Zunis Holding and others v Commission: ECFI 28 Oct 1993

1. The fact that a letter has been sent by a Community institution to a person in response to a request by that person is not sufficient for it to be regarded as a decision within the meaning of Article 173 of the Treaty, thereby opening the way for an action for annulment. Only measures having binding legal effects of such a nature as to affect the interests of the applicant by having a significant effect on his legal position constitute acts or decisions against which proceedings for annulment may be brought under Article 173 of the Treaty.
2. In the examination as to whether an action seeking the annulment of a negative decision taken by an institution is admissible, that decision must be appraised in the light of the nature of the request to which it constitutes a reply. In particular, the refusal by a Community institution to withdraw or amend an act may constitute an act whose legality may be reviewed under Article 173 of the Treaty only if the act which the Community institution refuses to withdraw or amend could itself have been contested under that provision.
3. The mere fact that a Commission decision declaring that a concentration does not come within the scope of Regulation No 4064/89 may affect the relations between the different shareholders of the notifying companies does not of itself mean that any individual shareholder can be regarded as directly and individually concerned by that decision. That decision is not of such a nature as by itself to affect the substance or extent of the rights of those shareholders, either as regards their proprietary rights or the ability to participate in the company management conferred on them by such rights.
4. The legal certainty which must be guaranteed to traders and the shortness of the time-limits which is a feature of the general system of Regulation No 4064/89 on concentrations between undertakings require in any event that a request for the reopening of the investigation proceedings provided for under that regulation on the ground of the discovery of an allegedly new fact should be submitted within a reasonable period.
A shareholder of one of the companies in question cannot rely on such a request submitted late for the purpose of contending that he must be regarded as individually concerned, within the meaning of the second paragraph of Article 173 of the Treaty, by the decision taken by the Commission at the conclusion of those proceedings on the ground that, if he had been aware from the outset of that fact, he would have applied to intervene in the proceedings and would consequently have had a right of action to protect his legitimate interests.


T-83/92, [1993] EUECJ T-83/92






Updated: 06 June 2022; Ref: scu.172597