62008CO0580_EN
Parties
Grounds
Operative part
Parties
In Case C‑580/08 P,
APPEAL under Article 56 of the Statute of the Court of Justice lodged on 24 December 2008,
Devrajan Srinivasan,
residing in Dublin (Ireland), represented by J.B. Morton, Solicitor,
appellant,
the other party to the proceedings being:
European Ombudsman,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of J.-C. Bonichot, President of the Chamber, K. Schiemann and L. Bay Larsen (Rapporteur), Judges,
Advocate General: P. Mengozzi,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By his appeal, Mr Srinivasan requests the Court to set aside the order of the Court of First Instance of the European Communities of 3 November 2008 in Case T‑196/08 Srinivasan v Ombudsman
(‘the order under appeal’), by which the Court of First Instance dismissed his application seeking an order that that court should:
– declare that Ireland has ‘conspired’ with the Permanent Trustee Savings Bank (‘TSB’) in a fraud against most depositors from 27 June 1988 to 20 February 1993 in breach of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17);
– declare that the decision of the Commission of the European Communities of 12 October 2005 to take no further action on complaint No 2004/4490 lodged by the appellant is illegal and in breach of Article 226 EC;
– annul the decision of the European Ombudsman of 7 April 2008 adopted following complaint No 3125/2005/BB lodged by the appellant;
– order the Ombudsman to recommend to the Commission:
– that it prosecute Ireland for conspiring in the alleged fraud, in breach of Directive 84/450;
– that it inform the European Parliament that Ireland ‘conspired’ with TSB in the fraud against most depositors from 1958 to 20 February 1993;
– declare that the appellant has locus standi
to represent those depositors;
– rule on costs.
The facts
2. By letter of 3 June 2004, Mr Srinivasan lodged a complaint with the Commission, registered under number 2004/4490, seeking a declaration: (1) that actions by TSB had infringed Directive 84/450; and (2) that the Irish authorities had failed to fulfil their supervisory obligation, contrary to the provisions of that directive.
3. By letter of 12 July 2005, Mr Srinivasan submitted a complaint to the Ombudsman, complaining of maladministration by the Commission and infringement of its obligations under Article 226 EC in its handling of his complaint.
4. By decision of 12 October 2005, the Commission decided to take no further action on the complaint lodged with it, on the ground that the information contained therein did not demonstrate any infringement of Community law by the Irish authorities.
5. By letter of 7 April 2008, the Ombudsman informed Mr Srinivasan that, on the basis of his investigation following the complaint, he had found no maladministration on the part of the Commission and had therefore decided to close his file.
The proceedings before the Court of First Instance and the order under appeal
6. By application lodged at the Registry of the Court of First Instance on 29 May 2008, the appellant brought an action claiming that that court should grant the form of order sought in paragraph 1 of this order.
7. By the order under appeal, made pursuant to Article 111 of its Rules of Procedure, the Court of First Instance, without taking further steps in the proceedings, dismissed the action in part as manifestly inadmissible and in part on the ground of clear lack of jurisdiction.
The form of order sought by the appellant before the Court of Justice
8. By his appeal, Mr Srinivasan asks that the Court of Justice:
– set aside the order under appeal;
– grant the form of order sought at first instance, as reproduced in full in the appeal;
– rule on the costs of the appeal proceedings and of the proceedings at first instance.
The appeal
9. Under Article 119 of its Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.
10. It is appropriate to apply that provision in this case.
The application that the order under appeal should be set aside
11. In support of his application that the order under appeal should be set aside, the appellant submits that the Court of First Instance:
– without having competence in this respect, in its statement of the form of order sought before it, altered one of the terms in which the application was couched, thereby misinterpreting the application;
– also without having competence in this respect, failed to reproduce certain facts referred to in the application;
– infringed Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’);
– infringed Articles 24(6) and 111 of its Rules of Procedure;
– infringed Articles 5 EC, 14 EC, 153(1) EC, 155 EC, 226 EC, 251 EC and 288 EC, read in conjunction with Directive 84/450 and Article 1 of the First Additional Protocol to the ECHR and Article 13 of the ECHR;
– misconstrued the application for annulment of the Ombudsman’s decision by considering that that application was based on Article 230 EC.
The plea that the Court of First Instance altered one of the terms in which the form of order sought in the application at first instance was couched
12. The appellant complains that in the statement of the form of order sought in the application set out in paragraph 6 of the order under appeal, the Court of First Instance stated that it had been asked to ‘order the Ombudsman to direct the Commission as follows …’, using the verb ‘direct’ instead of the verb ‘recommend’, which appears in the application.
13. In this respect, it should be noted that, in the version of the order under appeal in the language of the case, the Court of First Instance did indeed use the verb ‘direct’ instead of the verb ‘recommend’ and that the first verb has a stronger meaning than the second one.
14. However, that alteration affects only the statement of the consequence that the appellant was requesting the Court of First Instance to draw from the annulment of the decision of 7 April 2008 which he was asking it to pronounce at the outset.
15. In the event, the application for annulment of that decision was declared manifestly inadmissible by the Court of First Instance at paragraph 14 of the order under appeal.
16. Accordingly, the Court of First Instance did not have to examine the question of any consequence of an annulment.
17. The alleged alteration did not therefore have any effect on the decision of the Court of First Instance.
18. This plea is therefore clearly unfounded.
The plea that the order under appeal failed to reproduce certain facts referred to in the application
19. The appellant complains that in the order under appeal the Court of First Instance did not recite verbatim the statement of facts contained in the application. More specifically, the Court of First Instance is criticised for making no mention of the convictions against TSB during 1993 as a result of a private prosecution by the appellant.
20. In this respect, it must be recalled that, in accordance with the 10th indent of Article 81 of the Rules of Procedure of the Court of First Instance, its decisions are to contain a ‘summary of the facts’.
21. It follows that, contrary to what the appellant claims, the Court of First Instance is not required to set out all the facts relied on by the appellant or to reproduce verbatim each of the facts that it actually sets out in its summary.
22. The summary may confine itself to stating, in language which is not necessarily that used by the parties, the facts relevant to the outcome of the case, namely the facts which must necessarily be analysed by that court for the purposes of its decision.
23. In the present case, the facts whose omission is complained of are part of the facts submitted to the Ombudsman for the purposes of his intervention. They were examined by the Ombudsman as part of his assessment of whether there had been an instance of maladministration in the activity of a Community institution. Analysis of those facts led to the Ombudsman’s decision to close the file opened following the appellant’s complaint.
24. The facts at issue thus relate to the substance of the dispute brought before the Court of First Instance.
25. However, as has already been noted, the application for annulment of the Ombudsman’s decision has been declared manifestly inadmissible.
26. In those circumstances, the Court of First Instance was not required to examine the substance of the dispute, and therefore the summary of the facts at issue in the order under appeal was of no relevance to the outcome of that dispute.
27. It follows that this plea is manifestly unfounded.
The plea alleging infringement of Article 6(1) of the ECHR
28. The appellant submits that the Court of First Instance infringed Article 6(1) of the ECHR by failing to take any account of the convictions against TSB during 1993 to which the appellant had referred in his application. He claims that, in accordance with the case‑law of the European Court of Human Rights, the effect of that provision is, inter alia, to place a court under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (Eur. Court H.R., Kraska, judgment of 19 April 1993, Series A No 254-B, § 30).
29. However, it has already been pointed out during the examination of the plea alleging failure to reproduce certain facts referred to in the application that the convictions against TSB during 1993 relate to the substance of the dispute. The same is true of the arguments expounded in relation to those convictions.
30. Consequently, since the application for annulment of the Ombudsman’s decision was declared manifestly inadmissible by the Court of First Instance, the latter was not required to examine those arguments, which had become irrelevant to the outcome of the dispute.
31. It follows that this plea is manifestly unfounded.
The pleas alleging infringements of Articles 24(6) and 111 of the Rules of Procedure of the Court of First Instance
32. The appellant complains that the Court of First Instance made its order without previously publishing in the Official Journal of the European Union
the notice provided for in Article 24(6) of its Rules of Procedure or hearing the Advocate General pursuant to Article 111 of those rules.
33. In this regard, it must be pointed out that Article 111 of the Rules of Procedure of the Court of First Instance allows that court, where it is clear that it has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, by reasoned order, after hearing the Advocate General, to give a decision on the action without taking further steps in the proceedings.
34. The expression ‘without taking further steps in the proceedings’ in that provision allows the Court of First Instance, where the conditions of that provision are fulfilled, to give a decision on an action without previously publishing a notice in the Official Journal of the European Union .
35. The Court of First Instance’s obligation to hear the Advocate General before giving a decision on an action must be read in the light of Articles 2(2), 18 and 19 of its Rules of Procedure, from which it is apparent, first, that the designation of a Judge of the Court of First Instance as Advocate General is optional where the Court of First Instance sits in chamber and, second, that references to the Advocate General in those Rules of Procedure are to apply only where a Judge has in fact been designated as Advocate General.
36. In the present case, the Court of First Instance sat in chamber without designating a judge to perform the function of Advocate General.
37. Accordingly, the obligation to hear the Advocate General laid down in Article 111 of the Rules of Procedure of the Court of First Instance was not applicable.
38. It follows from the foregoing that these two pleas are manifestly unfounded.
The pleas alleging infringements of Articles 5 EC, 14 EC, 153(1) EC, 155 EC, 226 EC, 251 EC and 288 EC, read in conjunction with Directive 84/450, and Article 1 of the First Additional Protocol to the ECHR and Article 13 of the ECHR
39. The appellant submits that the order under appeal is in breach of Articles 5 EC, 14 EC, 153(1) EC, 155 EC, 226 EC, 251 EC and 288 EC, read in conjunction with Directive 84/450, and Article 1 of the First Additional Protocol to the ECHR and Article 13 of the ECHR in respect of depositors who were defrauded.
40. In this respect, it is apparent from settled case‑law (see, in particular, order of 29 November 2007 in Case C‑107/07 P Weber v Commission, paragraphs 24 and 25, and order of 10 February 2009 in Case C‑290/08 P Correia de Matos v Commission, paragraphs 18 and 19 and case‑law cited) 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;
– that requirement is not satisfied by an appeal which does not include any argument specifically identifying the error of law allegedly vitiating the judgment or order in question;
– a mere abstract statement of the grounds in the appeal does not satisfy the requirements of Article 21 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure.
41. In the present case, it is sufficient to note that the appellant merely states in general and abstract terms that, in respect of the depositors who were allegedly defrauded, the order under appeal is in breach of the various provisions which he lists.
42. It must be stated that an appeal with such characteristics is not capable of being the subject of judicial assessment which enables the Court of Justice to perform its function in the area in question and to carry out its review of legality (orders in Weber v Commission, paragraph 28, and Correia de Matos v Commission, paragraph 21).
43. It follows that these pleas are manifestly inadmissible.
The plea that the Court of First Instance wrongly took the view that the application was based on Article 230 EC
44. The appellant submits that his application before the Court of First Instance was brought on the basis of the audi alteram partem
rule and the ‘ Wednesbury ’ case-law. In his view, the Court of First Instance has wrongly taken the view that the application was based on Article 230 EC.
45. In this regard, it should be borne in mind that the jurisdiction of the Community judicature concerning review of legality is determined and governed by Article 230 EC.
46. The Court of First Instance was therefore right to examine the appellant’s application for annulment in the light of that provision and not in the light of the general principle and the national case-law relied on by him.
47. This plea is therefore manifestly unfounded.
48. In those circumstances, it is necessary, pursuant to Article 119 of the Rules of Procedure, to dismiss the appeal as in part manifestly inadmissible and in part manifestly unfounded, without its being necessary to serve it on the Ombudsman.
The form of order seeking the same form of order as that sought at first instance
49. Since the appeal has been dismissed, there is no need to give a decision on the appellant’s form of order submitted on the basis of Article 113(1), second indent, of the Rules of Procedure, seeking the same form of order as that sought at first instance.
50. Such a form of order can be examined only if the order under appeal is set aside.
Costs
51. Article 69(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, provides that a decision as to costs is to be given in the order which closes the proceedings.
52. As the present order was adopted prior to service of the application on the Ombudsman and therefore before the latter could have incurred costs, it is sufficient to decide that the appellant must bear his own costs.
Operative part
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed.
2. Mr Srinivasan shall bear his own costs.