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1 Competition - Administrative procedure - Investigation of complaints - Concept of complaint within the meaning of Regulation No 17 - Assessment with reference to the purpose of the complaint - Complaint seeking a finding that a Member State has failed to fulfil its obligations under the Treaty - Not permissible
(EC Treaty, Art. 169; Regulation No 17, Art. 3)
2 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to open a procedure for failure to fulfil obligations - Inadmissible
(EC Treaty, Arts 169 and 175, para. 3)
3 The nature of a complaint to the Commission must be determined with reference to its purpose and not only with regard to its form. Mere reference to Article 3 of Regulation No 17, without further observation, in a letter to the Commission cannot serve to give that letter the character of a complaint under that article when it is apparent that its purpose is to obtain a declaration that a Member State has failed to fulfil its obligations under the Treaty.
It should not be possible for a plaintiff to circumvent the applicable rules by seeking to remove a procedure from the ambit of Article 169 of the Treaty by artificially subjecting it to the principles set out in Regulation No 17, which put the plaintiff in a better procedural position than under Article 169 of the Treaty.
4 An action brought by a natural or legal person for a declaration that, in infringement of the Treaty, the Commission failed to act by not initiating proceedings for failure to fulfil Treaty obligations with regard to a Member State is inadmissible.
In fact, natural and legal persons may only rely on the third paragraph of Article 175 of the Treaty in order to challenge the Commission's failure to adopt measures of which they are potential addressees. In the context of an action for failure to fulfil obligations under Article 169 of the Treaty, the only measures which the Commission may adopt are measures addressed to Member States.
Moreover, it is apparent from the scheme of Article 169 of the Treaty that the Commission is not bound to initiate the procedure provided for therein but has a discretion in this regard which excludes the right for individuals to require that institution to adopt a specific position.
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