1. An action under Article 175 of the Treaty for failure to act may lie only where the institution has an obligation to act, so that the alleged failure to act is contrary to the Treaty.
Where a complaint is made to the Commission under Article 3 of Regulation No 17 alleging breach of Article 85 or Article 86 of the Treaty, it is obliged, in accordance with the provisions of Regulations No 17 and No 99/63, 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.
However, the Commission cannot be regarded as having failed to act for the purposes of Article 175 of the Treaty if, when the complainant addresses a formal request to it to adopt a position on the complaint, it has already initiated the procedure for investigating the alleged breach of Article 85 of the Treaty but the progress of the investigation and the time spent on it are not sufficient to enable it to address a communication to the complainant in accordance with Article 6 of Regulation No 99/63 nor, a fortiori, to adopt a position on the complaint in the form of a rejection.
2. Where a complaint is made to the Commission under Article 3 of Regulation No 17 for breach of Article 85 or Article 86 of the Treaty and the investigation is conducted solely on the basis of Article 85 the Commission cannot be regarded, at the time when the complainant addresses a formal request to it to act, in accordance with Article 175 of the Treaty, as having adopted a position on the complaint in so far as it is based on Article 86. An action for failure to act must therefore be declared admissible in so far as it is alleged that the Commission failed to act in relation to that article.
Such an action is admissible notwithstanding the fact that when the Commission receives a complaint under Article 3 of Regulation No 17 it is not bound either to issue a decision confirming the breach or to conduct an investigation to that end in every case, or the fact that it is free to determine the importance to be given to a complaint before it in the light of the Community interest. In view of the procedural guarantees provided for in Article 3 of Regulation No 17 and Article 6 of Regulation No 99/63, the Commission was free to decide to initiate the investigation solely on the basis of Article 85; however, it was bound both to examine first the evidence of fact and of law relevant to an application of Article 86 of the Treaty and to inform the applicant of its decision, with reasons, in order to enable its legality to be the subject of judicial review.
Furthermore, an action for failure to act in those circumstances does not become devoid of purpose as a result of either the Commission’ s publication of a notice pursuant to Article 19(3) of Regulation No 17 or the cessation of the restriction of competition which was the subject of the complaint. In the first place, a finding that amendments to the agreement challenged by the complaint have made it compatible with Article 85 does not constitute a definition of the Commission’ s position, as far as the applicant is concerned, on the complaint in so far as it was founded on Article 86. In the second place, the alleged cessation of the restriction of competition could have no effect other than to alter the facts which gave rise to the complaint under Article 86, and thus to lead the Commission either to adopt a decision not to pursue the investigation, or to decide to reject it; it could not dispense the Commission from its duty to inform the complainant of its position, in conformity with the procedural guarantees referred to above.
3. In the context of an investigation of alleged breaches of Community competition law, neither the Commission’s adoption of a position on a complaint in a statement of objections, nor the publication of a notice by that institution under Article 19(3) of Regulation No 17 constitutes a decision capable of forming the subject-matter of an action for annulment.
T-74/92,  EUECJ T-74/92
Updated: 06 June 2022; Ref: scu.172589