ORDER OF THE COURT OF FIRST INSTANCE (Sixth Chamber)
3 November 2008 (*)
(Actions for annulment – Complaint concerning misleading advertising in Ireland – Proceedings for failure to fulfil obligations not brought – No further action taken on the complaint – No finding of maladministration by the Commission – Act of the Ombudsman – Manifest lack of jurisdiction – Manifest inadmissibility)
In Case T-196/08,
Devrajan Srinivasan, residing in Dublin (Ireland), represented by J.B. Morton, lawyer,
applicant,
v
European Ombudsman,
defendant,
APPLICATION for annulment of the decision of the Ombudsman to take no further action on the applicant’s complaint seeking a declaration of maladministration against the Commission,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),
composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas and L. Truchot, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By letter of 3 June 2004, the applicant lodged a complaint with the Commission, registered under number 2004/4490, seeking a declaration: (1) that actions by the Permanent Trustee Savings Bank (‘TSB’) had infringed Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17; Directive 84/450); and (2) that the Irish authorities had failed to fulfil their supervisory obligation, contrary to the provisions of that directive.
2 By decision of 12 October 2005, the Commission decided to take no further action on that complaint, on the ground that the information contained therein did not demonstrate any infringement of Community law by the Irish authorities. The decision to take no action was communicated to the applicant, inter alia, by a letter of 28 June 2005.
3 By letter of 12 July 2005, the applicant submitted a complaint to the Ombudsman, complaining of maladministration by the Commission and infringement of its obligations under Article 226 EC in its handling of the applicant’s complaint.
4 By letter of 7 April 2008, the Ombudsman informed the applicant that, on the basis of his investigation following the complaint, he had found no maladministration on the part of the Commission and therefore decided to close his file.
5 By application lodged at the Registry of the Court of First Instance on 29 May 2008, the applicant brought the present action.
Forms of order sought by the applicant
6 The applicant claims that the Court should:
– declare that, in relation to the TSB, Ireland acted in breach of Directive 84/450 during the period 1958 to 1993;
– declare the Commission’s decision to take no further action on complaint No 4490/2004 unlawful and in breach of Article 226 EC;
– annul the Ombudsman’s decision of 7 April 2008;
– order the Ombudsman to direct the Commission as follows:
– prosecute Ireland for conspiring in the alleged fraud, in breach of Directive 84/450,
– inform the European Parliament that Ireland conspired with the TSB in the said fraud;
– declare that the applicant has locus standi to represent the victims of those actions;
– rule on costs.
Law
7 Pursuant to Article 111 of the Rules of Procedure of the Court of First Instance, where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may, without taking further steps in the proceedings, give a decision on the action by a reasoned order.
8 In the present case, the Court considers itself sufficiently well informed from the documents before it and decides, pursuant to that article, to give its decision without taking further steps in the proceedings.
The claims for annulment
9 The Court must examine first the plea for annulment of the decision by the Ombudsman to take no further action on the applicant’s complaint alleging maladministration by the Commission.
10 Pursuant to Article 138e of the Treaty, to Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15), and to the provisions implementing the latter, the Ombudsman’s duty is limited to informing the complainant as soon as possible of the action taken following his complaint. Where he finds a case of maladministration, he simply informs the complainant of the outcome of the inquiries, of the opinion expressed by the institution or body concerned and of any recommendations made by the Ombudsman (see Article 138e(1), second paragraph, of the Treaty and Articles 2(9) and 3(7) of Decision 94/262).
11 Moreover, in accordance with the case-law, the Ombudsman does not have the power to take binding measures (Case C‑167/06 P KomninouandOthers v Commission [2007] ECR I‑141, paragraph 44). Furthermore, it has been held that, where the Ombudsman finds a case of maladministration, the report which he sends to the Parliament does no more than find that maladministration in the activities of an institution and, where appropriate, make recommendations. By definition, therefore, the Ombudsman’s report does not produce legal effects vis-à-vis third parties within the meaning of Article 230 EC, and is furthermore not binding on the Parliament, which is free to decide, within the framework of the powers conferred on it by the Treaty, what steps are to be taken in relation to it. The same applies a fortiori to the annual report which the Ombudsman must also submit to the Parliament at the end of each annual session relating to the outcome of his enquiries (order in Case T‑103/99 Associazione delle cantine sociali venete v Ombudsman and Parliament [2000] ECR II-4165, paragraph 50).
12 Against that legal background, a reasoned decision by the Ombudsman concluding the substantive examination of a complaint by deciding to take no further action on it does not constitute a measure capable of being challenged by an action for annulment, since such a decision does not produce legal effects on third parties, within the meaning of Article 230 EC.
13 Moreover, the Ombudsman is not a Community institution within the meaning of Article 7 EC and is not amongst the institutions and bodies whose acts are referred to by the first paragraph of Article 230 EC. According to the case-law, he does not therefore have the capacity to be made defendant to a challenge (see, by way of analogy, in relation to an action for failure to act based on Article 232 EC, the order in Associazione delle cantine sociali venete v Ombudsman and Parliament, paragraphs 45 and 46).
14 On all those grounds, the action must be declared clearly inadmissible, in so far as it seeks annulment of the Ombudsman’s decision to take no further action on the applicant’s complaint.
15 Secondly, in so far as the applicant’s application for a declaration that the Commission’s decision on complaint no 4490/2004 is unlawful and in breach of Article 226 EC may be understood as seeking the annulment of the Commission’s decision not to accede to the applicant’s claim that it instigate proceedings against Ireland for failure to fulfil obligations, it is sufficient to note that, in accordance with consistent case-law, private 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 (order in Case C‑29/92 Asia Motor France v Commission [1992] ECR I‑3935, paragraph 21; order in Case T‑126/95 Dumez v Commission [1995] ECR II-2863, paragraph 33; judgment in Case T‑277/94 AITEC v Commission [1996] ECR II-351, paragraph 55).
16 In the context of the procedure for failure to fulfil obligations governed by Article 226 EC, the only measures which the Commission may be induced to take are addressed to the Member States (order in Joined Cases T‑479/93 and T‑559/93 Bernardi v Commission [1994] ECR II-1115, paragraph 31; order in Case T‑117/96 Intertronic v Commission [1997] ECR II-141, paragraph 32). Moreover, it is clear from the system provided for by Article 226 EC that neither the reasoned opinion, which constitutes a phase preliminary to the possible bringing before the Court of an action for failure to fulfil obligations, nor the actual lodging of such an action can constitute measures directly concerning natural or legal persons.
17 It follows that the applicant’s request understood as seeking the annulment of the Commission’s decision concerning the applicant’s complaint and refusing to initiate proceedings for a finding against Ireland of failure to fulfil obligations under Article 226 EC must be dismissed as clearly inadmissible.
The pleas seeking declarations of general scope from the Court of First Instance
18 The competences of the Court of First Instance are those set out in Article 225 EC and Article 140a EA, as more particularly defined by Article 51 of the Statute of the Court of Justice.
19 As regards the applicant’s claims seeking declarations of general scope from the Court of First Instance, concerning, first, the conduct of the Irish authorities, second, the legality of the Commission’s decision to take no further action on the applicant’s complaint, and, third, the capacity of the applicant to represent depositors allegedly defrauded by the TSB, it should be noted that, in proceedings before the Community judicature, there is no remedy whereby the Court can adopt a position by means of a general declaration on a matter which exceeds the scope of the main proceedings (order in Case T‑338/02 Segi and Others v Council [2004] ECR II-1647, paragraph 48).
20 The claims referred to above must therefore be dismissed for obvious lack of jurisdiction.
The claims for the issuing of directions
21 When exercising judicial review of legality under Article 230 EC, the Community judicature has no jurisdiction to issue directions to Community institutions and bodies (order of 26 October 1995 in Joined Cases C-199/94 P and C‑200/94 P Pevasa and Inpesca v Commission [1995] ECR I-3709, paragraph 24).
22 Therefore, the action must be dismissed as clearly inadmissible in so far as it requests the Court to order the Ombudsman, first, to recommend to the Commission that it bring proceedings against Ireland for failure to fulfil obligations, and, second, to inform the Parliament of the alleged breaches of Community law by Ireland.
23 It follows from the above considerations that this action must be dismissed in its entirety as clearly inadmissible, without there being any need to serve it on the defendant.
Costs
24 Since this order has been adopted before service of the application on the defendant and before the latter has been able to incur costs, it is sufficient to decide that the applicant must bear his own costs, in accordance with Article 87(1) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicant to bear his own costs.
Luxembourg, 3 November 2008.