CELEX: 62015TO0667
Language: en
Date: 2016-09-15 00:00:00
Title: Order of the General Court (Second Chamber) of 15 September 2016.#Bagni Delfino di Paperini Stefano & C. Sas v European Commission.#Action for annulment — Communication from a member of the Commission in answer to a parliamentary question — Act not open to review — Manifest inadmissibility.#Case T-667/15.

ORDER OF THE GENERAL COURT (Second Chamber)
      15 September 2016 (
            *1
         )
      ‛Action for annulment — Communication from a member of the Commission in answer to a parliamentary question — Act not open to review — Manifest inadmissibility’
      In Case T‑667/15,
      
         Bagni Delfino di Paperini Stefano & C. Sas, established in Le Gorette (Italy), represented by R. Righi, A. Morbidelli and E. Nessi, lawyers,
      applicant,
      v
      
         European Commission,
      
      defendant,
      ACTION pursuant to Article 263 TFEU for annulment of the Commission communication of 2 September 2015 by which the member of the Commission responsible for questions concerning ‘internal market, industry, entrepreneurship and SMEs’ replied to parliamentary question E-010166/2015 of 24 June 2015,
      THE GENERAL COURT (Second Chamber),
      composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,
      Registrar: E. Coulon,
      makes the following
      
         Order
      
      
         Background to the dispute
      
      
               1
            
            
               The applicant, Bagni Delfino di Paperini Stefano & C. Sas, is a company having a concession over State-owned coastal property granted for tourism and leisure purposes, initially by the Region of Tuscany (Italy), and then by the municipality of Cecina (Italy). That concession has been extended until 31 December 2020. On the State-owned land at issue the applicant operates a beach complex in which it has made substantial investments.
            
         
               2
            
            
               According to the information in the originating application, a public selection procedure is organised for the purpose of allocating parcels of State-owned coastal property to concessionaires. The renewal of the State-owned coastal property concessions on the expiry of their period of validity was subject to rules favouring existing concessionaires, first, because preference was given to the renewal of previously granted concessions over new applications and, second, from 2001, the State-owned coastal property concessions for tourism and leisure activities had been automatically renewable. Those rules were repealed in 2009 and 2011 respectively, when the pre-litigation stage of an action for failure to fulfil obligations was initiated by the European Commission against the Italian Republic based the provisions of Article 258 TFEU. The Commission took the view that the preference given to existing concessionaires was contrary to the provisions of Article 49 TFEU and that the automatic renewal of concessions infringed both Article 49 TFEU and Article 12 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).
            
         
               3
            
            
               By judgment No 328/2015 of 27 February 2015 (‘judgment No 328/2015’) the Tribunale amministrativo regionale della Toscana (Regional Administrative Court, Tuscany) held, inter alia, that concessions granting the right to occupy a portion of State-owned coastal land in order to maintain built structures on it gave rise to a genuine right of ownership over a specific area, since the ‘right to maintain a construction on the land of another is specifically the object of the right of easement, as defined by Article 952 [of the Italian Civil Code] (“the owner may grant to another person the right to erect and maintain a construction”) which gives rise to [the existence] of an administrative act granting to the concessionaire the right over the surface of the property concerned’.
            
         
               4
            
            
               On 24 June 2015, two Members of the European Parliament asked the Commission for a written reply to a question, in accordance with the provisions of Article 230, second paragraph, TFEU and Article 130 of the Rules of Procedure of the European Parliament (OJ 2011 L 116, p. 1). In substance, that question asks, first, whether the Commission was aware of judgment No 328/2015 and, second, whether, having regard to the fact that, according to that judgment, operators holding concessions of State-owned coastal land granted for tourism and leisure purposes were holders of surface right covering the buildings erected by them on the State-owned area, the Commission intended to reconsider the interpretation of the concept of ‘services’ within the meaning of Directive 2006/123.
            
         
               5
            
            
               By written communication of 2 September 2015 (‘the contested communication’), the Commission replied to that question. Its answer was as follows:
               ‘The Commission is aware of judgment No 328/2015 of the Tribunale amministrativo regionale della Toscana [Regional Administrative Court, Tuscany]. The Commission considers that that judgment does not concern the application of EU legislation or, therefore, the application of Directive 2006/123 ... The judgment confines itself to the interpretation of national legislation. Therefore, the Commission is not in a position to comment.’
            
         
         Procedure and form of order sought by the applicant
      
      
               6
            
            
               By application lodged at the Registry of the Court on 11 November 2015, the applicant brought the present action.
            
         
               7
            
            
               The applicant claims that the General Court should annul the contested communication.
            
         
         Admissibility
      
      
               8
            
            
               Under Article 126 of its Rules of Procedure, where the action is manifestly inadmissible, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
            
         
               9
            
            
               According to consistent case-law, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU (judgments of 31 March 1971, Commission v Council, AETR, 22/70, EU:C:1971:32, paragraph 42; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36, and of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54).
            
         
               10
            
            
               However, any act not producing legal effects which are binding on and capable of affecting the interests of the individual, such as confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions, falls outside the scope of the judicial review provided for in Article 263 TFEU (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 52).
            
         
               11
            
            
               In light of the case-law, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997, France v Commission, C‑57/95, EU:C:1997:164, paragraph 18, and of 1 December 2005, Italy v Commission, C‑301/03, EU:C:2005:727, paragraphs 21 to 23), its substance (see judgment of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited; see also, to that effect, judgments of 9 October 1990, France v Commission, C‑366/88, EU:C:1990:348, paragraph 23; of 13 November 1991, France v Commission, C‑303/90, EU:C:1991:424, paragraphs 18 to 24, and of 16 June 1993, France v Commission, C‑325/91, EU:C:1993:245, paragraphs 20 to 23), and the intention of its author (see to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
            
         
               12
            
            
               In the present case, it must be recalled that the contested communication contains the Commission’s written response to a parliamentary question submitted in accordance with the provisions of Article 230, second paragraph, TFEU and Article 130 of the Parliament’s Rules of Procedure. That question, which brought judgment No 328/2015 to the Commission’s attention, sought essentially to obtain clarification as to the interpretation by the Commission of the concept of ‘services’, within the meaning of Directive 2006/123, in the light of that judgment (see paragraph 4 above). In essence, the Commission replied that that judgment, which it was aware of, concerned only Italian legislation and did not relate to the application of EU law, so that it was unable to comment (see paragraph 5 above).
            
         
               13
            
            
               In those circumstances, it must be held that, having regard to both the context, constituted by the parliamentary question, and the content and wording of the contested communication, the latter is not in any way intended to have binding legal effects, within the meaning of the case-law set out in paragraph 9 above. That communication contains the answer to a parliamentary question which does not express any decision adopted by the Commission nor, indeed, any expression of opinion regarding the interpretation of Directive 2006/123.
            
         
               14
            
            
               That conclusion is not affected by the applicant’s arguments. The applicant argues essentially that the contested communication is an act intended to have binding legal effects because it expresses the Commission’s intention to apply Directive 2006/123 to the sector concerning State-owned coastal property concessions, without regard for the property rights of the concessionaires. Moreover, that communication requires the Italian administrative and judicial authorities to apply Directive 2006/123 to those concessions, the effect of which is ‘a compulsory transfer of rights in rem [of the concession holders]’.
            
         
               15
            
            
               First of all, it must be held that, by those arguments, the applicant misunderstands the scope of the contested communication. Contrary to the applicant’s assertions, the Commission has not expressed any views on the application or interpretation of Directive 2006/123. To the contrary, it merely observed that judgment No 328/2015 concerned Italian not EU legislation, so that it was unable to comment on the question addressed to it, which concerned the concept of ‘services’ within the meaning of that directive.
            
         
               16
            
            
               In any event and even if, as the applicant claims, the Commission had taken a position and interpreted Directive 2006/123 as meaning that it applies to State-owned coastal property concessions, it must be recalled that, according to settled case-law, an act of the Commission which reflects its intention to follow a particular line of conduct (see judgment of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraph 28 and the case-law cited) or the written expression of opinion, such as reiteration by the Commission of its interpretation of the provisions of a secondary legislative act, since it is not capable of producing legal effects and is also not intended to produce such effect, cannot be the subject of an action for annulment (see, to that effect, judgment of 5 October 1999, Netherlands v Commission, C‑308/95, EU:C:1999:477, paragraphs 27 to 30). Consequently, it must be held that, even if the contested communication sets out the interpretation by the Commission of Directive 2006/123 and its intention to include State-owned coastal property concessions within it, that communication would still not be intended to produce binding legal effects.
            
         
               17
            
            
               Next, it cannot be argued that the contested communication produces legal effects because it was adopted without regard for the concessionaires’ property rights, assuming such rights had been established. That type of reasoning would be tantamount to concluding that an act is open to challenge because it may be unlawful. It is settled case-law that the seriousness of the alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights could not give rise to non-application of the rules for admissibility expressly laid down by the Treaty (see, by analogy, order of 10 May 2001, FNAB and Others v Council, C‑345/00 P, EU:C:2001:270, paragraph 40, and judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 87).
            
         
               18
            
            
               Finally, in so far as the applicant claims that the contested communication leads to a ‘forced transfer of rights in rem which the holders of seaside concessions currently enjoy’, it must be observed that it follows from the explanations given by the applicant itself regarding the rules relating to the renewal of State-owned coastal property concessions (see paragraph 2 above) that it is not that communication, but the possible non-renewal of a State-owned coastal property concession which has expired under the Italian legislation, as amended in 2009 and 2011, which is liable, in the circumstances, to have such effect.
            
         
               19
            
            
               For the sake of completeness, it must also be added that the facts of the present case must be distinguished from those which gave rise to the judgment of 24 March 1994, Air France v Commission (T‑3/93, EU:T:1994:36), cited by the applicant. The contested act in the latter case took the form of a statement by the spokesman for the Commissioner responsible for competition matters, by which the Commission declared that it had no powers, pursuant to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), to examine a specifically identified acquisition, and in fact produced legal effects. However, the contested communication in the present case does not contain any decision of that kind and merely expresses the Commission’s opinion, according to which judgment No 328/2015 concerns only the interpretation of Italian law and not EU law, so that that institution did not consider itself able to express an opinion on its impact on the interpretation of the concept of ‘services’ within the meaning of Directive 2006/123. In any event, it must be observed that the applicant does not present any arguments to show that the facts of those two cases are comparable.
            
         
               20
            
            
               In the light of all of the foregoing considerations, the action must be dismissed as being manifestly inadmissible, without there being any need to notify it to the Commission.
            
         
         Costs
      
      
               21
            
            
               Since this order was adopted before the application was served on the other party to the proceedings and before the latter incurred any costs, it is sufficient to decide that the applicant shall bear its own costs, in accordance with Article 133 of the Rules of Procedure.
            
          
            
               On those grounds,
               THE GENERAL COURT (Second Chamber)
               hereby orders:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           The action is dismissed.
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           Bagni Delfino di Paperini Stefano & C. Sas shall bear its own costs.
                        
                        Luxembourg, 15 September 2016.
                     
                  
          
               
                  
                     E Coulon
                     Registrar
                     M.E. Martins Ribeiro
                     President
                  
               
            (
            *1
         )	* Language of the case: Italian.