Order of the Court of First Instance (Fourth Chamber) of 10 July 2001. - Werner F. Edlinger v Commission of the European Communities. - Action for failure to act - Actionable omissions - Inadmissibility. - Case T-191/00.



European Court reports 2001 Page II-01961



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to adopt a position on measures taken against the Republic of Austria by the governments of the 14 other Member States and to demand the immediate revocation of those measures - Inadmissible

(Art. 232, third para., EC )

Summary

$$Natural and legal persons may bring proceedings before the Community Court under the third paragraph of Article 232 EC only for a declaration that an institution has declined, in breach of the Treaty, to adopt an act, other than a recommendation or an opinion, of which those persons are the potential addressees or which they could challenge in annulment proceedings.

The action for failure to act brought by a natural person seeking a declaration that by not adopting a position in relation to the measures taken against the Republic of Austria by the governments of the 14 other Member States and by not demanding the immediate revocation of those measures, the Commission declined to act and thereby acted in breach of the Treaty is therefore inadmissible.

( see paras 20, 23, 25 )

Parties

In Case T-191/00,

Werner F. Edlinger, of Vienna (Austria), represented by F. Frisch, lawyer, Vienna,

applicant,

v

Commission of the European Communities, represented by U. Wölker and C. Ladenburger, acting as Agents, with an address for service at Luxembourg,

defendant,

APPLICATION for a declaration that the Commission unlawfully refrained from acting in relation to the measures taken against the Republic of Austria on 31 January 2000 by the Heads of State or Government of the other 14 Member States of the European Union,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: P. Mengozzi, President, V. Tiili and R.M. Moura Ramos, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Background to the case

1 By declaration of 31 January 2000 the Portuguese Presidency of the European Union informed the President and the Chancellor of the Republic of Austria that the Heads of State or Government of the other 14 Member States (the 14 Member States) had agreed to adopt the following measures if the new Austrian Government were to include the Freiheitliche Partei Österreichs (FPÖ):

- the Governments of the 14 Member States would not promote or accept any official bilateral contact at the political level with that Government;

- no support would be given to Austrian candidates for posts in international organisations;

- Austrian ambassadors would be received in European capitals only at the technical level.

In addition, the Portuguese Prime Minister and Minister for Foreign Affairs informed the Austrian authorities that there would be no normal bilateral commercial relations with a government of which the FPÖ formed part.

2 On 4 February 2000 a new Austrian Government including the FPÖ was formed.

3 On 2 March 2000 Mr Edlinger, an Austrian national (the applicant) sent to a number of addressees, including various Commission departments, an appeal to condemn publicly any premature judgment, any discrimination and any boycott of Austria, its representatives and citizens and holding them up to scorn, and to demand the immediate withdrawal of those measures, which are contrary to the European spirit.

4 By letter of 9 March 2000 the General Secretariat of the Commission replied to the applicant that, in accordance with the statements of the President of the Commission, Mr Prodi, in his speech to the European Parliament on 2 February 2000, the Commission, first, would continue to collaborate with the Republic of Austria as with all the Member States and, second, would with the utmost rigour carry out its task of guaranteeing observance of the fundamental principles of States governed by the rule of law.

5 By letter of 6 April 2000 the applicant wrote directly to the President of the Commission. In that letter, after describing the Commission's response of 9 March 2000 as totally inadequate and stressing the allegedly illegal nature of the measures taken by the Governments of the 14 Member States against Austria, the applicant called upon the President of the Commission to fulfil ... [his] obligations and the task entrusted to him. Finally, the applicant concluded by requesting a decision ... on the immediate lifting of the illegal measures and also proper apologies to our representatives and the whole of the people of Austria.

6 On 22 May 2000 the applicant wrote an open letter to the President of the Commission, which, after repeating several passages from the letter of 6 April 2000, ended as follows:

Under these circumstances, we Austrians consider that the Commission's duty, as guardian of the treaties, is to intervene and that it ought to have done so long ago.

We expect not only a decision, which ought to have been taken long ago, on the immediate lifting of the illegal measures (without accompanying music of the "monitoring" type), but also proper apologies to our representatives and the whole of the people of Austria!

We also inform you that we intend to obtain redress for the damage caused by the 14 Member States guilty of violating the law and by the passivity of the Commission (complaint of failure to take action) and to obtain reimbursement of the costs incurred to oppose the illegal measures (costs for limiting the extent of the damage and disposing of it)!

7 The letter of 22 May 2000 also repeated the text of the appeal of 2 March 2000 with an annex containing in particular the following statements:

The Commission of the European Communities and the 14 Member States have infringed Article 5 EU.

The Commission of the European Communities and the 14 Member States have infringed Article 6(2) EU.

The Commission of the European Communities, the European Parliament and the 14 Member States have infringed the rules of procedure set out in Article 7 EU.

For more than three months the Commission of the European Communities has refrained from bringing an action, as guardian of the treaties (power conferred by Article 211 [EC]), against the 14 Member States for failure to fulfil their obligations under the Treaty (Article 226 [EC]), in spite of the request to do so by the Austrian Government.

We therefore urge the Austrian Government to invoke Article 227 [EC] and to bring the matter before the Court of Justice of the European Communities!

8 By application lodged at the Registry of the Court of First Instance on 24 July 2000, the applicant brought this action for declaration of failure to act under the third paragraph of Article 232 EC.

9 On 15 September 2000, by separate document, the Commission raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure. The applicant lodged his observations on that plea on 6 November 2000.

Forms of order sought by the parties

10 In its plea of inadmissibility, the defendant claims that the Court should:

- dismiss the application as inadmissible;

- order the applicant to pay the costs.

11 In his observations on the plea of inadmissibility, the applicant contends that the Court should dismiss the plea.

Admissibility

12 Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings on a plea of inadmissibility is to be oral, unless the Court otherwise decides. In the present case, the Court considers that is has sufficient information from the documents in the file and that it is unnecessary to open oral proceedings.

The parties' arguments

13 In its plea of inadmissibility, the Commission contends first of all that, according to settled case-law, an action for failure to act must be preceded by formal notice calling upon the defendant institution to act, making clear what decision under Community law it should have taken (see Case 25/85 Nuovo Campsider v Commission [1986] ECR 1531, paragraph 8). In addition, it must be clear from the formal notice that its purpose is to compel the defendant institution to define its position (see Joined Cases 81/85 and 119/85 Usinor v Commission [1986] ECR 1777, paragraph 15)

14 The Commission adds that, in the present case, none of the applicant's three letters stated what specific measure the Commission ought to have taken. The letter of 2 March 2000 contained only an appeal in general terms. That of 6 April 2000, seeking a decision for the immediate withdrawal of the illegal measures and apologies to the representatives and the people of Austria, could obviously not constitute a request to the Commission as that institution did not participate in the adoption of those measures. Finally, in the letter of 22 May 2000 the applicant only stated, as if expressing a mere opinion, that the Commission, as guardian of the treaties, ought to have acted much earlier, but he did not state what specific form the action in question ought to have taken.

15 Nor does the applicant state in his application what specific decision he requires from the Commission. He merely observes that the Commission is required to take measures (decisions) for the immediate lifting of the sanctions, but without specifying whether he is asking the Commission to take legal measures - that is to say, to bring actions for infringement of the Treaty against the 14 Member States - or political measures.

16 In any case, the applicant's three letters, addressed simultaneously to the Commission and 130 other recipients, do not show that it was the applicant's intention to compel the Commission to act by instituting judicial proceedings.

17 Furthermore, even assuming that the letters must be interpreted as a request to bring actions for infringement against the 14 Member States, his action would still be inadmissible because the Court of Justice has consistently held that natural and legal persons have no right to invoke the third paragraph of Article 232 EC to obtain a declaration that the Commission has failed to initiate a procedure for infringement of the Treaty under Article 226 EC (see Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraphs 10 to 14, and order in Case C-371/89 Emrich v Commission [1990] ECR I-1555, paragraphs 4 to 6).

18 In his observations on the plea of inadmissibility, the applicant contends that he very clearly asked the Commission to act by virtue of its obligation as guardian of the treaties, by using the means provided for in Article 249 EC. In particular, the request to express disapproval of the measures taken in relation to Austria by the Governments of the 14 Member States and the request for the Commission to demand the immediate revocation of those measures were, according to the applicant, sufficiently concrete. In any event, the action which the Commission was asked to take falls within the concepts of recommendation and opinion as referred to in Article 249 EC.

19 The applicant maintains, furthermore, that Article 226 EC leaves the Commission with no discretion, since it requires the Commission to issue a reasoned opinion if it considers that a Member State has failed to fulfil its obligations. The applicant adds that the provision in the same article according to which, if the Member State does not comply with the opinion, the Commission may bring the matter before the Court of Justice, must be interpreted, in the light of the Commission's role as guardian of the treaties, as an obligation.

Findings of the Court

20 According to settled case-law, natural and legal persons may bring proceedings before the Community Court under the third paragraph of Article 232 EC only for a declaration that an institution has declined, in breach of the Treaty, to adopt decisions of which those persons are the potential addressees or which they could challenge in annulment proceedings (see order of the Court of First Instance in Case T-13/94 Century Oils Hellas v Commission [1994] ECR II-431, paragraphs 13 and 14).

21 In the present case, the alleged omissions on the part of the Commission, as described in the applicant's observations on the plea of inadmissibility, do not meet those requirements.

22 In so far as the applicant claims that he asked the Commission to adopt an act which is in any event covered by the concepts of recommendation and opinion, it is sufficient to observe that the third paragraph of Article 232 EC expressly excludes recommendations and opinions from the measures the omission of which may be established by means of an action for failure to act.

23 In so far as the applicant states that he requested the Commission to express disapproval of the measures taken in relation to Austria by the Governments of the 14 Member States and to demand the immediate revocation of those measures, it must be observed that the acts said to have been omitted by the Commission were addressed to the public in general and/or to the Governments of the 14 Member States. The applicant is therefore not the potential addressee.

24 Furthermore, the said acts are not of individual concern to the applicant by reason of attributes specific to him or a factual situation which characterises him in relation to any other person and therefore differentiates him in a manner similar to that in which the addressee would be differentiated.

25 Consequently, without there being any need to rule on the issue whether the applicant's letters of 2 March, 6 April and 22 May 2000 may be regarded as formal notice to the Commission, the present application must in any event be dismissed as inadmissible.

Decision on costs

Costs

26 Under Article 87(2) 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.

27 As the applicant has been unsuccessful, he must be ordered to pay the costs, as applied for by the Commission.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby orders:

1. The application is dismissed.

2. The applicant is ordered to pay the costs.