Case T‑676/14

Kingdom of Spain

v

European Commission

‛Action for annulment — Article 8(3) of Regulation (EU) No 1173/2011 — Effective enforcement of budgetary surveillance in the euro area — Manipulation of statistics — Commission decision to initiate an investigation — Act not amenable to review — Preparatory act — Inadmissibility’

Summary — Order of the General Court (Eighth Chamber), 3 September 2015

Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Preparatory measures — Not included — Decision of the Commission, in the context of budgetary surveillance in the euro area, to initiate an investigation concerning the manipulation of statistics by a Member State — Act not intended to produce legal effects — Inadmissibility

(Arts 261 TFEU and 263 TFEU; European Parliament and Council Regulation No 1173/2011, Art. 8(1), (3) and (5))

A natural or legal person may challenge, pursuant to the fourth paragraph of Article 263 TFEU, only measures the legal effects of which are binding on, and capable of affecting the interests of, that person by bringing about a distinct change in his legal position. In the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision, and whose legal defects could reasonably be raised in an action against it. It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings were themselves the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case.

The Court must therefore dismiss as inadmissible an action for annulment by a Member State against a Commission decision concerning the opening of an investigation concerning the manipulation of statistics by that Sate, such as envisaged by Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area, since the measures by which the Commission decides to initiate an investigation are merely preparatory acts and do not therefore produce legal effects capable of affecting the interests of the applicant, by bringing about a distinct change in its legal position as referred to in Article 263 TFEU.

In that regard, according to Article 8(3) of Regulation No 1173/2011, the Commission may conduct all investigations necessary to establish the existence of the misrepresentation of deficit and debt data relevant for the application of Articles 121 or 126 TFEU, or for the application of the Protocol on the excessive deficit procedure annexed to the EU Treaty and to the FEU Treaty. It may decide to initiate an investigation when it finds that there are serious indications of the existence of facts liable to constitute such a misrepresentation. It is therefore only against a decision adversely affecting the applicant, that is to say, according to the wording of Article 8(1) and (5) of Regulation No 1173/2011, the Council’s decision to impose a fine on a Member State, that an action may be brought by the latter under Article 263 TFEU, it being noted that in implementation of Article 261 TFEU, Article 8(5) of the said regulation confers unlimited jurisdiction on the EU judicature allowing it to annul, reduce or increase the fine so imposed. Any legal defects vitiating the measures preceding the Council’s adoption of such a decision, beginning with those relating to the initiation of an investigation by the Commission, may only be relied upon in that action.

Moreover, arguments that the Commission’s decision to initiate an investigation on the manipulation of statistics by a Member State, which was allegedly widely publicised, thus causing that State substantial damage on the international financial markets, are irrelevant to the analysis of the legal nature of the contested decision, namely that the decision does not constitute an act that adversely affects the applicant, for the purposes of Article 263 TFEU.

(see paras 12-19)