1 By application lodged at the Court Registry on 21 March 1994, Mr Schulz brought an appeal under Article 50 of the Statute of the Court of Justice of the EEC against the order of 4 March 1994 in Case T-5/94 R Schulz v Commission in which the Court of First Instance dismissed as inadmissible his application for appropriate interim measures to procure a stay of execution of the sentence of imprisonment that he is currently serving in Germany.
2 On 11 April 1994 the Commission submitted observations in which it argued for the dismissal of the appeal.
3 It is apparent from the contested order that the facts of the case are as follows.
4 By judgment of 23 July 1992, which has now become final, the Landgericht (Regional Court) Dortmund (Federal Republic of Germany) sentenced the appellant to a period of imprisonment of three years and two months for fraud relating to turnover tax. His term of imprisonment began at the end of November 1993.
5 The sentence was based on Paragraph 14(3) of the Umsatzsteuergesetz (Law on turnover tax).
6 The appellant considered that that provision of the national law was not compatible with the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, "the Sixth Directive") and requested the Commission, in a letter of 7 September 1993, to initiate the procedure provided for by Article 169 of the EEC Treaty against the Federal Republic of Germany, on the ground that it had failed to fulfil its obligations under the Treaty.
7 By letter of 19 October 1993 the Commission replied that, in its opinion, the national provision at issue was compatible with Article 21(1)(c) of the Sixth Directive, and that there was therefore no case for initiating a procedure pursuant to Article 169 of the Treaty.
8 By application lodged at the Registry of the Court of Justice on 17 December 1993, the appellant brought an action for the annulment of the Commission' s decision not to bring an action against the Federal Republic of Germany for failure to fulfil its obligations and also for an order requiring the Commission to initiate that procedure. Since that action fell within the jurisdiction of the Court of First Instance by virtue of Council Decision 93/350/Euratom, ECSC, EEC, amending Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21), the Registry of the Court of Justice referred the case (Case T-5/94) to that court, after seeking the appellant' s consent.
9 In a separate document lodged at the Registry of the Court of First Instance on 26 January 1994, the appellant requested the Court of First Instance to grant appropriate interim measures with a view to procuring a stay of execution of the sentence which is currently being served, until final judgment on the substance of the main application (Case T-5/94 R).
10 In his appeal the appellant seeks the annulment, on the ground of infringement of Community law, of the contested order of 4 March 1994 dismissing his application for interim measures as inadmissible.
11 He claims that under Article 169 of the Treaty, the Commission is as a matter of principle under a duty to bring an action when a Member State fails to fulfil its Community obligations. Its discretion relates only to the time when and conditions under which the action is brought. A person who is directly and individually concerned may bring an action against the Commission for annulment under Article 173 or, if the Commission refused or failed to bring an action for failure to fulfil obligations under the Treaty, an action for failure to act under Article 175. In the present case, the Commission can compel the Federal Republic of Germany to apply Community law, and thus to ensure that the courts have to give a new decision on the criminal nature of the appellant' s conduct. His application in the main proceedings is therefore admissible and well founded. Consequently, the application for interim measures is likewise admissible.
12 In the contested order the Court of First Instance pointed out that where the question of the manifest inadmissibility of the main application is raised it is for the judge hearing the application for interim measures to establish whether the main application discloses prima facie grounds for concluding that there is a certain probability that it is admissible.
13 In that regard, the Court of First Instance pointed out that it is not open to individuals to challenge a refusal by the Commission to initiate proceedings against a Member State for failure to fulfil its obligations. Since it was unable to find that there was a certain probability that the main action was admissible, it dismissed the application for interim measures as inadmissible.
14 In making those findings, the Court of First Instance, far from infringing Community law, applied it correctly, in accordance with settled case-law on the conditions for bringing an action against a Member State for failure to fulfil its obligations.
15 The appeal must therefore be dismissed as unfounded.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
1. The appeal is dismissed as unfounded.
2. Costs are reserved.
Luxembourg, 5 May 1994.
