Opinion of the Advocate General — ECLI:EU:C:2017:420
Date: 2017-06-01
Language of the case: Spanish
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded
Origin: Spain

Summary 176. Since none of the pleas in law raised by Spain have been upheld, the action will have to be dismissed in its entirety as unfounded if the Court of Justice does not refer the case to the General Court. VI. Costs 177. In the event that the Court of Justice endorses my view and refers the case to the General Court, no decision as to costs needs to be taken at this stage. 178. If the Court does adjudicate upon this case, however, then, in accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs where they have been applied for. Since, under my proposal for a decision, the Council would be the successful party, Spain would have to bear the costs. 179. In accordance with Article 140(1) of the Rules of Procedure, however, Member States and institutions which intervene in the proceedings must bear their own costs. The Commission would therefore bear its own costs. VII. Conclusion 180. In the light of the foregoing considerations, I propose that the Court should: (1) refer Spain v Council (C‑521/15) to the General Court of the European Union; (2) reserve the decision as to costs. 181. In the event that the Court does not endorse that proposal, I propose, in the alternative, that the Court should dismiss the action and order Spain to pay the costs, with the exception, however, of the Commission’s costs, which it must bear itself. 1 Original language: German. 2 Council Implementing Decision (EU) 2015/1289 of 13 July 2015 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia (OJ 2015 L 198, p. 19). The word ‘implementing’ was inserted into the title retrospectively (OJ 2015 L 291, p. 10). 3 Regulation of the European Parliament and of the Council of 16 November 2011 (OJ 2011 L 306, p. 1). 4 Protocol No 12 to the EU Treaty and the FEU Treaty. 5 Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (OJ 1996 L 310, p. 1) (ESA 1995). Regulation (EU) No 549/2013 (OJ 2013 L 174, p. 1) (ESA 2010), which replaced that regulation, is not applicable to the present case. 6 In proceedings against Austria, the Commission recently published an investigation report (COM(2017) 94 final) in which it announced a recommendation to the Council. 7 Decision 2004/407/EC, Euratom amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice (OJ 2004 L 132, p. 5). 8 Council Regulation of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (OJ 2009 L 145, p. 1), applicable in the present case in the version amended by Council Regulation (EU) No 679/2010 of 26 July 2010 (OJ 2010 L 198, p. 1). 9 Commission Delegated Decision of 29 June 2012 (OJ 2012 L 306, p. 21). 10 Report from the Commission on the investigation related to the manipulation of statistics in Spain as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (Commission Decision of 11 July 2014) (COM(2015) 211 final). 11 See footnote 2 above. 12 See judgment of 17 March 2005, Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2005:172, paragraph 49), and order of 14 July 2005, Switzerland v Commission (C‑70/04, not published, EU:C:2005:468, paragraph 18). 13 So far as concerns the right of individuals to institute proceedings, see, for example, judgments of 5 May 1977, Koninklijke Scholten Honig v Council and Commission (101/76, EU:C:1977:70, paragraphs 5 to 11), and of 19 December 2012, Commission v Planet (C‑314/11 P, EU:C:2012:823, paragraphs 94 and 95). On the failure to classify an implementing decision as such, see my Opinion in Borealis Polyolefine and Others (C‑191/14, C‑192/14, C‑295/14 and C‑389/14, EU:C:2015:754, point 177). 14 Judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 66). 15 Judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 36), and, even earlier, judgments of 24 October 1989, Commission v Council (16/88, EU:C:1989:397, paragraph 11), concerning the third indent of Article 145 of the EEC Treaty, and of 23 February 2006, Commission v Parliament and Council (C‑122/04, EU:C:2006:134, paragraphs 36 and 37), concerning the third indent of Article 202 of the EC Treaty, both of which provisions were precursors to Article 291(2) TFEU. 16 It must be noted in this regard that the General Court has not as yet exercised its jurisdiction under the counter-exception provided for in subparagraph (a) of the first paragraph of Article 51 of the Statute. 17 The judgment of 13 July 2004, Commission v Council (C‑27/04, EU:C:2004:436), however, provides no proof of the proposition that jurisdiction lies with the Court of Justice, since the current division of powers was not applicable at that time and any jurisdiction on the part of the Court of Justice would follow from the second paragraph of Article 51 of the Statute. 18 Judgment of 22 January 2014, United Kingdom v Council and Parliament (C‑270/12, EU:C:2014:18, paragraphs 78 to 86). 19 Judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3, paragraphs 50 and 51). 20 Judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3, paragraphs 77 and 78). 21 See, for example, judgments of 29 April 2004, Beuttenmüller (C‑102/02, EU:C:2004:264, paragraph 64); of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraph 56); and of 8 March 2017, Euro Park Service (C‑14/16, EU:C:2017:177, paragraph 49). 22 See judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting (C‑442/14, EU:C:2016:890, paragraphs 55 to 58). 23 The third recital of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1). 24 See in this regard Article 11b(2) of Regulation No 479/2009. 25 Article 11a, first sentence, and Article 11b(1) of Regulation No 479/2009. 26 Report from the Commission (cited in footnote 10, p. 8). 27 Note to the ESSC/EFC — implementation of ESA 2010 and changes needed in regulation 479 (Annex F.1 to Spain’s response to the Commission’s statement in intervention). 28 Judgments of 21 September 2000, Mediocurso v Commission (C‑462/98 P, EU:C:2000:480, paragraph 36); of 9 June 2005, Spain v Commission (C‑287/02, EU:C:2005:368, paragraph 37); and of 17 March 2016, Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 33). 29 Judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 181 to 183), and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 38). 30 Judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 183). 31 Judgments of 17 October 1989, Dow Benelux v Commission (85/87, EU:C:1989:379, paragraphs 17 and 18); of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 298 and 299); and of 22 October 2002, Roquette Frères (C‑94/00, EU:C:2002:603, paragraph 48). 32 Judgments of 17 October 1989, Dow Benelux v Commission (85/87, EU:C:1989:379, paragraph 19); and of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 301). 33 See point 65 et seq. above. 34 See judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 56 et seq.). 35 See, on the subject of competition law, judgment of 25 January 2007, Dalmine v Commission (C‑407/04 P, EU:C:2007:53, paragraph 60). 36 Judgments of 18 October 1989, Orkem v Commission (374/87, EU:C:1989:387, paragraphs 34 and 35), and of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 65). 37 See, so far as concerns proceedings for failure to fulfil obligations, judgments of 11 December 1985, Commission v Greece (192/84, EU:C:1985:497, paragraph 19); of 9 November 1999, Commission v Italy (C‑365/97, EU:C:1999:544, paragraph 85); of 13 July 2004, Commission v Italy (C‑82/03, EU:C:2004:433, paragraph 15); of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraphs 41, 197 and 198); and of 5 October 2006, Commission v Belgium (C‑275/04, EU:C:2006:641, paragraph 82). 38 Judgment of 6 November 2008, Netherlands v Commission (C‑405/07 P, EU:C:2008:613, paragraph 56). See also judgment of 16 April 2013 Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 54). 39 See judgments of 19 February 2009, Gorostiaga Atxalandabaso v Parliament (C‑308/07 P, EU:C:2009:103, paragraph 46), and of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 155). 40 See my Opinion in Ziegler v Commission (C‑439/11 P, EU:C:2012:800, point 145). 41 See, for example, judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraph 48 and the case-law cited). On the form of words, see my Opinion in G4S Secure Solutions (C‑157/15, EU:C:2016:382, point 98), which draws on the case-law of the French Conseil constitutionnel (Constitutional Court), decisions No 2015-527 QPC of 22 December 2015 (FR:CC:2015:2015.527.QPC, paragraphs 4 and 12) and No 2016-536 QPC of 19 February 2016 (FR:CC:2016:2016.536.QPC, paragraphs 3 and 10); see, similarly, the case-law of the French Conseil d’État (Council of State), judgment No 317827 of 26 October 2011 (FR:CEASS:2011:317827.20111026); see also the case-law of the German Bundesverfassungsgericht (Constitutional Court), BVerfGE 120, 274, 318 and 319 (DE:BVerfG:2008:rs20080227.1bvr037007, paragraph 218). 42 See, on the subject of the administrative burden in connection with data protection, the judgment of 7 May 2009, Rijkeboer (C‑553/07, EU:C:2009:293, paragraph 59 et seq.); as well as, mutatis mutandis, in connection with access to documents, judgments of 6 December 2001, Council v Hautala (C‑353/99 P, EU:C:2001:661, paragraph 30), and of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 28). 43 On the need for revision on that basis, see https://webgate.ec.europa.eu/fpfis/mwikis/gfs/index.php/Revisions_of_EDP_data. 44 That is to say, not recorded at the time when the expenditure was incurred, in breach of the accrual principle (point 1.57 of ESA 1995). 45 Judgments of 26 February 1976, Commission v Italy (52/75, EU:C:1976:29, paragraph 11); of 29 March 2001, Portugal v Commission (C‑163/99, EU:C:2001:189, paragraph 22); and of 19 November 2009, Commission v Finland (C‑118/07, EU:C:2009:715, paragraph 48). 46 COM(2010) 524 final. 47 Council Document No 11480/11, therein Article 6a and recital 3. 48 European Parliament amendments adopted on 23 June 2011 to the proposal for a regulation of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (P7_TA(2011)0290). 49 Document A7-0180/2011. 50 That is particularly apparent in the French-language version of Article 8(1) of Regulation No 1173/2011: ‘… État membre qui a … fait des déclarations erronées au sujet des données relatives au …’. It is somewhat less obvious that the German- and English-language versions are referring to the misrepresentation of data. The Spanish-language version, on the other hand, is expressly based on the premiss of misrepresentation: ‘… Estado miembro que … tergiverse datos relativos al …’. 51 Recital 13 of Regulation No 1173/2011. 52 That is clear from the German-, Spanish- and French-language versions. The English-language version, on the other hand, is open to misunderstanding: ‘An unintentional act or omission should be considered a case of serious negligence if a person responsible for the production of general government deficit and debt data is in patent breach of his duty of care.’ 53 Judgments of 13 December 1991, Commission v Italy (C‑33/90, EU:C:1991:476, paragraph 24), and of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 58). 54 Article 3 of the EPD Protocol states: ‘In order to ensure the effectiveness of the excessive deficit procedure, the governments of the Member States shall be responsible under this procedure for the deficits of general government as defined in the first indent of Article 2. The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from these Treaties. The Member States shall report their planned and actual deficits and the levels of their debt promptly and regularly to the Commission.’ Article 2, first indent, defines the term ‘government’ as referring to ‘general government, that is central government, regional or local government and social security funds’. 55 See point 129 above. 56 Only the Danish, Estonian and Swedish versions appear to use the superlative instead of the comparative. 57 Judgment of 11 December 2012, Commission v Spain (C-610/10, EU:C:2012:781, paragraph 51).