# C_2015073EN.01001401.xml

| 2.3.2015 | EN | Official Journal of the European Union | C 73/14 |
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2.3.2015

EN

Official Journal of the European Union

C 73/14

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Appeal brought on 11 December 2014 by Mirelta Ingatlanhasznosító Kft. against the order of the General Court (5th Chamber) delivered on 19 November 2014 in Case T-430/14 Mirelta Ingatlanhasznosító Kft. v European Commission and European Ombudsman

(Case C-576/14 P)

(2015/C 073/20)

Language of the case: Hungarian

Parties

Appellant: Mirelta Ingatlanhasznosító Kft. (represented by: K.D. Pap, lawyer)

Other party to the proceedings: European Commission, European Ombudsman

Form of order sought

| — | Set aside the order under appeal and refer the case back to the General Court |
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Set aside the order under appeal and refer the case back to the General Court

Pleas in law and main arguments

Principal ground of appeal:

According to the appellant, the General Court misinterpreted and incorrectly reformulated the claims in its application and also misinterpreted the pleas relied on in support in holding that it had brought an action against the Commission on the ground of ‘the Commission’s refusal to bring infringement proceedings’.

The appellant states that its application asked the General Court to ‘
  oblige the European Commission to conduct a procedure which was in accordance with EU law and guaranteed the effectiveness of EU law
  ’.

On that basis the appellant brought an action against the Commission arguing that the manifest breach of its right to fair administration entailed a breach of a fundamental right guaranteed by the Charter of Fundamental Rights of the European Union. It argues that the Commission thereby not only deprived it of its right to fair administration but also of its right to an effective judicial procedure, in that it conducted an unfair procedure, did not carry out an analysis which was in accordance with EU law and did not guarantee the effectiveness of that law (inter alia the Charter on Fundamental Rights).

The appellant considers that the interpretation of its application by the General Court implies that it follows directly from the Commission’s procedure in accordance with EU law that, in the case of an objective review under EU law, the Commission was obliged to open infringement proceedings, and the appellant could not demand that it do so.

By contrast, the appellant takes the view that it is clear from the provisions of the Charter of Fundamental Rights, which have the same binding force as the Treaties, that it is only after making a fair assessment that the Commission may decide, on the basis of the case-law, whether it should open infringement proceedings. Consequently, fair administration is a fundamental requirement and the Commission may only exercise its power to assess — which, in the opinion of the appellant, may not lead to failure to observe fundamental rights — following fair administration, given that, otherwise (as in the present case) it may not even be in a situation where there is anything to assess.

Ground of appeal in the alternative: EU law does not, even indirectly, provide for any discretion for the Commission to grant an exemption from the obligation of the Member States to apply secondary legislation and the Regulation.

The view of the General Court on the Commission’s discretion, set out in the grounds of the judgment — paragraph 6 — breaches, from various points of view, binding and unequivocal provisions of the Treaties, which are not, therefore, subject to assessment by the Commission. In the view of the appellant, the Commission is not, moreover able to assess the obligation to ensure the effectiveness of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union.

In its application, the appellant did not at any point contest the Commission’s discretion, but, rather, in the actual substance of the application, complained that it was not possible for the Commission to exercise its discretion within the meaning of the settled case-law relied on by the General Court, given that it is only appropriate to speak of the exercise of discretion if the assessment itself is fair and if there is something which can reasonably be assessed.

The Treaty, which is a higher-ranking norm than the case-law, provides that the Commission is to guarantee the effectiveness of EU law.

In the present case, the agent of the European Union (European Union body) which made the assessment has deprived the appellant of its fundamental right to assess and itself to decide on questions which cannot in themselves be the subject of assessment, instead of the Commission’s doing so, in advance and in an unfair manner; that is to say, rather than exercising its discretion, the agent itself decided on the appellant’s case on the basis of false findings of fact.

The appellant considers that neither the national court nor the European Commission can assess whether or not, where Article 101 TFEU is applicable, Council Regulation (EC) No 1/2003 on the application of that article must be applied, and nor can the Commission decide that the refusal to apply a regulation of the European Union (unequivocal case of failure to apply) is equivalent to the concept of ‘application in another way’. In itself, that finding alone demonstrates the breach of the right of the appellant to fair administration and, consequently, the failure to provide an effective judicial procedure and a lawful judge.

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