ORDER OF THE GENERAL COURT (Eighth Chamber)
17 December 2020
(*)
(Action for failure to act – Protection of the European Union’s financial interests – Combating fraud – Meetings of the College of European Commissioners and its President with the representative of the Czech Republic – Multiannual Financial Framework 2021-2027 – Financial regulation – Direct payments from the EU budget in favour of farmers – Alleged conflict of interest of the Prime Minister of the Czech Republic – Alleged failure to act by the Commission – Article 130(1) of the Rules of Procedure – Interest in bringing proceedings – Locus standi – Definition of the Commission’s position – Inadmissibility)
In Case T‑350/20,
Lukáš Wagenknecht, residing in Pardubice (Czech Republic), represented by A. Koller, lawyer,
applicant,
v
European Commission, represented by F. Erlbacher and M. Salyková, acting as Agents,
defendant,
APPLICATION under Article 265 TFEU for a declaration that the Commission unlawfully failed to act on the applicant’s request to adopt, by virtue of Article 325(1) and Article 319(3) TFEU and of Article 61(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), binding and dissuasive measures designed to prevent or deal with the alleged conflict of interests of Mr Andrej Babiš, the Prime Minister of the Czech Republic, in particular, first, by preventing the Members of the College of Commissioners, particularly its President, from meeting Mr Babiš and discussing with him questions connected with the Multiannual Financial Framework of the European Union for 2021-2027 and with the EU budget in general and, second, by adopting measures intended to put an end to the direct payments of agricultural aid from the EU budget in favour of certain companies over which Mr Babiš exercises control and of which he is the effective proprietor,
THE GENERAL COURT (Eighth Chamber),
composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and J. Laitenberger, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        By letter of 30 January 2020, the applicant, Mr Lukáš Wagenknecht, a member of the Senát Parlamentu České republiky (Senate of the Czech Republic), asked the European Commission to adopt binding and dissuasive measures designed to prevent or deal with the alleged conflict of interests of Mr Andrej Babiš, the Prime Minister of the Czech Republic, in particular, first, by preventing the Members of the College of Commissioners, particularly its President, from meeting the Prime Minister of the Czech Republic, Mr Babiš, and discussing with him questions connected with the Multiannual Financial Framework of the European Union for 2021-2027 and with the EU budget in general and, second, by adopting measures intended to put an end to the direct payments of agricultural aid from the EU budget in favour of certain companies over which Mr Babiš exercises control and of which he is the effective proprietor (‘the call to act’), on the ground of an alleged conflict of interests of that representative of the Czech Republic, which arises from his personal and family interests in the Agrofert group and the Synbiol group, both active in particular in the agri-food sector.
2        In its reply of 25 March 2020, the Commission, while noting that the call to act addressed to it corresponded, to a large extent, to that already addressed to the European Council and which was the subject of the action for failure to act, pending before the General Court on that date, in Case T‑715/19 Wagenknecht v European Council, explained that it had already taken the necessary and proportionate measures in order to protect the EU budget. The Commission referred, first, to the fact that no payments under the European Structural and Investment Funds had been made to the beneficiaries potentially affected by the alleged conflict of interest and, second, to the decision of 28 November 2019 suspending payments under the European Agricultural Fund for Rural Development (EAFRD). In that context, the Commission stated that the latter decision had been challenged before the Court in Case T‑76/20, Czech Republic v Commission. Thus, because of that case, pending at the time and having subsequently been removed from the Register of the General Court following its withdrawal by the applicant (order of 25 August 2020, Czech Republic v Commission, T‑76/20, not published, EU:T:2020:379), the Commission had decided to refrain from making any further observations.
3        By email of 30 March 2020, the applicant again contacted the Commission, reiterating the questions which he had posed in the call to act, on the ground that, in his view, the Commission had not adopted a position on them in its reply of 25 March 2020. In the same email, the applicant posed additional questions, while acknowledging that those questions went beyond the scope of the call to act.
4        By letter of 23 April 2020, the Commission, taking note of the applicant’s email of 30 March 2020, replied that it had nothing to add to the previous correspondence.
Procedure and forms of order sought
5        By an application lodged at the Registry of the General Court on 9 June 2020, the applicant then brought an action on the basis of Article 265 TFEU, seeking a declaration of failure to act by the Commission in that it had unlawfully failed to act in response to the call to act.
6        By separate document lodged at the Court Registry on the same day and under the same conditions, the applicant made an application for expedited procedure under Article 151 of the Rules of Procedure of the General Court.
7        On 25 June 2020, the Commission lodged its observations on the application for expedited procedure.
8        By decision of 9 July 2020, the Court rejected the application for expedited procedure.
9        On 11 August 2020, the Commission raised a plea of inadmissibility on the basis of Article 130(1) of the Rules of Procedure, in which it claimed that the Court should:
–        dismiss the action as inadmissible and, in any event, manifestly devoid of any foundation in law;
–        order the applicant to pay the Commission's costs.
10      On 12 October 2020, since the applicant had not lodged observations on the plea of inadmissibility raised by the Commission, the Court Registry informed the parties that the written part of the procedure concerning the plea of inadmissibility had been closed.
Law
11      By virtue of Article 130 of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure.
12      In the case at hand, the Court considers that it has sufficient information available to it from the material in the file and has decided, pursuant to those provisions, to give a decision without taking further steps in the proceedings.
13      In its plea of inadmissibility, the Commission advances, in essence, two claims. First, it requests the Court not to take into account certain passages of the application. Second, it requests the Court to dismiss the action as inadmissible. It is appropriate to examine those two aspects in turn.
The claim that the Court should not take into account certain passages of the application
14      In its plea of inadmissibility, the Commission submits that, irrespective of the fact that the position of its Legal Service, as set out in an opinion dated 19 November 2018 (‘the legal opinion at issue’) and reproduced as Annex A.9 to the application, is not decisive for the purpose of ruling on the admissibility of the present action, the passages of the application referring to that opinion should not be taken into account in so far as that document is internal and the Commission did not consent to its disclosure. The information in question was thus obtained unlawfully.
15      In that regard, it should first be noted that, even if that application was not formally submitted by another separate document under Article 130(2) of the Rules of Procedure, it is admissible because it may be submitted at any stage of the proceedings (order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 130). Next, since that request was made in the context of the plea raised on the basis of Article 130(1) of the Rules of Procedure, the applicant was given an opportunity to state his views in that regard, even though he waived his right to submit observations on the plea of inadmissibility.
16      Further, it must be stated that, in fact, a number of passages in the application refer to the legal opinion at issue, which contains the position of the Commission’s Legal Service on the possible conflict of interests of Mr Babiš. As to that aspect, the applicant bases his arguments, in particular, on an article published in a Czech daily newspaper revealing the entire content of that legal opinion, an article which he produced as Annex A.9, to which annex reference is made twice in the application. However, it is not apparent from the application that access to that legal opinion was sought in advance from the Commission, or that the Commission had disclosed that opinion, in whole or in part, of its own volition or in response to a request for public access to documents of the institutions made under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
17      In that regard, it must be borne in mind that, although the provisions of Regulation No 1049/2001 are not applicable in the present proceedings, a number of passages of the application refer to the content of a legal opinion of an institution which has been disclosed by the media in the form of an article without the authorisation of its author or of its addressee. Thus, those provisions have some indicative value for the purpose of balancing the interests required to rule on the request that certain passages of the application not be taken into account (see, to that effect, order of 14 May 2019, Hungary v Parliament, C‑650/18, not published, EU:C:2019:438, paragraphs 9, 12 and 13; judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 67; and order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 39).
18      On that point, Article 4(2) of Regulation No 1049/2001 provides that ‘the institutions shall refuse access to a document where disclosure would undermine the protection of: … court proceedings and legal advice, … unless there is an overriding public interest in disclosure’. It would be contrary to the public interest, which must be taken into account under that provision, which states that the institutions may benefit from the advice of their legal service, given in full independence, to allow internal documents, which are in the nature of legal advice, to be produced in proceedings before the Court unless their production has been authorised by the institution concerned or ordered by the Court (see order of 14 May 2019, Hungary v Parliament, C‑650/18, not published, EU:C:2019:438, paragraph 8 and the case-law cited; judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 66; and order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 40).
19      In the present case, by relying on and producing, in the present action, the legal opinion at issue, emanating from the Commission’s Legal Service and containing a legal assessment of questions of law which are relevant to the subject matter of the action, the applicant seeks to confront the Commission with that legal opinion in the present proceedings. However, were the EU Courts to be able to take into account that legal opinion at the judicial stage, even in a form reproduced on a media website, when its disclosure has not been authorised by the Commission, that would amount to
permitting the applicant to circumvent the procedure for requesting access to such a document, as instituted by Regulation No 1049/2001 (see, to that effect, order of 14 May 2019, Hungary v Parliament, C‑650/18, not published, EU:C:2019:438, paragraph 14; judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 68; and order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 51).
20      In the present case, there is a foreseeable and far from hypothetical risk that, as a result of the references in the application to the content of the legal opinion at issue and the unauthorised production of that legal opinion as Annex A.9 in the present proceedings, the Commission will be obliged to adopt a position publicly on a legal opinion which was clearly intended for internal use by an EU institution. Such a prospect would inevitably have negative consequences for the interest of the institutions, in particular of the Commission, in seeking legal advice and in receiving frank, objective and comprehensive advice (see, to that effect, judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 70; see also, by analogy, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 42; order of 14 May 2019, Hungary v Parliament, C‑650/18, not published, EU:C:2019:438, paragraph 16; and order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 52).
21      The Commission is therefore entitled to rely, in the present case, on the protection of legal advice, as provided for in the second indent of Article 4(2) of Regulation No 1049/2001.
22      As regards the existence of an overriding public interest which could justify the taking into account of the passages at issue of the application and of Annex A.9, it is indeed not excluded that, even if the legal opinion which that annex reproduces does not concern a legislative procedure in respect of which increased openness is required (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 46, 47, 67 and 68), considerations connected with the freedom of the press and the prerogatives associated with the exercise of the office of a Member of the Senate of the Czech Republic, such as that exercised by the applicant, could have justified the disclosure, two years after its adoption, of the legal opinion at issue.
However, the applicant, who did not submit observations on the plea of inadmissibility, has not claimed that such an overriding public interest exists.
23      As regards the fact that the applicant had access to the legal opinion at issue through the website of a national media outlet
cannot call into question the foregoing considerations concerning the interest of the Commission in preserving its prerogative to seek legal advice from its Legal Service and in receiving frank, objective and comprehensive advice (see, to that effect, judgment of 31 January 2020, Slovenia v Croatia, C‑457/18, EU:C:2020:65, paragraph 72 and the case-law cited, and order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 55), it being pointed out that, even if it were in fact open to the Commission to take steps intended, in particular, to avoid such a document being leaked to the press and to have that web document de-referenced, the fact remains that the lack of initiative or lack of success on the part of the Commission in that regard cannot permit the conclusion that it implicitly authorised the disclosure of that document under Regulation No 1049/2001 (order of 20 May 2020, Nord Stream 2 v Parliament and Council, T‑526/19, under appeal, EU:T:2020:210, paragraph 56).
24      Consequently, irrespective of the fact that, in any event, that document is not relevant for the purpose of dealing with the arguments relied on by the Commission in its plea of inadmissibility, which are that the Commission has not failed to act and that the applicant has no locus standi or interest in bringing proceedings, it is appropriate to grant the Commission’s request that, in essence, the Court should disregard the passages of the application referring to the legal opinion at issue and Annex A.9.
The plea of inadmissibility
25      In its plea of inadmissibility, the Commission submits that the action is inadmissible for a number of reasons. First, the Commission is of the opinion that it properly defined its position within two months after being called upon to act in accordance with Article 265 TFEU. Thus, its reply to the call to act, of 25 March 2020, sent to the applicant brought to an end the alleged failure to act.
26      Second, the Commission is of the view that the applicant had neither an interest in bringing proceedings nor locus standi under Article 265 TFEU.
27      Lastly, the Commission contends that the action is, in any event, manifestly lacking any foundation in law.
28      As a preliminary point, it must be recalled that, under the first paragraph of Article 265 TFEU, where the European Parliament, the European Council, the Council of the European Union, the Commission or the European Central Bank, or bodies, offices and agencies of the Union, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established.
29      The third paragraph of Article 265 TFEU also provides that any natural or legal person may, under the same conditions, complain to the Court of Justice of the European Union 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. It follows, however, from the wording of that provision that, in order for his or her action for failure to act to be admissible, a natural or legal person must establish that he or she is in a legal situation identical or similar to that of the potential addressee of a legal measure which the institution concerned would be obliged to take in relation to that person (see, to that effect, judgment of 10 June 1982, Bethell v Commission, 246/81, EU:C:1982:224, paragraphs 15 and 16; orders of 23 May 1990, Asia Motor France v Commission, C‑72/90, EU:C:1990:230, paragraphs 10 to 12; and of 23 January 1991, Prodifarma v Commission, T‑3/90, EU:T:1991:2, paragraph 35). In other words, that natural or legal person must establish either that he, she or it is the addressee of the act which the institution complained of allegedly failed to adopt in respect of that person, or that that act directly and individually concerned him, her or it in a manner analogous to that in which the addressee of such an act would be concerned (see, to that effect, judgments of 26 November 1996, T. Port, C‑68/95, EU:C:1996:452, paragraph 59, and of 15 September 1998, Gestevisión Telecinco v Commission, T‑95/96, EU:T:1998:206, paragraph 58).
30      Moreover, such a natural or legal person must show an interest in bringing proceedings on the basis of
Article 265 TFEU, the existence of which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42; of 17 April 2008, Flaherty and Others v Commission, C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230, paragraph 25; and of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25). By contrast, there is no interest in bringing proceedings when the favourable outcome of an action could not, in any event, give the applicant satisfaction (see judgment of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 85 and the case-law cited).
31      In the present case, first, it must be held that the acts which the applicant requested the Commission to adopt, namely binding measures intended to prevent or deal with the alleged conflict of interests of the Prime Minister of the Czech Republic, in particular, on the one hand, by preventing meetings and discussions on the Multiannual Financial Framework of the European Union for 2021-2027 and on the EU budget in general between the members of the College of Commissioners, including its President, and the Prime Minister of the Czech Republic, and, on the other, by putting an end to direct payments of agricultural aid from the EU budget in favour of the Agrofert group and the Synbiol group, would not be acts addressed by the Commission to the applicant, but decisions of that institution which would be addressed, for example, to the members of the College of Commissioners and that Prime Minister. Thus, even if the applicant relies on his status as a member of the national representation of the Member State in question, in this case the Senate of the Czech Republic, and on his status as a member of a committee set up in order to investigate the conflict of interests of the Czech Prime Minister, in order for him to act in the public interest, the fact remains that the case-law referred to in paragraphs 29 and 30 above requires, on the contrary, that the applicant, as regards demonstrating an interest in bringing proceedings, show an
actual and existing personal interest in a finding that
the Commission has allegedly failed to act. In addition and in any event, the condition referred to in the third paragraph of Article 265 TFEU, concerning the interest in bringing proceedings and requiring that any natural or legal person complaining that the institution involved has failed to send to that person an act, other than a recommendation or an opinion, addressed to that person or concerning him or her directly and individually, is clearly not satisfied in the applicant’s case since, on the contrary, the measures sought from the Commission were addressed to third parties (see, to that effect, orders of 23 January 1991, Prodifarma v Commission, T‑3/90, EU:T:1991:2, paragraph 37, and of 26 November 1996, Kuchlenz-Winter v Council, T‑167/95, EU:T:1996:172, paragraph 20).
32      Second, under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act. However, it follows from the same paragraph that the action may be brought within a further period of two months only if, on expiry of the period of two months from the call to act, the institution, body, office or agency has not defined its position.
33      In that regard, it should be borne in mind that that provision refers to failure to act by the failure of the institution concerned to take a decision or to define its position (judgments of 13 July 1971, Deutscher Komponistenverband v Commission, 8/71, EU:C:1971:82, paragraph 2; of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22, and of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 52). Thus, the conditions for admissibility of an action for failure to act, laid down by Article 265 TFEU, are not satisfied, in principle, where the institution called upon to act has defined its position on that call to act before the action was brought (judgments of 1 April 1993, Pesqueras Echebastar v Commission, C‑25/91, EU:C:1993:131, paragraph 11, and of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 45).
34      Moreover, it follows from the case-law that Article 265 TFEU relates to a failure to act in the sense of failure to take a decision or to define a position and not to the adoption of a measure different from that desired or considered necessary by the persons concerned (judgment of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 46; see also, to that effect, judgment of 1 April 1993, Pesqueras Echebastar v Commission, C‑25/91, EU:C:1993:131, paragraph 12 and the case-law cited).
35      Consequently, where, supported by explanations, the institution refuses to act in accordance with such a call to act, that constitutes a definition of position bringing the failure to act to an end and such a refusal, thus expressed in detail, constitutes an act open to challenge under Article 263 TFEU (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 32 and 33, and order of 7 December 2017, Techniplan v Commission, T‑853/16, not published, EU:T:2017:928, paragraph 20).
36      In the present case, even though, on 25 March 2020, the Commission had explained to the applicant the reasons for its refusal to act in the manner requested of it, he did not seek to bring the present action under Article 263 TFEU in order to obtain annulment of the Commission’s decision, as set out in that letter of 25 March 2020, not to take the steps which it was requested to take in the call to act. It is in the context of such an action for annulment that, if necessary, subject to being able to prove an interest in bringing proceedings against such a decision, the applicant could have challenged the reasons given by the Commission to justify its decision not to prevent meetings between the members of the College of Commissioners and the Prime Minister of the Czech Republic or to take other measures in connection with the payment of direct agricultural aid from the EU budget under the EAFRD. Moreover, as the Commission points out in its reply of 25 March 2020 to the call to act, payments to the Czech Republic of agricultural aid under the European Structural and Investment Funds had been suspended on that date.
37      In the light of all the foregoing considerations, the plea of inadmissibility raised by the Commission must be upheld and, consequently, the action must be dismissed as inadmissible, it being emphasised, in response to the applicant’s arguments concerning an alleged denial of justice in the event that his action were to be dismissed as inadmissible, even though he is a member of a national parliament and is the subject of threats to his physical safety, that Article 47 of the Charter of Fundamental Rights of the European Union is not intended to modify the system of judicial review laid down by the Treaties (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97, and order of 28 February 2017, NF v European Council, T‑192/16, EU:T:2017:128, paragraph 74).
Costs
38      Under Article 134(1) 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 Commission has applied for costs, the applicant must be ordered, in addition to bearing his own costs, to pay the Commission’s costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      No regard shall be had to the document produced as Annex A.9 and passages from the application referring to the content of that document.
2.      The action is dismissed as inadmissible.
3.      Mr Lukáš Wagenknecht shall pay the costs.
Luxembourg, 17 December 2020.
E. Coulon
J. Svenningsen
Registrar
President
*      Language of the case: English.