Avis juridique important

Order of the Court of 30 March 1990. - Maria-Theresia Emrich v Commission of the European Communities. - Action for failure to act - Manifest lack of jurisdiction. - Case C-371/89. European Court reports 1990 Page I-01555

Summary Parties Grounds Operative part

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Action for failure to act - Natural or legal persons - Actionable failures to act - Failure to bring an action to establish an infringement of the Treaty - Inadmissibility

( EEC Treaty, Arts 169 and 175, third paragraph )

An action for failure to act is inadmissible where it is brought by a natural or legal person and seeks a declaration that, by failing to bring an action against a Member State to establish an infringement of the Treaty, the Commission has failed to act, thereby infringing the Treaty .

The right of natural or legal persons to bring an action before the Court, pursuant to the third paragraph of Article 175 of the Treaty, is limited to applications seeking to establish a failure to adopt, contrary to the Treaty, acts which are potentially addressed to them . Within the context of the infringement procedure laid down by Article 169, the only measures which the Commission may be induced to take are addressed to the Member States .

In Case C-371/89

Maria-Theresia Emrich, Rechtsanwaeltin in Wiesbaden ( Federal Republic of Germany ),

applicant,

v

Commission of the European Communities,

defendant,

APPLICATION for a declaration, pursuant to Article 175 of the EEC Treaty, that the Commission has failed to bring an action against the Federal Republic of Germany to establish an infringement of the Treaty, pursuant to Article 169 of the EEC Treaty,

THE COURT

composed of : O . Due, President, Sir Gordon Slynn, C . N . Kakouris and F . A . Schockweiler ( Presidents of Chambers ), G . F . Mancini, R . Joliet, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse and M . Diez de Velasco, Judges,

Advocate General : W . Van Gerven

Registrar : J.-G . Giraud

after hearing the opinion of the Advocate General,

makes the following

Order

1 By an application lodged at the Court Registry on 27 November 1989, Mrs Maria-Theresia Emrich, a Rechtsanwaeltin in Wiesbaden, brought an action seeking essentially to establish, pursuant to the third paragraph of Article 175 of the EEC Treaty, that the Commission has failed to commence proceedings against the Federal Republic of Germany pursuant to Article 169 of the EEC Treaty .

2 The applicant contends that German legislation, which permits German lawyers to provide services only before the court of law before which they are entitled to practise, infringes Articles 7, 8, 59, 60, 65 and 66 of the EEC Treaty and Council Directive 77/249/EEC of 22 March 1977, adopted to facilitate the effective exercise by lawyers of freedom to provide services ( Official Journal 1977, L 78, p . 17 ). She also claims that the Federal Republic of Germany has infringed the Treaty inasmuch as the superior German courts refused to make a reference to the Court of Justice for a preliminary ruling on the interpretation of Community law to enable them to assess whether the German legislation is compatible with it .

3 Article 92(1 ) of the Rules of Procedure provide that, "where it is clear that the Court has no jurisdiction to take any cognizance of an application lodged with it in pursuance of Article 38(1 ), the Court may by reasoned order declare the application inadmissible . Such a decision may be adopted even before the application has been served on the party against whom it is made ".

4 The action brought by the applicant, in so far as it is based on the third paragraph of Article 175 of the Treaty, seeks a declaration that, by failing to bring an action against the Federal Republic of Germany to establish an infringement of the Treaty, the Commission has failed to act, thereby infringing the Treaty .

8 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the applicant has failed in her submissions, she must be ordered to pay the costs .

On those grounds,

THE COURT

hereby orders as follows :

( 1 ) The application is inadmissible;

( 2 ) The applicant is ordered to pay the costs .

Luxembourg, 30 March 1990 .