ORDER OF THE GENERAL COURT (First Chamber)
23 November 2015 (1)
(Action for annulment — Closure of the file on a complaint — Failure to bring an action for failure to fulfil obligations — Lack of direct concern — Manifest inadmissibility — Manifest lack of jurisdiction)
In Case T-348/15,
Ilpo Ilmari Bäck, residing in Vaasa (Finland), represented by M. Greinoman, lawyer,
applicant,
v
European Commission,
defendant,
APPLICATION for annulment of Commission decision TAXUD C3 (2015)1717458 of 21 April 2015 closing the file on the applicant’s complaint concerning an alleged breach by the Republic of Finland of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p.1), of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p.12), and of Article 26 TFEU,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure and form of order sought by the applicant
1 By application lodged at the Court Registry on 22 June 2015, the applicant brought the present action.
2 The applicant claims that the Court should:
– annul the Commission’s decision TAXUD C3 (2015)1717458 of 21 April 2015, closing the file on the applicant’s complaint concerning an alleged breach by the Republic of Finland of EU law, as pre-advised by the Commission’s letter TAXUD C3 (2015)252940 of 2 February 2015;
– remit the case to the Commission and order it to review as to its substance the application lodged by the applicant on 17 December 2014 for initiation of infringement proceedings against the Republic of Finland;
– order the Commission to bear the costs of the proceedings before the General Court including costs incurred in enforcing a judgment or order of the General Court.
Law
3 Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
4 In the present case, the Court considers that it has sufficient information available to it from the material in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
On the first head of claim
5 This application, lodged under the fourth paragraph of Article 263 TFEU, seeks the annulment of the Commission’s decision to close the file on the applicant’s complaint concerning an alleged breach by the Republic of Finland of EU law.
6 The Commission’s decision to close the file on the complaint must be interpreted as an expression of the Commission’s refusal to bring proceedings under Article 258 TFEU against the Republic of Finland for an alleged failure to fulfil its obligations in respect of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p.1), of Council Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p.12), and of Article 26 TFEU. The only way in which the Commission could have reacted favourably to the complaint would have been to commence proceedings against the Republic of Finland for failure to fulfil its obligations (see, to that effect, order of 21 October 2014 in Bharat Heavy Electricals v Commission, T-374/14, EU:T:2014:931, paragraph 8 and the case-law cited).
7 According to settled case-law, individuals do not have standing to challenge a refusal by the Commission to initiate proceedings against a Member State for failure to fulfil obligations (orders of 12 June 1992 in Asia Motor France v Commission, C‑29/92, ECR, EU:C:1992:264, paragraph 21, and of 13 November 1995 in Dumez v Commission, T‑126/95, ECR, EU:T:1995:189, paragraph 33; and judgment of 22 May 1996 in AITEC v Commission, T‑277/94, ECR, EU:T:1996:66, paragraph 55).
8 When, as in the present case, a decision of the Commission amounts to a rejection, it must be appraised in the light of the nature of the request to which it constitutes a reply (judgment of 8 March 1972 in Nordgetreide v Commission, 42/71, ECR, EU:C:1972:16, paragraph 5; order in Dumez v Commission, paragraph 7 above, EU:T:1995:189, paragraph 34; and judgment of 22 October 1996 in Salt Union v Commission, T‑330/94, ECR, EU:T:1996:154, paragraph 32).
9 It must be noted that the fourth paragraph of Article 263 TFEU provides that any natural or legal person may, under the conditions laid down in the first and second paragraphs of that provision, institute annulment proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
10 In the context of an action for failure to fulfil obligations under Article 258 TFEU, the only measures which the Commission may adopt are measures addressed to Member States (orders of 29 November 1994 in Bernardi v Commission, T‑479/93 and T‑559/93, ECR, EU:T:1994:277, paragraph 31, and of 19 February 1997 in Intertronic v Commission, T‑117/96, ECR, EU:T:1997:16, paragraph 32). In addition, it is clear from the scheme of Article 258 TFEU that neither a reasoned opinion, which is merely a preliminary stage after which, if appropriate, an action may be lodged before the Court of Justice for a declaration of failure to fulfil obligations, nor referral to the Court of Justice by the actual lodging of such an action can constitute acts of direct concern to natural or legal persons.
11 It follows that the applicant’s first head of claim seeking the annulment of the Commission’s decision of 21 April 2015 to close the file on the complaint and thereby definitively refusing to bring an action against the Republic of Finland for a declaration of failure to fulfil obligations under Article 258 TFEU, must be rejected as manifestly inadmissible.
On the second head of claim
12 This application also seeks that the General Court remits the case to the Commission and orders it to review as to its substance the application lodged by the applicant on 17 December 2014 for initiation of infringement proceedings against the Republic of Finland.
13 When reviewing legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to institutions, bodies, offices or agencies of the European Union, even where they concern the manner in which its judgments are to be complied with (order of 26 October 1995 in Pevasa and Inpesca v Commission, C-199/94 P and C-200/94 P, ECR, EU:C:1995:360, paragraph 24).
14 Consequently, the applicant’s second head of claim must be rejected on grounds of manifest lack of jurisdiction.
15 It follows from the foregoing considerations that the present action must be dismissed as manifestly inadmissible and on grounds of manifest lack of jurisdiction, without there being any need for it to be served on the Commission.
Costs
16 As the present order was adopted prior to service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the applicant must bear his own costs pursuant to Article 133 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed.
2. lpo Ilmari Bäck shall bear his own costs.
Luxembourg, 23 November 2015.