ORDER OF THE GENERAL COURT (Fourth Chamber)
17 December 2012 (1)
(Actions for failure to act – No initiation of the procedure for failure to fulfil obligations – Action for a general declaration – Action for damages – Manifest inadmissibility – Action manifestly unfounded in law)
In Case T-521/12,
Meir Shai, residing in Bucharest (Romania), represented by R. Neagu, lawyer,
applicant,
v
European Commission,
defendant,
APPLICATION for a general declaration that the European Union, represented by the Commission, has infringed the Treaty of Lisbon by admitting Romania on 1 January 2007 and that the Commission has failed to act in not initiating the procedure for failure to fulfil obligations laid down in Article 258 TFEU against Romania for alleged violations of the property rights of the applicant, as well as an action for damages seeking compensation for the alleged damages suffered by the applicant as a result of such violations,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe, M. van der Woude, Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure and form of order sought by the applicant
1 By application lodged at the Registry of the Court on 29 November 2012, the applicant brought the present action.
2 The applicant claims that the Court should:
– Declare that the Commission’s failure to act “consists in covering up the crime against humanity against millions of Romanians under pretext of supporting human protection and promotion and proper administration of justice by unsuccessfully […] monitoring the devastating situation, [drafting] false reports on [the] Romanian justice [system and turning] a blind eye on what really [occurs in Romania]”;
– Order the Commission to pay damages to the applicant for the said infringement committed by the Commission.
Law
3 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible the Court may, without taking further steps in the proceedings, give a decision on the action by reasoned order.
4 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 without taking further steps in the proceedings.
5 In the present case it can be understood, in essence, that the applicant seeks, by its application, a declaration from the Court that the Commission has failed to act in not initiating the infringement procedure laid down in Article 258 TFEU against Romania.
6 It should be noted that, according to settled case law, an action is inadmissible where it is brought by a natural or legal person for a declaration that, by not initiating infringement proceedings against a Member State, the Commission has failed to act and thereby breached the Treaty (Case 247/87 Star Fruit v Commission [1989] ECR 291, and order in Case T‑47/96 SDDDA v Commission [1996] ECR II‑1559, paragraph 41). Natural or legal persons may rely on the third paragraph of Article 265 TFEU only in order to challenge the failure of an institution, a body, an office or an agency of the European Union, in breach of the Treaty, to adopt measures, other than recommendations or opinions, of which they are potential addressees or which are of direct and individual concern to them (see, by analogy, Case C‑68/95 T. Port [1996] ECR I‑6065, paragraphs 58 and 59).
7 In the context of an action for failure to fulfil obligations under Article 258 TFEU, also known as the infringement procedure, the only measures which the Commission may adopt are measures addressed to Member States (orders in Joined Cases T‑479/93 and T‑559/93 Bernardi v Commission [1994] ECR II‑1115, paragraph 31, and Case T‑117/96 Intertronic v Commission [1997] ECR II‑141, 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 and individual concern to natural or legal persons.
8 It follows that the applicant’s application for a declaration that the Commission infringed the Treaty in failing to initiate against a Member State the procedure for failure to act, also known as the infringement procedure, must be rejected as manifestly inadmissible.
9 For the sake of completeness, to the extent that the applicant seeks a general declaration that the European Union, represented by the Commission, has infringed the Treaty of Lisbon by admitting Romania on 1 January 2007, it should be noted that in proceedings before the Courts of the European Union, 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).
10 In addition, the applicant seeks in the present case an order from the Court that the Commission should pay damages for the failure to act against Romania.
11 As regards compensation for the loss which the applicant claims to have sustained on account of the Commission’s alleged failure to act, it is to be noted that, since the Commission is not bound to commence infringement proceedings under Article 258 TFEU, its decision not to institute such proceedings is not unlawful, so that it cannot give rise to non-contractual liability on the part of the European Union (see, to that effect, order in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, paragraph 13, and order in Case T‑202/02 Makedoniko Metro and Michaniki v Commission [2004] ECR II‑181, paragraph 43).
12 Consequently, the Court, without even considering its admissibility, must reject as manifestly lacking any foundation in law the applicant’s claim for compensation for the loss which it alleges it sustained following the Commission’s supposed failure to act, consisting in the decision not to institute infringement proceedings.
13 It follows from the above considerations that the present action must be rejected in part as manifestly inadmissible and in part as manifestly lacking any foundation in law, without the need for it to be served on the defendant.
Costs
14 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 its own costs pursuant to Article 87(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. The action is dismissed.
2. The applicant shall pay its own costs.
Luxembourg, 17 December 2012.