ORDER OF THE COURT (Tenth Chamber)

23 April 2020 ( )

(Article 155 of the Rules of Procedure of the Court — Failure to adjudicate — None)

In Case C‑284/19 P‑OST,

APPLICATION under Article 155 of the Rules of Procedure of the Court of Justice, brought on 10 October 2019,

Andrew Clarke, residing in Kingston upon Thames (United Kingdom), represented by E. Lock, Solicitor,

applicant,

the other party to the proceedings being

European Commission, represented by F. Erlbacher, acting as Agent,

THE COURT (Tenth Chamber),

composed of E. Juhász (Rapporteur), acting as President of the Chamber, M. Ilešič and C. Lycourgos, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Advocate General,

gives the following

Order

1 By his application, Mr Clarke seeks that an alleged failure by the Court to adjudicate in the order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799) be remedied.

2 By that order, the Court of Justice dismissed the appeal brought by Mr Clarke against the order of the General Court of the European Union of 25 March 2019, Clarke v Commission (T‑731/18, not published, EU:T:2019:209; ‘the order under appeal’) by which the General Court dismissed his application for annulment of the European Commission’s decisions of 22 and 25 October 2018, bearing the references Ares (2018) 5364821 and Ares (2018) 5488682, by which that institution refused to bring infringement proceedings against the United Kingdom of Great Britain and Northern Ireland under Article 258 TFEU, and, under Article 265 TFEU, for a declaration that, by failing to bring such proceedings, the Commission has failed to act.

3 By his appeal, as is apparent from paragraph 13 of the order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), Mr Clarke claimed that the Court of Justice should, first, set aside the order under appeal, second, refer the case back to the General Court, third, order that the Commission deliver to the United Kingdom, as an interim measure, a reasoned opinion setting out its position on the infringements of EU law invoked in his complaint, fourth, authorise him to apply to the General Court to issue further directions to the Commission and, fifth, order the Commission to pay the costs.

4 In paragraphs 19 to 21, 23 to 32, 34 to 39 and 41 to 43 respectively of the order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), the Court of Justice examined the four grounds of appeal relied on by Mr Clarke and alleging, first, that the General Court distorted his initial complaint to the Commission of 13 July 2018 and his subsequent observations addressed to that institution on 9 October 2018, second, that the General Court misinterpreted Article 263 TFEU by stating that individuals are not entitled to challenge a refusal by the Commission to bring infringement proceedings against a Member State, third, that the General Court erred in law by not finding that the Commission had failed to act, within the meaning of Article 265 TFEU, through its failure to issue a reasoned opinion against the United Kingdom under the first paragraph of Article 258 TFEU and, fourth, that the General Court erred in law in that it did not require the Commission to issue a reasoned opinion under the first paragraph of Article 258 TFEU.

5 Following that examination, the Court held that those four grounds of appeal had to be rejected as manifestly unfounded.

6 Consequently, as is apparent from the operative part of the order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), the Court dismissed the appeal in its entirety and held that Mr Clarke was to pay his own costs.

7 In support of his application, Mr Clarke submits, in essence, that, in its order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), the Court failed to examine some of his arguments submitted in the appeal.

8 In the first place, according to Mr Clarke, the Court did not examine his arguments in relation to the Commission’s decisions of 22 and 25 October 2018, by which that institution had indicated, respectively, that it did not consider the United Kingdom to have failed to fulfil its obligations under the Treaties and that it was not willing to exercise its discretion under Article 258 TFEU to initiate infringement proceedings against that Member State. He claims that those arguments demonstrated that Mr Clarke, as the person to whom those decisions not to issue a reasoned opinion were addressed, or as a person to whom those decisions were of direct and individual concern, had a right to bring an action for annulment of those decisions under Article 263 TFEU.

9 In the second place, Mr Clarke submits that the Court did not examine his arguments in relation to the admissibility of an action for annulment brought by an individual against a Commission decision not to initiate infringement proceedings. Those arguments, derived from paragraph 49 of the judgment of 14 September 1995, Lefebvre and Others v Commission (T‑571/93, EU:T:1995:163), would have substantiated the fact that the exercise of the Commission’s discretion in that field must be judicially reviewable. Also, Mr Clarke states that the Court has not made clear whether a Member State can challenge the exercise of that discretion before the EU judicature. Lastly, the EU judicature’s approach with regard to the admissibility of such an action for annulment brought by an individual should be different where the Commission’s discretion was not exercised correctly.

10 In the third place, Mr Clarke claims that the Court did not examine his arguments in relation to whether a reasoned opinion forms part of infringement proceedings for the purpose of Article 258 TFEU. He takes the view that the General Court, by raising that issue — which was not addressed by the parties to the proceedings — in paragraph 10 of the order under appeal, and the Court of Justice, by stating that the General Court was entitled to find that a reasoned opinion forms part of infringement proceedings, infringed the adversarial principle and the applicant’s right to a fair hearing guaranteed in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 47 of the Charter of Fundamental Rights of the European Union. In any event, Mr Clarke claims that the reasoned opinion does not form part of the infringement proceedings.

11 In the fourth place, according to Mr Clarke, the Court did not examine his arguments according to which it should either annul the Commission’s decisions not to initiate infringement proceedings, in accordance with Article 263 TFEU, on the ground that the Commission’s discretion was not exercised correctly, or find that the Commission had failed to act, pursuant to Article 265 TFEU, on the ground that it had not issued a reasoned opinion. The Court should have ordered that a reasoned opinion be issued by way of an interim measure under Article 279 TFEU. Mr Clarke adds that the Court did not examine his arguments in relation to the order of 24 November 2016, Petraitis v Commission (C‑137/16 P, not published, EU:C:2016:904), and that that order does not constitute a precedent for the present case.

12 In addition, Mr Clarke submits a request seeking that the case be determined pursuant to an expedited procedure, on the basis of Article 133 of the Rules of Procedure of the Court.

13 The Commission, in its written observations submitted in accordance with Article 155(2) of the Rules of Procedure, contends that the application is inadmissible or, in the alternative, unfounded and requests the Court to dismiss it and to order Mr Clarke to pay the costs.

14 Article 155(3) of the Rules of Procedure provides that, after the submission of the opposite party’s observations on the application submitted on the basis of Article 155(1) thereof, the Court is, after hearing the Advocate General, to decide both on the admissibility and on the substance of the application.

15 It must be observed that, under Article 155(1) of the Rules of Procedure, if the Court has failed to adjudicate on a specific head of claim or on costs, any party wishing to rely on that may, within a month after service of the decision, apply to the Court to supplement its decision.

16 It is apparent from that provision that such an application cannot be brought before the Court to allege that the Court failed to adjudicate on one or several arguments submitted before it.

17 However, it must be stated that by his application Mr Clarke, as is apparent from the information set out in paragraphs 8 to 11 above, in no way seeks to submit that, by its order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), the Court failed to adjudicate on a specific head of claim which he put forward in his appeal, but claims that some arguments in that appeal were not examined.

18 Moreover, given that the Court, by order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799), as is apparent from point 1 of the operative part of that order, dismissed that appeal in its entirety, the heads of claim put forward by Mr Clarke in that appeal, and reproduced in paragraph 3 above, were all necessarily dismissed.

19 In those circumstances, Mr Clarke’s application seeking that the Court’s alleged failure to adjudicate in the order of 1 October 2019, Clarke v Commission (C‑284/19 P, not published, EU:C:2019:799) be remedied must be dismissed as inadmissible.

20 Consequently, there is no need to rule on the request that the case be determined pursuant to an expedited procedure.

Costs

21 Under Article 138(1) 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 Commission has applied for costs and Mr Clarke has been unsuccessful, the latter must be ordered to pay the costs.

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

1. The application under Article 155(1) of the Rules of Procedure of the Court, brought on 10 October 2019 by Mr Andrew Clarke, is dismissed.

2. Mr Andrew Clarke shall pay the costs.





Luxembourg, 23 April 2020.





A. Calot Escobar E. Juhász