CJEC, 5th chamber, February 20, 1997, No C-107/95 P

THE COURT (Fifth Chamber),

1 By application lodged at the Court Registry on 31 March 1995, the Bundesverband der Bilanzbuchhalter EV (hereinafter `the appellant') brought an appeal, pursuant to Article 49 of the EC Statute of the Court of Justice, against the order of the Court of First Instance (Fourth Chamber) of 23 January 1995 in Case T-84-94 Bilanzbuchhalter V Commission [1995] ECR II-101. By that order, the Court of First Instance declared inadmissible the action for annulment brought by the appellant against the decision of the Commission of 4 November 1993 not to take action on the complaint lodged by the appellant seeking a declaration that the Steuerberatungsgesetz of 4 November 1975 (Law on Tax Advice, BGBl. 1975 I, p. 2735, hereinafter `the StBerG') was contrary to Articles 59 and 86 of the EC treaty and that, therefore, the Federal Republic of Germany, by failing to take the measures necessary to comply with those provisions, had infringed Articles 5 and 90 of the treaty.

2 It appears from the contested order that the appellant is a professional association governed by German law, established in order to defend the economic and socio-professional interests of accountants (Paragraph 1).

3 On 21 August 1992 the appellant lodged a complaint with the Commission in which it called in question the StBerG, amended at various times, most recently by the Law of 13 December 1990 (BGBl. 1990 I, p. 2756), inasmuch as it reserves the right to pursue the activity of adviser on tax and related matters to tax advisers, auditors, lawyers and sworn accountants (Paragraph 1).

4 Considering that legislation to be contrary to the provisions of the treaty and, in particular, to Articles 59 and 86 thereof, the appellant complained that the Federal Republic of Germany, by failing to amend that legislation, had infringed the second Paragraph of Article 5 and Article 90 (1) and (2) of the treaty. It therefore requested the Commission to ensure, pursuant to Article 155 of the treaty, that the provisions of the treaty were applied (Paragraph 1).

5 On 4 November 1993 the Commission took the decision not to act on the applicant's complaint on the ground that the StBerG did not infringe Community law and informed it of that decision by letter of 13 December 1993 (Paragraph 4).

6 By application lodged at the Registry of the Court of First Instance on 23 February 1994, the applicant brought an action under Article 173 of the EC treaty for the annulment of that decision on the ground that it infringed the combined provisions of Articles 5, 59, 86, 90 (1) and 155 of the treaty and Article 3 of Regulation No 17 of the Council of 6 February 1962, First regulation implementing Articles 85 and 86 of the treaty (OJ, English Special Edition 1959-62, p. 87) (Paragraphs 5 and 8).

7 By a separate document lodged at the Registry on 4 May 1994, the Commission raised an objection of inadmissibility under Article 114 of the rules of procedure of the Court of First Instance (Paragraph 6).

The order of the Court of First Instance

8 By the contested order the Court of First Instance dismissed the action as inadmissible, pursuant to Article 111 of its rules of procedure.

9 In the first place, the Court, at Paragraph 22 of the contested order, interpreted the disputed decision as an expression of the Commission's intention not to commence proceedings under Article 169 of the EC treaty against the Federal Republic of Germany.

10 The Court of First Instance went on to observe, at Paragraph 23, that the Court of Justice had consistently held that the Commission is not bound to commence proceedings under Article 169 of the treaty but enjoys a discretionary power which precludes any right on the part of individuals to require it to adopt a specific position (Case 247-87 Star Fruit V Commission [1989] ECR 291, Paragraphs 10 to 14). It accordingly concluded that `in the context of proceedings under Article 169 of the treaty, persons who have lodged a complaint do not have the possibility of bringing an action before the Community judicature against the decision of the Commission not to take action on their complaint'.

11 At Paragraph 24, the Court therefore held that `in the present case, it is not open to the applicant to challenge a refusal by the Commission to commence proceedings against the Federal Republic of Germany' and referred, in this regard, to the orders of the Court of Justice in Case C-29-92 Asia Motor France and others V Commission [1992] ECR I-3935, Paragraph 21, and of the Court of First Instance in Case T-29-93 Calvo Alonso-Cortés V Commission [1993] ECR II-1389, Paragraph 55, and in Case T-5-94 J V Commission [1994] ECR II-391, Paragraph 15.

12 Secondly, in Paragraphs 27 and 28 of the contested order, the Court of First Instance examined the admissibility of the action against the Commission's decision not to take any action on the applicant's complaint in case that decision was to be regarded as a refusal to take a decision under Article 90 (3) of the treaty.

13 In this regard, the Court considered, at Paragraph 31, that it was apparent from Article 90 (3) and the scheme of Article 90 as a whole, that the power of supervision of the Commission with regard to Member States which are responsible for infringements of the rules of the treaty, in particular those relating to competition (judgment of the Court of Justice in joined Cases C-48-90 and C-66-90 Netherlands and others V Commission [1992] ECR I-565, Paragraph 32), necessarily implied a wide margin of discretion for that institution. Consequently, the Court considered that the exercise of the power to assess the compatibility of State measures with the treaty rules, conferred by Article 90 (3) of the treaty, was not coupled with an obligation on the part of the Commission to take action (judgment of the Court of First Instance in Case T-32-93 Ladbroke Racing V Commission [1994] ECR II-1015, Paragraphs 36, 37 and 38), so that `legal and natural persons who request the Commission to act under Article 90 (3) do not have the right to bring an action against a decision of the Commission refusing to use powers conferred upon it under Article 90 (3)'.

14 In view of the foregoing, the Court held, at Paragraph 32, that `the applicant cannot challenge the Commission's refusal to address a directive or a decision to the Federal Republic of Germany under Article 90 (3) of the treaty'.

The appeal

15 By its appeal the appellant requests this Court to set aside the order of the Court of First Instance for infringement of the EC treaty, in particular Articles 5, 59, 86 and 90 (1) and (3) thereof, and for misinterpretation of Articles 155 and 169 of that treaty.

16 The order of the Court of First Instance is contested for both treating the Commission's decision as a decision not to bring an action under Article 169 against the Federal Republic of Germany for failure to fulfil its obligations and interpreting it as a decision not to take measures under Article 90 (3) of the treaty.

The plea in law concerning Article 169 of the treaty

17 The appellant argues that the Court of First Instance did not take into consideration the Commission's misuse of its powers in (i) assessing the facts erroneously and (ii) failing to take action even when it had acknowledged, in the course of discussions between its representatives and the appellant, that there had been an infringement of Articles 59, 86 and 90 of the treaty.

18 The appellant further argues that, where there is a manifest infringement of the treaty, the Commission has no discretion in the matter so that it is obliged to initiate the Article 169 procedure. That rule must be applicable in the present case since the provisions of the StBerG patently infringe Article 59 of the treaty.

19 In this regard, it is sufficient to state that the Court of First Instance correctly applied the case-law of the Court of Justice according to which it is not open to individuals to bring an action against a refusal by the Commission to initiate proceedings under Article 169 against a Member State (see, in particular, Asia Motor France and others V Commission, cited above, Paragraph 21).

The plea in law concerning Article 90 (3) of the treaty

20 As regards the application of Article 90 (3), the appellant maintains that, even if the Commission does enjoy a discretion in assessing the appropriateness of taking action, its decision must be open to legal challenge where that discretion is exercised on the basis of an erroneous assessment of the facts or where, because the facts are so obvious, the scope for exercising it is reduced to nothing. By refusing to take action when Articles 59, 86 and 90 of the treaty had been manifestly infringed, the Commission had therefore misused its powers.

21 The appellant concludes that, in refusing to find that the Commission's discretion has such limits, the Court of First Instance also infringed the treaty.

22 The Commission, referring to the judgment of the Court of First Instance in Ladbroke V Commission, cited above, Paragraph 38, contends that Article 90 (3) of the treaty empowers it to take measures against a Member State, but does not require it to do so. Furthermore, like Article 169 of the treaty, Article 90 (3) does not enable individuals to bring an action against any refusal to take measures which they have requested to be taken.

23 It should be observed that Article 90 (3) of the treaty requires the Commission to ensure that Member States comply with their obligations as regards the undertakings referred to in Article 90 (1) and expressly empowers it to take action for that purpose by way of directives and decisions (judgment in Netherlands and others V Commission, cited above, Paragraph 25). The Commission is empowered to determine that a given State measure is incompatible with the rules of the treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law (judgment in Netherlands and others V Commission, cited above, Paragraph 28).

24 As is apparent from the judgment in Netherlands and others V Commission, cited above, individuals may, in some circumstances, be entitled to bring an action for annulment, under the fourth Paragraph of Article 173 of the treaty, against a decision of the Commission taken on the basis of Article 90 (3) of the treaty.

25 The possibility cannot be ruled out that exceptional situations might exist where an individual or, possibly, an association constituted for the defence of the collective interests of a class of individuals has standing to bring proceedings against a refusal by the Commission to adopt a decision pursuant to its supervisory functions under Article 90 (1) and (3).

26 In the present case, however, the appellant requested the Commission to address to the Federal Republic of Germany, pursuant to Article 90 (1) and (3), a decision declaring that a piece of general legislation, the StBerG, was contrary to the treaty and indicating the measures which that State had to adopt in order to comply with its obligations under Community law. The decision challenged before the Court of First Instance was thus the refusal by the Commission to address such a decision to the Federal Republic of Germany.

27 In this regard, it is apparent from the wording of Article 90 (3) and from the scheme of Article 90 as a whole that the Commission enjoys a wide discretion in the field covered by Paragraphs 1 and 3, both in relation to the action which it considers necessary to be taken and in relation to the means appropriate for that purpose (see, to this effect, the judgment in Netherlands and others V Commission, cited above, Paragraph 27).

28 Moreover, an individual may not, by means of an action against the Commission's refusal to take a decision against a Member State under Article 90 (1) and (3), indirectly compel that Member State to adopt legislation of general application.

29 It follows that the appellant was not entitled to challenge the refusal of the Commission to adopt the measure sought.

30 The Court of First Instance was therefore right in also declaring the action to be inadmissible inasmuch as it was directed against the Commission's decision not to take any action under Article 90 (1) and (3) of the treaty.

31 The appeal must therefore be dismissed in its entirety.

Costs

32 Under Article 69(2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. The Commission has asked for the appellant to be ordered to pay the costs. Since the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber),

hereby :

1. Dismisses the appeal ;

2. Orders the Bundesverband der Bilanzbuchhalter EV to pay the costs.