61999O0289

Appeals - Appeal clearly unfounded

In Case C-289/99 P,

Schiocchet SARL, established at Beuvillers (France), represented by P. Barbier, of the Thionville Bar, with an address for service in Luxembourg at the office of Borislav Erdeljan, 90 Route de Thionville,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 21 May 1999 in Joined Cases T-169/98 and T-170/98 Schiocchet v Commission not published in the ECR, seeking to have that order set aside and the grant of the applications made by the appellant at first instance,

the other party to the proceedings being:

Commission of the European Communities, represented by M. Wolfcarius, Legal Adviser, acting as Agent, assisted by J.-L. Fagnart, of the Brussels Bar, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant at first instance,

THE COURT (Third Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, J.-P. Puissochet and F. Macken, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 3 August 1999, Schiocchet SARL (Schiocchet) brought an appeal, pursuant to Article 49 of the EC Statute of the Court of Justice, against the order of the Court of First Instance of 21 May 1999 in Joined Cases T-169/98 and T-170/98 Schioccet v Commission not published in the ECR (the contested order), dismissing as inadmissible its applications for the annulment of the Commission's decision to take no action on the complaints lodged by the appellant on 4 and 5 December 1996 respectively, concerning unfair competition of which it claimed to be the victim.

2 For the legal context and the facts giving rise to the dispute between Schiocchet and the Commission, reference should be made to paragraphs 1 to 14 of the contested order.

The contested order

3 By applications lodged at the Court Registry on 16 October 1998, the appellant brought two actions before the Court of First Instance seeking the annulment of, first, the decision adopted in the form of a letter dated 19 August 1998 from the Commission to the appellant informing it of the Commission's intention to take no action on its complaints and, second, Article 4(2) of Council Regulation (EEC) 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1, the Regulation), as tending to create unfair competition with existing regular transport services and, in particular, those of Schiocchet.

4 In the course of the proceedings, the appellant made it clear that it was not seeking the formal annulment under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) of Article 4(2) of the Regulation, but that it wished to raise a plea of illegality under Article 184 of the EC Treaty (now Article 241 EC) as a basis for claiming that that provision is inapplicable.

5 The Commission contended that the applications were inadmissible.

6 In paragraph 31 of the contested order the Court of First Instance first observed that, according to settled case-law, the fact that a letter was sent by a Community institution to its intended recipient in response to a request by that person is not sufficient to enable that letter to be characterised as a decision within the meaning of Article 173 of the Treaty, thus opening the way for an action for annulment. Only measures producing binding legal effects which are of a nature such as to affect the applicant's interests by bringing about a significant change in his legal position constitute acts or decisions which may be the subject of an action for annulment under Article 173 of the Treaty.

7 The Court of First Instance, which joined the cases because they were related, found in paragraph 32 of the contested order that, although the Commission's letter of 19 August 1998 merely informed the appellant, first, that the Commission considered that the French authorities had not infringed Community law and, second, that the complaints in question would therefore be marked as not calling for action, the appellant was not notified of the Commission's decision of 7 October 1998 to take no action otherwise than by the said letter, nor was it informed of the decision by any other means. Consequently the Court of First Instance interpreted the applications as seeking the annulment of the decision of 7 October 1998 to take no action on the complaints.

8 In paragraph 34 of the contested order the Court of First Instance noted that the fact that the Commission had refused to take the measures requested by the appellant could be capable of producing legal effects only if the Commission had the power in the area concerned to adopt measures with binding force.

9 In paragraphs 35 and 36 of the contested order the Court of First Instance stated that, with the exception of a single situation which did not apply in the present case, the Regulation did not authorise the Commission to adopt decisions binding on the Member States and on individuals with the general object of implementing the passenger transport rules laid down by the Regulation. The Court therefore found, in paragraph 37 of the contested order, that the Commission had no power under the Regulation to adopt binding decisions upholding the complaints in question and that consequently the decision to take no action on those complaints could not have any binding legal effect, on the basis of the Regulation, of a nature such as to affect the appellant's interests by bringing about a significant change in its legal situation.

10 The Court of First Instance went on to observe, in paragraph 38 of the contested order, that in so far as, by those complaints, the appellant had asked the Commission to take steps more particularly against the French authorities, the decision to take no action expressed the Commission's intention not to initiate a procedure against the French Republic under Article 169 of the EC Treaty (now Article 226 EC) for failure to fulfil its obligations. The Court pointed out, first, that the Commission was under no obligation to initiate a procedure under that provision, but had a discretion in that respect which meant that individuals had no right to require the Commission to take a decision to a particular effect and, second, that according to settled case-law, it was not open to individuals to challenge a refusal by the Commission to initiate procedure against a Member State for failure to fulfil its obligations.

11 With regard to the appellant's plea under Article 184 of the Treaty that Article 4(2) of the Regulation is unlawful, in paragraph 41 of the contested order the Court of First Instance observed that, according to settled case-law, the possibility provided by Article 184 of invoking the inapplicability of the general measure on which the contested decision was based does not constitute an independent right of action and recourse to it may be had only in the form of an incidental plea. Consequently, where there is no right to bring a direct action, Article 184 cannot be pleaded. In paragraph 42 of the contested order the Court found that, as the claims for the annulment of the decision to take no action had been held to be inadmissible, the appellant could not plead Article 184 of the Treaty, so that the plea of illegality was also inadmissible.

12 Finally, as regards the appellant's argument that it would not be granted proper legal protection if its actions were not declared to be admissible, the Court of First Instance observed in paragraph 43 of the contested order that, in so far as the freedom to provide services for the international carriage of passengers by coach and bus was governed by the Regulation, any dispute concerning the application of the Regulation could be brought before a national court, which must apply the Regulation directly. In the same paragraph the Court of First Instance added that it was apparent from the documents before it that the appellant had indeed brought the same dispute before the national courts and had been partly successful with regard to certain unlawful practices of unfair competition on the part of its competitors. Consequently, there was nothing to prevent the appellant from pleading the illegality of the Regulation before the national courts which could give a decision in conformity with Article 177 of the EC Treaty (now Article 234 EC).

13 Consequently, the Court of First Instance dismissed the applications as inadmissible in their entirety.

The appeal

14 In its appeal Schiocchet claims that the Court of Justice should:

set aside the contested order,

grant Schiocchet's application at first instance, and

order the Commission to pay the costs.

15 In support of its appeal, the appellant put forward four pleas in law alleging, first, distortion of the concept of acts producing binding effects and insufficient reasoning in that respect, second, breach of the principle of legal certainty, third, misrepresentation of the subject-matter of the action and, fourth, lack of jurisdiction of the Court of First Instance.

16 The Commission submits that the appeal should be dismissed as inadmissible and, in any case, unfounded, and that the appellant should be ordered to pay the costs.

Findings of the Court

17 Under Article 119 of the Rules of Procedure the Court may, where the appeal is clearly unfounded, at any time by reasoned order dismiss the appeal without opening the oral procedure.

The first plea in law

18 Under its first plea in law, the appellant complains that the Court of First Instance committed an error in law in holding, on the basis of insufficient reasoning in view of its findings of fact, that the Commission's position, as expressed in the letter of 19 August 1998 and the decision of 7 October 1998, was not of direct concern to the appellant within the meaning of the fourth paragraph of Article 173 of the Treaty. The appellant contends that the Commission's position is based on an interpretation of the Regulation which is not only erroneous but also damages the appellant's commercial interests. It adds that this interpretation was adopted by the national courts when they applied the Regulation to the appellant.

19 It must be observed, first, that in paragraphs 35 to 37 of the contested order the Court of First Instance correctly found that the Commission had no power under the Regulation to adopt decisions binding on the Member States and individuals with the general object of applying the rules on carriage introduced by the Regulation and that therefore the Commission also had no power to adopt binding decisions upholding the complaints in question.

20 Second, it must be pointed out, as the Court of First Instance did in paragraph 43 of the contested order, that any dispute concerning the application of the Regulation may be brought before a national court, which must apply it directly. It is incumbent on the national administrative and judicial authorities to apply the Regulation and to rule on the legal problems to which this might give arise, since it is open to the national courts by virtue of Article 234 EC to request the Court of Justice to give a preliminary ruling on questions concerning the validity and interpretation of the Regulation.

21 It must therefore be concluded that the Court of First Instance found, on the basis of correct and sufficient reasoning, that the Commission's decision to take no action on the appellant's complaints was not capable of producing binding legal effects of a nature such as to affect the appellant's interests by bringing about a significant change in its legal position.

22 Consequently, the first plea in law must be dismissed as clearly unfounded.

The second plea in law

23 Under the second plea in law, the appellant complains that the Court of First Instance committed an error in law in finding, wrongly, in paragraph 43 of the contested order, that it was before a national court that the appellant had to plead the illegality of the Regulation. The appellant contends that it is not certain that an action before a national court would result in an impartial decision in view of the anti-competitive practices which have developed and are continuing at national level, safe from all sanctions and thanks to the support given by the French authorities to the companies claimed by the appellant to be unlawfully engaging in unfair competition.

24 On this point it must be observed that there was no error in law on the part of the Court of First Instance in finding that, since the freedom to provide services for the international carriage of passengers by coach and bus was governed by the Regulation, any dispute concerning the application of the Regulation could be brought before a national court which had to apply the Regulation directly. As stated in paragraph 20 of the present order, it is incumbent on the national administrative and judicial authorities to apply the Regulation and to rule on the legal problems to which this may give arise.

25 In this context it must also be observed that, in paragraph 41 of the contested order, it is correctly stated that it is clear from the very wording of Article 184 of the Treaty that the possibility which that provision affords of invoking the inapplicability of the Regulation can constitute only a plea in support of an action and not the subject-matter of the action and that therefore the admissibility of the action itself must be assessed by reference to the relief claimed in it, irrespective of any pleas of illegality which might be raised in support of it.

26 The second plea in law must therefore be dismissed as clearly unfounded.

The third plea in law

27 Under its third plea in law, the appellant complains that the Court of First Instance misrepresented the subject-matter of the applications before it. The appellant complains that the Court took the view that the dispute related solely to the interpretation of the Regulation whereas it also related to the interpretation of Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302). The appellant also submits that the Court of First Instance was wrong in stating that the purpose of the appellant's claims was to obtain a finding of failure to fulfil obligations within the meaning of Article 169 of the Treaty on the part of the French Republic, whereas in reality its claims were directed against the conduct of certain undertakings which was contrary to Community competition law, and in which they were supported by the French authorities.

28 In this connection, it must be observed that it is clear from an analysis of the applications lodged with the Court of First Instance, which are summarised in paragraph 15 of the contested order, that the Court did not change the substance of the appellant's claims. The appellant did not formulate any claims in relation to Regulation No 1017/68 or put forward any arguments based on it in those applications.

29 Furthermore, the Court of First Instance cannot be criticised for having judged it appropriate to find that, as the appellant had, in its complaints, requested the Commission to take steps more particularly against the French authorities, the decision to take no action had also to be regarded as an expression of the Commission's intention not to initiate a procedure under Article 169 of the Treaty against the French Republic for failure to fulfil its obligations. In any case, even assuming that the Court of First Instance was mistaken with regard to the purport of the appellant's claims in this respect, such error was in no way capable of damaging the appellant's interests.

30 The third plea in law must therefore be dismissed as clearly unfounded.

The fourth plea in law

31 Under its fourth plea in law, the appellant complains that the Court of First Instance committed an error in law in not declining jurisdiction in respect of the applications in favour of the Court of Justice. The appellant points out, first, that under the second paragraph of Article 47 of the EC Statute of the Court of Justice, where the Court of First Instance finds that it does not have jurisdiction to hear and determine an action in respect of which the Court of Justice has jurisdiction, it must refer that action to the Court of Justice and, second, that the second paragraph of Article 173 of the Treaty expressly confers on the Court of Justice jurisdiction in respect of an action relating to the validity of a legislative measure. The appellant also contends that the Court of First Instance ought to have declined jurisdiction in respect of the applications since they called into question a Council regulation on the basis of Article 189 of the EC Treaty (now Article 249 EC) and raised the issue of a misuse of powers.

32 On this point it must be observed that Article 3(1)(c) of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), provides that the Court of First Instance is to exercise at first instance the jurisdiction conferred on the Court of Justice by the Treaties establishing the Communities and by the acts adopted in implementation thereof in actions brought against an institution of the Communities by natural or legal persons pursuant to the second paragraph of Article 173 of the Treaty.

33 Neither that provision nor any other enables the Court of First Instance to decline jurisdiction in respect of such actions simply because they raise a plea of invalidity in respect of a Council regulation.

34 It must therefore be held that the Court of First Instance had jurisdiction to hear and determine the applications before it and that consequently the fourth plea in law must be dismissed as clearly unfounded.

35 If follows from all the foregoing considerations that all the pleas in law put forward by the appellant in support of its appeal are clearly unfounded. The appeal must therefore be dismissed pursuant to Article 119 of the Rules of Procedure.

Costs

36 Under Article 69(2) of the Rules of Procedure, which apply to the appeal proceedings pursuant to Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for costs and Schiocchet has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber)

hereby orders:

1. The appeal is dismissed.

2. Schiocchet SARL shall pay the costs.