Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Eighth Chamber)

17 July 2020 (*)

(Action for failure to act — Protection of the European Union’s financial interests — Combating fraud — Meeting of the European Council — Multiannual financial framework — Financial regulation — Alleged conflict of interest of the representative of the Czech Republic at a meeting of the European Council — Alleged lack of action by the European Council — Article 130 of the Rules of Procedure — Interest in bringing proceedings — Locus standi — Definition of the position of the European Council — End of the failure to act — Inadmissibility — Article 15(2) TEU — Action manifestly lacking any foundation in law)

In Case T‑715/19,

Lukáš Wagenknecht, residing in Pardubice (Czech Republic), represented by A. Dolejská, lawyer,

applicant,

v

European Council, represented by A. Westerhof Löfflerová, A. Jensen and M.J. Bauerschmidt, acting as Agents,

defendant,

APPLICATION on the basis of Article 265 TFEU seeking a declaration that the European Council unlawfully failed to act on the applicant’s request to exclude the Prime Minister of the Czech Republic, Mr Andrej Babiš, from the meeting of the European Council of 20 June 2019 and from future meetings concerning the financial perspective negotiations, due to his alleged conflict of interest with regard to the requirements of Article 325(1) TFEU and Article 61(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013 (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1),

THE GENERAL COURT (Eighth Chamber)

composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and J. Laitenberger, Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        By letter dated 5 June 2019 and received by the European Council on 10 June 2019, the applicant, Mr Lukáš Wagenknecht, a member of the Senát Parlamentu České republiky (Senate of the Czech Republic), requested the European Council to exclude the Prime Minister of the Czech Republic, Mr Andrej Babiš, from the meeting of the European Council of 20 June 2019 and from future meetings relating to the financial perspective negotiations (Multiannual Financial Framework (MFF) 2021/2027) (‘the call to act’), due to the alleged conflict of interest of that representative of the Czech Republic, which stems from his personal and family interests in companies of the Agrofert Group, which is active, inter alia, in the agri-food sector.

2        On 24 June 2019, the European Council, while stating that it was not defining its position on the substance of the applicant’s allegations and while assuring him that it accorded the utmost importance to the combating of fraud and other illegal activities affecting the financial interests of the European Union, responded to the call to act by explaining to the applicant, in essence, that Article 15(2) TEU, a rule of primary law, intangibly laid down the composition of the European Council by providing that it ‘shall consist of the Heads of State or Government of the Member States, and of its President and the President of the [European] Commission’. Thus, that composition could not be altered since that provision does not provide for the possibility of such an alteration. Furthermore, the European Council explained that the question of which person, as between the Head of State or Head of Government, should represent each of the Member States of the European Union was a matter for national constitutional law alone. Thus, it did not fall within the discretion of the European Council or its President to decide who should be the representative of each Member State within that institution, nor to decide whom, as between the Head of State or the Head of Government, it should invite to the various meetings of the European Council. Those principles also apply to the meetings of the Council of the European Union. In those circumstances, the European Council replied to the applicant, with regard to the call to act, that it was not in a position to exclude the Prime Minister of the Czech Republic from the meetings to which he referred.

3        On 2 July 2019, the applicant again contacted the European Council, requesting clarification by email, from the Secretary-General of that institution, as regards the reply given to him on 24 June 2019. That email remained unanswered.

 Procedure and forms of order sought

4        By application lodged at the Registry of the General Court on 21 October 2019 via an interim e-Curia account created by his counsel, the applicant brought an action on the basis of Article 265 TFEU seeking a declaration of failure to act by the European Council, in that that institution unlawfully failed to act in response to the call to act.

5        By separate document lodged at the Court Registry on the same day and under the same conditions, the applicant made an application for expedited procedure under Article 151 of the Rules of Procedure of the General Court.

6        Since the supporting documents required to validate the e-Curia access account were received at the Court Registry on 4 November 2019, while, pursuant to Article 56a(4) of the Rules of Procedure, they should have been received at the Registry within 10 days of the lodging of the document, in this case the document instituting proceedings, the applicant was invited to submit his observations in that regard.

7        On 21 November 2019, the applicant submitted his observations, in which his counsel explained that, on 24 October 2019, she had sent the supporting documents required for the opening of the e-Curia account by the international service of the Czech postal service, which should have ensured delivery in Luxembourg (Luxembourg) within two to three working days. However, as it transpired, the delivery took more than 11 days, as a result of delays attributable to the Czech and Luxembourg postal services. The counsel added that she had shown diligence, but that she was not, however, able to foresee such breaches of contract on the part of those two postal service providers and was not able to react in good time because of her hospitalisation in preparation for the birth of her first child on 31 October 2019.

8        By decision of 11 December 2019, the General Court decided to recognise that there had been unforeseeable circumstances within the meaning of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union and, consequently, not to declare the action inadmissible pursuant to Article 56a(4) of the Rules of Procedure.

9        The applicant claims that the Court should declare that the ‘European Council failed to act, in breach of Article 325(1) [TFEU] and Article 61(1) of Regulation (EU) 1046/2018 on the financial rules applicable to the general budget of the Union, by failing to adopt a binding and deterrent measure to prevent or address the conflict of interest of the Prime Minister of the Czech Republic, Mr Andrej Babiš, in that, in breach of the prohibition of conflict of interest laid down in Article 61(1) of Regulation 1046/2018, it did not exclude the Prime Minister of the Czech Republic, Mr Andrej Babiš, from participation in the deliberations leading to the adoption of the Multiannual Financial Framework of the European Union for 2021/2027’.

10      On 23 January 2020, the European Council lodged its observations on the application for expedited procedure.

11      By decision of 10 February 2020, the Court decided not to grant the application for expedited procedure.

12      On 19 March 2020, under Article 130(1) of the Rules of Procedure, the European Council raised a plea of inadmissibility in which it claims that the General Court should:

–        dismiss the action as manifestly inadmissible;

–        order the applicant to pay the costs.

13      On 27 May 2020, the applicant submitted his observations on the plea of inadmissibility, which were put into order on account of their excessive length. In those observations, he asks the Court to declare the action admissible and well founded and to order the European Council to pay the costs.

14      By separate act also sent to the Court Registry on 27 May 2020, the applicant, under Article 279 TFEU, applied to the President of the General Court for the adoption of an interim measure consisting in the publication of a general statement. On 12 June 2020, the European Council submitted its observations on that request.

 Law

15      Pursuant to Article 130 of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure. In addition, under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where that action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

16      In the case at hand, the Court considers that it has sufficient information available to it from the material in the file and has decided, pursuant to those provisions, to give a decision without taking further steps in the proceedings.

17      In its plea of inadmissibility, the European Council submits that the action is manifestly inadmissible on a number of grounds. Indeed, first, as an institution, the European Council, in accordance with Article 265 TFEU, has defined its position within two months of being called upon to act. Thus, its reply of 24 June 2019 addressed to the applicant following the call to act brought to an end the failure to act alleged by the applicant.

18      Second, the European Council is of the opinion that, in the absence of any competence to do so conferred on it by the EU and FEU Treaties, it was not obliged to adopt, in response to the call to act, a measure to exclude the Prime Minister of the Czech Republic from the negotiations on the Multiannual Financial Framework (MFF) 2021/2027.

19      Third, the European Council argues that the applicant has neither an interest in bringing proceedings nor locus standi in the present case under the third paragraph of Article 265 TFEU.

20      The applicant is of the view that the present action is admissible.

21      The European Council refrained from acting with the effect that the Prime Minister of the Czech Republic, in a situation of presumed conflict of interest, was present at the European Council meeting on 20 June 2019 during which, as can be seen from item 4 of the agenda for that meeting, the European Union’s budget was examined. However, according to the applicant, first, the European Council is obliged to act against that situation of conflict of interest of the Prime Minister of the Czech Republic under Article 325(1) TFEU and Article 61(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018, on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU, and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

22      Next, the applicant, being of the view that he was both directly and individually concerned by the act which he requested the European Council to adopt to end that institution’s alleged failure to act against the alleged conflict of interest of the Prime Minister of the Czech Republic, argues that the response of the European Council to the call to act was not conclusive, in that it was contradictory and did not define that institution’s position. In addition, he complains of the Secretary-General’s failure to reply to his request of 2 July 2019, even though, in his view, the position of the European Council warranted clarification.

23      Finally, in his observations on the plea of inadmissibility, the applicant raises a new fact which, in his view, is decisive to the outcome of the present action, namely the delivery on 11 February 2020 by the Ústavní soud (Constitutional Court, Czech Republic), sitting in plenary session, of a judgment in the case Pl. ÚS 4/2017, dealing specifically with the question of conflicts of interest analogous to that claimed by the applicant in the present case. Furthermore, in his view, it is all the more important that the General Court should recognise his locus standi in the present case, first, in view of his mandate as a national representative in the Senate of the Czech Republic, which implies that he can exercise control over the Prime Minister of his Member State, and, second, because, following the bringing of the present action, he has, as have members of the European Parliament, received death threats and, so far as he himself is concerned, been the subject of a campaign of defamation.

24      As a preliminary point, it must be recalled that, under the first paragraph of Article 265 TFEU, where the Parliament, the European Council, the Council, the European Commission or the European Central Bank, or bodies, offices and agencies of the Union, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established.

25      The third paragraph of Article 265 TFEU also provides that any natural or legal person may, under the same conditions, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion. It follows, however, from the wording of that provision that, in order for his action for failure to act to be admissible, a natural or legal person must establish that he is in a legal situation identical or similar to that of the potential addressee of a legal measure which the institution concerned would be obliged to take in relation to that person (see, to that effect, judgment of 10 June 1982, Bethell v Commission, 246/81, EU:C:1982:224, paragraphs 15 and 16; orders of 23 May 1990, Asia Motor France v Commission, C‑72/90, EU:C:1990:230, paragraphs 10 to 12; and of 23 January 1991, Prodifarma v Commission, T‑3/90, EU:T:1991:2, paragraph 35). In other words, that natural or legal person must establish either that he or it is the addressee of the act which the institution complained of allegedly failed to adopt in respect of that person, or that that act directly and individually concerned him or it in a manner analogous to that in which the addressee of such an act would be concerned (see, to that effect, judgments of 26 November 1996, T. Port, C‑68/95, EU:C:1996:452, paragraph 59, and of 15 September 1998, Gestevisión Telecinco v Commission, T‑95/96, EU:T:1998:206, paragraph 58).

26      Moreover, such a natural or legal person must show an interest in bringing proceedings on the basis of Article 265 TFEU, the existence of which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42; of 17 April 2008, Flaherty and Others v Commission, C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230, paragraph 25; and of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 25). By contrast, there is no interest in bringing proceedings when the favourable outcome of an action could not, in any event, give the applicant satisfaction (see judgment of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 85 and the case-law cited).

27      In the present case, first, it must be held that the act the adoption of which by the European Council has been requested by the applicant, namely the exclusion of the Prime Minister of the Czech Republic from the meetings of that institution concerning the financial perspective negotiations, would not have been an act addressed by the European Council to the applicant, but a decision of that institution addressed to that Prime Minister. Thus, even if the applicant relies on his status as a member of the national representation of the Member State in question, in this case the Senate of the Czech Republic, in order to act in the public interest, the fact remains that the case-law referred to in paragraphs 25 and 26 above instead requires, as regards the demonstration of an interest in bringing proceedings, him to prove a personal interest, both actual and existing, in a finding that the European Council has allegedly failed to act. In addition and in any event, the condition referred to in the third paragraph of Article 265 TFEU concerning the interest in bringing proceedings and requiring that any natural or legal person complaining that the institution involved has failed to send to that person an act, other than a recommendation or an opinion, addressed to that person or concerning him directly and individually, is clearly not satisfied in the applicant’s case since, on the contrary, the measures sought from the Council were addressed to a third party (see, to that effect, orders of 23 January 1991, Prodifarma v Commission, T‑3/90, EU:T:1991:2, paragraph 37, and of 26 November 1996, Kuchlenz-Winter v Council, T‑167/95, EU:T:1996:172, paragraph 20).

28      Second, under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act. However, it follows from the same paragraph that the action may be brought within a further period of two months only if, on expiry of the period of two months from the call to act, the institution, body, office or agency has not defined its position.

29      In that regard, it should be borne in mind that that provision refers to failure to act by the failure of the institution concerned to take a decision or to define its position (judgments of 13 July 1971, Deutscher Komponistenverband v Commission, 8/71, EU:C:1971:82, paragraph 2; of 19 November 2013, Commission v Council, C‑196/12, EU:C:2013:753, paragraph 22, and of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 52). Thus, the conditions for admissibility of an action for failure to act, laid down by Article 265 TFEU, are not satisfied, in principle, where the institution called upon to act has defined its position on that call to act before the action was brought (judgments of 1 April 1993, Pesqueras Echebastar v Commission, C‑25/91, EU:C:1993:131, paragraph 11, and of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 45).

30      Moreover, it follows from the case-law that Article 265 TFEU relates to a failure to act in the sense of failure to take a decision or to define a position and not to the adoption of a measure different from that desired or considered necessary by the persons concerned (judgment of 21 July 2016, Nutria v Commission, T‑832/14, not published, EU:T:2016:428, paragraph 46; see also, to that effect, judgment of 1 April 1993, Pesqueras Echebastar v Commission, C‑25/91, EU:C:1993:131, paragraph 12 and the case-law cited).

31      Consequently, where, supported by explanations, the institution refuses to act in accordance with such a call to act, that constitutes a definition of position bringing the failure to act to an end and such a refusal, thus expressed in detail, constitutes an act open to challenge under Article 263 TFEU (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 32 and 33, and order of 7 December 2017, Techniplan v Commission, T‑853/16, not published, EU:T:2017:928, paragraph 20).

32      In the present case, even though, on 24 June 2019, the European Council had explained to the applicant, in clear terms, why it could not take the action requested of it, he did not seek to bring the present action under Article 263 TFEU for annulment of the European Council’s decision, set out in that letter of 24 June 2019, not to take the steps which it was requested to take in the call to act. It is in the context of such an action for annulment that, if necessary, subject to being able to prove that he had an interest in bringing proceedings against such a decision, he could have challenged the grounds on which the European Council justified its decision not to exclude the Prime Minister of the Czech Republic from that institution’s meetings at issue.

33      In that regard, the fact that, in his letter of 2 July 2019, the applicant requested further clarification from the European Council as to the scope of its letter of 24 June 2019, sent in response to the call to act and the content of which he criticised, is irrelevant as regards the admissibility of the present action as examined in paragraphs 28 to 32 above. Although the applicant’s criticisms made in his letter of 2 July 2019 could, if necessary, have been set out in the context of an action for annulment under Article 263 TFEU, it must be noted that the applicant did not, in that letter, however, call again on the European Council to act in a particular manner within the meaning of the second paragraph of Article 265 TFEU. Consequently, the letter cannot be regarded as a new call to act in respect of which the European Council subsequently failed to act.

34      In addition and in any event, as regards whether there was, in the present case and as the European Council argues in its plea of inadmissibility, no obligation on that institution with regard to the measures requested by the applicant in the call to act, because of that institution’s lack of competence to adopt those measures, it must be recalled that that question is not a condition for the admissibility of the action for failure to act, but a question which must be examined on the merits. It is precisely in order to rule on the substance of a claim for a declaration of a failure to act that it is necessary for the Court to determine whether, at the time of the call to act addressed to the institution concerned within the meaning of the second paragraph of Article 265 TFEU, that institution was under a duty to act in the manner requested by the applicant in the call to act (see, to that effect, judgment of 29 September 2011, Ryanair v Commission, T‑442/07, not published, EU:T:2011:547, paragraphs 27 and 28).

35      In the present case, however, irrespective of the merits of the allegations of corruption made by the applicant against the Head of Government of the Czech Republic and of the judgment delivered by the Ústavní soud (Constitutional Court), it must be found that, as the European Council claims, that institution has no discretion in the application of Article 15(2) TEU when it invites the Heads of State or Government of the Member States to European Council meetings. Indeed, in the absence of precision on that point in that provision, the provision must be understood as being based on the premiss that it is the responsibility of the Member States to adopt national measures, including constitutional measures, making it possible to determine whether they should be represented, at meetings of that institution, by their Head of State or Government respectively and, if so, whether there are grounds which may lead to one of them being prevented from representing his respective Member State within the European Council.

36      That conclusion is all the more valid since, without prejudice, as appropriate, to the procedure provided for in Article 7 TEU in the absence of national measures to prevent any manifest conflict of interest in the representation of the Member State or to those referred to in Articles 258 and 259 TFEU as regards disputed sectoral policy payments made in the name and on behalf of the European Union, the division of competences within a Member State enjoys the protection conferred by Article 4(2) TEU, in accordance with which the EU is required to respect the national identity of the Member States inherent in their fundamental political and constitutional structures (see judgment of 18 June 2020, Porin kaupunki, C‑328/19, EU:C:2020:483, paragraph 46 and the case-law cited).

37      Thus, for the purposes of Article 15(2) TEU, it is for the Member States alone, in accordance with their internal constitutional rules, to determine whether, in the context of the various proceedings of the European Council, they should be represented by their Head of State or Government respectively. Consequently, it is clear that, by refusing to act on the call to act and irrespective of whether, having regard to Article 325(1) TFEU and Article 61(1) of Regulation 2018/1046, the representative of the Czech Republic in that institution is in a situation of conflict of interest, the European Council is not, in any event, in breach of the third paragraph of Article 265 TFEU in the present case.

38      As to the remainder, with regard to the allegations relating to the alleged conflict of interest of the Prime Minister of the Czech Republic, it must be pointed out that the regularity of payments made by the European Union in respect of the funds granted, in his name and on his behalf, in the Member States, falls within the scope of the EU rules applicable to those funds and of the conditions laid down therein, such as those at issue, for example, in Case T‑76/20, Czech Republic v Commission, pending before this Court.

39      In the light of all the foregoing considerations, the plea of inadmissibility raised by the European Council must be upheld and, consequently, the action must be dismissed as inadmissible and, in any event, manifestly lacking any foundation in law, it being emphasised, in response to the applicant’s arguments concerning an alleged denial of justice in the event that his action were to be dismissed as inadmissible, even though he is a member of a national parliament and is the subject of threats to his physical safety, that Article 47 of the Charter of Fundamental Rights of the European Union is not intended to change the system of judicial review laid down in the Treaties (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97, and order of 28 February 2017, NF v European Council, T‑192/16, EU:T:2017:128, paragraph 74).

 Costs

40      Under Article 134(1) 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 European Council has applied for costs, the applicant must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible and, in any event, manifestly devoid of any foundation in law.

2.      Lukáš Wagenknecht shall pay the costs.

Luxembourg, 17 July 2020.

*      Language of the case: English.

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