ORDER OF THE GENERAL COURT (Fourth Chamber)
24 March 2010 (*)
(Action for damages – Public health implications of the nuclear accident at Thule (Greenland) – Directive 96/29/Euratom – Commission’s failure to adopt measures against a Member State – Action manifestly lacking any foundation in law)
In Case T‑5/09,
Brigit Lind, residing in Greve (Denmark), represented by I. Anderson, lawyer,
applicant,
v
European Commission, represented by E. White and M. Patakia, acting as Agents,
defendant,
ACTION for compensation for damage suffered as a result of the Commission’s alleged failure to adopt the measures necessary to ensure that the Kingdom of Denmark adopted the legislative and administrative provisions enabling it to comply with Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation (OJ 1996 L 159, p. 1) and applied those provisions to workers involved in the nuclear accident at Thule (Greenland),
THE GENERAL COURT (Fourth Chamber),
composed of O. Czúcz, President, I. Labucka and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In 1967, Mr John Erling Nochen, the brother of the applicant, Brigit Lind, was employed as a truck driver by the Danish Construction Corporation on the American military base at Thule in Greenland.
2 In January 1968, an American military airplane carrying nuclear weapons crashed near Thule. According to the US Atomic Energy Commission, approximately 6 kilograms of weapons grade plutonium were released as a result of that accident. Emergency clean‑up operations were initiated for the removal of contaminated ice, snow and debris.
3 For a period of eight months after the accident, Mr Nochen, who had no prior experience of nuclear emergencies, participated in those operations. More specifically, he was required to load his trailer truck with contaminated aircraft debris, ice and snow and to transport them from the site to a storage hangar where he unloaded the contaminated cargo. The methods of loading and unloading exposed Mr Nochen to a serious risk of plutonium inhalation. No mask or respiratory equipment was issued to him to protect him against such a risk.
4 On 13 May 1996, the Council of the European Union adopted Directive 96/29/Euratom laying down basic safety standards for the health protection of the general public and workers against the dangers of ionising radiation (OJ 1996 L 159, p. 1). According to Article 55(1) of Directive 96/29, Member States were to bring into force the legislative and administrative measures necessary to transpose that directive before 13 May 2000.
5 In 2002, Foreningen af Strålingsramte Thulearbejdere (Association of Thule workers affected by radiation) presented a petition to the Petitions Committee of the European Parliament seeking implementation of the medical monitoring requirements of Directive 96/29 (Petition 720/2002).
6 In 1990, following an examination in the Labour Clinic at the Main Central Hospital in Copenhagen (Denmark), minor changes in Mr Nochen’s lung tissue were detected. At the time of that examination, those changes were not considered serious. There was no subsequent monitoring of his lung condition after entry into force of Directive 96/29. During 2004 and 2005, Mr Nochen began to develop a dry cough. In November 2006, his doctor sent him to Roskilde Hospital (Denmark) where an advanced and inoperable stage of lung cancer was diagnosed.
7 On 10 May 2007, the Parliament, following the Parliamentary Report on Petition 720/2002, adopted a non-legislative resolution (‘the Parliament Resolution’), in which, in particular it ‘urges the Commission [of the European Communities] to pursue vigorously any failure [of the Member States] to fulfil their obligations under [Directive 96/29]’.
8 In February 2008, Mr Nochen died of cancer. On 27 February 2008 the applicant, who is executrix of her brother’s estate, was authorised by the Danish courts to act on his behalf.
9 The European Commission states that it has no basis to contest the facts concerning the accident and its after-effects as set out in the application.
Procedure and forms of order sought by the parties
10 The applicant brought the present action by application lodged at the Court Registry on 2 January 2009.
11 By separate document, lodged at the Court Registry on 28 April 2009, the Commission raised a plea of inadmissibility pursuant to Article 114 of the Court’s Rules of Procedure.
12 In her application, the applicant claims that the Court should:
– order the Commission to pay to her EUR 50 000, or such other sum as the Court may consider just and equitable, for shock and distress experienced by her because of her brother’s suffering and death as a result of the Commission’s refusal to enforce implementation of the medical monitoring provisions of Directive 96/29 in the case of the workers involved in the accident at Thule;
– order the Commission to pay to Mr Nochen’s estate, first, EUR 250 000, or such other sum as the Court may consider just and equitable, for Mr Nochen’s pain and suffering from 2006 until his death in 2008 as a result of that same refusal and, second, EUR 6 000 for funeral expenses;
– order the Commission to pay the costs.
13 In its plea of inadmissibility, the Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
14 In her observations on the plea of inadmissibility, the applicant claims in essence that the Court should reject the plea of inadmissibility.
Law
15 Under Article 111 of the Rules of Procedure, where an action is manifestly lacking any foundation in law, the Court may give a decision by reasoned order without taking further steps in the proceedings.
16 In the present instance, the Court has sufficient information from the case-file and will thus give its decision, pursuant to that provision, without taking any further steps in the proceedings.
Arguments of the parties
17 The applicant seeks compensation for damage suffered by her and her brother by reason of the alleged failure by the Commission to enforce implementation of the provisions of Directive 96/29 on the medical monitoring of workers who, like Mr Nochen, had in the past been potentially exposed to radiation at Thule.
18 The applicant alleges that the damage that she and Mr Nochen suffered are attributable exclusively to the Commission, which failed to enforce implementation of the provisions in question, despite the Parliament Resolution. Mr Nochen’s illness which, she claims, he contracted following his exposure to weapons grade plutonium, would have been less severe if it could have been detected and treated earlier. Prompt intervention by the Commission would have reduced the gravity of the harm he suffered.
19 The applicant maintains that the application satisfies all the requirements of Article 44(1)(a) to (e) of the Rules of Procedure and that it is not necessary to consider its admissibility.
20 In its plea of inadmissibility, the Commission relies on four arguments to justify dismissal of the application as manifestly inadmissible:
– Directive 96/29 cannot apply to the accident at Thule, because the EAEC Treaty does not apply to military uses of fissile materials; moreover, the Parliament Resolution does not require the Commission to bring proceedings against the Kingdom of Denmark or to indemnify the applicant;
– the EAEC Treaty does not apply to Greenland now, nor did it in 1968 at the time of the accident, or in 2000 when Directive 96/29 entered into force;
– the applicant has failed to identify properly the unlawful action of the Commission on which she is basing her action and, in any event, she has no right to demand the initiation of infringement proceedings against a Member State; she cannot therefore claim damages for an alleged failure to bring infringement proceedings;
– there is no causal link between any act or omission of the Commission and the illness of the applicant’s brother.
21 The Commission also considers that the action could be held inadmissible as time‑barred. It reserves its position on this point, however, because, in its view, a number of important facts are not sufficiently clear from the application.
Findings of the Court
22 It must at the outset be noted that the applicant did not specify the legal basis for her application, but merely relied on the non-contractual liability of the European Community. It is only in her observations on the plea of inadmissibility that she expressly refers to the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) and to the second paragraph of Article 188 EA.
23 In so far as the application is based on those two provisions, it seeks compensation for damage allegedly suffered by the applicant and Mr Nochen by reason of the Commission’s omission to enforce implementation of the medical monitoring provisions in Articles 52(2) and 53(b) of Directive 96/29.
24 The Court observes that it follows from consistent case-law that, in order for the Community to incur non-contractual liability for the unlawful conduct of its institutions, within the meaning of the second paragraph of Article 288 EC and the second paragraph of Article 188 EA, a number of conditions must be satisfied: the alleged conduct on the part of the institution must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T‑199/96 Bergaderm and Goupil v Commission [1998] ECR II‑2805, paragraph 48; see also, with regard to Article 188 EA, Case C‑308/87 Grifoni v Commission [1990] ECR I‑1203, paragraph 6 and the case-law cited). If any one of the conditions governing the non‑contractual liability of the Community is not satisfied, the action must be dismissed and it is unnecessary to examine the other conditions (see Case T‑170/00 Förde‑Reederei v Council and Commission [2002] ECR II‑515, paragraph 37 and the case-law cited).
25 It is appropriate first of all to examine the third argument relied on by the Commission, according to which, first, the applicant has not identified any unlawful action of the Commission which could give rise to non-contractual liability on the part of the Community and, secondly, she is not entitled to demand the initiation of infringement proceedings against the Kingdom of Denmark.
26 As regards identifying the Commission’s alleged unlawful conduct, it must be pointed out that the applicant does not state precisely which measures the Commission unlawfully refrained from taking. The Commission notes, and the applicant does not dispute this, that neither she nor Mr Nochen ever addressed a complaint to the Commission. The applicant does not mention any act or provision which would enable the Commission alone to take measures to ensure the application of Directive 96/29, confining herself to claiming compensation on the basis of the Commission’s non-contractual liability.
27 Even though, in her observations on the plea of inadmissibility, the applicant specifies that her claim is in no way connected to an action for annulment or for a declaration of failure to fulfil obligations, in the present case the only possibility open to the Commission to ensure implementation of the medical monitoring provisions of Directive 96/29 in the case of the workers of Thule, in the sense desired by the applicant, would have been to bring proceedings under Article 226 EC or Article 141 EA against the Kingdom of Denmark.
28 With regard, next, to the allegedly unlawful nature of the failure to bring infringement proceedings, the applicant submits that the fact that the Commission did not intervene to enforce application of the medical monitoring provisions of Directive 96/29 in the case of workers who survived the Thule accident, such as her brother, constitutes a breach of the principles of the duty of care and of good administration. She relies, in that respect, on the Parliament Resolution which requests the Commission to pursue any failure by the Members States to implement the provisions of Directive 96/29.
29 It should be remembered that omissions by the institutions give rise to liability on the part of the Community only when the institutions have infringed a legal obligation to act (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 58, and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 21). Therefore since, according to case-law, the Commission is under no obligation to bring infringement proceedings under Article 226 EC or Article 141 EA, its decision not to bring such proceedings is not unlawful, so that it cannot give rise to non-contractual liability on the part of the Community (orders in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, paragraph 13, and Case T‑202/02 Makedoniko Metro and Michaniki v Commission [2004] ECR II‑181, paragraph 43).
30 The Parliament Resolution relied on by the applicant cannot affect that conclusion. As the Commission correctly noted, a resolution adopted by the European Parliament the content of which, such as that at issue here, is not of a specific and precise decision-making character, does not produce any binding legal effects (see, to that effect, Case 108/83 Luxembourg v Parliament [1984] ECR 1945, paragraphs 19 to 23). In any event, the fact that the Parliament Resolution ‘urges the Commission to pursue … any failure [of the Member States]’ does not impose on it an obligation to bring proceedings under Article 226 EC or Article 141 EA.
31 It follows from all the foregoing considerations that in the present case there was no act or alleged omission by the Commission of an unlawful nature.
32 In those circumstances, the application must be dismissed as manifestly lacking any foundation in law, without there being any need to examine the other conditions governing the non-contractual liability of the Community or its admissibility.
Costs
33 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, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Ms Brigit Lind to pay the costs.
Luxembourg, 24 March 2010.