ORDER OF THE COURT (Seventh Chamber)

22 November 2018 ( )

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Actions for failure to act — Application for a declaration that the European Commission failed to act in not defining its position to the substance of a complaint against the Grand Duchy of Luxembourg)

In Case C‑412/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 June 2018,

Anthony Andrew King, residing in Longuich (Germany), represented by P. McKenna, BL,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of T. von Danwitz, President of the Chamber, E. Levits and M. Berger (Rapporteur), Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By his appeal, Mr Anthony Andrew King asks the Court to set aside the order of the General Court of the European Union of 10 April 2018, King v Commission (T‑810/17, not published, ‘the order under appeal’, EU:T:2018:191) in so far as by that order the General Court dismissed his application under Article 265 TFEU, first, for a declaration that the European Commission had failed to define its position to the substance of a complaint against the Grand Duchy of Luxembourg and, second, to order the Commission to define its position and bring infringement proceedings against the Grand Duchy of Luxembourg, under Article 258 TFEU, for general interest violations of European Union law, in particular, direct discrimination against non-nationals in Article 10bis of the Constitution of that Member State and non-transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHI (OJ 2012 L 315, p. 57).

Background to the dispute

2 By letter of 5 December 2014, sent to the Commission, Mr King lodged a complaint against the Grand Duchy of Luxembourg under Article 258 TFEU for breaches of EU law and of EU fundamental rights. By letter of 14 March 2016, the appellant requested that the Commission respond to him within two months in accordance with Article 265 TFEU.

3 In reference to several emails which it sent to Mr King in response to that complaint, the Commission confirmed, by letter of 4 October 2017, that it would not bring an action against the Grand Duchy of Luxembourg for infringement of EU law on the basis of the information provided in that complaint, and that it would not, in particular, bring any infringement proceedings pursuant to Article 258 TFEU. In addition, the Commission made clear that it would not respond further to Mr King on the matter, since all relevant issues had been analysed and resolved.

The proceedings before the General Court and the order under appeal

4 Mr King brought an action on the basis of Article 265 TFEU by application lodged at the Registry of the General Court on 12 December 2017.

5 In paragraph 5 of the order under appeal, the General Court found that, by his application, the appellant sought, first, a declaration that the Commission had failed to act in not bringing infringement proceedings against the Grand Duchy of Luxembourg under Article 258 TFEU, and, second, that the Commission be ordered to bring such proceedings against that Member State.

6 In that regard, the General Court held, in paragraph 8 of the order under appeal, that the appellant’s claim for a declaration that the Commission had infringed the FEU Treaty in failing to bring infringement proceedings against a Member State must be rejected as manifestly inadmissible.

7 In addition, in paragraph 11 of the order under appeal, the General Court found that the appellant’s claim that that court should order the Commission to bring infringement proceedings must be rejected as it was clear that the General Court lacked jurisdiction.

8 Consequently, the General Court held, in paragraph 12 of the order under appeal, that the action must be dismissed, in part, as manifestly inadmissible and, in part, as manifestly falling outside of its jurisdiction.

The form of order sought by the appellant before the Court of Justice

9 By his appeal, Mr King claims that the Court should:

– declare the appeal well founded;

– set aside the order under appeal, in whole or in part;

– declare the action to be admissible;

– declare the action for infringement of the Treaties by the respondent to be admissible;

– in the alternative, refer the case back to the General Court;

– make any other order that the Court deems appropriate, and

– order the respondent to pay the costs of the proceedings.

The appeal

10 Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may, at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

11 That provision should be applied to the present appeal.

12 In support of his appeal, the appellant puts forward four grounds of appeal.

The first to third grounds of appeal

13 By his first to third grounds of appeal, directed against paragraph 8 of the order under appeal, the appellant criticises the General Court, in essence, for having disregarded the fact that his action sought a declaration that the Commission had failed, not to bring infringement proceedings against the Grand Duchy of Luxembourg, but to define its position to the substance of the complaint he lodged against that Member State.

14 In that regard, the Court notes that, in paragraph 26 of his application, entitled ‘Conclusions’, the appellant asked the General Court, first, to order the Commission to define its position and to bring infringement proceedings against the Grand Duchy of Luxembourg, and, second, to order the Commission to pay the costs of the proceedings.

15 In addition, it can be inferred from that application, inter alia from paragraphs 1 and 16, that the application also sought a declaration, under Article 265 TFEU, that the Commission had failed to define its position to the substance of the complaint lodged with that institution.

16 It is clear from the face of the order under appeal that the General Court construed that claim as seeking merely a declaration that the Commission had failed to act by not bringing infringement proceedings against the Grand Duchy of Luxembourg. However, it is clear that the appellant, in paragraph 16 of his application, had expressly emphasised that his claim was for a declaration of the Commission’s failure to define its position and not for declining to pursue an infringement procedure.

17 Thus, the General Court did not deal with one of the claims put forward by the appellant, which constitutes an error of law (see, by analogy, order of 3 June 2005, Killinger v Germany and Others, C‑396/03 P, EU:C:2005:355, paragraph 11).

18 However, it is settled case-law of the Court of Justice that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (judgment of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 57 and the case-law cited).

19 It must therefore be considered whether the General Court’s omission is capable of calling into question the operative part of the order under appeal.

20 As regards the action for failure to act laid down in Article 265 TFEU, it is important to note that individuals can rely on the provisions of the third paragraph of that article only for the purposes of seeking a declaration that an EU institution, body, office or agency has failed to adopt, in breach of the Treaty, measures, other than recommendations or opinions, of which those individuals are the potential addressees or which are of direct, or where relevant direct and individual, concern to them (order of 5 September 2013, H-Holding v Parliament, C‑64/13 P, not published, EU:C:2013:557, paragraph 15 and the case-law cited).

21 In addition, as is clear from the wording of Article 258 TFEU, in the context of proceedings governed by that article, the only measures which the Commission may adopt are measures addressed to Member States (order of 4 June 2015, Bharat Heavy Electricals v Commission, C‑602/14 P, not published, EU:C:2015:376, paragraph 23 and the case-law cited).

22 It is obvious that to define its position to the substance of the appellant’s complaint, as requested by the appellant, would mean addressing to him a reasoned opinion on the matter, inter alia, of the conformity with EU law of Article 10a of the Constitution of the Grand Duchy of Luxembourg and of the transposition and implementation by that Member State of Directive 2012/29, whereas an individual who has lodged a complaint is himself not the addressee of any measure adopted pursuant to the procedure on the basis of Article 258 TFEU and the condition laid down in the third paragraph of Article 265 TFEU, set out in paragraph 20 of the present order, has not been satisfied.

23 In those circumstances, the appellant’s claim at first instance, seeking a declaration that the Commission had failed to act by not defining its position to the substance of a complaint lodged against the Grand Duchy of Luxembourg, was manifestly inadmissible and the operative part of the order under appeal is not called into question by the fact that the General Court did not consider that claim.

24 If only for the sake of completeness it must be found that, assuming that that claim was admissible from a purely procedural point of view, the claim would nevertheless necessarily have been dismissed as manifestly unfounded. As is apparent from ample correspondence between the appellant and the Commission, the Commission expressed a clear and final point of view on the complaint in question. Thus, that institution did define its position; the fact that the position defined by the institution concerned does not satisfy the appellant is of no relevance (see order of 8 February 2018, CBA Spielapparate- und Restaurantbetrieb v Commission, C‑508/17 P, not published, EU:C:2018:72, paragraph 23 and the case-law cited).

25 The first to third grounds of appeal raised by the appellant before the Court must therefore be dismissed as manifestly unfounded.

The fourth plea in law

26 By his fourth ground of appeal, the appellant criticises the General Court for having erred in law by holding, in paragraph 12 of the order under appeal, that his action was manifestly outside the jurisdiction of the General Court. The appellant submits that the General Court has jurisdiction to hear an action brought under the third paragraph of Article 265 TFEU, such as that brought by the appellant at first instance.

27 In that regard, it should be made clear that in so far as the General Court held, in that paragraph of the order under appeal, that ‘the action must be dismissed ... in part as it manifestly falls outside the jurisdiction of the [General] Court’, the General Court was referring to the appellant’s claim that the Commission should be ordered to bring infringement proceedings, as examined in paragraphs 9 to 11 of that order.

28 However, first, as the appellant concedes himself in paragraph 22 of his appeal, the General Court does not have jurisdiction to issue directions to the Commission. Second, it is not apparent from the order under appeal that the General Court called into question its jurisdiction to rule at first instance on actions under Article 265 TFEU.

29 The fourth ground of appeal, being based on a clear misreading of the order under appeal, must therefore be dismissed as manifestly unfounded.

30 Accordingly, the appeal must be dismissed in its entirety as manifestly unfounded.

Costs

31 Under Article 137 of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. As this order has been adopted without the appeal having been notified to the defendant at first instance, the appellant must be ordered to bear his own costs.

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

1. The appeal is dismissed as manifestly unfounded.

2. Mr Anthony Andrew King is ordered to bear his own costs.





Luxembourg, 22 November 2018.





A. Calot Escobar T. von Danwitz

Registrar President of the Seventh Chamber