Case C‑599/15 P

Romania

v

European Commission

(Appeal — Own resources of the European Union — Decision 2007/436/EC — Financial liability of the Member States — Loss of certain import duties — Obligation to pay the European Commission the amount corresponding to the loss — Actions for annulment — Admissibility — Letter from the European Commission — Concept of ‘actionable measure’)

Summary — Judgment of the Court (Fourth Chamber), 25 October 2017

1. Actions for annulment—Actionable measures—Concept—Measures producing binding legal effects—Commission letter informally calling on Member State to place traditional own resources at the disposal of the EU budget—Not included

   (Art. 263 TFEU)

2. Appeal—Grounds—Grounds of a judgment vitiated by an infringement of EU law—Operative part well founded for other legal reasons—Rejection

3. Actions for annulment—Actionable measures—Concept—Measures producing binding legal effects—Possibility of disregarding that condition by invoking the right to effective judicial protection—None

   (Art. 6(1) third subparagraph; Art. 263, fourth subparagraph; Charter of Fundamental Rights of the European Union, Arts.47 and 52(7)

1.  Any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU.

   That is not the case of a letter sent to a Member State by a director of the Commission in which the latter, on the one hand, expressed the view of his Directorate that that Member State was considered liable for the loss of own resources incurred in another Member State and, on the other hand, explained its opinion as to the legal consequences of those losses and the obligations which, according to him, would result for the receiving Member State, while inviting that Member State to make available the amounts at issue. Firstly, neither the statement of a simple legal opinion, nor a simple request to make available the amounts in question can be capable of producing legal effects. Furthermore, it cannot be inferred from the mere fact that the letter at issue lays down a time limit for making that amount available, whilst indicating that a delay may give rise to default interest, in view of the overall content of that letter, that the Commission intended, rather than expressing its opinion, to adopt a measure which has binding legal effects or, therefore, conferring on that letter the nature of an actionable measure.

   Secondly, as regards the context, the dispatch of a letter such as the letter at issue was a common practice of the Commission intended to initiate informal discussions on a Member State’s compliance with EU law, which could be followed by the initiation of the pre-litigation phase of an infringement procedure. In view of the Commission’s discretion to initiate infringement proceedings, a reasoned opinion is not capable of producing binding legal effects. The same applies a fortiori to letters, which can be regarded as simple informal contacts prior to the opening of the pre-litigation phase of an action for failure to fulfil obligations. Finally, as regards the powers of the Commission, that institution has no power to adopt binding acts requiring a Member State to make available the amounts at issue.

   (see paras 47, 60-66)

2.  See the text of the decision.

   (see para. 57)

3.  As regards the conditions for the admissibility of actions for annulment, while the requirement as to mandatory legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, that right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to that Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration when interpreting that Charter. Therefore, the interpretation of the concept of ‘actionable measure’ in the light of the abovementioned Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts.

   (see para. 68)