Concal, v European Commission [2013] EUECJ C-570/12 (27 June 2013)

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(Appeal – Failure of the Commission to initiate proceedings for failure to fulfil obligations against Romania – Alleged violations of the right to property by Romanian authorities – Action for failure to act and for damages – Manifest inadmissibility)

Alexandru Octavian Concal, residing in Bucharest (Romania), represented by R. Neagu, avocat,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

1 By his appeal, Mr Concal seeks to have set aside the order of the General Court of the European Union of 25 September 2012 in Case T-320/12 Concal v Commission (‘the order under appeal’), in which the General Court dismissed, as manifestly inadmissible, his action seeking, first, a declaration, in essence, that the European Commission had failed to act in not initiating the procedure for failure to fulfil obligations laid down in Article 258 TFEU against Romania and, second, compensation for the damage allegedly suffered as a result of that failure.

2 By application lodged at the Registry of the General Court on 17 July 2012, Mr Concal brought an action seeking, first, a declaration, in essence, that the European Commission had failed to act in not initiating the procedure for failure to fulfil obligations laid down in Article 258 TFEU against Romania and, second, compensation for the damage allegedly suffered as a result of that failure.

3 By the order under appeal, the General Court, under Article 111 of its Rules of Procedure, dismissed the action as manifestly inadmissible.

4 As regards, first, the action for failure to act, the General Court, referring to the judgment of the Court of Justice in Case 247/87 Star Fruit v Commission [1989] ECR 291, noted, at paragraph 6 of the order under appeal, the settled case-law that an action for failure to act is inadmissible where it is brought by a natural or legal person for a declaration that, by not initiating an action for failure to fulfil obligations against a Member State, the Commission has, in breach of the FEU Treaty, failed to act.

5 The General Court stated, at paragraph 7 of that order, that, in the context of an action for failure to fulfil obligations, the only measures which the Commission may adopt are measures addressed to Member States and that neither a reasoned opinion nor referral to the Court of Justice for a declaration of failure to fulfil obligations can constitute acts of direct and individual concern to natural or legal persons.

6 As regards, second, the action for damages, the General Court pointed out, at paragraph 10 of the order under appeal, that, since the Commission is not bound to commence infringement proceedings under Article 258 TFEU, its decision not to institute such proceedings is not, in any event, unlawful, so that it cannot give rise to non-contractual liability on the part of the European Union. The General Court referred, inter alia, to the order in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, paragraph 13.

7 Consequently, the General Court held, at paragraph 11 of the order under appeal, that the action for damages had to be dismissed as manifestly unfounded, without it being necessary to examine the admissibility thereof.

8 By his appeal, Mr Concal seeks ‘the review of the admissibility on the following grounds:

– It is plain the [General Court] covers up on infringement of the Treaties, by the [Union] which infringement has resulted in act of crime against humanity in continuing form, committed against millions of people.

– It is a provoking fact that the [General] Court, denies the Judging of Count nr.4 consisting in a huge property robbery (at least 4 000 [billion] Euro the fruits of property included), collusively perpetrated by EU and Rumanians officials.’

9 Under Article 181 of the Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order, and without opening the oral procedure, dismiss the appeal and, where appropriate, refrain from serving notice of the action on the defendant.

10 In essence, the appellant asserts that the order under appeal is not well founded and that it is incorrect since the judges did not acquire a thorough knowledge of the case.

11 He also appears to dispute the General Court’s treatment of the affair as an action for failure to act in so far as, according to him, what is alleged are acts of crimes against humanity, in breach of Articles 2 TEU and 49 TEU, and not a failure to act.

12 It must be stated that the appellant does not refer to any specific element of the order under appeal and does not rely on any plea in law or legal argument in support of his appeal.

13 In this respect, it should be noted that, according to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must state precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal is inadmissible (see, inter alia, Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68, and Case C-67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I-9811, paragraph 48). An appeal which does not contain any arguments aimed at specifically identifying the error in law which the judgment or the order in question is vitiated by does not fulfil that requirement (see, inter alia, order of 21 March 2013 in Case C-465/12 P Simov v Commission and Bulgaria, paragraph 12 and the case-law cited).

14 Furthermore, the arguments put forward in support of this appeal are difficult to understand and confusing, so that the Court is not in a position to carry out the task which is required of it and to carry out its review of legality (see, to that effect, Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 113, and Nuova Agricast and Cofra v Commission, paragraph 49).

15 In those circumstances, in accordance with Article 181 of the Rules of Procedure of the Court of Justice, the appeal must be dismissed as manifestly inadmissible, without it being necessary to serve it on the defendant.

16 Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

17 As the present order has been adopted prior to notification of the appeal to the defendant at first instance and, therefore, before the latter could have incurred costs, it is appropriate to decide that the appellant must bear his own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Concal, v European Commission [2013] EUECJ C-570/12 (27 June 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/C57012_A.html Cite as: [2013] EUECJ C-570/12

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