ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)
24 September 2009(*)
(Action for annulment – Time-limits – Manifest inadmissibility – Injunction)
In Case T-110/09,
Mehmet Salih Bayramoglu, residing in Kyrenia (Cyprus), represented by A. A. Riza, QC,
applicant,
v
Council of the European Union,
and
European Parliament,
defendants,
APPLICATION for annulment of Council Decision No 2004/511/EC of 10 June 2004 concerning the representation of the people of Cyprus in the European Parliament in case of a settlement of the Cyprus problem (OJ 2004 L 211, p. 22),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure and form of order sought by the applicant
1 The applicant is a Turkish Cypriot residing in the areas of the Northern part of Cyprus which are not under the effective control of the Government of Cyprus. He claims to be an active member of one of the main opposition parties in the aforementioned areas named “Ulusal Birlik Partisi”. As such, he wishes to stand as a candidate in the European parliamentary elections of 6 June 2009, as a representative of the Turkish Cypriots and submits that accepting six Members of Parliament from the Republic of Cyprus elected exclusively from Greek Cypriots in the areas under its effective control, as representatives of the whole of Cyprus, pending the entry into force of a comprehensive settlement of the Cyprus problem, is contrary to Articles 189 to 191 EC and Articles 5 to 6 EC.
2 By application lodged at the Registry of the Court of First Instance on 18 March 2009, the applicant brought the present action.
3 The applicant claims that the Court should:
– annul Council Decision 2004/511/EC, which by implication, provides that elections guaranteeing the representation and the electoral rights of Turkish Cypriots in elections to be held in the whole of Cyprus can be postponed indefinitely until a comprehensive settlement;
– direct the European Parliament not to admit all six members of Parliament notified by the Republic of Cyprus, after 6 June 2009, but a number the Council considers appropriate.
Law
4 Under Article 111 of the Rules of Procedure of the Court of First Instance, where the action is manifestly inadmissible the Court of First Instance may, without taking further steps in the proceedings, give a decision on the action by reasoned order.
5 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.
6 Under the fifth paragraph of Article 230 EC, proceedings for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter. Under Article 102(1) of the Rules of Procedure, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall run from the end of the 14th day after publication thereof in the Official Journal of the European Union. In accordance with Article 102(2) of the Rules of Procedure, that time-limit is to be extended on account of distance by a single period of 10 days.
7 According to settled case‑law, that period of time is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Court must ascertain of its own motion whether that time-limit was observed (see, inter alia, Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
8 In the present case, it is apparent from the documents before the Court that the disputed measure was published in the Official Journalof the European Communities of 12 June 2004. Accordingly, the application for annulment fell to be brought no later than 6 September 2004. It follows that the application, lodged more than four years after the expiry of the applicable time-limit, is manifestly out of time.
9 In addition, the applicant has not established or even pleaded the existence of unforeseeable circumstances or of force majeure which would allow the Court to vary the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance by virtue of Article 53 of that Statute. Nor has it invoked the occurrence of an excusable error.
10 Furthermore, as regards the second head of claim by which the applicant requests the Court to direct the European Parliament not to admit all six members of Parliament notified by the Republic of Cyprus, it must be emphasised that when exercising judicial review of legality on the basis of Article 230 EC the Community judicature has no jurisdiction to issue directions to Community institutions and bodies or to assume their role (see, inter alia, Joined Cases
T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR 11-3141, paragraph 53).
11 It follows from all of the above considerations that the action must be dismissed as manifestly inadmissible and there is no need for it to be served on the defendant.
Costs
12 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 COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The action is dismissed.
2. The applicant shall bear its own costs.
Luxembourg, 24 September 2009.