NO v Commission (Appeal - Conduct of a national professional body allegedly incompatible with the internal market - Order) [2023] EUECJ C-221/23P

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(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Articles 101 and 102 TFEU – Conduct of a national professional body allegedly incompatible with the internal market – Complaint by a professional belonging to that body – Rejection by the European Commission – Article 265 TFEU – Action for failure to act – Dismissal by the General Court of the European Union – Appeal manifestly unfounded)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 April 2023,

composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and N. Jääskinen, Judges,

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

1 By his appeal, NO seeks to have set aside the order of the General Court of the European Union of 1 February 2023, NO v Commission (T‑708/21, ‘the order under appeal’, EU:T:2023:49), by which the General Court dismissed his action seeking a declaration from the General Court that the European Commission unlawfully failed to define its position on his complaints submitted on 7 and 26 May 2020, his letter of 27 May 2021 and his letter of formal notice of 28 June 2021.

2 The appellant is a solicitor established in Ireland engaged in general practice in that Member State with an emphasis on litigation in defence of the right of injured persons to obtain compensation for their injury. He carries out his activity, inter alia, before the High Court of Ireland.

3 On 7 May 2020, the appellant, using Form C contained in the annex to Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), lodged an initial complaint with the Commission (‘the first complaint’). In that complaint, he alleged anticompetitive conduct on the part of the Law Society of Ireland (‘the Law Society’) and discrimination against him arising, inter alia, from the support provided by the latter to competitor solicitors in order to help them to recover their fees relating to work done for clients who subsequently became, before the end of the legal proceedings which they had initiated, clients of the appellant.

4 On 26 May 2020, using the electronic complaint form for failure to comply with EU law, the appellant lodged a second complaint with the Commission (‘the second complaint’). In that complaint, he complained of the alleged infringement of several provisions of EU law by Ireland, the High Court of Ireland and the Law Society.

5 On 8 July 2020, the Commission replied to the first complaint (‘the reply of 8 July 2020’). In its reply, that institution stated that it was not clear from the circumstances described in the first complaint that the Law Society, or its Complaints and Client Relations Committee, could be found to have infringed Articles 101 and 102 TFEU and the provisions of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1). As regards the allegations of infringements of other provisions of EU law, the Commission’s Directorate-General (DG) for Competition informed the appellant that his complaint had been forwarded for examination to DG Internal Market, Industry, Entrepreneurship and [Small and Medium-sized Enterprises (SMEs)] and to DG Justice and Consumers.

6 On 27 May 2021, the appellant informed the Commission of proceedings initiated against him by the Law Society and the Legal Services Regulatory Authority (Ireland) before the Solicitors Disciplinary Tribunal (Ireland) (‘the letter of 27 May 2021’).

7 On 28 June 2021, the appellant sent a letter of formal notice to the Commission and invited it to act, pursuant to Article 265 TFEU, in response to the second complaint, to the letter of 27 May 2021 and to three other letters which the appellant had sent to the Commission on 30 May, 7 June and 20 June 2021 (‘the letter of formal notice’).

8 By letter of 6 July 2021, the Commission informed the appellant that it had not yet been able to define its position on the second complaint.

9 By application lodged at the Registry of the General Court on 27 October 2021, the appellant brought an action for failure to act against the Commission.

10 On 22 November 2021, after that action had been brought, the Commission sent a letter to the appellant in which it expressed its views on the alleged infringements of EU law referred to by the appellant in the correspondence which he had sent to it (‘the reply of 22 November 2021’).

11 On 13 December 2021, the appellant sent a letter to the Commission in which he argued that the reply of 22 November 2021 could not be regarded as adoption of a position. On 4 February 2022, the Commission replied to that letter and closed the file.

12 On 30 May 2022, the Commission raised a plea of inadmissibility of the action at first instance and asked, in the alternative, the General Court to declare that there was no need to adjudicate on that action.

13 By the order under appeal, made on the basis of Article 130(1), (2) and (7) of its Rules of Procedure, the General Court, first, held that there was no longer any need to adjudicate on the action at first instance in so far as the appellant sought a declaration that the Commission had failed to examine the alleged infringements, in Ireland, of EU provisions on anticompetitive practices and, second, dismissed that action as inadmissible as to the remainder.

14 As regards, in the first place, the complaint alleging that the Commission failed to act as a result of an alleged failure to examine the existence, in Ireland, of an infringement of EU law on State aid, the General Court found, first of all, that the appellant had not submitted a complaint to the Commission on the basis of Article 24(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

15 According to the General Court, not only did the letter of formal notice not contain any express reference to the application of EU law on State aid, but also the first and second complaints, to which that letter referred, did not refer to an infringement of EU law on State aid, nor to a request to the Commission to examine the existence, in Ireland, of State aid measures that were unlawful or incompatible with the internal market.

16 As regards the letter of 27 May 2021, the General Court found that it did not contain any reference to the infringement of EU law on State aid and, in particular, to Article 108 TFEU or to the provisions of Regulation 2015/1589, or any request to the Commission to examine the existence, in Ireland, of State aid measures which were unlawful or incompatible with the internal market.

17 Since the letter of formal notice, as supplemented by the content of the letters which preceded it, did not therefore contain any invitation to the Commission to conduct ‘a diligent and impartial examination of complaints alleging the existence [in Ireland] of State aid that is unlawful and incompatible with the [internal] market’, the General Court held, in paragraph 53 of the order under appeal, that the action at first instance had to be dismissed as inadmissible in so far as it sought a declaration that the Commission had failed to act in relation to the failure to examine the infringement of EU law on State aid.

18 As regards, in the second place, the Commission’s failure to act as a result of an alleged failure to define a position on the complaints alleging infringement of Articles 101 and 102 TFEU and of Regulation No 1/2003, the General Court examined, in paragraphs 54 to 76 of the order under appeal, the objections raised by the Commission in that regard. According to the Commission, first, in its reply of 8 July 2020, it had responded to the first complaint alleging infringement of Articles 101 and 102 TFEU, that allegation having merely been repeated in the second complaint. In so far as it adopted a position on that allegation before the action at first instance was brought, that action should be declared inadmissible. Second, the Commission maintained that it had responded to the first and second complaints after that action had been brought, by the reply of 22 November 2021, which reaffirmed the position expressed in the reply of 8 July 2020. The Commission thus asserted that, in any event, the action at first instance had become devoid of purpose and there was therefore no longer any need to adjudicate on it.

19 In that regard, the General Court found, in particular, in paragraph 67 of the order under appeal, that although, admittedly, in the reply of 22 November 2021, the Commission had not expressly mentioned the first and second complaints or the letter of formal notice, the fact remained, first, that the letter of 27 May 2021, cited by the Commission in the reply of 22 November 2021, again referred to infringements of Articles 101 and 102 TFEU which had already been complained of in the first and second complaints on the basis of the same facts as those referred to in those complaints. Second, in the letter of formal notice, the appellant had called on the Commission to take action in respect of the same infringements caused by the same facts.

20 The General Court concluded, in paragraph 68 of the order under appeal, that, by its reply of 22 November 2021, the Commission had expressed its view on the appellant’s allegations concerning the infringement, in Ireland, of EU law on anticompetitive practices, contained in the correspondence sent by the appellant to the Commission as from 7 May 2020.

21 Given that the reply of 22 November 2021 merely referred to the content of the reply of 8 July 2020, the General Court held, in paragraph 69 of that order, that it was in the light of the content of that reply that it was necessary to assess whether the Commission had adopted a position on the appellant’s complaints alleging infringement of Articles 101 and 102 TFEU and the existence, in Ireland, of a discriminatory practice against him.

22 Thus, in paragraph 70 of the order under appeal, the General Court made a detailed assessment of the content of the reply of 8 July 2020. It concluded, in paragraph 71 of that order, that the Commission had provided a response concerning the infringements of EU law concerning the anticompetitive practices alleged by the appellant in the first complaint and again set out in the second complaint, in the letter of 27 May 2021 and in the letter of formal notice. The reply of 8 July 2020 thus constituted a position adopted by the Commission, by which the latter indicated to the appellant that it was not apparent from the circumstances described by him that the Law Society infringed Articles 101 and 102 TFEU, that the case described by the appellant did not appear to satisfy the condition that trade between Member States must be affected and that the complaint alleging those infringements would be classified as market information without any further follow-up on the part of that institution.

23 Furthermore, in paragraph 72 of that order, the General Court held that, by the reply of 22 November 2021, in so far as it referred to the content of the reply of 8 July 2020, the Commission had confirmed that position.

24 The General Court concluded, in paragraph 76 of the order under appeal, in essence, that the Commission had defined a position at the very least before the order under appeal was made, with the result that there was no longer any need to adjudicate on the Commission’s alleged failure to act with regard to alleged infringements of Articles 101 and 102 TFEU and of Regulation No 1/2003 and the existence of anticompetitive practices in Ireland.

25 In the third place, as regards the complaint that the Commission failed to act as a result of an alleged failure to adopt a position on the infringements of primary and secondary EU law, with the exception of the provisions of EU law on State aid and anticompetitive practices, the General Court found that the appellant was seeking, in reality, a declaration that the Commission had failed to act inasmuch as it had failed to initiate the procedure provided for in Article 258 TFEU against Ireland. In the context of the infringement procedure governed by that provision, natural or legal persons may rely on the third paragraph of Article 265 TFEU only in order to obtain a declaration that an EU institution, body, office or agency has failed to adopt, in breach of the FEU Treaty, measures, other than recommendations or opinions, whose lawfulness they are able to challenge by means of an action for annulment. By contrast, those persons are not entitled to bring an action against a refusal on the part of the Commission to initiate an infringement procedure against a Member State. Accordingly, the General Court held that, to that extent, the action at first instance had to be dismissed as inadmissible.

– declare, in accordance with the third paragraph Article 265 TFEU, that the Commission failed to define its position in the context of its obligations under the FEU Treaty in response to the first and second complaints, the letter of 27 May 2021 and the letter of formal notice; and

27 In the alternative, NO requests the Court of Justice to refer the case back to the General Court after the order under appeal has been set aside and to reserve the costs of the proceedings at first instance and on appeal.

29 The first ground of appeal is directed against paragraphs 20, 53 and 76 of the order under appeal and alleges an error of law or of reasoning with regard to the assessment of the obligation on the Commission to accord the appellant his procedural rights on receipt by the Commission of the first and second complaints and the letter of 27 May 2021.

30 The second ground of appeal alleges an error of law or an error of reasoning with regard to an assessment, by the General Court, of the status of the Commission’s reply of 8 July 2020 as the ‘definition of a position’.

31 The third ground of appeal alleges an error of law or of reasoning vitiating paragraphs 68 and 72 of the order under appeal as a result of the General Court’s assessment of the reply of 22 November 2021 as the ‘definition of a position’.

32 By this ground of appeal, the appellant complains that the General Court failed to observe that, pursuant to Article 7(1) of Regulation No 773/2004 and points 56 and 68 of the Commission Notice on the handling of complaints by the Commission under Articles [101 and 102 TFEU], the Commission should have asked the appellant to make known his views on the lack of sufficient grounds for acting on his complaint, as found by that institution.

33 In so far as, in the presentation of that ground of appeal, the appellant refers both to paragraph 53 and to paragraph 76 of the order under appeal, that ground of appeal must be understood as comprising two parts, the first being directed against the decision of the General Court relating to the partial inadmissibility of the action at first instance, and the second against the General Court’s decision that there was no need to adjudicate.

34 By the first part of his first ground of appeal, the appellant criticises the General Court for having held, in paragraph 53 of the order under appeal, that, in so far as the action at first instance seeks a declaration of failure to act as regards the failure to examine the infringement of EU law on State aid, it had to be dismissed as inadmissible, whereas the General Court should have found an infringement, by the Commission, of the appellant’s procedural rights under, inter alia, Regulation No 773/2004.

35 It is true that among the procedural rights enjoyed by the complainant is the right, provided for in Article 7(1) of Regulation No 773/2004, to be informed of the grounds on which the Commission proposes to reject the complaint and to make known his or her views before a decision to that effect is adopted by that institution (see, to that effect, order of 31 March 2011, EMC Development v Commission, C‑367/10 P, EU:C:2011:203, paragraph 76).

36 However, as regards the existence of a failure on the part of the Commission to act with regard to an alleged infringement of the EU rules on State aid, the General Court amply established that the Commission had not received a complaint in that regard, with the result that, in the light of the fact that, under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution in question has first been called upon to act, the action at first instance, in so far as it sought a declaration that the Commission had failed to act in relation to a failure to examine the infringement of EU law on State aid, had to be dismissed as inadmissible.

37 Since, in the absence of a complaint concerning a possible infringement of EU law on State aid, the procedural rights attached to such a complaint were, therefore, themselves non-existent, the appellant’s line of argument, in so far as he complains that the General Court did not find that the Commission infringed his procedural rights, consisting of being invited to define a position, cannot succeed.

38 The first part of the first ground of appeal must therefore be rejected as manifestly unfounded.

39 By the second part of his first ground of appeal, the appellant complains, in essence, that the General Court held, in paragraph 76 of the order under appeal, that there was no longer any need to adjudicate on the action at first instance in so far as it related to the Commission’s failure to examine possible infringements of Articles 101 and 102 TFEU and of Regulation No 1/2003 and the existence in Ireland of anticompetitive practices, whereas it should have found an infringement, by the Commission, of his procedural rights under, inter alia, Regulation No 773/2004.

40 The General Court correctly pointed out, first, in paragraph 73 of the order under appeal, that Article 265 TFEU refers to failure to act or to define a position, not the adoption of a measure different than that desired or considered necessary by the person concerned (see, to that effect, order of 16 June 2020, CJ v Court of Justice of the European Union, C‑634/19 P, EU:C:2020:474, paragraph 28) and, second, in paragraph 58 of the order under appeal, that the refusal by the institution in question to act constitutes the adoption of a position putting an end to the failure to act, a refusal which constitutes an act that may be challenged pursuant to Article 263 TFEU (see, to that effect, judgment of 24 March 2022, Wagenknecht v Commission, C‑130/21 P, EU:C:2022:226, paragraphs 31 and 32).

41 The appellant should therefore have challenged the alleged infringement, by the Commission, of its obligations under Regulation No 773/2004 by bringing an action for annulment on the basis of Article 263 TFEU and not an action for failure to act provided for in Article 265 TFEU.

42 Since, in paragraph 76 of the order under appeal, the General Court correctly held that, because the Commission had defined its position, there was no longer any need to adjudicate on the alleged failure to act with regard to alleged infringements of Articles 101 and 102 TFEU and of Regulation No 1/2003, the second part of the first ground of appeal is manifestly unfounded.

44 By his second ground of appeal, the appellant submits that, contrary to what the General Court found in paragraphs 61, 68, 71 and 72 of the order under appeal, the reply of 8 July 2020 cannot constitute the definition of a position. As a result of the Commission’s infringement of the appellant’s procedural rights, the decision rejecting his complaint is unlawful and cannot, as such, be classified as a ‘definition of a position’ within the meaning of Article 265 TFEU.

45 It must be held that that line of argument overlaps with that put forward in support of the first part of the first ground of appeal and must therefore be rejected for the same reasons as those set out in paragraphs 36 to 40 of the present order.

46 In any event, the General Court correctly decided, in paragraph 71 of the order under appeal, that the Commission had provided a response concerning the appellant’s claims regarding alleged infringements of EU law resulting from anticompetitive practices. The position adopted by the Commission consisted, inter alia, in informing the appellant that it was not apparent from the circumstances described by him that the Law Society had infringed Articles 101 and 102 TFEU, that the case described by the appellant did not appear to satisfy the condition that trade between Member States must be affected and that the complaint alleging those infringements would be classified as ‘market information’ without any further follow-up on the part of the Commission.

48 By his third ground of appeal, the appellant submits that the reply of 22 November 2021 should not have been regarded by the General Court, in paragraphs 68 and 72 of the order under appeal, as a ‘definition of a position’ within the meaning of Article 265 TFEU, since that reply was not communicated within the prescribed period.

49 It is nevertheless apparent that, in paragraph 69 of the order under appeal, the General Court rightly pointed out that, given that the reply of 22 November 2021 merely referred to the content of the reply of 8 July 2020, it was in the light of the content of that reply that it was necessary to assess whether the Commission had adopted a position on the appellant’s complaints alleging infringement of Articles 101 and 102 TFEU.

50 In that regard, the General Court was fully entitled to hold, in paragraph 75 of the order under appeal, that the fact that the appellant sent the second complaint, which was identical in subject matter to the first complaint and was based on the same factual or legal situation as that complaint, cannot deprive the Commission’s reply of 8 July 2020, confirmed by the reply of 22 November 2021, of its status as a ‘definition of a position’ on the alleged existence, in Ireland, of infringements of EU law on anticompetitive practices.

51 In those circumstances, it must be held that the third ground of appeal, in so far as it criticises the order under appeal for classifying the reply of 22 November 2021 as a ‘definition of a position’, has no factual basis, in so far as it is apparent from the order under appeal, in particular from paragraph 75 thereof, that the General Court considered that it was the reply of 8 July 2020 which had to be regarded as the only position adopted by the Commission, since the reply of 22 November 2021 merely confirmed the content of that position. Accordingly, the third ground of appeal, which is based on a manifestly incorrect reading of that order, must be rejected as manifestly unfounded.

52 Since the three grounds of appeal put forward in support of the present appeal are manifestly unfounded, the appeal must be dismissed in its entirety as manifestly unfounded.

53 Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Here, since the present order was adopted before the appeal was served on the defendant at first instance and therefore before the latter could have incurred costs, it must be held that NO is to 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) >> NO v Commission (Appeal - Conduct of a national professional body allegedly incompatible with the internal market - Order) [2023] EUECJ C-221/23P_CO (05 October 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C22123P_CO.html Cite as: [2023] EUECJ C-221/23P_CO, EU:C:2023:754, ECLI:EU:C:2023:754

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