Bionorica SE and Diapharm GmbH & Co. KG v European Commission.
Date: 2017-11-23
49


Consequently, it would be impossible to deduce from the letters of 19 June 2014 what position the Commission had adopted on the requests to act that had been sent to it and, in particular, whether it would act, and, if so, when it intended to ask the EFSA to proceed with its assessment of the health claims relating to botanical substances. In accordance with the judgment of the Court of 22 May 1985, Parliament v Council (13/83, EU:C:1985:220, paragraph 25), such an evasive reply is not capable of constituting a defined position sufficient to bring an end to the failure to act.
52


According to the case-law of the Court, a failure to act, for the purposes of Article 265 TFEU, means a failure to take a decision or to define a position (judgments of 13 July 1971, Deutscher Komponistenverband v Commission, 8/71, EU:C:1971:82, paragraph 2, and of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22 and the case-law cited).
53


In that regard, an action for failure to act may be brought not only against a failure to adopt a measure that is legally binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in its legal position, but also against the failure to adopt a preparatory act, if it is a necessary preliminary act in a procedure leading to an act that has binding legal effects (see, to that effect, judgment of 27 September 1988, Parliament v Council, 302/87, EU:C:1988:461, paragraph 16).
54


The request for an institution to act must be sufficiently clear and precise to enable that institution to ascertain in specific terms the content of the decision that it is being asked to adopt and must also show what matters are understood to require the institution to define its position (see, by analogy, judgment of 10 June 1986, Usinor v Commission, 81/85 and 119/85, EU:C:1986:234, paragraph 15, and order of 18 November 1999, Pescados Congelados Jogamar v Commission, C‑249/99 P, EU:C:1999:571, paragraph 18).
55


In addition, it should be recalled that the classification for legal purposes of an act or a measure, such as a letter, by the General Court is a question of law which may be raised in an appeal (see, to that effect judgment of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 90, and the case-law cited). Hence, the question of whether a letter sent by an institution in response to a request to act brings an end, or not, to the failure to act alleged against that institution is a question of law which is capable of being examined on appeal.
81


In those circumstances, it must be held that, to the extent that the consequences that Bionorica draws from the distortion, by the General Court, of the facts concerning it arise from a misreading of the order in Case T‑619/14, the arguments advanced by the latter in that regard must be rejected as ineffective in that they could not lead to the setting aside of that order (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 87 and 88, and of 26 July 2017, AGC Glass Europe and Others v Commission, C‑517/15 P, not published, EU:C:2017:598, paragraphs 63 to 65).
83


First of all, it must be recalled that it is for the applicant to prove its interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings (see, to that effect, order of 31 July 1989, S. v Commission, 206/89 R, EU:C:1989:333, paragraph 8, and judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 27).
84


An applicant’s interest in bringing proceedings must be vested and current, and may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 56 and 57 and the case-law cited).
85


The applicant’s interest in bringing proceedings presupposes that the action must be liable, by its outcome, to procure an advantage to the party bringing it (judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited; of 17 April 2008, Flaherty and Others v Commission, C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230, paragraph 25; and of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25). By contrast, there is no interest in bringing proceedings when the favourable outcome of an action could not, in any event, give the applicant satisfaction (see, by analogy, judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited).
91


It is important to note that such a transitional situation, prolonged indefinitely beyond the period that ended, pursuant to Article 13(3) of Regulation No 1924/2006, at the latest on 31 January 2010, does not meet the requirements of that regulation, formulated in recital 23 thereof, according to which, in order to ensure a scientific assessment of the claims that is harmonised and of the highest possible standard, such assessments should be carried out by the EFSA (see, to that effect, judgment of 14 July 2016, Verband Sozialer Wettbewerb, C‑19/15, EU:C:2016:563, paragraph 41).
106


In that regard, it must be recalled that, according to the case-law of the Court, an interest in bringing proceedings and locus standi are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in order to be admissible to bring an action for failure to act under the third paragraph of Article 265 TFEU (see, by analogy, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 62).
115


However, a mere statement of intention, given that it refers to a future and uncertain situation, cannot suffice, in accordance with the case-law cited in paragraph 84 above, to establish Bionarica’s current and vested interest in bringing proceedings (see also, to that effect, judgment of 20 June 2013, Cañas v Commission, C‑269/12 P, not published, EU:C:2013:415, paragraphs 16 and 17).