Judgment of the Court (Eighth Chamber) of 11 June 2026. – Laurent Merlin v European Commission.

1

By their appeal, Mr Laurent Merlin and the 27 other appellants seek the annulment of point 2 of the operative part of the judgment of the General Court of the European Union of 13 November 2024, Merlin and Others v Commission (T‑141/23, the judgment under appeal, EU:T:2024:818), by which the General Court dismissed their action seeking a declaration that the European Commission failed to act in connection with its failure to adopt a decision under Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), concerning the contested European Fisheries Fund (EFF) and the European Maritime and Fisheries Fund (EMFF) funding.

2

Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (OJ 2006 L 223, p. 1) (‘the EFF Regulation’), which was applicable for the 2007 to 2013 programming period, was repealed by Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council (OJ 2014 L 149, p. 1) (‘the EMFF Regulation’).

3

Article 7 of the EFF Regulation provided:

‘1.   Without prejudice to paragraph 2 of this Article, Articles 87, 88 and 89 [TEC] [(now Articles 107, 108 and 109 TFEU)] shall apply to aid granted by the Member States to enterprises in the fisheries sector.

2.   Articles 87, 88 and 89 [TEC] shall not apply to financial contributions from Member States to operations co-financed by the EFF and provided as part of an operational programme.

3.   National provisions setting up public financing going beyond the provisions of this Regulation concerning financial contributions, as provided for in paragraph 2, shall be treated as a whole on the basis of paragraph 1.’

4

The EMFF Regulation, applicable for the 2014 to 2020 programming period, provides, in Article 8 thereof:

‘1.   Without prejudice to paragraph 2 of this Article, Articles 107, 108 and 109 TFEU shall apply to aid granted by Member States to undertakings in the fishery and aquaculture sector.

2.   However, Articles 107, 108 and 109 TFEU shall not apply to payments made by Member States pursuant to, and in conformity with, this Regulation falling within the scope of Article 42 TFEU.

3.   National provisions setting up public financing going beyond the provisions of this Regulation concerning payments referred to in paragraph 2, shall be treated as a whole on the basis of paragraph 1.

…’

5

Regulation 2015/1589 provides, in Article 4 thereof:

‘1.   The Commission shall examine the notification as soon as it is received. Without prejudice to Article 10, the Commission shall take a decision pursuant to paragraphs 2, 3 or 4 of this Article.

2.   Where the Commission, 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 Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the internal market of a notified measure, in so far as it falls within the scope of Article 107(1) TFEU, it shall decide that the measure is compatible with the internal market …. The decision shall specify which exception under the TFEU has been applied.

4.   Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the internal market of a notified measure, it shall decide to initiate proceedings pursuant to Article 108(2) TFEU …

…’

6

The background to the dispute, as set out in paragraphs 2 to 14 of the judgment under appeal, may be summarised as follows.

7

The appellants are French, Dutch and United Kingdom fishermen and an association of small-scale European fishers, Low Impact Fishers of Europe (LIFE), which carry on their fishing activities in the waters of the Channel and the North Sea.

8

In March 2021, the appellants, using the form set out in Annex IV to Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1), submitted complaints to the Commission (‘the complaints’).

9

In the complaints, the appellants claimed, first of all, that the Netherlands authorities had granted fishing authorisations in breach of the rule that electrical pulse fishing was permitted only up to a maximum of 5% of the beam trawler fleet of each Member State, as provided for by the EU legislation (‘the 5% rule’).

10

Next, in a section of the complaints entitled ‘European aids that are illegal and incompatible with the internal market’, the appellants complained that the Kingdom of the Netherlands had, since 2007, granted funding to Dutch beam trawlers engaged in electrical pulse fishing in breach, inter alia, of the 5% rule and the rules governing the EFF and the EMFF. According to the appellants, those trawlers could not therefore benefit from that funding under those two funds, with the result that that funding had to be classified as unlawful State aid incompatible with the internal market.

11

Lastly, in a section of the complaints entitled ‘State aids that are incompatible with the internal market’, the appellants complained of the existence of various aid measures granted by the Kingdom of the Netherlands to Dutch beam trawlers engaged in electrical pulse fishing which greatly exceeded the applicable de minimis thresholds and which therefore had to be classified as State aid incompatible with the internal market.

12

By letter of 16 April 2021, the Commission’s Directorate-General (DG) for Competition informed the appellants that it was apparent from the complaints that the contested funding came within the scope of either the EFF or the EMFF and that, in each of those cases, the rules governing one of those two funds prevailed over the State aid rules. According to that DG, since those complaints raised questions relating to the rules governing the common fisheries policy (CFP), they had to be examined in accordance with the specific procedures under the CFP. To that end, that DG suggested that the appellants address those complaints to the Commission’s DG Maritime Affairs and Fisheries.

13

By letter of 4 August 2021, the appellants claimed, in essence, that the specific mechanisms relating to the EFF and the EMFF did not preclude either the applicability of the State aid rules or the possibility of lodging a complaint under Regulation 2015/1589. In that regard, they referred to Article 7(2) of the EFF Regulation and Article 8(2) of the EMFF Regulation, under which, according to the appellants, funding granted in breach of those two regulations had to be examined in the light of State aid rules. Accordingly, it was for the Commission, in the appellants’ view, to identify the instruments through which the funding had been granted and to determine which parts of the funding were to be regarded as State aid, on the ground that they did not come within the scope of the EFF or the EMFF.

14

By letter of 22 November 2021, DG Competition stated, while acknowledging that the Kingdom of the Netherlands had authorised the practice of electrical pulse fishing contrary to the conditions laid down in Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ 1998 L 125, p. 1), that no link could be established between that practice and the funding provided under the EFF and the EMFF. It concluded that there was no potentially unlawful State aid element that would require further examination.

15

By letter of 4 April 2022, the appellants submitted additional information containing, inter alia, lists of Dutch beam trawlers engaged in electrical pulse fishing which had received EFF and EMFF funding (‘the letter of 4 April 2022’). They also criticised the existence of an investment aid programme entirely funded by the Netherlands State and designed to equip five beam trawlers engaged in that type of fishing.

16

By letter of 9 September 2022, DG Competition stated that it had again examined in detail the funding received by the Dutch beam trawlers engaged in electrical pulse fishing on the basis of that additional information, that there had been no breach of the rules relating to the EFF and the EMFF and, on that basis, that it saw no element constituting potentially unlawful State aid and requiring further examination.

17

By letter of 8 November 2022, the appellants called upon the Commission, in accordance with the second paragraph of Article 265 TFEU and Regulation 2015/1589, in particular Articles 4, 12 and 15 thereof, to adopt, in response to the complaints, a decision under Article 4 of that regulation (‘the call to act’).

18

By letter of 14 February 2023, entitled ‘Pre-closure letters to the complainants informing them that the Commission services intend to close the case’, the Commission informed the appellants that it had completed its examination of the complaints (‘the letter of 14 February 2023’). In that regard, it stated that it did not envisage proposing the initiation of ‘infringement proceedings for failure to comply with EU law by [the Kingdom of the Netherlands]’. It stated that it had again examined in detail the funding received by Dutch beam trawlers engaged in electrical pulse fishing in the light of the additional information sent by the appellants in the letter of 4 April 2022 and had concluded that there had been no breach of the rules applicable to the EFF and the EMFF. On that basis, the Commission informed the appellants of its intention to close the file, while inviting them, if they had new information likely to be relevant to the re-examination of it, to contact it within four weeks, at the end of which period the case could be closed.

19

By application lodged at the Registry of the General Court on 14 March 2023, the appellants brought an action seeking a declaration that the Commission had unlawfully failed to adopt a decision under Regulation 2015/1589 and an order requiring the Commission to take a decision, within two months, on the basis of that regulation.

20

In support of that action, the appellants claimed that, in accordance with the second subparagraph of Article 12(1) and Article 15(1) of Regulation 2015/1589, the Commission was required, first, to examine, within a reasonable period and fully and diligently, the information which they had sent to it in the complaints and in their subsequent exchanges, in which they criticised the existence of various aid measures, and, second, to adopt a final decision on the basis of Article 4(2), (3) or (4) of that regulation, setting out clearly its position in that regard. In particular, according to the appellants, the Commission was incorrect to take the view that the funding granted under the EFF and the EMFF to Dutch beam trawlers engaged in electrical pulse fishing was exempt, on the basis of Article 7 of the EFF Regulation and Article 8 of the EMFF Regulation, from the application of State aid rules.

21

By the judgment under appeal, the General Court examined, in essence, in the first place, the objection that the action for failure to act was inadmissible, raised by the Commission, under the second paragraph of Article 265 TFEU. It noted that the appellants had challenged, in separate sections of the complaints, the existence, on the one hand, of ‘European aids that are illegal and incompatible with the internal market’, granted to Dutch beam trawlers engaged in electrical pulse fishing under the EFF and the EMFF, in breach, in particular, of the 5% rule (‘the contested EFF and EMFF funding’), and, on the other hand, of ‘national subsidies’ for those trawlers, awarded by the Kingdom of the Netherlands, which should be classified as State aid (‘the contested national aid’).

22

In that regard, it found that that action must be declared inadmissible in so far as it sought a declaration that the Commission failed to act in connection with its failure to adopt a decision under Regulation 2015/1589 concerning the contested EFF and EMFF funding.

23

It found, by contrast, that that action must be declared admissible in so far as it sought a declaration that the Commission had failed to act in connection with its failure to act under Regulation 2015/1589 with regard to the contested national aid, given that that institution had not defined a clear and definitive position, within the meaning of Article 265 TFEU, on the call to act.

24

In the second place, as regards the contested national aid, the General Court held that the Commission, having duly received complaints informing it of the existence of alleged unlawful aid or of the alleged misuse of such aid, was required to act in accordance with the second subparagraph of Article 12(1), Article 15(1) and Article 24(2) of Regulation 2015/1589. The General Court held that, since the Commission had neither taken one of the steps provided for in those provisions nor adopted a decision under those provisions, that institution had, at the end of the period of two months following the call to act, failed to act.

25

Thus, in point 1 of the operative part of the judgment under appeal, the General Court upheld the action for failure to act in so far as it sought a declaration that the Commission had failed to act in relation to the contested national aid and, in point 2 of the operative part of that judgment, it dismissed the action as to the remainder.

26

By their appeal, the appellants claim that the Court of Justice should:

27

The Commission contends that the Court should:

28

In support of their appeal, the appellants rely on three grounds of appeal.

29

The first ground of appeal alleges that the General Court erred in law and distorted the facts in so far as it found that the Commission had clearly and definitively defined its position on the call to act, on the basis of an erroneous test consisting in determining the existence of a defined position in the light solely of the exchanges preceding the letter containing the call to act.

30

The second ground of appeal alleges that the General Court erred in law and distorted the facts in so far as it found that the Commission had referred to its prior exchanges to define its position in the letter of 14 February 2023, in response to the call to act.

31

The third ground of appeal alleges a failure to state reasons in the judgment under appeal and, in any event, an error of law in so far as the General Court omitted to rule on compliance with Regulation 2015/1589, giving rise to a breach of the fundamental right to effective judicial protection.

32

The first ground of appeal is composed of two parts.

33

By the first part of the first ground of appeal, the appellants submit that the new test introduced by the General Court to assess whether a clear and definitive position has been defined by an institution of the European Union in an action for failure to act does not comply with the principles governing the legal classification of the definition of a position, for the purpose of Article 265 TFEU. They claim that, according to those principles, such a position must be clear and definitive, leave no doubt as to how that institution dealt with the applicant’s request, and respond to the call to act.

34

In the first place, the mere fact that there were exchanges between an applicant and the institution concerned prior to the call to act cannot satisfy the requirement of clarity and certainty enshrined in the Court of Justice’s case-law concerning the outcome that that institution must give to such a call to act. In addition, it is all the less relevant to take into account prior exchanges where, as in the present case, the institution concerned does not expressly refer to them to illustrate, clarify or, at the very least, state its position in a letter in response to the call to act. Moreover, the need to adopt a decision, for the purpose of Article 4 of Regulation 2015/1589, arises not only from the right that applicants have to obtain such a decision under that regulation, but also from the requirement of good administration.

35

In the second place, the position should be defined after the call to act. By holding that an institution may define its position before such a call to act and that a reading of the exchanges which preceded that call to act is sufficient to find that that institution defined its position on the request made in that call to act, even if it does not do so in its response to the call to act, the General Court distorted the very essence of the provisions of Article 265 TFEU. Such an approach would render meaningless the very purpose of the call to act prior to a possible action for failure to act, namely to put the action into concrete terms and to define the matters to which the institution is required to respond.

36

In that regard, the General Court distorted the findings of the Court of Justice in the order of 16 June 2020, CJ v Court of Justice of the European Union (C‑634/19 P, EU:C:2020:474), by holding that it was apparent from the case-law of the Court of Justice that, for the purposes of determining whether a clear and definitive position was defined following a call to act, account may be taken of exchanges prior to that call to act.

37

By the second part of the first ground of appeal, the appellants allege infringement of Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) as a result of the application of the new test used by the General Court in the judgment under appeal.

38

In the first place, that new test constitutes a manifest breach of the right to an effective remedy, in infringement of Article 47 of the Charter, and of the principle of legal certainty. According to settled case-law, the effectiveness of judicial review, in conjunction with the principle of legal certainty, requires that the person concerned be able to ascertain, by reading the decision itself, the reasons on which a decision concerning that person is based. According to the appellants, the finding that the Commission took a clear and definitive position on the basis of a vague formal reference to prior correspondence, the substance of which that institution makes no mention of whatsoever, cannot satisfy the requirements of the Charter and the case-law of the Court of Justice.

39

In the second place, that new test entails, in infringement of Article 41 of the Charter, a breach of the Commission’s obligation of good administration and, in particular, the obligation to state reasons. That institution may simply make a vague formal reference to prior correspondence, without considering the complainant’s additional observations, subsequent to that correspondence and prior to the call to act and the requests expressly made in that call to act. Such an approach prevents that complainant, as is the case here, from understanding precisely the reasons which led the Commission to reject its request and from knowing whether that institution adopted a clear and definitive position.

40

The Commission contends that the first ground of appeal is manifestly unfounded.

41

By the first part of the first ground of appeal, the appellants criticise the General Court, in essence, for having held that whether a clear and definitive position was defined by the Commission in the context of an action for failure to act may, first, be assessed by taking into consideration exchanges prior to the call to act and, second, be assessed in the light of those exchanges alone, since the position must be adopted after that call to act.

42

As a preliminary point, it must be held that, as regards the appellants’ arguments concerning the situation in which the institution does not expressly refer to the prior exchanges to illustrate, clarify or, at the very least, state its position in a letter in response to the call to act, as is the case here, those arguments overlap with those developed in the second part of the first ground of appeal and, as the appellants state moreover, in the second ground of appeal and will be examined with those arguments.

43

In addition, the appellants’ arguments concerning the need to adopt a decision, for the purpose of Article 4 of Regulation 2015/1589, overlap with those developed in the third ground of appeal and will be examined in that context.

44

In the first place, the Court of Justice has accepted, as the General Court stated, in essence, in paragraph 34 of the judgment under appeal, that, in order to assess whether an institution of the European Union has defined its position, for the purpose of the second paragraph of Article 265 TFEU, following a call to act which was addressed to that institution by an applicant, exchanges between that applicant and that institution which preceded the adoption of that position and those prior to that call to act may be taken into account (see, to that effect, orders of 16 June 2020, CJ v Court of Justice of the European Union, C‑634/19 P, EU:C:2020:474, paragraphs 30 and 31, and of 5 October 2023, NO v Commission, C‑221/23 P, EU:C:2023:754, paragraphs 49 to 51).

45

In that regard, in so far as the appellants submit that the General Court distorted the findings of the Court of Justice set out in the order of 16 June 2020, CJ v Court of Justice of the European Union (C‑634/19 P, EU:C:2020:474), by claiming that, in paragraph 33 of that order, the Court analysed the wording of the response of the institution concerned to the call to act which was addressed to it, and not the wording of the exchanges which preceded it, that argument cannot succeed. The Court, in that paragraph, merely responded to an argument of the appellant concerning specifically the content of that response.

46

In the second place, in so far as the appellants challenge the position of the General Court which allows for a finding that the EU institution concerned defined its position on the call to act by reference solely to the exchanges which preceded that call to act, it should be noted that, contrary to what the Commission submits, the appellants relied on that complaint, not only at the stage of the reply, but also in their appeal, even though that is clear only from the summary of the grounds of appeal. That complaint is therefore not new and is admissible.

47

The same complaint must, however, be rejected because it is based on an incorrect premiss. The General Court did not find that the Commission had defined its position on the call to act, as regards the contested EFF and EMFF funding, by reference solely to the exchanges which preceded that call to act, since the Court also relied on the content of the letter of 14 February 2023, as is apparent from paragraph 32 of the judgment under appeal, and it held, in paragraph 48 of that judgment, that that letter constituted a definition of a position by the Commission, for the purpose of the second paragraph of Article 265 TFEU.

48

It follows that the first part of the first ground of appeal must be rejected.

49

By the second part of the first ground of appeal, the appellants criticise the General Court, in essence, for having found that the Commission had defined a clear and definitive position, whereas that institution made only a vague formal reference to prior correspondence, the substance of which is not mentioned, which constitutes an infringement of Articles 41 and 47 of the Charter and of the principle of legal certainty.

50

In the first place, it should be noted that it is not apparent from the appellants’ arguments how the reference to prior correspondence, even if it were formal, would prevent the effective exercise of the action for failure to act provided for in Article 265 TFEU.

51

In the second place, although the conditions for admissibility of an action before the Court of Justice must be interpreted in the light of the right to an effective remedy, as guaranteed by Article 47 of the Charter, that article cannot, however, have the effect of altering the conditions for admissibility of an action for failure to act as set out in Article 265 TFEU (order of 8 February 2018, CBA Spielapparate- und Restaurantbetrieb v Commission, C‑508/17 P, EU:C:2018:72, paragraph 20).

52

In so far as the appellants submit, in essence, that the approach of the General Court would prevent a complainant from understanding the reasons which led the institution concerned to reject his or her request and, as the case may be, from effectively challenging that institution’s position, that line of argument is based on the premiss that that complainant understood that his or her request had been rejected by that institution, which defined its position on the call to act addressed to it by that complainant. As the Commission submits, the appellants’ argument stems from a confusion between the requirement to state reasons for an act, referred to in the second paragraph of Article 296 TFEU, and the ‘definition of a position’ for the purpose of the second paragraph of Article 265 TFEU.

53

Furthermore, it cannot be required, in order to determine that the institution concerned took a clear and definitive position, that that institution reproduce systematically, in its reply following the call to act addressed to it, the content of its prior exchanges with the applicant on which it relies in that reply, nor that it refer expressly in that reply to its previous findings in those prior exchanges, in particular where that applicant does not dispute, or even mention in its exchanges with that institution prior to that reply, that it has understood the meaning of those findings.

54

In the present case, it should be noted that, in paragraph 29 of the judgment under appeal, which is not disputed by the appellants in the appeal, the General Court stated that, in the call to act, referring in particular to the complaints and to the letter of 4 April 2022, the appellants had asked the Commission to adopt a decision under Article 4 of Regulation 2015/1589.

55

As the General Court noted in paragraph 14 of the judgment under appeal, which is also not disputed in the appeal, the Commission stated, in the letter of 14 February 2023, that it had again examined in detail the funding received by the Dutch vessels on the basis of the additional information provided by the appellants in the letter of 4 April 2022 and made clear that its decision was based on that information.

56

In that regard, in paragraphs 30 to 32 of the judgment under appeal, which are also not disputed in the appeal, the General Court, as the Commission submits, set out how the prior correspondence between the Commission and the appellants dealt with the call to act and with their arguments, relying inter alia on the fact that some of the reasons in the letter of 14 February 2023 were identical to those in previous correspondence, namely the letter of 9 September 2022. It made clear, in essence, that the Commission had stated in the course of its exchanges with the applicants that it considered that the contested EFF and EMFF funding did not infringe the rules relating to the EFF and the EMFF, as is apparent from the letters of 22 November 2021 and 9 September 2022, and that it was not competent, under Regulation 2015/1589, to adopt a decision relating to that funding.

57

In addition, the General Court noted, in paragraphs 33 to 35 of the judgment under appeal, that although, in the letter of 14 February 2023, the Commission had not expressly refused to adopt a decision under Regulation 2015/1589, nor had it stated that it was not competent to adopt such a decision in respect of the contested EFF and EMFF funding, it had, in that letter, referred to its previous letters of 22 November 2021 and 9 September 2022, and had confirmed, in essence, its position, set out in the preceding paragraph of the present judgment, which had been clearly stated previously.

58

Moreover, the appellants do not challenge the findings in paragraph 41 of the judgment under appeal, that, first, they did not dispute that they ‘did understand, as [was] apparent from their letter of 4 August 2021, that the Commission considered that it lacked competence to adopt’ a decision under Article 4 of Regulation 2015/1589 in respect of the contested EFF and EMFF funding and, second, they set out, in the same letter, the reasons why they considered that the position thus expressed by the Commission was incorrect.

59

It follows that the second part of the first ground of appeal must be rejected.

60

Consequently, the first ground of appeal must be rejected in its entirety.

61

The appellants claim that the General Court distorted the facts in finding that the reference to two items of correspondence prior to that of 14 February 2023 served to clarify a position taken by the Commission in that letter. That letter does not contain, with the exception of the sole and purely formal reference to those two items of correspondence , any other reference to the previous findings made by the Commission. Such a reference is manifestly ambiguous and incidental and cannot be equated, as the General Court held, ‘essentially’ with confirmation of the content of those two letters.

62

In their reply, the appellants make clear that they allege that the General Court erred in its legal characterisation of the facts by classifying the letter of 14 February 2023 as a definition of a position, for the purpose of Article 265 TFEU. That error is based on an incorrect reading of the relevant material in the case file. The General Court manifestly distorted the facts, in paragraph 35 of the judgment under appeal, because the Commission did not at any time reproduce, in that letter, the substance of the correspondence prior to that letter, or imply that it was confirming its content.

63

The Commission contends that the second ground of appeal is in part inadmissible and in part manifestly unfounded.

64

It should be noted that the appellants do not challenge the fact that, in the letter of 14 February 2023, the Commission referred to its correspondence of 22 November 2021 and 9 September 2022, but they contest whether that reference is sufficient, arguing that the Commission should have reproduced the findings set out in that correspondence.

65

The appellants’ argument is based on an incorrect premiss. As is apparent from the analysis of the second part of the first ground of appeal, in particular from paragraph 53 of the present judgment, such a reference to prior exchanges between the institution concerned and the applicant may be sufficient, depending on the circumstances of the case, to define a clear and definitive position of the EU institution concerned, for the purpose of Article 265 TFEU, without it being necessary for the content of that institution’s previous analyses and findings to be systematically reproduced in its response to the call to act.

66

In that regard, it must be stated that, first, the appellants do not submit that the General Court, in paragraph 35 of the judgment under appeal, incorrectly summarised the Commission’s position expressed in the correspondence prior to the letter of 14 February 2023 (see paragraphs 56 and 57 of the present judgment).

67

Second, as stated in paragraph 58 of the present judgment, the appellants do not challenge the findings in paragraph 41 of the judgment under appeal, in particular the fact that they had understood that the Commission considered that it was not competent to adopt a decision under Article 4 of Regulation 2015/1589 as regards the contested EFF and EMFF funding and that they had challenged the merits of the Commission’s position.

68

It follows that the General Court did not err in the legal characterisation of the facts by finding, in paragraph 48 of the judgment under appeal, in essence, that the letter of 14 February 2023 constituted a definition of a position by the Commission, for the purpose of the second paragraph of Article 265 TFEU.

69

Consequently, the second ground of appeal must be rejected, without it being necessary to rule on the plea of inadmissibility raised by the Commission.

70

By way of introduction to their third ground of appeal, the appellants claim that they had, as interested parties, the right to request and receive a decision from the Commission under Article 4 of Regulation 2015/1589. In the absence of such a decision, they state that they formally requested that institution, ‘in accordance with the second paragraph of Article 265 TFEU and Regulation [2015/1589], including in particular Articles 4, 12 and 15 thereof, to adopt the decision provided for in Article 4’, since it is not necessary to demonstrate the existence of State aid within the meaning of Article 107 TFEU for the Commission to have competence under that regulation.

71

The third ground of appeal is composed of two parts.

72

By the first part of the third ground of appeal, the appellants claim that the judgment under appeal is vitiated by a failure to state reasons and, in any event, by an error of law in the assessment of the admissibility of the action for failure to act in so far as the General Court failed to rule on compliance with Regulation 2015/1589.

73

By the first complaint, the appellants submit that the Commission was required to adopt a decision under Regulation 2015/1589 and that the General Court’s approach has the effect of depriving the complainants of the procedural rights provided for by that regulation, and in particular of the right to obtain such a decision. They point out that, although payments made by the Member States under the EFF and the EMFF are, in principle, excluded from the scope of Articles 107 to 109 TFEU, that exclusion applies only in so far as the aid concerned is paid in accordance with the EFF Regulation or the EMFF Regulation respectively. In that regard, they refer to Article 7(2) and (3) of the EFF Regulation and to Article 8(2) and (3) of the EMFF Regulation. It follows, according to the appellants, that, as soon as a doubt exists, the Commission must carry out the examination provided for by Regulation 2015/1589 and adopt a decision, for the purpose of Article 4 of that regulation.

74

By the second complaint, the appellants submit that the General Court erred in law, since neither the pre-closure letter nor any other letter from the Commission can be equated with a formal decision for the purpose of Regulation 2015/1589. According to the appellants, the General Court erred in law by not ruling on the applicability of that regulation to the contested EFF and EMFF funding, on the ground that such a question could be examined only after establishing the admissibility of the action for failure to act, whereas the classification of their complaint under Article 24 of that regulation constituted a preliminary issue essential to assessing that admissibility. In their view, an action relating to a failure to act by the Commission in respect of an aid measure is admissible where the applicant establishes that it is directly and individually concerned by the measure which that institution has failed to adopt.

75

By the third complaint, the appellants criticise the General Court for inconsistency in its analysis of their action as regards, on the one hand, the contested EFF and EMFF funding and, on the other hand, the contested national aid. The General Court was correct to find, in paragraph 63 of the judgment under appeal, that, in the letter of 14 February 2023, the Commission had not relied on the second subparagraph of Article 24(2) of Regulation 2015/1589, which led the General Court to hold that that institution did not define a clear and definitive position on the call to act as regards that aid. According to the appellants, that inconsistency constitutes a failure to state reasons in the judgment under appeal and, in any event, an error of law. That error results in a situation in which the appellants are deprived of their procedural rights and of a formal decision open to challenge, resulting in a breach of the parties’ fundamental right to effective judicial review, guaranteed by Article 47 of the Charter.

76

By the second part of the third ground of appeal, the appellants allege breach of the principle of effective judicial protection, as guaranteed by Article 47 of the Charter.

77

First, they claim that the Commission did not define a clear and definitive position. Since the General Court refrained, in paragraph 35 of the judgment under appeal, from ruling on the applicability of Regulation 2015/1589 to the contested EFF and EMFF funding, the appellants are deprived of their right to obtain a formal decision from the Commission under that regulation, despite their request to that effect.

78

Furthermore, the ‘2021 letters’, to which the letter of 14 February 2023 refers, cannot be regarded as satisfying the requirements of that regulation either, on account of their preparatory and preliminary nature in relation to the decision which the Commission should have adopted under Article 4 of that regulation.

79

Second, the General Court’s approach deprives the appellants of a remedy against the Commission’s inaction. The letter of 14 February 2023 can be regarded only as a preparatory act which is not final and, as such, is not a challengeable act for the purpose of Article 263 TFEU. Such a conclusion cannot be called into question by the case-law of the Court of Justice, according to which the rejection of a complaint, under Article 24(2) of Regulation 2015/1589, may, in certain cases, constitute a challengeable act, since that case-law applies only to acts by which the Commission adopts a definitive position on the complaint lodged, which is not the case here.

80

The Commission contends that the third ground of appeal is in part inadmissible and in part manifestly unfounded.

81

By the first part of the third ground of appeal, the appellants complain, in essence, that the General Court failed to state reasons in the judgment under appeal and, in any event, erred in law in its assessment of the admissibility of the action for failure to act, concerning the contested EFF and EMFF funding, in that it omitted to rule in that regard on compliance with Regulation 2015/1589.

82

By the first and second complaints, which it is appropriate to examine together, the appellants submit, in essence, that the failure to act was not brought to an end because the Commission was required to adopt a decision under Article 4 of Regulation 2015/1589 and they allege, in essence, that the General Court erred in law by not ruling on the applicability of Regulation 2015/1589 to the contested EFF and EMFF funding, on the ground that such a question could be examined only after determining the admissibility of the action for failure to act.

83

It must be stated that the General Court was correct to point out, in paragraph 23 of the judgment under appeal, that the conditions for admissibility of an action for failure to act, laid down in Article 265 TFEU, are not satisfied where the institution called upon to act has defined its position on that request before the action is brought and that the adoption of a measure different from that sought or considered necessary by the persons concerned, such as a duly reasoned refusal to act in accordance with the call to act, constitutes a definition of position putting an end to the failure to act (see, to that effect, judgment of 24 March 2022, Wagenknecht v Commission, C‑130/21 P, EU:C:2022:226, paragraph 31, and order of 11 October 2024, ST v Frontex, C‑62/24 P, EU:C:2024:882, paragraph 20).

84

As stated in the context of the analysis of the second ground of appeal, the General Court found, in essence, that, in the letter of 14 February 2023, read in the light of the exchanges which preceded it, the Commission had confirmed, first, that the contested EFF and EMFF funding did not infringe the rules relating to the EFF and the EMFF and, second, that, as the appellants had understood, it took the view that it lacked competence, under Regulation 2015/1589, to adopt a decision relating to that funding.

85

As is apparent from the analysis of the second ground of appeal, and in particular from paragraph 68 of the present judgment, the General Court did not err in the legal characterisation of the facts in finding that the letter of 14 February 2023 constituted the definition of a position by the Commission, for the purpose of the second paragraph of Article 265 TFEU.

86

It follows that the General Court did not err in law in drawing the conclusion from the existence of that definition of a position that the action for failure to act was inadmissible in so far as it concerned the failure to act in connection with the contested EFF and EMFF funding, since the fact that that definition of a position did not satisfy the appellants, inasmuch as the Commission had not adopted a decision under Article 4 of Regulation 2015/1589, is, for the purpose of ascertaining whether the Commission defined its position, for the purpose of Article 265 TFEU, irrelevant.

87

In that context, the question, relating to the lawfulness of the Commission’s definition of a position, as to whether the Commission was correct or incorrect to consider that it lacked competence, under Regulation 2015/1589, to adopt a decision on the contested EFF and EMFF funding is also irrelevant. Accordingly, the General Court did not err in not ruling on the applicability of Regulation 2015/1589 to the contested EFF and EMFF funding.

88

Furthermore, in so far as the appellants submit that an action relating to a failure to act by the Commission in respect of an aid measure is admissible where the applicant establishes that it is directly and individually concerned by the act which that institution failed to adopt, it suffices to note that such an interpretation is contrary to the clear wording of Article 265 TFEU, from which it is in no way apparent that that situation would mean that the action for failure to act is admissible.

89

The first and second complaints must therefore be rejected.

90

By the third complaint, the appellants criticise the General Court, referring to paragraph 63 of the judgment under appeal, for inconsistency in its analysis of their action as regards, on the one hand, the contested EFF and EMFF funding and, on the other hand, the contested national aid.

91

That complaint must be rejected because it is based on a misreading of the judgment under appeal.

92

The General Court held that the Commission did not define its position on the contested national aid, either in the letter of 14 February 2023 or in its prior correspondence with the appellants. Since the Commission stated that that letter was to be regarded as a letter adopted under the second subparagraph of Article 24(2) of Regulation 2015/1589, the General Court responded to that argument, by stating that it considered the Commission’s argument on that point to be inconsistent. It pointed out in that regard, in paragraph 63 of the judgment under appeal, that the Commission had not relied on that article in that letter and, in paragraph 64 of that judgment, that that institution could not argue both that it lacked the competence to adopt a decision under that regulation in response to the complaints brought before it, and, in the alternative, that the letter of 14 February 2023 should nevertheless be regarded as a letter based on the second subparagraph of Article 24(2).

93

It was therefore not because the Commission had not relied on the second subparagraph of Article 24(2) that the General Court declared the action for failure to act admissible in so far as it related to the failure to act in respect of the contested national aid.

94

Accordingly, the General Court cannot be criticised for inconsistency in its analysis alleged by the appellants.

95

Furthermore, in so far as, by the third complaint, the appellants also allege breach of the parties’ fundamental right to effective judicial review, guaranteed by Article 47 of the Charter, that line of argument overlaps with that relied on in the second part and will be examined in that context.

96

It follows that the first part of the third ground of appeal must be rejected.

97

By the second part of the third ground of appeal, the appellants allege breach of the principle of effective judicial protection guaranteed by Article 47 of the Charter, in essence, on account of the Commission’s failure to adopt an act against which an action for annulment may be brought under Article 263 TFEU and the fact that the General Court failed to rule on the applicability of Regulation 2015/1589 to the contested EFF and EMFF funding.

98

In that regard, in the first place, it is apparent from paragraph 87 of the present judgment that the appellants’ complaint alleging that the General Court erred in not ruling on the applicability of Regulation 2015/1589 to the contested EFF and EMFF funding must be rejected.

99

In the second place, it should be noted that the General Court recalled, in paragraph 23 of the judgment under appeal, that the conditions for admissibility of an action for failure to act, laid down in Article 265 TFEU, are not satisfied where the institution called upon to act has defined its position on that request before the action is brought.

100

In the present case, as is apparent from paragraph 68 of the present judgment, the General Court did not err in the legal characterisation of the facts in finding that, in essence, the letter of 14 February 2023 constituted the definition of a position by the Commission, for the purpose of the second paragraph of Article 265 TFEU.

101

It follows that, by dismissing the action for failure to act as inadmissible, the General Court merely applied to the present case the conditions for admissibility of an action for failure to act, as set out in the case-law referred to by the General Court in paragraph 23 of the judgment under appeal and in paragraph 83 of the present judgment.

102

As stated in paragraph 51 of the present judgment, although the conditions for admissibility of an action before the Court of Justice must be interpreted in the light of the right to an effective remedy, as guaranteed by Article 47 of the Charter, that article cannot, however, have the effect of altering the conditions for admissibility of an action for failure to act as laid down in Article 265 TFEU.

103

Furthermore, the conclusion reached by the General Court regarding the conditions for the admissibility of an action for failure to act is without prejudice to the separate question of whether the Commission’s refusal to act on the complaints could have been the subject of an action for annulment. In that regard, it must be borne in mind that the issue of the conditions for the admissibility of an action for a failure to act is distinct from the issue whether the act adopted by the EU institution to which the request was made, which brings its failure to act to an end, may be the subject of an action for annulment (judgment of 24 March 2022, Wagenknecht v Commission, C‑130/21 P, EU:C:2022:226, paragraph 37 and the case-law cited).

104

Accordingly, the appellants’ argument that bringing an action under Article 263 TFEU against the letter of 14 February 2023 is not possible is ineffective.

105

It follows that the second part of the third ground of appeal must be rejected.

106

Consequently, the third ground of appeal must be rejected in its entirety.

107

In the light of all the foregoing considerations, since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.

108

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

109

Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 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.

110

In the present case, since the appellants have been unsuccessful on their grounds of appeal and the Commission has applied for costs to be awarded against them, they must be ordered to bear their own costs and to pay those incurred by the Commission.

On those grounds, the Court (Eighth Chamber) hereby: