T-262/97
ECLI:EU:T:1998:107
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GOLDSTEIN v COMMISSION
ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) 14 May 1998 *
In Case T-262/97,
Anthony Goldstein, residing in London, represented by Raymond St John Mur phy, Solicitor, 3 Kings Bench Walk, Inner Temple, London,
applicant,
v
Commission of the European Communities, represented by Richard Lyal, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION , in substance, for compensation for the damage alleged to have been caused to the applicant by the Commission's failure to adopt the interim measures he had requested in the context of a complaint against certain anti competitive practices lodged under Article 3(2) of Council Regulation No 17 of
* Language of the case: English.
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6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: V. Tiili, President, C. P. Briët and A. Potocki, Judges,
Registrar: H . Jung,
makes the following
Order
Facts
1 The applicant is a British national residing in the United Kingdom. He is a quali fied medical practitioner and in January 1990, following specialist training, he obtained a Certificate of Specialist Training (in rheumatology) from the General Medical Council ('the GMC ), which has regulatory authority over the medical profession in the United Kingdom. He is included on the 'Specialist List' drawn up pursuant to the Medical Qualifications (EEC Recognition) Order 1977. That list has not been, but could be, published and at the material time contained 773 names.
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2 According to the Commission, however, the specialist training completed by the applicant does not meet the requirements of the regulations applicable in the United Kingdom — which, inter alia, implement Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p . 1) — in such a way as to enable him to gain recognition as a specialist medical practitioner there. The GMC none the less issued Certificates of Specialist Training to persons having completed certain minimum periods of training, in order to enable them to practice or provide services in other Member States even though they did not fulfil the conditions for accreditation or appointment as a consultant in the United Kingdom. The Commission states that the certificate held by the applicant is of that kind. If they complete additional training or acquire additional experience, holders of such certificates may be given a certificate enabling them to be recognised as specialists in the United Kingdom and to be included on the register of specialists published under the new regulations. That new register contains a special indication for practitioners who meet the conditions for recognition as specialists.
3 On 10 August 1993, the applicant lodged a complaint with the Commission under Article 3(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p . 87), seeking a declaration that the GMC , the medical Royal Colleges, the medical training committees and the private medical insurance companies had infringed Articles 85 and 86 of the EC Treaty. He complained that the GMC had not published in the Medical Register a list of holders of a 'Community Medical Specialist Diploma' in accordance with Directive 93/16. He further alleged that it had imposed rules denying 'Community Medical Specialists' access to the market for specialist medical services and restricting them from advertising effectively to the general public.
4 When lodging his complaint, the applicant also requested the Commission to adopt certain interim measures. To establish the urgency of those measures, he argued that medical practitioners who had completed the prescribed specialist
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medical training and held a valid specialist medical licence recognised at Commu nity level were prevented from practising in their specialty, whereas medical prac titioners who had not completed the prescribed specialist medical training and did not hold a valid specialist medical licence recognised at Community level were not prevented from practising as medical specialists. In his submission, the practices complained of were likely to cause him serious and irreparable harm, since medical practitioners in his category were effectively deprived of the right to carry on their economic activity in their specialty.
5 In his view, the Commission, in the exercise of the power which it was acknowl edged to have in Case 792/79 R Camera Care v Commission [1980] ECR 119, should have ordered the following interim measures (as stated in the Commission's summary, not challenged by the applicant):
(1) publication in the medical register of a special symbol indicating specialist sta tus next to the names of medical practitioners holding specialist medical quali fications recognised under Directive 93/16;
(2) publication and distribution to all Member States of an official list of licensed specialist medical practitioners holding such qualifications;
(3) withdrawal of the Medical Register 1993;
(4) restriction of employed and self-employed practice as a specialist medical prac titioner to medical practitioners holding specialist medical qualifications recog nised under Directive 93/16;
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(5) restriction of the use of the designated professional title of specialist medical practitioner to medical practitioners holding specialist medical qualifications recognised under Directive 93/16; and
(6) indication that the holder of a specialised medical qualification recognised under Directive 96/13 is a specialist medical practitioner.
6 On 20 January 1994, the Commission rejected that request for interim measures on the ground that the situation was not intolerable for the public interest and that the applicant had not demonstrated any serious and irreparable harm to himself. It added that the measures requested 'would not necessarily prevent' the harm alleg edly suffered by the applicant and that merely granting the measures requested would not of itself give him work in his specialty. The Commission considered that the applicant had not put forward sufficient evidence as to the existence of the alleged serious and irreparable harm resulting from the alleged breaches of the rules on competition. It stated that those persons whose names were on the spe cialist list (including the applicant — see paragraph 1 above) could apparently practise their specialty and, within the constraints imposed by the GMC's rules on advertising specialist medical services, inform general practitioners about their spe cialist practice. In those circumstances, the Commission did not even consider it necessary to assess whether there was an infringement of the competition rules.
7 In his first application to the Court of First Instance, registered as Case T-235/95, the applicant sought annulment of the Commission's decision of 16 October 1995 refusing, inter alia, to reconsider its decision of 20 January 1994 in which it refused to order the interim measures requested when his complaint was lodged and cer tain other interim measures. That application was dismissed as manifestly inadmis sible by order of the Court of First Instance of 16 March 1998 ([1998] ECR 11-523), in particular on the ground that the decision of 20 January 1994 had become definitive.
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Procedure and forms of order sought
8 Those were the circumstances in which the applicant brought the present action, by application lodged at the Registry of the Court of First Instance on 29 Septem ber 1997.
9 The applicant claims that the Court should:
— declare the obligation of the Court to recognise the paramount importance to be accorded to the protection of health in the exercise of its Treaty powers requires the Court to function as the Committee of Public Safety of the Euro pean Communities and to take emergency measures to guarantee the protection of health in circumstances where there exists sufficient evidence of dereliction of duty by the European Community and the Member States which manifestly and gravely endangers the protection of health of nationals of Member States;
— declare the conditions of law are satisfied for the adoption of emergency mea sures by the Commission to guarantee the protection of health where the appli cant has produced documentary evidence to establish prohibited anti competitive conduct by the GMC which 'seals off' the market for supply and demand for services of licensed specialist medical practitioners in medical spe cialties regulated by Community law in the United Kingdom;
— declare that in so far as a decision of the Commission trespasses on the legal sovereignty of an institution of the Community or a Member State — to dis tort the clear sense of a legal measure in order to conceal its Community nature and effects from those subject to its jurisdiction and rob it of its substance — a decision of the Commission is in breach of rules of law it is required to safe guard and constitutes a dereliction of duty;
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— order the defendant to pay compensation for the damage suffered by him to be determined by the Court ex aequo et bono or by an expert together with default interest at a rate to be fixed by the Court;
— order the defendant to pay the costs.
10 The Commission contends that the Court should:
— dismiss the application as inadmissible;
— in the alternative, dismiss it as unfounded; and
— order the applicant to pay the costs.
Admissibility
11 Under Article 111 of the Rules of Procedure, where an action is manifestly inad missible, the Court of First Instance may, by reasoned order and without taking any further steps in the proceedings, give a decision on it.
Arguments of the parties
12 The applicant seeks, in substance, compensation for the damage which he alleges to have been caused to him by the Commission by its illegal failure 'to exercise the
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supervisory powers of surveillance and control conferred on it by the [EC] Treaty in accordance with the prescribed legal framework to protect [his] legitimate inter ests ... by the adoption of an interim measure pursuant to a complaint under Article 3(2) of Council Regulation No 17 against what [he] alleged to be prohib ited anti-competitive practices on the part of the [GMC] sealing off the market for supply and demand for services of licensed specialist medical practitioners in medi cal specialties regulated by Community law'.
13 He specifies that the act adversely affecting him, which constitutes the unlawful conduct causing the Community to incur liability, is the Commission's refusal in its letter of 20 January 1994 to order interim measures.
14 The applicant further explains that the damage derives from the sealing-off of the market for supply and demand for services of licensed specialist medical practitio ners in medical specialties regulated by Community law. He claims to be deprived of the effective exercise of the freedom to pursue his profession as a specialist, with consequent loss of income. He is further deprived of the right to obtain the ser vices of licensed specialist medical practitioners, in breach of the principle of pro tection of health. The causal link lies in the illegal authorisation by the Commis sion of continued prohibited anti-competitive conduct by the GMC which seals off the market.
15 The applicant also stresses that the purpose of interim measures is temporarily to protect the position of a party to the proceedings without prejudice to the final decision where there is a real risk that the effectiveness of that final decision will be jeopardised.
16 The Commission submits that the application is inadmissible on three grounds. First, the applicant is seeking, by bringing the present action for damages, to attack the decision of 20 January 1994, against which he did not bring any action for annulment.
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17 Secondly, he has not identified any material damage suffered by him or demon strated in what way any such damage was the result of the Commission's action or inaction in response to his request for interim measures. Nor has he stated in what way the Commission's finding on the issue of the urgency of interim measures in its decision of 20 January 1994 was wrong. The application is therefore not in accordance with Article 19 of the EC Statute of the Court of Justice, which requires it to contain a brief statement of the grounds on which it is based (see Case T-195/95 Guérìn Automobiles v Commission [1997] ECR 11-679).
18 Thirdly, the Commission considers that the present action brought against the Community is misdirected. In so far as the applicant may have suffered any harm and in so far as there may have been any unlawful conduct which caused that harm, it is to the GMC and, possibly, the United Kingdom authorities that it is attributable.
Findings of the Court
19 The purpose of the first three forms of order sought by the applicant (see para graph 9 above) must be considered to be, in substance, to establish the existence of a wrongful act on the part of the Commission such as to cause the Community to incur non-contractual liability. If it were to be assumed that their purpose were anything other than a finding of liability against the Community, they would have to be dismissed as inadmissible, since the Court has no jurisdiction to make the declarations which they seek.
20 It is most appropriate to begin the examination of the pleas of inadmissibility raised by the Commission with the second plea, to the effect that the application is not in accordance with the Statute of the Court of Justice.
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21 Under Article 19 of that Statute and Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The infor mation given must be sufficiently clear and precise to enable the defendant to pre pare his defence and the Court of First Instance to decide the case, if appropriate without other information. In order to ensure legal certainty and the sound admin istration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see, for example, Guérin Automobiles, cited above, paragraph 20).
22 In order to satisfy those requirements, an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage {Guérin Automobiles, paragraph 21).
23 The applicant's arguments relating to the determination of the damage allegedly suffered by him in the present case are set out, in essence, in paragraphs 12 to 15 above. The nature and extent of that damage can clearly not be identified with the required degree of clarity and precision from those arguments.
24 The applicant merely claims that the damage he has suffered derives from the fact that he is unable to pursue his profession as a specialist medical practitioner, with the loss of income thereby entailed. He further claims to be deprived of the right
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to obtain the services of specialist medical practitioners. He has not given any esti mation of the amount of his alleged losses or of the other damage which he claims to have suffered, merely asking that they be determined 'by the Court ex aequo et bono or by an expert'.
25 Although this Court has accepted (see Case T-64/89 Automec v Commission [1990] ECR II-367, paragraphs 75 to 77) that, in special circumstances, it is not essential to specify the exact extent of the damage in the application and to state the amount of compensation sought, it has also held that the applicant must establish, or at least indicate, the existence of any such circumstances in the application (see Case T-157/96 Affatato v Commission [1998] ECR-SC II-97, paragraph 48).
26 As regards the loss of income, and on the assumption that it is real, the application should therefore have contained at least an estimation of the income actually received by the applicant and of that hoped for. It does not.
27 The nature and extent of the damage allegedly resulting from the inability to obtain the services of specialist medical practitioners are equally unclear, as the application contains no evaluation nor yet any basis on which an amount could be calculated. The applicant has not even specified whether material or non-material damage is alleged.
28 The application thus does not contain the required information as to the nature and extent of the damage.
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29 It is, moreover, equally impossible to identify the causal link between the alleged wrongful conduct on the part of the Commission and the damage which the appli cant claims to have suffered. The applicant's initial complaint to the Commission was that the GMC , a United Kingdom entity, was engaging in anti-competitive practices and that Directive 93/16 had not been properly implemented, pleading that such conduct had a detrimental effect on his activity and income. He has in no way explained how the fact that the Commission did not order the interim mea sures applied for rendered it liable for the alleged damage. The application thus does not contain sufficient information to explain to what extent the Commission is alleged to be liable for the damage, even as from the moment at which it was asked to put an end to that damage.
30 The Court can thus only conclude that the application is not in accordance with Article 19 of the Statute of the Court of Justice and Article 44(1 )(c) of the Rules of Procedure.
31 The action must therefore be dismissed as manifestly inadmissible, without there being any need to examine the other pleas of inadmissibility raised by the Com mission.
Costs
32 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, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
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On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The application is dismissed as manifestly inadmissible.
2. The applicant shall pay the costs.
Luxembourg, 14 May 1998.
H . Jung V. Tiili
Registrar President
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