Opinion of the Advocate General — ECLI:EU:C:2010:342
Date: 2010-06-15
Language of the case: French
Subject matter: Financial provisions;Provisions governing the Institutions
Procedure: Action for failure to fulfil obligations - inadmissible
Origin: Belgium

Summary of the Judgment 1. Actions for failure to fulfil obligations – Application initiating proceedings – Statement of subject-matter and pleas in law – Formal requirements (Art. 226 EC; Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the Court of Justice, Art. 38(1)(c)) 2. Actions for failure to fulfil obligations – Jurisdiction of the Court – Limits – Statute of the European Schools (Art. 10 EC and 226 EC) 1. Under Articles 21(1) of the Statute of the Court of Justice and 38(1) of the latter’s Rules of Procedure, in any application made under Article 226 EC, the Commission must indicate the specific complaints on which the Court is called upon to rule. These heads of claim must be set out unambiguously, so that the Court does not rule ultra petita or, indeed. fail to rule on a complaint. (see paras 36-37) 2. The Court does not have jurisdiction to rule on the action of the European Commission, brought on the basis of Article 226 EC, on the ground that the Kingdom of Belgium has failed to fulfil its obligations under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the Government of the Kingdom of Belgium, read in conjunction with Article 10 EC. Accordingly, as is apparent from Article 28 of the convention signed in Luxembourg on 12 April 1957 defining the Statute of the European School, the rules in that agreement have to be consistent with those laid down in the convention that the Court lacks jurisdiction to interpret inasmuch as, the links of that statute to the Community and the functioning of its institutions notwithstanding, it is an international agreement concluded by the Member States which does not form an integral part of Community law. This assessment is not to be restricted to the procedural context of a reference for a preliminary ruling, but likewise applies in the context of the proceedings provided for in Article 226 EC, the subject-matter of which can only be a failure by a Member State to fulfil one of its obligations under the treaty. Furthermore, neither any consolidation of the acquis of the 1957 Convention by the convention concluded in Luxembourg on 21 June 1994, which is currently in force, nor the reference made by the latter to the establishment agreements, can retroactively modify the legal nature of the Establishment Agreement, which is an international agreement concluded between the Governing Body and the government of a single Member State. Finally, with regard to the applicability or otherwise of the arbitration clause appearing in Article 26 of the 1994 Convention, infringement proceedings, within the meaning of the EC Treaty and of the case-law of the Court, can be brought only on the basis of Article 226 EC. (see paras 44-46, 51-53, operative part)