ORDER OF THE COURT (Fourth Chamber)

9 July 1998 ( *1 )

In Case C-317/97 P,

Smanor SA, a company incorporated under French law, established at Saint-Martin-d'Écublei, France, and

Hubert Ségaud and Monique Ségaud, residing at Saint-Martin-d'Écublei,

represented by Laurence Roques, of the Val-de-Marne Bar, 7-9 Rue du General de Larminat, Créteil, France,

appellants,

APPEAL against the order of the Court of First Instance of the European Communities (Second Chamber) of 3 July 1997 in Case T-201/96 Smanor and Others ν Commission [1997] ECR II-1081 , seeking to have that order set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Richard B. Wainwright, Principal Legal Adviser, and Olivier Couvert-Castéra, a national official on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Fourth Chamber),

composed of: H. Ragnemalm, President of the Chamber, P. J. G. Kapteyn and K. M. Ioannou (Rapporteur), Judges,

Advocate General: A. Saggio,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1By application lodged at the Registry of the Court of Justice on 15 September 1997, Smanor SA and its managers and principal shareholders Hubert and Monique Ségaud brought an appeal under Article 49 of the EC Statute of the Court of Justice against the order of the Court of First Instance of 3 July 1997 in Case T-201/96 Smanor and Others ν Commission [1997] ECR II-1081 (‘the order under appeal’) in so far as it dismissed their application for a declaration that, by failing to bring infringement proceedings against the French Republic under Article 169 of the EC Treaty, the Commission had failed to act, and for compensation for the damage arising out of that failure.

Facts and procedure

2According to the findings made by the Court of First Instance in the order under appeal, Smanor is a French company formerly specialising in the production and sale of fresh and deep-frozen dairy products, in particular yoghurt which it deep-froze by a patented process of its own invention (paragraph 1).

3From 1977 onwards, the French authorities took a number of steps, including bringing criminal proceedings, to prevent Smanor, on the basis of the then applicable French regulations, from marketing such products under the name ‘yaourt’ or ‘yoghour’ (paragraph 2).

4On 6 November 1986, taking the view that the various proceedings brought against it had been the cause of its financial difficulties and that the regulations on which they were based were unlawful, it brought an action against the French State seeking compensation for the damage it had thereby suffered (paragraph 3).

5In addition, by letter dated 24 November 1986 to the Commission, Smanor lodged a complaint against the French Republic, claiming that the French regulations on the prevention of fraud with regard to fermented milk and yoghurt were contrary to Community law and in particular to Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer ( OJ 1979 L 33, p. 1 ). In response to that complaint, the Commission informed Smanor, by letter of 3 April 1988, that a letter of formal notice would be sent to the French Republic under Article 169 of the EC Treaty (paragraph 4).

6In 1987, judicial settlement proceedings were brought against Smanor before the Tribunal de Commerce (Commercial Court), L'Aigle, which considered that Smanor's financial problems stemmed from the French rules relating to yoghurt and, by judgment of 21 September 1987, requested the Court of Justice to give a preliminary ruling on the interpretation of Articles 30 to 36 of the EC Treaty and Articles 5, 15 and 16 of Directive 79/112 (paragraph 5).

7In its judgment of 14 July 1988 in Case 298/87 Smanor [1988] ECR 4489 , the Court of Justice ruled:

‘(1)

Article 30 of the Treaty precludes a Member State from applying to products imported from another Member State, where they are lawfully manufactured and marketed, national rules which reserve the right to use the name “yoghurt” solely to fresh yoghurt, to the exclusion of deep-frozen yoghurt, when the characteristics of the latter product are not substantially different from those of the fresh product, and when appropriate labelling, together with an indication of the date by which the product should be sold or consumed, is sufficient to ensure that consumers are properly informed.

(2)

The provisions of Directive 79/112/EEC, in particular Article 5, must be interpreted as precluding the application of national rules which refuse to allow imported or domestic products which have been deep-frozen to bear the name “yoghurt”, where those products, for the rest, comply with the requirements laid down by the national rules for fresh products to bear that name.’

8Following its first complaint against the French Republic, lodged with the Commission on 24 November 1986, Smanor lodged further complaints in 1990, 1991, 1993 and 1995 concerning the unlawfulness of the French regulations relating to yoghurt (paragraph 9).

9By letter dated 9 October 1996, referring to its letter of 30 July 1996 in which it had already requested that the Commission state its definitive position on those complaints, Smanor called upon the Commission to initiate infringement proceedings against the French Republic. By application lodged at the Registry of the Court of First Instance on 9 December 1996, the appellants brought an action against the Commission for a declaration that it had failed to act and for damages. They submitted that the Commission was under a duty to take steps to ensure that the French Republic implemented the Smanor judgment, cited above. The Commission raised an objection to admissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance.

The order under appeal

10In the order under appeal, the Court of First Instance dismissed the appellants' action as inadmissible.

11At paragraph 23, it held, on the basis of the case-law of the Court of Justice, that it is clear from the scheme of Article 169 that the Commission is not obliged to commence proceedings under that article but has a discretion in that regard which excludes the right for individuals to require it to adopt a specific position (Case 247/87 Star Fruit ν Commission [1989] ECR 291, paragraph 11 ).

12At paragraph 24, it pointed out that those principles cannot be conditioned by the nature of the infringement of Community law alleged against the Member State concerned (Case T-13/94 Century Oils Hellas ν Commission [1994] ECR II-431, paragraph 15 ).

13At paragraph 25, it added that, by requesting the Commission to initiate a procedure under Article 169 of the Treaty, the appellants were in fact seeking the adoption of acts which would not be of direct and individual concern to them within the meaning of the fourth paragraph of Article 173 of the EC Treaty and which they would thus in any event be unable to challenge in annulment proceedings ( Star Fruity cited above, paragraph 13).

14With regard to the claim for damages, the Court of First Instance held at paragraph 30 that, since the Commission was under no obligation to commence infringement proceedings under Article 169 of the Treaty, its decision not to do so was not, in any event, unlawful and thus could not give rise to non-contractual liability on the part of the Community, the only conduct which might possibly be adduced as giving rise to damage being the conduct of the Member State concerned, in this case the French State (Case C-72/90 Asia Motor France ν Commission [1990] ECR I-2181, paragraph 13 ).

The appeal

15The appellants claim that the Court should:

—

set aside the order under appeal ‘... for failure to respect the secondary Community legislation specifically applicable to the case ...’,

—

give final judgment in the case, the state of the proceedings being such as to permit it to do so,

—

rule that the appellants' claim for damages under Article 215 of the EC Treaty is well founded and

—

order the Commission to pay the entire costs.

16The appellants set out a detailed account of the background to the case and refer to the ‘completely new circumstances’ of the present dispute as compared with those of the Star Fruit case, cited above, the judgment in which is, they claim, completely inapplicable to their case ‘... as it related to factual circumstances utterly unrelated to the legal consequences imposed by the binding ruling in the judgment in Smanor ...’. The Commission, they assert, is guilty of a serious breach of its unconditional obligation to ensure that that judgment was implemented by the French Republic.

17In addition, they argue, Article 30, read together with Article 5, of the EC Treaty requires the Member States and the Commission to take all necessary and appropriate measures to ensure that the fundamental freedom which it establishes extends throughout the territory of the Community. Furthermore, the exercise of the supervisory duty imposed on the Commission by the case-law of the Court of Justice requires it to take action, within the time-limit laid down in Article 175 of the EC Treaty, on any formal requests sent to it. All the necessary conditions for the Court of First Instance to find that the Commission has failed to act are thus met.

Findings of the Court

18Under Article 119 of the Rules of Procedure of the Court of Justice, where an appeal is clearly inadmissible or clearly unfounded, the Court may at any time dismiss it by reasoned order, without opening the oral procedure.

19Furthermore, the first paragraph of Article 51 of the EC Statute of the Court of Justice provides that an appeal is limited to points of law and must be based on grounds of the lack of competence of the Court of First Instance, breach of procedure before it which adversely affects the interests of the appellant or infringement of Community law by the Court of First Instance. Article 112(l)(c) of the Rules of Procedure provides that an appeal must specify the pleas in law and legal arguments relied on.

22In the present case, as stated in paragraphs 16 and 17 above, the appellants, after setting out again the background to the case, then proceeded merely to reproduce in general the arguments which they had already put before the Court of First Instance, namely that the Commission was under an obligation to initiate infringement proceedings against the French Republic given that France had, as they alleged, failed to comply with the judgment in Smanor, cited above. They have thus not indicated precisely the contested elements of the reasoning in the order under appeal, as set out in paragraphs 11 to 14 above, nor have they put forward any arguments specifically capable of supporting the forms of order which they seek.

23The appeal must therefore be dismissed as clearly inadmissible, pursuant to Article 119 of the Rules of Procedure.

Costs

24Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal under Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs. Since the appellants have been unsuccessful, they must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby orders:

1.The appeal is dismissed.

2.The appellants shall pay the costs.

Luxembourg, 9 July 1998.

R. Grass

Registrar

H. Ragnemalm

President of the Fourth Chamber

( *1 ) Language of the case: French.