Opinion of the Advocate General — ECLI:EU:C:2006:667
Date: 2006-10-26
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957);Treaty on European Union (1992)
Subject matter: External relations;Justice and home affairs;Common foreign and security policy;Non-contractual liability
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Spain;France

Summary of the Judgment 1. Appeals – Pleas in law – Admissibility – Conditions (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court, Art. 112(1)(c)) 2. Appeals – Pleas in law – Plea put forward for the first time in an appeal – Inadmissibility 3. Actions for damages – Jurisdiction of the Community judicature – Action under Title VI of the EU Treaty – Not included (Arts 235 EC and 288, second para., EC; Arts 35 EU, 41(1) EU and 46 EU) 4. European Union – Police and judicial cooperation in criminal matters – Right to effective judicial protection (Arts 34 EU and 35(1) and (6) EU) 5. European Union – Acts of the European Union – Interpretation 1. It is clear from Article 225 EC, from the first paragraph of Article 58 of the Statute of the Court of Justice and from Article 112(1)(c) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. (see para. 22) 2. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance. (see para. 30) 3. It follows from Article 46 EU that the provisions of the EC and EAEC Treaties concerning the powers of the Court of Justice are applicable to Title VI of the EU Treaty only under the conditions provided for by Article 35 EU. In contrast, Article 35 EU confers no jurisdiction on the Court of Justice to entertain any action for damages whatsoever. In addition, Article 41(1) EU does not include, among the articles of the EC Treaty establishing the European Community applicable to the areas referred to in Title VI of the EU Treaty, the second paragraph of Article 288 EC, according to which the Community must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties, or Article 235 EC, under which the Court has jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288 EC. It follows that no action for damages is provided for under Title VI of the EU Treaty. A Council declaration concerning the right to compensation, annexed to the minutes at the time of the adoption of an action of the European Union, is insufficient to create a legal remedy not provided for by the applicable texts and therefore could not suffice to confer jurisdiction on the Court in this respect. (see paras 44, 46-48, 60-61) 4. As regards the Union, the treaties have established a system of legal remedies in which, by virtue of Article 35 EU, the jurisdiction of the Court is less extensive under Title VI of the Treaty on European Union than it is under the EC Treaty. While a system of legal remedies, in particular a body of rules governing non-contractual liability, other than that established by the treaties can indeed be envisaged, it is for the Member States, should the case arise, to reform the system currently in force in accordance with Article 48 EU. Applicants wishing to challenge before the courts the lawfulness of a common position adopted on the basis of Article 34 EU, are not, however, deprived of all judicial protection. Article 35(1) EU, in that it does not enable national courts to refer a question to the Court for a preliminary ruling on a common position but only a question concerning the acts listed in that provision, treats as acts capable of being the subject of such a reference for a preliminary ruling all measures adopted by the Council and intended to produce legal effects in relation to third parties. Given that the procedure enabling the Court to give preliminary rulings is designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret Article 35(1) EU narrowly. The right to make a reference to the Court for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties. As a result, it has to be possible to make subject to review by the Court a common position which, because of its content, has a scope going beyond that assigned by the EU Treaty to that kind of act. So, a national court hearing a dispute which, in an incidental plea, raises the issue of the validity or interpretation of a common position adopted on the basis of Article 34 EU, and which raises serious doubt whether that common position is really intended to produce legal effects in relation to third parties, would be able, subject to the conditions fixed by Article 35 EU, to ask the Court to give a preliminary ruling. It would then fall to the Court to find, where appropriate, that the common position is intended to produce legal effects in relation to third parties, to accord it its true classification and to give a preliminary ruling. The Court would also have jurisdiction to review the lawfulness of such acts when an action has been brought by a Member State or the Commission on the conditions fixed by Article 35(6) EU. Finally, it is for the Member States and, in particular, their courts and tribunals, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the lawfulness of any decision or other national measure relating to the drafting or the application to them of an act of the European Union and to seek compensation for the loss suffered, where appropriate. (see paras 50-51, 53-56) 5. A Council declaration, annexed to the minutes at the time of adoption of an action of the European Union, cannot therefore be given any legal significance or be used in the interpretation of law emanating from the EU Treaty where no reference is made to the content of the declaration in the wording of the provision in question. (see para. 60)