(Action for annulment under Article 230 EC – Action brought by a Member State challenging calls for applications, issued by Eurojust, for positions as members of the temporary staff – No jurisdiction of the Court – Inadmissible)

Opinion of Advocate General Poiares Maduro delivered on 16 December 2004

Judgment of the Court (Grand Chamber), 15 March 2005.

Summary of the Judgment

(Article 230 EC; Article 35 EU, 41 EU, 46(b) EU; Statute of the Court, Arts 40 and 56; Staff Regulations of Officials, Art. 91; Council Decision 2002/187, Art. 30)

1.In judicial proceedings, it is for the applicant to choose the legal basis of its action and not for the Community judicature itself to choose the most appropriate legal basis. It follows that, where the applicant brings its action under a particular provision, while leaving to the discretion of the Court the choice of the most appropriate legal basis to examine that action, the admissibility of that action must be examined in the light of that provision.

(see para. 35)

2.A call for applications, issued by Eurojust, for positions as members of the temporary staff is not capable of being the subject of an action for annulment under Article 230 EC. Such a call is not included in the list of acts the legality of which the Court may review under that article. Moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the EU Treaty, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers.

(see paras 36-38, 40-43)

<br> <br> <br>

JUDGMENT OF THE COURT (Grand Chamber)<br>15 March 2005<a href="#Footnote1" name="Footref1">(1)</a>

(Action for annulment under Article 230 EC – Action brought by a Member State challenging calls for applications, issued by Eurojust, for positions as members of the temporary staff – No jurisdiction of the Court – Inadmissible)

In Case C-160/03,APPLICATION for annulment under Article 230 EC, brought on 8 April 2004,

<b>Kingdom of Spain,</b> represented by L. Fraguas Gadea, acting as Agent, with an address for service in Luxembourg,

applicant,

supported by:<b>Republic of Finland, </b> represented by T. Pynnä, acting as Agent, with an address for service in Luxembourg,

<b>Eurojust,</b> represented by J. Rivas de Andrés, abogado, and D. O'Keeffe, Solicitor,

defendant,

<br><br>

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur) and A. Borg Barthet, Presidents of Chambers, R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, E. Juhász, G. Arestis, M. Ilešič and J. Malenovský, Judges,

Advocate General: M. Poiares Maduro,<br>Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 6 October 2004,

after hearing the Opinion of the Advocate General at the sitting on 16 December 2004,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

1.The official linguistic arrangements of the Union shall apply to Eurojust proceedings [In the Spanish text: ‘El régimen lingüístico de las instituciones de la Comunidad Europea será aplicable a Eurojust’].

2.The annual report to the Council, referred to in the second subparagraph of Article 32(1), shall be drawn up in the official languages of the Union institutions.

Articles 12 to 15 of the Conditions of employment of other servants of the European Communities (‘the CEOS’) concern the conditions of engagement of the latter. Article 12 provides:

‘1. The engagement of temporary staff shall be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities.

…

…

(e) he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties.’

Article 91 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), which is applicable to temporary staff by reason of Article 73 of the CEOS, which refers to the provisions of Title VII of the Staff Regulations relating to appeals, sets out the conditions governing the admissibility of appeals brought by officials before the Court. It is settled case‑law that that remedy is available to candidates in open competitions or selection procedures, whether or not they are servants of the Communities (see, to that effect, Case 23/64 Vandevyvere v Parliament [1965] ECR 157, 163).

On 13 February 2003, the contested calls for applications were published in the Official Journal of the European Union. In those calls for applications, the requirements relating to knowledge of languages are the following:

–for the position of Data-protection Officer (OJ 2003 C 34 A, p. 1), ‘excellent knowledge of English and French. Ability to work in other European Community languages would be an asset’;

–for the position of Accounting Officer (OJ 2003 C 34 A, p. 4), ‘thorough knowledge of one official language of the European Union and a satisfactory knowledge of another language of the Union, including a satisfactory knowledge of English’;

–for the position of IT‑informatics expert (webmaster) of the European judicial network (OJ 2003 C 34 A, p. 6), ‘a good knowledge of English is essential. Capacity to communicate in at least two other official languages of the European Communities, including French, will definitely be considered an asset’;

–for the position of Legal Officer (OJ 2003 C 34 A, p. 11), ‘excellent knowledge of English and French. Ability to work in other European Community languages would be an asset’;

–for the position of Librarian/Archivist (OJ 2003 C 34 A, p. 13), no particular requirements;

–for the position of Press Officer (OJ 2003 C 34 A, p. 16), ‘capacity to communicate in at least English and French. Knowledge of other official languages of the European Communities will be an asset’;

–for the position of Secretary to the General Administration (OJ 2003 C 34 A, p. 18), ‘a thorough knowledge of English and French. A satisfactory knowledge of other Community languages would definitely be considered an asset’.

Those calls for applications state that the application form must be completed by candidates in their own language and in English. In addition, that form must be accompanied by a letter of motivation and a curriculum vitae, drawn up in English only.

Pleas in law

The Kingdom of Spain puts forward three pleas in law in support of its action.

The first plea alleges infringement of Article 12(2)(e) of the CEOS, which provides that candidates may be required to have a thorough knowledge only of one language, namely, in principle, their mother tongue, and a satisfactory knowledge of another language, the choice of which is left to candidates.

The second plea alleges infringement of the rules governing the linguistic arrangements applicable to Eurojust, as laid down in Article 31 of the Decision. Those arrangements are defined by Regulation No 1, Article 1 of which specifies the official languages and the working languages of the institutions. Since no provision of the Decision states that the working languages of Eurojust are to be English and French, all the official languages of the Union may be used by the members of Eurojust and the staff of the secretariat of that body. Consequently, the calls for applications infringe the linguistic arrangements applicable to Eurojust.

The third plea alleges breach of the principle of the prohibition of discrimination set out in Article 12 EC and of the obligation to state reasons. The Kingdom of Spain submits in that regard that requiring candidates to complete certain documents in English and the conditions in the calls for applications relating to knowledge of English and French constitute manifest discrimination on grounds of nationality, since it favours candidates whose mother tongue is English or French. The more favourable treatment of those two languages is neither justified nor even explained, which constitutes a breach of the obligation to state reasons referred to in Article 253 EC.

Admissibility of the action

Before putting forward its arguments on the substance, Eurojust raises an objection of inadmissibility which must be examined.

Eurojust contends that the action is inadmissible because there is no legal basis on which it can be brought.

In the first place, the action cannot be brought under Article 230 EC since the list of acts the legality of which may be reviewed by the Court does not mention those adopted by Eurojust, which is a body of the European Union with separate legal personality.

In the second place, the action cannot be brought under Article 35(6) EU since the contested acts are neither a framework decision nor one of the acts referred to in that provision.

In the third place, the action cannot be brought under Article 91 of the Staff Regulations in so far as, although that provision allows a candidate to file an appeal against the call for applications, it does not permit a Member State to bring an action to challenge acts alleged to affect adversely persons to whom the Staff Regulations apply.

In the fourth place, the action cannot be brought under the Decision, since the latter does not give the Court jurisdiction to rule on acts adopted by Eurojust.

Finally, the action cannot be brought under Article 35(7) EU since it is not an action regarding the interpretation of Article 31(1) of the Decision brought in accordance with the procedure referred to in Article 35(7) EU.

The Kingdom of Spain recalls that the Community is a community based on the rule of law whose acts are subject to judicial review (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 38) and submits that no act emanating from a body with legal personality which is subject to Community law can be exempt from judicial review.

It acknowledges that, pursuant to Articles 35 EU and 46 EU, the jurisdiction of the Court in the context of the third pillar is limited. However, the contested calls for applications cannot be considered to be acts adopted in that context and the Court’s review of those acts can likewise not be made subject to conditions.

The Kingdom of Spain nevertheless leaves to the discretion of the Court the choice of the most appropriate legal basis for its action, claiming that, in any event, any error which it may have made in that choice should not result in a declaration of inadmissibility or in no decision being given on the substance in this case.

Findings of the Court

First of all, it must be pointed out that it is for the applicant to choose the legal basis of its action and not for the Community judicature itself to choose the most appropriate legal basis (see, to that effect, Case 175/73 Union syndicale and Others v Council [1974] ECR 917, and the order of the Court of First Instance in Case T-148/97 Keeling v OHIM [1998] ECR II‑2217). It is clear from the examination of the action that the applicant brought it under Article 230 EC. The admissibility of that action must therefore be examined in the light of that provision.

As is clear from Article 230 EC, the Court ‘shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties’.

Clearly, the acts contested in the present action are not included in the list of acts the legality of which the Court may review under that article.

Moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the Treaty on European Union, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers.

In any event, the Kingdom of Spain has not denied that the contested calls for applications are to be regarded as acts adopted under Title VI of the Treaty on European Union.

It follows that the action brought under Article 230 EC cannot be declared admissible.

As regards the right to effective judicial protection in a community based on the rule of law which, in the view of the Kingdom of Spain, requires that all decisions of a body with legal personality subject to Community law be amenable to judicial review, it must be observed that the acts contested in this case are not exempt from judicial review.

As is clear from Article 30 of the Decision, Eurojust staff are to be subject to the rules and regulations applicable to officials and other servants of the European Communities. It follows that, in accordance with the consistent case-law, the main parties concerned, namely the candidates for the various positions in the contested calls for applications, had access to the Community Courts under the conditions laid down in Article 91 of the Staff Regulations (to that effect, see Vandevyvere v European Parliament, cited above, 163).

ECLI:EU:C:2025:140

In the event of such an action, Member States would be entitled to intervene in the proceedings in accordance with Article 40 of the Statute of the Court of Justice and could, where appropriate, as is clear from the second and third paragraphs of Article 56 of that Statute, appeal against the judgment of the Court of First Instance.

44It follows from all those considerations that the application is inadmissible.

Costs

45Under Article 69(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 Eurojust has applied for costs and the Kingdom of Spain has been unsuccessful, the Kingdom of Spain must be ordered to pay the costs. In accordance with the first subparagraph of Article 69(4) of the Rules of Procedure, the Republic of Finland, which has intervened in the proceedings, must bear its own costs.

On those grounds, the Court (Grand Chamber) hereby:

1.Declares that the application is inadmissible;

2.Orders the Kingdom of Spain to pay the costs;

3.Orders the Republic of Finland to bear its own costs.

[Signatures]

1Language of the case: Spanish.