Case T-338/02

Segi and Others

v

Council of the European Union

(Action for damages – Justice and Home Affairs – Council Common Position – Measures concerning persons, groups and entities involved in terrorist acts – Clear lack of jurisdiction – Action clearly unfounded)

Summary of the Order

1.      Actions for damages – Subject-matter – Claim for compensation for damage arising from a common position – Lack of jurisdiction of the Community judicature – No effective judicial remedy – Council declaration on the right to compensation – Not relevant – Power of the Community judicature to hear an action for compensation based on failure by the Council to observe the powers of the Community

(Arts 5 EU, 34 EU and 46 EU)

2.      European Union – Police and judicial cooperation in criminal matters – Legal basis – Article 34 EU – Obligation to comply with Community provisions

(Art. 61(e) EC; Art. 34 EU; Council Common Position 2001/931/CFSP, Art. 4)

1.      The Court of First Instance clearly has no jurisdiction to hear an action for damages seeking compensation for any damage which may have been caused by a common position based on Article 34 EU since, by virtue of Article 46 EU, no judicial remedy for compensation is available in the context of Title VI of the EU Treaty.

Even if that probably results in there being no effective judicial remedy, that situation cannot in itself give rise to Community jurisdiction in a legal system based on the principle of conferred powers, as follows from Article 5 EU.

The Council declaration on the right to compensation, recorded in the minutes of the meeting during which a common position was adopted, is also inoperative, because it finds no expression in the wording of the provision in question. Nor can that declaration refer to an action before the Community courts without contradicting the judicial system established by the EU Treaty.

By contrast, the Court of First Instance does have jurisdiction over such an action for damages in so far as the applicants allege failure to observe the powers of the Community. The Community courts have jurisdiction to review the content of an act adopted in the context of the EU Treaty in order to ascertain whether that act affects the powers of the Community.

(see paras 33-34, 36, 38-41)

2.      Adoption of a common position by the Council could be unlawful for encroachment on the powers of the Community only if it were to take the place of a measure based on a provision of the EC Treaty the adoption of which was obligatory, alternatively to or accompanying the common position.

A common position providing for police and judicial assistance between Member States pursuant to Article 34 EU cannot be regarded as incompatible with the system of Community powers set out by the EC Treaty, since, irrespective of the question whether measures of that nature could be based on Article 308 EC, Article 61(e) EC explicitly states that the Council is to adopt measures in the field of police and judicial cooperation in criminal matters in accordance with the provisions of the EU Treaty.

(see paras 45-46)