The recent EU General Court judgment in F91 Diddeléng v Commission illustrates the importance of exercising all available procedures at the administrative level to ensure that one has a challengeable decision before formulating a claim before the General Court. 

A recent judgment of the EU General Court (Case T-341/10, F91 Diddeléng v Commission, 16 April 2012) highlights a deadly pitfall when making complaints to the European Commission.  If the complaint is a general complaint about a Member State’s failure to comply with the EU Treaty, the complainant will generally have no standing in court to challenge the Commission’s final decision in the matter.  On the other hand, if the complaint is made pursuant to a specific regulation that confers the right to make a complaint in certain circumstances, the complainant will often have a better chance of establishing standing to challenge the Commission’s final decision.

In the case in question, F91, a Luxembourg football club, complained to the European Commission about a football federation’s rule that affected the employment of foreign players.  F91 based its complaint on both EU competition law and EU law on the free movement of workers.  The Commission pursued the matter under its general powers to require EU Member States to comply with their obligations under the EU Treaty.  As a result, the Commission persuaded Luxembourg to modify the offending aspects of its law, whereupon the Commission closed the matter.  The Luxembourg football club deemed the changes insufficient and challenged the Commission’s decision before the General Court.

The General Court found that F91 lacked standing because its challenge was directed solely at a Commission decision in relation to a Member State’s failure to comply with the EU Treaty.  The court hinted that if F91 had summoned the Commission to adopt a decision on the antitrust aspects of the case, then F91 would have had standing to challenge that decision or, if no decision was forthcoming, to challenge the Commission’s failure to act.

The case illustrates the importance of exercising all available procedures at the administrative level to ensure that one has a challengeable decision before formulating a claim before the EU General Court.  This applies not only to competition law matters, but also state aid and anti-dumping, among others.