Corte di giustizia UE/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 22 November 2018 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Actions for failure to act — Application for a declaration that the [OSCURATO:PERSONA] failed to act in not defining its position to the substance of a complaint against the [OSCURATO:PERSONA] of Luxembourg) [OSCURATO:PERSONA] C‑412/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 22 June 2018, [OSCURATO:PERSONA], residing in Longuich (Germany), represented by P. McKenna, BL, appellant, the other party to the proceedings being: [OSCURATO:PERSONA], defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of T. von [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Levits and M. Berger (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: G. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By his appeal, [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 10 April 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑810/17, not published, ‘the order under appeal’, EU:T:2018:191) in so far as by that order the [OSCURATO:PERSONA] dismissed his application under [OSCURATO:PERSONA] 265 TFEU, first, for a declaration that the [OSCURATO:PERSONA] had failed to define its position to the substance of a complaint against the [OSCURATO:PERSONA] of Luxembourg and, second, to order the [OSCURATO:PERSONA] to define its position and bring infringement proceedings against the [OSCURATO:PERSONA] of Luxembourg, under [OSCURATO:PERSONA] 258 TFEU, for general interest violations of [OSCURATO:PERSONA] law, in particular, direct discrimination against non-nationals in [OSCURATO:PERSONA] 10bis of the Constitution of that [OSCURATO:PERSONA] and non-transposition and implementation of Directive 2012/29/EU of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing [OSCURATO:PERSONA] 2001/220/JHI (OJ 2012 L 315, p. 57). Background to the dispute 2 By letter of 5 December 2014, sent to the [OSCURATO:PERSONA], [OSCURATO:PERSONA] lodged a complaint against the [OSCURATO:PERSONA] of Luxembourg under [OSCURATO:PERSONA] 258 TFEU for breaches of EU law and of EU fundamental rights. By letter of 14 March 2016, the appellant requested that the [OSCURATO:PERSONA] respond to him within two months in accordance with [OSCURATO:PERSONA] 265 TFEU. 3 In reference to several emails which it sent to [OSCURATO:PERSONA] in response to that complaint, the [OSCURATO:PERSONA] confirmed, by letter of 4 October 2017, that it would not bring an action against the [OSCURATO:PERSONA] of Luxembourg for infringement of EU law on the basis of the information provided in that complaint, and that it would not, in particular, bring any infringement proceedings pursuant to [OSCURATO:PERSONA] 258 TFEU. In addition, the [OSCURATO:PERSONA] made clear that it would not respond further to [OSCURATO:PERSONA] on the matter, since all relevant issues had been analysed and resolved. The proceedings before the [OSCURATO:PERSONA] and the order under appeal 4 [OSCURATO:PERSONA] brought an action on the basis of [OSCURATO:PERSONA] 265 TFEU by application lodged at the Registry of the [OSCURATO:PERSONA] on 12 December 2017. 5 In paragraph 5 of the order under appeal, the [OSCURATO:PERSONA] found that, by his application, the appellant sought, first, a declaration that the [OSCURATO:PERSONA] had failed to act in not bringing infringement proceedings against the [OSCURATO:PERSONA] of Luxembourg under [OSCURATO:PERSONA] 258 TFEU, and, second, that the [OSCURATO:PERSONA] be ordered to bring such proceedings against that [OSCURATO:PERSONA]. 6 In that regard, the [OSCURATO:PERSONA] held, in paragraph 8 of the order under appeal, that the appellant’s claim for a declaration that the [OSCURATO:PERSONA] had infringed the FEU Treaty in failing to bring infringement proceedings against a [OSCURATO:PERSONA] must be rejected as manifestly inadmissible. 7 In addition, in paragraph 11 of the order under appeal, the [OSCURATO:PERSONA] found that the appellant’s claim that that court should order the [OSCURATO:PERSONA] to bring infringement proceedings must be rejected as it was clear that the [OSCURATO:PERSONA] lacked jurisdiction. 8 Consequently, the [OSCURATO:PERSONA] held, in paragraph 12 of the order under appeal, that the action must be dismissed, in part, as manifestly inadmissible and, in part, as manifestly falling outside of its jurisdiction. The form of order sought by the appellant before the [OSCURATO:PERSONA] of Justice 9 By his appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        declare the appeal well founded; –        set aside the order under appeal, in whole or in part; –        declare the action to be admissible; –        declare the action for infringement of the Treaties by the respondent to be admissible; –        in the alternative, refer the case back to the [OSCURATO:PERSONA]; –        make any other order that the [OSCURATO:PERSONA] deems appropriate, and –        order the respondent to pay the costs of the proceedings. The appeal 10 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may, at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 11 That provision should be applied to the present appeal. 12 In support of his appeal, the appellant puts forward four grounds of appeal. The first to third grounds of appeal 13 By his first to third grounds of appeal, directed against paragraph 8 of the order under appeal, the appellant criticises the [OSCURATO:PERSONA], in essence, for having disregarded the fact that his action sought a declaration that the [OSCURATO:PERSONA] had failed, not to bring infringement proceedings against the [OSCURATO:PERSONA] of Luxembourg, but to define its position to the substance of the complaint he lodged against that [OSCURATO:PERSONA]. 14 In that regard, the [OSCURATO:PERSONA] notes that, in paragraph 26 of his application, entitled ‘Conclusions’, the appellant asked the [OSCURATO:PERSONA], first, to order the [OSCURATO:PERSONA] to define its position and to bring infringement proceedings against the [OSCURATO:PERSONA] of Luxembourg, and, second, to order the [OSCURATO:PERSONA] to pay the costs of the proceedings. 15 In addition, it can be inferred from that application, inter alia from paragraphs 1 and 16, that the application also sought a declaration, under [OSCURATO:PERSONA] 265 TFEU, that the [OSCURATO:PERSONA] had failed to define its position to the substance of the complaint lodged with that institution. 16 It is clear from the face of the order under appeal that the [OSCURATO:PERSONA] construed that claim as seeking merely a declaration that the [OSCURATO:PERSONA] had failed to act by not bringing infringement proceedings against the [OSCURATO:PERSONA] of Luxembourg. However, it is clear that the appellant, in paragraph 16 of his application, had expressly emphasised that his claim was for a declaration of the [OSCURATO:PERSONA]’s failure to define its position and not for declining to pursue an infringement procedure. 17 Thus, the [OSCURATO:PERSONA] did not deal with one of the claims put forward by the appellant, which constitutes an error of law (see, by analogy, order of 3 June 2005, Killinger v Germany and Others , C‑396/03 P, EU:C:2005:355, paragraph 11). 18 However, it is settled case-law of the [OSCURATO:PERSONA] of Justice that, if the grounds of a decision of the [OSCURATO:PERSONA] contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 13 September 2017, Pappalardo and Others v [OSCURATO:PERSONA] , C‑350/16 P, EU:C:2017:672, paragraph 57 and the case-law cited). 19 It must therefore be considered whether the [OSCURATO:PERSONA] omission is capable of calling into question the operative part of the order under appeal. 20 As regards the action for failure to act laid down in [OSCURATO:PERSONA] 265 TFEU, it is important to note that individuals can rely on the provisions of the third paragraph of that article only for the purposes of seeking a declaration that an EU institution, body, office or agency has failed to adopt, in breach of the Treaty, measures, other than recommendations or opinions, of which those individuals are the potential addressees or which are of direct, or where relevant direct and individual, concern to them (order of 5 September 2013, H-Holding v [OSCURATO:PERSONA] , C‑64/13 P, not published, EU:C:2013:557, paragraph 15 and the case-law cited). 21 In addition, as is clear from the wording of [OSCURATO:PERSONA] 258 TFEU, in the context of proceedings governed by that article, the only measures which the [OSCURATO:PERSONA] may adopt are measures addressed to [OSCURATO:PERSONA] (order of 4 June 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑602/14 P, not published, EU:C:2015:376, paragraph 23 and the case-law cited). 22 It is obvious that to define its position to the substance of the appellant’s complaint, as requested by the appellant, would mean addressing to him a reasoned opinion on the matter, inter alia, of the conformity with EU law of [OSCURATO:PERSONA] 10a of the Constitution of the [OSCURATO:PERSONA] of Luxembourg and of the transposition and implementation by that [OSCURATO:PERSONA] of Directive 2012/29, whereas an individual who has lodged a complaint is himself not the addressee of any measure adopted pursuant to the procedure on the basis of [OSCURATO:PERSONA] 258 TFEU and the condition laid down in the third paragraph of [OSCURATO:PERSONA] 265 TFEU, set out in paragraph 20 of the present order, has not been satisfied. 23 In those circumstances, the appellant’s claim at first instance, seeking a declaration that the [OSCURATO:PERSONA] had failed to act by not defining its position to the substance of a complaint lodged against the [OSCURATO:PERSONA] of Luxembourg, was manifestly inadmissible and the operative part of the order under appeal is not called into question by the fact that the [OSCURATO:PERSONA] did not consider that claim. 24 If only for the sake of completeness it must be found that, assuming that that claim was admissible from a purely procedural point of view, the claim would nevertheless necessarily have been dismissed as manifestly unfounded. As is apparent from ample correspondence between the appellant and the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] expressed a clear and final point of view on the complaint in question. Thus, that institution did define its position; the fact that the position defined by the institution concerned does not satisfy the appellant is of no relevance (see order of 8 February 2018, CBA Spielapparate- und Restaurantbetrieb v [OSCURATO:PERSONA] , C‑508/17 P, not published, EU:C:2018:72, paragraph 23 and the case-law cited). 25 The first to third grounds of appeal raised by the appellant before the [OSCURATO:PERSONA] must therefore be dismissed as manifestly unfounded. The fourth plea in law 26 By his fourth ground of appeal, the appellant criticises the [OSCURATO:PERSONA] for having erred in law by holding, in paragraph 12 of the order under appeal, that his action was manifestly outside the jurisdiction of the [OSCURATO:PERSONA]. The appellant submits that the [OSCURATO:PERSONA] has jurisdiction to hear an action brought under the third paragraph of [OSCURATO:PERSONA] 265 TFEU, such as that brought by the appellant at first instance. 27 In that regard, it should be made clear that in so far as the [OSCURATO:PERSONA] held, in that paragraph of the order under appeal, that ‘the action must be dismissed ... in part as it manifestly falls outside the jurisdiction of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA]’, the [OSCURATO:PERSONA] was referring to the appellant’s claim that the [OSCURATO:PERSONA] should be ordered to bring infringement proceedings, as examined in paragraphs 9 to 11 of that order. 28 However, first, as the appellant concedes himself in paragraph 22 of his appeal, the [OSCURATO:PERSONA] does not have jurisdiction to issue directions to the [OSCURATO:PERSONA]. Second, it is not apparent from the order under appeal that the [OSCURATO:PERSONA] called into question its jurisdiction to rule at first instance on actions under [OSCURATO:PERSONA] 265 TFEU. 29 The fourth ground of appeal, being based on a clear misreading of the order under appeal, must therefore be dismissed as manifestly unfounded. 30 Accordingly, the appeal must be dismissed in its entirety as manifestly unfounded. Costs 31 [OSCURATO:PERSONA] 137 of the Rules of Procedure, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. As this order has been adopted without the appeal having been notified to the defendant at first instance, the appellant must be ordered to bear his own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed as manifestly unfounded. 2. [OSCURATO:PERSONA] is ordered to bear his own costs. Luxembourg, 22 November 2018. A. [OSCURATO:PERSONA] T. von [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.