62014TO0721_EN
Parties
Grounds
Operative part
Parties
In Case T‑721/14,
Kingdom of Belgium, represented by L. Van den Broeck and M. Jacobs, acting as Agents, and P. Vlaemminck and B. Van Vooren, lawyers,
applicant,
v
European Commission,
represented by H. Tserepa-Lacombe and F. Wilman, acting as Agents,
defendant,
APPLICATION for annulment of Commission Recommendation 2014/478/EU of 14 July 2014 on principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online (OJ 2014 L 214, p. 38),
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,
Registrar: E. Coulon,
makes the following
Order
Grounds
Background to the dispute
1. On 14 July 2014, the European Commission adopted Recommendation 2014/478/EU on principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online (OJ 2014 L 214, p. 38, ‘the contested recommendation’).
2. After summarising, in recitals 1 to 7 of the contested recommendation, certain contextual elements relating in particular to a public consultation conducted in 2011, the Commission Communication of 23 October 2012 entitled ‘Towards a comprehensive European Framework for online gambling’, the European Parliament resolution of 10 September 2013 on online gambling in the internal market and the case-law according to which, in the absence of harmonisation at Union level, Member States are in principle free to set the objectives of their policy on games of chance and to define the level of protection sought for the purpose of protecting the health of consumers, it being understood that the Court of Justice has nevertheless provided general guidance on the interpretation of the fundamental freedoms of the internal market in the area of gambling and has established ground rules for commercial communications on such services, the Commission stated the following in recitals 8, 9, 14 and 15 of the recommendation:
‘(8) The rules and policies that Member States have introduced to pursue public interest objectives vary considerably. Action at Union level encourages Member States to provide a high level of protection throughout the Union, in particular in light of risks associated with gambling that include the development of a gambling disorder or to other negative personal and social consequences.
(9) The aim of this Recommendation is to safeguard the health of consumers and players and thus also to minimise eventual economic harm that may result from compulsive or excessive gambling. To that end, it recommends principles for a high level of protection of consumers, players and minors as regards online gambling services. In preparing this Recommendation, the Commission has drawn from good practices in the Member States.
…
(14) Online gambling operators established in the Union increasingly hold multiple licences across several Member States which have chosen licence-based systems in relation to gambling regulation. They could benefit from a more common approach. Furthermore, the multiplication of compliance requirements can create unnecessary duplication of infrastructure and costs, resulting in an unnecessary administrative burden on regulators.
(15) It is appropriate to invite Member States to put forward rules providing consumers with information about online gambling. Such rules should prevent the development of gambling-related disorders and prevent minors from accessing gambling facilities and discourage consumers from availing of offers which are not allowed and therefore potentially harmful.’
3. The contested recommendation comprises 54 paragraphs, which appear in 12 sections.
4. In Section I, entitled ‘Purpose’, paragraphs 1 and 2 of the contested recommendation read as follows:
‘1. Member States are recommended to achieve a high level of protection for consumers, players and minors through the adoption of principles for online gambling services and for responsible commercial communications of those services, in order to safeguard health and to also minimise the eventual economic harm that may result from compulsive or excessive gambling.
2. This Recommendation does not interfere with the right of Member States to regulate gambling services.’
5. Sections III to X of the contested recommendation relate, respectively, to ‘information requirements’, ‘minors’, ‘player registration and account’, ‘player activity and support’, ‘time out and self-exclusion’, ‘commercial communication’, ‘sponsorship’ and ‘education and awareness’.
6. In paragraph 51 of the contested recommendation, which is part of Section XI, entitled ‘Supervision’, it is stated that ‘Member States are invited to designate competent gambling regulatory authorities when applying the principles laid down in this Recommendation to ensure and monitor in an independent manner effective compliance with national measures taken in support of the principles set out in this Recommendation’.
7. Lastly, in Section XII of the contested recommendation, entitled ‘Reporting’, paragraphs 52 to 54 read as follows:
‘52. Member States are invited to notify the Commission of any measures taken pursuant to this Recommendation by 19 January 2016 in order for the Commission to be able to evaluate the implementation of this Recommendation.
53. Member States are invited to collect reliable annual data for statistical purposes on:
(a) the applicable protection measures, in particular the number of player accounts (opened and closed), the number of self-excluded players, those experiencing a gambling disorder and complaints by players;
(b) commercial communication by category and by type of breaches of the principles.
Member States are invited to communicate this information to the Commission, for the first time by 19 July 2016.
54. The Commission should evaluate the implementation of the Recommendation by 19 January 2017.’
Procedure and forms of order sought
8. By application lodged at the Court Registry on 13 October 2014, the Kingdom of Belgium brought the present action.
9. By separate document lodged at the Court Registry on 19 December 2014, the Commission raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. The Kingdom of Belgium lodged its observations on that plea on 20 February 2015.
10. By separate documents lodged at the Court Registry on 12 and 16 January 2015 respectively, the Hellenic Republic and the Portuguese Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Kingdom of Belgium.
11. The Kingdom of Belgium claims that the Court should:
– declare the action admissible or, in the alternative, reserve the decision on the plea of inadmissibility for final judgment and set a time limit for submitting the claims for the remainder of the proceedings or, in the further alternative, rule on admissibility only after hearing the main parties and interveners;
– grant the application and annul the contested recommendation;
– order the Commission to pay the costs.
12. The Commission contends that the Court should:
– declare the action inadmissible;
– order the Kingdom of Belgium to pay the costs.
Law
13. Under Article 130(1) of the Rules of Procedure of the General Court, if the defendant so applies, the Court may rule on inadmissibility without going to the substance of the case. In the present case the Court considers that it has sufficient information available to it from the material in the file in the case and decides to give its decision without taking further steps in the proceedings.
14. The Commission claims that the present action is inadmissible on the ground that the contested recommendation does not constitute an act open to challenge under Article 263 TFEU. In essence, it asserts that, both in its form and in its content, the contested recommendation is a ‘genuine’ recommendation within the meaning of Article 288 TFEU, which has no binding force and does not impose any binding obligations. That is shown by the formal presentation of the recommendation based on Article 292 TFEU, by its non-mandatory and conditional wording, and by recital 5 and paragraph 2 of the recommendation. The Commission adds that none of the arguments raised by the Kingdom of Belgium in the application can cast doubt on that classification of the contested recommendation as an act not open to challenge.
15. The Kingdom of Belgium contends that the present action is admissible. In essence, relying in particular on the judgments of 31 March 1971 in Commission
v Council, ‘AETR’ (22/70, ECR, EU:C:1971:32) and 13 December 1989 in Grimaldi
(C‑322/88, ECR, EU:C:1989:646) and on the principle of effective judicial protection, it claims that the contested recommendation is amenable to judicial review. First, it asserts that the recommendation produces ‘negative legal effects’ because, as is shown by the first, third and fourth pleas in law raised in the application, it infringes fundamental principles of EU law, namely the principle of conferral and the duty of sincere cooperation between EU institutions and between those institutions and the Member States. Second, it maintains, in connection with the second and fifth pleas in law raised in support of the present action, that the contested recommendation stems from the intention to harmonise the application of the provisions of Articles 49 TFEU and 56 TFEU in the area of gambling and in fact constitutes a hidden directive, which must be reviewed by the Court. In this regard it adds that the contested recommendation has indirect legal effects because, under their duty of sincere cooperation, Member States are subject to an obligation to use best endeavours to comply with it and that national courts and tribunals will also have to take the recommendation into consideration.
16. According to consistent case-law any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures within the meaning of Article 263 TFEU (judgments in AETR, cited in paragraph 15 above, EU:C:1971:32, paragraph 42; of 13 October 2011 in Deutsche Post and Germany
v Commission, C‑463/10 P and C‑475/10 P, ECR, EU:C:2011:656, paragraph 36, and 13 February 2014 in Hungary
v Commission, C‑31/13 P, ECR, EU:C:2014:70, paragraph 54).
17. On the other hand, any act not producing binding legal effects, such as preparatory acts, confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions, falls outside the scope of the judicial review provided for in Article 263 TFEU (see, to that effect, judgment of 12 September 2006 in Reynolds Tobacco and Others
v Commission, C‑131/03 P, ECR, EU:C:2006:541, paragraph 55 and case-law cited, and order of 14 May 2012 in Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, EU:C:2012:292, paragraph 52).
18. In the light of the case-law, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997 in France
v Commission, C‑57/95, ECR, EU:C:1997:164, paragraph 18, and 1 December 2005 in Italy
v Commission, C‑301/03, ECR, EU:C:2005:727, paragraphs 21 to 23), its substance (see judgment of 22 June 2000 in Netherlands
v Commission, C‑147/96, ECR, EU:C:2000:335, paragraph 27 and case-law cited; see also, to that effect, judgments of 9 October 1990 in France
v Commission, C‑366/88, ECR, EU:C:1990:348, paragraph 23; 13 November 1991 in France
v Commission, C‑303/90, ECR, EU:C:1991:424, paragraphs 18 to 24, and 16 June 1993 in France
v Commission, C‑325/91, ECR, EU:C:1993:245, paragraphs 20 to 23) and the intention of its author (see, to that effect, judgments of 26 January 2010 in Internationaler Hilfsfonds
v Commission, C‑362/08 P, ECR, EU:C:2010:40, paragraph 52, and 17 July 2008 in Athinaïki Techniki
v Commission, C‑521/06 P, ECR, EU:C:2008:422, paragraph 42).
19. In the present case the contested act is a recommendation which was adopted by the Commission on the basis of Article 292 TFEU and which was published in full in the L series of the Official Journal of the European Union . As is evident in particular from recitals 2, 9 and 15, the contested recommendation, combining subject-matters relating to, on the one hand, protection of consumers, including minors, in the area of online gambling services and, on the other, responsible commercial communication of such services, has as its aim to safeguard the health of consumers and players and to minimise eventual economic harm that may result from compulsive or excessive gambling. According to its wording, it recommends principles for a high level of protection of consumers, players and minors as regards online gambling services and invites Member States to put forward rules providing consumers with information about online gambling.
20. It should be noted at the outset that under the fifth paragraph of Article 288 TFEU recommendations do not have binding force. However, it is settled case-law that the choice of form cannot alter the nature of a measure, such that it must be ascertained whether the content of a measure is wholly consistent with the form attributed to it (see judgment in Grimaldi, cited in paragraph 15 above, EU:C:1989:646, paragraph 14 and case-law cited). Consequently, and in the light of the case-law cited in paragraphs 16 to 18 above, the mere fact that the contested recommendation is formally designated as a recommendation and was adopted on the basis of Article 292 TFEU cannot automatically rule out its classification as a challengeable act.
21. First, it should be noted that the contested recommendation is worded mainly in non-mandatory terms.
22. Both the recitals and the paragraphs of the contested recommendation are mostly drafted in the conditional, as is shown in particular by the use of the [French] terms ‘devrait/devraient’ (in Danish ‘bør’, in German ‘sollte/sollten’, in Estonian ‘peaks/peaksid’, in Spanish ‘debería/deberían’, in Italian ‘dovrebbe/dovrebbero’, in Dutch ‘zou moeten/zouden moeten’, in Polish ‘powinien/powinno/powinny’, in Swedish ‘bör’ and in English ‘should’).
23. In addition, note should be taken, in paragraphs 1, 18, 20, 37, 47, 49 and 51 to 53 of the contested recommendation, of the [French] expressions ‘il est recommandé aux États membres de’ (in Danish, ‘Medlemsstaterne anbefales’, in Estonian ‘Liikmesriikidel soovitatakse’, in Italian ‘si raccomanda agli Stati membri’, in Polish ‘zaleca się’, in Portuguese ‘recomenda-se aos Estados-Membros’, in Swedish ‘Medlemsstaterna rekommenderas’, in English ‘Member States are recommended to’), ‘les États membres sont encouragés à’ (in Italian ‘gli Stati membri sono incoraggiati’, in Polish ‘zachęca się’, in Portuguese ‘os Estados-Membros são incentivados/encorajados’, in English ‘Member States are encouraged to’) or ‘les États membres sont invités à’ (in Danish, ‘Medlemsstaterne opfordres’, in Estonian ‘Liikmesriike kutsutakse üles’, in Italian ‘gli Stati membri sono invitati’, in Portuguese ‘os Estados-Membros são convidados’, in Swedish ‘Medlemsstaterna uppmanas’, in English ‘Member States are invited to’).
24. Such wordings are a clear and specific indication that the content of the contested recommendation is not intended to have binding legal effects (see, to that effect, judgment in Italy
v Commission, cited in paragraph 18 above, EU:C:2005:727, paragraphs 21 and 22).
25. It should be pointed out, however, that the Portuguese version of the contested recommendation includes the terms ‘deve’, ‘devem’, ‘deverá’ and ‘deverão’ (must).
26. Furthermore, paragraphs 1, 20, 37, 49 and 51 to 53 of the contested recommendation are, to some extent at least, drafted in more mandatory terms in other language versions, particularly the German, Spanish and Dutch versions. Whilst some of those paragraphs set out mere recommendations, as is shown by the use of the expression ‘den Mitgliedstaaten wird empfohlen’ (Member States are recommended to) in paragraph 1 of the German version of the recommendation, the expressions ‘se recomienda/anima/invita a los Estados miembros’ (Member States are recommended/encouraged/invited to) in paragraphs 1, 18, 20, 37, 47 and 51 to 53 of the Spanish version of the recommendation and the expressions ‘de lidstaten wordt aanbevolen’ (Member States are recommended to) and ‘de lidstaten worden aangemoedigd’ (Member States are encouraged to) in paragraphs 1, 18, 20, 37, 47 and 49 of the Dutch version of the recommendation, other paragraphs contain verbs with a more mandatory connotation. That is the case with the verbs ‘anhalten’ (instruct) and ‘auffordern’ (invite or order) in paragraphs 20, 37, 47, 49 and 51 to 53 of the German version of the recommendation, the verb ‘instar’ (urge or call on) in paragraph 49 of the Spanish version of the recommendation, and the verb ‘verzoeken’ (request) in paragraphs 51 to 53 of the Dutch version of the recommendation, the connotation of which is more mandatory than the verb ‘uitnodigen’, which is the usual translation of the French verb ‘inviter’.
27. Those divergences are nevertheless small as, aside from the fact that most of the language versions mentioned above are drafted in non-binding terms, the language versions cited in paragraph 26 above are, with a few exceptions, also drafted in mainly non-binding terms.
28. In any event, it is settled case-law that, for the purposes of ensuring a uniform application and interpretation of the same text, the version of which in one European Union language diverges from those in other languages, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 26 April 2012 in DR and TV2 Danmark, C‑510/10, ECR, EU:C:2012:244, paragraph 45 and case-law cited).
29. Second, it is therefore relevant that the content of the contested recommendation also shows that that act is not intended to have any binding legal effects and that the Commission had no intention to confer such effects on it.
30. It should be noted that, according to recitals 9 and 15 of the contested recommendation, the purpose of the recommendation is to recommend principles for a high level of protection of consumers, players and minors as regards online gambling services and to invite Member States to put forward rules providing consumers with information about online gambling. Similarly, it is clear from paragraph 1 of the recommendation that Member States are recommended to adopt principles essentially in order to achieve that objective.
31. It is also relevant that paragraph 2 of the contested recommendation expressly states that the recommendation does not interfere with the right of Member States to regulate gambling services, from which it must be inferred that the Commission did not intend to replace the Member States in regulating such services by adopting binding rules. Similarly, it should also be noted that in recitals 5 and 6 of the contested recommendation the Commission recalled the case-law according to which, in the absence of harmonisation at Union level, Member States are in principle free to set the objectives of their policy on games of chance and to define the level of protection sought for the purpose of protecting the health of consumers, it being understood that the Court has nevertheless provided general guidance on the interpretation of the fundamental freedoms of the internal market in the area of gambling and established ground rules for commercial communications on such services.
32. Lastly, it should be added that the contested recommendation does not include any explicit indication that the Member States are required to adopt and apply the principles set out therein.
33. It is true that paragraphs 51 to 53 of the contested recommendation refer to the application by the Member States of the principles contained in the recommendation. On the one hand, paragraph 51 of the recommendation concerns the designation of competent gambling regulatory and supervisory authorities to ensure and monitor effective compliance with national measures taken in support of the principles set out in the recommendation. On the other hand, paragraphs 52 and 53 of the recommendation provide for the notification to the Commission of any measures taken pursuant to the recommendation to enable it to evaluate the implementation of the recommendation and for the collection and transmission of certain data.
34. Nevertheless, aside from the fact that paragraphs 51 to 53 of the contested recommendation do not impose an obligation on the Member States effectively to apply the principles set out in that act, as has already been stated in paragraph 31 above, the Commission explicitly provided, in paragraph 2 of the recommendation, that the recommendation did not interfere with the Member States’ regulatory power in this regard. When read in conjunction with the latter paragraph, paragraphs 51 to 53 of the recommendation merely make an invitation to Member States to adopt rules on protection of consumers in the area of online gambling, to the exclusion of any obligation to comply with the principles set out in that act.
35. In addition, with regard to notification of measures taken pursuant to the contested recommendation and communication of certain data to the Commission, despite the binding wording of paragraphs 52 and 53 of the recommendation observed in certain language versions (see paragraph 26 above), the recommendation does not impose any obligation to that effect. This interpretation is indicated not only by a comparison with the other language versions of the contested recommendation, but also having regard to the intention of the Commission as expressed in that act, as is evident in particular from paragraphs 30 and 31 above.
36. Third, it should be added that the analysis of the wording and content of the contested recommendation and of the Commission’s intention is confirmed by an analysis of its context, as described by the parties. Thus, according to their written submissions, the recommendation follows on from discussions conducted in the Council of the European Union, the European Parliament and the Commission in particular. Specifically, in its plea of inadmissibility the Commission cites, without this being disputed by the Kingdom of Belgium, an extract from its Communication of 23 October 2012, which states that ‘[o]verall, it does not appear appropriate at this stage to propose sector-specific EU legislation’ for online gambling. A similar conclusion was also drawn in an impact assessment accompanying the contested recommendation (‘the impact assessment’), cited to that effect both by the Kingdom of Belgium in the application and by the Commission in its plea of inadmissibility.
37. Accordingly, in the light of the wording, content and context of the contested recommendation, it must be concluded that the recommendation does not have and is not intended to have binding legal effects with the result that it cannot be classified as a challengeable act for the purposes of Article 263 TFEU.
38. In this regard it should be added that the mere publication of the contested recommendation in the L Series of the Official Journal, rather than in the C Series, cannot invalidate the conclusion that the recommendation is not intended to have binding legal effects.
39. The Court has already dismissed as inadmissible an application for annulment of an act published in the L Series of the Official Journal on the ground that the act was not intended to have legal effects (see, to that effect, judgment of 30 April 1996 in Netherlands
v Council, C‑58/94, ECR, EU:C:1996:171, paragraph 27), from which it can be inferred that the mere fact that an act is published in the L series of the Official Journal cannot be a determining characteristic of binding legal effects which make that act challengeable.
40. In addition, the observation made in paragraph 38 above also applies in view of the settled case-law according to which the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an action for annulment. According to that case-law, it is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements, namely in particular, that it is duly identified by its author and that it mentions the provisions providing the legal basis for it or whether it was not notified, infringing the applicable rules, as such an error is not capable of altering the substance of that act (see, to that effect, judgment of 18 November 2010 in NDSHT
v Commission, C‑322/09 P, ECR, EU:C:2010:701, paragraph 47 and case-law cited). It follows that the mere publication of an act in the C series or in the L series of the Official Journal, depending on the circumstances, has no bearing on whether the act at issue is capable of having binding legal effects (see, to that effect and by analogy, judgment of 15 December 2005 in Infront WM
v Commission, T‑33/01, ECR, EU:T:2005:461, paragraph 110).
41. The conclusion drawn in paragraph 37 above is also not called into question by the arguments raised by the Kingdom of Belgium.
42. In the first place, the Kingdom of Belgium relies on the legal effects which a recommendation is capable of producing in that, in the light of case-law, the national court should take it into account with a view to deciding disputes before it and the national authorities are required to comply with it on account of the duty of sincere cooperation incumbent on the Member States. In its view, the formal absence of binding force for the contested recommendation is irrelevant in view of the significant legal consequences of the recommendation in terms of interpretation, by reclassification or by virtue of the duty of sincere cooperation.
43. It is true in this regard that, according to the Court’s case-law, even though recommendations are not intended to produce binding effects and cannot create rights upon which individuals may rely before a national court, they nevertheless cannot be regarded as having no legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions (judgments in Grimaldi, cited in paragraph 15 above, EU:C:1989:646, paragraphs 7, 16 and 18; of 11 September 2003 in Altair Chimica, C‑207/01, ECR, EU:C:2003:451, paragraph 41; and 18 March 2010 in Alassini and Others, C‑317/08 to C‑320/08, ECR, EU:C:2010:146, paragraph 40).
44. However, consideration of the legal effects described by the case-law cited in paragraph 43 above, in assessing whether a recommendation is challengeable, would lead to the conclusion that any recommendation constitutes a challengeable act.
45. Such a conclusion would run counter to the provisions of Article 263 TFEU, as interpreted by the case-law cited in paragraphs 16 and 17 above, according to which an action for annulment cannot be brought against mere recommendations, which do not have binding legal effects. It would also disregard the case-law according to which, in order to ascertain whether or not a measure produces binding legal effects, it is necessary to look to its substance (judgment in Netherlands
v Commission, cited in paragraph 18 above, EU:C:2000:335, paragraph 27).
46. Accordingly, it cannot be inferred solely from the legal effects described by the case-law cited in paragraph 43 above that a recommendation like the contested recommendation has binding legal effects and therefore constitutes a challengeable act for the purposes of the case-law cited in paragraphs 16 to 18 above.
47. For the same reasons, consideration by the EU judicature of recommendations for the purposes of interpretation also cannot justify the claim that recommendations like the contested recommendation have binding legal effects, contrary to the assertions made by the Kingdom of Belgium.
48. In addition, the same must hold for the legal effects which, in the view of the Kingdom of Belgium, would stem, if it were established, from the obligation to use best endeavours to comply with the principles set out in the contested recommendation, to which Member States are subject by reason of their duty of sincere cooperation.
49. In the second place, the Kingdom of Belgium asserts in essence that the contested recommendation must be open to a limited review in the light of the fundamental principles of EU law, since the absence of such review is contrary to the principle of effective judicial protection. The contested recommendation produces ‘negative legal effects’ in so far as it infringes the principle of conferral, the institutional balance and the duty of sincere cooperation between institutions and between those institutions and the Member States, in accordance with the first, third and fourth pleas in law raised in the application. In that context, the Kingdom of Belgium adds that according to case-law even acts having no binding legal effects which are adopted in breach of the duty of sincere cooperation are open to judicial review.
50. First, it should be noted that, if it were accepted, this argument put forward by the Kingdom of Belgium would effectively infer the challengeable character of an act from its possible illegality.
51. It follows from the Court’s case-law that the seriousness of the alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty. Thus an alleged infringement of the institutional balance cannot give rise to an exception to the admissibility rules governing actions for annulment laid down by the Treaty (judgment of 15 January 2003 in Philip Morris International
v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, ECR, EU:T:2003:6, paragraph 87; see also, by analogy, order of 10 May 2001 in FNAB and Others
v Council, C‑345/00 P, ECR, EU:C:2001:270, paragraphs 39 to 42).
52. Therefore, even if the contested recommendation were vitiated by an infringement of the principle of conferral or of the duty of sincere cooperation, that could not give rise to an exception to the admissibility rule relating to the existence of a challengeable act.
53. Second, the Kingdom of Belgium’s argument claiming that, according to the Court’s case-law and in particular the judgments of 12 February 2009 in Commission
v Greece
(C‑45/07, ECR, EU:C:2009:81) and 20 April 2010 in Commission
v Sweden
(C‑246/07, ECR, EU:C:2010:203), acts having no legally binding force which are adopted in breach of the duty of sincere cooperation are open to judicial review also cannot be upheld.
54. In this regard, even if, as the Kingdom of Belgium claims, in the judgments mentioned in paragraph 53 above the Court did review conduct having no binding legal effects in terms of respect for the Member States’ duty of sincere cooperation, it must nevertheless be stated that those judgments were delivered in infringement proceedings under Article 226 CE, that is to say, in the context of a legal remedy which has the purpose of obtaining a declaration that the conduct of a Member State infringes EU law and of terminating that conduct (judgment of 7 February 1979 in France
v Commission, 15/76 and 16/76, ECR, EU:C:1979:29, paragraph 27) and which is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see judgments of 14 November 2002 in Commission
v United Kingdom, C‑140/00, ECR, EU:C:2002:653, paragraph 34 and case-law cited, and 4 March 2010 in Commission
v Italy, C‑297/08, ECR, EU:C:2010:115, paragraph 81 and case-law cited), and not in actions for annulment under Article 263 TFEU.
55. Since these two legal remedies have different purposes and are subject to different, specific admissibility rules, it does not follow from the mere fact, alleged by the Kingdom of Belgium, that the Court may examine an act or conduct having no binding legal effects in infringement proceedings that the same must hold in an action for annulment.
56. On the contrary, in the context of the action for annulment established by Article 263 TFEU, the Kingdom of Belgium’s argument that a non-binding act may be reviewed in the light of the duty of sincere cooperation runs counter to the case-law cited in paragraphs 16, 17 and 51 above.
57. In addition, in so far as the Kingdom of Belgium relies on the Court’s finding of an infringement in Commission
v Sweden, cited in paragraph 53 above (EU:C:2010:203), where the Kingdom of Sweden failed to have regard to a position agreed within a Council working party which had no binding legal effects, it is sufficient to state that it certainly does not follow that the legality of an act having no binding legal effects may be examined in the context of an action for annulment brought under Article 263 TFEU. Without it even being necessary to take a position on whether the Court is able, in an action for annulment, to find an infringement of the duty of sincere cooperation by reason of failure to take into consideration an act having no binding legal effects, it must be stated that the present case raises the different question of whether the contested recommendation has binding legal effects.
58. Third, with regard to the reference to the principle of effective judicial protection, which requires a non-restrictive interpretation of the requirement as to binding legal effects, it should be stated that, according to the Court’s case-law, whilst it is true that, by means of Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, the Treaty establishes a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions and has entrusted such review to the EU courts (judgments of 23 April 1986 in Les Verts
v Parliament, 294/83, ECR, EU:C:1986:166, paragraph 23, and Reynolds Tobacco and Others
v Commission, cited in paragraph 17 above, EU:C:2006:541, paragraph 80, and order in Sepracor Pharmaceuticals (Ireland)
v Commission, cited in paragraph 17 above, EU:C:2012:292, paragraph 53), the fact remains that, although the requirement as to legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts (see, to that effect, judgment in Reynolds Tobacco and Others
v Commission, cited in paragraph 17 above, EU:C:2006:541, paragraph 81, and order in Sepracor Pharmaceuticals (Ireland) v Commission, cited in paragraph 17 above, EU:C:2012:292, paragraph 54).
59. The argument made by the Kingdom of Belgium, if it were accepted, would have precisely the effect of setting aside the condition as to binding legal effects.
60. In the third place, the Kingdom of Belgium claims, by the second and fifth pleas in law raised in the application, that the contested recommendation in fact constitutes an instrument with harmonising effect and a hidden directive. More specifically, in the second plea in law, relying in particular on the judgments in Grimaldi, cited in paragraph 15 above (EU:C:1989:646), and of 24 January 2013 in Stanleybet and Others
(C‑186/11 and C‑209/11, ECR, EU:C:2013:33), in recitals 8 and 14 and paragraph 52 of the contested recommendation and on passages of the impact assessment, it asserts that the recommendation constitutes an instrument for harmonising and liberalising the online gambling market, which is contrary to the Court’s case-law concerning the application of Article 56 TFEU in that sector and was adopted even though the Commission held no such power. In the fifth plea in law, it maintains, in essence, that the recommendation in fact constitutes a legislative instrument. It refers to the intention underlying the recommendation, which is apparent from its detailed content and from the impact assessment. It also claims that, by the data control system introduced by paragraphs 52 to 54 of the contested recommendation, the Commission actually brings about harmonisation and intends to guide policy, like a directive within the meaning of Article 288 TFEU would do.
61. In this regard, first, in so far as, by the arguments in connection with the second plea in law alleging that the contested recommendation brings about unlawful harmonisation and liberalisation of the online gambling sector, the Kingdom of Belgium seeks to rely on the case-law under which the Court must ascertain, in order to determine whether an act is challengeable, whether it is designed to have new legal effects by comparison with those entailed by the application of the fundamental principles of the Treaty, by considering its content (see, to that effect, judgments in France
v Commission, cited in paragraph 18 above, EU:C:1991:424, paragraph 10; France
v Commission, cited in paragraph 18 above, EU:C:1997:164, paragraph 9; and of 20 May 2010 in Germany
v Commission, T‑258/06, ECR, EU:T:2010:214, paragraph 27) and by assessing whether that act is confined to giving expression to those principles or whether it lays down specific, new obligations in relation to them (see, to that effect, judgments in France
v Commission, cited in paragraph 18 above, EU:C:1993:245, paragraph 14; France
v Commission, cited in paragraph 18 above, EU:C:1997:164, paragraph 13; and Germany
v Commission, cited above, EU:T:2010:214, paragraph 28), it should be borne in mind that the contested recommendation is drafted mainly in non-binding terms and, having regard to its wording, content and context, is not intended to have binding legal effects. By contrast, in France
v Commission, cited in paragraph 18 above (EU:C:1991:424); France
v Commission, cited in paragraph 18 above (EU:C:1993:245); France
v Commission, cited in paragraph 18 above (EU:C:1997:164); and Germany
v Commission
(EU:T:2010:214), the acts at issue, or at least the contested passages which were examined by the Court, were worded in mandatory terms and imposed obligations on Member States.
62. In these circumstances, it is not necessary in the present case to compare the content of the considerations and principles laid down in the contested recommendation with the provisions of Treaty, as interpreted by case-law, in order to ascertain whether the recommendation sets out different principles from those stemming from the Treaty and from case-law. Even if that were the case, the fact would remain that, having regard to the wording, content and context of the recommendation, the principles contained therein are not intended to have binding legal effects.
63. In any event, it should be noted, for the sake of completeness, that the Kingdom of Belgium’s arguments alleging that the contested recommendation results in unlawful harmonisation and liberalisation of the market in the online gambling sector are based on a manifestly incorrect reading of the recommendation.
64. The Kingdom of Belgium is thus wrong to infer from recitals 8 and 14 of the contested recommendation that its objective is to harmonise and liberalise the online gambling market. It is true that in those recitals the Commission does mention the fact that the rules and policies introduced by Member States vary considerably, that action at Union level encourages them to provide a high level of protection throughout their territories and that online gambling operators established in the Union which increasingly hold multiple licences across several Member States could benefit from a more common approach. Nevertheless, the fact remains that in paragraph 2 the recommendation explicitly affirms the Member States’ regulatory power in this area. In addition, the recommendation does not lay down any rules or principles with a view to harmonising and liberalising that market. None of the paragraphs of the recommendation in question has that purpose. Furthermore, whatever the content of the recitals, as the grounds on which the recommendation is based, those recitals are not capable of producing legal effects (see, to that effect and by analogy, order of 12 December 2007 in Vodafone España and Vodafone Group
v Commission, T‑109/06, ECR, EU:T:2007:384, paragraph 147 and case-law cited).
65. In addition, the argument claiming that, in paragraph 52 of the contested recommendation, ‘[b]y “inviting” … Member States to adopt measures to transpose [the recommendation], the Commission is … manifestly seeking to impose its interpretation of Articles 49 TFEU and 56 TFEU’ is based on an incorrect reading of that paragraph. Paragraph 52 does not concern an obligation to transpose the principles laid down in the recommendation, but an invitation to the Member States to notify the Commission of any measures taken pursuant to the recommendation. As was stated in paragraph 34 above, such an invitation cannot entail an obligation to comply with the recommendation.
66. Second, in so far as the Kingdom of Belgium refers to passages of the impact assessment, it should be stated that, according to case-law, in order to ascertain whether or not a measure produces binding legal effects, it is necessary to look to its substance (judgment in Netherlands
v Commission, cited in paragraph 18 above, EU:C:2000:335, paragraph 27), it being understood that the binding legal effects of a measure must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see judgment in Hungary
v Commission, cited in paragraph 16 above, EU:C:2014:70, paragraph 55 and case-law cited; see also paragraph 18 above). Having regard to that case-law, it was held in paragraph 37 above that the contested recommendation was not intended to have binding legal effects.
67. In any event, aside from the fact that the passages of the impact assessment cited in paragraph 51 of the application simply emphasise the administrative burden on online gambling operators resulting from the coexistence of national rules without, however, proposing harmonisation in that area, it is also apparent from that assessment, as cited by the two parties, that a legislative initiative was not considered to be feasible (see paragraph 36 above).
68. Lastly, in these circumstances, the Kingdom of Belgium was also wrong to infer from a combined reading of the case-law cited in paragraph 43 above, the judgment in Stanleybet and Others, cited in paragraph 60 above (EU:C:2013:33), and recitals 8 and 14 and paragraph 52 of the contested recommendation that the recommendation has harmonising effect. It is true that, according to the judgment in Stanleybet and Others, cited in paragraph 60 above (EU:C:2013:33, paragraph 24 and case-law cited), the Court consistently held that legislation on games of chance was one of the areas in which there were significant moral, religious and cultural differences between the Member States and that, in the absence of harmonisation at Union level in the field, it was for each Member State to determine in those areas, in accordance with its own scale of values, what was required in order to ensure that the interests in question were protected. However, in view of the conclusions drawn in paragraphs 46 and 65 above and the fact that the contested recommendation does not bring about any harmonisation of services in the online gambling sector, it must be stated that, contrary to the claim made by the Kingdom of Belgium, the adoption of the recommendation is not such as to limit the possibility for each Member State to determine, in accordance with its own scale of values, what is required in order to ensure that those interests are protected.
69. That applies a fortiori
since, as has already been stated in paragraphs 31, 34 and 64 above, in accordance with paragraph 2 thereof, the contested recommendation does not interfere with the Member States’ regulatory power in that area.
70. Second, in so far as the Kingdom of Belgium claims that the Commission has initiated proceedings for a declaration of failure to fulfil obligations against seven Member States in order to require them to comply with the contested recommendation, there is nothing in the documents before the Court to indicate that the purpose of those proceedings is actually to ensure compliance with the recommendation, which is also contested by the Commission in its plea of inadmissibility. In any event, the recommendation was adopted on 14 July 2014, after the date on which those proceedings were initiated, as mentioned by the Kingdom of Belgium, namely 20 November 2013.
71. Third, with regard to the arguments raised in connection with the fifth plea in law, claiming that the contested recommendation constitutes a legislative instrument, and in so far as those arguments must be understood to the effect that the Kingdom of Belgium is seeking to rely on the case-law cited in paragraph 61 above, reference should simply be made to the statements made in paragraphs 61 and 62 above.
72. Next, the fact adduced by the Kingdom of Belgium that the principles set out in the contested recommendation are very detailed has no bearing on the conclusion that that act is not intended to have binding legal effects. That conclusion is based not on the level of detail of the principles set out by the act, but on the imperative nature of those principles. It has already been held above that there is no such imperative nature in this case.
73. Furthermore, with regard to the argument concerning paragraphs 52 to 54 of the contested recommendation, which, in the view of the Kingdom of Belgium, essentially demonstrate that the recommendation constitutes a hidden directive, it is clear from those paragraphs that the Commission invites the Member States to provide certain data to enable it to evaluate the implementation of the recommendation. As has already been held in paragraphs 33 and 34 above, the mere fact that the Commission invites the Member States to notify it of any measures taken pursuant to the principles laid down in the recommendation and to provide it with data regarding the application of the principles set out in the recommendation does not make the application of those principles mandatory for the Member States.
74. Lastly, in so far as the Kingdom of Belgium refers in this context to passages of the impact assessment and to two draft recommendations communicated by the Commission prior to the adoption of the contested recommendation, reference should be made to the observations set out in paragraph 66 above.
75. It should be added in this respect that in any event the arguments relating to the impact assessment must be rejected with reference to the statements made in paragraph 67 above, without there being any need to examine the content of the cited passages of that assessment.
76. In addition, in its written submissions the Kingdom of Belgium cites recitals of two draft recommendations, according to which the Member States’ rules on the protection of consumers, players and minors from online gambling are fragmented and the objective of the recommendation could be better achieved by action at Union level, the Commission intended to propose a set of common principles to ensure that consumers are provided with information about online gambling, and appropriate and effective measures should be taken in order to monitor and enforce the principles laid down in the draft recommendations.
77. Even assuming that account should be taken of those recitals of draft recommendations in order to determine the Commission’s intention in adopting the contested recommendation, the mere declaration of an intention to propose common principles on the ground that action at Union level is appropriate clearly cannot show that the recommendation is intended to have binding legal effects. Furthermore, the fact that, unlike the draft recommendations, the contested recommendation does not contain any indication that the principles sets out therein must be complied with tends to demonstrate that the Commission had no intention to confer binding legal effects on the recommendation.
78. In the light of the foregoing considerations, it must be concluded that none of the arguments raised by the Kingdom of Belgium can invalidate the conclusion drawn in paragraph 37 above.
79. Furthermore, it should be added that, contrary to the arguments put forward by the Kingdom of Belgium, the decision on the plea of inadmissibility should not be reserved for final judgment.
80. Contrary to the claim made by the Kingdom of Belgium, the mere fact that in the description of the legal framework for the plea of inadmissibility, the Commission responds to the substance of the first plea in law raised by that Member State cannot justify reserving the decision on the plea of inadmissibility for final judgment. It follows from paragraphs 51 and 52 above that, even if the first plea in law and, moreover, the third and fourth pleas in law were well founded, that fact could not give rise to an exception to the admissibility rule relating to the existence of a challengeable act.
81. In addition, in so far as the Kingdom of Belgium asserts that it is necessary to examine the substance of the second and fifth pleas in law, it should first be stated that, as is apparent from paragraphs 61 and 62 above, the circumstances of the present case are different from those in the cases cited in paragraph 61 above, where admissibility was examined at the stage of the assessment of the substance.
82. It should be noted, next, that the conclusion drawn in paragraph 37 above that the contested recommendation has no binding legal effects is based on an examination of its wording, its content, its context and the intention of its author, which forms part of the assessment of the admissibility of the present action.
83. Lastly, whilst it is true that in paragraphs 60 to 77 of the present order the Court considered certain arguments raised by the Kingdom of Belgium in connection with its second and fifth pleas in law, by which it claims that the contested recommendation constitutes a harmonising legislative instrument, the fact remains that those arguments have essentially been rejected on the ground that it is clear from the wording, content and context of the act that it is not intended to have binding legal effects, as has been shown in particular in paragraphs 61, 62, 66, 71, 73 and 74 above, and that they have been examined on the substance only for the sake of completeness.
84. In any event, it has been found that those arguments are based, in part, on an incorrect reading of the contested recommendation and that they are manifestly unfounded. In those circumstances, it would be contrary to the requirements of sound administration of justice and procedural economy to reserve the decision on the plea of inadmissibility for final judgment.
85. In the light of all the above considerations, the plea of inadmissibility must be upheld and the action dismissed as inadmissible.
86. In these circumstances, there is no need to rule on the applications to intervene in support of the form of order sought by the Kingdom of Belgium made by the Hellenic Republic and the Portuguese Republic (see, to that effect, orders of 5 July 2001 in Conseil national des professions de l’automobile and Others
v Commission, C‑341/00 P, ECR, EU:C:2001:387, paragraphs 36 and 37, and 7 January 2015 in Freitas
v Parliament and Council, T‑185/14, EU:T:2015:14, paragraph 52).
Costs
87. 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. As the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission, except those relating to the applications to intervene.
88. Furthermore, in accordance with Article 144(10) of the Rules of Procedure, the Kingdom of Belgium, the Hellenic Republic, the Portuguese Republic and the Commission are each to bear their own costs relating to the application to intervene.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to rule on the applications to intervene made by the Hellenic Republic and the Portuguese Republic.
3. The Kingdom of Belgium is ordered to bear its own costs and pay the costs incurred by the European Commission.
4. The Kingdom of Belgium, the Hellenic Republic, the Portuguese Republic and the Commission are ordered each to bear their own costs relating to the applications to intervene.
Luxembourg, 27 October 2015.