Corte di giustizia UE n. 2006/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 1 October 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] — Action for annulment — Actions for failure to act — Refusal of the [OSCURATO:PERSONA] to bring infringement proceedings under [OSCURATO:PERSONA] 258 TFEU against a [OSCURATO:PERSONA]) [OSCURATO:PERSONA] C‑284/19 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 3 April 2019, [OSCURATO:PERSONA], residing in Kingston upon Thames ([OSCURATO:PERSONA]), represented by Mr E. Lock, Solicitor, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA], defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Juhász (Rapporteur) and M. Ilešič, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By his appeal, [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] of Justice to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 25 March 2019, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑731/18, not published, ‘the order under appeal’, EU:T:2019:209), by which the [OSCURATO:PERSONA] dismissed his application for annulment of the [OSCURATO:PERSONA] decisions of 22 and 25 October 2018, bearing the references Ares (2018) 5364821 and Ares (2018) 5488682, by which it refused to bring infringement proceedings against the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 258 TFEU (‘the contested decisions’), and, pursuant to [OSCURATO:PERSONA] 265 TFEU, to declare that, by failing to bring such proceedings, the [OSCURATO:PERSONA] has failed to fulfil its obligation to act. Facts and procedure before the [OSCURATO:PERSONA] 2 It is apparent from the appeal that, by his actions, [OSCURATO:PERSONA] sought a declaration, in essence, that the [OSCURATO:PERSONA], a national alternative dispute resolution entity, does not afford to those who bring a complaint before it their fundamental right to a fair hearing provided for, inter alia, under [OSCURATO:PERSONA] 9 of Directive 2013/11/EU of the [OSCURATO:PERSONA] and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ 2013 L 165, p. 63), and that the [OSCURATO:PERSONA] courts have failed to afford [OSCURATO:PERSONA] a fair and impartial hearing as to his action concerning the incompatibility of a procedural rule applicable to the services of the [OSCURATO:PERSONA] with [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 3 [OSCURATO:PERSONA] request for infringement proceedings to be brought against the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] adopted the contested decisions by which it refused to bring such proceedings against that [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 258 TFEU. 4 By application lodged at the Registry of the [OSCURATO:PERSONA] on 14 December 2018, [OSCURATO:PERSONA] brought an action for (i) annulment of those decisions, (ii) a finding that the [OSCURATO:PERSONA], by failing to bring infringement proceedings under [OSCURATO:PERSONA] 258 TFEU against the [OSCURATO:PERSONA], failed to fulfil its obligation to act and, finally (iii) an order obliging the [OSCURATO:PERSONA] to deliver a reasoned opinion and, ultimately, to initiate such proceedings against that [OSCURATO:PERSONA]. The order under appeal 5 As can be seen from points 4 and 5 of the order under appeal, the [OSCURATO:PERSONA], considering that it was sufficiently informed by the documents in the file, decided, pursuant to [OSCURATO:PERSONA] 126 of its Rules of Procedure, to rule on [OSCURATO:PERSONA] action without taking further steps in the proceedings. It stated, in point 19 thereof, that there was therefore no need to rule on the request to adjudicate under an accelerated procedure. 6 With regard to the first ground of appeal, seeking the annulment of the contested decisions, the [OSCURATO:PERSONA] recalled, in point 7 of the order under appeal, that individuals are not entitled to bring proceedings against a refusal by the [OSCURATO:PERSONA] to institute proceedings against a [OSCURATO:PERSONA] for failure to fulfil its obligations. It also recalled, in point 8 of that order, that when, as in the case before it, a decision of the [OSCURATO:PERSONA] is negative, that decision must be appraised in the light of the request to which it constitutes a reply. 7 After having referred, in point 9 of that order, to the substance of the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, the [OSCURATO:PERSONA] stated, in point 10 thereof, that, in an action for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, the only measures which the [OSCURATO:PERSONA] may be required to adopt are measures addressed to [OSCURATO:PERSONA] and that it is clear from the scheme of [OSCURATO:PERSONA] 258 TFEU that neither a reasoned opinion, which is merely a preliminary stage after which, if appropriate, an action for failure to fulfil obligations may be lodged before the [OSCURATO:PERSONA] of Justice, nor referral to the [OSCURATO:PERSONA] of Justice by the actual lodging of such an action, can constitute acts of direct concern to natural or legal persons, so that individuals are not entitled to bring proceedings against a refusal by the [OSCURATO:PERSONA] to bring proceedings against a [OSCURATO:PERSONA] for failure to fulfil obligations. 8 Consequently, the [OSCURATO:PERSONA] rejected the first ground of appeal as being manifestly inadmissible. 9 With regard to the second ground of appeal, concerning the [OSCURATO:PERSONA] failure to act, the [OSCURATO:PERSONA], in point 13 of the order under appeal, pointed out, first, that an action for failure to act is inadmissible where it is brought by a natural or legal person for a declaration that, by not bringing proceedings against a [OSCURATO:PERSONA] for failure to fulfil obligations, the [OSCURATO:PERSONA] has infringed the TFEU. On the other hand, it noted that natural or legal persons may rely on the third paragraph of [OSCURATO:PERSONA] 265 TFEU only in order to challenge the failure of an institution, body, office or agency of the [OSCURATO:PERSONA], in breach of the TFEU, to adopt measures, other than recommendations or opinions, whose lawfulness they are entitled to contest by bringing an action for annulment. 10 In those circumstances, the [OSCURATO:PERSONA] held that [OSCURATO:PERSONA] request for a declaration that the [OSCURATO:PERSONA] infringed the TFEU by not bringing infringement proceedings against a [OSCURATO:PERSONA] must be rejected as manifestly inadmissible. 11 Finally, as to the third ground of appeal, concerning the direction obliging the [OSCURATO:PERSONA] to deliver a reasoned opinion and, ultimately, to bring proceedings under [OSCURATO:PERSONA] 258 TFEU against the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] recalled, in point 16 of the order under appeal, that, when reviewing legality under Articles 263 and 265 TFEU, the [OSCURATO:PERSONA] has no jurisdiction to issue directions to the institutions, bodies or agencies of the [OSCURATO:PERSONA]. 12 Consequently, since it manifestly lacks jurisdiction to issue such directions, the [OSCURATO:PERSONA] dismissed the third ground of appeal and, consequently, the action in its entirety. The form of order sought by the appellant 13 By his appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        refer the case back to the [OSCURATO:PERSONA]; –        order that the [OSCURATO:PERSONA] deliver to the [OSCURATO:PERSONA], as an interim measure, a reasoned opinion setting out its position on the infringements of EU law invoked in his complaint; –        authorise him to apply to the [OSCURATO:PERSONA] to issue further directions to the [OSCURATO:PERSONA], and –        order the [OSCURATO:PERSONA] to pay the costs. Procedure before the [OSCURATO:PERSONA] 14 By separate document submitted when lodging his appeal, [OSCURATO:PERSONA] requested that an expedited procedure be applied in the present case, so that it could be closed by 12 April 2019 at the latest or by the date to which the period provided for in [OSCURATO:PERSONA] 50 TEU may be extended. By letter dated 29 May 2019, that request was reiterated, seeking a decision on the present appeal before 31 October 2019 and, should the case be referred back to it, for the [OSCURATO:PERSONA] to decide on it before that date. 15 Since this order definitively closes the proceedings before 31 October 2019, there is no need to adjudicate on those applications. The appeal 16 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the 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. 17 That provision must be applied in the present case. 18 By his first ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] distorted his initial complaint to the [OSCURATO:PERSONA] of 13 July 2018 and his subsequent observations addressed to the [OSCURATO:PERSONA] on 9 October 2018, since, in those documents, he had not expressly requested that infringement proceedings be brought against the [OSCURATO:PERSONA]. In his appeal, [OSCURATO:PERSONA] states that, by his complaint, he was only asking the [OSCURATO:PERSONA] to examine whether the [OSCURATO:PERSONA] was infringing EU law. 19 From the outset, it should be noted that, in his application at first instance seeking annulment of the contested decisions on the ground, inter alia, that the [OSCURATO:PERSONA] did not issue a reasoned opinion against the [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not set out his position that, in this particular case, the issuing of such a reasoned opinion would not be part of the infringement proceedings. 20 Therefore, since, under the TFEU system, the issuing of the reasoned opinion is part of the infringement proceedings, it cannot be argued that the [OSCURATO:PERSONA] distorted the appellant’s position by finding that he criticised the [OSCURATO:PERSONA] for not having delivered a reasoned opinion within the meaning of [OSCURATO:PERSONA] 258 TFEU. 21 Consequently, the first ground of appeal must be rejected as being manifestly unfounded. 22 By his second ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] misinterpreted [OSCURATO:PERSONA] 263 TFEU by stating that individuals are not entitled to challenge a [OSCURATO:PERSONA] refusal to bring infringement proceedings against a [OSCURATO:PERSONA]. While accepting that the [OSCURATO:PERSONA] is not required under [OSCURATO:PERSONA] 258 TFEU to bring such proceedings, but that, in that respect, it enjoys discretionary powers excluding the right of individuals to require that institution to adopt a specific position, [OSCURATO:PERSONA] argues, with reference to paragraph 49 of the judgment of 14 September 1995 in [OSCURATO:PERSONA] T‑571/93 Lefebvre and Others v [OSCURATO:PERSONA] (EU:T:1995:163), that the courts of the [OSCURATO:PERSONA] may review the lawfulness of the exercise of that discretionary power. In addition, reasoned opinions and decisions not to issue a reasoned opinion should be considered as acts addressed to complainants who have raised with the [OSCURATO:PERSONA] a breach of EU law by a [OSCURATO:PERSONA] and it should be recognised that any complainant is directly and individually concerned by such acts. 23 With regard to paragraph 49 of the judgment of 14 September 1995 in [OSCURATO:PERSONA] T‑571/93 Lefebvre and Others v [OSCURATO:PERSONA] (EU:T:1995:163), relied on by [OSCURATO:PERSONA], it should be noted that, in that paragraph, the [OSCURATO:PERSONA] indicated that ‘[it] is … settled case-law that, where the assessment of a complex economic situation is involved, the [OSCURATO:PERSONA] has a wide discretion and that, in reviewing the exercise of such a power, the [OSCURATO:PERSONA] must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether that authority did not clearly exceed the bounds of its discretion.’ 24 However, that paragraph was part of the examination of the [OSCURATO:PERSONA] possible non-contractual liability and specifically concerned the alleged unlawful nature of the [OSCURATO:PERSONA] decisions taken in the field of common commercial policy. That paragraph cannot therefore be applied to the present case. 25 On the other hand, the paragraphs of the judgment of 14 September 1995 in [OSCURATO:PERSONA] T‑571/93, Lefebvre and Others v [OSCURATO:PERSONA] (EU:T:1995:163), in which the [OSCURATO:PERSONA] ruled on the [OSCURATO:PERSONA] alleged failure to bring infringement proceedings against the [OSCURATO:PERSONA], are applicable in the present case. In the proceedings leading to that judgment, it was submitted before the [OSCURATO:PERSONA] that, by preventing imports of bananas from African, Caribbean and Pacific states, with the exception of quota goods from Côte d’Ivoire and Cameroon, that [OSCURATO:PERSONA] infringed certain provisions of the EC Treaty and that, by tolerating that infringement, the [OSCURATO:PERSONA] failed to fulfil its obligations under [OSCURATO:PERSONA] 169 of the EC Treaty. 26 With regard to that provision, the [OSCURATO:PERSONA] recalled, in paragraph 60 of the judgment of 14 September 1995 in [OSCURATO:PERSONA] T‑571/93, Lefebvre and Others v [OSCURATO:PERSONA] (T‑571/93, EU:T:1995:163), that it is settled case-law that the [OSCURATO:PERSONA] is not bound to commence proceedings under that provision, but has in that regard a discretion which excludes the right for individuals to require it to adopt a specific position. [OSCURATO:PERSONA] added, in paragraph 61 of that judgment, that, in the absence of such an obligation to bring proceedings under [OSCURATO:PERSONA] 169 of the EC Treaty, the [OSCURATO:PERSONA] decision not to institute infringement proceedings was therefore consistent with the EC Treaty. 27 In addition, the [OSCURATO:PERSONA] has repeatedly held that individuals are not entitled to challenge a [OSCURATO:PERSONA] refusal to bring infringement proceedings against a [OSCURATO:PERSONA] (order of 15 December 2011, Altner v [OSCURATO:PERSONA] , C‑411/11 P, not published, EU:C:2011:852, paragraph 8 and the case-law cited). 28 Similarly, the [OSCURATO:PERSONA] pointed out that no general principle of EU law requires an individual to be entitled, before courts of the [OSCURATO:PERSONA], to challenge the [OSCURATO:PERSONA] refusal to bring an action against a [OSCURATO:PERSONA] on the basis of [OSCURATO:PERSONA] 258 TFEU (order of 14 July 2011, [OSCURATO:PERSONA] and ATC Petition v [OSCURATO:PERSONA] , C‑111/11 P, not published, EU:C:2011:491, paragraph 16 and the case-law cited). 29 It is in accordance with that case-law that the [OSCURATO:PERSONA] found that the measures which the [OSCURATO:PERSONA] may be required to adopt in the context of proceedings under [OSCURATO:PERSONA] 258 TFEU are addressed only to the recipient [OSCURATO:PERSONA]. 30 Moreover, as is apparent from the case-law referred to in point 10 of the order under appeal and contrary to [OSCURATO:PERSONA] contention, natural or legal persons who have lodged complaints with the [OSCURATO:PERSONA], alleging infringement of EU law by a [OSCURATO:PERSONA], cannot be regarded as directly and individually concerned by the measures which the [OSCURATO:PERSONA] may have to adopt in the context of proceedings under [OSCURATO:PERSONA] 258 TFEU. 31 Consequently, by holding, in point 11 of the order under appeal, that, according to the case-law recalled in points 7 and 10 of that order, [OSCURATO:PERSONA] was not entitled to bring proceedings against the [OSCURATO:PERSONA] refusal to bring proceedings against the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 258 TFEU, the [OSCURATO:PERSONA] did not commit any error of law. 32 The second ground of appeal must therefore be rejected as manifestly unfounded. 33 By his third ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] erred in law by not finding that the [OSCURATO:PERSONA] had failed to act, within the meaning of [OSCURATO:PERSONA] 265 TFEU, through its failure to issue a reasoned opinion against the [OSCURATO:PERSONA] under the first paragraph of [OSCURATO:PERSONA] 258 TFEU. [OSCURATO:PERSONA] argues that since, in the present case, the [OSCURATO:PERSONA] decided to examine the question of bringing infringement proceedings, it necessarily acknowledged the [OSCURATO:PERSONA] infringement of EU law and was therefore required to deliver a reasoned opinion. 34 It should be recalled that, according to settled case-law, notably in the judgment of 14 February 1989, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (247/87, EU:C:1989:58), an action for failure to act brought by a natural or legal person is inadmissible if it seeks a declaration that, by not bringing infringement proceedings against a [OSCURATO:PERSONA], the [OSCURATO:PERSONA] has failed to act, in breach of the Treaty. 35 In addition, it is apparent from paragraphs 58 and 59 of the judgment of 26 November 1996 in [OSCURATO:PERSONA] C‑68/95, T. Port (EU:C:1996:452) that natural or legal persons may rely on the third paragraph of [OSCURATO:PERSONA] 265 TFEU only in order to challenge the failure of an institution, body, office or agency of the [OSCURATO:PERSONA], in breach of the TFEU, to adopt measures, other than recommendations or opinions, whose lawfulness they are entitled to contest by bringing an action for annulment. 36 It must be noted that in the present case the [OSCURATO:PERSONA] correctly applied that case-law, which is recalled in point 13 of the order under appeal, and that it did not commit any error of law in holding that [OSCURATO:PERSONA] request for a declaration that the [OSCURATO:PERSONA] infringed the TFEU by failing to bring infringement proceedings against a [OSCURATO:PERSONA] is clearly inadmissible. 37 That finding cannot be called into question by the arguments presented in the appeal. 38 Accordingly, even if, as [OSCURATO:PERSONA] maintains, following his complaint, the [OSCURATO:PERSONA] were of the opinion that the [OSCURATO:PERSONA] was in breach of EU law, that institution would not have been obliged, in such a case, to bring the proceedings provided for in [OSCURATO:PERSONA] 258 TFEU either. It follows from the scheme of that article that the [OSCURATO:PERSONA] is not required to issue a reasoned opinion when it considers that a [OSCURATO:PERSONA] has failed to fulfil one of its obligations under the Treaties, nor subsequently to refer the matter to the [OSCURATO:PERSONA] for a declaration of such failure. Accordingly, if a [OSCURATO:PERSONA] does not comply with a reasoned opinion within the prescribed time limit, the [OSCURATO:PERSONA] may, but is not required, to bring the matter before the [OSCURATO:PERSONA] of Justice in order to obtain a declaration that the [OSCURATO:PERSONA] has failed to fulfil its obligations (see, to that effect, order of 14 July 2011, [OSCURATO:PERSONA] and ATC Petition v [OSCURATO:PERSONA] , C‑111/11 P, not published, EU:C:2011:491, paragraphs 12 and 13 and the case-law cited). 39 The third ground of appeal is therefore clearly unfounded. 40 By his fourth ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] erred in law in that it did not require the [OSCURATO:PERSONA] to issue a reasoned opinion under the first paragraph of [OSCURATO:PERSONA] 258 TFEU. He also submits that the orders referred to in point 16 of the order under appeal are inapplicable in the present case and that, given the [OSCURATO:PERSONA] failure to act in the present case, the Courts of the [OSCURATO:PERSONA] may adopt interim measures under [OSCURATO:PERSONA] 279 TFEU. 41 In that respect, it is sufficient to note that it follows from the case-law of the [OSCURATO:PERSONA] of Justice that neither the [OSCURATO:PERSONA] nor the [OSCURATO:PERSONA] of Justice has jurisdiction to issue directions to the institutions, bodies or agencies of the [OSCURATO:PERSONA] in proceedings commenced under Articles 263 and 265 TFEU (see, to that effect, order of 24 November 2016, Petraitis v [OSCURATO:PERSONA] , C‑137/16 P, not published, EU:C:2016:904, paragraphs 31 and 32 and the case-law cited). 42 Furthermore, the order of 24 November 2016, Petraitis v [OSCURATO:PERSONA] (C‑137/16 P, not published, EU:C:2016:904), to which the [OSCURATO:PERSONA] referred in point 16 of the order under appeal, was delivered by the [OSCURATO:PERSONA] of Justice in appeal proceedings, in which the appellant specifically sought the annulment of an order of the [OSCURATO:PERSONA], by which it dismissed his action for a declaration that the [OSCURATO:PERSONA] had failed to act as a result of its failure to bring infringement proceedings under [OSCURATO:PERSONA] 258 TFEU against a [OSCURATO:PERSONA] and to issue directions to the [OSCURATO:PERSONA] for it to take the necessary measures in respect of that [OSCURATO:PERSONA]. 43 Consequently, the relevance of that order cannot be called into question in the present case. 44 It follows that the fourth ground of appeal is manifestly unfounded. 45 In those circumstances, the appeal must be dismissed in its entirety as manifestly unfounded. Costs 46 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, 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] shall pay his own costs. Luxembourg, 1 October 2019. A. [OSCURATO:PERSONA] C. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.