Summary
Keywords
Actions for failure to act - Natural or legal persons - Failure in respect of which an action may be brought - Failure to send a reply to a person who has lodged a complaint alleging an infringement of the competition rules - None where the formal request was made prematurely
(EC Treaty, Art. 175)
Summary
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.
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. 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.
Even on the assumption that, at the time when the formal request is made, the Commission is under an obligation to take a decision on a complaint under Article 3 of Regulation No 17, any such obligation is removed where the complainant submits - both with that formal request and subsequently - further material of such a kind as to influence the assessment by the Commission, which, by reason of that very submission of new material, cannot reasonably be in a position to take a decision.
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