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Language of document : ECLI:EU:T:2016:107

Joined Cases T‑546/13, T‑108/14 and T‑109/14

Ante Šumelj and Others

European Commission

(Non-contractual liability — Accession of Croatia to the European Union — Repeal before accession of national legislation providing for the creation of the profession of public bailiff — Harm sustained by the persons previously appointed as public bailiffs — Failure by Commission to adopt measures ensuring compliance with the accession commitments — Sufficiently serious breach of a rule of law conferring rights on individuals — Article 36 of the Act of Accession)

Summary — Judgment of the General Court (Second Chamber), 26 February 2016

1. Non-contractual liability — Infringement by the EU institutions of a statutory duty to act — Failure by the Commission to adopt measures ensuring compliance with accession commitments of the Republic of Croatia concerning its judicial system — Non-adoption of measures preventing the repeal of a Public Bailiffs Act — No obligation on the Commission to act — No illegality rendering the EU non-contractually liable

(Art. 17(1) TEU; Art. 340, second para., TFEU; Act of Accession of 2012, Art. 36 and Annex VII)

2. International agreements — European Union Agreements– Fulfilment by a third country of obligations undertaken — Review by the Commission of the correct application of the agreement

(Art. 17(1) TEU)

3. EU law — Principles — Protection of legitimate expectations — Conditions — Commission not adopting measures preventing a State joining the EU from repealing a law in the context of the reform of its judicial system envisaged in its Act of Accession to the Union — Support of the Commission for the adoption of the law — No obligation on the joining State to maintain the law in force — No legitimate expectations

(Act of Accession of 2012, Art. 36 and Annex VII)

1. In the matter of non-contractual liability of the Union, omissions by the institutions give rise to liability on the part of the European Union only when the institutions have breached a legal obligation to act under a provision of EU law. In that regard, the requirement that there be a breach of a rule of law intended to confer rights on individuals also applies in the case of a wrongful omission.

With regard to the commitments given by the Republic of Croatia in the context of Annex VII of its Act of Accession to the Union, concerning the establishment of an independent and effective judiciary and respect for fundamental rights, only non-compliance with those commitments may place an obligation to act on the Commission. In that regard, concerning commitment 1, which refers generally, without further elaboration, to the Judicial Reform Strategy and Action Plan of the Croatian authorities, that does not give rise to any obligation on the Croatian authorities to establish the function of public bailiff. The Reform Strategy and Action Plan cited in Annex VII to the Act of Accession do not refer to the Judicial Reform Strategy and Action Plan in force at the date of signature of the Accession Treaty providing for the establishment of the function of public bailiff, since, in particular, it frequently happens that, during the period when the accession commitments are being monitored, additional or corrective measures are adopted by the acceding State, particularly where disappointing results are noted by the Commission. It cannot be inferred, however, that the Croatian authorities had unlimited discretion to amend the Judicial Reform Strategy and Action Plan in force at the date of signature of the Act of Accession. In view of the provisions of the Act of Accession, in particular Article 36 and Annex VII, those authorities were required to comply not only with commitment 1 but also with all the other commitments referred to in that annex, including commitments 2, 3, 6 and 9.

As regards commitment 3, that concerns only the efficiency of the judicial system and does not require that power to enforce court decisions be conferred on one body in particular according to pre-defined procedures. The court decision enforcement system in the Member States is not governed by EU law and, accordingly, is not part of the EU acquis that must be adopted by the acceding State. The Treaties, like the Charter of Fundamental Rights of the European Union, fix certain principles that must govern the justice dispensed in the Member States, such as the impartiality of the courts or the presumption of innocence, and also certain rules designed to ensure judicial cooperation between Member States, where necessary by the approximation of the national laws. It thus cannot be inferred from commitment 3 that there was any obligation to entrust the enforcement procedures to public bailiffs. The only obligation imposed on the Croatian authorities is the obligation to ensure the efficiency of enforcement procedures, independently of the means put in place in order to do so.

It therefore does not follow from any of the commitments in Annex VII to the Act of Accession that the Republic of Croatia was under an obligation to establish the profession of public bailiff, or that the Commission was under any obligation to have recourse, on that basis, to the means of action provided for in Article 36 of the Act of Accession in order to prevent the repeal of the Public Bailiffs Act. It also follows that the Commission cannot be criticised for having, by not having recourse to those means of action, approved the amendment of the accession commitments contrary to the Act of Accession and Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, entitled ‘Pacta sunt servanda’. Similarly, in so far as Article 36 of the Act of Accession defines the Commission’s obligations under Article 17 TEU in the context of the accession of the Republic of Croatia to the European Union, Article 17 TEU cannot be considered to have been infringed either.

(see paras 42, 46-49, 51-54, 57, 71)

2. See the text of the decision.

(see para. 70)

3. A person may not plead infringement of the principle of the protection of legitimate expectations in the absence of specific assurances given to him by the administration. Information that is precise, unconditional and consistent which comes from an authorised and reliable source constitutes such an assurance.

As regards the alleged failure by the Commission to adopt measures to ensure compliance with accession commitments entered into by a State having repealed a Public Bailiffs Act, the adoption of which followed the Action Plan for Judicial Reform of the said State, in force at the time of signature of the Act of Accession to the Union and cited in the Act of Accession of that State, the (unsubstantiated) circumstance that the Commission participated in the preparation of the Public Bailiffs Act, financed it, and indeed was at the origin of it cannot in itself constitute a precise assurance given by the Commission that it would regard the establishment of public bailiffs as the only means capable of complying with the accession commitments. In order for such assurances to be established, those acts providing initial support for the Public Bailiffs Act would, having regard to the fact that the joining State was under no obligation to create the profession of Public Bailiff, need to be supplemented by subsequent consistent and explicit acts to that effect.

(see paras 73, 75)