CFI, 3rd chamber, March 16, 1998, No T-235/95

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

Facts

1. The applicant is a British national residing in the United Kingdom. He is a qualified medical practitioner and has trained as a rheumatologist. In January 1990, he obtained a Certificate of Specialist Training from the General Medical Council ('the GMC), which has regulatory authority over the medical profession in the United Kingdom.

2. On 10 August 1993, he lodged a complaint with the Commission under Article 3 (2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), seeking a declaration that the GMC had infringed Articles 85 and 86 of the EC Treaty. He complained that the GMC had not published in the Medical Register a list of holders of a 'Community Medical Specialist Diploma issued pursuant to Council Directive 93-16-EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1). He further alleged that it had imposed rules impeding direct access to 'Community Medical Specialists and inhibiting them from advertising to the public.

3. When lodging his complaint, the applicant also requested the Commission to adopt certain interim measures. It rejected that request by letter of 20 January 1994, on the ground that the situation was not intolerable for the public interest and that the applicant had not demonstrated any serious and irreparable harm to himself. It added that the measures requested could not prevent the alleged harm to the applicant.

4. Dr Goldstein sent the Commission a second request for interim measures on 28 April 1994. That request was rejected by letter of 20 June 1994, in which the Commission pointed out that the exercise of judicial powers by the courts of a Member State is not an economic activity and is therefore not susceptible to the application of Articles 85, 86 and 90 of the Treaty.

5. The applicant sent further letters to the Commission on 26 May 1994, 4 July 1994, 12 August 1994, 28 September 1994, 21 June 1995 and 3 July 1995.

6. According to the summary of five of those letters made by the Commission in its answering letter dated 16 October 1995 (see paragraph 8 below), and not contested by the applicant, the measures he requested were as follows.

(1) In the letter of 26 May 1994, he requested:

- 'a setting-aside or stay of the Legal Aid Board's Statutory Demand to him (hereinafter 'the first measure); and

- 'a restoration of [his] Legal Aid Certificate No 39919C ('the second measure).

(2) In the letter of 4 July 1994, he asked the Commission to:

- 'reconsider its view that the exercise of judicial powers by the courts of a Member State is not an economic activity, and is therefore not susceptible to the application of Articles 85, 86 and 90 (Mr Ehlermann's letter to [him] of 20 June, paragraph 9) and to incorporate certain legal principles into a new decision ... ('the third measure);

- 'state certain general propositions ... which ... concern:

(a) the application of Community competition rules generally ...;

(b) the application of the Community competition rules to the provision of medical services generally and to [his] case in particular ...;

(c) the obligations under Community law of Member States (including national courts), independent lawyers and nationals of a Member State ...;

(d) the application of the Court of Justice judgment decision in Case 155-79 AM & S Europe v Commission [1982] ECR 1575 ...

('the fourth measure);

- 'reconsider its refusal to grant interim measures dated 20 January 1994 ... ('the fifth measure); and

- 'require Mr Richard Whish to provide [him] with a certain report ... ('the sixth measure).

(3) In the letter of 12 August 1994, he asked the Commission to:

- 'take all steps necessary to maintain the status quo and protect [his] legal rights and in particular the fundamental right to the protection of the principles of legal certainty, legitimate expectation and proportionality ('the seventh measure);

- 'direct that the following orders be declared legally non-existent:

(a) the order of Registrar Simmonds dated 21 July 1994, authorising the Legal Aid Board to present a bankruptcy petition on or after 15 August 1994;

(b) the order of Latham J dated 4 August 1994, directing the Treasury Solicitor [to] refer the matter to the court under section 42 of the Supreme Court Act 1981 regarding whether [the applicant] should be made a Vexatious Litigant

('the eighth measure);

- alternatively, 'take all steps necessary to secure the predictability of the application of Community legislation in this matter by the national court ('the ninth measure); and

- 'provide [him] with the information necessary to draft an application to the Court of First Instance to challenge the Commission decision of 20 June 1994 and/or induce the national court to do so pursuant to Article 173 ('the tenth measure).

(4) In the letter of 28 September 1994, he requested:

- 'an injunction to reinstate [his] application for judicial review of state measures contrary to Community competition rules dismissed by Brooke J ('the eleventh measure);

- 'a temporary injunction to guarantee [his] right to a fair hearing in the national court by securing the application of certain legal principles which he sets out ('the twelfth measure); and

- 'a temporary injunction to prevent any action to be taken by anyone whatsoever which threatens the status quo ('the thirteenth measure).

(5) In the letter of 3 July 1995, he requested the Commission to 'reinstate the status quo and provide the necessary measures on an interim basis to preclude the Attorney General preventing the National Court directly or indirectly from fulfilling its Treaty obligation of loyal cooperation to apply the rule of law ('the fourteenth measure).

7. The applicant's letter of 21 June 1995 did not contain any request for additional measures.

8. By letter of 16 October 1995 ('the contested letter), the Commission rejected the requests for the third and fifth measures on the ground that the applicant had not shown that the situation had changed.

9. In the same letter, it stated that the request for the sixth measure no longer had any purpose, since the applicant had received the report in question.

10. It rejected the remaining requests for additional interim measures on the ground that they did not fall within the scope of interim measures and were therefore not admissible. It considered that the measures sought were not temporary, conservatory or restricted to what was required.

11. More specifically, it explained that the third and fourth measures could not be adopted as interim measures, since they sought general statements of law and would thus be a form of declaratory relief. The seventh, ninth, twelfth, thirteenth and fourteenth measures were in its opinion too wide and/or too vague to be capable of being regarded as limited to what was required. Since the Legal Aid Board was not an undertaking or an association of undertakings, the Commission considered that it had no jurisdiction to take the first or second measures. It stressed, in relation to the eighth, ninth, eleventh and twelfth measures, that it had no jurisdiction to act as an appeal tribunal with regard to decisions taken by national courts, to instruct them how to decide future cases or to make any order directed to them. Nor, it pointed out in relation to the fourteenth measure, could it make an order against the Attorney-General. The tenth measure, it considered,was not a request for interim measures but a request for information, and the applicant had not provided any details as to what information he was requesting.

12. In conclusion, it took the view that the criteria for the adoption of interim measures were not fulfilled. It therefore rejected the applicant's requests.

Procedure and forms of order sought

13. The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 24 December 1995. The case was assigned to the First Chamber, Extended Composition.

14. The applicant made an interim application for provisional measures, registered at the Court of First Instance on 10 January 1996. That application was dismissed by order of the President of the Court of First Instance of 27 February 1996, in which costs were reserved.

15. On 3 May 1996, the applicant lodged an appeal against that order. By order of the President of the Court of Justice of 11 July 1996 in Case C-148-96 P(R) Goldstein v Commission [1996] ECR I-3883, the appeal was dismissed and the applicant was ordered to bear the costs of the appeal.

16. The applicant lodged a new interim application for provisional measures at the Registry of the Court of First Instance on 4 November 1996. That new application was also dismissed, by order of the President of the Court of First Instance of 11 December 1996, and costs were reserved.

17. On 21 February 1997, the applicant lodged an appeal against the last-mentioned order. By order of the President of the Court of Justice of 10 March 1997 in Case C-78-97 P(R) Goldstein v Commission (not published in the ECR), that appeal was also dismissed and the applicant was ordered to bear his own costs in the appeal proceedings.

18. In the meantime, on 12 February 1996, the defendant raised an objection to the admissibility of the present action.

19. On 5 December 1996, the Court of First Instance decided, in plenary conference, after hearing the views of the parties, to refer the case to the First Chamber.

20. By order of the Court of First Instance of 10 March 1997, the decision on the plea of inadmissibility was reserved for the final judgment.

21. The written procedure was completed on 7 August 1997, when the defendant waived its right to lodge a rejoinder.

22. When the Judge-Rapporteur was subsequently assigned to the Third Chamber, the case was transferred to that chamber.

23. The applicant claims that the Court should:

- annul the Commission's decision of 16 October 1995 refusing, inter alia, to reconsider its decision of 20 January 1994; and

- order the Commission to pay the costs.

24. In its objection of inadmissibility, the defendant contends that the Court should:

- dismiss the application as inadmissible; and

- order the applicant to pay the costs.

25. In its defence, the defendant contends that the Court should:

- dismiss the application; and

- order the applicant to pay the costs.

Admissibility

26. In accordance with Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, without taking further steps in the proceedings, give a decision on the action.

Arguments of the parties

27. The defendant puts forward two pleas in its objection to admissibility.

28. The first alleges that the applicant is not directly or individually affected by the Commission's refusal to order the measures requested because he can derive no rights from Directive 93-16. His complaint is thus without foundation in Community law.

29. The second plea of inadmissibility alleges that the application seeks the annulment of an act which is purely confirmatory in nature, namely the Commission's refusal to reconsider its previous decision of 20 January 1994 (Joined Cases 166-86 and 220-86 Irish Cement v Commission [1988] ECR 6473).

30. The applicant maintains that the application is admissible.

31. He considers that he has an interest in bringing proceedings. In his submission, natural or legal persons who are entitled to submit an application under Article 3 (2) (b) of Regulation No 17 should be able, if their request is not complied with either wholly or in part, to institute proceedings in order to protect their legitimate interests (Case 26-76 Metro v Commission [1977] ECR 1875, paragraph 13; Case 210-81 Demo-Studio Schmidt v Commission [1983] ECR 3045, paragraph 13; and Case T-37-92 BEUC and NCC v Commission [1994] ECR II-285, paragraph 36).

32. The applicant claims he had a legitimate interest in lodging a complaint, since he is directly concerned by the conduct complained of, which is liable adversely to affect his interests.

33. He further asserts that he had a legitimate interest in lodging a request for interim measures. Consequently, he has a sufficient interest in bringing proceedings against the decision contained in the contested letter rejecting his application for interim measures.

34. As regards the second plea of inadmissibility, the applicant accepts that a measure which merely confirms a previous measure cannot afford those concerned the opportunity of reopening the question of the legality of the measure which is confirmed. However, that rule does not apply if there is a new fact altering the essential circumstances and conditions which justified the adoption of the first measure. The judgment of the Court of Justice of 10 May 1995 in Case C-384-93 Alpine Investments v Minister van Financiën [1995] ECR I-1141, concerning the circumstances in which an impediment to the freedom to provide services may be acceptable, constituted just such a new fact, which should therefore have led the Commission to amend its decision not to prohibit the unlawful anti-competitive conduct of the GMC.

35. Consequently, the Commission's refusal to withdraw its decision of 20 January 1994 contains the implied decision that the Alpine Investments judgment does not require a different attitude and that the considerations which the Court of Justice took into account in that case do not cover the market in medical services. The contested letter is therefore not merely a confirmation of a previous decision, and the applicant is thus entitled to challenge the decision which it contains (Joined Cases 42-59 and 49-59 SNUPAT v High Authority [1961] ECR 53, at pp. 75-76 and 79-80).

Findings of the Court

36. The existence of a measure whose annulment may be sought under Article 173 of the Treaty is an essential requirement for admissibility (see Case T-64-89 Automec v Commission [1990] ECR II-367, paragraph 41).

37. It has consistently been held that acts or decisions against which an action for annulment may be brought under Article 173 of the Treaty are those whichproduce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal situation (see, inter alia, Case T-178-94 ATM v Commission [1997] ECR II-0000, paragraph 53).

38. In the present case, the defendant has itself denied the existence of any actionable measure.

39. It must be considered whether the contested letter constitutes a measure against which an action for annulment may be brought under Article 173 of the Treaty.

40. That letter comprises two separate parts, which will be examined in turn. First, it contains a refusal to reconsider the decision of 20 January 1994 and the opinion set out in the letter of 20 June 1994. Second, it contains a refusal to adopt the other measures requested.

- The decision refusing to reconsider the previous decisions

41. According to settled case-law, an action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for bringing the proceedings is inadmissible (Case C-480-93 P Zunis Holding and Others v Commission [1996] ECR I-1, paragraph 14; Case T-331-94 IPK v Commission [1997] ECR II-1665, paragraph 24; Case C-12-90 Infortec v Commission [1990] ECR I-4265, paragraph 10).

42. A decision is merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that previous measure was addressed (IPK v Commission, cited above, paragraph 24).

43. In the present case, the Commission's refusal to reconsider its decisions of 20 January 1994 (the fifth measure) and 20 June 1994 (the third measure) merely confirms its previous position.

44. In its decision of 20 January 1994, the Commission had refused to adopt interim measures and had not taken a position on the GMC's alleged unlawful conduct. The refusal to grant measures was based on the absence of urgency, that is to say, the absence of a situation of serious and irreparable harm for the applicant or intolerable for the public interest. In the contested letter, the Commission stated that it would not reconsider a decision to refuse interim measures unless it had new evidence that the situation had changed as a result of the alleged infringements of the competition rules. That statement did not contain any new factor as compared with the previous measures and was not preceded by a re-examination of the applicant's circumstances.

45. The Commission's refusal to reconsider the opinion set out in its decision of 20 June 1994 was also based on the absence of any change in the situation as a result of the alleged infringements of the competition rules. It therefore constituted no more than a confirmation of the previous decision.

46. The Alpine Investments judgment concerned the circumstances in which an impediment to the freedom to provide services may be acceptable. In view of the reasons on which the decisions of 20 January and 20 June 1994 were based and since neither of them related to an alleged infringement of the Community rules on freedom to provide services, that judgment was not sufficient reason for the Commission to be obliged to take a different position in its decision as regards the criteria determining whether a re-examination is necessary.

47. Finally, the fact that the applicant referred to new judgments and that the Commission mentioned some of them in a subsequent decision is not enough to demonstrate that the Commission re-examined the applicant's circumstances. It merely confirmed that it did not have any evidence that the situation had changed as a result of the alleged infringements of the competition rules.

48. In conclusion, the part of the contested letter which constitutes a refusal to reconsider the previous decisions constitutes a purely confirmatory act. To the extent to which it relates to that part, therefore, the application must be held inadmissible.

- The decision refusing to adopt other interim measures

49. As noted above (at paragraph 37), an action for annulment may be brought only against measures which produce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal situation.

50. In order for a decision refusing a request for interim measures to constitute an actionable measure, it is a precondition that the Commission must have the power to order the measures requested (see, inter alia, Case 182-80 Gauff v Commission [1982] ECR 799, paragraphs 16 to 18, and Joined Cases 83-84 and 84-84 N.M. v Commission and Council [1984] ECR 3571, paragraphs 10 and 11).

51. Article 155 of the EC Treaty lists the general powers of the Commission.

52. Various provisions of the Treaty and of legislation adopted under it specify the scope of those powers. As regards the application of Articles 85 and 86 of the Treaty, the Commission exercises the powers deriving from Regulation No 17. They include the power to find that the competition rules have been infringed and to impose a penalty in respect of infringements.

53. In a procedure for that purpose, it may order interim measures (see Case 792-79 R Camera Care v Commission [1980] ECR 119). It must be able to take protective measures to the extent to which they might appear indispensable in order to avoid the exercise of the power to make decisions given by Article 3 of Regulation No 17 from becoming ineffectual or even illusory because of the action of certain undertakings.

54. The powers which the Commission holds under Article 3 (1) of Regulation No 17 therefore include the power to take interim measures which are indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist (ibid., paragraph 18).

55. However, it is essential that interim measures be taken only in cases proved to be urgent in order to avoid a situation likely to cause serious and irreparable damage to the party seeking their adoption, or which is intolerable for the public interest. A further requirement is that those measures be of a temporary and conservatory nature and restricted to what is required in the given situation (ibid., paragraph 19).

56. In the present case, the applicant specifically relies on the Commission's powers in implementing the competition rules as a legal basis for the power to order interim measures.

57. As regards the first, second, eighth, ninth, eleventh, twelfth, thirteenth and fourteenth measures, and the second part of the tenth measure, however, it is quite clear that the Commission has no power to issue directions to national courts, to take measures concerning them in abstracto, even in its capacity as 'guardian of the Treaties, or to assess the validity of their decisions, since it is in no way an appellate court above the national courts.

58. Consequently, the refusal to adopt those measures quite clearly does not affect any aspect of the applicant's legal situation and his interests can thus in no way be affected whether that decision is upheld or annulled.

59. The applicant therefore has no interest in having that decision annulled and does not meet the conditions laid down in the fourth paragraph of Article 173 of the Treaty.

60. His application for annulment must accordingly be held inadmissible in so far as it concerns the refusal to adopt the measures in issue.

61. Nor is the applicant entitled to seek annulment by the Court of the Commission's refusal to adopt the other interim measures requested.

62. In his request relating to the fourth measure, he was not asking the Commission to adopt a position concerning him but to make certain general declarations, to be addressed to categories of persons envisaged in the abstract. He was therefore not in the precise legal position of the actual addressee of a decision which may be declared void under the fourth paragraph of Article 173 or in that of the potential addressee of a legal measure which the Commission has a duty to adopt with regard to him, as foreseen by the third paragraph of Article 175 (see Case 246-81 Lord Bethell v Commission [1982] ECR 2277, paragraph 16).

63. The request relating to the first part of the tenth measure, asking the Commission to provide information of which the applicant gave no specification, could not have given rise to a measure producing binding legal effects capable of affecting his interests by bringing about a significant change in his legal situation.

64. The application must therefore be held inadmissible also as regards the measures referred to in paragraphs 62 and 63 above.

65. Since the request relating to the seventh measure was not presented independently from the other requests, the application must be held inadmissible with regard to it, too, since it has been held inadmissible with regard to those other requests.

66. Finally, as regards the request for Mr Whish to be required to provide the applicant with a certain report (the sixth measure), it need merely be recorded that that request no longer had any purpose, since the applicant had already received the report.

67. It follows from all of the foregoing that the present application must be dismissed in its entirety as inadmissible.

Costs

68. Under Article 87 (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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, including those in the interlocutory proceedings before the President of the Court of First Instance, as applied for in the Commission's pleadings.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber),

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant shall bear all the costs, including those in the interlocutory proceedings before the President of the Court of First Instance.