COMPETITION • EUROPEAN LAW • STATE AID
Pursuant to Article 265 TFEU, the action for failure to act is open to the Member States and to the addressees of the act that the institution has failed to address. The action for failure to act may be initiated, regarding State aid, by all “interested parties” within the meaning of Article 108(3) TFEU.
The action for failure to act is admissible only if the institution concerned has an obligation to act. Although the parties are not required by the legislation to provide detailed information to the Commission in order for it to be under an obligation to act, at the very least the interested party must specify that the measure denounced is considered to be unlawful aid. The discretion enjoyed by the Commission regarding State aid makes it free to take provisional measures, to bring proceeding for failure to fulfill obligations against the State granting the aid or to define its position following a complaint. By contrast, the Commission is required to close the two phases of the procedure by way of a decision. Thus, an action for failure to act may be brought, at the end of the preliminary investigation phase, for failure to adopt a non-implementation decision, a decision not to raise objections, or a decision to initiate the formal procedure. Moreover, the Commission has a general obligation to take the necessary measures to comply with a judgment annulling one of its decisions.
The Commission must have been called upon to act. The right to submit comments during the formal procedure cannot be assimilated to the institution’s being called upon to act. The action has lost its purpose if the Commission defines its position within a two-month period after being called upon to act, or even during the proceedings. Examples of a definition of its position include: decision to initiate proceedings other than that set forth in Article 108 TFEU in view of the special nature of the proposed measure, letter of request for observations, letter informing of the insufficient factual and legal elements establishing the infringing nature of the challenged facts even the mere existence of an investigation when the complaint is submitted. By contrast, the action for failure to act has a purpose where the Commission publishes a notice under a provision other than that referred to in a formal request, or where the anticompetitive behavior complained of has ceased.
