(Action for failure to act – Procedure laid down in Article 7 EU – Complaint regarding alleged breaches of the principles set out in Article 6(1) EU by the Spanish judicial authorities – Clear lack of jurisdiction)

Order of the Court of First Instance (Fifth Chamber), 2 April 2004

Summary of the Order

Actions for failure to act – Natural or legal persons – Actionable omissions – Failure of the Commission to investigate an alleged breach by a Member State of the principles set out in Article 6(1) EU and to propose that the Council initiate the proceedings laid down in Article 7 EU – Manifestly outside the jurisdiction of the Community judicature

(Art. 232 EC; Rules of Procedure of the Court of First Instance, Art. 111)

2 April 2004 (*)

(Action for failure to act – Procedure laid down in Article 7 EU – Complaint regarding alleged breaches of the principles mentioned in Article 6(1) EU by the Spanish judicial authorities – Clear lack of jurisdiction)

In Case T-337/03,

Luis Bertelli Gálvez, residing in Madrid (Spain), represented by J. Puche Rodríguez-Acosta, lawyer,

applicant,

Commission of the European Communities,

defendant,

APPLICATION under the third paragraph of Article 232 EC for a declaration that the Commission unlawfully refrained from initiating the procedure under Article 7 EU against the Kingdom of Spain following the applicant’s complaint relating to alleged breaches in his regard of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, mentioned in Article 6(1) EU, by the judicial authorities of that Member State,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,

Registrar: H. Jung,

makes the following

Legal framework

1 Article 6(1) of the Treaty on European Union (EU) states that the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2 Article 7(1) EU provides as follows:

‘On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may call on independent persons to submit … a report on the situation in the Member State in question.’

3 Article 7(2) EU states:

‘The Council, meeting in the composition of the Heads of State or Government and acting by unanimity on a proposal by … the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting the government of the Member State in question to submit its observations.’

4 Where such a determination has been made, Article 7(3) provides that ‘the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council’.

5 By letter of 28 April 2003, the applicant, a Spanish lawyer, lodged a complaint with the Commission in respect of alleged unlawful persecution by the Spanish courts over a period of 20 years by reason of his having had the courage to criticise the improper conduct of those courts. In his complaint, the applicant stated that it was clear from those reprisals that the Kingdom of Spain is failing to respect the fundamental principles of democracy and the rule of law mentioned in Article 6 EU and requested the Commission:

– to issue a formal declaration that the Kingdom of Spain is in breach of the rule of law on the basis of the irresponsible conduct of its judiciary, which acts in an arbitrary and unlawful manner;

– to require the Kingdom of Spain to put an end to his persecution by the judiciary and to comply with its obligation to satisfy the claims for compensation presented by him before the national courts in respect of the harm caused by that persecution;

– to require the Kingdom of Spain to permit the free and independent exercise of profession of lawyer, in order to ensure the effective defence of Spanish citizens and Community nationals residing in Spain;

– to propose to the Council, pursuant to Article 7(1) EU, that the voting rights of the Kingdom of Spain in the Council be suspended until that State has developed and implemented appropriate mechanisms for exercising effective control over its judiciary.

6 By letter of 21 May 2003 on behalf of the Commission, A. Brun, head of the ‘Citizenship, Charter of Fundamental Rights, Racism and Xenophobia, Daphne Programme’ Unit of the Directorate-General for Justice and Home Affairs, replied to the applicant, informing him that the Commission does not have unrestricted and general powers in relation to the fundamental rights under the EU Treaty and the EC Treaty, that it may intervene only in cases where there has been a breach of fundamental rights in the application of Community law, that, in the applicant’s case, the administration of the judiciary is a matter for each Member State, and accordingly that the rights which he alleged had been breached ‘fall within the exclusive competence of the Spanish authorities and that the European Commission consequently has no authority to pursue those issues’. Mr Brun also indicated that once all national legal remedies have been exhausted, there is a possibility of bringing proceedings before the European Court of Human Rights.

7 By letters of 3 and 18 June 2003, the applicant again wrote to the Commission. He stated that the letter cited above was not a reply to his complaint, as the case had no connection with or relation to fundamental rights; moreover, the possibility of bringing proceedings before the European Court of Human Rights or the Human Rights Committee in Geneva was not open to him, since those bodies had already refused to consider his case. He also stated that Mr Brun had no authority to rule on his complaint on the Commission’s behalf. Pursuant to Article 232 EC, he called on the Commission to act in the manner requested in his complaint.

8 By application lodged at the Registry of the Court of First Instance on 2 October 2003, the applicant brought the present action.

9 The applicant claims that the Court should:

– declare that the Commission has failed to act in not investigating the serious breach by the Kingdom of Spain of the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, mentioned in Article 6(1) EU;

– declare that the Commission has failed to act in not proposing to the Council, pursuant to Article 7(1) and (2) EU, that it determine the existence of such a breach and suspend that Member State’s voting rights in the Council.

Legal framework

10 Pursuant to Article 111 of the Rules of Procedure of the Court of First Instance, where it is clear that the Court has no jurisdiction to take cognisance of an action, it may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.

11 In the present case, the Court is of the view that the documents in the case provide it with sufficient information and has decided pursuant to that article to make a reasoned order without taking further steps in the proceedings.

12 Pursuant to the third paragraph of Article 232 EC, the applicant requests the Court to declare that the Commission failed to act in not investigating a serious breach by the Kingdom of Spain of the principles mentioned in Article 6(1) EU and in not initiating the procedure laid down in Article 7(1) and (2) EU against that Member State.

13 It must be pointed out that Article 7(1) EC provides that the Court of Justice is to act within the limits of the powers conferred on it by the EC Treaty.

14 The Treaty on European Union (EU) gives no jurisdiction to the Court of Justice to adjudicate on the lawfulness of acts adopted on the basis of that Treaty in certain areas. Thus, Article 46 EU provides that the provisions of the Treaties establishing the European Communities concerning the powers of the Court of Justice of the European Communities and the exercise of those powers are to apply only to the following provisions of the EU Treaty:

‘…

(d) Article 6(2) [EU] with regard to action of the institutions, in so far as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty;

(e) the purely procedural stipulations in Article 7 [EU], with the Court acting at the request of the Member State concerned within one month from the date of the determination by the Council provided for in that Article;

…’

15 The EU Treaty therefore gives no jurisdiction to the Community judicature to determine whether the Community institutions have acted lawfully to ensure the respect by the Member States of the principles laid down under Article 6(1) EU or to adjudicate on the lawfulness of acts adopted on the basis of Article 7 EU, save in relation to questions concerning the procedural stipulations contained in that article, which the Court may address only at the request of the Member State concerned.

16 It follows that the Court of First Instance has no jurisdiction to adjudicate on an application brought by a natural or legal person for a review of action of the institutions to ensure respect for the principles laid down in Article 6(1) EU by the Member States or the lawfulness of measures adopted pursuant to Article 7 EU.

17 Accordingly, the Court has a fortiori no jurisdiction to adjudicate on an application submitted by a natural or legal person under the third paragraph of Article 232 EC for a declaration that the Commission has unlawfully refrained from investigating an alleged breach by a Member State of the principles mentioned in Article 6(1) EU and from proposing to the Council that the procedure laid down in Article 7 EU be initiated against that Member State.

18 Having regard to the above, it is clear that the Court has no jurisdiction to adjudicate on the present action for failure to act brought by the applicant.

19 In those circumstances, the application must be dismissed, without there being any need for it to be served on the defendant.

Costs

20 As the present order was adopted prior to service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the applicant must bear his own costs pursuant to Article 87(1) of the Rules of Procedure.

On those grounds,

hereby orders:

1 The application is dismissed on the ground of clear lack of jurisdiction.

2 The applicant shall bear his own costs.

Luxembourg, 2 April 2004.

Registrar

President

*

Language of the case: Spanish.