ORDER OF THE COURT (Fifth Chamber)

12 January 2011 ( )

(Appeal – Actions for damages – Public health implications of the nuclear accident that occurred near Thule (Greenland, Denmark) – Directive 96/29/Euratom – Commission’s failure to adopt measures against a Member State)

In Joined Cases C‑205/10 P, C‑217/10 P and C‑222/10 P,

APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 April, 5 May and 7 May 2010, respectively,

Heinz Helmuth Eriksen, residing in Ebeltoft (Denmark), represented by I. Anderson, advocate (C-205/10 P),

Bent Hansen, residing in Aarslev (Denmark), represented by I. Anderson, advocate (C-217/10 P),

Brigit Lind, residing in Greve (Denmark), represented by I. Anderson, advocate (C‑222/10 P),

appellants,

the other party to the proceedings being:

European Commission, represented by M. Patakia and E. White, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of J.-J. Kasel, President of Chamber, A. Borg Barthet (Rapporteur) and M. Safjan, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

after hearing the Advocate General,

makes the following

Order

1 By their appeals, Mr Eriksen, Mr Hansen and Ms Lind (together ‘the appellants’) seek to have set aside the orders of the General Court of the European Union of 24 March 2010 in Cases T-516/08 Eriksen v Commission, T-6/09 Hansen v Commission and T-5/09 Lind v Commission respectively (‘the orders under appeal’), by which it dismissed as manifestly unfounded their actions for compensation for damage suffered as a result of the alleged failure of the Commission of the European Communities to adopt the measures necessary to ensure that the Kingdom of Denmark adopted the legislative and administrative provisions enabling it to comply with Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation (OJ 1996 L 159, p. 1) and applied those provisions to workers involved in the nuclear accident that occurred near Thule (Greenland, Denmark).

2 By letter of 22 September 2010, the Court invited the parties to express their views on the possible joinder of Cases C-205/10 P, C-217/10 P and C-222/10 P for the purposes of the oral procedure and the judgment.

3 By letters received at the Court Registry on 29 September and 6 October 2010 respectively, the appellants and the Commission informed the Court that they did not object to the joinder of those cases.

4 As the cases are connected by reason of their subject-matter, it is appropriate to join them in accordance with Article 43 of the Court’s Rules of Procedure for the purposes of the present order.

The facts

5 In 1967, Mr Eriksen, Mr Hansen and Ms Lind’s brother, Mr Nochen, were working for the Danish Construction Corporation on the American military base at Thule. Mr Eriksen was employed as a civilian fireman. Mr Hansen worked first as a carpenter and later as a lorry driver. Mr Nochen also worked as a lorry driver.

6 In January 1968, an American military aeroplane carrying nuclear weapons crashed near Thule. According to the United States Atomic Energy Commission, approximately six kilograms of weapons grade plutonium were released as a result of that accident. Emergency clean-up operations were begun for the removal of contaminated ice, snow and debris.

7 For a period of eight months after the accident, Mr Eriksen, Mr Hansen and Mr Nochen took part in those operations. Mr Eriksen was required to supervise the welding of barrels and tanks, containing ice and snow which had been contaminated by plutonium, in a storage hangar at Thule. Mr Hansen, who had no prior experience of nuclear emergencies, was required to supervise the loading of contaminated aircraft debris, ice and snow and their transport from the site of the accident to the storage hangar where he was responsible for unloading them. Mr Nochen, who also had no prior experience of such situations, was required to load his lorry with contaminated aircraft debris, ice and snow and transport them from the site to the storage hangar where he unloaded them. No special clothing or mask was issued to the men to protect them against the risk of plutonium inhalation.

8 On 13 May 1996, the Council of the European Union adopted Directive 96/29. Under Article 55(1) of the directive, Member States were to bring into force the legislative and administrative provisions necessary to comply with the directive before 13 May 2000.

9 In 2002, the Foreningen af Strålingsramte Thulearbejdere (Association of Thule workers affected by radiation) presented a petition to the Petitions Committee of the European Parliament seeking implementation of the medical monitoring requirements of Directive 96/29 (Petition 720/2002).

10 In 1990, following an examination in the Labour Clinic at the Main Central Hospital in Copenhagen (Denmark), minor changes in Mr Nochen’s lung tissue were detected. At the time of that examination, those changes were not considered serious. There was no subsequent monitoring of his lung condition after entry into force of Directive 96/29. During 2004 and 2005, Mr Nochen developed a dry cough. In November 2006, his doctor sent him to Roskilde Hospital (Denmark) where an advanced and inoperable stage of lung cancer was diagnosed.

11 In June 2002 and April 2005 Mr Hansen and Mr Eriksen underwent examinations and were diagnosed with cancer of the left kidney, necessitating its removal.

12 On 10 May 2007, the Parliament, following the Parliamentary report on Petition 720/2002, adopted a non-legislative resolution in which, in particular, it ‘urge[d] the Commission to pursue vigorously any failure [of the Member States] to fulfil their obligations under [Directive 96/29]’ (‘the Parliament Resolution’).

13 In February 2008, Mr Nochen died of cancer. On 27 February 2008, Ms Lind, who is executrix of her brother’s estate, was authorised by the Danish courts to act on his behalf.

The orders under appeal

14 By applications lodged at the Registry of the General Court on 27 November 2008, 2 and 12 January 2009 respectively, Mr Eriksen, Ms Lind and Mr Hansen brought actions for compensation.

15 By separate document lodged at the Registry of the General Court on 28 April 2009, the Commission raised an objection of inadmissibility in the three actions under Article 114(1) of the Rules of Procedure of the General Court.

16 By their actions for damages, the appellants claimed compensation for the damage they suffered as a result of the Commission’s alleged failure to ensure implementation of the medical monitoring provisions of Directive 96/29 in the case of workers who, like Mr Eriksen, Mr Hansen and Mr Nochen, had in the past been potentially exposed to radiation at Thule.

17 The appellants claimed that the harm they suffered is attributable exclusively to the Commission, which failed to ensure implementation of those provisions, despite the Parliament Resolution. They claim that the illness contracted by Mr Eriksen, Mr Hansen and Mr Nochen following their exposure to weapons grade plutonium would have been less severe if it could have been detected and treated earlier. Prompt intervention by the Commission would have reduced the gravity of the harm they suffered.

18 The General Court first of all observed, at paragraph 22 of the orders in Eriksen v Commission and Lind v Commission and paragraph 20 of the order in Hansen v Commission, that the appellants had not specified the legal basis for their applications, but had merely relied on the non-contractual liability of the European Community. The Court stated that it is only in their observations on the plea of inadmissibility that they referred to the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) and the second paragraph of Article 188 EA.

19 At paragraph 23 of the orders in Eriksen v Commission and Lind v Commission and paragraph 21 of the order in Hansen v Commission, the General Court held that, in so far as the applications were based on those two provisions, they sought to obtain compensation for harm allegedly suffered by the appellants and by Mr Nochen, by reason of the Commission’s failure to ensure implementation of the provisions of Directive 96/29 on medical monitoring under Articles 52(2) and 53(b) of that directive.

20 The General Court then recalled, at paragraph 24 of the orders in Eriksen v Commission and Lind v Commission and paragraph 22 of the order in Hansen v Commission, that according to settled case-law, in order for the Community to incur non-contractual liability for the unlawful conduct of its institutions, within the meaning of the second paragraph of Article 288 EC and the second paragraph of Article 188 EA, a number of conditions must be satisfied: the alleged conduct on the part of the institution must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the harm pleaded. It also pointed out that if any one of those conditions for incurring non‑contractual liability is not satisfied, the action must be dismissed and it is unnecessary to examine the other conditions.

21 As regards identifying the Commission’s alleged unlawful conduct, the General Court pointed out, at paragraph 26 of the orders in Eriksen v Commission and Lind v Commission and paragraph 24 of the order in Hansen v Commission, that the appellants had not stated precisely which measures the Commission had unlawfully failed to take. The Court stated that the appellants had not referred to any act or provision which would have enabled the Commission to take measures to ensure the application of Directive 96/29, but had confined themselves to claiming compensation on the basis of the Commission’s non-contractual liability.

22 The General Court considered, at paragraph 27 of the orders in Eriksen v Commission and Lind v Commission and paragraph 25 of the order in Hansen v Commission, that, even though in their observations on the plea of inadmissibility the appellants had specified that their claims were in no way connected to an action for annulment or for a declaration of failure to fulfil obligations, the only possibility open to the Commission to ensure implementation of the medical monitoring provisions of Directive 96/29 in the case of the workers affected by the accident that occurred near Thule, in the sense desired by the appellants, would have been to bring proceedings under Article 226 EC or Article 141 EA against the Kingdom of Denmark.

23 As regards the allegedly unlawful nature of the failure to bring such proceedings, the General Court noted, at paragraph 29 of the orders in Eriksen v Commission and Lind v Commission and paragraph 27 of the order in Hansen v Commission, that, according to case-law, omissions by the institutions give rise to liability on the part of the Community only when the institutions have infringed a legal obligation to act. The Court added that since, according to case-law, the Commission was under no obligation to bring infringement proceedings, its decision not to bring such proceedings was not unlawful and it concluded that, consequently, that decision could not give rise to non-contractual liability on the part of the Community.

24 The General Court considered, at paragraph 30 of the orders in Eriksen v Commission and Lind v Commission and paragraph 28 of the order in Hansen v Commission, that that conclusion could not be affected by the appellants’ argument, based on the Parliament Resolution, that the Parliament requested the Commission to pursue any failure of the Member States to implement the provisions of Directive 96/29. The Court held that a resolution adopted by the Parliament, the content of which, such as that at issue here, is not of a specific and precise decision-making character, does not produce any legal effects.

25 Lastly, the General Court concluded, at paragraphs 31 and 32 of the orders in Eriksen v Commission and Lind v Commission and paragraphs 29 and 30 of the order in Hansen v Commission, that there was no act or alleged omission by the Commission of an unlawful nature and dismissed the applications as manifestly lacking any foundation in law, without examining the other conditions governing non-contractual liability of the Community or the admissibility of the applications.

Forms of order sought by the parties

26 By their appeals, the appellants claim that the Court should set aside the orders under appeal and order the Commission:

– to pay Mr Hansen and Mr Eriksen the sum of EUR 800 000 each or such other sum as the Court may consider just and equitable for past, present and future harm and diminution of the duration and/or enjoyment of life, caused by the kidney cancer from which they are suffering, as a result of the Commission’s refusal to ensure implementation of the provisions of Directive 96/29 on medical monitoring to prevent the development of illnesses caused by radiation in the case of the special intervention teams who were at Thule;

– to pay Mr Eriksen and Mr Hansen, or their medical treating facilities or their care providers, the future costs of medical treatment and medication to alleviate and/or treat their impaired health, which are not available to them through the Danish health service;

– to pay Ms Lind the sum of EUR 50 000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother’s suffering and death as a result of the Commission’s refusal to ensure implementation of the provisions of Directive 96/29 on medical monitoring to prevent the development of long-term radiation illnesses in the case of the former workers who took part in the radiological emergency operation at Thule;

– to pay Mr Nochen’s estate, first, the sum of EUR 250 000 or such other sum as the Court may consider just and equitable for Mr Nochen’s suffering from 2006 until his death in 2008, as a result of the same refusal by the Commission, and, second, the sum of EUR 6 000 for funeral costs, and

– to pay the costs incurred both in the appeal proceedings and in the proceedings before the General Court.

27 The Commission contends that the appeals should be dismissed and the appellants ordered to pay the costs.

The appeals

28 Under Article 119 of its Rules of Procedure, where an 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 in whole or in part, without opening the oral procedure.

29 The appellants put forward three pleas in support of their appeal. The first plea is based on an allegation that the General Court distorted their actions for damages and their pleas in law. By their second plea, the appellants argue that the General Court erred in law by referring to cases in the field of European Union (EU) competition law. The third plea alleges that the General Court erred in law by failing to consider whether or not the Commission had infringed the EU’s uniform standards for protection against ionising radiation.

30 It is appropriate to start by considering the second plea.

The second plea

Arguments of the parties

31 The appellants submit that the General Court erred, in the orders under appeal, in referring to decisions handed down in the field of EU competition law, namely the orders in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, and Case T-202/02 Makedoniko Metro and Michaniki v Commission [2004] ECR II‑181.

32 The appellants claim that the Commission has a discretionary power to start infringement proceedings in areas, such as competition law, in which it has the power to grant exemptions. However, in other areas of EU law, in which the Commission cannot grant exemptions, actions for compensation based on the Commission’s failure to act have not been systematically ruled inadmissible by the Court.

33 According to the appellants, the Euratom Treaty was not intended to provide the Commission with a discretion in the area of protection against radioactive radiation. Thus, Articles 146 EA and 148 EA confer on individuals the right to bring actions against acts or omissions on the part of the Commission and Article 188 EA also provides individuals with an independent right of action for damages.

34 The Commission contends that the principle that it may decide whether or not to bring infringement proceedings against a Member State is of a general nature. In that regard, it refers, inter alia, to the order in Joined Cases T-479/93 and T‑559/93 Bernardi v Commission [1994] ECR II-1115, according to which, it is alleged, the Commission cannot be liable for harm caused by the failure to initiate infringement proceedings.

35 The Commission adds that Articles 146 EA, 148 EA and 188 EA do not remove the obligation, for the appellants, to identify the unlawful act on the part of the Commission, something that is absent in the present case.

Findings of the Court

36 First, the Court finds that the second plea is based on a misinterpretation of the orders under appeal.

37 Where the General Court held that the Commission’s decision not to bring infringement proceedings under Article 226 EC or Article 141 EA was not unlawful, so that it could not give rise to non-contractual liability on the part of the Community, it referred to paragraph 13 of the order in Asia Motor France v Commission, and paragraph 43 of the order in Makedoniko Metro and Michaniki v Commission.

38 The case which gave rise to the first of those orders concerned, in particular, the question of the Commission’s non-contractual liability for its failure to adopt in regard to the applicants concerned a decision based on Articles 30 and 85 of the EEC Treaty (which became, respectively, Articles 30 and 85 of the EC Treaty, which then became, respectively, Articles 28 EC and 81 EC). It is clear from paragraph 13 of that order, to which the orders under appeal refer, that the Court ruled solely on the question of whether the Community was liable for the Commission’s failure to act under Article 30 alone, which concerns the free movement of goods.

39 The case which gave rise to the second of those orders concerned a similar issue, but in the field of public works contracts. Paragraph 43 of that order, to which the orders under appeal refer, is limited to recalling the settled case-law according to which, since the Commission is not bound to commence infringement proceedings against a Member State, its decision not to institute such proceedings is not unlawful, so that it cannot give rise to non-contractual liability on the part of the Community.

40 Second, it should be noted that the arguments put forward by the appellants in support of the second plea in the appeals are based on the assumption that the Commission has a discretion to bring infringement proceedings against a Member State only in areas in which it can grant exemptions, as is the case in the field of competition law.

41 It must be held that that assumption is incorrect.

42 It follows from both the scheme of Articles 226 EC and 141 EA and the case-law relating to Article 226 EC, applicable by analogy to Article 141 EA, that the Commission is not under a duty to bring proceedings pursuant to those provisions, but it has a discretionary decision-making power that precludes the right of individuals to require the Commission to take a particular position (see, to that effect, order of 6 April 2006 in Case C-408/05 P GISTI v Commission, paragraph 14 and case-law cited).

43 Accordingly, the Commission’s discretionary power to decide whether to bring infringement proceedings against a Member State is not conditional on its power to grant exemptions.

44 It follows from the above considerations that the General Court did not err in referring, in the orders under appeal, to the orders in Asia Motor France v Commission and Makedoniko Metro and Michaniki v Commission.

45 The second plea must therefore be rejected as manifestly unfounded.

The first plea

Arguments of the parties

46 Firstly, the appellants claim that the General Court distorted their actions for damages by regarding them as applications for a declaration of failure to fulfil obligations.

47 The appellants state that they relied on the right to bring an action for damages, which is an autonomous right of action granted to them under Article 188 EA, in order to invoke the Commission’s non-contractual liability. Their applications thus sought compensation for harm suffered as a result of the Commission’s failure to take measures to ensure the application of the medical monitoring provisions of Directive 96/29 in the case of workers who had in the past been potentially exposed to radiation at Thule.

48 Secondly, the appellants claim that the General Court erred in limiting the scope of the plea that they raised before it, by referring only to the Parliament Resolution and failing to examine the Commission’s declarations before the Parliament in 2003 which show that the Commission refused to act.

49 The Commission contends, firstly, that the General Court was correct in holding that a claim for damages required the identification of an unlawful act and that the only potentially unlawful act by the Commission was the failure to initiate infringement proceedings, for which an action for damages could not be brought.

50 The Commission observes that the appellants are claiming compensation for harm suffered as a result of the Commission’s refusal to ensure implementation of Directive 96/29. However, in no way do they explain how the Commission could have ensured that implementation other than by initiating infringement proceedings. Accordingly, the General Court was right to fill the gap in the appellants’ arguments.

51 Secondly, regarding the appellants’ argument based on the General Court’s distortion of their plea in law relating to the Parliament Resolution, the Commission contends that, apart from the fact that it can lawfully hold a different legal opinion to that of the appellants, the expression of such an opinion has no conceivable relationship with any loss or damage suffered by the appellants and the appellants do not even attempt to expound one.

Findings of the Court

52 Regarding the first part of this plea, according to which the General Court distorted the actions for damages by regarding them as actions for a declaration of failure to fulfil obligations, the Court finds that, in the orders under appeal, the General Court, after recalling the conditions under which the Community incurs non-contractual liability, according to case-law, correctly went on to identify the Commission’s allegedly unlawful conduct.

53 The General Court pointed out, first, that the appellants did not state which measures the Commission unlawfully failed to take, nor did they refer to any act or provision that would have enabled the Commission alone to take measures to ensure the application of Directive 96/29 and, second, that they confined themselves to claiming compensation on the basis of the Commission’s non-contractual liability.

54 In those circumstances, the General Court did not err in holding, with a view to identifying a possible legal obligation to act on the part of the Commission, that instituting an action for a declaration of failure to fulfil obligations, pursuant to Article 226 EC or Article 141 EA, against the Kingdom of Denmark, would have been, for the Commission, the only legal possibility provided under the EC or Euratom Treaties to ensure implementation of the medical monitoring provisions of Directive 96/29 in the case of the workers affected by the nuclear accident that occurred near Thule, in the sense desired by the appellants.

55 It follows that the first part of this plea, alleging distortion of the nature of the actions, is based on a misinterpretation of the orders under appeal and must be rejected as clearly unfounded.

56 Regarding the second part of this plea, alleging a distortion of the plea raised before the General Court, it need simply be stated that, inasmuch as the Commission’s power to decide whether or not to initiate infringement proceedings is discretionary and may not be challenged, as is clear from paragraph 42 of this order, the same is true, a fortiori, of position statements made by the Commission before the Parliament, which have only declaratory value.

57 In those circumstances, the General Court did not err in not ruling on those declarations by the Commission.

58 The second part of this plea must therefore also be rejected as clearly unfounded.

59 It follows that the first plea in law must be rejected in its entirety.

The third plea

Arguments of the parties

60 The appellants claim that the General Court erred in failing to consider the question of whether, by not ensuring the application of the protective measures provided for under Directive 96/29 to the after-effects of the military accident near Thule, the Commission infringed the EU’s uniform safety standards against ionising radiation. They refer, in that respect, to Case 238/78 Ireks-Arkady v EEC [1979] ECR I-2955, in which the Court held that the fact that the EU institutions have wide discretion does not preclude review of the exercise of that discretion in an action for damages, if that exercise is incompatible with the implementation of certain Community policies and provisions.

61 They claim that Directive 96/29 should apply to the nuclear accident that occurred near Thule inasmuch as that directive seeks to implement Article 30 EA, whose objective, according to case-law, is to ensure consistent and effective protection of health against the dangers arising from ionising radiations, whatever their source (Case C-29/99 Commission v Council [2002] ECR I-11221).

62 The Commission contends that the third plea in the appeals is based on the assumption that the absence of an obligation on the Commission to pursue infringement proceedings is predicated on the existence of a power on the part of the Commission to grant exemptions, which the appellants argue does not exist under Directive 96/29. The Commission submits, in that regard, that that assumption is wrong because the Commission’s power to initiate infringement proceedings is of a general nature and is not conditional upon the existence of a power to grant exemptions.

63 Furthermore, according to the Commission, the appellants’ arguments in support of their third plea are also misconceived. The Court clearly established in Case C‑61/03 Commission v United Kingdom [2005] ECR 1-2477, paragraph 36, and in Case C‑65/04 Commission v United Kingdom [2006] ECR I-2239, paragraph 19, that the Euratom Treaty has to be interpreted restrictively, that is to say that all military activities should be excluded from its scope.

Findings of the Court

64 It should be noted at the outset that the appellants’ arguments in support of the third plea are based on the assumption that, in the context of the Euratom Treaty and Directive 96/29, the Commission does not have the power to grant exemptions so as to exclude military activities from the scope of that directive and that treaty and was therefore required to initiate proceedings for failure to fulfil obligations.

65 However, it must be held that that assumption is wrong in two ways.

66 First, as regards the application of the Euratom Treaty to military activities, the relevant question, in the present case, is not whether the Commission has a power to grant exemptions for that type of activity but rather whether those activities in fact fall within the scope of that treaty. It is clear from settled case-law that that treaty does not apply to military activities (see, in particular, Case C-61/03 Commission v United Kingdom, paragraph 36, and Case C-65/04 Commission v United Kingdom, paragraph 19).

67 Second, as is clear from the examination of the second plea, the Commission’s discretionary power to decide whether to initiate infringement proceedings is not conditional upon the existence of a power to grant exemptions.

68 Consequently, the third plea must be rejected as clearly unfounded.

69 It follows from all the foregoing considerations that the appeals must be dismissed in their entirety.

Costs

70 Under Article 69(2) of the Rules of Procedure of the Court, applicable to the procedure on appeal pursuant to Article 118 of those Rules, 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 to be awarded against Mr Eriksen, Mr Hansen and Ms Lind and the latter have been unsuccessful, they must be ordered to pay the costs.

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

1. The appeals are dismissed.

2. Mr Eriksen, Mr Hansen and Ms Lind shall pay the costs.

[Signatures]