ORDER OF THE GENERAL COURT (Third Chamber)
6 September 2011 (*)
(Action for failure to act – Failure of the Council and the Commission to adopt measures against the Republic of Lebanon – Alleged violation of the applicant’s fundamental rights and the Association Agreement between the Community and the Republic of Lebanon – Manifest inadmissibility – Actions for damages – Action manifestly devoid of any basis in law)
In Case T‑292/09,
Muhamad Mugraby, residing in Beirut (Lebanon), represented by J. Regouw and L. Spigt, lawyers,
applicant,
v
Council of the European Union, represented by A. Vitro, B. Driessen and E. Finnegan, acting as Agents,
and
European Commission, represented by C. Tufvesson and S. Boelaert, acting as Agents,
defendants,
ACTION for failure to act seeking a declaration that the Council and the Commission unlawfully omitted to take a decision on the applicant’s request concerning the adoption of measures against the Republic of Lebanon on account of the alleged violation by the latter of the applicant’s fundamental rights and the Association Agreement concluded between European Community and its Member States of the one part, and the Republic of Lebanon of the other part, and an action for damages seeking compensation for the harm allegedly suffered by the applicant as a result those institutions’ failure to act,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 Article 1 of Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument (OJ 2006 L 310, p. 1) (‘the ENPI Regulation’) provides:
‘1. This Regulation establishes a Neighbourhood and Partnership Instrument to provide Community assistance for the development of an area of prosperity and good neighbourliness involving the European Union, and the countries and territories listed in the Annex (hereinafter partner countries).
2. Community assistance shall be used for the benefit of partner countries. Community assistance may be used for the common benefit of Member States and partner countries and their regions, for the purpose of promoting cross-border and trans-regional cooperation ...
3. The European Union is founded on the values of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law and seeks to promote commitment to these values in partner countries through dialogue and cooperation.’
2 Article 28 of the ENPI Regulation states:
‘1. Without prejudice to the provisions on the suspension of aid in partnership and cooperation agreements and association agreements with partner countries and regions, where a partner country fails to observe the principles referred to in Article 1, the Council, acting by a qualified majority on a proposal from the Commission, may take appropriate steps in respect of any Community assistance granted to the partner country under this Regulation.
2. In such cases, Community assistance shall primarily be used to support non‑state actors for measures aimed at promoting human rights and fundamental freedoms and supporting the democratisation process in partner countries.’
3 The Euro-Mediterranean Agreement establishing an association between the European Community and the Republic of Lebanon (‘the Association Agreement’) was signed at Luxembourg on 17 June 2002 by the European Community and its Member States of the one part, and the Republic of Lebanon of the other part. On 14 February 2006, the Council adopted Decision 2006/356/EC concerning the conclusion of the Association Agreement (OJ 2006 L 143, p. 1).
4 Article 1 of the Association Agreement provides:
‘1. An association is hereby established between the Community and its Member States, of the one part, and Lebanon, of the other part.
2. The aims of this Agreement are to:
(a) provide an appropriate framework for political dialogue between the Parties, allowing the development of close relations in all areas they consider relevant to such dialogue,
(b) establish the conditions for the gradual liberalisation of trade in goods, services and capital,
(c) promote trade and the expansion of harmonious economic and social relations between the Parties, notably through dialogue and cooperation, so as to foster the development and prosperity of Lebanon and its people,
(d) promote economic, social, cultural, financial and monetary cooperation,
(e) promote cooperation in other areas which are of mutual interest.’
5 According to Article 2 of the Association Agreement:
‘Relations between the Parties, as well as all the provisions of this Agreement itself, shall be based on respect of democratic principles and fundamental human rights as set out in the Universal Declaration on Human Rights, which guides their internal and international policy and constitutes an essential element of this Agreement.’
6 Under Article 86 of the Association Agreement:
‘1. The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall see to it that the objectives set out in this Agreement are attained.
2. If either Party considers that the other Party has failed to fulfil an obligation under this Agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall supply the Association Council with all the relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties.
3. In the selection of the appropriate measures referred to in paragraph 2, priority must be given to those which least disturb the functioning of this Agreement. The Parties also agree that these measures shall be taken in accordance with international law and shall be proportional to the violation. Those measures shall be notified immediately to the Association Council and shall be the subject of consultations within the Association Council if the other Party so requests.’
Background to the dispute
7 According to a report drawn up in November 2003 by the Commission internationale des jurists (International Commission of Jurists), which has its head office in Geneva (Switzerland), the applicant, Mr Mugraby, is a lawyer specialising in human rights law in Lebanon. Since 2003, the Lebanese authorities have prevented him from practising as a lawyer in Lebanon on account of his criticism, inter alia, of the Lebanese judicial system and have harassed him and deprived him of certain fundamental rights.
8 By letter of 29 April 2009 (‘the letter of 29 April 2009’), the applicant called on the European Commission, as the body directly responsible for the implementation of the various European Union aid programmes in Lebanon, to suspend the implementation of the on-going economic aid programmes in view, in particular, of the violation by Lebanon of the clause relating to human rights in Article 2 of the Association Agreement.
9 In the same letter of 29 April 2009, the applicant requested the Commission to submit a recommendation to the Council of the European Union regarding the suspension of European Union aid to Lebanon, including the freezing of economic aid pending the resolution, in particular, of Lebanon’s failures to comply with Article 2 of the Association Agreement as regards the applicant.
10 Finally, in that letter, the applicant requested the Council, in its function as part of the EU-Lebanon Association Council, to invite the Commission to recommend that the Council take specific and effective measures regarding the Community aid to Lebanon under the Association Agreement, including the freezing of economic aid pending the resolution of Lebanon’s failures to comply with Article 2 of the Association Agreement as regards the applicant.
11 By letter addressed to the applicant’s legal counsel on 26 May 2009, the Council informed Mr Mugraby that it had received the letter of 29 April 2009 and that it had transmitted it to the Presidency of the Council.
12 By letter to the applicant’s legal counsel on 29 May 2009, the Commission reminded the applicant that the respect for human rights and the reform of the Lebanese judicial system remained high on the European Union‑Lebanon bilateral agenda. The Commission also informed the applicant that the procedure to be followed in the case where there is a failure to fulfil one of the obligations imposed on the parties by the Association Agreement is set out in Article 86 thereof. Under that provision, if one party considers that the other party has failed to fulfil one of the obligations under the agreement it may take the appropriate measures in accordance with international law. In that regard, the Commission stated that it was not convinced that suspension of the agreement would constitute an appropriate or effective reaction to the applicant’s case.
Procedure and forms of order sought
13 The applicant brought the present action by application lodged at the Registry of the General Court on 27 July 2009.
14 By separate documents lodged at the Registry of the General Court on 9 and 13 November 2009, the Commission and the Council raised objections of inadmissibility against the action under Article 114 of the Rules of Procedure of the General Court.
15 On 6 January 2010, the applicant lodged observations on those objections.
16 The applicant claims that the Court should:
– find that the Commission has failed to act on:
– his request that the Commission submit a recommendation to the Council regarding the suspension of Community aid to Lebanon laid down in Article 28 of the ENPI Regulation;
– his request to suspend the implementation of the various Community aid programs pending the resolution of Lebanon’s continuing violation of fundamental rights, more specifically his own;
– find that the Council has failed to act on the applicant’s request to invite the Commission to recommend that the Council take specific and effective measures regarding the aid granted to Lebanon under the Association Agreement between the Republic of Lebanon and the Community, in order to fulfil the parties’ obligations under the agreement;
– find that the Community, the Commission and the Council have incurred non-contractual liability for harm suffered by him as a result of their consistent failure from December 2002 onwards to effectively utilise the available resources and instruments towards effective enforcement of the human rights clause in Article 2 of the Association Agreement;
– order the Commission, in part as reparation in kind, to propose to the Council the suspension of the EU-Lebanon Association Agreement, until Lebanon complies with Article 2 of the Association Agreement with regard to the applicant;
– order the Commission to limit the implementation of current aid programs (which are carried out and/or supervised by the Commission) to those programs that are aimed specifically at promoting fundamental rights and which do not constitute economic aid to the Lebanese authorities, pending the resolution of Lebanon’s failure to comply with Article 2 of the Association Agreement with regard to the applicant;
– order the Council to invite the Commission to make a recommendation to suspend the Association Agreement, and to act through the institutions of the Association Agreement to the same end;
– order the Commission and the Council to compensate the applicant’s material and moral damages, in an amount to be fixed ex aequo et bono at not less than EUR 5,000,000;
– order the Commission and/or the Council to pay the costs.
17 In its objection of inadmissibility the Council contends that the Court should:
– dismiss the action as manifestly inadmissible or as lacking any foundation in law,
– order the applicant to pay the costs.
18 In its objection of inadmissibility, the Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
19 Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may make a decision on admissibility without considering the substance. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral.
20 In this case, the Court considers that it has sufficient information from the documents before it to enable it to give judgment without opening the oral procedure.
The objections of inadmissibility raised by the Council and the Commission but not the Community
21 The applicant submits that only the Council and the Commission have raised objections of inadmissibility against the pleas and arguments put forward, but the Community has not. However, the present proceedings are expressly brought against the Council, the Commission and the Community, the latter being a separate legal person.
22 That argument must be rejected.
23 As regards the action for failure to act, it must be held that, in the present case, it is brought exclusively against the Council and the Commission. As stated in the first and second indents of paragraph 16 above, the applicant’s form of order refers only to those two institutions. Furthermore, it is clear from the letter of 29 April 2009 that only the Council and the Commission were called upon to act, in accordance with the second paragraph of Article 232 EC, and not the Community. In any event, it is clear from the wording of Article 232 EC that an action founded on that provision may be brought only if one of the institutions referred to therein or the European Central Bank (ECB) has failed to act, in infringement of an obligation in the Treaty. Since the Community is not referred to by that provision, it follows that a failure to act brought against it would be inadmissible.
24 As regards the action for damages, it must be observed that, according to settled case-law, where the liability of the Community is incurred by the act of one of its institutions, it is represented before the Court by the institution or institutions accused of the act giving rise to liability (Case 353/88 Briantex and Di Domenico v EEC and Commission [1989] ECR 3623, paragraph 7). In the present case, it must be observed that the alleged harm suffered by the applicant derives from the alleged unlawful conduct of the Council and the Commission. It follows that it is for them to represent the Community before the General Court.
25 Consequently, the applicant’s argument that the Community has not entered an objection of inadmissibility and therefore did not defend itself against the pleas and arguments relied on in support of its application must be dismissed.
The applicant’s various heads of claim
26 The Court will deal with the applicant’s various heads of claim in the following order. First, the Court will deal with the claim relating to the failure to act under the first and second heads of claim (see paragraph 16 above). Next, the Court will deal with the requests for orders under the fourth, fifth and sixth heads of claim. Finally, the Court will deal with the claims for compensation in the third and seventh heads of claim.
The heads of claim relating to the failure to act
– Arguments of the parties
27 The Council and the Commission contend that the first and second heads of claim are inadmissible.
28 The Commission argues that the claim that it failed to submit a recommendation to the Council concerning the suspension of Community aid to Lebanon is inadmissible for two reasons. First, the applicant does not have standing to bring an action for failure to act against the Commission, as a recommendation to the Council is a non-binding act. In that regard, the Commission states that only the Member States and the institutions are entitled to bring such an action. Second, and in the alternative, the Commission argues that the applicant is not directly and individually concerned by its alleged failure to address a proposal to the Council on the suspension of the Community aid to Lebanon. Such a recommendation is not addressed to the applicant and there is no link between the measure he requested and his situation in Lebanon.
29 The Commission also takes the view that the argument referring to the failure to suspend the implementation of the various Community aid programmes is inadmissible. First, the Commission submits that the applicant does not indicate which aid programmes the Community should suspend. Second, and in the alternative, the Commission submits that the applicant does not show that he is directly and individually concerned by the alleged failure to suspend the various aid programmes in Lebanon.
30 The Council observes essentially that in order for a claim brought by an individual under Article 232 EC to be admissible it is necessary for the desired act to be addressed to that person. Where that act is not specifically addressed to him the applicant must show that the omitted act concerns him directly and individually.
31 The Council submits that, in the present case, the act that the applicant wished it to adopt was an invitation to the Commission to recommend that the Council adopt specific and effective measures concerning the aid provided by the European Union to Lebanon. That invitation is a non-binding act presumably based on Article 208 EC which is excluded from the scope of the third paragraph of Article 232 EC. In any event, the invitation is not addressed to the applicant, who merely assumes that he is directly and individually concerned by such an invitation to the Commission.
32 The applicant has not only failed to indicate which were the specific aid measures covered by the act that the Council failed to address to the Commission, but also how those measures affected him in particular, as compared to the Lebanese people as a whole or any other beneficiary of the measures concerned.
33 The applicant submits essentially that the Council and the Commission are obliged to suspend measures relating to aid to the Republic of Lebanon, in view of the violations of his fundamental rights committed by the latter. In particular, the applicant submits that the fundamental principles of Community law and the clause relating to fundamental human rights in Article 2 of the Association Agreement intend, by their very nature, to confer rights on individuals. For that reason, the Council and the Commission do not have any discretion whether to adopt the measures requested and the applicant is directly and individually concerned by the acts which should have been adopted by those institutions.
– Findings of the Court
34 As a preliminary point, it must be observed that, according to settled case-law, the action for failure to act provided for by Article 232 EC is contingent on the institution concerned being under an obligation to act, so that the failure to act alleged is contrary to the Treaty (orders in Case T‑126/95 Dumez v Commission [1995] ECR II‑2863, paragraph 44, and Case T‑286/97 Goldstein v Commission [1998] ECR II‑2269, paragraph 24).
35 In the first place, as regards, first, the alleged failure to act by the Commission in not addressing to the Council a recommendation concerning the suspension of Community aid to Lebanon pursuant to Article 28 of the ENPI Regulation, it must be observed that such a proposal constitutes an interim measure, the aim of which is to prepare a final measure to be adopted by the Council.
36 According to settled case-law, the failure to adopt an interim measure may be the subject of an action only exceptionally, if the measure at issue is a preparatory act, which is a pre-requisite to the institution of a procedure leading to a definitive and legally binding act (order of 24 November 2009 in Case T‑228/08 Szomborg v Commission, not published in the ECR, paragraph 19, and the case-law cited).
37 It is true that, according to Article 28 of the ENPI Regulation, it is only on a proposal from the Commission that the Council may act, and thus a failure to act by the Commission makes the adoption of appropriate steps impossible. However, it is clear from that provision that it is only where the principles referred to in Title 1, Article 1 of the ENPI Regulation are not complied with by a partner country that the Commission proposes to the Council to take appropriate steps in respect of the Community assistance to the country concerned under that regulation.
38 Taking account of the aim of the ENPI Regulation, namely to support the external policies of the European Union, the question of the implementation of Article 28 of that regulation, which involves the Commission addressing a proposal to the Council, is a matter of discretion for the Commission. In accordance with the case-law, the exercise of such discretion excludes the right for an individual to require the Commission to take a position in that connection (see, to that effect, order of 30 March 2006 in Case T‑2/04 Korkmaz and Others v Commission, not published in the ECR, paragraph 50).
39 Therefore, it must be concluded that, taking account of the Commission’s discretion as regards the submission to the Council of a proposal under Article 28 of the ENPI Regulation, its failure to address such a proposal to the Council cannot be relied on in an action based on the third paragraph of Article 232 EC.
40 Next, as regards the alleged failure by the Commission to act with respect to the suspension of the various Community assistance programmes in Lebanon, it must be held that, contrary to the applicant’s assertions, Article 2 of the Association Agreement is not intended to permit or indeed to impose the recourse to and adoption of measures if the parties to that agreement fail to comply with the clause relating to fundamental rights contained in that article. Article 2 of the Association Agreement contains a provision on human rights, which provides that the relations between the parties and all the provisions of the agreement itself are to be based on respect of democratic principles and fundamental human rights.
41 Consequently, the Commission’s alleged failure to suspend the various Community aid programmes granted to Lebanon on account of alleged violations by the latter of Article 2 of the Association Agreement cannot be relied on in an action based on the third paragraph of Article 232 EC.
42 In those circumstances, the action must be dismissed as inadmissible in so far as it seeks a declaration that the Commission failed to act, first, in not addressing to the Council proposed measures concerning the suspension of the assistance to Lebanon under Article 28 of the ENPI Regulation, and, second, by failing to suspend the Community assistance measures granted to Lebanon.
43 Second, as regards the Council’s failure to act, in not requesting the Commission to submit to it a proposal for effective and specific measures relating to the assistance to Lebanon, it must be observed that the act whose adoption was requested is an invitation for the purposes of Article 208 EC, as the Council rightly observed.
44 In the present case, the Council, in the exercise of the power conferred on it by that article, has a wide discretion enabling it to invite the Commission to submit any appropriate proposal to it (see, to that effect, judgment of 26 November 1996 in Case T‑167/95 Kuchlenz-Winter v Council [1996] ECR II‑1607, paragraph 25). However, the failure by an institution to exercise a discretion cannot be the subject of an action for failure to act. Consequently, the failure by the Council to invite the Commission to address a proposal to it cannot be relied on in an action based on the third paragraph of Article 232 EC (see, to that effect, Kuchlenz-Winter v Council, paragraph 24).
45 It follows from all of the foregoing that the present action must also be declared inadmissible in so far as it seeks a declaration that the Council unlawfully failed to act in not inviting the Commission to submit a proposal to it for specific and effective measures relating to the assistance to Lebanon.
The applications for orders
46 The applicant also seeks an order that the Commission submit a proposal to the Council to suspend the Association Agreement and to limit the implementation of the assistance programmes in Lebanon carried out or supervised by the Commission to assistance programmes intended to promote fundamental rights and which are not of an economic nature until Lebanon complies with Article 2 of the Association Agreement. Furthermore, the applicant requests the Court to order the Council to invite the Commission to submit to it a proposal concerning the suspension of the Association Agreement and to act through the institutions of the Association Agreement to the same end.
47 The Court has no power to issue orders to the Community institutions in the context of judicial review proceedings pursuant to Articles 230 EC and 232 EC (order of 17 November 2009 in Case T‑295/09 Hansen v Commission, not published in the ECR, paragraph 15 and the case-law cited).
48 It follows that the applicant’s requests seeking, first, an order that the Commission submit a proposal to the Council for the suspension of the Association Agreement and to limit the implementation of the Community assistance programmes in Lebanon to those programmes intended to promote fundamental rights and, second, an order that the Council invite the Commission to submit to it a proposal relating to the suspension of the Association Agreement must be dismissed as inadmissible.
The claims for compensation
49 Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.
50 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 make an order without taking further steps in the proceedings.
– Arguments of the parties
51 First of all, the applicant criticises the Council, the Commission and the Community (‘the defendants’) for failing to take appropriate steps pursuant to the Association Agreement against the Republic of Lebanon in response to serious fundamental and human rights violations committed against him. The applicant submits that, by their very nature, those rights are intended to protect individuals and no one has more right to claim compensation for violations than those who are the victim of such violations. Respect for those rights also places narrow limits on the defendants’ discretion. Thus, any infringement of those rights should be regarded as a sufficiently serious breach of a rule of Community law, satisfying one of the conditions for establishing the non-contractual liability of the Community.
52 Furthermore, the applicant submits that the defendants are non-contractually liable for the harm he has suffered, having regard, in particular to the various public statements they have made in the context of the management of the European Union’s external policy with respect to development and the contractual obligations accepted, pursuant to the Association Agreement, in relation to the protection of human rights. The Barcelona Declaration on the Euro-Mediterranean Partnership of 27 and 28 November 1995 and Article 2 of the Association Agreement have given rise to legitimate expectations on the part of the applicant as regards the willingness of the defendants to actually enforce the obligations relating to human rights which are set out therein.
53 The Council contends that the conditions for non-contractual liability are not satisfied in the present case.
– Findings of the Court
54 As a preliminary point, it is settled case‑law that, in order for the Community to incur non‑contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑69/00 FIAMM and FIAMM Technologies [2005] ECR II‑5393, paragraph 85, and the case-law cited).
55 As regards the first of those conditions, the case-law requires that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 42). In relation to the requirement that there must be a sufficiently serious breach, the decisive criterion for establishing that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 54, and Joined Cases T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134).
56 In the present case, the applicant essentially criticises the Council and the Commission for having failed to suspend the Association Agreement as provided for in Article 86 thereof.
57 The applicant also claims that the Council and the Commission gave rise on his part, by reason of the various public statements that the defendants have made in the context of the management of the European Union’s external policy with respect to development, to legitimate expectations as regards their willingness to actually enforce the obligations relating to human rights contained in Article 2 of the Association Agreement.
58 It follows from the wording of the second paragraph of Article 86 of the Association Agreement that the parties to it are not obliged to terminate or suspend the agreement where one of them does not fulfil one of the obligations imposed on it by the agreement.
59 Specifically, it is clear from the wording of the second paragraph of Article 86 of the Association Agreement and, in particular, from the use of the expression ‘[i]f either Party considers that the other Party has failed to fulfil an obligation under this Agreement’, that each party to the agreement is free to decide whether there may be an infringement of the clause relating to the respect for fundamental human rights laid down in Article 2 by the Republic of Lebanon and, if so, of the nature and seriousness of such infringement. It is also clear from the use of the word ‘may’ that, in the event of an infringement of the provisions of the agreement, each party to the agreement is free to adopt the measure it regards as being the most appropriate. It is true that the suspension of the Association Agreement is a measure that the Community, through its competent institutions, may adopt. However, it is not obliged to adopt such a measure, nor does that measure represent the only measure available to deal with an infringement of the obligations in the Association Agreement.
60 The Council and the Commission enjoy a wide margin of discretion in the management of the external relations of the European Union with respect to development in so far as that management involves complex political and economic assessments. However, the applicant has not established that the Council and the Commission have manifestly and gravely disregarded the limits of the broad discretion that they have with regard to a possible suspension of the Association Agreement.
61 Even assuming that those institutions have manifestly and gravely exceeded the limits of their discretion and have thereby infringed Article 86, that article does not, in any event, give rights to individuals.
62 The Association Agreement at issue is an international agreement concluded by the Community and the Member States with a third State.
63 It is settled case-law that, under Article 300(7) EC, such agreements are binding on the institutions of the Community and on Member States. Thus their provisions form an integral part of the Community legal order with effect from their entry into force (Case 181/73 Haegeman [1974] ECR 449, paragraph 5, and Case 12/86 Demirel [1987] ECR 3719, paragraph 7).
64 However, the effects in the Community legal order of the provisions of those agreements may not be determined without taking account of the international origin of the provisions in question (Case 104/81 Kupferberg [1982] ECR 3641, paragraph 17, and Case T‑367/03 Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2006] ECR II‑873, paragraph 38).
65 In particular, in order to decide whether the applicant may rely on certain provisions of the abovementioned agreements to establish the unlawfulness of the defendants’ conduct of which it complains, it is necessary to consider whether those provisions may be regarded as directly applicable. In that regard, in the Demirel judgment (paragraph 14), the Court of Justice held that a provision of an agreement concluded by the Community with non-member States is to be regarded as directly applicable when, having regard to its terms and the subject‑matter and nature of the agreement, it contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.
66 In the present case, Article 86 of the Association Agreement contains provisions on the implementation of the obligations in the agreement. The first paragraph thereof indicates in particular that the parties to the agreement are to take any general or specific measures required to fulfil their obligations under the agreement, and are to see to it that the objectives set out in the agreement are attained. The objectives are essentially political and economic.
67 As regards the second paragraph of Article 86 of the Association Agreement, it is apparent from paragraph 59 above that that provision merely provides in general terms for the adoption of appropriate steps by one of the parties to the agreement if the other party fails to fulfil one of the obligations imposed on it by the Association Agreement.
68 In those circumstances, it must be concluded that Article 86 of the Association Agreement is not sufficiently clear and precise and is subject, in its implementation or effects, to the adoption of subsequent measures by the competent Community institutions, thereby excluding the possibility that it may directly govern the applicant’s situation.
69 Therefore, it must be concluded that Article 86 of the Association Agreement is not capable of directly governing the legal position of individuals and cannot, therefore, be attributed direct effect.
70 Finally, the applicant mentions his legitimate expectations arising from the Barcelona Declaration on the Euro-Mediterranean Partnership and Article 2 of the Association Agreement as regards the willingness of the defendants to actually perform the obligations relating to fundamental human rights.
71 It must be observed that such assertions are, however, not precise enough to identify, firstly, the conduct complained of with any certainty and, secondly, its possible unlawfulness. In any event, the applicant does not establish how he could acquire a right from those expectations (see, by analogy, Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, paragraph 47).
72 As the first condition for Community liability, namely the unlawfulness of the conduct of the institution complained of, has not been satisfied, the claims for damages must be dismissed, and there is no need to consider whether the other conditions are satisfied (Case T‑155/99 Dieckmann & Hansen v Commission [2001] ECR II‑3143, paragraph 83).
73 It is clear from all of the foregoing considerations that the application seeking a declaration for failure to act and the applications for orders for directions must be dismissed as being inadmissible, the claim for damages must be dismissed as being manifestly devoid of any legal basis and, therefore, the action must be dismissed in its entirety.
Costs
74 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, as applied for by the Council and the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed;
2. Mr Muhamad Mugraby is to pay the costs.
Luxembourg, 6 September 2011.