COMPETITION • EUROPEAN LAW • PROCEDURE

Any natural or legal person may bring an action for annulment against the decisions addressed to that person or against those which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. The exercise of an action for annulment against a Commission decision is dependent on a number of conditions:

– Challengeable acts: only decisions that unambiguously order a measure that produces legal effects affecting the interests of the persons concerned by modifying their legal situation and that is imposed upon them may be subject to an action for annulment. A tacit refusal decision cannot be challenged: the failure to answer a request for disclosure of documents or for interim measures cannot give rise to an action for annulment. Such is also the case of the temporary position under Article 7 of Regulation No 773/2004, of the mere expression of a written opinion by an EU institution and also of the act by which the Commission’s agents take a copy of documents or ask employees of an undertaking to give oral explanations in the course of the inspection, which is an enforcement measure of the inspection decision that can be contested only as part of an action for annulment against the final decision or against a decision taken under Article 23(1) of Regulation No 1/2003 in order to penalize the undertaking’s refusal to cooperate. By contrast, a letter rejecting the complaint which puts an end to the investigation, sets out the Commission’s position and closes the file has binding legal effects. The EU judicature considers the nature of the decision rather than its form to classify it as actionable decision. It first checks whether, materially, the purpose of the decision corresponds, directly or indirectly, to a purpose that may be fulfilled by an actionable decision (prohibition, exemption with conditions and charges, adoption of interim measures, request for information). Then it examines whether, formally, the instrument per se is in the nature of a decision, i.e. it is an order from the institution.

– Object of the action: this is strictly defined by Article 263 TFEU. The EU court’s task is to verify the competence of the institution in question, to ensure compliance with essential procedural requirements and the provisions of the Treaty or any rule of law relating to its application, or the existence of a misuse of powers. The EU courts may not be asked to issue directions to the other Union institutions. In competition matters, infringements of essential procedural requirements and of the Treaty are the most commonly raised grounds. In respect of the infringement of essential procedural requirements, which it may raise of its own motion, the EU judicature reviews the reasons stated in the decision and the observance of the rights of defense. With the exception of those pleas which involve matters of public policy, the General Court’s exercise of unlimited jurisdiction does not require it to raise of its own motion pleas in law for annulment of the contested decision that the parties have not themselves raised.

– Legitimate interest: an action for annulment may be instituted by the addressee of the decision or by any person directly and individually concerned by that decision. In all cases, the applicant must show a vested and present interest in the annulment of the contested act. A person in effect has an interest in bringing proceedings if the appeal is likely, if successful, to procure it an advantage. Undertakings which are the victims of a restrictive agreement or of an abuse of dominant position are always granted leave to institute an action for annulment. The applicant is also entitled to bring proceedings against the rejection of its complaint since this decision clearly and definitely fixes the Commission’s position. By contrast, the mere participation in an administrative procedure is not enough to confer a status of person directly and individually concerned. Likewise, the intervention of the customer of an undertaking sanctioned for participation in a restrictive agreement, bringing an action for annulment of a Commission decision, is not admissible since the sole aim of the application is to obtain a ruling on the legality of the decision and not to allow or facilitate the bringing of civil damages actions for the victims of anticompetitive practices.

– Limitation period: the two-year period set by Article 263 TFEU runs from the notification to the applicant or the publication of the decision for persons not party to the proceedings. It applies to all persons regardless of their situation from the day of its publication. The notification is validly sent in the form of a registered letter with acknowledgment of receipt. The time-limit runs only if the acknowledgment of receipt is duly dated and signed by its addressee, i.e. by a person authorized to receive a registered letter. The action for annulment brought after expiration of the time-period of two months is inadmissible unless evidence is brought of an excusable error by the applicant. When a time-limit ends on a Sunday it is extended until the following working day.

– Formal requirements: the application must include the basic matters of fact and law on which the action for annulment is based. An undertaking cannot, during the course of the hearing, rely on a new plea not raised in its application. Whilst references may be made to the annexed documents, the court cannot be forced to seek and identify in those documents the pleas and arguments on which the action is based. Arguments and complaints set out only in the annexes to the application or in the submissions of third parties in other proceedings are therefore clearly inadmissible. The action is admissible even if the appellants have failed to mention in their appeal the date of the notification or the name of the other parties to the proceedings.

– Examination of the action: the EU court has a limited power of legal review due to the Commission’s discretionary power in the area of competition: it must confine itself to an examination of the facts and of the legal characterization attributed to them by the Commission. The review must take account of the complex evaluations made by the Commission on economic matters. The General Court cannot find the existence of infringements not established by the Commission in its decision and is not authorized to investigate the case itself in order to fill in gaps left by the latter. On the other hand, it has unlimited jurisdiction as regards fines (Regulation No 1/2003, Article 31). The General Court may cancel or reduce the fine but is not bound by the Commission’s calculations or by the guidelines or, as the case may be, by the opinions of the advocates general. The EU court must examine the claim within a reasonable time. Where the General Court breaches that obligation, in the absence of any evidence that the excessive duration of those proceedings had an effect on the outcome of the dispute, the parties cannot ask for the judgment to be set aside or for a reduction of the fine, but must bring an action for damages before the General Court sitting in a different composition from that which heard the dispute giving rise to the procedure, not before the Court of Justice by way of an appeal. If the action is well founded, the General Court declares the contested act to be void. The annulment decision has absolute authority. However, the decision of the Commission can be annulled only in respect of the parties to the dispute: it remains binding on the addressees that did not bring an action for annulment. The absence of any erga omnes effects of the General Court’s annulling judgments cannot render the proceedings concerning competition law infringements contrary to Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union.