Court of Justice of the European Communities (including Court of First Instance Decisions)

1 Actions for annulment - Actionable measures - Definition - Measures producing binding legal effects - Letter forming part of the first stage of the procedure laid down in Article 5 of Commission Decision 94/810 - Preparatory act
(EC Treaty, Art. 173; Commission Decision 94/810, Art. 5)
2 Procedure - Action contesting a preparatory act - Adoption of a later measure - New fact permitting the form of order sought to be adjusted - No such fact
(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3 Any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 for a declaration that it is void. In the case of acts or decisions adopted by a procedure involving several stages, in principle a measure is actionable only if it definitively lays down the institution's position on the conclusion of that procedure, and is not a provisional measure intended to pave the way for the final decision.
No action lies against letters informing the applicant - in the context of the procedure laid down by Article 5 of Commission Decision 94/810 on the terms of reference of hearing officers in competition procedures before the Commission - that the Commission does not share its point of view regarding the information which it maintains is protected by business secrecy and that the Commission is ready to communicate to the complainants more information than the applicant wishes, and allowing the applicant time in which to submit its comments to the hearing officer.
4 Pursuant to Article 44(1)(c) of the Rules of Procedure, an applicant must state the subject-matter of the dispute in the application and cannot seek new forms of order during the proceedings, thereby altering the subject-matter of the action. Where the initial application is directed against an interim step, it is inadmissible, by adjusting the form of order sought, to seek annulment of a final decision which has been adopted subsequently, that is, after the action was brought.