Tribunal de Justicia de la Unión Europea
In Case C-521/03 ORDER OF THE COURT (Fourth Chamber)7 December 2004 (1)
Fecha: 07-Dic-2004
- 1 By its appeal, Internationaler Hilfsfonds eV (‘IH’) requests the Court to set aside the order of 15October 2003 in Case T-372/02 Internationaler Hilfsfonds v Commission, not yet reported in the ECR (‘the contested order’), by which the Court of First Instance dismissed as inadmissible IH’s action for (i) annulment of the Commission’s decision of 22 October 2002 rejecting the application by IH to sign a framework partnership agreement (‘FPA’) with the European Community Humanitarian Aid Office (‘ECHO’), (ii) an order requiring the Commission either to reinstate IH in the position it had in 1996 when it applied to sign an FPA or, alternatively, to invite it to sign a new FPA and (iii) an order requiring the Commission to reimburse to IH the costs relating to pursuit of a complaint to the Ombudsman appointed under Article 195 EC (‘the Ombudsman’).
- 2 The legal context and the facts were set out in detail in paragraphs 1 to 28 of the contested order. The matters relevant to the present appeal are as follows.
- 3 The fifth paragraph of Article 230 EC states:
- 4 In order to enable the Community to provide effective aid in cases of humanitarian crisis, ECHO funds humanitarian projects implemented by non-governmental organisations, international organisations and specialised agencies of the Member States. Relations between ECHO and those organisations are governed by an FPA, signature of which is dependent on ECHO’s partners complying with a number of objective criteria. There is no need to go into detail for the purposes of the present order, but a new FPA entered into force on 1January 1999.
- 5 IH is a non-governmental organisation established under German law operating in the field of humanitarian aid. On 20 March 1996 it submitted an application to sign an FPA. For various reasons which it is not necessary to detail in the present order, processing of that application was delayed. On several occasions in 2001 ECHO requested an audit of IH at its head office in order to verify that it met the eligibility criteria for signature of an FPA. IH refused the requests and, in those circumstances, ECHO sent a letter to IH in the following terms on 19 July 2001:
- 6 In response, IH sent a letter to ECHO on 25 July 2001 in which it criticised the way in which ECHO had dealt with its application and requested certain information. By letter of 27 August 2001, ECHO explained in detail the reasons for which it had rejected IH’s application.
- 7 On 22 November 2001 IH submitted a complaint to the Ombudsman. The complaint called into question several aspects of the procedure followed by the Commission in dealing with the IH file. On 21 May 2002 the Ombudsman issued a decision on that complaint, in which he criticised as ‘instances of maladministration’ certain aspects of the way in which IH’s application had been dealt with. However, he concluded that ECHO’s decision to insist on an audit was reasonable.
- 8 On 27 August 2002 IH wrote to Mr P. Nielson, a member of the Commission, to inform him of the Ombudsman’s decision. It invited him to consider (i) the taking of disciplinary measures against the staff involved in handling IH’s application and (ii) reinstating IH in its rights and position prevailing at the moment of its application in March 1996 and inviting it to sign an FPA.
- 9 In reply to that letter, Mrs Adinolfi, the Director of ECHO, sent a letter to IH on 22 October 2002 in the following terms:
- 10 On 13 December 2002, IH brought an action for annulment of the decision of 22October 2002.
- 11 By the contested order, the Court of First Instance declared IH’s three heads of claim to be inadmissible pursuant to Article 113 of its Rules of Procedure.
- 12 In the appeal, IH advances no arguments to contest the order so far as concerns the second and third heads of claim put forward by it to challenge the decision of 22October 2002. It is therefore not necessary to give details in that regard in the present order.
- 13 As regards the first head of claim, on the other hand, IH challenges the contested order inasmuch as it held the application for annulment to be inadmissible on the ground that it had not been brought within the two-month period prescribed in the fifth paragraph of Article 230 EC.
- 14 In this connection, the Court of First Instance found first of all, at paragraph 37 of the contested order, that the Commission’s letter of 19 July 2001 contained a decision to reject IH’s application for signature of an FPA and to close the file. At paragraphs 39 to 44 of the order, it then held that the decision which was communicated by the letter of 22 October 2002 contained no new factors as compared with that first decision and that there was no indication that it has been preceded by any re-examination of the situation. At paragraph 45 of the contested order, the Court of First Instance consequently described the decision of 22October 2002 as merely confirming the decision of 19 July 2001.
- 15 Accordingly, in light of settled case-law that an action for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is inadmissible, and since the decision of 19 July 2001 was not challenged by IH, the Court of First Instance declared IH’s first head of claim inadmissible and ordered it to pay the costs.
- 16 By its appeal, IH contends that the Court should:
- –
- quash the contested order;
- –
- refer the case back to the Court of First Instance or give judgment itself in the matter; and
- –
- order the Commission to pay the costs of the proceedings.
- 17 The Commission contends that the Court should:
- –
- dismiss the appeal; and
- –
- order IH to pay the costs, including those of the proceedings at first instance.
- 18 Under Article 119 of its Rules of Procedure, when an appeal is clearly unfounded, the Court of Justice may at any time dismiss it by reasoned order.
- 19 IH submits in paragraph 16 of the appeal that the Court of First Instance linked elements concerning assessment of the substance of the action to other elements concerning assessment of its admissibility. However, it does not explain how a false assessment of the substance of the case could have affected the decision of the Court of First Instance as to the inadmissibility of the action. This plea is thus clearly of no consequence and accordingly clearly unfounded. It must therefore be rejected.
- 20 Furthermore, a large part of the appeal, namely paragraphs 17 to 22, consists of arguments regarding the substance of the case rather than the question of admissibility which, alone, was the basis for the contested order. Those arguments are thus of no consequence. They must therefore likewise be rejected.
- 21 In the remainder of the appeal it is possible to identify two separate pleas. IH alleges that the Court of First Instance, first, committed a series of procedural irregularities which adversely affected its interests and, second, made errors of law in categorising the decisions of the Commission contained, respectively, in the letters of 19 July 2001 and 22 October 2002.
- 22 By the first plea, which is in four parts, IH alleges that the Court of First Instance committed a series of procedural irregularities which adversely affected its interests. First, IH submits that the Court of First Instance infringed Articles 113 and 114(3) and (4) of its Rules of Procedure. Second, IH complains that the Court of First Instance sent it misleading messages concerning the procedure which was being followed in dealing with its action. Third, IH contends that the Court of First Instance should have taken account of the additional observations which it had sent to it on 14October2003. Finally, IH alleges that the Court of First Instance infringed Article 64(1), (2) and (3) of its Rules of Procedure by refusing to adopt measures of organisation of procedure or inquiry.
- 23 In paragraphs 10 and 11 of the appeal, IH submits that the Court of First Instance infringed Articles 113 and 114(3) and (4) of its Rules of Procedure by ruling on admissibility by way of order without pursuing the normal procedure. IH argues, first, that the conditions for applying those provisions were not met because there was no absolute bar to proceeding with the action and no application pursuant to Article 114(1) of the Rules of Procedure had been made by a separate document. Second, the Court of First Instance committed an abuse of power by applying the procedure provided for in Article 113 of its Rules of Procedure, since use of that procedure is legitimate only by way of exception and not to close a critical debate between the parties. It is apparently in this context that, in paragraph 15 of the appeal, IH also alleges that the Court of First Instance infringed Articles 47(2) and 55 of its Rules of Procedure.
- 24 The question whether an action has been brought outside the period prescribed in the fifth paragraph of Article 230 EC concerns an absolute bar to proceeding with the action and, accordingly, the Court of First Instance may at any time consider it of its own motion in accordance with Article 113 of its Rules of Procedure.
- 25 Moreover, the Court of First Instance has a wide discretion as regards use of the procedure provided for in Article 113 of its Rules of Procedure and it is only in circumstances where use of the procedure is clearly unreasonable that its use could be the subject of an appeal. The fact that the order brought to an end what IH describes as ‘a critical debate of the parties concerning the question of … admissibility’ is standard. In the vast majority of cases, where an order declares an action inadmissible it brings a debate of that kind to an end.
- 26 In the present case the Court of First Instance cannot have committed an abuse of power by invoking the procedure provided for in Article 113 of its Rules of Procedure.
- 27 Articles 47(2) and 55 of the Rules of Procedure of the Court of First Instance are entirely irrelevant in the present context. The first of those provisions states that, with regard to the pleadings that are called for, it is the President of the Court of First Instance who fixes the time-limits within which they are to be lodged, but does not in any case require specific pleadings to be requested by the Court of First Instance, or indeed require further steps in the written procedure. Article 55 of the Rules of Procedure of the Court of First Instance, which concerns the order in which cases are dealt with by the Court of First Instance, is also irrelevant.
- 28 Consequently, the first part of the first plea must be rejected as clearly unfounded.
- 29 In paragraph 11 of the appeal, IH complains that the Court of First Instance sent to it, on 21 March and 20 October 2003, two letters which, in its submission, were misleading. It states that it took those letters to mean that the proceedings were following their normal course when, in actual fact, the Court had decided to conclude the proceedings by an order.
- 30 Even assuming that those letters could have misled IH with regard to the procedure for dealing with its action, it nevertheless appears that the appeal does not state how that misunderstanding could have adversely affected IH’s interests. As already pointed out at paragraph 25 of the present order, the Court of First Instance has a wide discretion as regards use of the procedure provided for in Article 113 of its Rules of Procedure and IH does not identify any new matter which it could have brought to the notice of the Court of First Instance to affect that decision.
- 31 The second part of the first plea must therefore be rejected as clearly unfounded.
- 32 In paragraph 12 of the appeal, IH complains that the Court of First Instance did not take account of the additional observations which it submitted on 14October2003. Annexed to those observations was a letter dated 8 August 2001 which, according to IH, was important for the decision concerning the admissibility of its action in that it substantiated its allegation that ECHO’s letter of 19 July 2001 did not involve a decision. According to IH, the fact that, in the letter of 8 August 2001, a member of ECHO’s staff asked for up-to-date information concerning ‘the developments of the judicial proceedings’ against it proves that no final decision on its application had been taken as at the date of that letter, that is to say 20 days after the letter of 19 July 2001.
- 33 Although there is a difference of opinion between IH and the Commission regarding to whom the letter in question was addressed, that question is irrelevant to the merits of this complaint.
- 34 It is to be observed at the outset that the Rules of Procedure of the Court of First Instance do not provide for the possibility of submitting documents such as the document lodged at the Registry of the Court of First Instance on the day before the contested order was made. Article 48(1) of the Rules of Procedure of the Court of First Instance admits such a possibility only in any reply or rejoinder.
- 35 In those circumstances, the Court of First Instance cannot be alleged to have committed a breach of procedure by virtue of having failed to take account of the additional observations submitted by IH on 14 October 2003.
- 36 The third part of the first plea must, consequently, also be rejected as clearly unfounded.
- 37 In paragraph 14 of the appeal, IH complains that the Court of First Instance failed to open an investigation and to question the Commission on two points. First, the Court of First Instance should have asked the Commission why ECHO did not reopen the file on the application from that non-governmental organisation to sign an FPA as soon as the German authorities’ charges against it had been dropped and why ECHO had not insisted earlier on receiving further information from the German Ministry for Foreign Affairs on this matter. Second, the Court of First Instance should have opened an investigation and asked the Commission questions concerning the Ombudsman’s conclusions on the same subject. Since the Court of First Instance did not conduct that examination, IH deduces that it infringed Article 64(1), (2) and (3) of its Rules of Procedure.
- 38 As to those submissions, suffice it to state that the Court of First Instance is the sole judge of any need for the information available to it concerning the cases before it to be supplemented (Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19).
- 39 The fourth part of the first plea must therefore be rejected as clearly unfounded.
- 40 By this second plea, IH alleges that the Court of First Instance categorised incorrectly the Commission’s letters of 19 July 2001 and 22 October 2002.
- 41 It should be noted at the outset that IH does not call into question the fundamental principle that an action for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is inadmissible (see, inter alia, Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 4, and Case 23/80 Grasselli v Commission [1980] ECR 3709, paragraph 18). IH contends, on the other hand, that the Court of First Instance was wrong to treat, first, the letter of 19 July 2001 as involving a decision and, second, the letter of 22October2002 as merely confirming that decision.
- 42 In IH’s submission, the Commission’s letter of 19 July 2001 does not involve any final decision, as is shown in particular by the fact that, subsequent to that letter, discussions between IH and ECHO continued, especially after the Ombudsman’s decision of 21 May 2002. Nor did that letter indicate possible rights of appeal (‘Rechtsmittelbelehrung’), information which under German administrative law is essential for every decision. In the absence of such reference, IH considers that it was unable to surmise that that letter had to be regarded as a decision.
- 43 As to those submissions, first, the fact that there was contact between ECHO and IH after the letter of 19 July 2001 does not alter in the slightest the fact that that letter is manifestly in the nature of a decision, as may be clearly deduced from its final paragraph. This expressly refers to the decision to ‘close [the] application file with a negative answer’.
- 44 Second, the argument regarding a failure to indicate possible rights of appeal is irrelevant, as the Commission rightly observes. The fact that German administrative law requires decisions to contain such information has no bearing on whether a communication may be categorised as a decision for the purposes of Article 230 EC. Moreover, the Commission cannot be bound by provisions of German administrative law and there is no equivalent obligation in Community law (see the order in Case C-154/98 Guérin automobiles v Commission [1999] ECR I‑1451).
- 45 In those circumstances, the inevitable conclusion is that the Court of First Instance clearly did not commit any error of law in categorising the letter of 19 July 2001 as a decision rejecting IH’s application. The first part of the second plea must therefore be rejected as clearly unfounded.
- 46 As regards the letter of 22 October 2002, in IH’s submission there are several differences between it and the letter of 19 July 2001, which should have led the Court of First Instance to conclude that the second letter amounted to a new position, and therefore an independent decision, and that IH could properly contest that decision by making an application to the Court of First Instance. In the appeal, IH points out the following differences compared with the letter of 19July 2001:
- 47 It is settled case-law that a decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the person to whom the earlier measure was addressed (judgments in Case 24/69 Nebe v Commission [1970] ECR145, Case 33/72 Gunnella v Commission [1973] ECR475, Case 54/77 Herpels v Commission [1978] ECR585, Grasselli v Commission, cited above, and Case T-4/90 Lestelle v Commission [1990] ECR II‑689, paragraphs 24 to 27, and order in Case T-84/97 BEUC v Commission [1998] ECR II-795, paragraph 52).
- 48 Clearly, none of the differences pointed out by IH constitutes a new factor or could lead to the conclusion that re-examination of its situation took place.
- 49 So far as concerns the complaint submitted to the Ombudsman, it should be noted first of all that under Article 2(6) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15) complaints submitted to the Ombudsman are not to affect time-limits for bringing judicial proceedings. Nor do those regulations or Article 195 of the Treaty concerning establishment of an Ombudsman impose an obligation on institutions who have been the subject of a complaint to re-examine their positions. In the present case, the Ombudsman’s decision, far from undermining ECHO’s position, confirmed that it had acted properly in making conclusion of an FPA conditional on an audit and it could not therefore be regarded as supplying a new factor in this respect.
- 50 The question whether IH could have been invited, in 2002, to sign the 1994 FPA, which was no longer in force, is irrelevant to the merits of the Commission’s rejection of IH’s original application and could not, therefore, be regarded as a new factor in this context.
- 51 As the Commission points out, its refusal to take disciplinary measures against the ECHO officials regarded a request clearly separate from the application to sign the FPA and is irrelevant to that application. Furthermore, the invitation extended by the Commission to lodge a new FPA application must clearly be understood as a purely conventional expression lacking anything in the nature of a decision since, in particular, it is immediately preceded by the statement that IH’s letter ‘fails to provide any new elements concerning [IH’s] acceptance of an eligibility audit, which solely would allow the Commission to reconsider its decision to reject IH’s application to the FPA with ECHO’.
- 52 In light of those considerations, the Court of First Instance clearly did not commit any error of law in treating the letter of 22 October 2002 as merely confirming the decision of 19 July 2001. The second part of the second plea must therefore be rejected as clearly unfounded.
- 53 It follows that the plea on appeal alleging incorrect categorisation of the letters of 19 July 2001 and 22 October 2002 must be rejected as clearly unfounded.
- 54 Accordingly, the appeal must be dismissed as clearly unfounded pursuant to Article 119 of the Rules of Procedure.
- 55 Under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 118 thereof, 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 Commission has applied for costs and IH has been unsuccessful, the latter must be ordered to pay the costs.
- 1.
- The appeal is dismissed.
- 2.
- The appellant shall bear the costs.
ORDER OF THE COURT (Fourth Chamber)
7 December 2004 (1)
(Appeal – Admissibility of the action – Whether the action is out of time – Fifth paragraph of Article 230 EC – Merely confirmatory decision – Categorisation)
In Case C-521/03 P,APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 15 December 2003,
Internationaler Hilfsfonds eV, represented by H. Kaltenecker, Rechtsanwalt,
appellant,
the other party to the proceedings being:
Commission of the European Communities, represented by M. Wilderspin and S. Fries, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fourth Chamber),
composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges,
Advocate General: L.A. Geelhoed,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
Legal context and facts
Legal context
‘The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.’
Facts
‘In reply to your letter of 6 July 2001, I would like to provide definitive clarification concerning ECHO’s position with respect to the application of Internationaler Hilfsfonds eV to sign the Framework Partnership Agreement.
The signature of an FPA with ECHO entails a number of obligations on the candidate’s part as well as a number of obligatory checks to be carried out by ECHO in cooperation with the Member States’ national authorities. Checks can include eligibility audits when these are deemed necessary to evaluate a potential partner’s conformity with Art. 7 of ... Regulation [No 1257/96]. To decide and to put into practice such control measures is an integral part of our work.
As you are well aware, the German authority responsible for providing information concerning humanitarian organisations in Germany is the Auswärtiges Amt [Ministry for Foreign Affairs]. ECHO duly consulted it for this purpose in 1995, after receiving your application to sign the FPA. In the absence of a positive response from the German authorities, the application could not be treated.
In 1999, with the entry into force of a new FPA, ECHO reopened your application file and decided to proceed to an eligibility audit, which is the normal procedure adopted with all applicants when the national authorities do not confirm their compliance with Art. 7.
ECHO decided to have such audit carried out on your organisation and informed you accordingly on 23 January 2001. Two dates were proposed for the visit: 22 and 23 February. No reply was given to our proposal. In further phone contacts, where my service (Mr Glatz, Mr Buda) invited you to propose alternative dates, you appeared to overreact to the idea of being audited and verbally abused my staff. On February 21, ECHO’s Head of Financial Unit, Mr Brandt, sent you a fax cancelling the planned audit and inviting you to propose a more convenient date for it, as a condition for signature. The deadline for such proposal was set at 31March. On 27 March you sent us a letter explaining that your organisation had already been audited by national authorities and scrutinised by VENRO.
We do not doubt the truth of your assertions. ECHO, however, is entitled and requests to carry out audits by itself.
We deeply regret that your organisation has not responded positively to a legitimate request, despite the efforts made by ECHO. Furthermore I must point out that the threatening tone of your last letter and your attitude towards my service and my staff was absolutely not in keeping with a genuine spirit of partnership.
For these reasons we are obliged to close your application file with a negative answer. We are copying this letter to Mr S. Stevenson.
...’
‘Commissioner Nielson received your letter and asked me to reply on his behalf.
The Commission received and examined the Ombudsman’s opinion of 21May2002 concerning [IH’s] complaint (ref 1702/2001/GG).
The critical remarks formulated by the Ombudsman in his opinion refer to events that took place in the past, for which the Ombudsman stated that no settlement is to be envisaged. In addition, the remarks pertain mainly to transparency issues that the Commission has by now tackled through a large reform process, as you know.
As regards the core of your complaint, i.e. your unsuccessful application to the Framework Partnership Agreement (FPA) with ECHO, the Commission wants to stress the following:
(1)Your request that IH be invited to sign the 1994 FPA, under the conditions in force at the time of its application in March 1996, is irrecevable, as that instrument is no longer in force and cannot, therefore, be subscribed. This matter also falls therefore within the issues that cannot be settled any more.
(2)As for recent events, the Ombudsman stated, in his opinion, that the rejection of IH’s application to the current FPA was justified.
I quote: “The Ombudsman considers that the Commission is justified in arguing that ECHO needs to check carefully whether organisations applying to sign the FPA meet the criteria for eligibility. An audit appears to be an appropriate way of ascertaining that this is the case. The Ombudsman considers that the Commission’s view according to which ECHO is entitled to insist on such audits thus appears reasonable. ...
In the absence of further evidence and in the light of the Commission’s statement that ECHO carried out 11 such audits in 2001, the Ombudsman arrives at the conclusion that the complainant has not established its claim that it was being discriminated by the fact that ECHO insisted on an audit in the present case. In these circumstances, there appears to be no maladministration on the part of the Commission in so far as this allegation is concerned.”
Your letter fails to provide any new elements concerning your acceptance of an eligibility audit, which solely would allow the Commission to reconsider its decision to reject IH’s application to the FPA with ECHO.
Of course, IH is most welcome to submit a new application to the FPA, under the conditions that are well known to you. I remind you that the acceptance of the aforementioned audit is an unquestionable precondition of eligibility.
With regard to the disciplinary measures you request the Commission to take against the officials who dealt with the IH file, and in line with the position expressed by the Commission in its letter of 19 September 2002 to your legal representative [ref. (2002) D32992], I confirm that neither the Commission nor the Ombudsman have identified grounds for opening an investigation on ECHO staff.
…’
The contested order
Forms of order sought
Consideration of the appeal
Introductory observations
The first plea, regarding alleged procedural irregularities
The first part of the first plea, regarding an alleged infringement of Articles 113 and 114(3) and (4) of the Rules of Procedure of the Court of First Instance
The second part of the first plea, regarding allegedly misleading messages
The third part of the first plea, regarding the refusal of the Court of First Instance to take account of additional observations submitted by IH
The fourth part of the first plea, regarding the refusal of the Court of First Instance to adopt measures of organisation of procedure or inquiry
The plea alleging incorrect categorisation of the decisions of the Commission contained in the letters of 19 July 2001 and 22 October 2002
The first part of the second plea, concerning the letter of 19July 2001
The second part of the second plea, concerning the letter of 22 October 2002
‘In that new letter ECHO explained its opinion on the Ombudsman’s decision, and why in its opinion … IH could not sign an application under the 1994 FPA, as that instrument was no longer in force, and it reconfirmed its opinion on criteria for eligibility by basing itself on arguments presented by the Ombudsman. That letter also included an invitation to submit a new application to the FPA. It also explained why in the Commission’s view no disciplinary measures against the ECHO officials who dealt with the IH file were required.’
Costs
On those grounds, the Court (Fourth Chamber) hereby orders:
Signatures
- 1 –
- Language of the case: English.