CFI, 1st chamber, May 27, 1994, No T-5/94

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

1 By a judgment given on 23 July 1992 by the Landgericht (Regional Court) Dortmund, which has now become final, the applicant was sentenced to a period of imprisonment of three years and two months for fraud relating to turnover tax; since the beginning of November 1993 he has been serving this sentence in a prison in Germany.

2 The sentence was based on the application of a provision of national law relating to turnover tax, namely Paragraph 14(3) of the Umsatzsteuergesetz (Law on turnover tax).

3 Since he considered that the abovementioned Paragraph 14(3) infringed Community law in that it 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"), the applicant requested the Commission, in a letter dated 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.

4 By letter of 19 October 1993 the Commission informed the applicant that, in its opinion, the German 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. In a letter dated 26 October 1993 the applicant maintained his position and the Commission sent him a letter in reply on 16 December 1993, explaining in more detail the reasons why it had concluded that the provision in question was compatible with Community law.

5 By application lodged at the Registry of the Court of Justice on 17 December 1993, the applicant brought this action. Since the action falls within the jurisdiction of the Court of First Instance by virtue of Council Decision 93-350-Euratom, ECSC, EEC of 8 June 1993, 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 the Court of First Instance, after seeking the applicant's consent.

6 In a separate document lodged at the Registry of the Court of First Instance on 26 January 1994, the applicant 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). Pursuant to the first paragraph of Article 106 of the Rules of Procedure, the President of the Court of First Instance assigned the application for interim measures to the Chamber to which the main proceedings were assigned. As the Commission had already lodged its observations concerning the application for interim measures at the Registry of the Court of First Instance on 10 February 1994, the Court of First Instance (First Chamber), by order of 4 March 1994, dismissed that application as inadmissible and reserved the costs.

7 In a separate document lodged at the Registry of the Court of First Instance on 28 February 1994, the Commission raised a plea of inadmissibility in this case under Article 114 of the Rules of Procedure and asked the Court of First Instance to give a decision on this plea without considering the merits of the case.

8 The applicant claims that the Court of First Instance should:

(i) annul the decision given by the Commission in its letter of 19 October 1993, refusing to initiate proceedings under Article 169 of the Treaty against the Federal Republic of Germany for failure to fulfil its obligations under the EEC Treaty;

(ii) declare that, by refraining, in breach of the EEC Treaty, from initiating such proceedings against the Federal Republic of Germany under Article 169 of the Treaty, the Commission has infringed the Treaty;

(iii) order the Commission to initiate proceedings in accordance with Article 169 of the Treaty against the Federal Republic of Germany for failure to fulfil its obligations by reason of its breach of the Sixth Directive.

9 The Commission contends that the Court of First Instance should:

(i) dismiss the action as inadmissible;

(ii) order the applicant to pay the costs.

10 Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings concerning a plea of inadmissibility is to be oral, unless the Court of First Instance otherwise decides. In this case, the Court of First Instance considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.

Admissibility

Summary of the arguments of the parties

11 In its plea of inadmissibility, the Commission claims that the action must be dismissed as manifestly inadmissible. In so far as the application seeks the annulment of the Commission's decision refusing to initiate proceedings against the Federal Republic of Germany for failure to fulfil its obligations under the Treaty and an order that the Commission should initiate such proceedings, the Commission points out that it is clear from the wording of the second paragraph of Article 169 of the Treaty that it is within the discretion of the Commission whether or not to initiate such a procedure before the Court of Justice ("If the State concerned does not comply with the opinion (...) the Commission (...) may bring the matter before the Court of Justice"). That interpretation is, according to the Commission, in accordance both with the scheme of that provision and with settled case-law (see the judgments of the Court of Justice in Case C-247-87 Star Fruit v Commission [1989] ECR 291, Case C-87-89 Société Nationale Interprofessionnelle de la Tomate and Others v Commission [1990] ECR I-1981; orders of the Court of Justice in Cases C-371-89 Emrich v Commission [1990] ECR I-1555, C-72-90 Asia Motor France v Commission [1990] ECR I-2181 and C-29-92 Asia Motor France and Others v Commission [1992] ECR I-3935). Furthermore, in so far as it relates to a declaration of failure to act, the action is likewise inadmissible because the adoption of an act other than that sought by the person concerned does not constitute a failure to act within the meaning of Article 175 of the EEC Treaty.

12 The applicant contends that, on a proper construction of the Treaty, the Commission is in principle obliged to take action when a Member State infringes provisions of the Treaty. If the Commission enjoys any measure of discretion, that is confined to the time when and the conditions under which the action is to be taken. In this case, however, he claims that that discretion is "reduced to zero", so that the only, and unavoidable, consequence of a proper performance of its duties by the Commission would be the institution of proceedings against the Federal Republic of Germany. The applicant considers also that he has capacity to bring proceedings under Article 175 of the Treaty, even though the act sought must be addressed to the Federal Republic of Germany.

Findings of the Court

13 Under Article 111 of the Rules of Procedure, "Where it is clear that the Court of First Instance has no jurisdiction to take cognizance of an action or where the action is manifestly inadmissible, the Court of First Instance may, by way of reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action."

14 In this case, the applicant's claims are for the annulment of the decision of the Commission refusing to initiate proceedings against the Federal Republic of Germany for failure to fulfil its obligations under the Treaty, a declaration that the Commission failed to act in that regard and an order requiring the Commission to institute such proceedings

15 As far as the claim for annulment is concerned, it is clear from settled case-law (see the case cited above at paragraph 11, also the order of the Court of First Instance in Case T-29-93 Alonso-Cortès v Commission [1993] ECR II-0000) that individuals do not have the right to challenge a refusal by the Commission to initiate proceedings against a Member State for failure to fulfil its obligations under the Treaty. The claim for annulment must, accordingly, be rejected as inadmissible.

16 In so far as the action is based on the third paragraph of Article 175 of the Treaty, its purpose is to obtain a declaration that, by failing to initiate proceedings against the Federal Republic of Germany for failure to fulfil obligations, the Commission has failed to adopt a decision and has thus infringed the Treaty. It must be pointed out that natural or legal persons may bring proceedings before the Community judicature pursuant to the third paragraph of Article 175 only to obtain a declaration of a failure, in breach of the Treaty, to adopt acts of which those persons are the potential addressees. Under the infringement procedure laid down by Article 169 of the Treaty, the only measures which the Commission may be induced to take are addressed to the Member States (see the order of the Court of Justice in Case C-371-89 Emrich v Commission cited above, paragraph 5 et seq.). Consequently, the action is inadmissible in so far as it seeks to establish a failure to act on the part of the Commission.

17 Finally, to the extent that the application seeks an order that the Commission initiate infringement proceedings against the Federal Republic of Germany, the Court of First Instance points out that the Community judicature cannot address orders to a Community institution without encroaching on the rights and powers of the administrative authorities (see the judgment in Case T-15-91 Bollendorf v Parliament [1992] ECR II-1679, paragraph 57). Accordingly, this claim also is inadmissible.

18 It follows from the foregoing that the action must be held to be inadmissible in its entirety.

Costs

19 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 relating to the application for interim measures.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs, including those relating to the application for interim measures.