Romania v European Commission.
Date: 2017-10-25
46


In the first place, it must be recalled that, according to the case-law, it is for the General Court to assess whether the proper administration of justice justifies ruling immediately on a plea of inadmissibility or reserving it for examination in the final judgment (see, to that effect, order of 27 February 1991, Bocos Viciano v Commission, C‑126/90 P, EU:C:1991:83, paragraph 6). Reserving a plea for the final judgment is not required where the assessment of that plea does not depend on the assessment of the substantive pleas made by the applicant (judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 95).
47


In the second place, according to consistent case-law, any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘actionable measures’, within the meaning of Article 263 TFEU (judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54 and the case-law cited).
48


To ascertain whether or not a contested measure produces such effects, it is necessary to look to its substance (judgment of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited). Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited).
49


In the order under appeal, the General Court ruled on the Commission’s plea of inadmissibility without going to the substance of the case. As explained in paragraphs 21 and 22 of the present judgment, following an examination of the division of powers between the Commission and the Member States regarding the determination of own resources under the provisions of Decision 2007/436 and Regulation No 1150/2000, the General Court concluded, in paragraph 37 of that order that, in the absence of a provision empowering the Commission to adopt a measure requiring a Member State to make own resources available, the letter at issue should be regarded as being for information purposes only and as a simple invitation addressed to Romania.
51


First, it is indeed the case that the General Court based its assessment of the actionable nature of the letter at issue, essentially, on an examination of the powers of the Commission on the basis of the provisions of Decision 2007/436 and of Regulation No 1150/2000. In so doing, contrary to the allegations of Romania, it did not, however, assess the nature of the funds claimed or treat those funds as ‘own resources’.
52


The General Court limited itself, in the order under appeal, to an abstract explanation of the obligations and powers of the Member States and the Commission respectively in the area of the Union’s own resources. Since, as is apparent from paragraphs 1 to 7 of the order under appeal, the Commission had sent the letter at issue in the context of that area, the General Court could, without committing errors of law, assess those obligations and powers in the light of the regulations concerning own resources, for the sole purpose of examining the actionable nature of that letter and without prejudice to the substantive question of its applicability to the circumstances of the case and the classification of the amount in question.
55


Finally, however, it should be pointed out that, as Romania rightly points out, the General Court merely examined the powers of the institution which adopted the measure, without carrying out an analysis of the content of the letter at issue, contrary to the requirements of the case-law referred to in paragraph 48 of the present judgment.
57


However, if the grounds of a decision of the General Court disclose an infringement of EU law, but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that decision, and a substitution of grounds must be made (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 150, and of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 102 and the case-law cited).
65


It is clear from the case-law that, in view of the Commission’s discretion to initiate infringement proceedings, a reasoned opinion is not capable of producing binding legal effects (see, to that effect, judgment of 29 September 1998, Commission v Germany, C‑191/95, EU:C:1998:441, paragraph 46 and the case-law cited). The same applies a fortiori to letters which, like the letter at issue, can be regarded as simple informal contacts prior to the opening of the pre-litigation phase of an action for failure to fulfil obligations.
68


That conclusion is not called into question by the arguments of Romania based on the right to effective judicial protection, the situation of legal uncertainty and the financial risk borne by that Member State. Although the requirement as to mandatory legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, it is sufficient to note that that right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to that Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration when interpreting that Charter (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Therefore, the interpretation of the concept of ‘actionable measure’ in the light of the abovementioned Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts (see, by analogy, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 81, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 54).