62019TO0715_RES
Case T‑715/19
Lukas Wagenknecht
against
European Council
Order of the General Court (Eighth Chamber), 17 July 2020
(Action for failure to act — Protection of the European Union’s financial interests — Combating fraud — Meeting of the European Council — Multiannual financial framework — Financial regulation — Alleged conflict of interest of the representative of the Czech Republic at a meeting of the European Council — Alleged lack of action by the European Council — Article 130 of the Rules of Procedure — Interest in bringing proceedings — Locus standi — Definition of the position of the European Council — End of the failure to act — Inadmissibility — Article 15(2) TEU — Action manifestly lacking any foundation in law)
Actions for failure to act – Natural or legal persons – Measures of direct and individual concern to them – Failure of the European Council to exclude the Prime Minister of a Member State from the meetings of that institution – Action brought by a member of the Senate of the Member State concerned – Person concerned not affected directly and individually – Inadmissibility
(Art. 265, para. 3, TFEU)
(see paras 25-27)
Actions for failure to act – Position defined within the meaning of the second paragraph of Article 265 TFEU before the action was brought – Concept – Refusal to act in accordance with the call to act – Included
(Art. 265, para. 2, TFEU)
(see paras 29-32)
Actions for failure to act – Obligation to act of the European Council – No obligation to exclude the Prime Minister of a Member State from meetings of that institution where there is an alleged conflict of interest)
(Art. 15(2) TEU; Art. 265, para. 3, TFEU)
(see paras 34-37)
Résumé
In its order of 17 July 2020, Wagenknecht v European Council (T‑715/19), the General Court held that the action for failure to act brought by a member of the Senate of the Czech Republic seeking a declaration that the European Council had unlawfully failed to exclude the Prime Minister of that Member State, on the ground of an alleged conflict of interest, from meetings of the European Council was inadmissible and, in any event, manifestly unfounded.
In the present case, on 5 June 2019, Mr Lukáš Wagenknecht (‘the applicant’), a member of the Senate of the Czech Republic, had requested the European Council to exclude the Prime Minister of that Member State, Mr Andrej Babiš, from meetings of the European Council concerning the financial perspective negotiations. (
1
) That request was based on the alleged conflict of interests of Mr Andrej Babiš, which allegedly arose from his personal and family interests in the undertakings of the Agrofert group, active in, inter alia, the agri-food sector, since those undertakings received subsidies coming from the EU budget.
On 24 June 2019, the European Council responded to the call to act, explaining to the applicant that, since the EU Treaty (
2
) intangibly laid down the composition of the European Council, it did not have discretion to decide who was to be the representative of each Member State within that institution or to decide who, as between the Head of State or the Head of Government, it was to invite to a meeting of the European Council. In those circumstances, it was not in a position to exclude the Prime Minister of the Czech Republic from the meetings to which the applicant referred. On 2 July 2019, by email, the applicant requested clarification of that reply. That email remained unanswered. He then brought an action under Article 265 TFEU for a declaration that the European Council had failed to act in that it had unlawfully failed to act in response to the call to act.
In the first place, the Court pointed out that, for his action for failure to act to be admissible, (
3
) the applicant must establish either that he was addressee of the act which the institution complained of allegedly failed to adopt in respect of him, or that that act directly and individually concerned him in a manner analogous to that in which the addressee of such an act would be concerned. He must also show an interest in bringing proceedings, the existence of which presupposes that the action must be liable, if successful, to procure a personal advantage for him. In the present case, the Court found that the act the adoption of which by the European Council has been requested by the applicant would not have been an act addressed by that institution to the applicant, but a decision of that institution addressed to the Czech Prime Minister. Moreover, the Court pointed out that, even if the applicant relies on his status as a member of the Senate of the Czech Republic in order to act in the public interest, he must still prove a personal interest, actual and existing, in a finding that the European Council has allegedly failed to act. Since the applicant has failed to demonstrate such an interest, the condition relating to his direct and individual concern in the light of the measures sought from the European Council was not, in any event, satisfied.
In the second place, the Court recalled that Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not in the sense of adoption of a measure different from that desired or considered necessary by the persons concerned. Thus, the Court held that the action for failure to act brought by the appellant was inadmissible on the ground that the European Council had explained, in clear terms, why it could not act in the manner requested of it. That definition of its position brought the failure to act to an end and such a refusal then constituted an act open to challenge by an action for annulment. (
4
) However, the applicant has not sought to bring such an action. In addition, the Court stated that the applicant’s email of 2 July 2019 could not be regarded as a new call to act in respect of which the European Council subsequently failed to act.
In the third place, the Court added that the action was, in any event, manifestly unfounded. It pointed out that the European Council has no leeway when inviting the Heads of State or Heads of Government of the Member States to its meetings. (
5
) It is the responsibility of the Member States to adopt national measures, including constitutional measures, enabling it to be determined whether they should be represented, at European Council meetings, by their Head of State or Head of Government respectively and, if necessary, whether there are grounds to prevent one of them from representing their respective Member States. That conclusion is all the more valid since the EU is required to respect the national identity of the Member States inherent in their fundamental political and constitutional structures. (
6
) In consequence, the Court held that it was clear that, by refusing to act in response to the call to act and irrespective of whether the representative of the Czech Republic has a conflict of interests, the European Council did not disregard the third paragraph of Article 265 TFEU.
In the fourth and last place, as regards the allegations relating to the Czech Prime Minister’s alleged conflict of interests, the Court pointed out that the regularity of the payments made by the European Union in the context of the funds granted, in his own name and on his behalf, in the Member States, falls within the scope of the EU rules applicable to those funds.
(
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)	The financial perspective negotiations in question concerned the multiannual financial framework 2021/2027.
(
2
)	By application of Article 15(2) TEU.
(
3
)	Actions for failure to act are provided for in Article 265 TFEU, which provides, in its third paragraph: ‘Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.’
(
4
)	Under Article 263 TFEU.
(
5
)	By application of Article 15(2) TEU.
(
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)	In accordance with Article 4(2) TEU.