Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union.
Date: 2007-02-27
22. It is clear from Article 225 EC, from the first paragraph of Article 58 of the Statute of the Court of Justice and from Article 112(1)(c) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C 352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraph 34; Case C 248/99 P France  v Monsanto and Commission  [2002] ECR I‑1, paragraph 68; and the order in Case C‑488/01 P Martínez  v Parliament  [2003] ECR I‑13355, paragraph 40).
30. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see Case C-136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraphs 58 and 59).
46. In contrast, Article 35 EU confers no jurisdiction on the Court of Justice to entertain any action for damages whatsoever.
47. In addition, Article 41(1) EU does not include, among the articles of the Treaty establishing the European Community applicable to the areas referred to in Title VI of the Treaty on European Union, the second paragraph of Article 288 EC, according to which the Community must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties, or Article 235 EC, under which the Court has jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288 EC (see, by analogy, Case C‑160/03 Spain  v Eurojust [2005] ECR I‑2077, paragraph 38).
50. It is true that, as regards the Union, the treaties have established a system of legal remedies in which, by virtue of Article 35 EU, the jurisdiction of the Court is less extensive under Title VI of the Treaty on European Union than it is under the EC Treaty (see, to this effect, Case C-105/03 Pupino  [2005] ECR I‑5285, paragraph 35). It is even less extensive under Title V. While a system of legal remedies, in particular a body of rules governi ng non-contractual liability, other than that established by the treaties can indeed be envisaged, it is for the Member States, should the case arise, to reform the system currently in force in accordance with Article 48 EU.
51. Nevertheless, the appellants cannot validly argue that they are deprived of all judicial protection. As is clear from Article 6 EU, the Union is founded on the principle of the rule of law and it respects fundamental rights as general principles of Community law. It follows that the institutions are subject to review of the conformity of their acts with the treaties and the general principles of law, just like the Member States when they implement the law of the Union.
52. Here it is to be noted that Article 34 EU provides that the Council may adopt acts varying in nature and scope. Under Article 34(2)(a) EU the Council may ‘adopt common positions defining the approach of the Union to a particular matter’. A common position requires the compliance of the Member States by virtue of the principle of the duty to cooperate in good faith, which means in particular that Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law (see Pupino , paragraph 42). Article 37 EU thus provides that the Member States are to defend the common positions ‘[w]ithin international organisations and at international conferences in which they take part’. However, a common position is not supposed to produce of itself legal effects in relation to third parties. That is why, in the system established by Title VI of the EU Treaty, only framework decisions and decisions may be the subject of an action for annulment before the Court of Justice. The Court’s jurisdiction, as defined by Article 35(1) EU, to give preliminary rulings also does not extend to common positions but is limited to rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under Title VI and on the validity and interpretation of the measures implementing them.
53. Article 35(1) EU, in that it does not enable national courts to refer a question to the Court for a preliminary ruling on a common position but only a question concerning the acts listed in that provision, treats as acts capable of being the subject of such a reference for a preliminary ruling all measures adopted by the Council and intended to produce legal effects in relation to third parties. Given that the procedure enabling the Court to give preliminary rulings is designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret Article 35(1) EU narrowly. The right to make a reference to the Court for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties (see, by analogy, Case 22/70 Commission  v Council (ERTA)  [1971] ECR 263, paragraphs 38 to 42, and Case C-57/95 France  v Commission  [1997] ECR I‑1627, paragraph 7 et seq.).
60. It is, however, clear from the Court’s settled case-law that such a declaration is insufficient to create a legal remedy not provided for by the applicable texts and that it cannot therefore be given any legal significance or be used in the interpretation of law emanating from the EU Treaty where, as in this case, no reference is made to the content of the declaration in the wording of the provision in question (see, to this effect, Case C-292/89 Antonissen  [1991] ECR I-745, paragraph 18; Case C-329/95 VAG Sverige  [1997] ECR I-2675, paragraph 23; and Case C-49/02 Heidelberger Bauchemie  [2004] ECR I-6129, paragraph 17).