ORDER OF THE COURT (Sixth Chamber)
22 June 2005 (*)
(Appeal – Action for damages – Unsubstantiated refusal of a United Kingdom court of last resort to refer a question to the Court of Justice for a preliminary ruling – Failure to adopt measures on the part of the Council and the Commission– Non-contractual liability of the Community – Clear inadmissibility)
In Case C-190/04 P,
APPEAL under Article 56 of the Statute of the Court of Justice lodged on 23April 2004,
Graham French,
John Steven Neiger,
Michael Leighton,
represented by J. Barnett, Solicitor-advocate,
appellants,
the other parties to the proceedings being:
Council of the European Union, represented by M. Sims and M. Bauer, acting as Agents,
Commission of the European Communities, represented by C. Docksey and M.Shotter, acting as Agents, with an address for service in Luxembourg,
defendants at first instance,
John Pascoe,
Richard Micklethwait,
Ruth Margaret Micklethwait,
applicants at first instance,
THE COURT (Sixth Chamber),
composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and U.Lõhmus (Rapporteur), Judges,
Advocate General: A. Tizzano,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
1By their appeal, Mr French, Mr Neiger and Mr Leighton seek to have set aside the order of the Court of First Instance of the European Communities of 20 February 2004 in Case T-319/03 French and Others v Council and Commission, not yet published in the ECR (‘the order under appeal’), dismissing the application for damages which they had made, with three other applicants, to compensate for the loss allegedly suffered by them as a result of the failure of the Council of the European Union and of the Commission of the European Communities to adopt measures concerning the infringement by certain United Kingdom courts of their obligation to refer questions to the Court of Justice for a preliminary ruling.
The facts, the procedure before the Court of First Instance and the order under appeal
2By application lodged on 12 September 2003, the applicants, members or former members (‘names’) of Lloyd’s of London (‘Lloyd’s’), brought before the Court of First Instance an action for damages under Articles 235 EC and 288 EC seeking an order that the Community pay damages with interest together with any other relief to compensate for the loss allegedly suffered by them.
3According to the applicants, that loss flowed from an order of 13 March 1998 that they pay their debts to Lloyd’s and from the insolvency of some of them which occurred subsequently to that order. They state that on 9 March 1998 they had requested that the national court seised of the matter refer to the Court of Justice for a preliminary ruling a question on the interpretation of the auditing requirements imposed by First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3). That request was refused even though there was no right of appeal against the decision of that court.
4In October 1999, the applicants made a complaint to the Commission the purpose of which was to report the failure of the United Kingdom courts to comply with their obligations under Article 234 EC. By letters of 16 June 2003 and 18 July 2003, the Commission informed the applicants that, following the intervention of the competent Commission services, the United Kingdom authorities had amended the procedure of the Judicial Committee of the House of Lords to ensure that where that committee refuses an application for a reference for a preliminary ruling in a case in which a party raises an issue of Community law, it gives reasons for its decision, setting out in particular the reasons why there was no need to refer the matter to the Court of Justice.
5The Court of First Instance dismissed the action for damages as manifestly inadmissible under Article 111 of its Rules of Procedure without serving the application initiating proceedings on the defendants, because it did not satisfy the minimum requirements of Article 44(1)(c) of those Rules.
6In particular, in paragraph 17 of the order under appeal, the Court of First Instance held that, in their application, the applicants had not specified the primary rule of law which the Council is said to have infringed or explained how that institution is said to have infringed Article 234 EC, which concerns an obligation on courts and tribunals of a Member State against whose decisions there is no judicial remedy under national law to refer to the Court of Justice a question concerning the interpretation of acts of the institutions of the Community. In paragraphs 18 and 19 of that order, the Court of First Instance held that the applicants had also failed to identify any unlawful conduct attributable to the Commission.
7Lastly, in paragraph 24 of the order under appeal, the Court held that the application did not enable a causal link to be established between any unlawful conduct on the part of the Council or the Commission and the damage pleaded.
The appeal
8By their appeal, in support of which they advance two pleas in law alleging an error of law and an infringement of Community law, the appellants claim that the Court should:
–set aside the order under appeal;
–grant the relief sought by the appellants in the form of the draft order annexed to the appeal;
–in the alternative, refer the case back to the Court of First Instance and, in any event
–order the Council and the Commission to pay the costs.
9The Commission contends, primarily, that the appeal is clearly inadmissible or, in the alternative, clearly unfounded. The Council did not lodge a response within the prescribed period.
10It should be noted that, under Article 119 of its Rules of Procedure, the Court may at any time by reasoned order dismiss an appeal which is clearly inadmissible or clearly unfounded.
The first plea in law
11By their first plea, entitled ‘Breach of procedure’, the appellants submit that the order under appeal is based on a manifest error of law on the part of the Court of First Instance. They point out that, contrary to what is held in paragraph 15 of that order, the loss that they have suffered was occasioned by the refusal of the national court on 9 March 1998 either to refer the matter to the Court of Justice or to state reasons for its refusal to do so, given that it was sitting as a court of last resort.
12It should be noted in this connection that, after setting out in paragraph 14 of the order under appeal the conditions to be satisfied by an application for compensation for damage allegedly caused by a Community institution, the Court of First Instance merely stated in paragraph 15 of the same order that ‘according to the applicants, the damage suffered arises from their being ordered, on 13March 1998, to pay their debts to Lloyd’s and from the insolvency of some of them which occurred subsequently to that order’.
13It should be borne in mind that, as is clear from Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal is limited to points of law. The Court of First Instance thus has exclusive jurisdiction to establish and assess the relevant facts and to assess the value which should be attached to the items of evidence produced to it, unless there has been distortion of such facts or evidence (see, in particular, the orders of 11 November 2003 in Case C-488/01 P Martinez v Parliament, not yet published in the ECR, paragraph 53, and of 1 October 2004 in Case C-379/03 P Pérez Escolar v Commission, not published in the ECR, paragraph 33).
14In the present case, the Court finds that, by this plea, the appellants merely challenge an assessment of fact by the Court of First Instance without adducing any evidence to show substantive inaccuracy in the Court of First Instance’s findings in the light of the documents before it.
15Accordingly, the first plea in law must be rejected as clearly inadmissible.
The second plea in law
16By the second plea, the appellants allege that the Court of First Instance infringed Community law by holding, in paragraphs 16 and 17 of the order under appeal, that the application did not specify the primary rule of law which the Council and the Commission are said to have infringed, whilst in paragraphs 2 and 6 of the application initiating proceedings it is stated that the action for damages is based on Articles 235 EC and 288 EC as well as on Articles 234 EC and 211 EC.
17It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1) first subparagraph, (c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C-234/02 P European Ombudsman v Lamberts, not yet published in the ECR, paragraph 76, and the order of 25 November 2004 in Case C-18/03 P Vela and Tecnagrind v Commission, not published in the ECR, paragraph 63).
18That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see, in particular, Bergaderm and Goupil, paragraph 35; European Ombudsman v Lamberts, paragraph 77, and the order in Vela and Tecnagrind, paragraph 64).
19In the present case, the appellants do not address the question of the Court of First Instance’s dismissal of the action based on the fact that the application did not satisfy the minimum requirements of Article 44(1)(c) of its Rules of Procedure. The appellants also fail to set out cogent legal arguments specifically in support of the claim to set aside the order under appeal and merely reiterate those previously submitted at first instance.
20It follows that the second plea is clearly inadmissible.
21Since the pleas in law advanced by the appellants are clearly inadmissible, the appeal must be dismissed.
Costs
22Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118, 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 applied for costs and the appellants have been unsuccessful, they must be ordered to pay the costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.The appeal is dismissed.
2.Mr French, Mr Neiger and Mr Leighton shall pay the costs.
Signatures
* Language of the case: English.