Order;Abstract — ECLI:EU:T:2025:138
Date: 2025-02-03
Language of the case: English
Court formation: Third Chamber
Subject matter: Accession
Procedure: Action for annulment - inadmissible
Origin: Romania

Case T‑1126/23 Asociația Inițiativa pentru Justiție v European Commission Order of the General Court (Third Chamber) of 3 February 2025 ( Action for annulment – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Decision (EU) 2023/1786 repealing Decision 2006/928 – No direct concern – Inadmissibility ) 1. Action for annulment – Natural or legal persons – Acts that are of direct and individual concern to them – Action brought by an association – Admissibility – Criteria (Art. 263, fourth para., TFEU) (see paragraph 24) 2. Action for annulment – Natural or legal persons – Acts that are of direct and individual concern to them – Action by a trade association set up to protect and represent its members – Direct concern – Criteria – Association acting in its own name – Commission decision repealing the mechanism for cooperation and verification established in respect of Romania in the context of its accession to the European Union – Not directly concerned – Inadmissibility (Art. 263, fourth para., TFEU; Commission Decisions 2006/928 and 2023/1786) (see paragraphs 24, 27-31) 3. Action for annulment – Natural or legal persons – Acts that are of direct and individual concern to them – Action by a trade association set up to protect and represent its members – Direct concern – Criteria – Association acting on behalf of its members – Commission decision repealing the mechanism for cooperation and verification established in respect of Romania in the context of its accession to the European Union – Not directly concerned – Inadmissibility – Principle of direct effect – Scope (Art. 263, fourth para., TFEU; Commission Decisions 2006/928 and 2023/1786) (see paragraphs 41-48, 52-67, 70-73) 4. Action for annulment – Natural or legal persons – Acts that are of direct and individual concern to them – Direct concern – Criteria – Possibility of easing the admissibility conditions by relying on the right to effective judicial protection – None (Art. 19(1), second subpara., TEU; Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47) (see paragraphs 75-77, 80) Résumé By its order, the General Court dismisses as inadmissible the action for annulment brought by a professional association of Romanian prosecutors against Decision 2023/1786, (1) which repealed Decision 2006/928 (2) that had been adopted on the occasion of Romania’s accession to the European Union and had established the CVM. The Court rules, in particular, on the novel question of the relationship between the principle of direct effect and the admissibility condition requiring direct concern to a natural or legal person. The present case has arisen against the background of a wide-ranging reform in the areas of justice and the fight against corruption in Romania, which had been monitored at EU level since 2007 under the CVM. Decision 2006/928 set out four benchmarks to be addressed by Romania under the CVM, in relation to, inter alia, judicial reform and the fight against corruption (‘the benchmarks’). On 15 September 2023, in the light of the progress made by Romania in addressing those benchmarks, the European Commission adopted the contested decision. The Asociația Inițiativa pentru Justiție, a professional association of prosecutors the purpose of which is to ensure respect for the value of the rule of law in Romania by guaranteeing, inter alia, respect for the rights of prosecutors and their independence, brought an action for annulment against that decision. The Commission raised a plea of inadmissibility as regards the action, on the ground that the contested decision is not of direct concern to either the applicant or any of its members. The applicant, for its part, has submitted that it has standing to bring proceedings as an association representing the interests of its members who are prosecutors. According to the applicant, the contested decision is of direct concern to those members, since the lifting of the CVM could increase their exposure to disciplinary proceedings. Findings of the Court As a preliminary point, the Court recalls the three situations in which an action for annulment brought by a natural or legal person under the fourth paragraph of Article 263 TFEU may be declared admissible. Since the contested decision is not addressed to the applicant, the Court examines whether that decision is of direct concern to the applicant or to any of its members. In that regard, the Court states that actions for annulment brought by associations are admissible in three cases: first, where a legal provision expressly grants associations a series of procedural powers; second, where the association represents the interests of its members, who are themselves entitled to bring proceedings; and, third, where the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the act in respect of which annulment is sought. In that context, the Court carries out, in the first place, an analysis of the admissibility of the action brought by the applicant acting in its own name. On that point, the Court finds that the decision does not satisfy the conditions relating to the first and third instances of admissibility of an action for annulment, referred to above. First, no legal provision confers on the applicant any procedural powers to ensure effective judicial protection of prosecutors in the context of the CVM. Second, the fact that it was an interlocutor of the Commission in the context of the CVM is not sufficient to confer on it the status of negotiator in the adoption of the contested decision. In the second place, the Court rules on the admissibility of the action of the applicant acting on behalf of its members, whose interests it defends. Thus, after recalling the two cumulative conditions which must be met in order for a natural or legal person to be regarded as being directly concerned by a decision against which an action for annulment is brought, (3) the Court examines whether the contested decision is capable of having direct legal effects on the situation of the prosecutors who are members of the applicant. In that regard, it notes at the outset that, in so far as the contested decision repealed Decision 2006/928, it must be examined in the light of the purpose and content of Decision 2006/928 and the legal and factual context in which Decision 2006/928 was adopted. It follows that the contested decision is capable of having direct legal effects on the situation of the Romanian prosecutors who are members of the applicant only in so far as Decision 2006/928 was itself capable of having such effects. As regards, first, the purpose of Decision 2006/928 and the context in which it was adopted, the Court points out that that decision’s aim was to establish the CVM and set benchmarks in order to complete Romania’s accession to the European Union, remedying the deficiencies identified by the Commission prior to that accession, in particular in the areas of justice and the fight against corruption. As regards the purpose and context of the contested decision, that decision is intended to repeal Decision 2006/928, in so far as the Commission considered that Romania had satisfactorily complied with those benchmarks. Second, as regards the content of Decision 2006/928, that decision imposed the obligation on Romania to address the benchmarks set out in the annex to that decision and to report annually to the Commission on the progress made in that regard. That decision also imposed the obligation on the Commission to draw up reports analysing and evaluating Romania’s progress against those benchmarks. As regards the content of the contested decision, that decision is based on the conclusion that Romania had satisfactorily complied with those benchmarks. Third, the General Court recalls that the Court of Justice specified the legal effects (4) of, first, the benchmarks laid down by Decision 2006/928, by noting that they were binding on Romania and that they had direct effect, and second, the reports drawn up by the Commission on the basis of that decision, by pointing out that Romania had to take due account of the requirements and recommendations made by the Commission in those reports. According to the General Court, it is unequivocally clear from the analysis of the purpose, content and context of Decision 2006/928 that that decision merely imposed on Romania the obligation to take the necessary measures, having regard, inter alia, to the recommendations made by the Commission in its reports, for the purpose of addressing the benchmarks. Therefore, that decision did not confer any rights on the applicant’s members, with the result that it cannot be regarded as directly affecting their legal situation. In support of that conclusion, the General Court observes, first of all, that the fact that the Court of Justice recognised the direct effect of the benchmarks referred to in Decision 2006/928 cannot imply, per se, that those benchmarks necessarily entail corresponding rights for prosecutors, on which they could rely directly before the national courts in order to challenge, in particular, illegitimate disciplinary actions. The Court of Justice has recognised the direct effect of the benchmarks, not within the meaning of the case-law arising from the judgment in van Gend & Loos (26/62), (5) but from the perspective that the principle of direct effect includes also the obligation for national courts to disapply any national legislation or case-law that is contrary to EU law. The General Court states, moreover, that the direct effect of the benchmarks cannot mean that individuals may challenge the removal of those benchmarks without demonstrating that that removal in itself has a direct and individual effect on their legal situation, a demonstration which is lacking in the present case. Next, after recalling that the question whether an individual is directly concerned by an EU measure which was not addressed to him or her is to be examined in the light of the purpose and legal framework of the measure at issue, the Court finds that it is apparent from the provisions of Decision 2006/928 that its effects were confined to relations between the European Union and Romania, without individuals, including prosecutors, being the subject of that decision, either directly or indirectly. Lastly, the Court states that, while, in certain situations, the discretion available to Member States when implementing a provision of an EU act might not, as such, be sufficient to lead to the conclusion that that provision does not have direct effect, the existence of such discretion prevents the first condition of direct concern from being met. In the present case, Decision 2006/928 granted Romania discretion concerning the measures to be adopted, as regards in particular to aspects relating to the organisation of its judicial system. In the light of the foregoing, the General Court concludes that Decision 2006/928 did not directly affect the legal situation of the applicant’s members, and, consequently, that the contested decision also did not do so. Thus, since the prosecutors whose interests the applicant defends do not themselves have standing to bring proceedings, the applicant has also failed to satisfy the conditions for its action to be admissible inasmuch as the applicant represents the interests of its members. That being so, the Court recalls that, notwithstanding the repeal of Decision 2006/928, prosecutors who are the subject of disciplinary proceedings may still rely on the judicial protection that they derive from EU law under Article 19 TEU. In the third place, the Court rejects the applicant’s claim that the conditions for admissibility of actions for annulment, as laid down in the fourth paragraph of Article 263 TFEU, should be eased. While those conditions must be interpreted in the light of the fundamental right to effective judicial protection, (6) that protection is not intended to change the system of judicial review laid down by the Treaties and cannot have the effect of setting aside the condition of direct concern expressly laid down in the fourth paragraph of Article 263 TFEU. As regards, more specifically, the approach followed by the European Court of Human Rights with regard to the right to a fair trial, (7) in the judgment Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, (8) the General Court recalls that, whilst fundamental rights recognised by the ECHR constitute general principles of EU law, the ECHR does not constitute, for as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law. A provision of the Charter (9) stating that the rights set out in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by that convention is intended to ensure the necessary consistency between the Charter and the ECHR without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. 1 Commission Decision (EU) 2023/1786 of 15 September 2023 repealing Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2023 L 229, p. 94; ‘the contested decision’). 2 Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56; ‘the CVM’). 3 The two cumulative conditions for a measure which is the subject of an action for annulment to be of direct concern to a natural or legal person require, first, that the measure at issue must directly affect the legal situation of the person, and second, that it must leave no discretion to its addressees who are entrusted with the task of implementing it. 4 Judgment of 18 May 2021, Asociația ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393). 5 Judgment of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1). 6 Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 7 Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’). 8 European Court of Human Rights, 9 April 2024, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (CE:ECHR:2024:0409JUD005360020). In that judgment, that court accepted the standing of an association established with the aim of promoting and implementing effective climate protection measures. 9 Article 52(3) of the Charter.