ORDER OF THE COURT (Eighth Chamber)

19 June 2023 ([\*](#Footnote*))

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Action for annulment and for failure to act – Refusal of the European Commission to initiate proceedings for failure to fulfil obligations – Discretionary power of the Commission – Appeal manifestly unfounded)

In Case C‐12/23 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 January 2023,

**Autoramiksas UAB,** established in Kaunas (Lithuania), represented by G. Valantiejus, advokatas,

appellant,

the other party to the proceedings being:

**European Commission,**

defendant at first instance,

THE COURT (Eighth Chamber),

composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and N. Jääskinen, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

**Order**

1        By its appeal, Autoramiksas UAB seeks to have set aside the order of the General Court of the European Union of 10 November 2022, *Autoramiksas* v *Commission* (T‐374/22, ‘the order under appeal’, EU:T:2022:718), by which the General Court dismissed as manifestly inadmissible its action seeking, first, annulment of Decision Ares (2022) 2097221 of the European Commission of 22 March 2022 to close procedure CHAP (2021) 03788 relating to a complaint which it had submitted to the Commission concerning an alleged failure by the Republic of Lithuania to fulfil its obligations under EU customs law (‘the contested decision’), and, second, a declaration that the Commission failed to act in that it did not initiate proceedings for failure to fulfil obligations against the Republic of Lithuania.

**The action before the General Court and the order under appeal**

2        By application lodged at the Registry of the General Court on 27 June 2022, the appellant, which was then the applicant, brought an action seeking, first, annulment of the contested decision and, second, a declaration that the Commission had failed to act.

3        As regards the action for annulment, the General Court held, in paragraph 6 of the order under appeal, that the individuals did not have standing to challenge a refusal by the Commission to initiate proceedings against a Member State for failure to fulfil obligations. In paragraph 7 of that order, it stated that such a refusal did not amount to a challengeable act, within the meaning of Article 263 TFEU, since it follows from the scheme of Article 258 TFEU that the Commission is not obliged to bring an action for failure to fulfil obligations, but that it has discretion in that regard which precludes the right on the part of individuals to require that institution to adopt a specific position.

4        Besides, the General Court stated in paragraph 8 of that order, that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute annulment proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

5        In that regard, in paragraph 9 of the order under appeal, the General Court held that, in the context of an action for failure to fulfil obligations under Article 258 TFEU, the only measures which the Commission may adopt are measures addressed to Member States and that, under the scheme laid down in that article, neither a reasoned opinion nor the lodging of an action before the Court of Justice can constitute acts of direct concern to natural or legal persons.

6        As regards the action for failure to act, the General Court recalled, in paragraph 11 of that order, that the conditions for admissibility of an action for failure to act, laid down in Article 265 TFEU, are not satisfied when the institution called upon to act has defined its position on that call to act before the action was brought. Furthermore, the General Court held that an institution has not failed to act, not only when it adopts a measure vindicating the applicant, but also when it refuses to adopt such a measure but answers the request made to it by stating the reasons why it considers that that measure should not be adopted or that it does not have the power to do so.

7        In paragraphs 12 and 13 of that order, the General Court held that, by the contested decision, the Commission had responded to the applicant by indicating to it the reasons why it did not intend to act on its complaint and, in so doing, would not bring an action for failure to fulfil obligations against the Republic of Lithuania. The General Court considered that that decision therefore constituted the adoption of a position by the Commission, called upon to act by the applicant, before the action was brought.

8        Accordingly, the General Court, on the basis of Article 126 of its Rules of Procedure, dismissed the applicant’s action as manifestly inadmissible, without notifying the Commission.

**Forms of order sought by the appellant before the Court of Justice**

9        By its appeal, the appellant claims that the Court should:

–        set aside the order under appeal and refer the case back to the General Court for it to rule on its action;

–        collect from the General Court all of the factors relating to the adoption of the order under appeal; and

–        order the Commission to pay the costs.

**The appeal**

10      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss it in whole or in part.

11      It is appropriate to apply that provision in the present appeal.

12      In support of its appeal, the appellant raises two grounds of appeal, alleging, first, an error of law committed by the General Court in its assessment of the conditions laid down in the fourth paragraph of Article 263 TFEU and, second, a failure to rule on certain aspects of the appellant’s action.

***The first plea in law***

13      By its first ground of appeal, the appellant submits that the General Court erred in law in its interpretation of the ‘substantive law’ of the European Union, in particular Article 263 TFEU, by holding, in paragraph 14 of the order under appeal, that it was not entitled to challenge the contested decision, in so far as its action seeking a declaration, on the basis of Article 265 TFEU, that the Commission had failed to act, in so far as it had not initiated proceedings for failure to fulfil obligations under Article 258 TFEU against the Republic of Lithuania, was manifestly inadmissible.

14      It is clear from the fourth paragraph of Article 263 TFEU that any person concerned may institute proceedings against acts of the EU institutions, including inter alia those of the Commission, which are of direct and individual concern to them. The appellant considers that it fulfils all of the conditions set out in the fourth paragraph of that article, since it challenges a decision, in this case the contested decision, of which it is the sole addressee. Furthermore, the appellant is directly and individually concerned by that decision, in so far as it relates to the complaint which it had lodged and constitutes a refusal by the Commission to initiate proceedings for failure to fulfil obligations under Article 258 TFEU against the Republic of Lithuania.

15      The appellant also satisfies the condition that it may bring an action against regulatory acts which are of direct concern to it and do not entail implementing measures. It is apparent, in particular, from the judgment of 3 October 2013, *Inuit Tapiriit Kanatami and others* v *Parliament and Council* (C‐583/11 P, EU:C:2013:625, paragraph 12), that the concept of ‘regulatory act’, within the meaning of the fourth paragraph of Article 263 TFEU, must be understood as covering all acts of general application apart from legislative acts. Since the contested decision is an act of general application which is of direct concern to it, the appellant has legal standing to bring an action against that decision, in accordance with the fourth paragraph, *in fine*, of Article 263 TFEU.

16      In that regard, in the first place, it should be noted that a refusal to initiate proceedings for a failure to fulfil obligations does not constitute a challengeable act for the purposes of Article 263 TFEU, since it follows from the scheme of Article 258 TFEU that the Commission is not obliged to initiate proceedings for failure to fulfil obligations but has a discretion in that regard which excludes the right for individuals to require that institution to adopt a specific position (judgment of 14 February 1989, *Star Fruit* v *Commission**,* 247/87, EU:C:1989:58, paragraph 11, and order of 2 May 2022, *Castillejo Oriol* v *Commission*, C‐1/22 P, EU:C:2022:343, paragraph 23 and the case-law cited).

17      It is true that the fourth paragraph of Article 263 TFEU provides that any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute annulment proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

18      However, in the present case, in so far as the contested decision constituted a refusal to bring proceedings against a Member State for failure to fulfil obligations, the General Court rightly pointed out, in paragraph 9 of the order under appeal, that, in the context of such proceedings, governed by Article 258 TFEU, the only measures that the Commission may adopt are measures addressed to Member States. Moreover, neither the reasoned opinion, which is part of the preliminary stage prior to any action being lodged before the Court of Justice for failure to fulfil obligations, nor referral to the Court of Justice by the actual lodging of such an action can constitute acts of direct concern to natural or legal persons (see, to that effect, orders of 3 September 2019, *ND and OE* v *Commission*, C‐317/19 P, EU:C:2019:688, paragraph 22 and the case-law cited, and of 29 September 2021*, Segura del Oro Pulido* v *Commission*, C‐225/21 P, EU:C:2021:787, paragraph 16 and the case-law cited).

19      Besides, the Court has already held that natural or legal persons who have lodged complaints with the Commission, alleging infringement of EU law by a Member State, cannot be regarded as directly and individually concerned by the measures that the Commission may adopt in the context of proceedings under Article 258 TFEU (order of 29 September 2021, *Segura del Oro Pulido* v *Commission*, C‐225/21 P, EU:C:2021:787, paragraph 17 and the case-law cited).

20      In the second place, it must be borne in mind that, although the third paragraph of Article 265 TFEU entitles natural and legal persons to bring an action for failure to act when an institution has failed to address to them any act other than a recommendation or an opinion, those persons may, however, rely on such a legal remedy only for the purpose of obtaining a declaration that, in infringement of the TFEU, that institution has failed to adopt acts, other than recommendations or opinions, the legality of which they would also be entitled to challenge by means of the action for annulment referred to in the fourth paragraph of Article 263 TFEU (judgment of 26 November 1996, *T. Port*, C‐68/95, EU:C:1996:452, paragraphs 58 and 59, and order of 29 September 2021, *Segura del Oro Pulido* v *Commission*, C‐225/21 P, not published, EU:C:2021:787, paragraph 15).

21      The General Court did not err in law in holding, in paragraphs 6 and 7 of the order under appeal, that individuals did not have standing to challenge the Commission’s refusal to initiate proceedings against a Member State for failure to fulfil obligations, since that refusal was not a challengeable act for the purposes of Article 263 TFEU. Accordingly, nor did it err in law when, in paragraph 14 of that order, it dismissed as manifestly inadmissible the second part of the appellant’s first head of claim seeking a declaration, on the basis of Article 265 TFEU, that the Commission had failed to act, in so far as it had failed to fulfil its obligations by not bringing proceedings for failure to fulfil obligations against the Republic of Lithuania.

22      It follows that the first ground of appeal must be rejected as manifestly unfounded.

***The second plea in law***

23      By its second ground of appeal, the appellant submits that the General Court failed to rule on some of the arguments of its action. It claims that it did not merely rely on Article 263 TFEU, but also referred to several irregularities vitiating the contested decision.

24      In that regard, it is sufficient to note that, since the General Court rightly declared the action brought before it to be inadmissible, it was no longer for it to rule on the substance of the arguments relating to the alleged irregularities vitiating the contested decision.

25      It follows that the second ground of appeal must be rejected as manifestly unfounded.

***The application for transfer of the file at first instance***

26      As regards the appellant’s second head of claim, requesting the Court of Justice to obtain all the information from the General Court relating to the adoption of the order under appeal, it is sufficient to note that, in accordance with Article 167(2) of the Rules of Procedure of the Court of Justice, as soon as it is informed of the existence of an appeal, the Registry of the General Court immediately transmits the file at first instance to the Registry of the Court of Justice. It follows that, pursuant to that provision, the file at first instance relating to the present dispute, which includes all the information relating to the adoption of the order under appeal, was sent to the Court Registry and therefore forms part of the file before it. There is therefore no need to rule on this request.

27      In the light of all of the foregoing considerations, the appeal must be dismissed as being manifestly unfounded.

**Costs**

28      Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In this case, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before the latter could have incurred costs, the appellant must be ordered to bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      **The appeal is dismissed as being manifestly unfounded.**

2.      **Autoramiksas UAB shall bear its own costs.**

Luxembourg, 19 June 2023.

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| A. Calot Escobar | | M. Safjan |

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| Registrar | | President of the Chamber |

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[\*](#Footref*)      Language of the case: English.