Case T‑721/14

Kingdom of Belgium

v

European Commission

‛Action for annulment — Online gambling services — Protection of consumers and players and prevention of minors from gambling online — Commission recommendation — Act not open to challenge — Inadmissibility’

Summary — Order of the General Court (Second Chamber), 27 October 2015

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. 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. 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, its substance, and the intention and the powers of the institution which enacted it. As regards Recommendation 2014/478, on principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online, 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. Under the fifth paragraph of Article 288 TFEU recommendations do not have binding force. However, the choice of form cannot alter the nature of a measure, so that it must be ascertained whether the content of a measure is wholly consistent with the form attributed to it. Accordingly, in the light of the wording, content and context of Recommendation 2014/478, 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. In that context, 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. (see paras 16-18, 20, 37, 66, 73)

See the text of the decision. (see para. 28)

As regards the admissibility of an action for annulment under Article 263 TFEU, it is, 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, since such an error is not capable of altering the substance of that act. It follows that the mere publication of an act in the L series of the Official Journal of the European Union has no bearing as to whether the act at issue is capable of having binding legal effects. (see para. 40)

Even though recommendations are not intended to produce binding effects and cannot create rights upon which individuals may rely before a national court, they are not entirely devoid of 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. However, it cannot be inferred from those legal effects alone that a recommendation produces binding legal effects and therefore constitutes a challengeable act for the purposes of an action for annulment under Article 263 TFEU. The same applies to the fact that the EU judicature may have taken account of recommendations for the purposes of interpretation. (see paras 43, 46, 47)

The seriousness of an 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. Nor can it be argued that acts having no legally binding force which are adopted in breach of the duty of sincere cooperation are open to judicial review. It does not follow from the mere fact 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, since the two legal remedies have a different subject-matter and their own conditions for admissibility. (see paras 51, 53, 55)

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, 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 para. 58)

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 para. 64)