Opinion of the Advocate General — ECLI:EU:C:2006:228
Date: 2006-04-06
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Own resources
Procedure: Action for annulment;Appeal - unfounded

Summary of the Judgment 1. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Inadmissible – Challenge to the interpretation or application of Community law by the Court of First Instance – Admissible (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) 2. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects (Art. 230 EC) 3. Community law – Principles – Right to effective judicial protection (Art. 235 EC and Art. 288, second para., EC) 1. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, fails to satisfy the requirement to state reasons under Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. However, provided that an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see paras 49-51) 2. Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment. Therefore, it is not only preparatory acts which fall outside the scope of the judicial review provided for in Article 230 EC but any act not producing legal effects which are binding on and capable of affecting the interests of the individual, such as confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions. Thus, although the commencement of proceedings constitutes an indispensable step for the purpose of obtaining a binding judgment it does not per se determine definitively the obligations of the parties to the case, so that, a fortiori, the decision to bring legal proceedings does not in itself alter the legal position in question. Furthermore, the commencement of legal proceedings before any court necessarily entails the application by the court seised of its own procedural rules, which cannot therefore be viewed as a legal effect, for the purposes of Article 230 EC, of the decision to bring an action. (see paras 54-55, 58, 61) 3. Even though individuals are unable to bring an action for annulment of measures which do not produce legal effects which are binding on them and are capable of affecting their interests, they are not denied access to justice since an action for non-contractual liability under Article 235 EC and the second paragraph of Article 288 EC is available if the conduct in question is of such a nature as to entail liability on the part of the Community. Such an action is not part of the system of review of the legality of Community acts with legal effects which are binding on, and capable of affecting the interests of, the applicant, but it is available where a party has suffered harm on account of unlawful conduct by an institution. Furthermore, the fact that the appellants may be unable to establish the existence of unlawful conduct on the part of the Community institutions, of the damage alleged and of a causal link between such conduct and such loss does not mean that they are denied effective judicial protection. (see paras 79, 82-84)