Order — ECLI:EU:T:2014:980
Date: 2014-11-10
Language of the case: English
Court formation: First Chamber
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible;Action for damages - inadmissible
Origin: Cyprus

summary form, coherently and intelligibly in the application itself (order in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 20, and order in Case T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, paragraph 49). 34 It is settled case-law that, in order to satisfy the requirements set out in paragraph 33 above, an application seeking compensation for damage allegedly caused by an EU institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers that there is a causal link between that conduct and the damage it claims to have suffered, and the nature and extent of that damage (Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraph 107, and Case T‑113/96 Dubois et Fils v Council and Commission [1998] ECR II‑125, paragraph 30). 35 In the present case, the applicant states, first of all, that the Commission signed the MoU under the powers conferred on it by Article 13 of the ESM Treaty, and that the disputed passages infringe Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 17 of the Charter of Fundamental Rights of the European Union. 36 Next, the applicant submits that there is ‘a sufficient causal connection’ between the insertion of the disputed passages in the MoU ‘required by the Commission pursuant to Article 13 of the [ESM Treaty] and the loss of the funds standing to the [applicant’s] credit of which [it] was … deprived … in flagrant violation of a superior rule of law for the protection of the individual’. 37 Lastly, the applicant identifies precisely the damage it claims to have suffered. 38 It must therefore be held that, as regards the first head of claim, the application complies with the procedural requirements laid down by Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court. 39 Next, it is appropriate to consider whether the first head of claim is inadmissible on other grounds, as the Commission and the ECB contend in their objections of inadmissibility. They submit, in essence, that the conduct which it is claimed gave rise to the damage suffered cannot be imputed to an EU institution. 40 On this point, it must be noted that, as is evident from paragraphs 35 and 36 above, the application mentions a single act or course of conduct which, according to the applicant, gave rise to the damage it claims to have suffered, that is the inclusion of the disputed passages in the MoU. 41 The applicant does not identify in the application any other act or any course of conduct adopted in breach of a rule of law and which would have resulted in the diminution in value of its deposit at BoC. That finding is confirmed by the applicant’s statement in its observations on the objection of inadmissibility lodged by the ECB that ‘[i]t is in respect of the conditions attached to [the FAF] provided to [the Republic of Cyprus] on 26 April 2013 and the process by which they were required by the Commission and the ECB that caused the applicant damage for which [it] seeks compensation pursuant to Articles 268 [TFEU] and 340 [TFEU]’. 42 Under the provisions of Article 268 TFEU and the second and third paragraphs of Article 340 TFEU, in the case of non-contractual liability, the General Court has jurisdiction only in disputes relating to compensation for damage caused by the institutions of the European Union or by its servants in the performance of their duties. 43 Consequently, a claim for compensation that is directed against the European Union and is based on the mere illegality of an act or course of conduct that has not been adopted by an institution of the European Union or by its servants must be rejected as inadmissible (see, to that effect, order of 4 July 2013 in Case C‑520/12 P Diadikasia Symvouloi Epicheiriseon v Commission and Others, not published in the ECR, paragraphs 35 to 38, and Case T‑93/95 Laga v Commission [1998] ECR II‑195, paragraph 47). 44 The MoU was adopted jointly by the ESM and the Republic of Cyprus. It was signed on 26 April 2013 by the Cypriot authorities mentioned in paragraph 21 above, on the one hand, and by the Vice-President of the Commission on the Commission’s behalf, on the other. However, it is apparent from Article 13(4) of the ESM Treaty that the Commission is to sign the MoU only on behalf of the ESM. 45 It must be added in that regard that although the ESM Treaty entrusts the Commission and the ECB with certain tasks relating to the implementation of the objectives of that Treaty, it is apparent from the case-law of the Court of Justice that the duties conferred on the Commission and the ECB within the ESM Treaty do not entail any power to make decisions of their own and, moreover, that the activities pursued by those two institutions within the ESM Treaty solely commit the ESM (Case C‑370/12 Pringle [2012], paragraph 161). 46 Consequently, it cannot be held that the adoption of the MoU originated with the Commission or the ECB. 47 In accordance with the case-law referred to in paragraph 43 above, the Court does not, therefore, have jurisdiction to consider the present claim for compensation, in so far as it is based on the illegality of certain provisions of the MoU. 48 Next, it must be noted that, in its observations on the objections of inadmissibility raised by the Commission and the ECB, the applicant submitted that the Commission ‘[had] not [surrendered] effective control of its overarching decision-making role under Article 136(3) [TFEU] pursuant to its powers under Article 17 [TEU] to act as the EU institution responsible for ensuring [that acts concluded under the ESM Treaty were] in conformity with EU law’. 49 In so far as that argument can be interpreted as meaning that the conduct which, according to the applicant, gave rise to the damage it claims to have suffered is the infringement by the Commission of an alleged obligation to guarantee that the MoU is in conformity with EU law, and without it being necessary to consider whether that is a new argument put forward in the course of the procedure, for the purposes of the combined provisions of Article 44(1)(c) and Article 48(2) of the Rules of Procedure, it must be noted that, according to established case-law, the European Union may incur non-contractual liability for the purposes of Article 340 TFEU only if a number of conditions are fulfilled, namely the unlawfulness of the conduct of which the EU institutions are accused, the occurrence of actual damage and the existence of a causal link between the conduct and harm alleged (see order of 17 December 2008 in Case T‑137/07 Portela v Commission, not published in the ECR, paragraph 76 and the case-law cited). 50 It is also apparent from well-established case-law that if any one of those conditions is not satisfied, the action for damages must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (see order in Portela v Commission, cited in paragraph 49 above, paragraph 77 and the case-law cited). 51 It is necessary, in the present case, for the Court to begin by considering the question of the existence of a causal link between the allegedly unlawful omission for which the Commission is criticised, and the damage alleged by the applicant. 52 It is established case-law that the condition relating to a causal link required by Article 340 TFEU presupposes the existence of a sufficiently direct causal nexus between the conduct of the EU institutions and the damage (see order in Portela v Commission, cited in paragraph 49 above, paragraph 79 and the case-law cited). 53 It also follows from the case-law that, in cases where the conduct allegedly giving rise to the damage pleaded consists in refraining from taking action, it is particularly necessary to be certain that that damage was actually caused by the inaction complained of and could not have been caused by conduct separate from that alleged against the defendant institution (see order in Portela v Commission, cited in paragraph 49 above, paragraph 80 and the case-law cited). 54 In the present case, the conduct allegedly giving rise to the damage pleaded is a failure by the Commission to act when signing the MoU, in so far as the applicant submits that the Commission ought to have ensured that that MoU was in conformity with EU law (see paragraph 49 above). However, the MoU was signed after the reduction in the value of the applicant’s deposit at BoC. That reduction actually occurred on the entry into force of Decree No 103, pursuant to which part of that deposit was converted into shares or convertible instruments. Therefore, the applicant cannot be regarded as having established with the necessary certainty that the damage it claims to have suffered was actually caused by the inaction alleged against the Commission. 55 It follows from all the foregoing considerations that the first head of claim must be rejected as in part inadmissible and in part manifestly lacking any foundation in law, and there is no need to consider the other pleas of inadmissibility and arguments put forward by the Commission and the ECB. Admissibility of the second head of claim 56 It must be noted that, in the context of an action for annulment covered by Article 263 TFEU, the General Court has jurisdiction only to review the legality of acts of the institutions, bodies, offices or agencies of the European Union. 57 In applying for the disputed passages to be annulled, the applicant seeks the annulment in part of the MoU, which was adopted jointly by the Republic of Cyprus and the ESM. 58 Since neither the ESM nor the Republic of Cyprus is among the institutions, bodies, offices or agencies of the European Union, the General Court has no jurisdiction to examine the legality of acts which they have adopted together. 59 The application for annulment of the disputed passages is accordingly inadmissible. 60 The second head of claim must therefore be rejected. Admissibility of the third head of claim 61 By its third head of claim, the applicant asks the General Court to grant an interim measure. However, it is clear from Article 104(3) of the Rules of Procedure that an application for interim measures is admissible only if it has been made by a separate document, which is not the case here. 62 Accordingly, the third head of claim must be rejected as inadmissible. 63 The action must therefore be dismissed in its entirety as in part inadmissible and in part manifestly lacking any foundation in law. Costs 64 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the ECB. On those grounds, THE GENERAL COURT (First Chamber) hereby orders: 1. The action is dismissed. 2. Fialtor Ltd shall bear its own costs and pay those incurred by the European Commission and by the European Central Bank (ECB). Luxembourg, 10 November 2014. E. Coulon H. Kanninen Registrar President * Language of the case: English.