Clarke v Commission (Appeal - Action for annulment - Order) [2019] EUECJ C-284/19P

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(Appeal — Article 181 of the Rules of Procedure of the Court — Action for annulment — Actions for failure to act — Refusal of the European Commission to bring infringement proceedings under Article 258 TFEU against a Member State)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 April 2019,

Andrew Clarke, residing in Kingston upon Thames (United Kingdom), represented by Mr E. Lock, Solicitor,

composed of C. Lycourgos, President of the Chamber, E. Juhász (Rapporteur) and M. Ilešič, Judges,

having decided, after hearing the Advocate General, to give a decision by reasoned order in accordance with Article 181 of the Rules of Procedure of the Court,

1 By his appeal, Mr Andrew Clarke asks the Court of Justice to set aside the order of the General Court of the European Union of 25 March 2019, Clarke v Commission (T‑731/18, not published, ‘the order under appeal’, EU:T:2019:209), by which the General Court dismissed his application for annulment of the European Commission’s decisions of 22 and 25 October 2018, bearing the references Ares (2018) 5364821 and Ares (2018) 5488682, by which it refused to bring infringement proceedings against the United Kingdom of Great Britain and Northern Ireland under Article 258 TFEU (‘the contested decisions’), and, pursuant to Article 265 TFEU, to declare that, by failing to bring such proceedings, the Commission has failed to fulfil its obligation to act.

2 It is apparent from the appeal that, by his actions, Mr Clarke sought a declaration, in essence, that the United Kingdom’s Financial Ombudsman, a national alternative dispute resolution entity, does not afford to those who bring a complaint before it their fundamental right to a fair hearing provided for, inter alia, under Article 9 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ 2013 L 165, p. 63), and that the United Kingdom courts have failed to afford Mr Clarke a fair and impartial hearing as to his action concerning the incompatibility of a procedural rule applicable to the services of the United Kingdom’s Financial Ombudsman with Article 47 of the Charter of Fundamental Rights of the European Union.

3 Following Mr Clarke’s request for infringement proceedings to be brought against the United Kingdom, the Commission adopted the contested decisions by which it refused to bring such proceedings against that Member State under Article 258 TFEU.

4 By application lodged at the Registry of the General Court on 14 December 2018, Mr Clarke brought an action for (i) annulment of those decisions, (ii) a finding that the Commission, by failing to bring infringement proceedings under Article 258 TFEU against the United Kingdom, failed to fulfil its obligation to act and, finally (iii) an order obliging the Commission to deliver a reasoned opinion and, ultimately, to initiate such proceedings against that Member State.

5 As can be seen from points 4 and 5 of the order under appeal, the General Court, considering that it was sufficiently informed by the documents in the file, decided, pursuant to Article 126 of its Rules of Procedure, to rule on Mr Clarke’s action without taking further steps in the proceedings. It stated, in point 19 thereof, that there was therefore no need to rule on the request to adjudicate under an accelerated procedure.

6 With regard to the first ground of appeal, seeking the annulment of the contested decisions, the General Court recalled, in point 7 of the order under appeal, that individuals are not entitled to bring proceedings against a refusal by the Commission to institute proceedings against a Member State for failure to fulfil its obligations. It also recalled, in point 8 of that order, that when, as in the case before it, a decision of the Commission is negative, that decision must be appraised in the light of the request to which it constitutes a reply.

7 After having referred, in point 9 of that order, to the substance of the fourth paragraph of Article 263 TFEU, the General Court stated, in point 10 thereof, that, in an action for failure to fulfil obligations under Article 258 TFEU, the only measures which the Commission may be required to adopt are measures addressed to Member States and that it is clear from the scheme of Article 258 TFEU that neither a reasoned opinion, which is merely a preliminary stage after which, if appropriate, an action for failure to fulfil obligations may be lodged before the Court of Justice, nor referral to the Court of Justice by the actual lodging of such an action, can constitute acts of direct concern to natural or legal persons, so that individuals are not entitled to bring proceedings against a refusal by the Commission to bring proceedings against a Member State for failure to fulfil obligations.

8 Consequently, the General Court rejected the first ground of appeal as being manifestly inadmissible.

9 With regard to the second ground of appeal, concerning the Commission’s failure to act, the General Court, in point 13 of the order under appeal, pointed out, first, that an action for failure to act is inadmissible where it is brought by a natural or legal person for a declaration that, by not bringing proceedings against a Member State for failure to fulfil obligations, the Commission has infringed the TFEU. On the other hand, it noted that natural or legal persons may rely on the third paragraph of Article 265 TFEU only in order to challenge the failure of an institution, body, office or agency of the European Union, in breach of the TFEU, to adopt measures, other than recommendations or opinions, whose lawfulness they are entitled to contest by bringing an action for annulment.

10 In those circumstances, the Court held that Mr Clarke’s request for a declaration that the Commission infringed the TFEU by not bringing infringement proceedings against a Member State must be rejected as manifestly inadmissible.

11 Finally, as to the third ground of appeal, concerning the direction obliging the Commission to deliver a reasoned opinion and, ultimately, to bring proceedings under Article 258 TFEU against the United Kingdom, the General Court recalled, in point 16 of the order under appeal, that, when reviewing legality under Articles 263 and 265 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies or agencies of the European Union.

12 Consequently, since it manifestly lacks jurisdiction to issue such directions, the General Court dismissed the third ground of appeal and, consequently, the action in its entirety.

– order that the Commission deliver to the United Kingdom, as an interim measure, a reasoned opinion setting out its position on the infringements of EU law invoked in his complaint;

– authorise him to apply to the General Court to issue further directions to the Commission, and

14 By separate document submitted when lodging his appeal, Mr Clarke requested that an expedited procedure be applied in the present case, so that it could be closed by 12 April 2019 at the latest or by the date to which the period provided for in Article 50 TEU may be extended. By letter dated 29 May 2019, that request was reiterated, seeking a decision on the present appeal before 31 October 2019 and, should the case be referred back to it, for the General Court to decide on it before that date.

15 Since this order definitively closes the proceedings before 31 October 2019, there is no need to adjudicate on those applications.

16 Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

18 By his first ground of appeal, Mr Clarke claims that the General Court distorted his initial complaint to the Commission of 13 July 2018 and his subsequent observations addressed to the Commission on 9 October 2018, since, in those documents, he had not expressly requested that infringement proceedings be brought against the United Kingdom. In his appeal, Mr Clarke states that, by his complaint, he was only asking the Commission to examine whether the United Kingdom was infringing EU law.

19 From the outset, it should be noted that, in his application at first instance seeking annulment of the contested decisions on the ground, inter alia, that the Commission did not issue a reasoned opinion against the United Kingdom, Mr Clarke did not set out his position that, in this particular case, the issuing of such a reasoned opinion would not be part of the infringement proceedings.

20 Therefore, since, under the TFEU system, the issuing of the reasoned opinion is part of the infringement proceedings, it cannot be argued that the General Court distorted the appellant’s position by finding that he criticised the Commission for not having delivered a reasoned opinion within the meaning of Article 258 TFEU.

21 Consequently, the first ground of appeal must be rejected as being manifestly unfounded.

22 By his second ground of appeal, Mr Clarke submits that the General Court misinterpreted Article 263 TFEU by stating that individuals are not entitled to challenge a Commission’s refusal to bring infringement proceedings against a Member State. While accepting that the Commission is not required under Article 258 TFEU to bring such proceedings, but that, in that respect, it enjoys discretionary powers excluding the right of individuals to require that institution to adopt a specific position, Mr Clarke argues, with reference to paragraph 49 of the judgment of 14 September 1995 in Case T‑571/93 Lefebvre and Others v Commission (EU:T:1995:163), that the courts of the European Union may review the lawfulness of the exercise of that discretionary power. In addition, reasoned opinions and decisions not to issue a reasoned opinion should be considered as acts addressed to complainants who have raised with the Commission a breach of EU law by a Member State and it should be recognised that any complainant is directly and individually concerned by such acts.

23 With regard to paragraph 49 of the judgment of 14 September 1995 in Case T‑571/93 Lefebvre and Others v Commission (EU:T:1995:163), relied on by Mr Clarke, it should be noted that, in that paragraph, the Court indicated that ‘[it] is … settled case-law that, where the assessment of a complex economic situation is involved, the Commission has a wide discretion and that, in reviewing the exercise of such a power, the Court must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether that authority did not clearly exceed the bounds of its discretion.’

24 However, that paragraph was part of the examination of the European Community’s possible non-contractual liability and specifically concerned the alleged unlawful nature of the Commission’s decisions taken in the field of common commercial policy. That paragraph cannot therefore be applied to the present case.

25 On the other hand, the paragraphs of the judgment of 14 September 1995 in Case T‑571/93, Lefebvre and Others v Commission (EU:T:1995:163), in which the General Court ruled on the Commission’s alleged failure to bring infringement proceedings against the French Republic, are applicable in the present case. In the proceedings leading to that judgment, it was submitted before the General Court that, by preventing imports of bananas from African, Caribbean and Pacific states, with the exception of quota goods from Côte d’Ivoire and Cameroon, that Member State infringed certain provisions of the EC Treaty and that, by tolerating that infringement, the Commission failed to fulfil its obligations under Article 169 of the EC Treaty.

26 With regard to that provision, the General Court recalled, in paragraph 60 of the judgment of 14 September 1995 in Case T‑571/93, Lefebvre and Others v Commission (T‑571/93, EU:T:1995:163), that it is settled case-law that the Commission is not bound to commence proceedings under that provision, but has in that regard a discretion which excludes the right for individuals to require it to adopt a specific position. The General Court added, in paragraph 61 of that judgment, that, in the absence of such an obligation to bring proceedings under Article 169 of the EC Treaty, the Commission’s decision not to institute infringement proceedings was therefore consistent with the EC Treaty.

27 In addition, the Court has repeatedly held that individuals are not entitled to challenge a Commission’s refusal to bring infringement proceedings against a Member State (order of 15 December 2011, Altner v Commission, C‑411/11 P, not published, EU:C:2011:852, paragraph 8 and the case-law cited).

28 Similarly, the Court pointed out that no general principle of EU law requires an individual to be entitled, before courts of the European Union, to challenge the Commission’s refusal to bring an action against a Member State on the basis of Article 258 TFEU (order of 14 July 2011, Ruipérez Aguirre and ATC Petition v Commission, C‑111/11 P, not published, EU:C:2011:491, paragraph 16 and the case-law cited).

29 It is in accordance with that case-law that the General Court found that the measures which the Commission may be required to adopt in the context of proceedings under Article 258 TFEU are addressed only to the recipient Member State.

30 Moreover, as is apparent from the case-law referred to in point 10 of the order under appeal and contrary to Mr Clarke’s contention, natural or legal persons who have lodged complaints with the Commission, alleging infringement of EU law by a Member State, cannot be regarded as directly and individually concerned by the measures which the Commission may have to adopt in the context of proceedings under Article 258 TFEU.

31 Consequently, by holding, in point 11 of the order under appeal, that, according to the case-law recalled in points 7 and 10 of that order, Mr Clarke was not entitled to bring proceedings against the Commission’s refusal to bring proceedings against the United Kingdom under Article 258 TFEU, the General Court did not commit any error of law.

32 The second ground of appeal must therefore be rejected as manifestly unfounded.

33 By his third ground of appeal, Mr Clarke claims that the General Court erred in law by not finding that the Commission had failed to act, within the meaning of Article 265 TFEU, through its failure to issue a reasoned opinion against the United Kingdom under the first paragraph of Article 258 TFEU. Mr Clarke argues that since, in the present case, the Commission decided to examine the question of bringing infringement proceedings, it necessarily acknowledged the United Kingdom’s infringement of EU law and was therefore required to deliver a reasoned opinion.

34 It should be recalled that, according to settled case-law, notably in the judgment of 14 February 1989, Star Fruit v Commission (247/87, EU:C:1989:58), an action for failure to act brought by a natural or legal person is inadmissible if it seeks a declaration that, by not bringing infringement proceedings against a Member State, the Commission has failed to act, in breach of the Treaty.

35 In addition, it is apparent from paragraphs 58 and 59 of the judgment of 26 November 1996 in Case C‑68/95, T. Port (EU:C:1996:452) that natural or legal persons may rely on the third paragraph of Article 265 TFEU only in order to challenge the failure of an institution, body, office or agency of the European Union, in breach of the TFEU, to adopt measures, other than recommendations or opinions, whose lawfulness they are entitled to contest by bringing an action for annulment.

36 It must be noted that in the present case the General Court correctly applied that case-law, which is recalled in point 13 of the order under appeal, and that it did not commit any error of law in holding that Mr Clarke’s request for a declaration that the Commission infringed the TFEU by failing to bring infringement proceedings against a Member State is clearly inadmissible.

37 That finding cannot be called into question by the arguments presented in the appeal.

38 Accordingly, even if, as Mr Clarke maintains, following his complaint, the Commission were of the opinion that the United Kingdom was in breach of EU law, that institution would not have been obliged, in such a case, to bring the proceedings provided for in Article 258 TFEU either. It follows from the scheme of that article that the Commission is not required to issue a reasoned opinion when it considers that a Member State has failed to fulfil one of its obligations under the Treaties, nor subsequently to refer the matter to the Court for a declaration of such failure. Accordingly, if a Member State does not comply with a reasoned opinion within the prescribed time limit, the Commission may, but is not required, to bring the matter before the Court of Justice in order to obtain a declaration that the Member State has failed to fulfil its obligations (see, to that effect, order of 14 July 2011, Ruipérez Aguirre and ATC Petition v Commission, C‑111/11 P, not published, EU:C:2011:491, paragraphs 12 and 13 and the case-law cited).

40 By his fourth ground of appeal, Mr Clarke submits that the General Court erred in law in that it did not require the Commission to issue a reasoned opinion under the first paragraph of Article 258 TFEU. He also submits that the orders referred to in point 16 of the order under appeal are inapplicable in the present case and that, given the Commission’s failure to act in the present case, the Courts of the European Union may adopt interim measures under Article 279 TFEU.

41 In that respect, it is sufficient to note that it follows from the case-law of the Court of Justice that neither the General Court nor the Court of Justice has jurisdiction to issue directions to the institutions, bodies or agencies of the European Union in proceedings commenced under Articles 263 and 265 TFEU (see, to that effect, order of 24 November 2016, Petraitis v Commission, C‑137/16 P, not published, EU:C:2016:904, paragraphs 31 and 32 and the case-law cited).

42 Furthermore, the order of 24 November 2016, Petraitis v Commission (C‑137/16 P, not published, EU:C:2016:904), to which the General Court referred in point 16 of the order under appeal, was delivered by the Court of Justice in appeal proceedings, in which the appellant specifically sought the annulment of an order of the General Court, by which it dismissed his action for a declaration that the Commission had failed to act as a result of its failure to bring infringement proceedings under Article 258 TFEU against a Member State and to issue directions to the Commission for it to take the necessary measures in respect of that Member State.

43 Consequently, the relevance of that order cannot be called into question in the present case.

45 In those circumstances, the appeal must be dismissed in its entirety as manifestly unfounded.

46 Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. As this order has been adopted without the appeal having been notified to the defendant at first instance, the appellant must be ordered to bear his own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Clarke v Commission (Appeal - Action for annulment - Order) [2019] EUECJ C-284/19P_CO (01 October 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C28419P_CO.html Cite as: ECLI:EU:C:2019:799, EU:C:2019:799, [2019] EUECJ C-284/19P_CO

Court of Justice of the European Communities (including Court of First Instance Decisions)