Formal request to act
Formal request to act
A party can only bring a failure to act action before the Court if it has first sent a formal request to act to the Commission (Article 265(2) TFEU), which opens a two-months deadline during which the Commission is invited to put an end to the alleged failure. 1. What constitutes a formal request to act?
More about Formal request to act
A formal request to act within the meaning of Article 265 TFEU must: – be sufficiently explicit and precise to enable the Commission to know the nature of the act which it is being asked to take, and – make understood that the invitation is intended to compel the Commission to take a position 1 .
More about the Subject
We typically receive formal requests to act in the context of complaints. The responsibility for identifying a formal request to act lies on the relevant Unit.
Other Considerations
In many cases it will be clear that a letter does constitute a formal request to act (for example, a letter expressly referring to Article 265 and threatening an action for failure to act if no position is taken within 2 months). 2. What action can put an end to the failure to act?
More
Assuming that there is indeed a failure to act 2 , the act ending the failure to act must normally be a formal act defining the Commission's position, although it does not have to be a definitive act.
More
With regard to complainants, it results from the case law that an Article 7 letter addressed to the complainant and announcing the Commission's intention to reject the complaint constitutes a definition of the Commission's position on the complaint and therefore puts an end to the alleged failure 3 (on Article 7 letters and rejection of complaints in general, see the Module on Handling of complaints).
More
If the intention is to take up the complaint and start proceedings against the subject of the complaint: – Provided the investigation is completed, a letter informing the complainant of the initiation of proceedings against the subject of the complaint, with a copy of the position taken (i.e. a non-confidential version of the Statement of Objections); or – If the complainant is ready to allow some additional delay, or if it can be justified that the investigation is still on-going, a letter explaining the steps taken by the Commission and showing that the Commission has not been inactive might be sufficient to convince the complainant not to go to Court 4 .
More
If the complainant continues correspondence with the Commission after the formal request for the Commission to act, then the Commission is entitled to regard the formal request to act as having been withdrawn. The Commission should then write to the complainant informing it of this. 3. Acknowledgement of receipt
More
In accordance with the Code of Good Administrative Conduct, the acknowledgement of receipt should identify the Head of Unit and her/his telephone number, and should indicate a date by which the addressee can expect to be sent a reply. 4. Decision taken under empowerment
More
If the formal act defining the Commission's position is a formal decision rejecting the complaint, then it is taken by empowerment procedure.
Resources
See Also
References
- Information about Formal request to act in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
Notes
[Note 1] Case C-249/99 Pescados Congelados v. Commission [1999] ECR I-8333.
[Note 2] Case T-127/98, UPS Europe / Commission, ECR [1999] p. II-2633, points 34 to 41.
[Note 3] Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 21; Case T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraphs 30 and 31.
[Note 4] Legally speaking, such a letter does not put an end to the failure to act (see Case T-95/96, Gestevisión Telecinco / Commission, [1998] ECR p. II-3407, point 88: “A letter from an institution called upon to act under Article 175 of the Treaty stating that the questions raised are being examined does not in fact amount to the defining of a position such as to release it from its duty to act”). But such a letter can be enough to convince the complainant that the Commission has (and is still) actively dealing with the case, so that he does not need to go to Court. (judgments in Snupat v High Authority, cited above, and Case 13/83 Parliament v Council [1985] ECR 1513, paragraph 25).
Further Reading
- Information about Formal request to act in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)