ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
1 December 2008 (*)
(Action for annulment – Delay – Manifest inadmissibility)
In Case T-220/08,
İşçi Partisi (Turkish Labour Party), established in Ankara (Turkey), represented by R. Sinner, lawyer,
applicant,
v
Council of the European Union,
Commission of the European Communities,
defendants,
APPLICATION for partial annulment of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1), in so far as it applies to the Republic of Turkey,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of: O. Czúcz, President (Rapporteur), I. Labucka and K. O’Higgins, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 The applicant claims that the Commission of the European Communities and the Council of the European Union have infringed their statutory obligations arising under the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 and its Additional Protocols (OJ 1973 C 113, p. 1), by implementing and maintaining in force, through the adoption of Council Regulation (EC) No 539/2001 (‘the contested regulation’), restrictions to the freedom of establishment and the freedom to provide services by the introduction of visa requirements affecting Turkish nationals entering the European Union territory. It can be inferred from the applicant’s claims that what is requested is, in essence, the partial annulment of the contested regulation, in so far as it lists the Republic of Turkey in Annex I. The legal basis on which the applicant relies is the former Article 173 of the EC Treaty (now Article 230 EC).
2 By application lodged at the Registry of the Court of First Instance on 13 June 2008, the applicant brought the present action.
Form of order sought
3 The applicant claims that the Court of First Instance should:
– include the Republic of Turkey in the visa waiver program;
– appoint an expert in accordance with Article 70 of the Rules of Procedure of the Court of First Instance to determine and verify the damage and losses suffered by the Republic of Turkey;
– delete the Republic of Turkey from Annex I to Regulation No 539/2001 and include the latter in Annex II to the said Regulation;
– order the Republic of Turkey and the French Republic to intervene in this case;
– order the defendants to bear the costs.
Law
4 Under Article 111 of the Rules of Procedure of the Court of First Instance, where an action is manifestly inadmissible, the Court may give a decision on the action by reasoned order, without taking further steps in the proceedings.
5 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision on the action without taking further steps in the proceedings.
6 Under the fifth subparagraph of Article 230 EC, an action for annulment is to be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
7 Pursuant to Article 102(1) of the Rules of Procedure, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to be calculated from the end of the 14th day after publication thereof in the Official Journal of the European Union. In addition, Article 102(2) of those Rules of Procedure provides that that time-limit is to be extended on account of distance by a single period of 10 days.
8 According to settled case-law, the time-limit prescribed for bringing actions is a matter of public policy which was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Community judicature must ascertain of its own motion whether it was observed (see, in particular, Case C‑246/95 Coen [1997] ECR I-403, paragraph 21, and Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraphs 38 and 39).
9 In the present case, it is apparent from the documents in the file that the contested regulation was published in the Official Journal of the European Communities of 21 March 2001. Accordingly, the application for annulment fell to be brought no later than 14 June 2001. It follows that the application, lodged seven years after the expiry of the applicable time-limit, is manifestly out of time.
10 In addition, the applicant has not established, or even alleged, the existence of unforeseeable circumstances or force majeure so as to permit a derogation from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of Article 53 of that statute.
11 It follows from all the above considerations that the action must be dismissed as manifestly inadmissible, without it being necessary to serve it on the defendants.
12 In those circumstances, as the substantive action is manifestly inadmissible, there is no need to rule on the claim for an order directing the Republic of Turkey and the French Republic to intervene in the present case. In addition, having regard to the fact that the application is essentially an application for annulment, while there is no claim to award damages on the basis of Article 235 EC, there is no need to rule on the claim to appoint an expert to assess the damage that the Republic of Turkey has allegedly suffered.
13 Furthermore, as regards the head of claim by which the applicant requests the Court to include the Republic of Turkey in the visa waiver program, as well as the second part of the third head of claim by which the applicant requests the Court to include the Republic of Turkey in Annex II to the contested regulation, it must be emphasised that when exercising judicial review of legality on the basis of Article 230 EC the Community judicature has no jurisdiction to issue directions to Community institutions and bodies or to assume their role (see, inter alia, Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II-3141, paragraph 53).
Costs
14 As the present order was adopted prior to service of the application on the defendants and before the latter could have incurred costs, it is sufficient to decide that the applicant must bear the costs pursuant to Article 87(1) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. The action is dismissed.
2. İşçi Partisi (Turkish Labour Party) shall bear its own costs.
Luxembourg, 1 December 2008.