ORDER OF THE GENERAL COURT (Sixth Chamber)
9 July 2012 (*)
(Action for failure to act – Position taken – Application for directions to be issued – Manifest inadmissibility)
In Case T‑382/11,
Cristina Pigui, residing in Strejnic (Romania), represented by M. Alexe, lawyer,
applicant,
v
European Commission, represented by J. Enegren and D. Roussanov, acting as Agents,
defendant,
ACTION for failure to act, seeking a declaration that the European Commission unlawfully failed to define its position on the applicant’s request, first, to initiate, pursuant to Articles 4 and 15 of Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning (OJ 2006 L 327, p. 45), an investigation into the Online Master organised by the European Online Academy (EOA), founded by the Centre international de formation européenne (CIFE), in cooperation with the Jean Monnet Chair at the University of Cologne (Germany), and, second, to take all measures provided for by Article 6 of that decision in order to prevent further illegal conduct, to restore the situation ab initio of those persons affected by such illegal conduct or, at least, in so far as the applicant is concerned, and, lastly, to withdraw the funding for that Master if it fails to comply with key human rights principles, to which reference is made in Article 1(3)(i) of that decision, and relevant principles of European Union law,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, N. Wahl (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Cristina Pigui, was enrolled in an Online Master from 2008 to 2010 which was organised by the European Online Academy (‘EOA’), founded by the Centre international de formation européenne (‘CIFE’), in cooperation with the Jean Monnet Chair at the University of Cologne (Germany).
2 On 23 June 2008, the applicant was informed by EOA’s selection committee that her application to the Online Master had been successful.
3 On 13 October 2010, the applicant addressed a letter of complaint in respect of the Online Master to the Directorate General (DG) for Education and Culture of the European Commission. In her complaint, she referred to the failure of EOA and CIFE to provide legal information on their status and to irregularities concerning marks, examination papers, the marking system and setting a date for the resit examination. The applicant claimed in that regard that the organisers of the Master breached several EU consumer protection directives, the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1), the First Protocol to the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the Online Master 2008/2010 Regulations, published on the Internet. The applicant thus requested that European public funds be withdrawn from the Master at issue.
4 By letter of 18 November 2010, the Commission informed the applicant that its services would examine the various questions raised in the complaint of 13 October 2010 and that it would shortly inform her of the outcome of its investigations.
5 By e-mail of 8 April 2011, on the basis of Article 265 TFEU, the applicant, first, asked the Commission to investigate, in accordance with Articles 4 and 15 of Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning (OJ 2006 L 327, p. 45), the circumstances described in the complaint of 13 October 2010 and whether CIFE has the power to award a ‘European Credit Transfer and Accumulation System (ECTS)’ certificate. Second, the applicant asked the Commission to take all measures provided for by Article 6 of that decision in order to prevent further illegal conduct, to restore the situation ab initio of those persons affected by such illegal conduct or, at least, in so far as the applicant is concerned, and, lastly, to withdraw the funding for that Master if it fails to comply with key human rights principles, to which reference is made in Article 1(3)(i) of that decision, and relevant principles of European Union (‘EU’) law. The applicant claimed in that regard that the Commission was obliged to act pursuant to Articles 6 and 15 of Decision No 1720/2006, point 14 of the annex to that decision, Article 17 TEU, the principle of transparency and the right to information, and Article 38 of the Charter of Fundamental Rights of the European Union.
6 By letter of 15 June 2011, the Commission informed the applicant that, following careful examination by its services of the arguments raised in the complaint of 13 October 2010 and in the e-mail of 8 April 2011, as well as further contact made with CIFE in order to obtain additional information, there was no apparent indication of any failure on the part of CIFE to respect its obligations as regards the treatment of complaints by students.
7 By two further e-mails of 15 and 16 June 2011, the applicant asked the Commission to provide her with the relevant information about EOA, CIFE, the organisation of the Master in question, CIFE’s authority to award a Master’s degree and an ECTS certificate, and also clarification on the involvement of the University of Cologne in the organisation of the Master programme. The applicant also asked the Commission to disclose the results of the investigation requested by e-mail of 8 April 2011 and added that the Commission’s response of 15 June 2011 to that e-mail was too general.
8 By letter of 22 July 2011, the Commission responded to the applicant’s e-mails of 15 and 16 June 2011. In essence, it informed her of the nature of its relationship with CIFE and the fact that the Commission cannot be held responsible for the content and the organisation of the courses offered by CIFE. The Commission also confirmed its previous conclusions concerning CIFE’s observance of its obligations towards students and advised the applicant to contact CIFE directly for further information concerning the Online Master, in particular the involvement of the University of Cologne. The Commission also provided the applicant with general information concerning CIFE and EOA, and the recognition of diplomas and certificates.
Procedure and forms of order sought
9 By application lodged at the Registry of the General Court on 15 July 2011, the applicant brought the present action.
10 In her application, the applicant claims that the Court should:
– order the Commission to disclose information on whether there is a higher education institution, which is authorised by national law of EU Member States to organise and award Masters, involved in the Master at issue as part of the Jean Monnet of Lifelong Learning Programme and, in the negative, to stop spending European public funds on a ‘void Master’, so as to guarantee the non-repetition of its ‘illegal cycle’;
– order the Commission to take measures to ensure that written study contracts are concluded between students and organisers, enclosing written information about the organisers of the Master and the main characteristics of the Master (including the real marking system, the way in which students have access to exam papers and marks, the dates of trimesters, holidays and resits), in so far as it is the Commission’s obligation to prevent further infringements of the principle of transparency;
– order the Commission to take measures to ensure that a single marking system be used for all students during the entire Master period in order to avoid ‘double standards’ in respect of the evaluation of students;
– order the Commission to issue an official statement that the Master at issue did not, so far as concerns the applicant, meet the standards of the Jean Monnet Sub-Programme of Lifelong Learning, restore the applicant’s situation ab initio and issue a decision reimbursing the money that the applicant paid for that Master.
11 Without raising a separate objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court, the Commission, in its defence, contends that the Court should:
– dismiss the action for failure to act as inadmissible;
– order the applicant to pay the costs.
12 By letter of 20 December 2011, by way of a measure of organisation of procedure adopted under Article 64 of the Rules of Procedure, the Court requested the applicant to lodge her observations on the Commission’s defence.
13 In her observations on the Commission’s defence, lodged at the Court Registry on 10 February 2012, the applicant claims that the Court should:
– reject the plea of inadmissibility raised by the Commission;
– declare that the Commission failed to act;
– in the alternative, order the Commission to check and to take measures to prevent further illegal conduct on the Master programme organised by CIFE;
– order the Commission to pay the costs.
Law
14 Article 111 of the Rules of Procedure provides that where the action is manifestly inadmissible, the Court may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.
15 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 ruling without taking further steps in the proceedings.
16 It should be noted at the outset that the present case, brought under Article 265 TFEU, seeks a declaration that the Commission unlawfully failed to act by not taking a position on the applicant’s e-mail of 8 April 2011, inviting the Commission to act upon the circumstances described in her complaint of 13 October 2010. By contrast, the present action does not concern the applicant’s requests, made in her e-mails of 15 and 16 June 2011, which were new in relation to those made in her e‑mail of 8 April 2011.
17 It must be observed that Article 265 TFEU refers to failure to take a decision or to define a position, not to the adoption of a measure different from that desired or considered necessary by the persons concerned (Case 8/71 Deutscher Komponistenverband v Commission [1971] ECR 705, paragraph 2, and Joined Cases C‑15/91 and C‑108/91 Buckl and Others v Commission [1992] ECR I‑6061, paragraph 17). In accordance with the case-law, it must thus be held that the institution may not be regarded as having failed to act not only when it adopts an act in favour of the applicant but also when it refuses to adopt that act but responds to the request made by stating the reasons why that act should not be adopted (order of 17 December 2010 in Case T‑245/10 Verein Deutsche Sprache v Council, not published in the ECR, paragraph 15) or that it is not competent to do so (order in Case T‑3/02 Schlüsselverlag J. S. Moser and Others v Commission [2002] ECR II‑1473, paragraphs 19 to 24, and order in Verein Deutsche Sprache v Council, paragraph 15).
18 It must be borne in mind that, under Article 165 TFEU, the EU is to contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. As regards Article 166(1) TFEU, it provides that the EU is to implement a vocational training policy which is to support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
19 It is clear from Article 4 of Decision No 1720/2006, that the Lifelong Learning Programme is directed at, inter alia, institutions or organisations providing learning opportunities within the context of the Lifelong Learning Programme, or within the limits of its sub-programmes. According to Article 3(3)(b) of that decision, the Jean Monnet sub-programme supports institutions and activities in the field of European integration by operating grants to support specified institutions dealing with issues relating to European integration. Article 5(1)(g) of that decision provides that the grants are to support certain operational and administrative costs of those institutions. Pursuant to Article 36(2)(f) of that decision, CIFE is one of the institutions supported by such grants.
20 Admittedly, under Articles 15(1) and 6(1) of Decision No 1720/2006, the Commission, in cooperation with the Member States, is required to monitor and evaluate regularly the Lifelong Learning Programme against its objectives and to ensure the effective and efficient implementation of the actions provided for by that programme.
21 It remains the case however that, contrary to the applicant’s claims, under Articles 4, 6(1) and (3) and 15(1) of Decision No 1720/2006, the Commission is not bound to investigate a Master programme, such as the Master at issue in the present case, which is supported by operating grants from the EU under the Jean Monnet programme, in response to a request from a person enrolled on that Master, who alleges illegal conduct with regard to the lack of information provided on the status and powers of the organisers of the Master and on the internal organisation and management thereof, which was prejudicial to her and breached, inter alia, several EU consumer protection directives, the Charter of Fundamental Rights of the European Union and the First Protocol to the European Convention on Human Rights and Fundamental Freedoms.
22 Moreover, under Decision No 1720/2006, the Commission has no power in respect of the processing and the resolution of irregularities raised by the applicant concerning, in essence, the internal organisation and management of the Master at issue for which EOA and CIFE are responsible. The Commission is therefore not competent to restore the situation ab initio of those persons, such as the applicant, allegedly affected by illegal conduct on the part of EOA and CIFE.
23 Admittedly, pursuant to Article 6(3) of Decision No 1720/2006, the Commission, in cooperation with Member States, must ensure the adequate protection of the European Communities’ financial interests. In that regard, the Commission may, under paragraph 14, subparagraph 6 of the annex to that decision, carry out on‑the-spot checks and inspections. The seventh subparagraph of paragraph 14 of that annex provides that, for the Community actions financed under that decision, the notion of irregularity referred to in Article 1(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p.1), means any infringement of a provision of Community law or any breach of a contractual obligation resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the European Communities or allocations managed by them, by an unjustified item of expenditure.
24 It follows that, while irregularities resulting from an infringement of an EU law provision or from a breach of a contractual obligation, which would undermine the EU’s financial interests, may lead the Commission to carry out checks and inspections and, possibly, to withdraw the operating grants from CIFE, possible irregularities in respect of the management and organisation of a study programme which could allegedly be prejudicial to the individual interests of a person enrolled on that programme, as in the present case, cannot in any way be subject to such checks and inspections carried out by the Commission.
25 In the present case, it must be found that, in its letter of 15 June 2011, the Commission informed the applicant, first, that its services had examined her arguments and had made further contact with CIFE in order to obtain additional information, second, that, following careful examination of the situation, its services concluded that there was no apparent indication of any failure on the part of CIFE to respect its obligations as regards the treatment of complaints from students and, lastly, that, notwithstanding the fact that it was possible for the applicant to bring proceedings at national level, so far as she is concerned, no further action need be taken in the present case. The Commission therefore examined the situation described by the applicant and informed her of the reasons justifying its conclusion. In the light of those factors and the case-law cited above in paragraph 17, it must be held that the Commission’s letter of 15 June 2011 amounts to a clear and sufficiently detailed definition of its position in response to the applicant’s request for the Commission to act upon the circumstances described in her complaint of 13 October 2010 and in her e-mail of 8 April 2011.
26 Moreover, even though it can no longer be regarded as having failed to act with regard to the applicant’s request for it to act, based on her complaint of 13 October 2010 and in her e-mail of 8 April 211, the Commission adduced, in its letter of 22 July 2011, additional information concerning the limits of its competence in respect of the situation described in that complaint and the requests made in that e-mail.
27 In its letter of 22 July 2011, responding to the applicant’s requests made in her e‑mails of 15 and 16 June 2011, the Commission informed her of the nature of the relationship of the Commission with CIFE, reminding her of Decision No 1720/2006 and the relevant provisions in that regard, that is to say Article 5(1)(g) and Article 36(2). The Commission also informed the applicant that it cannot be held responsible for the content or the organisation of the courses offered by CIFE. In addition, so far as concerns the applicant’s request relating to the way in which the CIFE deals with academic and administrative issues, the Commission upheld its previous conclusions concerning the respect by CIFE of its obligations towards students and informed the applicant, on the basis of the information available to it, of the internal complaints procedure which is both prompt and transparent. The Commission also provided general information concerning CIFE and EOA, as well as the recognition of diplomas and certificates.
28 It follows from all the foregoing that it must be held, in accordance with the case‑law cited above in paragraph 17, that the Commission cannot in any way be regarded as having failed to act, within the meaning of Article 265 TFEU. The claim that the Commission failed to act must therefore be rejected as manifestly inadmissible.
29 Lastly, so far as concerns the claim that the Court should issue directions to the Commission, it must also be rejected as manifestly inadmissible. In accordance with the case-law, it is not, in principle, for the EU judicature to issue directions to the institutions. This is particularly the case in the context of judicial review, where the administration concerned is under a duty to take the necessary measures to comply with the judgment of the Court, and applies to both actions for annulment and actions for failure to act (Case T‑74/92 Ladbroke Racing v Commission [1995] ECR II‑115, paragraph 75; and order of in Verein Deutsche Sprache v Council, paragraph 18).
30 In those circumstances, the present action must be dismissed as manifestly inadmissible.
Costs
31 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. As 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 (Sixth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Cristina Pigui shall pay the costs.
Luxembourg, 9 July 2012.