ORDER OF THE COURT (Sixth Chamber)
4 June 2015 (*)
(Appeal — Complaint concerning termination of a contract for the supply of transformers concluded between the appellant and a Greek public undertaking — Failure of a Member State to fulfil obligations — Commission’s refusal to bring an action for failure to fulfil obligations)
In Case C‑602/14 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 December 2014,
Bharat Heavy Electricals Ltd, established in New Delhi (India), represented by A. Mc Donagh, avocat,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of S. Rodin, President of the Chamber, A. Borg Barthet (Rapporteur), and F. Biltgen, Judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a ruling by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 By its appeal, Bharat Heavy Electricals Ltd (‘the appellant’) asks the Court of Justice to set aside the order of the General Court of the European Union of 21 October 2014 in Bharat Heavy Electricals v Commission (T‑374/14, EU:T:2014:931; ‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible the appellant’s action seeking annulment of the Commission’s decision of 28 February 2014 refusing to bring an action against the Hellenic Republic for a declaration of failure to fulfil obligations under Article 258 TFEU (‘the contested decision’).
Background to the proceedings
2 On 2 August 2012 the appellant filed a complaint with the European Commission, registered on 17 August 2012 under No CHAP(2012)02420, against the Hellenic Republic for breach of EU law, in particular of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1). In support of its complaint, the appellant claimed that the termination of the contract for the supply of transformers, concluded between the appellant and a Greek public undertaking following a tendering procedure, was unlawful both under the national law applicable to the contract and under EU law.
3 By letter of 12 November 2013, the Commission, in reply to the appellant, stated that no irregularity concerning the rules of procedure for public procurement emerged from the documents submitted as part of its complaint. The Commission also stated that it would close the file on the complaint unless the appellant could provide substantial new evidence within a specified period.
4 By letter of 3 January 2014 the appellant reiterated its complaint, adding that, contrary to what was suggested in the call for tenders in question, the latter did not in fact relate to the supply of a type of existing material, but to research and development services for the supply of a type of material, satisfying certain technical specifications, which did not exist at the time of publication of that call for tenders. Since the Hellenic Republic had failed to verify, before it imposed them in the contract, whether or not the technical specifications at issue were achievable in the light of the technical knowledge existing at the time, it would subsequently have been obliged to amend that contract in the course of its performance so as to take that circumstance into account, which would have been contrary to the EU directives on procedures for the award of public contracts.
5 By letter of 28 February 2014, the Commission informed the appellant that the information contained in the letter of 3 January 2014 had provided it with no reason to reconsider the position taken in its letter of 12 November 2013, and that accordingly the file on the complaint had been closed on 26 February 2014.
The proceedings before the General Court and the order under appeal
6 By application lodged at the General Court Registry on 19 May 2014, the appellant brought an action for annulment of the contested decision.
7 By the order under appeal, the General Court dismissed that action as being manifestly inadmissible.
8 At paragraph 8 of that order the General Court stated, first, that the contested decision had to ‘be interpreted as an expression of the Commission’s refusal to bring proceedings under Article 258 TFEU against the Hellenic Republic for an alleged failure to fulfil its obligations in respect of Directive 2004/17/EC’.
9 Next, the General Court referred, at paragraphs 9 and 10 of that order, to the settled case-law according to which private individuals are not entitled to bring proceedings against a refusal by the Commission to institute proceedings against a Member State for failure to fulfil its obligations. It stated that when, as in the present case, a decision of the Commission amounts to a rejection, that decision has to be appraised in the light of the nature of the request to which it constitutes a reply.
10 Lastly, at paragraph 11 of the order under appeal, the General Court stated that, as set out in the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct or individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. In that regard, at paragraph 12 of that order, it noted that, in the context of proceedings for a declaration for failure to fulfil obligations governed by Article 258 TFEU, the only measures which the Commission may adopt are measures addressed to Member States. Furthermore, according to the General Court, neither the reasoned opinion, which is merely a preliminary stage following which an action may be brought before the Court for a declaration of failure to fulfil obligations, nor the commencement of proceedings before the Court by the actual lodging of such an action can be regarded as acts which are of direct concern to natural or legal persons.
11 In those circumstances the General Court concluded, at paragraph 13 of the order under appeal, that the appellant’s request for annulment of the contested decision had to be rejected as manifestly inadmissible, without there being any need to serve notice of the action on the Commission.
Form of order sought on appeal
12 By its appeal, the appellant claims that the Court should:
– set aside the order under appeal;
– refer the case back to the General Court for a substantive hearing of the action for annulment; and
– order the Commission to pay the costs.
The appeal
13 Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
14 In the present case, the Court considers that it has sufficient information from the documents before it and decides, pursuant to the abovementioned Article 181, having heard the Advocate General, to give a decision on the action by reasoned order without taking further steps in the proceedings.
15 In support of its appeal the appellant puts forward, in essence, two grounds of appeal alleging, respectively, a failure to state reasons vitiating the order under appeal and an error of law by the General Court in holding that the contested decision did not concern the appellant directly and individually.
The first ground of appeal
16 By its first ground of appeal, the appellant contends that the General Court did not, in the order under appeal, rule on all the pleas in law that it had raised but wrongly took the view that its annulment application was limited to challenging the unlawfulness of the Commission’s refusal to bring proceedings against the Hellenic Republic for failure to fulfil its obligations. However, it submits, in its application initiating proceedings it put forward several grounds based not only on infringement of Article 258 TFEU but also on infringement of Article 17 TEU, of Directive 2004/17, of EU agreements on international trade, of the right to be heard set out in Article 41 of the Charter of Fundamental Rights of the European Union, and of the Code of Good Administrative Behaviour.
17 According to established case-law, the obligation on the General Court, under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and Article 81 of the Rules of Procedure of the General Court, to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The Court’s reasoning may, therefore, be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, judgment in Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 64, and order in Donaldson Filtration Deutschland v ultra air, C‑450/13 P, EU:C:2014:2016, paragraph 48).
18 It should be noted in the present case that the pleas advanced by the appellant before the General Court on the basis of provisions other than Article 258 TFEU were also designed to challenge the contested decision and that the General Court took the view, in accordance with settled case-law, that private individuals are not entitled to bring proceedings against a refusal by the Commission to institute proceedings against a Member State for failure to fulfil its obligations (orders in Asia Motor France v Commission, C‑29/92, EU:C:1992:264, paragraph 21 and the case-law cited; Grúas Abril Asistencia v Commission, C‑521/10 P, EU:C:2011:418, paragraph 29; and Altner v Commission, C‑411/11 P, EU:C:2011:852, paragraphs 8 to 10). There was, therefore, no need for the General Court to consider those other pleas, the action being inadmissible in its entirety because of the very purpose of the decision against which it was directed.
19 The first ground of appeal must, therefore, be rejected as manifestly unfounded.
The second ground of appeal
20 By its second ground of appeal, the appellant submits that the General Court erred in law in taking the view that the contested decision did not concern the appellant directly and individually. Furthermore, the appellant considers that the General Court made assertions in that regard and that it did not give reasons for that finding. However, it contends, the contested decision has legal effects in relation to the appellant and affects it directly and individually. The appellant also argues that the reasoning of the General Court, at paragraph 12 of the order under appeal, is inconsistent inasmuch as the second sentence of that paragraph does not follow from the first sentence and does not refer to the Court’s case-law.
21 As has been stated at paragraph 18 of the present order, a private individual is not entitled to bring proceedings against a refusal by the Commission to take action against a Member State for failure to fulfil obligations.
22 Moreover, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
23 As the General Court rightly considered at paragraph 12 of the order under appeal, in the context of proceedings for a declaration of failure to fulfil obligations governed by Article 258 TFEU, the only measures which the Commission may adopt are measures addressed to Member States (order in H-Holding v Commission, C‑235/12 P, EU:C:2013:132, paragraph 13). It should be noted in this respect that, by the contested decision, the Commission limited itself to informing the appellant of its stance as far as the Hellenic Republic was concerned, namely, its refusal to bring proceedings against that Member State for failure to fulfil obligations.
24 In relation to the appellant’s arguments concerning paragraph 12 of the order under appeal, it is clear from the scheme of Article 258 TFEU that the Commission is not obliged to commence the proceedings provided for in that provision but has, in this regard, a discretion which excludes the right for individuals to require that institution to adopt a specific position (judgments in Star Fruit v Commission, 247/87, EU:C:1989:58, paragraph 11, and in Sonito and Others v Commission, C‑87/89, EU:C:1990:213, paragraph 6). The other grounds of the order under appeal, beginning with the adverbial phrase ‘furthermore’, are included for the sake of completeness in relation to the main ground previously set out. Arguments against grounds included for the sake of completeness are ineffective (see, to that effect, judgments in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 148, and in OHIM v Celltech, C‑273/05 P, EU:C:2007:224, paragraphs 56 and 57).
25 In the light of the foregoing, the General Court was fully entitled to hold, at paragraph 13 of the order under appeal, that the appellant’s request for a declaration that the Commission had unlawfully refused to bring proceedings for failure to fulfil obligations against the Hellenic Republic under Article 258 TFEU was manifestly inadmissible.
26 In those circumstances, the second ground of appeal must be rejected and, consequently, the appeal must be dismissed in its entirety as being manifestly unfounded.
Costs
27 Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In the present case, as the present order has been adopted without notice of the appeal having been served on the Commission, it is appropriate to hold that the appellant is to bear its own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed.
2. Bharat Heavy Electricals Ltd shall bear its own costs.
[Signatures]
* Language of the case: English.
Full & Egal Universal Law Academy