ORDER OF THE COURT (Second Chamber)

2 September 2010 ( )

(Appeals – Article 119 of the Rules of Procedure – Irregular form of order sought – Clear inadmissibility)

In Case C‑28/10 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union brought on 21 December 2009,

Mehmet Salih Bayramoglu, residing in Kyrenia (Cyprus), represented by A. Riza QC,

appellant,

the other parties to the proceedings being:

European Parliament, represented by C. Karamarcos and N. Görlitz, acting as Agents, with an address for service in Luxembourg,

Council of the European Union, represented by M. Balta and E. Finnegan, acting as Agents,

defendants at first instance,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues (Rapporteur), President of Chamber, P. Lindh, A. Rosas, A. Ó Caoimh and A. Arabadjiev, Judges,

Advocate General: N. Jääskinen,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By his appeal, Mr Bayramoglu claims that the Court should, first, annul Council Decision 2004/511/EC of 10 June 2004 concerning the representation of the people of Cyprus in the European Parliament in case of a settlement of the Cyprus problem (OJ 2004 L 211, p. 22) and, second, declare that the six Members of the European Parliament (‘MEPs’) returned under the present electoral arrangements, whose election was notified by the Republic of Cyprus after 6 June 2009, do not represent the Turkish Cypriot people as required by law.

Procedure before the General Court

2 On 18 March 2009, Mr Bayramoglu brought before the Court of First Instance of the European Communities (now ‘the General Court’) an action seeking, first, annulment of Decision 2004/511, which by implication provides that elections guaranteeing the representation and the electoral rights of Turkish Cypriots in elections to be held in the whole of Cyprus can be indefinitely postponed pending a comprehensive settlement of the Cyprus problem, and, second, that the Parliament should be directed to admit not all six MEPs whose election was notified by the Republic of Cyprus after 6 June 2009, but a number the Council of the European Union considers appropriate.

3 By order of 24 September 2009 in Case T-110/09 Bayramoglu v Council and Parliament (‘the General Court order’), the General Court dismissed that action, pursuant to Article 111 of its Rules of Procedure, as manifestly inadmissible.

4 The General Court found, at paragraphs 6 to 8 of that order, that the action did not satisfy the requirements of the fifth paragraph of Article 230 EC, according to which proceedings for annulment must be instituted within two months of the publication of the contested measure. The General Court held that, in the present case, the application lodged at the Registry of the General Court on 18 March 2009 was manifestly out of time, since the contested measure had been published in the Official Journal of the European Union on 12 June 2004. The General Court stated, furthermore, at paragraph 9 of the order, that the appellant had not pleaded the existence of unforeseeable circumstances, force majeure or the occurrence of an excusable error, which would have allowed the Court to vary the time-limit in question.

5 In addition, at paragraph 10 of the order, the General Court found, in relation to the second head of claim, that when exercising judicial review of legality on the basis of Article 230 EC the Community judicature has no jurisdiction to issue directions to Community institutions or to assume their role.

Forms of order sought

6 By his appeal Mr Bayramoglu claims that the Court should:

– annul Decision 2004/511, on the ground that it is based on an unlawful failure to act to enable the Turkish Cypriot people to take part in European elections, in breach of Article 189 EC in conjunction with Articles 5 EU and 6 EU, and

– declare that the six MEPs returned under the present electoral arrangements, whose election was notified by the Republic of Cyprus after 6 June 2009, do not represent the Turkish Cypriot people as required by law.

7 The Parliament contends that the Court should:

– dismiss the appeal as manifestly inadmissible;

– in the alternative, dismiss the appeal in its entirety as unfounded;

– in the further alternative, if the appeal is considered admissible and well-founded by the Court, refer the case back to the General Court for judgment, and

– order the appellant to pay the costs.

8 The Council contends that the Court should dismiss the appeal and order the appellant to pay the costs.

The appeal

9 Under Article 119 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal.

10 Article 112(1)(d) of the Rules provides that an appeal is to contain the form of order sought by the appellant.

11 Article 113(1) of the Rules provides:

‘An appeal may seek:

– to set aside, in whole or in part, the decision of the General Court;

– the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order.’

12 The Court may rule on the form of order sought at first instance only where it has, beforehand, set aside the General Court decision at issue. Consequently, the appeal must, in every case, seek to set aside, in whole or in part, the decision of the General Court.

13 The appeal in this case does not seek to set aside, in whole or in part, the General Court order. It seeks only annulment of Decision 2004/511 and a declaration as to the status of the MEPs whose election was notified by the Republic of Cyprus after 6 June 2009.

14 It follows that this appeal does not satisfy the provisions of Article 113(1) of the Rules of Procedure of the Court.

15 In addition, and in any event, it must be observed that Article 113(2) of the Rules of Procedure of the Court provides that the subject-matter of the proceedings before the General Court may not be changed in the appeal.

16 The second head of claim of the present appeal diverges substantially from the second head of claim at first instance. Whilst the appellant claimed at first instance that the General Court should direct the Parliament to admit not all six MEPs whose election was notified by the Republic of Cyprus after 6 June 2009, but a number the Council considers appropriate, he claims in the present appeal that the Court should declare that the six MEPs returned under the present electoral arrangements, whose election was notified by the Republic of Cyprus after 6 June 2009, do not represent the Turkish Cypriot people as required by law.

17 Such a substantial change in the form of order sought would amount to a change in the subject-matter of the proceedings contrary to Article 113(2) of the Rules of Procedure of the Court.

18 It follows from all the foregoing that the appeal must be dismissed as clearly inadmissible.

Costs

19 Under Article 69(2) of the Rules of Procedure of the Court, which applies to the procedure on appeal pursuant to Article 118 thereof, 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 Parliament and the Council have applied for costs against Mr Bayramoglu and the latter has failed in his submissions, he must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby orders:

1. The appeal is dismissed.

2. Mr Bayramoglu shall pay the costs.

[Signatures]