CFI, 1st chamber, July 4, 1994, No T-13/94

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

1 During the 1981 financial year the applicant sold a quantity of prepared lubricants considered by the Hellenic tax authorities to be subject to the consumer tax provided for in Article 57(1) and (3) of Hellenic law No 12-1975. Consequently, they charged the applicant to tax in the amount of DRS 5 097 016, together with an amount of DRS 7 645 524 (150% of the undeclared tax).

2 The applicant appealed against this decision to the competent national courts. In its appeal to the Simvoulio Epikratias (Council of State) it submitted that the national legislation in force at the material time had been adopted in breach of the provisions of Article 2 of Council Directive 67-227-EEC of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14), and of Article 17(2)(a) and (b) of Council Directive 77-388-EEC 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). By decision No 3043-1992 of 23 September 1992 the Simvoulio Epikratias dismissed the applicant's appeal.

3 Meanwhile, by letter dated 11 April 1992 the applicant requested the Commission to initiate against the Hellenic Republic the procedure provided for in Article 169 of the Treaty, in particular for infringement of its obligations under the abovementioned directives.

4 In reply to another letter from the applicant of 4 November 1993 the Commission informed it by letter of 30 November 1993 that there was no reason for it to initiate the abovementioned proceedings because on the one hand the Member State in question had put an end to the contested practice and on the other hand the tax to which the applicant was referring was a consumer tax whose basis of assessment did not follow the rules and principles laid down in the Community directives governing value added tax.

5 By application lodged at the Registry of the Court of First Instance on 18 January 1994 the applicant brought these proceedings.

6 By a separate document lodged with the Court of First Instance on 16 February 1994, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure and requested the Court of First Instance to rule on this objection without trying the merits of the case. The applicant lodged its observations on the objection of inadmissibility on 24 March 1994.

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

(i) declare that the Hellenic Republic has infringed the abovementioned provisions of national law and of Community law;

(ii) declare that, by declining to initiate the proceedings as provided for under Article 169 of the Treaty, the Commission has failed to fulfil its obligations under Article 175 of the Treaty;

(iii) declare unlawful that omission by the Commission in order to require it to take action as appropriate.

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

(i) dismiss the action as inadmissible;

(ii) order the applicant to pay the costs.

9 Under Article 114(3) of the Rules of Procedure the remainder of the procedure concerning the objection of inadmissibility is to be oral unless the Court of First Instance otherwise decides. In the present case the Court of First Instance (First Chamber) considers that the documents before it are sufficient to elucidate this matter and decides that there is no need to open the oral procedure.

Admissibility

Summary account of the parties' arguments

10 In its objection of inadmissibility the defendant maintains that the action must be dismissed as manifestly inadmissible. The wording of the third paragraph of Article 175 of the Treaty and settled case law preclude an individual from bringing proceedings against it for failure to initiate against a Member State proceedings under Article 169 (see for example the judgment of the Court in Case 247-87 Star Fruit v Commission [1989] ECR 291, paragraphs 11 and 13).

11 The applicant submits that the Commission, by omitting to issue a reasoned opinion in accordance with Article 169 of the Treaty, failed to act within the meaning of Article 175 of the Treaty. Moreover, the issue of such a reasoned opinion following the exercise by the applicant of its right to lodge a complaint with the Commission would signify that the Commission had decided that the Hellenic Republic had infringed the applicant's right to the protection of its property guaranteed under Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms recognized in Article F(2) of the Treaty on European Union. Such reasoned opinion would therefore constitute an act falling to be addressed to the applicant within the meaning of the third paragraph of Article 175 of the Treaty. By refusing to issue that opinion under Article 169 of the Treaty, the Commission, the applicant says, infringed Article F of the Treaty on European Union.

Assessment by the Court of First Instance

12 It has been consistently held that the Commission is not bound to commence proceedings under Article 169 of the Treaty but enjoys discretionary power which precludes any right on the part of individuals to require it to adopt a specific position (see for example the judgments in Star Fruit v Commission, cited above, paragraph 11; in Case C-87-89 Sonito and Others v Commission [1990] ECR I-1981, paragraphs 6 and 7, and the order of the Court of First instance in Case T-29-93 [1993] Calvo Alonso-Cortés v Commission [1993] ECR II-1389, paragraph 55).

13 Furthermore, to the extent to which the action is founded on the third paragraph of Article 175 of the Treaty, it is settled case law that natural and legal persons may bring proceedings under this provision only for a declaration that an institution has declined, in breach of the Treaty, to adopt decisions of which they are the potential recipients. As regards proceedings under Article 169 of the Treaty for failure to fulfil Treaty obligations, the only acts which the Commission may be minded to adopt are ones addressed to Member States (see orders of the Court in Case C-371-89 Emrich v Commission [1990 ECR I-1555, paragraphs 5 and 6, Case C-723-90 Asia Motor France v Commission [1990] ECR I-2181, paragraphs 10 and 11, and the order of the Court of First Instance in Case T-5-94 J. v Commission not published in the Reports of Cases, paragraph 12).

14 Whilst this is sufficient to establish the inadmissibility of the present application, it should be added on an ancillary basis that in requesting the Commission to commence proceedings under Article 169 the applicant is in fact seeking the adoption of acts not of direct and individual concern to it within the meaning of the second paragraph of Article 173, which would in no way be open to it to challenge in annulment proceedings (see paragraph 13 of the abovementioned Star Fruit v Commission judgment).

15 The Court of First Instance considers that the principles of the abovementioned case law cannot be altered by the nature of the Community law infringement alleged. The fact that the applicant is alleging an infringement of his right to property as guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms and in Article F of the Treaty on European Union is not relevant in assessing the admissibility of the action.

16 It follows that the action is inadmissible inasmuch as it seeks a declaration of a failure to act on the part of the Commission and of the unlawfulness of its failure to initiate the procedure provided for under Article 169 of the Treaty.

17 Finally, inasmuch as the application seeks a declaration that the Hellenic Republic has infringed certain provisions of law, it should be recalled that under the terms of Articles 169 and 170 of the EC Treaty the power to apply to the Community judicature for a declaration that a Member State has failed to fulfil its obligations is not extended to natural or legal persons but only to the Commission and other Member States.

18 It follows from all the foregoing that the application must be declared inadmissible in its entirety.

Costs

19 Under Article 87(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Since the applicant has been unsuccessful it must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby:

1. Dismisses the action as inadmissible;

2. Orders the parties to bear their own costs.