ORDER OF THE COURT (Eighth Chamber)

19 December 2022 ( )

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Refusal of the European Commission to initiate proceedings for failure to fulfil obligations – Discretion of the Commission – Appeal manifestly unfounded)

In Case C‑559/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 August 2022,

Vtesse Harlow Ltd, established in St Albans (United Kingdom), represented by H. Mercer, KC,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and M. Gavalec, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, Vtesse Harlow Ltd seeks, in essence, to have set aside the order of the General Court of the European Union of 14 June 2022, Vtesse Harlow v Commission (T‑64/22, not published, EU:T:2022:376; ‘the order under appeal’), by which that court rejected as manifestly inadmissible its application for annulment of the European Commission’s decision of 22 November 2021 to close the proceedings CHAP(2020) 0859 and CHAP(2020) 03818 relating to the complaints submitted to it by the appellant on 31 March and 23 December 2020 respectively concerning an alleged failure of the United Kingdom of Great Britain and Northern Ireland to fulfil its obligations under Directive 2020/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108, p.21) and Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ L 108, p. 33) (‘the contested decision’).

The action before the General Court and the order under appeal

2 By application lodged at the Registry of the General Court on 1 February 2022, the appellant brought an action against the contested decision.

3 By the order under appeal, the General Court held, in the first place, in paragraph 6 of the order under appeal, that that action was brought under the fourth paragraph of Article 263 TFEU and that it sought the annulment of the contested decision.

4 In the second place, it pointed out, in paragraph 8 of the order under appeal, that the contested decision had to be interpreted as expressing the Commission’s refusal to initiate proceedings under Article 87(1) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’) against the United Kingdom, in accordance with the requirements laid down in Article 258 TFEU, for an alleged failure by the United Kingdom to fulfil its obligations under Directives 2002/20 and 2002/21.

5 In that regard, the General Court pointed out, in paragraph 9 of the order under appeal, that, according to settled case-law, individuals do not have standing to challenge a refusal by the Commission to initiate proceedings against a Member State for failure to fulfil obligations. Furthermore, in paragraph 10 of that order, it noted that such a refusal does not constitute a challengeable act for the purposes of Article 263 TFEU, since it follows from the scheme of Article 258 TFEU, to which Article 87(1) of the Withdrawal Agreement refers, that the Commission is not obliged to bring proceedings for failure to fulfil obligations, but that it has discretion in that regard which excludes the right for individuals to require that institution to adopt a specific position.

6 In the third place, as regards the fourth paragraph of Article 263 TFEU, the General Court also noted, in paragraph 11 of the order under appeal, that any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute annulment proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures.

7 In that regard, in paragraph 12 of the order under appeal, the General Court held that, in the context of an action for failure to fulfil obligations under Article 87(1) of the Withdrawal Agreement, the only measures which the Commission may adopt are measures addressed to the United Kingdom and that, under the scheme laid down in Article 258 TFEU, neither the reasoned opinion nor the lodging of an action before the Court can constitute measures of direct concern to natural or legal persons. That consideration applies a fortiori to the opening of the pre-litigation stage, which precedes the issue of a reasoned opinion.

8 Therefore, on the basis of Article 126 of its Rules of Procedure, the General Court rejected that application as manifestly inadmissible.

Form of order sought before the Court of Justice

9 The appellant claims that the Court should uphold the action brought at first instance.

The appeal

10 Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court of Justice may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss it in whole or in part.

11 It is appropriate to apply that provision in the context of the present appeal.

12 As a preliminary point, it should be noted that the appeal does not contain any request expressly seeking to have the order under appeal set aside, in whole or in part. However, the head of claim by which the appellant claims that the Court should uphold the action brought at first instance necessarily includes such a request to set aside and may, therefore, be regarded as sufficient for the appeal to comply with the requirement laid down in that regard in Article 169(1) of the Rules of Procedure of the Court of Justice (see, to that effect, order of 1 March 2022, Fryč v Commission, C‑239/21 P, not published, EU:C:2022:144, paragraph 21).

13 In support of its appeal, the appellant relies on two grounds, the first alleging an error of law concerning the nature of the contested decision as a challengeable act and the second an error of law concerning the direct concern of the appellant.

First part of the first ground of appeal

14 By the first part of the first ground of appeal, the appellant claims that the General Court erred in law in finding, in paragraphs 8 and 10 of the order under appeal, that the Commission may lawfully refuse a request to initiate proceedings for failure to fulfil obligations by exercising its discretion, including where, as in the present case, that refusal is based, inter alia, on the fact that the subject matter of the complaints does not fall within the competence of the Commission. According to the appellant, such a ground for refusal does not constitute exercise of the discretion available to the Commission and should be capable of review by the EU judicature, in order to prevent the Commission being the arbiter of its own competence.

15 In that regard, it is apparent from the documents before the Court that, in submitting complaints to the Commission, the appellant asked the Commission to initiate proceedings for failure to fulfil obligations under Article 258 TFEU. By the contested decision, the Commission informed the appellant that it did not intend to grant that request since, inter alia, it was not competent to determine whether the tax system relied on by the appellant is discriminatory under national law.

16 Accordingly, the contested decision, inasmuch as it constituted a negative response to the complaints submitted to the Commission and which sought to have the Commission bring an action against the United Kingdom for failure to fulfil obligations under Article 87(1) of the Withdrawal Agreement, in accordance with the requirements laid down in Article 258 TFEU, could be analysed by the General Court only as a decision refusing to bring such proceedings for failure to fulfil obligations, irrespective of the ground relied on to justify that refusal, including, as in the present case, the Commission’s lack of competence (see, by analogy, order of 2 May 2022, Castillejo Oriol v Commission, C‑1/22 P, not published, EU:C:2022:343, paragraph 22 and the case-law cited).

17 Consequently, it must be held that the General Court did not err in law in finding, in paragraphs 8 and 10 of the order under appeal, that the contested decision, by which the Commission considered, inter alia, that the facts forming the subject matter of the complaints did not fall within its competence, constituted a refusal to initiate proceedings for failure to fulfil obligations under Article 258 TFEU and that the Commission was not obliged to initiate those proceedings and had discretion in that regard.

18 The first part of the first ground of appeal must, in those circumstances, be rejected as manifestly unfounded.

The second part of the first ground of appeal and the second ground of appeal

19 By the second part of the first ground of appeal and by the second ground of appeal, the appellant claims, in essence, that the General Court erred in law, in paragraphs 10 and 12 of the order under appeal, in finding that the contested decision did not constitute a challengeable act under Article 263 TFEU and that, since the only measures that the Commission may be led to adopt under Article 87 of the Withdrawal Agreement are measures addressed to the United Kingdom, the contested decision was not of direct concern to the appellant within the meaning of the fourth paragraph of Article 263 TFEU.

20 The applicant submits, first, that before the possibility of addressing measures to the United Kingdom could arise, the Commission needed to declare itself competent to deal with the complaints, which it did not do in the present case. Second, according to the applicant, any person who makes a complaint to the Commission has rights in accordance with the guidance drawn up by that institution, with the result that there is a legitimate expectation that that guidance will be followed.

21 In that regard, it is settled case-law that a refusal to initiate proceedings for failure to fulfil obligations does not constitute a challengeable act for the purposes of Article 263 TFEU, since it follows from the scheme of Article 258 TFEU that the Commission is not obliged to bring proceedings for failure to fulfil obligations but has a discretion in that regard which excludes the right of individuals to require that institution to adopt a specific position (order of 2 May 2022, Castillejo Oriol v Commission, C‑1/22 P, not published, EU:C:2022:343, paragraph 23 and the case-law cited).

22 It is true, as the General Court pointed out in paragraph 11 of the order under appeal, that the fourth paragraph of Article 263 TFEU provides that any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute annulment proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

23 However, since the General Court correctly held that the contested decision constituted a refusal to initiate proceedings against the United Kingdom for failure to fulfil obligations, it was right to point out, in paragraph 12 of the order under appeal, that, in the context of proceedings for failure to fulfil obligations governed by Article 258 TFEU, the only measures that the Commission may be led to adopt are measures addressed to the Member States. Moreover, neither the reasoned opinion, which is part of the stage prior to any action being lodged before the Court for failure to fulfil obligations, nor referral to the Court by the actual lodging of such an action, can constitute acts of direct concern to natural or legal persons (see, to that effect, orders of 3 September 2019, ND and OE v Commission, C‑317/19 P, not published, EU:C:2019:688, paragraph 22 and the case-law cited, and of 29 September 2021, Segura del Oro Pulido v Commission, C‑225/21 P, not published, EU:C:2021:787, paragraph 16 and the case-law cited).

24 Furthermore, the Court has already held that natural or legal persons who have lodged complaints with the Commission, alleging infringement of EU law by a Member State, cannot be regarded as directly and individually concerned by the measures that the Commission may be led to adopt in the context of proceedings under Article 258 TFEU (order of 29 September 2021, Segura del Oro Pulido v Commission, C‑225/21 P, not published, EU:C:2021:787, paragraph 17 and the case-law cited).

25 For those reasons, the second part of the first ground of appeal and the second ground of appeal must be rejected as manifestly unfounded.

26 Consequently, the appeal must be dismissed as being manifestly unfounded.

Costs

27 Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In this case, since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before the latter could have incurred costs, the appellant must be ordered to bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1. The appeal is dismissed as manifestly unfounded.

2. Vtesse Harlow Ltd shall bear its own costs.

Luxembourg, 19 December 2022.

A. Calot Escobar M. Safjan