Case T‑99/19

Nathaniel Magnan

v

European Commission

Order of the General Court (Fifth Chamber), 25 September 2019

(Action for failure to act, for damages and for annulment — Free movement of workers — Freedom to choose an occupation — Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Alleged infringement of that agreement by Swiss laws and regulations governing the exercise of the profession of medical practitioner — Application for the adoption of measures against Switzerland and application for compensation for harm suffered — Reply of EEAS — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

1. Actions for failure to act — Failure to act — Concept — Failure to adopt a preparatory act — Included — Condition — Act constituting a necessary preliminary act in a procedure leading to an act that has binding legal effects

   (Art. 265 TFEU)

   (see paragraphs 24-26, 30-35)

2. Actions for failure to act — Commission’s obligation to act — EC-Switzerland Agreement on Free Movement of Persons — Implementation of the agreement — Alleged infringement — Obligation to adopt unilateral measures — None

   (Art. 17(1) TEU; EC-Switzerland Agreement on Free Movement of Persons)

   (see paragraphs 48, 50-57, 64-66)

3. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law conferring rights on individuals — Discretion of the institution when adopting a measure — Need to take that discretion into account in examining liability

   (Art. 340, second para., TFEU)

   (see paragraphs 76-78)

4. Non-contractual liability — Responsibility for a lawful act — Principle not recognised in EU law

   (Art. 340, second para., TFEU)

   (see paragraph 82)

5. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a medical practitioner for annulment of the Commission’s decision refusing to adopt measures following an alleged infringement of that agreement — No direct concern — Inadmissibility

   (Art. 263, fourth para., TFEU; EC-Switzerland Agreement on Free Movement of Persons)

   (see paragraphs 87, 88)

Résumé

In the order in Magnan v Commission (Case T‑99/19), made on 25 September 2019, the General Court dismissed as in part manifestly inadmissible and in part manifestly lacking any foundation in law the action by which the applicant asked it, first, to find that the European Commission had unlawfully failed to adopt measures against the Swiss Confederation and, second, to order the Commission to pay compensation for the harm he suffered further to an alleged infringement by the Swiss Confederation of the Agreement on the Free Movement of Persons which the latter concluded with the European Community and its Member States (‘the AFMP’). ( 1 )

In 2013, the applicant, a general medical practitioner of French nationality, was denied by the Swiss authorities the authorisation to be able to pursue his profession under the compulsory sickness insurance scheme, pursuant to a ‘need clause’, ( 2 ) which allows the competent authorities to limit, where required, inter alia the right of medical practitioners to practise, save where they have worked for three years at a recognised Swiss post-graduate training facility. Following the dismissal of his action by the Swiss courts, the applicant informed the Commission of his situation and, on 22 October 2008, ultimately sent to it a letter of formal notice requesting that it adopt measures against Switzerland, with a view to stopping the alleged discrimination towards medical practitioners who are EU nationals and to providing financial compensation for the harm he had suffered as a result since 2013. By letter of 20 December 2018, the European External Action Service (EEAS) replied to the applicant, on behalf of the Commission, stating that, since there is no dispute settlement mechanism in that agreement, the European Union authorities did not have the means to push for a solution given the lack of agreement between the parties.

In the first place, the Court found that the applicant’s action for failure to act was manifestly inadmissible, since the applicant’s situation does not correspond to any of the situations in which the third paragraph of Article 265 TFEU entitles natural and legal persons to bring an action for failure to act. The Court held, first of all, that the applicant was not the addressee of the measures which it had asked the Commission to adopt; next, that those measures were not capable, on their own, of bringing about a change in the applicant’s legal position as regards his right to pursue his profession in Switzerland; and, finally, that such measures could not be regarded as a necessary preliminary act in a procedure that may lead to acts that have binding legal effects in respect of the applicant, within the meaning of case-law. With regard to that third situation, the Court found, first, that there was no dispute settlement procedure applicable to the AFMP, the preliminary act of which is the adoption of unilateral measures by one of the contracting parties to that agreement against the other contracting party. Second, the Court held that, in the absence of any mechanism involving individuals in the decision-making process relating to the implementation of the AFMP, the applicant had no right to require the Commission to adopt measures against Switzerland with a view to putting an end to an alleged infringement by Switzerland of the agreement. The Court explained that the principle of effective judicial protection, which is enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, cannot justify the European Union judicature going beyond the jurisdiction conferred on it under Article 265 TFEU to compensate for the absence of any mechanism in the AFMP enabling the applicant to bring an infringement of that agreement before a supranational court.

In the second place, the Court found that, in any event, the action for failure to act was manifestly lacking any foundation in law. The Court held that there was no obligation on the Commission, in the present case, to adopt the measures requested by the applicant, first, in the absence of any applicable provision requiring it, or even authorising it, to do so and, second, in the absence of the consent of the Member States, who are contracting parties to the AFMP, and of the express authorisation of the Council of the European Union. Furthermore, the Court stated that such an obligation would risk undermining the implementation of the AFMP, as the institutions of the European Union and the Member States must enjoy broad discretion to make the necessary reconciliations in order to settle disputes with Switzerland regarding that agreement; moreover, Article 11 of that agreement provides for a right of appeal for individuals at the national level.

In the third place, the Court found that the applicant’s claims for damages were in part manifestly inadmissible, in so far as they sought the payment by the Commission of a penalty payment, and in part manifestly lacking any foundation in law, in that they sought compensation for the harm suffered by the applicant since 2013. With regard to the latter question, the applicant had not established that there was a sufficiently serious breach of a rule of law conferring rights on individuals, taking into account, first, the broad discretion afforded to the institutions and, second, the lack of involvement of individuals in the decision-making process for the implementation of the AFMP.

( 1 ) Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6), signed in Luxembourg on 21 June 1999.

( 2 ) Article 55a of the loi fédérale suisse du 18 mars 1994 sur l’assurance-maladie (Swiss Federal Law of 18 March 1994 on Sickness Insurance).