Appeal brought on 17 February 2015 by the Court of Justice of the European Union against the order of the General Court (Third Chamber) made on 6 January 2015 in Case T-479/14 Kendrion v European Union

(Case C-71/15 P)

(2015/C 107/29)

Language of the case: Dutch

Parties

Appellant: Court of Justice of the European Union (represented by: A.V. Placco and E. Beysen, acting as Agents)

Other party to the proceedings: Kendrion NV

Form of order sought

The appellant claims that the Court should:

— set aside the order of the General Court of the European Union (Third Chamber) of 6 January 2015 in Case T-479/14 Kendrion v European Union;

— grant the form of order sought by the Court of Justice of the European Union (‘the CJEU’) in its application made to the General Court pursuant to Article 114 of the Rules of Procedure of that Court, and accordingly;

— primarily, delivering final judgment in the case, declare Kendrion NV’s action for damages to be inadmissible on the ground that it is brought against the CJEU (as the representative of the European Union);

— in the alternative, in the event that the Court of Justice should take the view that the fact that that action is brought against the CJEU and not against the Commission (as the representative of the European Union) has no bearing on its admissibility but that the General Court, in its decision on the procedural issue raised before it by the CJEU, should have ordered that the CJEU be replaced by the Commission as defendant, refer the case back to the General Court to enable it to give judgment on Kendrion’s action for damages in the light of the legal assessment of the Court of Justice;

— order Kendrion NV to pay the costs incurred by the CJEU in the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

By order of 6 January 2015, the General Court of the European Union dismissed the application lodged by the CJEU, pursuant to Article 114 of the Rules of Procedure of the General Court, in Case T-479/14 Kendrion v Court of Justice. The application of that institution sought, primarily, a declaration of inadmissibility in respect of Kendrion NV’s action, which had been served on the CJEU as defendant, by which that company sought to engage the non-contractual liability of the European Union in order to obtain compensation for the damage which it claims to have suffered as a result of the General Court’s failure to adjudicate within a reasonable time in Case T-54/06 Kendrion v Commission. In the alternative, the CJEU raised in that application a procedural issue by which it requested the General Court to order that it be replaced by the European Commission (‘Commission’) as defendant. In that context, the CJEU argued that Kendrion ought to have brought its action against the European Union, represented not by the CJEU but by the Commission. The General Court did not follow the CJEU on that point in the abovementioned order.

The CJEU now brings an appeal before the Court of Justice pursuant to Article 56 of the Statute of the Court of Justice, by which it seeks to have that order set aside. In support of that appeal, the CJEU claims that the rules on representation of the European Union before its judicial bodies have not been observed and that the obligation to state reasons has not been complied with.

In the context of the first ground of appeal, concerning non-observance of the rules on the representation of the European Union before its judicial bodies , the CJEU submits that, in view of the fact that there is no express rule governing representation of the European Union before its judicial bodies in actions brought pursuant to Article 268 TFEU with a view to engaging the non-contractual liability of the European Union, the rules governing such representation must be derived from the general principles applicable to the exercise of the judicial function, in particular the principle of the sound administration of justice and the principles relating to judicial independence and impartiality.

That first ground of appeal of the CJEU comprises two parts, that is to say, non-observance of the requirements of the principle of the sound administration of justice and non-observance of the requirements of the principles of judicial independence and impartiality.

In the context of the first ground of appeal, the CJEU submits that the General Court’s finding that it is for the CJEU to represent the European Union in the context of the abovementioned action for damages is clearly based on the case-law originating in the judgment in Werhahn Hansamühle and Others v Council and Commission (63/72 to 69/72, EU:C:1973:121; ‘Werhahn and Others’). The solution adopted in that case-law implies that, where the liability of the Community (now the European Union) is engaged by reason of the conduct of one of its institutions, it should be represented before the EU Courts by the institution or institutions against which the matter giving rise to liability is alleged. The CJEU takes the view that that solution should not be applied to the present case because it would, by reason of several factors, lead to a situation that would appear to be at variance with the interest of a sound administration of justice, which, according to the express wording of Werhahn and Others, is the rationale for that solution. In that context, the CJEU also raises, as a subsidiary argument, a lack of regard for the scope of the first paragraph of Article 317 TFEU and Article 53(1) of Regulation No 966/2012 (1), on the basis of which the General Court ought to have recognised the principle that compensation such as that claimed in the present case must come from that part of the EU budget which relates to the Commission.

In the context of the second part of the first ground of appeal, the CJEU, relying in this regard on the judgment of the European Court of Human Rights of 10 July 2008 in Mihalkov v Bulgaria (application no 67719/01), argues that the General Court failed to take account of the requirements of judicial independence and impartiality when it ruled that the CJEU had to represent the European Union in Kendrion’s action for damages. In view of the fact that, in the present case, first, the matter allegedly giving rise to liability came about in the exercise of judicial functions by a formation of a judicial body and, secondly, the formation that will have to take cognisance of the case (i) belongs to the same judicial body (the General Court) as the formation of the judicial body being held responsible for the matter giving rise to liability and (ii) is an integral part of the defendant party in this case (the CJEU), with which the judges of that formation are professionally affiliated, the abovementioned requirements are compromised, a fortiori where, as the General Court has held, damages such as those here being claimed must come from that part of the budget which relates to the CJEU.

Accordingly, the CJEU argues in its second ground of appeal that, in the contested order, there has been a failure to comply with the obligation to state reasons , since that order contains no specific rebuttal of the argument concerning the scope of the judgment in Kendrion v Commission (C-50/12 P, EU:C:2013:771) that the CJEU had raised before the General Court.

(1) Regulation (EU, Euratom) of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).