ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
26 September 2008 (*)
(Application for interim measures – Directive 94/57/EC – Common rules and standards applicable to ship inspection and survey organisations – Withdrawal of recognition granted to such an organisation – Application for suspension of operation of a measure – Inadmissibility)
In Case T‑312/08 R,
Ellinikos Niognomon AE, established in Piraeus (Greece), represented by S. Pappas, lawyer,
applicant,
v
Commission of the European Communities, represented by H. Krämer and N. Yerrell, acting as Agents,
defendant,
APPLICATION for suspension of operation of a letter from the Commission withdrawing the recognition granted to the applicant by Commission Decision 2005/623/EC of 3 August 2005 on the extension of the limited recognition of the Hellenic Register of Shipping (Ellinikos Niognomon AE) (OJ 2005 L 219, p. 43),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background to the dispute
1 The applicant, Ellinikos Niognomon AE, is an international non-governmental organisation dedicated to the safeguarding of life and property at sea, prevention of marine pollution and quality assurance in industry. Since its foundation in 1870, it has developed a network of survey offices worldwide. Its activities, including surveys and classification of all types of vessels, are governed by Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ 1994 L 319, p. 20), as amended by, inter alia, Directive 2001/105/EC of the European Parliament and of the Council of 19 December 2001 (OJ 2002 L 19, p. 9) and Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 (OJ 2002 L 324, p. 53) (‘the Directive’).
2 The Directive established a system of Community-wide recognition of organisations which, in compliance with the international conventions on maritime safety and prevention of marine pollution, may be authorised to inspect ships and issue the relevant safety certificates on behalf of the Member States. The Council took the view that the objective of submitting such organisations to adequate standards could be better achieved at Community level than at national level, with the result that the appropriate way to act was by means of a Community directive laying down minimum criteria for recognition of such organisations, while leaving recognition itself, the means of enforcement, and the implementation of the Directive to the Member States. Thus, the Directive establishes measures to be followed by the Member States and organisations concerned with the inspection, survey and certification of ships for compliance with the abovementioned international conventions, while furthering the objective of freedom to provide services.
3 Article 3(2) of the Directive provides that, where a Member State decides, with respect to ships flying its flag, to authorise organisations to undertake inspections and surveys related to certificates and, where appropriate, to issue or renew the related certificates, or to rely upon organisations to undertake those inspections and surveys, it is to entrust those duties only to recognised organisations.
4 Article 4 of the Directive provides:
‘1. Member States which wish to grant an authorisation to any organisation which is not yet recognised shall submit a request for recognition to the Commission together with complete information on, and evidence of, compliance with the criteria [laid down]. The Commission, together with the respective Member States submitting the request, shall carry out assessments of the organisations for which the request for recognition was received in order to verify that the organisations meet and undertake to comply with the [stated] requirements. A decision on recognition shall take into account the safety and pollution prevention performance records of the organisation, referred to in Article 9. Recognition shall be granted by the Commission in accordance with the procedure referred to in Article 7(2).
2. Member States may submit to the Commission special requests for a limited recognition of three years … The same procedure as that referred to in paragraph 1 will apply to these special requests with the exception that the criteria … for which compliance has to be assessed during the assessment carried out by the Commission, together with the Member State, shall be … [specific] criteria ... The effects of these limited recognitions shall be limited exclusively to the Member State or States which have submitted a request for such recognition.
3. All the organisations which are granted recognition shall be closely monitored by the committee set up under Article 7, particularly those referred to in paragraph 2 above, with a view to possible decisions concerning whether or not to extend the limited recognition. With regard to these latter organisations, a decision on the extension of such recognition … shall take into account the safety and pollution prevention performance records of the organisation, referred to in Article 9(2). Any decision on the extension of the limited recognition shall specify under which conditions, if any, such extension is granted.
4. The Commission shall draw up and update a list of the organisations recognised in compliance with paragraphs 1, 2 and 3. The list shall be published in the Official Journal of the European Communities.
…’
5 Under Article 7 of the Directive, the Commission is to be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships.
6 Article 9 of the Directive provides as follows:
‘1. The recognition of organisations referred to in Article 4 which no longer fulfil the criteria set out in the Annex or which fail to meet the safety and pollution prevention performance records mentioned in paragraph 2 shall be withdrawn. The withdrawal of recognition shall be decided by the Commission in accordance with the procedure referred to in Article 7(2), after the organisation concerned has been given the opportunity to submit its observations.
2. In preparing drafts for a decision relating to the withdrawal of recognition as referred to in paragraph 1, the Commission shall take into account the outcome of the assessments of the recognised organisations referred to in Article 11 as well as the safety and pollution prevention performance records of the organisations, measured for all the ships they have in class irrespective of the flag the ships fly.
…
The Committee set up under Article 7 shall determine the criteria to be followed in order to decide, on the basis of the information referred to in this paragraph, when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and the environment.
Draft decisions relating to the withdrawal of recognition as referred to in paragraph 1 shall be submitted to the Committee by the Commission upon its own initiative or at the request of a Member State.’
7 Article 11 of the Directive states:
‘1. Each Member State must satisfy itself that the recognised organisations acting on its behalf for the purpose of Article 3(2) effectively carry out the functions referred to in that Article to the satisfaction of its competent administration.
2. Each Member State shall carry out this task at least on a biennial basis and shall provide the other Member States and the Commission with a report of the results of this monitoring at the latest by 31 March of each year following the years for which compliance has been assessed.
3. All the recognised organisations shall be assessed by the Commission, together with the Member State which submitted the relevant request for recognition, on a regular basis and at least every two years to verify that they fulfil the criteria [laid down]. In selecting the organisations for assessment, the Commission shall pay particular attention to the safety and pollution prevention performance records of the organisation … The assessment may include a visit to regional branches of the organisation as well as random inspection of ships for the purpose of auditing the organisation’s performance. In this case the Commission shall, where appropriate, inform the Member States where the regional branch is located. The Commission shall provide the Member States with a report of the results of the assessment.
4. Each recognised organisation shall make available the results of its quality system management review to the Committee set up under Article 7, on an annual basis.’
8 By Decision 2001/890/EC of 13 December 2001 on the recognition of the Hellenic Register of Shipping (Ellinikos Niognomon) in accordance with Article 4(3) of the Directive (OJ 2001 L 329, p. 72), the Commission granted the applicant recognition as a ship inspection and survey organisation, for a period of three years, that recognition having effect only in Greece.
9 By Decision 2005/623/EC of 3 August 2005 on the extension of the limited recognition of the Hellenic Register of Shipping (Ellinikos Niognomon) (OJ 2005 L 219, p. 43), the Commission extended for a period of three years, with effect from 3 August 2005, the recognition granted to the applicant by Decision 2001/890, extending its effects to Cyprus. Subsequently, by Decision 2006/382/EC of 22 May 2006 (OJ 2006 L 151, p. 31), the Commission extended the effects of the applicant’s recognition to Malta.
10 By letter of 12 May 2008, the applicant reminded the Commission that its limited recognition was due to expire in August 2008 and urged the Commission to take the necessary measures for the timely renewal and/or extension of that recognition. By letter of 6 June 2008, the Greek authorities supported that application.
11 By letter dated 17 June 2008, the Directorate-General (DG) for Energy and Transport of the Commission informed the applicant that its services had completed the periodic assessment of the applicant and that that assessment had revealed a significant number of serious systemic shortcomings in the organisation, which concerned the majority of the criteria in the Directive. Some of these shortcomings, such as those concerning the training and qualification of surveyors, had proved to be recurrent over several assessments despite the remedial action repeatedly promised by the applicant. Consequently, it had not been possible for the Commission’s services to establish that the applicant met the criteria laid down in the Directive. The applicant was therefore invited to submit observations and to attend a meeting with the Energy and Transport DG of the Commission.
12 At meetings on 20 June and 17 July 2008 with the Energy and Transport DG and in its letter of 1 July 2008 sent to that DG, the applicant defended its position and made a number of observations intended, inter alia, to explain that the deficiencies noted by the Commission services were of minor importance and did not justify a negative decision on the extension of its limited recognition.
13 By letter of 24 July 2008 signed by the Deputy Director-General of the Energy and Transport DG (‘the contested letter’), the applicant was informed that the Commission’s services, after having examined the observations submitted by the applicant in its letter of 1 July 2008 and at the meeting on 17 July 2008, had concluded that the applicant did not meet the criteria laid down in the Directive and was not correctly fulfilling its obligations imposed thereby, that the applicant’s safety and pollution prevention performance records remained significantly worse than the average of the recognised organisations and that the necessary conditions for the extension or renewal of the applicant’s limited recognition in accordance with Article 4 of the Directive were not met at that time. It was stated at the end of the contested letter that the Governments of Greece, Malta and Cyprus would be informed accordingly.
Procedure and forms of order sought
14 By application lodged at the Court Registry on 13 August 2008, the applicant brought an action seeking annulment of the contested letter.
15 By separate document lodged at the Court Registry on the same day, the applicant made the present application for interim measures, in which it submits, essentially, that the President of the Court should:
– suspend the effects of the contested letter, pursuant to Article 105(2) of the Rules of Procedure of the Court of First Instance, pending adoption of an order bringing the present interim proceedings to an end and, in any event, until the Court has definitively ruled on the main application;
– order the Commission to pay the costs.
16 In its written observations on the application for interim measures, lodged at the Court Registry on 1 September 2008, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– reserve the order as to costs.
17 On 10 September 2008, the President of the Court put questions to the Commission, which provided written replies within the period prescribed. By a pleading dated 19 September 2008, the applicant submitted its comments on the Commission’s observations.
Law
18 Under Articles 242 EC and 243 EC, in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order that application of an act contested before it be suspended or prescribe any necessary interim measures.
19 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency, and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, with the result that an application for interim measures must be dismissed if any one of them is not satisfied (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30). Where appropriate, the judge hearing the application must also weigh up the interests involved (see the order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73 and the case-law cited).
20 In addition, in the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed (orders of the President of the Court of Justice in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, paragraph 25).
21 Having regard to the documents in the case, the President of the Court considers that he has all the material necessary in order to rule on the present application for interim measures and that no purpose would be served by first hearing oral argument from the parties. In the circumstances of the case, it is appropriate first to address the issues of admissibility raised by the Commission.
22 The Commission submits that the main action is manifestly inadmissible as the contested letter cannot be regarded as a challengeable act under Article 230 EC. Far from producing binding legal effects liable to affect the applicant’s interests, the contested letter, which emanates solely from the Commission’s services, states clearly that it contains merely an assessment by those services as to the applicant’s compliance with the requirements of the Directive. Such an assessment should be carried out jointly with the authorities of the Member States concerned (Article 4 of the Directive). It is therefore evident that the contested letter, in so far as it contains an assessment made by the Commission’s services alone, cannot be classified as a definitive decision of the College of Members of the Commission, since the national authorities involved (Greek, Cypriot and Maltese) have not yet stated their positions in that regard.
23 In the view of the Commission, even if one were to assume that the contested letter is a decision against which an action for annulment could be brought, the application for interim measures would still be inadmissible since it relates to a negative decision.
24 In that regard, suffice it to recall that the limited recognition enjoyed by the applicant was granted to it, most recently, by Decision 2005/623 (see paragraph 9 above). Article 1 of that decision, adopted on 3 August 2005, expressly provides that the limited recognition of the applicant granted by Decision 2001/890 ‘is extended for a period of three years as from the date of adoption of this Decision’. It follows that, failing timely adoption of a fresh decision to renew or extend that recognition, its validity was to expire on 3 August 2008.
25 With regard to the contested letter, dated 24 July 2008, even if one were to suppose that it produced binding legal effects liable to affect the applicant’s interests by bringing about a distinct change in its legal position (see, to that effect, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9) and could therefore be classified as a decision for the purposes of the fourth paragraph of Article 230 EC, the fact remains, as the Commission has rightly pointed out, that it would be a decision refusing to grant renewal or extension of the recognition enjoyed by the applicant. That decision of refusal would therefore be purely negative.
26 In accordance with established case-law, in principle, there can be no application to suspend the operation of a negative administrative decision, since the granting thereof cannot have the effect of changing the position of the applicant (orders of the President of the Second Chamber of the Court of Justice in Case C-206/89 R S. v Commission [1989] ECR 2841, paragraph 14, and of the President of the Court of Justice in Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR I‑2327, paragraph 45; order of the President of the Court in Case T‑369/03 R Arizona Chemical and Others v Commission [2004] ECR II‑205, paragraph 62).
27 In the present case, suspension of operation of that decision of refusal would be of no practical use to the applicant, inasmuch as such suspension of operation could not take the place of a positive decision granting the application for renewal or extension of the recognition at issue, given that the validity of that recognition had expired by 13 August 2008, the date on which the present application for interim measures was brought. In those circumstances, the application for interim measures cannot achieve the objective attributed to it by the applicant.
28 Should it be necessary to interpret the application for interim measures as meaning that the applicant seeks to obtain an order from the judge hearing the application that the Commission grant the extension or renewal at issue, such a measure would clearly constitute disregard for the system of the division of powers established by Article 233 EC, in accordance with which the Commission is required to adopt those measures necessary to comply with a judgment annulling one of its decisions (see, to that effect, the order in Arizona Chemical and Others v Commission, cited in paragraph 26 above, paragraph 67). The Community Courts cannot take the place of the Commission in order to adopt, in those circumstances, decisions instead and in place of the executive (see, by analogy, order of the Court of Justice in Case 50/69 R Germany v Commission [1969] ECR 449, at 451).
29 Moreover, even if the court hearing the main application were to uphold the action in the main proceedings, it appears, at the present stage of the proceedings, that the Commission could refuse to renew or extend the recognition of the applicant for reasons other than those which the Court might censure, even if only after having assessed jointly with the national authorities involved whether the applicant effectively satisfied the conditions laid down by the Directive.
30 It follows from the foregoing that the application for interim measures must be dismissed as inadmissible, without it being necessary to consider the question of the possible inadmissibility of the main proceedings with which the present application is connected, and irrespective of any decisions adopted by the national authorities designed to take account of the contested letter.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 26 September 2008.