T-207/97
ECLI:EU:T:1998:53
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BERTHU ν COUNCIL
O R D E R O F T H E C O U R T O F FIRST INSTANCE (Second Chamber) 12 March 1998 *
In Case T-207/97,
Georges Berthu, a Member of the European Parliament, residing in Chelles, France, represented by Alexandre Varaut, of the Paris Bar, 9 Rue Alfred de Vigny, Paris,
applicant,
ν
Council of the European Union, represented by Jean-Paul Jacqué, Director of its Legal Service, and Ignacio Díez Parra, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of Alessandro Morbilli, General Manager of the Legal Directorate of the European Investment Bank, 100 Boule- vard Konrad Adenauer,
defendant,
A P P L I C A T I O N for the annulment of Council Regulation (EC) N o 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1),
* Language of the case: French.
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ORDER OF 12. 3. 1998 — CASE T-207/97
T H E C O U R T O F FIRST I N S T A N C E O F T H E E U R O P E A N C O M M U N I T I E S (Second Chamber),
composed of: A. Kalogeropoulos, President, C. W. Bellamy and J. Pirrung, Judges,
Registrar: H . Jung,
makes the following
Order
Facts
1 O n 16 October 1996, the Commission presented 'a proposal for a Council regu lation on some provisions relating to the introduction of the euro' (COM(96) 499 final) in which it proposed to the Council that the name for the single currency should be changed from 'ecu' to 'euro'.
2 By application lodged at the Registry of the Court of First Instance on 4 Novem ber 1996, the applicant brought an action for annulment of the aforementioned Commission proposal. By order of 15 May 1997 (Case T-175/96 Berthu ν Com mission [1997] E C R 11-811), the Court dismissed that action as manifestly inadmis sible.
3 O n 17 June 1997, the Council adopted, on the basis of Article 235 of the E C Treaty, Regulation (EC) N o 1103/97 on certain provisions relating to the introduc tion of the euro (OJ 1997 L 162, p. 1).
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4 According to the second recital in the preamble to Regulation N o 1103/97, 'at the meeting of the European Council in Madrid [on 15 and 16 December 1995], the decision was taken that the term "ecu" used by the Treaty to refer to the European currency unit is a generic term; ... the Governments of the fifteen Member States have achieved the common agreement that this decision is the agreed and definitive interpretation of the relevant Treaty provisions; ... the European Council further more considered that the name of the single currency must be the same in all the official languages of the European Union, taking into account the existence of dif ferent alphabets'.
5 As to the choice of appropriate legal basis, the fifth recital in the preamble to Regulation N o 1103/97 states that 'the third sentence of Article 109l(4) of the Treaty, which allows the Council, acting with the unanimity of participating Mem ber States, to take other measures necessary for the rapid introduction of the single currency, is available as a legal basis only when it has been confirmed, in accord ance with Article 109j(4) of the Treaty, which Member States fulfil the necessary conditions for the adoption of a single currency; ... it is therefore necessary to have recourse to Article 235 of the Treaty as a legal basis for those provisions where there is an urgent need for legal certainty; ... the introduction of the euro concerns day-to-day operations of the whole population in participating Member States'.
6 O n the basis of those considerations the Council adopted Article 2 of Regulation N o 1103/97, which provides:
' 1 . Every reference in a legal instrument to the ecu, as referred to in Article 109g of the Treaty and as defined in Regulation (EC) N o 3320/94, shall be replaced by a reference to the euro at a rate of one euro to one ecu. References in a legal instru ment to the ecu without such a definition shall be presumed, such presumption being rebuttable taking into account the intentions of the parties, to be references to the ecu as referred to in Article 109g of the Treaty and as defined in Regulation (EC) N o 3320/94.'
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7 In those circumstances, by application lodged at the Registry of the Court of First Instance on 15 July 1997, the applicant brought an action under the fourth para- graph of Article 173 of the Treaty seeking annulment of Regulation N o 1103/97.
8 By document lodged at the Registry of the Court of First Instance on 25 Septem- ber 1997 the Council raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, on which the applicant lodged his observations on 7 November 1997.
Forms of order sought by the parties
9 The applicant claims that the Court should:
— declare the application admissible;
— declare Regulation N o 1103/97 unlawful.
10 In its plea of inadmissibility, the Council contends that the Court should:
— dismiss the application as manifestly inadmissible;
— order the applicant to pay the costs.
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1 1 In his observations on the plea of inadmissibility, the applicant claims that the Court should:
— dismiss the plea of inadmissibility raised by the Council;
— order the Council to pay the costs.
Admissibility
Pleas in law and arguments of the parties
12 The Council submits that the application is manifestly inadmissible because, first, of the nature of the contested measure and, secondly, of the fact that it is not of individual concern to the applicant within the meaning of the fourth paragraph of Article 173 of the Treaty.
13 As regards the nature of the contested measure, the Council points out that the fourth paragraph of Article 173 of the Treaty does not allow natural or legal per sons to institute proceedings for annulment against measures of general applica tion, such as regulations. This does not, however, preclude the Court from review ing the legality of such measures where an action for annulment is brought by one of the Community institutions or a Member State. The legality of legislative mea sures may also be reviewed by the Court in the context of a reference for a pre liminary ruling under Article 177 or an objection of illegality under Article 184 of the Treaty.
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14 The Council adds that although, according to the relevant case-law, the admissibil- ity of an action for annulment does not depend on the name of the contested measure but on its nature as a decision with respect to the applicant, the action in this case concerns a legislative measure of general application, which applies gener- ally and in the abstract to objectively defined situations.
15 None the less, in certain circumstances regulations, which are legislative in nature and application, may be of direct and individual concern to a natural or legal per- son within the meaning of Article 173 of the Treaty. In such circumstances, those regulations share the nature of both legislative measures and, for certain persons affected by them, decisions.
16 That is not the case here. As regards the question whether the measure challenged is of individual concern to the applicant, the Council contends that Regulation N o 1103/97 does not affect the applicant by reason of certain attributes peculiar to him or by reason of circumstances which differentiate him from all other persons and by virtue of those factors distinguish him individually just as in the case of the addressee of a decision. As the applicant himself admits in his application, 'as an ordinary person', he will, 'like everyone else', have 'to use the new European cur- rency on a daily basis as from 1 January 2002'. The Council concludes that, while the disputed regulation is 'of concern' to the applicant, it is not of individual con- cern to him within the meaning of the relevant case-law.
17 The applicant submits that the arguments of the Council do not take account of the particular features of this case which, he argues, justify on two grounds, if not a change in the relevant case-law, then at least a modified interpretation.
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18 First, while all citizens will be affected by the introduction of the single European currency, certain limited categories of persons will be more specifically affected. In this respect, the applicant submits that, as the holder of a French fungible Treasury bond (an 'FTB') drawn in ecus, he is a member of one of those limited categories.
19 Secondly, the applicant contends that the change in the name of the European cur rency, carried out in breach of the provisions of the Treaty, affects the exercise of national sovereignty in such a serious manner that it is of direct and individual concern to him as a citizen. In this regard, he cites a decision of 12 August 1996 of the Danish Supreme Court which held admissible an action brought by natural persons challenging the legality of certain provisions of the Treaty, on the ground that infringement of national sovereignty constituted such serious harm that each citizen was directly and individually concerned. According to the applicant, that case-law, even though at a level different from that of the Court of Justice, should nevertheless be transposed into Community law.
20 Lastly, as to the Council's argument that the inadmissibility of this action would not preclude a reference to the Court of Justice for a preliminary ruling on the legality of the contested regulation, the applicant submits that by that time the single currency would already be in use, and it is unlikely that the Court would question the validity of the regulation.
Findings of the Court
21 Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may rule on admissibility without going into the substance of the case, subject to the requirements of Article 114(3) and (4). Since the documents in the case provide it with sufficient information, the Court considers that there is no need to open the oral procedure.
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22 It is well-established case-law that an action for annulment brought by an indi vidual is inadmissible if it is directed against a measure which is legislative in nature, such as a regulation, and that the legislative nature of such an act is not called in question by the fact that it is possible to determine more or less precisely the number or the identity of the persons to whom it applies, as long as it is appli cable by virtue of an objective legal or factual situation defined by the measure in question (Joined Cases C-15/91 and C-108/91 Buckl and Others ν Commission [1992] E C R I-6061, paragraphs 24 and 25, order of 12 July 1993 in Case C-168/93 Government of Gibraltar and Gibraltar Development Corporation ν Council [1993] E C R I-4009, paragraph 12, and Case T-107/94 Kik ν Council and Commis sion [1995] E C R II-1717, paragraph 35).
23 N o n e the less, even if the legislative act in question is in fact a general, abstract measure, it is also clear from the case-law on the subject that, in spite of the legisla tive character of an act it may, in certain circumstances, be of individual concern to certain persons or traders it affects (Case C-358/89 Extramet Industrie ν Council [1991] E C R I-2501, paragraph 13, Case C-309/89 Codomiu ν Council [1994] E C R I-1853, paragraph 19, Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others ν Commission [1995] E C R II-2305, paragraph 66, order of 4 October 1996 in Case T-197/95 Sveriges Betodlares Centralförening and Henrikson v Commis- sion [1996] ECR II-1283, paragraph 31, order of 10 December 1996 in Case T-18/95 Atlanta and Internationale Fruchtimport Gesellschaft reichert ν Commis sion [1996] E C R II-1669, paragraph 47, and order of 3 June 1997 in Case T-60/96 Merck and Others ν Commission [1997] E C R II-849, paragraph 40). Natural or legal persons may only claim to be individually concerned by a legislative act if that act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons (Case 25/62 Plaumann ν Commission [1963] E C R 95, at p. 107, Codomiu ν Coun cil, cited above, paragraph 20, Case T-12/93 CCE de Vittel and Others ν Commis sion [1995] E C R II-1247, paragraph 36, Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others ν Commission [1995] E C R II-2941, paragraph 51, and the order in Merck ν Commission, cited above, paragraph 41).
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24 It is necessary to examine in the light of that case-law whether the applicant is affected by Regulation N o 1103/97 by reason of certain attributes which are pecu liar to him or by reason of circumstances in which he is differentiated from all other persons, in such a way that his action for annulment of the Regulation may be admissible under the fourth paragraph of Article 173 of the Treaty.
25 In this case, the Court finds that, while the change in the name of the single cur rency from 'ecu' to 'euro' does affect the applicant, it is only in his objective capac ity as citizen of a Member State and user of the single currency, and in the same way as any other citizen or undertaking in a Member State. Therefore he cannot claim that the disputed act is of individual concern to him within the meaning of the case-law mentioned above (see paragraph 23).
26 In this respect, the Court finds that, although the applicant holds an FTB drawn in ecus (see paragraph 18 above), this is not enough to give him locus standi under the fourth paragraph of Article 173 of the Treaty. As has just been pointed out, the fact that it is possible to determine more or less precisely the persons affected by the disputed act in no way implies that the act must be considered to be of individual concern to those persons within the meaning of the fourth paragraph of Article 173 of the Treaty, as long as the act is applicable to objectively defined situations and has legal effects for categories of persons defined generally and in the abstract (see paragraph 22 above and the case-law there cited). Regulation N o 1103/97 on certain provisions relating to the introduction of the euro is applicable precisely to objectively defined situations and has legal effects for Community citizens and undertakings defined generally and in the abstract, by reason solely of their objec tive status as citizens of a Member State and users of the single currency. In this respect it is explained, moreover, in the fifth recital of the preamble to Regulation N o 1103/97 that 'the introduction of the euro concerns day-to-day operations of the whole population in participating Member States'.
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27 Accordingly, it cannot be considered that the applicant's legal position has been affected by reason of circumstances which differentiate him from all other persons and distinguish him individually just as in the case of the addressee of a decision.
28 That conclusion is not affected by the applicant's argument that the change in the name of the single currency, made in breach of the provisions of the Treaty regard ing changes thereto, affects the exercise of national sovereignty in such a serious manner that it is of direct and individual concern to every ordinary person within the meaning of the fourth paragraph of Article 173 of the Treaty. In fact, it is clear from the case-law mentioned above (see paragraph 23) that in the case of individu als the capacity to bring proceedings under the fourth paragraph of Article 173 of the Treaty depends on whether the effects of the contested measure affect the applicant in such a way as to distinguish him individually from all other persons also concerned by the measure. However, the applicant has not shown how he might be thus affected by the change in the name of the single currency made by the contested regulation.
29 Lastly, as to the applicant's argument that declaring the action inadmissible would make it unlikely that the Court would, at a later date, review the legality of the regulation under Article 177 of the Treaty, it need only be stated that if an action brought by a natural or legal person for annulment of a measure of general appli cation is inadmissible because the requirements of the fourth paragraph of Article 173 of the Treaty are not satisfied, such a person may always have recourse to the other legal remedies provided for in the Treaty which are designed to ensure judi cial review of Community acts (Case 294/83 'Les Verts' ν Parliament [1986] E C R 1339, paragraph 23). O n the particular question of legal protection before the national courts and, by means of a reference for a preliminary ruling, before the Court, however, the applicant does not explain why that protection would be diminished if the present application were declared inadmissible. Consequently, that argument raised by the applicant must be dismissed as unfounded.
30 Accordingly, the action must be dismissed as inadmissible.
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Costs
31 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, and having regard to the form of order sought by the defendant, he must be ordered to bear his own costs and pay those of the Council.
O n those grounds,
T H E C O U R T O F FIRST I N S T A N C E (Second Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. The applicant is ordered to pay the costs.
Luxembourg, 12 March 1998.
H. Jung A. Kalogeropoulos Registrar President
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