Corte di giustizia UE n. 659/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 16 May 2013 *( 1 ) (Appeal – Action for failure to act – [OSCURATO:PERSONA] 232 EC – [OSCURATO:PERSONA] (EC) No 659/1999 – [OSCURATO:PERSONA] 20(2) – State aid allegedly granted to [OSCURATO:PERSONA] airlines – Complaint – Lack of a decision from the [OSCURATO:PERSONA]) [OSCURATO:PERSONA] C‑615/11 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 29 November 2011, [OSCURATO:PERSONA] , represented by L. Flynn, D. Grespan and S. Noë, acting as Agents, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] , established in Dublin (Ireland), represented by E. Vahida, avocat, and I.‑G. Metaxas‑Maragkidis, dikigoros, applicant at first instance, [OSCURATO:SOCIETA] , established in Chieti (Italy), represented by M. Merola, M.C. Santacroce and G. Belotti, avvocati, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Rosas, President of the [OSCURATO:PERSONA], D. Šváby (Rapporteur) and C. Vajda, Judges, [OSCURATO:PERSONA]: V. Trstenjak, Registrar: L. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 13 December 2012, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its appeal, the [OSCURATO:PERSONA] seeks the partial setting-aside of the judgment of 29 September 2011 of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] T‑442/07 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (‘the judgment under appeal’), by which the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] had failed to fulfil its obligations under the EC Treaty by failing to adopt a decision in respect of the transfer of the 100 employees of Alitalia – [OSCURATO:SOCIETA] (‘Alitalia’) which was the subject of a complaint set out in a letter of 16 June 2006 sent to the [OSCURATO:PERSONA] by [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’). Legal context 2 [OSCURATO:PERSONA] paragraphs 1 to 4 of [OSCURATO:PERSONA] 4 in [OSCURATO:PERSONA] II, entitled ‘Procedure regarding notified aid’, of [OSCURATO:PERSONA] (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [OSCURATO:PERSONA] [88 EC] (OJ 1999 L 83, p. 1): ‘1.      [OSCURATO:PERSONA] shall examine the notification as soon as it is received. Without prejudice to [OSCURATO:PERSONA] 8, the [OSCURATO:PERSONA] shall take a decision pursuant to paragraphs 2, 3 or 4. 2.      Where the [OSCURATO:PERSONA], after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision. 3.      Where the [OSCURATO:PERSONA], after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of [OSCURATO:PERSONA] [87(1) EC], it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). The decision shall specify which exception under the Treaty has been applied. 4.      Where the [OSCURATO:PERSONA], after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to [OSCURATO:PERSONA] [88(2) EC] (hereinafter referred to as a “decision to initiate the formal investigation procedure”).’ 3 [OSCURATO:PERSONA] III of that regulation governs the procedure regarding unlawful aid. In that chapter, [OSCURATO:PERSONA] 10(1) provides: ‘Where the [OSCURATO:PERSONA] has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.’ 4 [OSCURATO:PERSONA] III, paragraph 1 of [OSCURATO:PERSONA] 13, entitled ‘Decisions of the [OSCURATO:PERSONA]’, provides: ‘The examination of possible unlawful aid shall result in a decision pursuant to [OSCURATO:PERSONA] 4(2), (3) or (4). …’ 5 [OSCURATO:PERSONA] VI of [OSCURATO:PERSONA] 659/1999, entitled ‘Interested parties’, [OSCURATO:PERSONA] 20(2) provides: ‘Any interested party may inform the [OSCURATO:PERSONA] of any alleged unlawful aid and any alleged misuse of aid. Where the [OSCURATO:PERSONA] considers that on the basis of the information in its possession there are insufficient grounds for taking a view on the case, it shall inform the interested party thereof. Where the [OSCURATO:PERSONA] takes a decision on a case concerning the subject-matter of the information supplied, it shall send a copy of that decision to the interested party.’ Background to the dispute 6 On 3 November 2005, [OSCURATO:PERSONA] sent a letter to the [OSCURATO:PERSONA], the subject-matter of which was a complaint against the [OSCURATO:PERSONA] in respect of State aid to [OSCURATO:PERSONA] airlines. 7 On 16 June 2006, [OSCURATO:PERSONA] sent an additional letter to the [OSCURATO:PERSONA] addressed to the Director of [OSCURATO:PERSONA] within the Directorate‑[OSCURATO:PERSONA] for Energy and [OSCURATO:PERSONA], the subject-matter of which was ‘[OSCURATO:PERSONA] public service obligations’. In that letter, [OSCURATO:PERSONA] criticised, in particular, the fact that it was clear from press cuttings that the airlines [OSCURATO:SOCIETA] (‘[OSCURATO:PERSONA]’) and Meridiana had taken on 100 Sardinian employees of Alitalia, and expressly requested that that issue be added to its previous complaint. 8 By letter of 26 July 2006, the Director of [OSCURATO:PERSONA] within the Directorate-[OSCURATO:PERSONA] for Energy and [OSCURATO:PERSONA] informed [OSCURATO:PERSONA] that a formal inquiry had been opened in connection with some of the operations mentioned. With regard to the question of the transfer of the 100 Sardinian employees of Alitalia, the Director requested [OSCURATO:PERSONA] to provide further information, telling it that he would, in the meantime, ask his colleagues in Unit A 4, ‘[OSCURATO:PERSONA] and Competition’, to raise the matter with the [OSCURATO:PERSONA] authorities. 9 By letter of 14 August 2006, [OSCURATO:PERSONA] acknowledged receipt of the letter of 26 July 2006 and stated that it did not have any more specific information regarding the transfer of the 100 Alitalia employees. 10 On 2 August 2007, having received no response to its complaint of 3 November 2005, [OSCURATO:PERSONA] sent a letter of formal notice to the [OSCURATO:PERSONA] in which it formally called on that institution to act under [OSCURATO:PERSONA] 232 EC. In that letter, [OSCURATO:PERSONA] listed the letters which it had sent to the [OSCURATO:PERSONA] and the measures of which it considered that it had complained as constituting State aid. In addition, [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] to follow the procedures concerning the review of its complaint under, inter alia, [OSCURATO:PERSONA] 659/1999. 11 By letter of 7 August 2007, the [OSCURATO:PERSONA] acknowledged receipt of the letter of formal notice and stated that that letter had been passed to the Directorate-[OSCURATO:PERSONA] for Energy and [OSCURATO:PERSONA]. The action before the [OSCURATO:PERSONA] and the judgment under appeal 12 By application lodged at the Registry of the [OSCURATO:PERSONA] on 30 November 2007, [OSCURATO:PERSONA] brought an action seeking a declaration that the [OSCURATO:PERSONA] had failed to act in unlawfully failing to take a position on [OSCURATO:PERSONA]’s complaints, in particular the complaint concerning the transfer of the 100 Sardinian employees of Alitalia. 13 By order of 14 September 2009, [OSCURATO:SOCIETA] was granted leave to intervene in partial support of the form of order sought by the [OSCURATO:PERSONA]. 14 In the judgment under appeal, with regard to the plea in law alleging that the [OSCURATO:PERSONA] had failed to act with regard to the transfer of the Sardinian employees of Alitalia, the [OSCURATO:PERSONA], first, declared that that plea was admissible, as [OSCURATO:PERSONA]’s letter of 2 August 2007 met all the necessary requirements for it to be regarded as a letter of formal notice for the purposes of [OSCURATO:PERSONA] 232 EC. 15 Second, having recalled (i) its settled case-law pursuant to which ‘in order to rule on the substance of a claim for a declaration that the [OSCURATO:PERSONA] has failed to act, it is necessary to determine whether, at the time when the [OSCURATO:PERSONA] was formally called upon to define its position within the meaning of [OSCURATO:PERSONA] 232 EC, it was under a duty to act’ and (ii) paragraphs 37 to 40 of the judgment in [OSCURATO:PERSONA] C‑521/06 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2008] ECR I‑5829, the [OSCURATO:PERSONA], starting at paragraph 31 of the judgment under appeal, examined whether the letter of 16 June 2006 had indeed presented the [OSCURATO:PERSONA] with a complaint or provided it with information regarding alleged unlawful aid, a claim disputed by the [OSCURATO:PERSONA]. 16 In that regard, paragraphs 33 to 38 of the judgment under appeal are worded as follows: ‘33       … it is to be noted at the outset that, unlike the competition rules laid down in Articles 81 EC and 82 EC, in relation to which the lodging of a complaint is regulated by [[OSCURATO:PERSONA] (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and [OSCURATO:PERSONA] (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the [OSCURATO:PERSONA] pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18)], in the case of State aid no specific formal requirement attaches to the lodging of a complaint. 34      Concerning the [OSCURATO:PERSONA]’s argument that the letter of 16 June 2006 is not a complaint because the applicant has not used the standard form, the [OSCURATO:PERSONA] considers it to be unfounded. As the applicant correctly maintains, use of that form is not required by any rule of [OSCURATO:PERSONA] law and consequently cannot be set up as a condition of “admissibility” for lodging a complaint concerning State aid. 35      As to the [OSCURATO:PERSONA]’s argument that the letter of 16 June 2006 contained no indication that it was meant to constitute a complaint concerning the transfer of the 100 Alitalia employees, it must be rejected. Indeed, although that letter was headed [“[OSCURATO:PERSONA] public service obligations”], the applicant clearly referred therein to that transfer as State aid and expressly requested that the [OSCURATO:PERSONA] add that matter to its previous complaint. The applicant also specifically requested [the Directorate-[OSCURATO:PERSONA] for Energy and [OSCURATO:PERSONA]] to conduct an investigation in order to determine what advantages might have been granted to [OSCURATO:PERSONA] and Meridiana to convince them to take on the Alitalia employees. It should also be noted that the applicant had reiterated, in its letter of 14 August 2006, that that transfer could be regarded as State aid because it saved “Alitalia from having to pay redundancy to these employees”. Contrary to the [OSCURATO:PERSONA]’s contention, the purpose of the letter of 16 June 2006 was clearly to bring a complaint before the [OSCURATO:PERSONA] concerning the transfer of the 100 Alitalia employees. 36      In any event, irrespective of whether or not that complaint was founded, the [OSCURATO:PERSONA] considers that, when it received the letter of 16 June 2006, in which the transfer of the 100 Alitalia employees was clearly identified as State aid (an allegation repeated in the letter of 14 August 2006), the [OSCURATO:PERSONA] was put in possession of “information … regarding alleged unlawful aid” within the meaning of [OSCURATO:PERSONA] 10(1) of [OSCURATO:PERSONA] 659/1999. Contrary to the [OSCURATO:PERSONA]’s argument, that provision does not appear open to being interpreted as meaning that the [OSCURATO:PERSONA] must receive detailed information in order to be regarded as having in its possession information regarding alleged unlawful aid – as is borne out by the wording of [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999. That provision states that “[a]ny interested party may inform the [OSCURATO:PERSONA] of any alleged unlawful aid”. Once it is in possession of the information, the [OSCURATO:PERSONA] must, if it considers that there are “insufficient grounds for taking a view on the case”, inform the interested party that that is the case. It is thus apparent that the [OSCURATO:PERSONA] legislature does not require that interested parties provide the [OSCURATO:PERSONA] with detailed information in order for the [OSCURATO:PERSONA] to be regarded as having in its possession information giving grounds for an examination to be undertaken. 37      Having regard to the contents of the letter of 16 June 2006, the [OSCURATO:PERSONA] concludes that a complaint, or, at the very least, information regarding alleged unlawful aid, was brought before the [OSCURATO:PERSONA]. Therefore, according to the judgment cited at paragraph 30 above, the [OSCURATO:PERSONA] was required to act in accordance with [OSCURATO:PERSONA] 10(1) and the first sentence of [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999, by setting in motion the preliminary examination stage and examining the information without delay. That examination should have led the [OSCURATO:PERSONA], according to the same judgment, either to inform the applicant that there were insufficient grounds for taking a view on the case or, in any event, to adopt a decision under [OSCURATO:PERSONA] 4(2), (3) or (4) of [OSCURATO:PERSONA] 659/1999. 38      In this case, it is common ground that the [OSCURATO:PERSONA] neither informed the applicant that there were insufficient grounds for taking a view on the case nor adopted a decision under [OSCURATO:PERSONA] 4(2), (3) or (4) of [OSCURATO:PERSONA] 659/1999, although it was required to do so. In the case of the transfer of the 100 Alitalia employees, the [OSCURATO:PERSONA] had thus failed to act as of 2 October 2007, that date being two months after it was called on to act in that respect in the letter of formal notice.’ 17 Accordingly, in paragraph 39 of the judgment under appeal, the [OSCURATO:PERSONA] held that the plea alleging that the [OSCURATO:PERSONA] had failed to act with regard to that transfer was well founded. Procedure before the [OSCURATO:PERSONA] and forms of order sought 18 By its appeal, the [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal in so far as it declares that the [OSCURATO:PERSONA] failed to fulfil its obligations under the Treaty by failing to adopt a decision in respect of the transfer of the 100 Alitalia employees complained of in the letter of 16 June 2006 sent to the [OSCURATO:PERSONA] by [OSCURATO:PERSONA]; –        reject the application for a declaration that the [OSCURATO:PERSONA] failed to act in that it failed to adopt a decision in respect of that transfer; –        order [OSCURATO:PERSONA] to pay the costs; –        or, in the alternative, refer the case back to the [OSCURATO:PERSONA]; and –        reserve the costs of the proceedings at first instance and on appeal. 19 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the appeal; and –        order the [OSCURATO:PERSONA] to pay the costs. Appeal 20 In support of its appeal, the [OSCURATO:PERSONA] puts forward three grounds of appeal, alleging, respectively: –        a misinterpretation of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999; –        an error in the legal qualification of the letter of 16 June 2006 as information or a complaint regarding alleged unlawful aid; and –        an error of law regarding the [OSCURATO:PERSONA]’s duty to act, for the purposes of [OSCURATO:PERSONA] 232 EC, under [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999. 21 As the first two grounds of appeal are closely linked, it is appropriate to examine them together. First and second grounds of appeal, alleging a breach of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999 and an error in the legal qualification of the letter of 16 June 2006 Arguments of the parties 22 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] misinterpreted Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999 by holding that the [OSCURATO:PERSONA] had been put in possession of a complaint or provided with information regarding alleged unlawful aid and, consequently, that it was under an obligation to adopt a decision pursuant to [OSCURATO:PERSONA] 4 of that regulation or to send [OSCURATO:PERSONA] a letter pursuant to [OSCURATO:PERSONA] 20 of that regulation. In that regard, the [OSCURATO:PERSONA] complains that, for the purposes of assessing whether or not such a complaint had been made, the [OSCURATO:PERSONA] based its reasoning, in paragraph 35 of the judgment under appeal, on the subjective intention of the interested party and not on the substance of that complaint. 23 [OSCURATO:PERSONA] also complains that, in the first sentence of paragraph 36 of the judgment under appeal, the [OSCURATO:PERSONA] held that, in order for the [OSCURATO:PERSONA] to be under a duty to act, it was sufficient for the complainants to identify a measure as State aid. In that regard, the [OSCURATO:PERSONA] submits that, on the contrary, it is placed under such a duty only when: firstly, the information or the complaint refers to the State-aid provisions of the Treaty, or, at the very least, to the alleged granting of an advantage to one or more undertakings through State resources; secondly, the information or the complaint alleges that the rules regarding State aid have been violated; thirdly, the information or the complaint contains, as a minimum, elements of fact capable of supporting the view that there is unlawful State aid; and, fourthly, the interested party places those factual assertions within the framework of [OSCURATO:PERSONA] 107(1) TFEU. 24 [OSCURATO:PERSONA] is of the view that, even if the [OSCURATO:PERSONA] has not erred in law in its interpretation of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999, it has done so in paragraph 37 of the judgment under appeal by qualifying the letter of 16 June 2006 as a complaint or, at the very least, as information concerning alleged unlawful State aid, inasmuch as the [OSCURATO:PERSONA] does not see how the hiring of staff by a private company could amount to granting State aid to another competing company, even if it took place after a public authority had intervened. [OSCURATO:PERSONA] also takes the view that, even though it is alleged that the disputed transfer saved Alitalia from paying redundancy costs, that allegation is pure speculation, as it is not accompanied by any indication of what those costs might have been. 25 By contrast, [OSCURATO:PERSONA] contends that the minimum requirements mentioned by the [OSCURATO:PERSONA] are not only not based on any provision of EU law or case-law of the [OSCURATO:PERSONA] of Justice but also create many uncertainties. It also submits that the literal meaning of [OSCURATO:PERSONA] 10(1) of [OSCURATO:PERSONA] 659/1999 and the use of the word ‘regarding’ require only that the information referred to in that provision should imply the existence of potential unlawful aid, as was the case with its letter of 16 June 2006. Lastly, it adds that it is difficult to reconcile the minimum requirements envisaged by the [OSCURATO:PERSONA] with the often concealed nature of unlawful State aid. Findings of the [OSCURATO:PERSONA] 26 In its first and second grounds of appeal, the [OSCURATO:PERSONA] seeks to establish, essentially, that the [OSCURATO:PERSONA] erred in law in holding that the [OSCURATO:PERSONA] had obtained, through the letter of 16 June 2006, information regarding alleged unlawful aid within the meaning of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999 which obliged it to act and that, as a result, the finding of failure to act so made by the [OSCURATO:PERSONA] is unfounded. 27 As a preliminary point, it should be borne in mind that, under [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999, any interested party may inform the [OSCURATO:PERSONA] of any alleged unlawful aid and of any alleged misuse of aid. 28 Where it has in its possession information, from whatever source, regarding alleged unlawful aid, the [OSCURATO:PERSONA] is required, under [OSCURATO:PERSONA] 10(1) of [OSCURATO:PERSONA] 659/1999, immediately to examine the possible existence of aid and its compatibility with the internal market. The examination of such information, on the basis of that provision, gives rise to the initiation of the preliminary examination stage under [OSCURATO:PERSONA] 108(3) TFEU (see, to that effect, [OSCURATO:PERSONA] C‑322/09 P NDSHT v [OSCURATO:PERSONA] [2010] ECR I‑11911, paragraph 49 and the case-law cited). 29 At that stage, and where it considers that there are insufficient grounds for taking a view on the case, the [OSCURATO:PERSONA], in accordance with the second sentence of [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999, must communicate that finding to the interested parties which have sent it the information in question and must also allow those parties to submit additional comments within a reasonable period (see, to that effect, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 39). 30 [OSCURATO:PERSONA] 13(1) of [OSCURATO:PERSONA] 659/1999, which is applicable in the context of an examination of alleged unlawful aid, obliges the [OSCURATO:PERSONA] to close that preliminary examination stage by adopting a decision pursuant to [OSCURATO:PERSONA] 4(2), (3) or (4) of that regulation, that is to say, a decision finding that aid does not exist, raising no objections or initiating the formal investigation procedure, since that institution is not authorised to persist in its failure to act during the preliminary examination stage ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 40). 31 It follows from paragraphs 27 to 30 of the present judgment that the preliminary examination stage, which ultimately obliges the [OSCURATO:PERSONA] to take a position, requires that, where that examination is carried out on the initiative of an interested party, information concerning alleged unlawful aid be sent to the [OSCURATO:PERSONA] by that party. 32 [OSCURATO:PERSONA] did not err in its interpretation of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999 or in the legal qualification of the letter of 16 June 2006. 33 It should be noted that the sending of information, within the meaning of [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999, is not subject to any formal requirements, such as using the standard form made available to interested parties for reporting alleged unlawful State aid. 34 In addition, the obligation to carry out an examination under [OSCURATO:PERSONA] 10(1) of that regulation is triggered as soon as the [OSCURATO:PERSONA] is in possession of information regarding alleged unlawful aid. 35 It follows that a preliminary examination under Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999 must lead to a decision adopting a position on the information provided (see, to that effect, NDSHT v [OSCURATO:PERSONA] , paragraph 55 in fine ). 36 That finding cannot be undermined by the [OSCURATO:PERSONA]’s argument that in paragraphs 35 and 36 of the judgment under appeal the [OSCURATO:PERSONA] relied on the subjective intention of the interested party and, in addition, confined itself to requiring that, in its letter, the complainant should identify a measure as constituting State aid. Notwithstanding its brevity, such a letter, by the nature and the wording of the information transmitted, must be regarded as enabling the [OSCURATO:PERSONA] to identify, with sufficient precision, inter alia, the presumed beneficiary of the alleged unlawful aid, the nature of the advantage at issue and the mechanism by means of which that advantage has been granted. 37 That being the case, such a letter cannot be regarded as failing to satisfy the requirements laid down in Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999, given that those provisions cannot be construed as making the [OSCURATO:PERSONA]’s duty to act conditional on the inclusion of a greater level of detail in the complaint or information sent to the [OSCURATO:PERSONA]. 38 Moreover, the [OSCURATO:PERSONA] cannot require interested parties to comply with predetermined formal conditions which the [OSCURATO:PERSONA] has rightly stated, in paragraph 34 of the judgment under appeal, have no basis in EU law. 39 [OSCURATO:PERSONA] therefore acted correctly in holding that the letter of 16 June 2006 sent by [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] contained information, within the meaning of Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999, which placed an obligation on the [OSCURATO:PERSONA] to examine it and to inform [OSCURATO:PERSONA] that there were insufficient grounds for taking a view on the case, and in inferring from this that the [OSCURATO:PERSONA], as a result of its inactivity, had failed to fulfil its obligation to adopt a position and was thus in a situation of having failed to act within the meaning of [OSCURATO:PERSONA] 232 EC. 40 Accordingly, the first and second grounds of appeal must be rejected. Third ground of appeal, alleging that the [OSCURATO:PERSONA] was not under a duty to act, for the purposes of [OSCURATO:PERSONA] 232 EC, under [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999 Arguments of the parties 41 [OSCURATO:PERSONA] submits that, in any event, the [OSCURATO:PERSONA] could not rely, in proceedings for failure to act under [OSCURATO:PERSONA] 232 EC, on an alleged duty of the [OSCURATO:PERSONA] to act arising from [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999. In that regard, the [OSCURATO:PERSONA] argues that an [OSCURATO:PERSONA] 20(2) letter is merely an intermediate step in the procedural path leading from a complaint to a decision adopted under [OSCURATO:PERSONA] 4 of that regulation. It cannot therefore be classified as a challengeable act in respect of which the non-adoption of a position is capable of giving rise to an action for a failure to act. 42 [OSCURATO:PERSONA], by contrast, contends that such a letter can form the basis of an action under [OSCURATO:PERSONA] 232 EC, given that that letter is compulsory and in so far as paragraph 68 of the judgment in [OSCURATO:PERSONA] C‑362/09 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2010] ECR I‑13275 precludes the [OSCURATO:PERSONA] from perpetuating a state of inaction during the preliminary examination stage. Findings of the [OSCURATO:PERSONA] 43 By its third ground of appeal, the [OSCURATO:PERSONA] contests the finding of a failure to act made under [OSCURATO:PERSONA] 232 EC by the [OSCURATO:PERSONA] in so far as that finding is based on [OSCURATO:PERSONA] 20(2) of [OSCURATO:PERSONA] 659/1999. 44 Given that the [OSCURATO:PERSONA] has been unsuccessful in its first and second grounds of appeal inasmuch as those grounds were based on Articles 10(1) and 20(2) of [OSCURATO:PERSONA] 659/1999, there is no longer any need to give a ruling on the present ground of appeal. 45 [OSCURATO:PERSONA] none of the grounds of appeal raised by the appellant has been upheld, the appeal must be dismissed. Costs 46 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to the costs. [OSCURATO:PERSONA] 138(1) of those Rules, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. Orders the [OSCURATO:PERSONA] to pay the costs. [Signatures] 1 * Language of the case: English.