Order of the Court of First Instance (Third Chamber) of 11 January 1995. - Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e dei Procuratori Legali v Council of the European Union. - Action for annulment - Regulation (EC) Nº 3604/93 specifying definitions for the application of the prohibition of privileged access referred to in Article 104a of the EC Treaty - Inadmissibility. - Case T-116/94.



European Court reports 1995 Page II-00001



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation specifying definitions, including that of "financial institutions", for the application of the prohibition laid down in Article 104a of the Treaty

(EC Treaty, Arts 104a, 173, fourth para., and 189; Council Regulation No 3604/93, Art. 4(2), last indent)

Summary

An action brought by a public organization of a Member State administering a compulsory welfare and assistance scheme against Regulation No 3604/93 on the application of the prohibition laid down in Article 104a of the Treaty of privileged access by public authorities to financial institutions, the last indent of Article 4(2) of which defines the concept of "financial institutions", stating that institutions forming part of the "general government sector" are not financial institutions, is inadmissible.

That regulation is a legislative measure by nature and by virtue of its sphere of application and does not therefore constitute a decision within the meaning of Article 189 of the Treaty. It is sufficient to note in that respect that the definitions given in the regulation are framed in general and abstract terms and produce legal effects for categories of undertakings and institutions which are determined in a general and abstract way, and that a measure which deals with objective legal or factual situations defined in relation to its purpose does not lose its legislative character because the persons to which it applies were identifiable at the time it was adopted.

Nor does the situation meet the criteria which would enable the applicant to be regarded as individually concerned by the regulation, since, although it is obliged to put part of its resources at the disposal of the public treasury, its legal position is not affected by reason of circumstances in which it is differentiated from all other persons and which distinguish it individually in the same way as a person to whom a measure is addressed; it is in a situation comparable with that of any other non-financial undertaking or institution not entitled, as regards State levies on its resources, to the protection under Article 104a(1) of the Treaty, to which privileged access is or may be provided for by current or future legislation of a Member State.

Parties

In Case T-116/94,

Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori, represented by Edilberto Ricciardi, of the Salerno Bar, and by Pietro Adonnino, Mario Sanino, Maurizio de Stefano and Alberto Colabianchi, all of the Rome Bar, with an address for service in Luxembourg at the Chambers of Marianne Goebel, 6 Rue Heine,

applicant,

v

Council of the European Union, represented by Ruediger Bandilla, a director in its Legal Service, and Antonio Lucidi, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

APPLICATION for the annulment of Council Regulation (EC) No 3604/93 of 13 December 1993 specifying definitions for the application of the prohibition of privileged access referred to in Article 104a of the Treaty (OJ 1993 L 332, p. 4),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: J. Biancarelli, President, C.P. Briët and C.W. Bellamy, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Legislative and factual background

1 The applicant is a public organization to which lawyers who continuously exercise their professional activity on Italian territory are obliged to belong. According to its submissions, the applicant receives no funding from the Italian authorities, but derives its resources solely from the contributions of its members. In return, the members are entitled to all social welfare and assistance benefits.

2 The applicant was classified by Italian Law No 70 of 20 March 1975 (GURI No 87 of 2. 4. 1975) as a public organization administering compulsory welfare and assistance schemes. Under Article 12 of Decree-Law No 155 of 20 May 1993, as amended by Ratifying Law No 243 of 19 July 1993 (GURI Supplemento Ordinario No 204 of 31. 8. 1993), such organizations are required, for the years 1993, 1994 and 1995, to invest an amount equivalent to 25% of all dues received by them during each of those reference years in an interest-bearing current account, blocked for five years, at the Tesoreria Centrale dello Stato (Central State Treasury).

3 Article 104a of the EC Treaty prohibits public authorities from having privileged access to financial institutions in the following terms:

"1. Any measure, not based on prudential considerations, establishing privileged access by Community institutions or bodies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of Member States to financial institutions shall be prohibited.

2. The Council, acting in accordance with the procedure referred to in Article 189c, shall, before 1 January 1994, specify definitions for the application of the prohibition referred to in paragraph 1."

4 On 4 December 1993 the applicant, taking the view that the compulsory levy introduced by Decree-Law No 155 of 20 May 1993 infringed Article 104a of the Treaty, requested the Council to state that the prohibition laid down in Article 104a(1) of the Treaty also applied to organizations administering compulsory welfare and assistance schemes.

5 On 13 December 1993 the Council adopted Regulation (EC) No 3604/93 specifying definitions for the application of the prohibition of privileged access referred to in Article 104a of the Treaty (OJ 1993 L 332, p. 4). That regulation, based on Article 104a(2) of the Treaty, contains definitions of the following concepts: "measure establishing privileged access" (Article 1), "prudential considerations" (Article 2), "public undertaking" (Article 3) and "financial institutions" (Article 4).

6 In defining "financial institutions", Article 4(2) of Regulation No 3604/93 provides that the following are not to be regarded as institutions of that kind for the purposes of Article 104a of the Treaty:

"° the European Central Bank and national central banks,

° post office financial services when they form part of the general government sector defined in accordance with the European System of Integrated Economic Accounts or when their main activity is to act as the financial agent of the government, and

° the institutions which are part of the general government sector defined in accordance with the European System of Integrated Economic Accounts or the liabilities of which correspond completely to a public debt."

7 Paragraph 241 of the Second Edition of the European System of Integrated Economic Accounts ("ESA"), compiled by Eurostat, provides that the "general government sector" is divided into three sub-sectors, namely central government, local government and social security funds. The latter sub-sector is defined in Paragraphs 244 and 245 of ESA as including "all central and local institutional units whose principal activity is to provide social benefits and whose main resources are derived from compulsory social contributions paid by other units. This sub-sector includes, in particular, autonomous pension funds and other insurance institutions when the premiums paid are fixed without reference to the individual exposure to risk of the insured."

8 The applicant, as a public organization administering a compulsory welfare and social assistance scheme, considers that it therefore comes within the definition of "the general government sector" given by the last indent of Article 4(2) of Regulation No 3604/93. Further confirmation, should it be necessary, is provided by a letter from the Italian Treasury, dated 27 January 1994, informing the applicant that "on the basis of the regulation of the Council of the European Union implementing Article 104a of the Treaty ... organizations falling within the category of 'financial institutions' and those excluded from that definition have been identified; the latter include the general government sector as defined by the ESA, and thus also organizations administering compulsory social welfare schemes".

Forms of order sought and procedure

9 In those circumstances, by an application lodged at the Court Registry on 22 March 1994, the applicant brought this action, in which it claims that the Court should:

(i) declare the action admissible;

(ii) annul Regulation No 3604/93;

(iii) in the alternative, annul the last indent of Article 4(2) of Regulation No 3604/93 in so far as it classifies the applicant as an institution forming part of the "general government sector" defined in accordance with the ESA and, consequently, excludes it from the category of "financial institutions" within the meaning of Article 104a(1) of the Treaty, referred to in Article 4(1) of the same regulation;

(iv) order the Council to pay the costs.

10 By a document lodged at the Court Registry on 30 May 1994, the Council raised an objection of inadmissibility, in which it requested the Court to:

(i) dismiss the action as inadmissible;

(ii) order the applicant to pay the costs.

11 On 11 July 1994 the applicant lodged observations on the objection of inadmissibility, claiming that the Court should:

(i) join the objection of inadmissibility to the merits of the case;

(ii) in any event, dismiss the objection of inadmissibility raised by the Council and therefore declare the action admissible.

12 On 8 August 1994 Cassa Nazionale di Previdenza ed Assistenza a favore dei Geometri, Cassa Nazionale del Notariato and Cassa Nazionale di Previdenza ed Assistenza per gli Ingegneri e gli Architetti Liberi Professionisti applied to intervene in support of the applicant' s claims. By a document lodged at the Court Registry on 9 August 1994, the Commission applied to intervene in support of the Council.

Law

13 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.

Admissibility

The parties' arguments

14 The Council considers that the contested act is not a decision which directly and individually concerns the applicant but a legislative measure of general application against which an action for annulment cannot be brought by a natural or legal person under the fourth paragraph of Article 173 of the EC Treaty.

15 In the first place, Regulation No 3604/93 has all the hallmarks of a legislative measure. The definitions given in Regulation No 3604/93 are designed to render the concepts used by Article 104a(1) of the Treaty more specific and thus necessarily have the same legislative character. Any identification of undertakings or institutions coming within one of the categories defined in Articles 3 and 4 of the regulation ° should it be necessary in order to ensure the correct application of Article 104a in the Member States ° would constitute an implementing act which, in this area, would be a matter for the Member States. In the Council' s opinion, Article 104a(2) has given it only a limited power, that of specifying certain definitions, and does not allow it to take decisions itself in order to identify individual undertakings, banks or financial institutions.

16 Secondly, the Council considers that the applicant is in any event not individually concerned by the regulation, since the last indent of Article 4(2) thereof applies to the applicant in the same way as it does to all other present and future institutional units in all the Member States forming part of the "general government sector" as defined by the ESA.

17 The applicant points out that Regulation No 3604/93 is based on Article 104a(2) of the Treaty, which, in its submission, assigns to the Council a limited task only, that of laying down certain definitions for the application of the prohibition referred to in Article 104a(1). Since the addressees of the prohibition were already identified by Article 104a(1) of the Treaty, the regulation in question, specifying the definitions necessary for putting the prohibition into effect, does not, in the applicant' s submission, constitute anything more than a miscellaneous collection of individual decisions within the meaning of Article 189 of the EC Treaty.

18 The applicant adds that the last indent of Article 4(2) of Regulation No 3604/93 has, more particularly, the legal effect of a decision concerning a category of persons which was precise and identifiable at the time the provision was adopted, a category within which its situation has not been properly analysed.

19 The applicant considers that Regulation No 3604/93 directly concerns it by depriving it of the legal protection envisaged by Article 104a(1) of the Treaty. It is also individually concerned by the regulation because Italian Decree-Law No 155 of 20 May 1993, organizing privileged access to welfare organizations, constitutes a factual situation sufficiently distinguishing that particular category of organizations to which the applicant belongs from any other undertaking or institution. The applicant adds that, following its written request, the Council must necessarily have been in a position to know that adoption of the contested act would particularly affect the applicant' s situation and that of other Italian social security organizations.

20 In its observations on the objection of inadmissibility, the applicant maintains, referring to Case 22/70 Commission v Council [1971] ECR 263, that the Community legal order must in any event allow individuals who consider that they have been harmed by unlawful acts to bring an action before a court. In order to demonstrate that the contested measure concerns it individually, the applicant argues that, although under Italian Legislative Decree No 509 of 30 June 1994 (GURI No 196 of 23. 8. 1994) its status is to be changed before 31 December 1994 so that it is governed by private law, it will nevertheless remain excluded from the benefit of the prohibition laid down in Article 104a(1) of the Treaty in so far as, in accordance with the definition in the ESA, it will still be classified in the "general government sector".

Findings of the Court

21 The system of legal protection laid down by the Treaty does not in principle allow natural or legal persons to bring actions for the annulment of regulations before the Community judicature. The fourth paragraph of Article 173 of the Treaty makes the admissibility of an action for annulment by a natural or legal person subject to the condition that the contested act must in reality constitute a decision of direct and individual concern to the applicant. As this Court held in its order in Case T-476/93 FRSEA and FNSEA v Council [1993] ECR II-1187, paragraph 19, "the objective of that provision is in particular to prevent the Community institutions from being able, merely by choosing the form of a regulation, to preclude an individual from bringing an action against a decision which concerns him directly and individually" (see also Joined Cases 789 and 790/79 Calpak v Commission [1980] ECR 1949, paragraph 7, and Case 26/86 Deutz and Geldermann v Council [1987] ECR 941, paragraph 6).

22 The term "decision" in the fourth paragraph of Article 173 of the Treaty must be interpreted in the light of Article 189 of the Treaty. The criterion for distinguishing between a legislative measure and a decision, within the meaning of the latter article, must be sought in the general "application" or otherwise of the measure in question (Joined Cases 16 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, paragraph 2; order in Case C-168/93 Gibraltar and Gibraltar Development Corporation v Council [1993] I-4009, paragraph 11).

23 In Regulation No 3604/93, the Council gave specific definitions of "measure establishing privileged access", "prudential considerations", "public undertaking" and "financial institutions" in order to facilitate the application of the prohibition of privileged access laid down in Article 104a of the Treaty. The applicant was not mentioned by name either in Regulation No 3604/93 or in the ESA, to which the last indent of Article 4(2) of that regulation refers.

24 Since the definitions given in Regulation No 3604/93 are drafted in general and abstract terms, and thus produce legal effects for categories of undertakings and institutions which are determined in a general and abstract manner, the contested act must be regarded as having a general and legislative sphere of application. Even if it were established, as the applicant claims, that the persons to whom the last indent of Article 4(2) applies were identifiable at the time the act was adopted, the legislative nature of that provision would not thereby be called into question, since it envisages objective legal or factual situations ° in particular the inclusion or otherwise of institutions within the "general government sector" as specified by the ESA ° defined in relation to the purpose of Regulation No 3604/93, which consists, inter alia, of specifying the concept of "financial institutions" for the purpose of applying the prohibition laid down in Article 104a(1) of the Treaty (Case C-213/91 Abertal v Commission [1993] ECR I-3177, paragraph 17, Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 18, and FRSEA and FNSEA v Council, cited above, paragraph 19).

25 By nature and by virtue of its sphere of application, therefore, the contested regulation is a legislative measure and not a decision within the meaning of Article 189 of the Treaty.

26 The Court of Justice has, it is true, held that a measure which is legislative by nature and by virtue of its sphere of application, in that it applies to the operators concerned in general, may nevertheless concern some of them individually in certain circumstances (Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraphs 13 and 14, and Codorniu v Council, cited above, paragraph 19). However, for the applicant to be regarded as individually concerned by the contested regulation, its legal position must be affected by reason of circumstances in which it is differentiated from all other persons and which distinguish it individually in the same way as a person to whom a measure is addressed (see Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107; Codorniu v Council, cited above, paragraph 20; order in Case C-257/93 Van Parijs v Council [1993] ECR I-3335, paragraph 9; FRSEA and FNSEA v Council, cited above, paragraph 20).

27 In that respect, the applicant maintains that, following its letter of 4 December 1993, the Council was in a position to know that the adoption of Regulation No 3604/93 would affect the applicant' s situation and that of other social security organizations subject to the levy introduced by Decree-Law No 155 of 20 May 1993 by depriving them, as part of the "general government sector" within the meaning of the last indent of Article 4(2) of the regulation, of the protection provided for in Article 104a(1) of the Treaty.

28 That argument must be rejected. The prohibition of privileged access to financial institutions laid down in Article 104a(1) of the Treaty refers to financial institutions only and Article 104a(2), on which the contested regulation is based, confers upon the Council only the power to specify the definitions of the concepts used in Article 104a(1) and not the power to extend that prohibition to cover non-financial institutions. The fact that the applicant is subject to a compulsory levy under Italian Decree-Law No 155 of 20 May 1993 does not differentiate it from all other undertakings or institutions, since it is in a situation comparable with that of any other non-financial undertaking or institution, privileged access to which is or may be provided for by current or future legislation of a Member State.

29 As to whether the applicant is individually concerned by the last indent of Article 4(2) of Regulation No 3604/93, the annulment of which it requests in the alternative, it should be noted that that provision expressly excludes the "general government sector" from the definition of "financial institutions". The applicant itself has stated that it will, as a national social security organization, continue to fall within that sector even after its status has been changed so that it is governed by private law pursuant to Italian Legislative Decree No 509 of 30 June 1994.

30 Moreover, the applicant, which is not referred to by name either in Regulation No 3604/93 or in the ESA to which the last indent of Article 4(2) of that regulation refers, is affected by that provision only objectively as part of the general government sector. Thus, contrary to what the applicant alleges, the last indent of Article 4(2) of Regulation No 3604/93, far from affecting the applicant by reason of attributes peculiar to it or by reason of circumstances in which it is differentiated from all other institutions or undertakings, is directed in abstract and general terms to any institution or undertaking belonging to the "general government sector", as that sector is defined, also in abstract and general terms, by the ESA.

31 In those circumstances, the applicant cannot claim to be individually concerned either by Regulation No 3604/93 as a whole, or by the last indent of Article 4(2) of that regulation in particular.

32 It follows from all the foregoing that the action is manifestly inadmissible. There is therefore no need to make any decision on the applications by Cassa Nazionale di Previdenza ed Assistenza a favore dei Geometri, by Cassa Nazionale del Notariato, by Cassa Nazionale di Previdenza ed Assistenza per gli Ingegneri e gli Architetti Liberi Professionisti and by the Commission to intervene in the dispute.

Decision on costs

Costs

33 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. Since the applicant has been unsuccessful, it must be ordered to pay its own costs and those incurred by the Council.

34 Under Article 87(6) of those Rules, where a case does not proceed to judgment, the costs shall be in the discretion of the Court of First Instance. In the circumstances of the present case, the parties applying to intervene must be ordered to bear their own costs.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The action is dismissed as inadmissible;

2. There is no need to rule on the applications to intervene;

3. The applicant shall bear its own costs and those incurred by the Council; each of the parties applying to intervene shall bear its own costs.

Luxembourg, 11 January 1995.