T-479/93

ORDER OF 29. 11. 1994 — CASES T-479/93 AND T-559/93

O R D E R O F T H E C O U R T OF FIRST INSTANCE (Fourth Chamber) 29 November 1994 *

In Cases T-479/93 and T-559/93,

Giorgio Bernardi, residing in Luxembourg, represented by Stefano Giorgi, of the Rome Bar, with an address for service in Luxembourg at 5 Rue des Bains,

applicant,

v

declaration that the Commission has failed to initiate the said procedure against the Grand Duchy of Luxembourg, thereby infringing Article 175 of the EEC Treaty; for an order requiring the Commission to initiate that procedure; for a declaration that the Luxembourg authorities have infringed Community law; and for recogni- tion of the applicant's entitlement to compensation for the damage which he claims to have suffered,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Fourth Chamber),

composed of: K. Lenaerts, President, R. Schintgen and R. Garcia-Valdecasas, Judges,

Registrar: H. Jung,

makes the following

Order

3 Between October 1988 and February 1989, the applicant attended courses in Luxembourg law organized in the context of his legal traineeship. O n 27 January 1990, he was admitted to the next stage of that traineeship.

4 O n 27 February 1990, the Luxembourg Minister of National Education rejected M r Bernardi's application, dated 30 June 1989, for approval of his diploma.

s By decision of 5 March 1990, the Luxembourg Bar Council refused to admit the applicant to the Luxembourg Bar's list of trainee lawyers. O n 5 April 1990, the applicant brought an action against that decision, in which he asked the national court to seek a preliminary ruling from the Court of Justice pursuant to Article 177 of the E E C Treaty. The action and the application seeking a reference for a preliminary ruling were dismissed.

II-1120

BERNARDI v COMMISSION

6 On 10 September 1990, the applicant brought an action before the Luxembourg Council of State for the annulment of the Ministerial Decision of 27 February 1990, in which he also asked the national court to seek a preliminary ruling from the Court of Justice pursuant to Article 177 of the E E C Treaty. The action and the application seeking a reference for a preliminary ruling were dismissed by the Council of State on 18 April 1991.

II-1121

ORDER OF 29. 11. 1994 — CASES T-479/93 AND T-559/93

n By letter of 2 September 1993, the Commission again informed the applicant that it had not established any infringement of Community law on the part of the Lux- embourg authorities.

12 The applicant thereafter brought a second action, which was lodged at the Registry of the Court of First Instance on 3 November 1993 as Case T-559/93.

1 3 The President of the Court of First Instance assigned the two cases to the Fourth Chamber. By decision of 7 July 1994, the Court referred the two cases to a Cham- ber composed of three judges.

Forms of order sought by the parties

— declare that the Luxembourg authorities have infringed Community law;

— uphold the applicant's right to compensation.

is In his application in Case T-559/93, the applicant claims in essence that the Court of First Instance should:

— annul Commission Decision SG(93) D/14567 of 2 September 1993 rejecting his request for the application of Article 169 of the Treaty against the Grand Duchy of Luxembourg;

— declare that the Commission has failed to exercise its supervisory functions in accordance with Article 175 of the E E C Treaty;

— order the Commission to initiate the procedure laid down by Article 169 of the Treaty against the Grand Duchy of Luxembourg;

— order the applicant to pay the costs.

17 In Case T-479/93, the applicant submitted on 13 July 1993 observations in which it sought to rebut the objection raised by the Commission.

is In view of the connection between the subject-matter of the two cases, and since the applicant has requested, by application dated 22 July 1994, that they be joined, it is appropriate to order that they be joined.

i9 By a pleading dated 22 July 1994, the applicant also requested that the cases be determined by a Chamber of five judges, of which the Luxembourg judge should not be a member. Suffice it to say that the cases have been referred to a Chamber composed of three judges and that the final paragraph of Article 16 of the Protocol o n the Statute of the Court of Justice of the EEC, which is applicable to the Court of First Instance by virtue of Article 44 of the said Protocol, precludes any party from impugning the nationality of a judge. Consequently, the applicant's request must be rejected.

20 In the same pleading, the applicant sought leave to represent himself in the pro- ceedings. It should be noted that Article 17 of the Protocol on the Statute of the Court of Justice of the E E C precludes any such application and requires the par- ties to be represented by a lawyer entitled to practise before a court of a Member State. Consequently, the applicant's request must be rejected.

II-1124

24 According to the Commission, the pre-litigation stage of a procedure based o n Article 169 of the Treaty does not entail any legally binding act; consequently, an action for the annulment of the act by which the Commission makes it known that it does not propose to take any steps against a Member State cannot be admissible. Furthermore, the position adopted by the Commission in the present case is of direct and individual concern not to the applicant but to the Luxembourg State. Finally, the Commission states that it was under no obligation to initiate a proce- dure under Article 169 of the Treaty, since it has a discretion in that regard.

II-1125

ORDER OF 29. 11. 1994 — CASES T-479/93 AND T-559/93

25 In its observations on the objection of inadmissibility, the applicant maintains, in Case T-479/93, that the assertion that Decision SG(92) D/92722 is not an act capa- ble of forming the subject-matter of an action for annulment pursuant to Article 173 of the E E C Treaty is of no practical significance, since it constitutes a genuine administrative act producing legal effects, regardless of its nature and form, and its legality may be reviewed by the Court. H e contends that that act, which was directly addressed to him, prevents him from seeking redress for the unjust infringement of the various rights conferred on him by the Community legal order. In any event, the very fact of his having been denied the fundamental right to defend himself provided for by Article 177 of the Treaty constitutes, of itself, a highly prejudicial circumstance.

29 According to the Commission, natural or legal persons may only bring proceed- ings before the Court of Justice under Article 175 of the Treaty with a view to obtaining a declaration that one of the institutions has infringed the Treaty by fail- ing to adopt acts which may be addressed to those persons. In the present case, the complaint filed by the applicant, concerning an alleged infringement of Commu- nity law by the Luxembourg authorities, could not under any circumstances impose on the Commission an obligation to adopt an act addressed to the appli- cant. Even if the Commission had decided to initiate a procedure under Article 169 to establish an infringement of the Treaty, it is apparent from that provision that it would not have been bound to address any of the procedural documents to the complainant. Consequently, that procedure excludes the right for individuals to require the Commission to adopt a specific position by means of an act addressed to them.

so The applicant emphasizes that his complaints relate in essence to omissions by the Commission which fall in any event within the scope of Article 175 of the Treaty. H e states that the point at issue is not so much the application of Article 169 of the Treaty as such but rather the Commission's failure to react to reported infringe- ments of Articles 52 and 177 of the E E C Treaty, in that it disregarded its supervi- sory obligations, thereby contributing in turn to the prevention of the effective exercise by the applicant of his right to a fair hearing, his right of establishment and his right to the award of adequate compensation for the damage suffered b y him.

of the Court of Justice in Case C-371/89 Emrich v Commission [1990] E C R 1-1555). Natural or legal persons may have recourse to the third paragraph of Article 175 of the Treaty only for a declaration that an institution has failed to adopt acts of which they are the potential addressees, thereby infringing the Treaty. Within the framework of the infringement procedure laid down by Article 169 of the Treaty, the only measures which the Commission may be induced to take are addressed to the Member States (see the order in Emńch v Commission, cited above, paragraph 6). Moreover, it is clear from the scheme of Article 169 of the Treaty that the Commission is not obliged to commence proceedings under that provision but has a discretion in that regard which excludes the right for individuals to require that institution to adopt a specific position (see the judgment in Star Fruit v Commission, cited above, paragraph 11). Consequently, the applicant's claims for a declaration that the Commission has failed to act are manifestly inadmissible.

The daims for an order requiring the Commission to initiate the procedure Uid down by Article 169 of the Treaty

32 The applicant seeks a Court order that the Commission is obliged, pursuant to Article 169 of the Treaty, to deliver a reasoned opinion in relation to the Grand Duchy of Luxembourg.

33 The Court points out that the Community judicature cannot address orders to a Community institution without encroaching on the prerogatives of the administra­ tive authority concerned (see the judgment of the Court of First Instance in Case T-15/91 Bollendorff v Parliament [1992] E C R 11-1679, paragraph 57). The appli­ cant's claims are thus manifestly inadmissible.

36 The Commission contends that, quite apart from the fact that the application con- tains no indication of the damage suffered, such a claim is manifestly inadmissible. If and in so far as the Commission is not bound to initiate a procedure under Arti- cle 169 of the Treaty, the only conduct which could be found to have given rise to any damage is that of the Luxembourg State. However, the conduct of national authorities cannot form the subject-matter of an action brought pursuant to Arti- cles 178 and 215 of the E E C Treaty.

37 The applicant disputes the Commission's contention that his application contains no indication of the damage suffered. H e has complained, in particular, of the obstacles to practising as a lawyer and the non-payment of trainee allowances.

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ORDER OF 29. 11. 1994 — CASES T-479/93 AND T-559/93

38 It is settled case-law that an application for compensation made pursuant to Article 178 and the second paragraph of Article 215 of the Treaty constitutes an autono- mous form of action, save where it in fact seeks to nullify the effects of allegedly unlawful acts an application for the annulment of which has been declared inad- missible (see the judgments of the Court of Justice in Case 4/69 Liitticke v Com- mission [1971] E C R 325, paragraph 6, and Case 175/84 Krohn v Commission [1986] E C R 753, paragraphs 30 and 33).

39 In the present case, the applicant is seeking compensation for the damage which he claims to have suffered as a result of allegedly unlawful acts on the part of the defendant institution, the annulment of which he also seeks. In those circum- stances, the Court considers that, in so far as the claims for compensation arise from acts by the defendant which are the same as those contested in the claims for annulment and for a declaration of failure to act, which have been held to be inad- missible, they must also be declared inadmissible.

T H E C O U R T O F FIRST INSTANCE (Fourth Chamber)

hereby orders:

1. Cases T-479/93 and T-559/93 are joined;

2. The application for the cases to be determined by a Chamber of which the Luxembourg judge is not a member is dismissed;

3. The application by the applicant for leave to represent himself is dismissed;

4. The actions are dismissed as inadmissible;