C-282/95

GUÉRIN AUTOMOBILES ν COMMISSION

OPINION OF ADVOCATE GENERAL TESAURO delivered on 26 November 1996

2 — Regulation No 17 of the Council of 6 February 1962, First " Original language: Italian. Regulation implementing Articles 85 and 86 of the Treaty 1 — Case T-186/94 Guérin Automobiles ν Commission [1995] (OJ, English Special Edition 1959-1962, p. 87). ECR II-1753. 3 — OJ 1985 L 15, p. 16.

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4. O n 13 June 1994, the Commission sent the appellant a letter referring explicitly in its heading to Article 6 of Regulation N o 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation N o 17. 4 The letter reads as follows: 3. Almost a year later, on 6 January 1994, the appellant wrote to ask the Commission for the results of the examination referred to 4 — OJ, English Special Edition 1963-1964, p. 47.

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The appellant submitted observations on the letter of 13 June 1994 to the Commission on 20 June 1994, asking for details of the other A number of the clauses or practices referred case and whether it was intended to join the to in your complaint are at issue in that two cases in order to respect the right to a other case. As you are aware, the Commis- fair hearing. Having received no reply to that sion must be guided by overriding require- letter or to two further letters of 13 and 24 ments in its choice of priorities owing to lack July repeating those requests, the appellant of resources. It is therefore in the Commu- sent the Commission another formal letter of nity interest that the most representative notice under Article 175 on 11 August 1994.

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The appellant also considered that the Com­ As regards the status of the letter of 13 June mission's vague and ambiguous replies were 1994, the Court of First Instance therefore deliberately intended to deprive it of access found that although it does not expressly to the courts. In its view, the Commission indicate that the complaint is to be rejected, was attempting to evade an action for annul­ 'the two references to Article 6 of Regulation ment by describing the letters of 21 January N o 99/63, the fact that the letter meets the 1993 and 4 February 1994 as mere 'holding formal requirements laid down by that pro­ letters', and an action for failure to act by vision, the content of the letter and the con­ declaring that its letter of 13 June 1994 text in which it came about make it clear that defined its position. on the date on which the Commission addressed that communication to the appli­ cant the information in its possession indi­ cated that there were insufficient grounds for granting the application' (paragraph 29). It also explained that even if the letter in ques­ The findings of the Court of First Instance tion did not contain an adequate statement of reasons, such complaints 'are irrelevant to the question whether the Commission defined its position within the meaning of Article 175 of the Treaty, although they might be relevant in an action under Article 6. In its judgment, the Court of First 173' (paragraph 33). Instance found, first, that 'at the time the application was lodged, it was admissible as regards the failure to act' (paragraph 22). It added that an act 'which itself is not open to an action for annulment may nevertheless constitute a definition of position terminat­ ing the failure to act if it is the prerequisite for the next step in a procedure which is to The Court of First Instance also rejected the culminate in a legal act which is itself open appellant's argument that allowing the letter

9. The appellant has brought an appeal before the Court of Justice, challenging the validity of the judgment and claiming that 7. However, the appellant's arguments in the Court of First Instance made an error of support of the alternative claim for the law in ruling that, although the letter of 13 annulment of the communications dated 21 June 1994 constitutes a definition of position January 1993 and 4 February 1994, should within the meaning of Article 175 and is they express decisions to reject its complaint, therefore such as to terminate the failure to were found to be inadmissible. The Court of act, it does not constitute an act against First Instance noted that they were merely which an action may be brought under holding letters and were therefore not 'acts Article 173. The appellant argues: producing binding legal effects capable of affecting the applicant's interests, but prepa­ ratory measures which, as such, are not open to challenge by an action' (paragraph 40). (a) that the Court of First Instance failed to consider the exchange of letters which took place after the Commission's letter of 13 June 1994 and which would have enabled it to assess the facts correctly and conclude that the failure to act had persisted; 8. As regards costs, the Court of First Instance found, first, that the Commission failed to respond within the time-limit laid down in Article 175 of the Treaty to the for­ mal notice addressed to it by the appellant (b) that it made an error of law in determin­ on 24 January 1994, even though it had been ing the nature of the letter of 13 June duly informed of the ;1 substance of the com­ 1994 in various respects, described in plaint since December 1992. Moreover, as it detail below, all of which support the was not until after the action had been view that the letter did not constitute a lodged that the Commission notified the decision to reject the complaint and con­ appellant of its position on the complaint sequently had not put an end to the fail­ (paragraph 45), the Court of First Instance ure to act;

(c) that it was illogical for it to consider that the letter in question had no legal effects vis-à-vis the person to whom it was addressed, when the fact that the action was deprived of its purpose clearly entailed a breach of the right to effective judicial review because the individual 10. I should point out, first, that under was thereby deprived of the right of Article 3(2)(b) of Regulation N o 17, natural access to the courts. or legal persons who claim a legitimate inter- est are entitled to submit a complaint to the Commission concerning an alleged infringe-

The present appeal therefore offers the Court of Justice an opportunity to examine and clarify some 6 — Case 125/78 GEMA ν Commission [1979] ECR 3173, para aspects of the rights of the complainant in graphs 17 and 18, and most recently Case T-387/94 Asia competition cases, particularly the right of Motor III [1996] ECR II-961, paragraph 46. The Court of First Instance ruled in Case T-24/90 Automec II access to the courts. 5 It is therefore appro- [1992] ECR II-2223, paragraph 75, that the Commission cannot be required to give a decision unless the subject- priate, before considering the various pleas matter of the complaint falls within its exclusive purview. adduced before the Court, to recall — if only 7 — Case T-24/90 Automec II, quoted in footnote 6, paragraph 76, and Case T-114/92 BEMIM ν Commission [1995] ECR briefly — the regulations and case-law that II-147, paragraph 81. See also Case T-5/93 Tremblay and form the background to the present dispute. Others ν Commission [1995] ECR II-185, paragraph 61, in which the Court of First Instance expressly ruled that the applicants had no right to obtain a decision on the alleged infringement from the Commission, even if the latter 'had become persuaded that the practices concerned constituted an infringement of Article 86 of the Treaty'.

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All this does not, however, mean that the informed of the reasons which have led the complainant has no remedy. Article 6 of Commission to conclude that on the basis of Regulation N o 99/63 affords some proce­ the information obtained in the course of the dural guarantees in providing that 'where the inquiry there are insufficient grounds for Commission, having received an application granting the application. Such a communi­ pursuant to Article 3(2) of Regulation N o cation implies the discontinuance of the pro­ 17, considers that on the basis of the infor­ ceedings without, however, preventing the mation in its possession there are insufficient Commission from re-opening the file if it grounds for granting the application, it shall considers it advisable, in particular where, inform the applicants of its reasons and fix a within the period allowed by the Commis­ time-limit for them to submit any further sion for that purpose in accordance with the comments in writing'. The Commission may provisions of Article 6, the applicant puts therefore reject the application either after forward fresh elements of law or of fact'. 9 examining the elements of law and of fact that it contains or after carrying out investi­ gations or instituting proceedings for infringement. In all those cases, however, it is required to inform the applicants of its rea­ sons for rejecting the application and give them a certain amount of time to submit any further comments in writing. 8 That is the purpose of the communication pursuant to Article 6.

9 — GEMA ν Commission (cited in footnote 6), paragraph 17; my emphasis. 8 — This means that, even if the Commission is not obliged to 10 — Idem, paragraphs 19 and 20. adopt a decision establishing the existence of an infringement 11 — In this connection however, see the Opinion of Advocate of the rules on competition or to investigate a complaint General Capotorti. After coming to the conclusion that the brought before it under Regulation N o 17, it is none the less failure to issue a letter pursuant to Article 6 constitutes an 'required to examine closely the matters of fact and law unlawful omission on the part of the Commission and is raised by the complainant in order to ascertain whether there consequently open to challenge in an action for failure to has been any anti-competitive conduct. Moreover, where an act under Article 175, he goes on to point out that the act in investigation is terminated without any action being taken, question, adopted by the Commission only after the pro­ the Commission is required to state reasons for its decision ceedings for failure to act were brought, 'could have been in order to enable the Court of First Instance to verify challenged within the proper time by an application for whether the Commission committed any errors of fact or of annulment since the acts whose legality may be reviewed by law or is guilty of a misuse of powers' (Case C-19/93 Ρ the Court of Justice are described in the first paragraph of Rendo and Others ν Commission [1995] ECR I-3319, para­ Article 173 in identical terms with those employed in the graph 27). last paragraph of Article 175' (idem, pp. 3193, 3200).

decide, generally, whether complainants can be challenged under Article 173. How bring an action for annulment of the letter ever, that leaves two questions unresolved: rejecting their complaint. (a) whether a communication pursuant to Article 6 too may be challenged under Article 173 or whether that applies only to a decision to close the investigation taken after the complainant has submitted further com ments pursuant to that Article; and (b) whether or not the Commission not merely 12. It should be remembered, in this connec may but must adopt a final decision to take tion, that the Court of Justice had already no further action on the complaint. 1 4 ruled in its judgment in Metro ν Commission that any decision to reject a complaint should be open to an action for annulment, pointing out in particular that 'it is in the interests of a satisfactory administration of justice and of the proper application of Articles 85 and 86 that natural or legal per sons who are entitled, pursuant to Article 3(2)(b) of Regulation N o 17, to request the Commission to find an infringement of Articles 85 and 86 should be able, if their 13. An answer to both these questions is to request is not complied with either wholly be found in the case-law of the Court of or in part, to institute proceedings in order First Instance. In its judgment in Automec to protect their legitimate interests'. 12 It is ƒ, 15 that Court explained the types of act the true that in that case the complainant, Metro, Commission may adopt in the course of the had brought an action against the Commis Article 6 procedure and defined the formal sion's decision to grant exemption for a dis tribution system under Article 85(3) of the

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conditions in which they may be challenged. 14. Following the judgment in Automec I, It distinguished three successive stages in the the Commission observed: 'Letters stating procedure: the first may include a prelimi­ the Commission's preliminary observations nary exchange of views and information will be drafted so as to make it clear that between the Commission and the complain­ they represent only an initial Commission ant; the second comprises the notification reaction on the basis of the information in prescribed in Article 6; and in the third stage the Commission's possession. Complainants the Commission takes cognizance of the will in any event always be asked to submit observations submitted by the complainant any further comments within a reasonable and may take a final decision. In the Court's time, failing which the case may be consid­ view, proceedings may be brought only ered closed'. 1 7 against that final decision, which the Com­ mission apparently need not adopt.

17 — XXth Report on Competition Policy, 1990, point 165, p. 136. 16 — Idem, paragraph 46. 18 — Case C-39/93 Ρ SFEI ν Commission [1994] ECR 1-2681.

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may make complaint, as is the case with the entitled to obtain a definitive decision and Commission in the field of competition, nec­ that decision may be challenged under essarily adopts a measure producing legal Article 173 (paragraph 34). That conclusion effects when it terminates an investigation follows from statements made in earlier 19 initiated upon a complaint by such a person' judgments and appears to enshrine an (paragraph 27), the Court stated that 'a letter inalienable right. The complainant would in closing the file on a complaint may be analy­ fact have no remedy if, in addition to the sed as a preliminary or preparatory state­ notification pursuant to Article 6 of Regu­ ment of position only if the Commission has lation N o 99/63 — which is deemed not to clearly indicated that its conclusion is valid be open to challenge — , the Commission only subject to the submission by the parties were not at least required to adopt a final of supplementary observations, which was decision rejecting the complaint. not so in this case' (paragraph 30).

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act, and who is still awaiting a final decision information the Commission claimed to have that may be challenged. gathered and relied on to justify its decision to take no further action on the application, as there was no trace of that information in the case-file; and, lastly, (c) that, in that case, as the alleged rejection was based on the existence of another complaint on which the Bearing all these points in mind, I come now appellant had never succeeded in obtaining to the particular objections raised by the any information, the Court of First Instance appellant against the contested judgment. ought to have imposed a sanction for breach of the principle audi alteram partem. The appellant takes the view that an examination of these objections will confirm that the let­ ter at issue cannot be interpreted as a decision to reject its application and that consequently the failure to act was not ter­ The perpetuation of the failure to act (first minated. and second pleas)

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I should mention here that, although the with the appellant's position in the present judgment in SFEI makes it clear that the case, was not accepted by the Court of First nature of the letter must be determined prag­ Instance, which ruled in the judgment at matically in the light of its purpose and not issue that 'an Article 6 letter does not fix the theoretically on the basis of purely formal Commission's position definitively' (para­ criteria, it nevertheless also states that 'a let­ graph 31). ter closing the file on a complaint may be analysed as a preliminary or preparatory statement of position' 2 1 only if the Commis­ sion has informed the applicants of its rea­ sons for taking no further action on the complaint and fixed a time-limit for them to submit further comments.

21. In these circumstances, the appellant's objection that the Court of First Instance made errors of law in determining the nature of the letter of 13 June 1994 must be held to be unfounded, at least in so far as it seeks to 20. In the present case, it is common ground dispute the definitive nature of the decision that the Commission gave the appellant two to reject the complaint. months to submit any further comments and that it gave its reasons for concluding that the appellant's complaint could not be given 'individual consideration at present', namely that it was already considering another com­ plaint of a similar kind which was more rep­ resentative and that, in view of the nature of the alleged infringement, the appellant could bring the matter before the national courts.

22. Equally unacceptable is the appellant's 23. It follows from the foregoing observa­ second argument, that the Commission itself tions that the Court of First Instance was admitted that it had taken no action and did correct in its decision as to the nature of the not intend to take any because it was already letter of 13 June 1994 and the plea on that considering a similar but more representative count must therefore be rejected. However, complaint, and that this clearly meant that the purpose of the objections I have just the failure to act had not been terminated. In considered was to establish that the letter in fact, since the Commission is not required to question did not constitute a decision to investigate complaints 2 2 it is quite clear that reject the complaint and that the failure to in putting forward that argument the appel­ act had consequently not been terminated. lant is not taking issue with the Court of Therefore, in my opinion it still remains to First Instance's assessment of the nature of be determined whether the said letter, which the letter of 13 June 1994 but is disputing the according to the Court of First Instance does soundness of the Commission's reasons for not fix the Commission's position defini­ deciding not to investigate the complaint. tively, can be considered to have deprived Suffice it to say that this kind of objection, the action for failure to act of its initial pur­ though it would undoubtedly carry weight pose. in proceedings for annulment, is irrelevant for the purpose of establishing failure to act.

position — be it preliminary or preparatory O n that assumption, the Court of First — can nevertheless terminate the failure to Instance came to the conclusion that notifi­ act? cation under Article 6 constitutes a "defini­ tion of position" within the meaning of Article 175 and is therefore such as to deprive the action for failure to act of its purpose — even though it is abundantly clear that the failure to act has not been ter­ minated — precisely because it is a prepara­ tory measure constituting a prerequisite for In the appellant's opinion, that question the adoption of the final decision. Conse­ ought not to be answered in the affirmative, quently, again according to the Court of particularly as no final decision had been First Instance, events that occurred after the taken when the Court of First Instance Article 6 letter was sent are irrelevant for the delivered its judgment and, significandy, no purpose of establishing failure to act. such decision has been taken to this day. That is why, as I already mentioned, it claims that the Court of First Instance ought to have examined the correspondence following the letter of 13 June 1994.

for them to submit any farther comments in It should also be noted that a substantially writing'. That provision is therefore similar point was made by the Commission clearly intended to ensure that complainants itself in GEMA. O n that occasion, the defen­ have an opportunity to submit comments on dant institution contended that 'the com­ the reasons the Commission gives them for munication referred to under Article 6 of rejecting their complaint. Regulation N o 99/63 may be regarded as a decision since it has legal consequences as regards [those to whom it is addressed]. When the Commission indicates the reasons which prevent it from granting the applica­ tion, that is ordinarily to be regarded as a final definition of its position. The fact that Article 6 of Regulation N o 99/63 provides for the applicant to be allowed a period in which to submit any further comments in writing does not prevent the communication from constituting a decision. That provision allows the applicant to decide whether he 27. If that is the case, it seems to me impos­ wishes to submit further comments on the sible to avoid the conclusion that if com­ communication. If he fails to do so, he plainants do not avail themselves of that accepts the definitive nature of the com­ opportunity — either because they consider munication'. 2 5 that it would be pointless to do so in view of the content of the notification, or because they possess no new elements of fact or of law that might induce the Commission to change its mind — the Article 6 notification can no longer be described as a preparatory measure but assumes the character of a definitive act. This view is supported by the judgment in SFEI, 2 4 in which the Court of Justice ruled that the notification constituted 28. In my opinion, as I have already said, a definitive statement of position, even that is the view that is closest to the letter though in that case the complainant had not and spirit of Article 6. Otherwise, complain­ been given the opportunity provided for in ants who decided not to avail themselves of Article 6 to submit comments on the reasons the opportunity to submit further comments for rejecting its complaint. In my opinion, would never have an opportunity of submit­ this means that if no further observations are ting the reasons given for the final decision submitted, either because of some action on to close the investigation of their complaint the part of the Commission or because the to the Community judicature for review, complainant did not wish to submit any, with the consequence that the right referred then the file on the complaint is definitively to in Article 6 would become an obligation, closed and the act in question is conse­ at least for those who did not wish to forgo quently open to challenge. the possibility of judicial review.

27 — In support of its view, the Court of First Instance cites the 29. It is clear from the foregoing consider­ judgments in Case 377/87 Parliament ν Council [1988] ECR 4017, paragraphs 7 and 10, and Case 302/87 Parlia­ ations that events occurring after the Article ment ν Council [1988] ECR 5615, paragraph 16. I must 6 letter is sent may be decisive for the pur­ point out in this connection, however, that in the first of those two judgments the Court of Justice expressly avoided pose of determining the nature of the act in ruling on the objection that the action for failure to act was inadmissible in so far as it sought a declaration of failure to question, a conclusion that may certainly adopt the draft budget, i. e. a preparatory measure, and have important consequences for the com­ merely declared that there was no need for it to give a decision as the measure in question had in the meantime plainant, at least in the matter of access to been adopted. In the second judgment, which concerned the Parliament's capacity to bring an action for annulment the courts. It now remains to be decided pursuant to Article 173, it is true that the Court of Justice whether and to what extent the continuation ruled that 'the European Parliament can obtain a judgment establishing the Council's failure to act, whereas the draft of the Article 6 procedure must be taken into budget, which is a preparatory measure, could not be chal­ lenged under Article 173' but the terms in which it did so consideration when, as in the present case, are not very clear and in any case not decisive for the pur­ poses of the present case. In fact, although I agree that mere the complainant avails himself of the oppor­ preparatory measures may in some circumstances have tunity to submit further comments. The ini­ definitive legal effects vis-à-vis the person concerned and that the failure to adopt them is open to an action for fail- tial reaction is that in that case the Article 6 ure to act (as in the case of the Council's failure to adopt the draft budget and the Commission's failure to adopt a notification cannot be described — at least proposal for a directive, where the failure to adopt the mea- not automatically — as a final act and cannot sures in question prevented the Parliament and the Council respectively from performing their proper tasks), I must therefore be challenged in an action under nevertheless point out in this connection that the situation is — or ought to be — very different in the case of an act Article 173. such as an Article 6 notification. In that case, the adoption of the act in question, far from granting the complainant's request (except in a negative sense), may well constitute a preparatory definition of position that allows the failure to act to continue. The observations that follow will concen- trate on this aspect of the matter. 26 — Automec ν Commission (cited in footnote 15).

30. In this connection, I should begin by saying that, as the Court of First Instance itself pointed out in the judgment at issue in the present case, the Court of Justice has already given the first answer to that ques­ tion in its judgment in GEMA. In that case, 31. What we in fact have to establish — on having ruled that the communication the assumption that an Article 6 notification referred to in Article 6 'implies the discon­ does not constitute a final act if the com­ tinuance of the proceedings', 28 the Court plainant avails himself of the right to submit expressly recognized that it is 'an act which further comments — is whether an action for constitutes a definition of its position within failure to act is deprived of its purpose when the meaning of the second paragraph of the institution takes a position, even by Article 175 of the Treaty'. 2 9 means of a 'preparatory' measure, or only when the failure to act has been terminated or a final act has been adopted.

the legal basis and implications of the alter by a preparatory measure is judged to be natives I have just described. 'theoretically less attractive since it presup poses that a failure to act, in the sense of a failure to proceed to an attackable act, can be brought to an end by action falling short of an attackable act. While it would have the advantage of clearing the Court's lists quickly, it would have the corresponding dis 32. In particular, the second view, according advantage of requiring a complainer to raise to which a preparatory measure — precisely a series of actions to produce results if the because it is preparatory — can never be Commission continued to prove sluggish in considered such as to terminate the failure to dealing with the case'. 3 5 That disadvantage, I act, means that once an admissible action need hardly say, was the reason for bringing under Article 175 is in Court, its purpose the present action. will not be exhausted unless and until the defendant institution has proceeded to a for mal 'act', 3 2 with the result that the action retains its purpose until the definitive decision is taken. 3 3 According to that view, an Article 6 letter would bring about a kind of interruption of the failure to act, but not its termination.

delay. It must therefore be concluded that 32 — Idem, point 94. 33 — Attention must be drawn, in this connection, to the ruling 'the application has become devoid of pur that 'a refusal to act, however explicit it may be, can be pose, at least and in any event following the brought before the Court under Article 175 since it does not put an end to the failure to act' (Parliament ν Council, cited in footnote 27, paragraph 17).

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decision of 5 December 1991, and that there That view cannot however be considered sat­ is therefore no longer any need to give a isfactory, first, because it makes the termina­ decision on i t ' . Particular importance is tion of the failure to act and with it the therefore to be attached to the finding, in the subject-matter of the action, depend on the same judgment, that 'the act whose absence adoption of an act that is only a preparatory constitutes the subject-matter of the pro­ measure for the adoption of the definitive act ceedings was adopted after the action was requested by the complainant and, second, brought but before judgment' and that con­ because it may have the effect of requiring sequently 'in this case, the Commission, the complainant to bring a series of actions which definitively rejected the appellants' for failure to act, to produce a useful result. complaint after sending the communication However, it remains to be seen what rem­ provided for in Article 6 of Regulation N o edies consistent with the law and, in particu­ 99/63, cannot be regarded as having refused lar, with the provision contained in Article 6 to act'. 3 8 may be available to overcome these disad­ vantages.

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time; should it fail to do so, the conditions Article 6 suffices in itself to close the file on a for the Court of First Instance to find that it complaint — and can therefore be described has failed to act would be deemed to have as a final act — whenever the complainant been fulfilled. I should add that, in order to does not avail himself of the opportunity to guarantee legal certainty and the right of submit further comments. In such cases, access to the courts, it is in my view essential therefore, the notification effectively to fix a reasonable time within which the deprives the action of its purpose and at the Commission must either confirm what it has same time constitutes an act that is open to already stated in the Article 6 letter or challenge under Article 173. However, when reopen the case if it considers it appropriate the complainant does avail himself of the to do so in the light of further comments it opportunity to submit comments, the action has received. Such a 'reasonable' time, which for failure to act becomes void of purpose could 'reasonably' be a period of three to six only if the Commission adopts the final months, would also meet the need to ensure decision rejecting the complaint within the the sound administration of justice, a need reasonable time fixed by the Court of Jus­ that is particularly pressing in sectors such as tice. Failure to adopt a decision within that that in the present case, where prompt action time will, on the other hand, entail confirma­ is vital if the purpose of a complaint under tion by the Court of the failure to act, pro­ Article 3(2) of Regulation N o 17 is to be vided of course that all the necessary condi­ achieved. I need hardly add that this would tions are fulfilled. certainly not be the first time the Court of Justice has fixed a reasonable time-limit in order to meet the requirements and guaran­ tee the principles mentioned above. 4 0

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be irrelevant for the purpose of determining to establish that the failure to adopt the act whether or not there had been a failure to requested was unlawful, nor could it bring act, the appellant's first plea must be upheld. an action for annulment.

The legal effects of the Article 6 letter and the breach of the right to effective judicial review (third plea) 38. It must be acknowledged that the solu- tion adopted by the Court of First Instance does not in fact deprive the appellant of all remedy. Nevertheless, since the complainant, faced with the Commission's persistent iner- tia, will have to bring a second action for failure to act merely in order to obtain the final act it sought in the first one and may 37. In its third plea, the appellant claims that then possibly have to bring an action under to regard the letter of 13 June 1994 as depriv­ Article 173 for the annulment of that act, 42 ing the action for failure to act of its initial that solution would in the end make access purpose but not being open to challenge to the courts rather more arduous. implies a breach of the right to effective judi­ cial review.

O n the premiss that that right is among the In these circumstances, it is extremely diffi- general principles of Community law, 4 1the cult to avoid the conclusion that 'la duplica- appellant claims that, in ruling that the letter tion des recours transforme le contrôle jurid- in question had no binding legal effects vis- ictionnel communautaire en un véritable à-vis the appellant but that it was at the same parcours du combattant où la persévérance et time such as to terminate the failure to act, la résistance deviennent les vertus cardina- the Court of First Instance opened up a grey les!' 43 and that complainants may conse- area in which the complainant was deprived quently not be guaranteed proper access to of all access to the courts. It could not seek the courts.

However, in view of the conclusions I open to challenge, 45 rather than condone a reached on the first plea, I think there is no situation in which the complainant, in order need to say any more about this one. to obtain a definitive decision and submit it, should the need arise, to the adjudication of the Community courts, is obliged to bring two actions for failure to act. 46 Otherwise, there would be no alternative but to find the legal remedies available to an individual sub- mitting an application under Article 3(2)(b) of Regulation N o 17 to be inadequate in terms of speed and efficiency, a state of affairs that, in my opinion, the Court of Jus-

40. In the light of the foregoing consider- appellant and was consequently open to ations, the judgment of 27 June 1995 should challenge. 44 It follows that, in holding that the Article 6 notification was not open to challenge, the Court of First Instance clearly infringed the appellant's right to effective 45 — I should mention, in this connection, that I cannot share the view expressed by the Court of First Instance in its judg judicial review. ment in Automec I that an application for a declaration that an Article 6 notification was void 'might make it necessary, as in the case of an action against the statement of objec tions, for the Court of Justice and the Court of First Instance to arrive at a decision on questions on which the Commission had not yet had an opportunity to state its position' and that that would be incompatible inter alia with 'the requirements of the sound administration of jus tice and the proper course of the administrative procedure to be followed by the Commission' (Automec ν Commis sion, cited in footnote 15, paragraph 46). Suffice it to say, first, that the comparison between a statement of objections and an Article 6 notification is forced, to say the least, in view of the profound difference between the two measures, and, second, that the argument advanced here should be given serious consideration if it is concluded that the Article 6 letter deprives the action for failure to act of its I should add that, in my view, it would be purpose. The argument does not seem to me to raise par preferable to recognize that an Article 6 let- ticular objections, as: (a) the reasons for rejecting the com plaint are clearly set out in the letter in question; (b) the sub ter invariably constitutes a measure that is sequent final decision is, at least in most cases, merely a confirmation of the Article 6 letter; (c) if the Commission decides to initiate an investigation or infringement proceed ings in the light of further comments it receives, this could simply be regarded as a fresh procedure under Article 6.

6). That statement clearly implies that it is not possible to act will the complainant have to bring if the adoption of the obtain the adoption of an act under Article 175 if its annul decision it has requested requires the adoption of not one, ment cannot be sought under Article 173. but several procedural measures?

41. The cross-appeal relates to the part of the judgment in which the Court of First Instance ordered the Commission, in the light of the circumstances of the case, to pay its own costs and those of the appellant (paragraphs 44 to 46). I must point out, first of all, that the Court of Justice has held that Article 51 applies even where — although the plea concerning costs was not the only reason for bringing the action — all the other pleas were held to be unfounded. 4 7 This clearly means that the In support of its appeal, the Commission purpose of that provision, contrary to the contends that the Court of First Instance Commission's view, is not to avoid the need confused admissibility with merits in the for the Court of Justice to consider a case case at issue. Essentially, the Commission solely in order to rule on the costs. It must considers that an order to pay the costs be recognized that, as the abovementioned would be justified only if the Court of First case-law shows, the provision in question Instance had found a failure to act or had seeks rather to prevent a ruling at first carried out at least a prima facie examination instance being challenged solely in respect of of the merits, neither of which it had done in the costs and for this purpose it is irrelevant the present case.

whether the challenge in question is the main Commission failed to respond to the formal appeal or a cross-appeal. Moreover, the gen­ notice addressed to it by the appellant on 24 eral terms in which the provision in question January 1994 'even though it had been duly is couched can only be interpreted as mean­ informed of the ;1 substance of the complaint ing that it applies in both cases. since December 1992' and, second, that it is now common ground that anyone submit­ ting a complaint within the meaning of Article 3(2) of Regulation N o 17 is in any case entitled to a decision. In these circum­ stances, I consider that the Commission's 43. Should the Court of Justice take a differ­ claim is manifestly unfounded to the point of ent view, I would point out first of all that, being vexatious. in ruling as it did in this case, the Court of First Instance merely followed a consistent line of decisions by the Court of Justice, according to which, when the action is deprived of its purpose because the institu­ tion called upon to act responded only after The action before the Court of First proceedings had been brought, the costs in Instance respect of those proceedings should be borne by that institution. 4 8 The purpose of such decisions is abundantly clear: it would be unfair, to say the least, to order the appellant to pay the costs of a case when the very rea­ son for bringing it was that the institution 44. According to the first paragraph of called upon to act had not done so. Article 54 of the Statute of the Court of Jus­ tice, if the decision of the Court of First Instance is annulled, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so per­ mits. As an examination of the claim submit­ ted by the appellant does not, in the event, That is not to confuse admissibility with require any facts to be established, I consider merits, as the Commission claims, but rather that the Court of Justice may give final judg­ to take due account of the fact that the ment in the present case. action has been deprived of its purpose as a result of the conduct of the institution that was called upon to act. May I add that, even if it is irrelevant for the purpose of appor­ tioning the costs, the idea that the action for failure to act might be unfounded in the 45. In its first plea before the Court of First present case is also difficult to accept, even Instance, the appellant argued that the Com­ prima facie. Suffice it to say, first, that the mission's letter of 13 June 1994 could not be Court of First Instance found that the considered such as to terminate the failure to act and, in particular, that a notification under Article 6 of Regulation N o 99/63 did not constitute a definition of position within 48 — See, for example, Joined Cases C-15/91 and C-108/91 Buckl the meaning of the second paragraph of and Others ν Commission [1992] ECR I-6061, paragraph 33. Article 175 of the Treaty.

47. In short, the discretion enjoyed by the Commission as to the response to be accorded to the complaints submitted to it certainly does not allow it to call into ques­ tion the right, henceforth undisputed, of 46. The answer must be that it did. Even if anyone submitting a complaint under Article the Commission is not obliged to adopt a 3(2) of Regulation N o 17 to obtain a decision establishing the existence of an decision. infringement of the rules on competition or to investigate a complaint brought before it under Article 3 of Regulation N o 17, it is none the less required, where an investiga­ tion is terminated without any action being taken, 'to state reasons for its decision in order to enable the Court of First Instance to verify whether the Commission commit­ Lastly, I should add that the Commission's ted any errors of fact or of law or is guilty of argument that a reasonable period had not a misuse of powers'. 4 9 elapsed between the time when the com­ plaint was submitted and the time when it received formal notice to act is likewise without foundation. Suffice it to say that the Commission failed to respond to the formal notice addressed to it by the appellant on 24 January 1994 even though it had been duly In these circumstances, the reference by the informed of the substance of the complaint Commission to the Court of First Instance's since December 1992.

49 — Rendo and Others ν Commission, cited in footnote 8, para­ graph 27. 50 — Automec II, cited in footnote 6, paragraph 77.

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OPINION OF MR TESAURO — CASE C-282/95 Ρ

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