Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 5 March 2026 (1)
Case C‑507/24 P
YS
v
Council of the European Union,
European Commission
( Appeal – Institutional law – Enhanced cooperation on the establishment of the European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Appointment of European prosecutors to the European Public Prosecutor’s Office – Appointment of one of the candidates nominated by the Hellenic Republic – Alleged infringement of the rules applicable to European Prosecutors – Action for annulment – Review of the legality of the proposal for appointment )
1.        By Decision (EU) 2023/1335, (2) the Council appointed five ‘European Prosecutors of the European Public Prosecutor’s Office’ (‘European Prosecutors’), including the candidate proposed by Greece.
2.        A Greek judge who had not been selected as a candidate at the national stage of the procedure brought an action for annulment before the General Court (3) against Decision 2023/1335. (4)
3.        By order of 8 May 2024 (‘the order under appeal’), the General Court held that it lacked jurisdiction to rule on the validity of Decision 2023/1335, in so far as its alleged illegality follows from the unlawfulness of a national measure, in this instance the proposal of candidates for appointment as European Prosecutors, which may be assessed only by the national courts.
4.        YS has brought an appeal against the order made by the General Court. His appeal gives the Court of Justice an opportunity to analyse the distribution of powers relating to the judicial review of measures, at national and EU level, forming part of the procedure for the appointment of European Prosecutors that is laid down in Regulation (EU) 2017/1939. (5)
I.      Background to the dispute
5.        The background to the dispute is set out in paragraphs 2 to 12 of the order under appeal and can be summarised as follows:
–        On 27 September 2022, the Greek authorities launched a competition among prosecutors for the appointment of three candidates to the position of European Prosecutor from 29 July 2023.
–        On 17 October 2022, YS lodged his candidature with the Greek authorities.
–        By decision of 20 December 2022, the Anotato Dikastiko Symvoulio Politikis kai Poinikis Dikaiosynis (Supreme Council of Civil and Criminal Justice Greece; ‘the SCCCJ’) rejected YS’s candidature on the ground that he did not meet the requirement laid down in national Law No 4786/2021, inasmuch as YS was not a prosecutor but a judge.
–        By the same decision, the SCCCJ nominated, on behalf of the Hellenic Republic, three candidates for the position of European Prosecutor.
–        On 22 March 2023, YS challenged the SCCCJ’s decision before the Symvoulio tis Epikrateias (Council of State, Greece). (6)
–        In the light of the candidatures submitted by the national authorities, the selection panel (7) provided for in Article 14(3) of Regulation 2017/1939 drew up reasoned opinions and a ranking of each of the candidates nominated by the national authorities and forwarded these to the Council.
–        Having received the selection panel’s proposal, the Council adopted Decision 2023/1335.
II.    Procedure before the General Court and order under appeal
6.        By its action for annulment, YS claimed that the General Court should:
–        Annul Decision 2023/1335, either in its entirety or at least in so far as it concerns the appointment of the Greek candidate for the position of European Prosecutor.
–        Find and annul the Commission’s failure to act, in that it unlawfully refrained from reviewing the proposal for the appointment of candidates to the European Public Prosecutor’s Office made by the Greek authorities.
–        Order the Council and the Commission to pay the costs.
7.        Both the Council and the Commission raised an objection of inadmissibility to YS’s action.
8.        By the order under appeal, the General Court declared its lack of jurisdiction to rule on the legality of the proposal of candidates submitted by the national authorities to the Council. (8)
9.        The General Court based its ruling on the following paragraphs of the order under appeal:
–        In paragraph 37, it reproduced paragraphs 45 and 46 of the judgment in Berlusconi and Fininvest. (9)
–        In paragraph 38, it held that the provisions of Article 16(2) of Regulation 2017/1939 determine the Council’s discretion with respect to candidatures for appointment to the European Public Prosecutor’s Office submitted by the Member States, which is limited to a mere check of the candidatures proposed against the requirements for exercising the functions of European Prosecutor. Conversely, the Council does not have any power to examine the grounds for rejection of candidatures dismissed at the national stage of the procedure.
–         In paragraph 39, it stated that it follows from the distribution of powers between the national authorities and the EU institutions within the sphere covered by the provisions of Regulation 2017/1939 that the measure nominating candidates for appointment to the European Public Prosecutor’s Office, adopted by the national authority, is binding on the Council and determines the terms of its decision, inasmuch as the latter cannot refer to candidatures other than those submitted to it by the Member States concerned.
–        In paragraph 40, it inferred from the foregoing that it is not for the General Court to examine the argument as to the alleged unlawfulness of the SCCCJ’s decision rejecting YS’s candidature, the review of which falls to the national courts under the conditions recalled in paragraph 37 of the same order.
–        In paragraph 41, it found that, since YS had not put forward any other argument to demonstrate the unlawfulness of Decision 2023/1335, his claims for annulment had to be declared inadmissible.
10.      In the alternative, the General Court held that YS had not succeeded in demonstrating the existence of a current or certain interest in challenging Decision 2023/1335. His standing to challenge that decision is contingent upon a future and uncertain fact, such as the prior annulment of the national decision rejecting his candidature. (10)
III. Appeal and procedure before the Court of Justice
11.      The appeal lodged by YS was registered at the Court of Justice on 18 July 2024.
12.      In his appeal, YS claims that the Court should:
–        Set aside the order under appeal.
–        Annul Decision 2023/1335, either in its entirety or in so far as it concerns the appointment of the Greek candidate and the rejection of YS’s candidature for the position of European Prosecutor.
–        Order the Council and the Commission to pay the costs.
13.      The appeal is based on two grounds:
–        Error of law as regards the lack of jurisdiction of the General Court.
–        Error of law as regards the lack of standing to challenge Decision 2023/1335.
14.      The Council and the Commission contend that the Court should dismiss the appeal and order YS to pay the costs.
IV.    Assessment
A.      Admissibility of the appeal
1.      Arguments
15.      Although it does not formally request that the appeal be declared inadmissible, the Council submits that YS’s appeal is confined to repeating or reformulating the arguments presented at first instance. In accordance with the case-law of the Court of Justice, the appeal is therefore inadmissible.
16.      YS argued in his reply that the Council’s objection is manifestly unfounded, since a careful reading of the appeal shows that its arguments seek to correct the error of law committed by the General Court.
2.      Analysis
17.      An appeal must indicate precisely the contested elements of the judgment
which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. (11)
18.      The elements of an appeal which do not contain any argument specifically intended to identify the error of law allegedly vitiating the contested judgment and confine themselves to reproducing the arguments previously submitted to the General Court do not satisfy that requirement and must be dismissed as manifestly inadmissible. (12)
19.      Conversely, where an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose. (13)
20.      In this appeal, YS challenges openly and in detail the arguments on the basis of which the General Court delivered the order under appeal. He criticises those arguments on grounds relating, first, to the General Court’s lack of jurisdiction to rule on the legality of the proposal of candidates submitted by the national authorities to the Council, and, secondly, to YS’s lack of standing to challenge Decision 2023/1335.
21.      Consequently, the appeal is, in my opinion, admissible.
B.      Substance
1.      First ground of appeal
22.      YS accuses the General Court of having committed an error of law in considering itself to lack jurisdiction to rule on the legality of the proposal of candidates submitted by the national authorities to the Council.
(a)    Arguments of the parties
23.      YS submits that the General Court misapplied the case-law established in the judgment in Berlusconi and Fininvest.
24.      In his contention, it follows from that case-law that determining which court has jurisdiction to review the legality of a Member State’s nomination of candidates for the position of European Prosecutor depends on whether the EU institutions have sufficient discretion to assess the national measure in question.
25.      Thus, if the national measure is binding on the EU institutions, jurisdiction lies with the national courts. If not, the measure is deemed to be preparatory and its incidental review falls within the jurisdiction of the EU courts as part of their verification of the legality of the Council’s final measure. (14)
26.      In YS’s view, the General Court errs in concluding that the Council is bound by the national proposal. First, because it is unthinkable that the Council should not be able to reject a manifestly illegal proposal and request the submission of new candidatures. Secondly, because it would be absurd to prevent the Council from reviewing the legality of the proposal when, as the General Court has itself conceded, it has a broad margin of discretion to assess and compare the merits of the candidates. (15)
27.      That fact, combined with the extensive powers of the selection panel, means, according to YS, that the EU institutions are so actively involved in the procedure that they cannot remain indifferent to the flagrant infringement of EU law that would be constituted by proposing candidates selected in accordance with a national procedure that does not comply with the principle of legality.
28.      The Council and the Commission argue that the General Court did not commit the error of law complained of but confined itself to correctly applying the rule established in the judgment in Berlusconi y Fininvest.
(b)    Analysis
(1)    Procedure for the appointment of European Prosecutors
29.      Pursuant to Article 16(1) of Regulation 2017/1939, the procedure for the appointment of European Prosecutors starts with the nomination by each Member State of three candidates:
–        who are active members of the public prosecution service or judiciary of the relevant Member State;
–        whose independence is beyond doubt; and
–        who possess the qualifications required for appointment to high prosecutorial or judicial office in their respective Member States, and who have relevant practical experience of national legal systems, of financial investigations and of international judicial cooperation in criminal matters.
30.      Compliance with those conditions must be verified, according to Article 16(2) of Regulation 2017/1939, by means of a reasoned opinion of the selection panel referred to in Article 14(3) of the same regulation. (16)
31.      After having received the reasoned opinion of the selection panel, the Council must select and appoint one of the candidates to be the European Prosecutor of the Member State in question, according to the provisions of Article 16(2) of Regulation 2017/1939.
32.      If the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion must be binding on the Council.
33.      It follows from reading those provisions that the procedure for the appointment of European Prosecutors comprises three stages:
–        In the first, strictly national, stage, each of the Member States proposes three candidates.
–        In the second stage, the selection panel established in Regulation 2017/1939 issues a reasoned opinion on the suitability of the candidates proposed.
–        In the third and final stage, the Council appoints one of the candidates considered suitable by the selection panel.
34.      It is therefore a composite procedure in which the exercise of a decision-making power conferred exclusively on an EU institution (the appointment of European Prosecutors) requires the prior exercise by the Member States of a power of proposal which EU law confers on them on an equally exclusive basis (the nomination of candidates to be European Prosecutors).
(2)    Distribution of the powers of judicial review of measures forming part of a composite procedure
35.      In the judgment in Berlusconi and Fininvest, the Court of Justice established the following rule:
–        ‘An act of a national authority that is part of a decision-making process of the European Union does not fall within the exclusive jurisdiction of the EU Courts where it is apparent from the division of powers in the field in question between the national authorities and the EU institutions that the act adopted by the national authority is a necessary stage of a procedure for adopting an EU act in which the EU institutions have only a limited or no discretion, so that the national act is binding on the EU institution’. (17)
–        ‘It then falls to the national courts to rule on any irregularities that may vitiate such a national act – making a reference to the Court for a preliminary ruling where appropriate – on the same terms as those on which they review any definitive act adopted by the same national authority which is capable of adversely affecting third parties and moreover, in the light of the principle of effective judicial protection, to regard an action brought for that purpose as admissible even if the national rules of procedure do not so provide’. (18)
36.      In composite procedures that involve both national authorities and the European Union, it may be that the national authority has a specific and exclusive decision-making power of its own, in which case the national courts alone will have jurisdiction to review the legality of its measures. (19)
37.      Unlike in the case of the composite procedures that exist in the context of the banking union (where the national stage is merely preparatory to the EU stage, at which the EU institution or body holds all of the decision-making power), (20) the national stage in
the procedure for the appointment of European Prosecutors is valid in its own right, since the national authorities adopt decisions with binding effects, as I shall analyse below. Those decisions are subject to review by the national courts alone.
(3)    Jurisdiction in the case at issue
38.      The General Court proceeds on the premiss that the measure by which a national authority nominates candidates for appointment as European Prosecutors is binding on the Council and determines the terms of its decision, in so far as that decision may not refer to candidatures other than those which have been put forward by the Member States. (21)
39.      YS, on the other hand, submits that the national proposal leaves the Council a broad margin of discretion to verify the eligibility of the candidates proposed, and, therefore, necessarily, to review the legality of the national selection procedure. (22)
40.      To my mind, the Commission is correct in arguing that the appellant has misinterpreted paragraph 39 of the order under appeal.
41.      After all, the national measure proposing three candidates for appointment as European Prosecutors is binding on the European Union not in the sense that the latter must necessarily appoint one of the candidates proposed, but in the sense that the Council may not appoint a candidate not included in the proposal.
42.      Proof of this lies in the fact that, if the Council rejects all of the candidatures, it is (exclusively) for the Member State to make a new proposal. (23)
43.      The EU institutions are entirely at liberty to assess the merits of the candidates and, in that sense, are not bound by the national proposal. They are, however, bound by, and have no scope to deviate from, the Member State’s decision to limit the group of those qualifying for appointment by the Council to the three candidates proposed. That national proposal measure, in circumscribing the context in which the Council must decide, leaves no margin for discretion to (which is to say that it is binding on) that EU institution.
44.      In other words, the Council is at liberty to reject the national proposal but not to replace it or amend it. It does not have the power to propose candidates but only to appoint one of those proposed by the Member State.
45.      The measure proposing candidates (which is binding on the Council in the manner mentioned above) is amenable to judicial review by the national courts alone. It will, conversely, fall to the EU courts to review the validity of the appointment by the Council of one of the candidates proposed by the Member State.
46.      The General Court did not therefore commit an error of law in declaring that it lacked jurisdiction to rule on the legality of the proposal of candidates submitted by the Greek authorities to the Council, since jurisdiction to do so lies with the Greek courts.
47.      YS has insisted that the Council cannot possibly be bound by a proposal drawn up on the basis of a manifestly unlawful procedure. He illustrates his argument in this regard by drawing on examples which he himself acknowledges to be extreme. (24)
48.      The argument which YS thus puts forward depicts hypothetical scenarios which do not correspond to the situation at issue in the present case (25) and are therefore incapable of having any bearing on the outcome of the appeal, which is confined to the facts which the General Court took into account.
49.      In the event that the Court considers it necessary to rule on this argument by YS notwithstanding its hypothetical nature, it should, in my view, reject it.
50.      After all, if a Member State organises an open selection procedure – which it is under no obligation to do under Regulation 2017/1939 – it must arrange it in such a way as to be in conformity with EU law:
–        In the first place, that procedure must comply with Regulation 2017/1939, which is to say that it must be designed in such a way as to make it possible to select candidates that meet the conditions laid down in Article 16(1) of that regulation.
–        Secondly, and in general, the procedure must be respectful of the principles and rules of EU law, in particular, the prohibition of discrimination.
51.      The matter at issue in this appeal, however, is different, and is confined to the validity of Decision 2023/1335 as such. This issue cannot be equated with that of determining who is responsible for ensuring compliance with EU law in connection with a national proposal of candidates for the position of European Prosecutor.
52.      Of course, responsibility for reviewing the legality of such a proposal does not lie with the Council, as YS argues, or with the EU courts, since the case-law summarised in the judgment in Berlusconi and Fininvest confers the power to review the legality of national measures, under the conditions set out above for cases such as this, on the national courts.
53.      The foregoing is borne out by the ruling given by the Court of Justice in a case which bears some similarity to that at issue here: the review of measures forming part of the procedure for the appointment of judges to the General Court. The ruling in question is the judgment of 29 July 2024, Valančius. (26)
54.      The procedure for appointing judges to the General Court consists of three stages, of which the first and second are relevant to this appeal:
–        At the first stage, the government of the Member State proposes a candidate for the office in question and sends that proposal to the General Secretariat of the Council.
–        At the second stage, the panel provided for in Article 255 TFEU gives an opinion on that candidate’s suitability to perform the duties of a Judge of the General Court, having regard to the requirements laid down in the second paragraph of Article 254 TFEU.
55.      The Court of Justice, far from questioning the jurisdiction of a national court to verify the legality of a proposed candidature for appointment to the General Court (as adopted by the national authorities at the first stage of the procedure), (27) provided the national court with an interpretation of the provisions of EU law with which its request for a preliminary ruling was concerned.
56.      In the view of the Court of Justice, responsibility for reviewing the legality of a proposal of a candidate for the office of Judge of the General Court made by the national authorities at the first stage of the procedure lies with the national court, which must verify that proposal ‘in the light of the requirements laid down by [the] provisions’ of EU law governing the appointment process. (28)
57.      In short, there is no reason why the Council should be inexorably bound to accept a proposal arising from a procedure that does not comply with EU law. On the contrary, it can rely on the assurance that the legality of that proposal will, where appropriate, be reviewed by the national courts.
58.      It is true that the Council may be faced with proposals the preparation of which has not been reviewed by a national court, either because there was no public selection procedure capable of being reviewed, or because nobody appealed against them. In the first case, there would be nothing to review (for the Council either); in the second, the presumption of legality inherent in acts of the public authorities which, although open to judicial review, have not been challenged, would apply. (29)
59.      In this case, as has already been noted, proceedings concerning the legality of the proposal made by the SCCCJ were brought before the national court. Those proceedings will enable it to be determined whether the Greek procedure for the selection of candidates for the position of European Prosecutor should have allowed candidatures from judges, and not only from members of the Public Prosecutor’s Office.
2.      Second ground of appeal
60.      Under the second ground of appeal, the General Court is accused of having committed an error of law in finding that YS did not have a current and certain interest in challenging Decision 2023/1335.
61.      In so far as the first ground of appeal should, in my opinion, be dismissed, there would be no need to examine the second.
62.      After all, if the Court of Justice were to confirm that the General Court lacked jurisdiction to uphold the appellant’s claims, that finding would preclude the analysis of any other ground of appeal.
63.      I shall nonetheless address the second ground of appeal in the event that the Court of Justice upholds the first.
(a)    Arguments of the parties
64.      In the opinion of YS:
–        Upholding the first ground of appeal would mean that the General Court has jurisdiction to ‘re-examine’ Decision 2023/1335, including ‘the preparatory measure/decision of the SCCCJ’. Any finding by the General Court that the SCCCJ’s decision was illegal would lead to the annulment of the rejection of YS’s candidature. (30)
–        Making standing to challenge Decision 2023/1335 subject to the prior annulment by a national court of the rejection of his candidature is tantamount to depriving him of the right to effective judicial protection, since the time limit for bringing an action before the General Court against that decision would have already expired by the time the national judicial proceedings had been concluded.
–        There is a risk that the national court hearing the action brought against the SCCCJ’s decision
will not make a reference for a preliminary ruling to the Court of Justice.
–        The infringement of his right to effective judicial protection could not be remedied by an action for damages.
65.      The Council and the Commission argue, in essence, that the General Court correctly applied the case-law of the Court of Justice concerning standing to bring an action for annulment.
(b)    Analysis
66.      As I have already stated, the General Court considered, in the alternative, that YS had not succeeded in demonstrating the existence of a current or certain interest in challenging Decision 2023/1335.
67.      The General Court, relying on its own previous case-law, (31) recalled that an action for annulment brought by a natural person is admissible only where that person has an interest in obtaining the annulment of the measure challenged. Such an interest presupposes that the annulment of that measure may in itself have legal consequences and that, by its outcome, the action may procure an advantage for the party which brought it.
68.      On that basis, the General Court held that YS’s standing to challenge Decision 2023/1335 is contingent upon a future and uncertain event in the form of the prior annulment of the national decision rejecting his candidature to participate in the national stage of the selection procedure. Such a decision was sub judice before a national court which had not yet given its ruling.
69.      In my view, that proposition is incorrect. As I see it, YS had standing to challenge Decision 2023/1335, inasmuch as, having sought to participate in the procedure culminating in that decision, he had an interest in having it declared void.
70.      A declaration as to the nullity of Decision 2023/1335 could have procured an advantage for YS (in the form of participation in a new selection process) if the General Court had upheld his arguments concerning the Council’s obligation to review the SCCCJ’s decision.
71.      In other words, if it were accepted (quod non) that the General Court has jurisdiction to rule on the legality of the national stage of the selection procedure, and, consequently, to review (on an incidental basis) the SCCCJ’s decision, there is in my opinion little doubt that YS would have standing to challenge Decision 2023/1335.
72.      After all, any declaration by the General Court that the SCCCJ’s decision did not comply with Article 16(1) of Regulation 2017/1039 (pursuant to which, candidates for the position of European Prosecutor must be active members of the public prosecution service or the judiciary) would necessarily lead to the reopening of the national procedure under conditions which would, at the very least, allow YS to submit his candidature. In that scenario, a candidate unsuccessful at the national stage of the procedure would have standing to challenge the final decision of the procedure as a whole (that is to say, Decision 2023/1335).
C.      Costs
73.      In accordance with Article 184 of the Rules of Procedure of the Court of Justice, and as applied for by the Council and the Commission, YS should be ordered to pay the costs of the appeal.
V.      Conclusion
74.      In the light of the foregoing, I propose that the Court of Justice:
–        Dismiss the appeal.
–        Order YS to pay the costs.
1      Original language: Spanish.
2      Council Decision of 27 June 2023 appointing the European Prosecutors of the European Public Prosecutor’s Office (OJ 2023 L 166, p. 116).
3      YS v Council and Commission (T‑411/23, EU:T:2024:310).
4      The action for annulment was also brought against the finding that the Commission had unlawfully refrained from instituting infringement proceedings against the Hellenic Republic. The appeal is exclusively confined to the part of the order concerning the claim that Decision 2023/1335 should be annulled. It is not therefore directed against the dismissal of the action for failure to act brought under Article 265 TFEU.
5      Council Regulation of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (OJ 2017 L 283, p. 1).
6      The outcome of that challenge was unknown on 8 May 2024, when the General Court made the order under appeal (paragraph 44 of the order under appeal).
7      Governed by Council Implementing Decision (EU) 2018/1696 of 13 July 2018 on the operating rules of the selection panel provided for in Article 14(3) of Regulation 2017/1939 (OJ 2018 L 282, p. 8).
8      In addition, the General Court declared inadmissible the claim that it should find the Commission to have improperly failed to act by not bringing infringement proceedings against the Hellenic Republic (paragraphs 25 to 32 of
the order under appeal). On appeal, YS has not challenged that part of the order under appeal.
9      Judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023; ‘the judgment in Berlusconi and Fininvest’).
10      Paragraphs 42 to 46 of the order under appeal.
11      Judgment of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52, paragraph 93). The legal basis for that case-law is to be found in the second subparagraph of Article 256(1) TFEU; the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union; and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice.
12      Judgment of 4 July 2000, Bergaderm and
Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraph 35); and order of 19 September 2019, Renew Consorzio Energie Rinnovabili v Commission and Italy (C‑325/19 P, EU:C:2019:768, paragraph 20).
13      Judgment of 7 July 2005, Le Pen v Parliament (C‑208/03 P, EU:C:2005:429, paragraph 40), with case-law citation.
14      Paragraph 21 of the appeal.
15      Paragraph 28 of the appeal, citing the judgment of the General Court of 12 January 2022, Verelst v Council (T‑647/20, EU:T:2022:5, paragraph 122).
16      The operation of that panel is governed by the annex to Implementing Decision 2018/1696. According to point VI.2 of that annex, the selection panel is to review the candidatures of the candidates nominated in the light of the requirements set out in Article 16(1) of Regulation 2017/1939. On the basis of its findings in the course of reviewing the candidatures and hearing the candidates, the selection panel must formulate an opinion on their qualifications to perform the duties of European Prosecutors and must expressly state whether or not a candidate fulfils the conditions of Article 16(1) of Regulation 2017/1939 (first paragraph of point VII.2). In the event that nominated candidates do not fulfil those conditions, the selection panel must request that the Member
State concerned nominate a corresponding number of new candidates (second paragraph of point VII.2). Finally, the selection panel must rank the candidates according to their qualifications and experience, indicating a non-binding order of preference (third paragraph of point VII.2).
17      Judgment in Berlusconi and Fininvest, paragraph 45.
18      Judgment in Berlusconi and Fininvest, paragraph 46.
19      Judgment of 29 January 2020, GAEC Jeanningros (C‑785/18, EU:C:2020:46, paragraph 25): ‘taking into account the decision-making power which thus belongs to national authorities under that system of division of powers
[within the framework of the registration procedure for a protected designation of origin], it is for national courts alone to rule on the lawfulness of measures adopted by those authorities – such as measures relating to the application to register a name – which constitute a necessary step in the procedure for adopting an EU act, since the EU institutions have, with regard to those measures, only limited, if any, discretion …’.
20      It was in this context that the judgment in Berlusconi and Fininvest was delivered.
21      Paragraph 39 of the order under appeal.
22      Paragraph 6 of the reply.
23      Second paragraph of point VII.2 of the annex to Implementing Decision 2018/1696.
24      Such as if the Member State were to: limit its proposal to ‘persons who, in addition to possessing the required knowledge, are gardeners, for example’ (paragraph 24 of the appeal); propose ‘mere jurists or legal practitioners who are not members of the public prosecution service or the judiciary’ (paragraph 25 of the appeal); hold ‘an auction to select the candidate …’ (paragraph 4 of the reply); or, finally, issue a call for candidatures which is discriminatory on grounds of sex (as previously cited).
25      The illegality that (allegedly) vitiates the Greek procedure for the selection of European Prosecutors has nothing to do with the circumstances which YS cites as examples in his appeal. The Greek procedure did not give preference to candidatures from gardeners, did not accept candidatures from legal practitioners and did not put the positions concerned up for auction, and there is nothing to indicate that anyone was discriminated against on grounds of sex.
26      Case C‑119/23 (EU:C:2024:653); ‘the judgment in Valančius’.
27      Judgment in Valančius, paragraph 29.
28      Judgment in Valančius, paragraph 38.
29      Once again, these are scenarios that enter into territory unrelated to the present appeal.
30      Paragraph 41 of the appeal.
31      Paragraph 42 of the order under appeal cites paragraphs 30 and 31 of the order of the General Court of 17 December 2020, IM v EIB and EIF
(T‑80/20, EU:T:2020:636), which, in turn, refer to paragraphs 134 and 135 of the judgment of 13 September 2011, Dredging International and Ondernemingen Jan de Nul v EMSA (T‑8/09, EU:T:2011:461). Paragraph 134 of the latter judgment reads: ‘where a tenderer’s bid is rejected before the phase preceding the award decision and accordingly was not compared with the other tenders, the interest of the tenderer concerned in bringing proceedings is conditional upon the annulment of the decision rejecting his tender. It is only if the latter decision is annulled that annulment of the award decision could possibly have legal consequences for the tenderer whose tender was rejected before the phase preceding the award decision and procure an advantage for him by removing a decision adopted following a comparison which, wrongly, failed to include his tender’.