# C_2016251EN.01001101.xml

| 11.7.2016 | EN | Official Journal of the European Union | C 251/11 |
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11.7.2016

EN

Official Journal of the European Union

C 251/11

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Appeal brought on 25 April 2016 by Ante Šumelj and others against the judgment of the General Court (Second Chamber) delivered on 26 February 2016 in Joined Cases T-546/13, T-108/14 and T-109/14 Ante Šumelj and Others v European Commission

(Case C-239/16 P)

(2016/C 251/14)

Language of the case: Croatian

Parties

Parties

Appellants: Ante Šumelj, Dubravka Bašljan, Đurđica Crnčević, Miroslav Lovreković, Drago Burazer, Nikolina Nežić, Blaženka Bošnjak, Bosiljka Grbašić, Tea Tončić, Milica Bjelić, Marijana Kruhoberec, Davor Škugor, Ivan Gerometa, Kristina Samardžić, Sandra Cindrić, Sunčica Gložinić, Tomislav Polić, Vlatka Pižeta (represented by: M. Krmek, odvjetnik)

Appellants:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| — | Uphold the claims made in the application and in the appeal; |
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Uphold the claims made in the application and in the appeal;

| — | Order the other party to the proceedings to pay the appellants’ costs at first instance and on appeal. |
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Order the other party to the proceedings to pay the appellants’ costs at first instance and on appeal.

Pleas in law and main arguments

Pleas in law and main arguments

In their analysis of the judgment of the General Court, the appellants rely on various pleas in law:

| 1. | The appellants submit that the General Court erred in law to their detriment in not declaring that the Commission had failed to meet its obligation to monitor the application of the Treaty of Accession of the Republic of Croatia to the European Union as regards the establishment of the profession of public enforcement officer in the legal order of the Republic of Croatia in accordance with Article 36 of the Act of Accession, which expressly states that: ‘The Commission shall closely monitor all commitments undertaken by Croatia in the accession negotiations, including those which must be achieved before or by the date of accession.’ The Commission’s monitoring focused in particular on commitments undertaken by Croatia in the area of the judiciary and fundamental rights (Annex VII). |
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1.

The appellants submit that the General Court erred in law to their detriment in not declaring that the Commission had failed to meet its obligation to monitor the application of the Treaty of Accession of the Republic of Croatia to the European Union as regards the establishment of the profession of public enforcement officer in the legal order of the Republic of Croatia in accordance with Article 36 of the Act of Accession, which expressly states that: ‘The Commission shall closely monitor all commitments undertaken by Croatia in the accession negotiations, including those which must be achieved before or by the date of accession.’ The Commission’s monitoring focused in particular on commitments undertaken by Croatia in the area of the judiciary and fundamental rights (Annex VII).

| 2. | The General Court erred in law in stating, in paragraph 57 of the judgment under appeal (contrary to what was set out in paragraph 52 thereof), that it could not be inferred from any of the commitments in Annex VII of the Act of Accession relied on by the appellants that the Republic of Croatia was obliged to establish the profession of public enforcement officer, nor could it be inferred, consequently, that the Commission was obliged to use the measures provided for in Article 36 of the Act of Accession for the purpose of preventing the repeal of the Law on public enforcement officers.
  The negotiations between the Republic of Croatia and the European Union were lengthy and, by contrast with the other chapters, Chapter 23 was the last and most difficult and, in accordance with the good practices of the European Union, dealt with the political criteria on which the accession of the Republic of Croatia to the European Union was made conditional. The negotiations were concluded on 30 June 2011, after the Croatian Government submitted to the Presidency of the European Union, on 12 May 2011, a report on the fulfilment of the commitments in Chapter 23. In that report, the Republic of Croatia undertook 10 specific commitments in relation to the Treaty of Accession (Article 36 of the Act of Accession) and undertook to fulfil them. Commitment No 1 and Commitment No 3 (relating to the introduction of public enforcement officers), to the provisions of which the appellants refer in the proceedings, expressly oblige the Republic of Croatia to introduce public enforcement officers. |
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2.

The General Court erred in law in stating, in paragraph 57 of the judgment under appeal (contrary to what was set out in paragraph 52 thereof), that it could not be inferred from any of the commitments in Annex VII of the Act of Accession relied on by the appellants that the Republic of Croatia was obliged to establish the profession of public enforcement officer, nor could it be inferred, consequently, that the Commission was obliged to use the measures provided for in Article 36 of the Act of Accession for the purpose of preventing the repeal of the Law on public enforcement officers.

The negotiations between the Republic of Croatia and the European Union were lengthy and, by contrast with the other chapters, Chapter 23 was the last and most difficult and, in accordance with the good practices of the European Union, dealt with the political criteria on which the accession of the Republic of Croatia to the European Union was made conditional. The negotiations were concluded on 30 June 2011, after the Croatian Government submitted to the Presidency of the European Union, on 12 May 2011, a report on the fulfilment of the commitments in Chapter 23. In that report, the Republic of Croatia undertook 10 specific commitments in relation to the Treaty of Accession (Article 36 of the Act of Accession) and undertook to fulfil them. Commitment No 1 and Commitment No 3 (relating to the introduction of public enforcement officers), to the provisions of which the appellants refer in the proceedings, expressly oblige the Republic of Croatia to introduce public enforcement officers.

| 3. | Furthermore, the General Court erred in law (in breach of the principle of legal certainty) in stating, in paragraphs 47 to 51 of the judgment under appeal, that Commitment No 1 did not refer to a specific judicial reform strategy and action plan in force in the period between the finalisation of the negotiations and the repeal of the laws that had regulated the profession of public enforcement officer. The appellants claim that to refer to another judicial reform strategy to which the Commission had referred subsequently in its documents and not to the Judicial Reform Strategy 2011 and the Action Plan 2011, which obliged the Republic of Croatia to introduce the role of public enforcement officer, would create a dangerous precedent contrary to a considered legal interpretation. |
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3.

Furthermore, the General Court erred in law (in breach of the principle of legal certainty) in stating, in paragraphs 47 to 51 of the judgment under appeal, that Commitment No 1 did not refer to a specific judicial reform strategy and action plan in force in the period between the finalisation of the negotiations and the repeal of the laws that had regulated the profession of public enforcement officer. The appellants claim that to refer to another judicial reform strategy to which the Commission had referred subsequently in its documents and not to the Judicial Reform Strategy 2011 and the Action Plan 2011, which obliged the Republic of Croatia to introduce the role of public enforcement officer, would create a dangerous precedent contrary to a considered legal interpretation.

| 4. | The General Court also erred in law in stating, in paragraph 55 of the judgment under appeal, that the appellants had not referred to any specific infringement, other than breach of the principle of legitimate expectations, since the appellants refer, as regards infringements, to discrimination, infringement of the right to work and breach of legal certainty throughout the proceedings. It is simply incredible that, in the judgment under appeal, the General Court completely ignored the principle of legal certainty (it makes no reference thereto), which principle, according to settled case-law, gives rise to the principle of the protection of legitimate expectations. |
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4.

The General Court also erred in law in stating, in paragraph 55 of the judgment under appeal, that the appellants had not referred to any specific infringement, other than breach of the principle of legitimate expectations, since the appellants refer, as regards infringements, to discrimination, infringement of the right to work and breach of legal certainty throughout the proceedings. It is simply incredible that, in the judgment under appeal, the General Court completely ignored the principle of legal certainty (it makes no reference thereto), which principle, according to settled case-law, gives rise to the principle of the protection of legitimate expectations.

| 5. | The General Court erred in law in considering Article 13 of the Treaty on European Union to be irrelevant to these proceedings. However, that the proceedings were unlawful does not exclusively mean that positive rules of the European Union have been infringed, that is to say, written rules, but may also presuppose the breach of general principles of law (principle of certainty) and the infringement of Article 13 TEU. The European Union has an institutional framework that aims to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. The general principles of law form part of the legal order of the European Union. |
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5.

The General Court erred in law in considering Article 13 of the Treaty on European Union to be irrelevant to these proceedings. However, that the proceedings were unlawful does not exclusively mean that positive rules of the European Union have been infringed, that is to say, written rules, but may also presuppose the breach of general principles of law (principle of certainty) and the infringement of Article 13 TEU. The European Union has an institutional framework that aims to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. The general principles of law form part of the legal order of the European Union.

| 6. | The General Court erred in law when, contrary to Article 17 of the Treaty on European Union, it did not find that the appellants had been nominated, that is to say, appointed to occupy posts of public enforcement officers at the time Chapter 23 was closed, namely, when the reform of the judiciary, of which public enforcement officers form part, was agreed. Indeed, once the accession negotiations between the Republic of Croatia and the European Union were concluded, in particular, with the adoption of specific measures, and taking into consideration Article 26 of the Vienna Convention, the appellants had legal certainty that they would exercise their chosen profession. |
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6.

The General Court erred in law when, contrary to Article 17 of the Treaty on European Union, it did not find that the appellants had been nominated, that is to say, appointed to occupy posts of public enforcement officers at the time Chapter 23 was closed, namely, when the reform of the judiciary, of which public enforcement officers form part, was agreed. Indeed, once the accession negotiations between the Republic of Croatia and the European Union were concluded, in particular, with the adoption of specific measures, and taking into consideration Article 26 of the Vienna Convention, the appellants had legal certainty that they would exercise their chosen profession.

| 7. | The General Court erred in law in not concluding, having regard to the mandatory provisions of Article 36 of the Act of Accession, that the Commission had to ensure its application and adopt all the measures necessary so that the Republic of Croatia fulfilled its commitments. Given that the Commission did not act in accordance with Article 17 of the Treaty on European Union, this entails an infringement of that same article, which adversely affects the appellants. |
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7.

The General Court erred in law in not concluding, having regard to the mandatory provisions of Article 36 of the Act of Accession, that the Commission had to ensure its application and adopt all the measures necessary so that the Republic of Croatia fulfilled its commitments. Given that the Commission did not act in accordance with Article 17 of the Treaty on European Union, this entails an infringement of that same article, which adversely affects the appellants.

| 8. | The General Court erred in law in not considering the Treaty of Accession of the Republic of Croatia to the European Union to be the result of the negotiations and as such to impose obligations and produce legal effects under the rules and legal order of the European Union. In the present case, the Treaty of Accession guarantees the appellants the right to work and the establishment of a new profession for which they have been chosen. Under the provisions of the Treaty, the appellants expected, with good reason, to begin carrying out the tasks for which they had been appointed, since they had previously satisfied all the conditions required (passed the exams, left their previous jobs and equipped their offices) in accordance with the Law. |
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8.

The General Court erred in law in not considering the Treaty of Accession of the Republic of Croatia to the European Union to be the result of the negotiations and as such to impose obligations and produce legal effects under the rules and legal order of the European Union. In the present case, the Treaty of Accession guarantees the appellants the right to work and the establishment of a new profession for which they have been chosen. Under the provisions of the Treaty, the appellants expected, with good reason, to begin carrying out the tasks for which they had been appointed, since they had previously satisfied all the conditions required (passed the exams, left their previous jobs and equipped their offices) in accordance with the Law.

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