

10. On 1 August 1997, after sending numerous further letters to the Commission supplementing and elaborating on the tenor of his complaint and seeking the adoption of certain measures by the Commission, the applicant again requested the Commission to define its position on his complaint, pursuant to Article 175 of the Treaty, while at the same time submitting further considerations to be taken into account.

11. By letters of 22 August, 1, 11 and 24 September and 8, 17 and 27 October 1997 he again submitted further material in support of his complaint. With his letter of 22 August 1997, entitled 'Article 6 Reply, he sent the Commission a copy of his re-amended statement of claim in his High Court action. In that of 17 October 1997, he informed the Commission that counsel would be instructed to prepare a supplementary reply to the Commission's Article 6 letter to deal with certain questions. In the remainder of those letters, he submitted further factual material,together with his comments on certain questions of law, for consideration by the Commission.

12. By application lodged at the Registry of the Court of First Instance on 5 November 1997, he brought the present action.

13. On 1 December 1997, he again requested the Commission to take certain measures with regard to the GMC.

14. By separate document lodged at the Court Registry on 17 December 1997, the Commission raised an objection of inadmissibility pursuant to Article 114 (1) of the Rules of Procedure. The applicant has not submitted any observations on that objection.

Forms of order sought

15. The applicant claims that the Court should:

- declare that, contrary to Article 175 of the Treaty, the Commission has failed to define its position on the request submitted to it by him pursuant to that provision; and

- order the Commission to pay the costs.

16. The Commission contends that the Court should:

- dismiss the application as inadmissible; and

- order the applicant to pay the costs.

Law

17. Under Article 111 of the Rules of Procedure, as amended with effect from 1 June 1997 (OJ 1997 L 103, p. 6), where an action is manifestly lacking any foundation in law, the Court of First Instance may, by reasoned order and without taking any further steps in the proceedings, give a decision on it.

18. In the present instance, the Court has sufficient information from the case-file and will thus give its decision, pursuant to that provision, without taking any further steps in the proceedings and without there being any need to rule on the objection of inadmissibility raised by the Commission.

Arguments of the parties

19. The applicant submits, first, that by failing to define its position on his complaint within a period of two months from receipt of his letter of formal request of 1 August 1997, the Commission failed to comply with Article 175 of the Treaty. He adds that the Commission did not address any express act to him during the 18 months prior to his sending that letter and that its unlawful failure should be examined against that background. He specifies, moreover, that the Commission's failure continued until the bringing of the present action and that any contacts he may have had with it after sending his formal request 'do not obviate the need to comply with the limits set by Article 175 of the Treaty.

20. The Commission observes that the purpose of an action under Article 175 of the Treaty is to ensure that the institution concerned takes such action as it is under a duty to take. In the particular context of competition proceedings under Regulation No 17 it is most frequently to oblige the Commission to define its position on a complaint in circumstances where, having received all the necessary information and evidence, the Commission delays in making its assessment known to the complainant.

21. It stresses that, for it to have an obligation to act, it must necessarily be in a position to do so. In the context of a complaint in competition proceedings it is required to 'examine carefully the factual and legal particulars brought to its attention by the complainant before deciding whether to uphold the complaint (Case T-24-90 Automec v Commission [1992] ECR II-2223, paragraph 79). It follows that before the Commission can be under an obligation to act it must have had the opportunity to examine and assess the material submitted to it by the complainant.

22. In the present instance, the applicant did not cease, even after sending his formal request on 1 August 1997, to submit further legal and factual particulars for examination by the Commission. That formal request was, moreover, itself accompanied by a considerable quantity of new material which the applicant requested the Commission to examine. It was thus premature since, by reason of the applicant's own acts, the examination of his complaint by the Commission was not and could not be complete.

23. Finally, the Commission complains that the applicant is seeking to pursue two irreconcilable ends. Either he may seek a decision on his complaint forthwith or he may continue to submit material to the Commission for examination in support of that complaint, but he cannot do both at the same time. By continuing to submit new material for consideration by the Commission, he has deprived his formal request of any effect.

Findings of the Court

24. It must be noted, first, that an action for failure to act under Article 175 of the Treaty cannot be founded unless the institution has an obligation to act, so that the alleged failure to act is contrary to the Treaty (Case T-74-92 Ladbroke Racing v Commission [1995] ECR II-115, paragraph 39).

25. In competition matters, when the Commission is seised of a complaint under Article 3 of Regulation No 17 alleging breach of Article 85 or Article 86 of the Treaty, it is obliged to examine carefully the evidence of fact and of law brought to its notice by the complainant in order to decide whether it must initiate the procedure for establishing the breach or reject the complaint or, finally, decide not to pursue the matter (see Automec, cited above, paragraph 79, and Ladbroke Racing, cited above, paragraph 40).

26. The earliest moment at which the Commission may be under an obligation to take a decision on a complaint is thus when it has been able to examine all the considerations of fact and law brought to its notice by the complainant.

27. In the present instance, the formal request of 1 August 1997 was accompanied by 10 annexes, and the applicant asked the Commission to consider the factual and legal elements contained in his letter, together with the annexes. It is, moreover, undisputed that the applicant continued to submit further material and considerations to the Commission after that date. Those subsequent letters from the applicant or his adviser, mentioned at paragraph 11 above, were intended to supplement the file. Four of them were even entitled 'Supplementary Reply to [the Commission's] Article 6 Letter or 'Supplementary Article 6 Reply and another 'Article 6 Reply.

28. In particular, the applicant had specifically requested the Commission not to take a final decision on his complaint until it had been able to examine his re-amended statement of claim in the action he had brought in the High Court (see paragraph 7 above); that document was not made available to the Commission until 22 August 1997, three weeks after the formal request to take a decision.

29. Even on the assumption that, at the time when the formal request was made, the Commission was under an obligation to take a decision on the applicant's complaint, any such obligation was removed by the fact that, both with that formal request and subsequently, he submitted further material of such a kind as to influence the assessment by the Commission, which, by reason of that very submission of new material, could not reasonably have been in a position to take a decision.

30. Consequently the action seeking a finding that the Commission failed to act by unlawfully failing to take a decision on the applicant's complaint must in any event be dismissed as manifestly lacking any foundation in law, without there being any need to rule on its admissibility.

Costs

31. Under Article 87 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The application is dismissed.

2. The applicant shall pay the costs.