Case C-396/03 P

Magnus Killinger

v

Federal Republic of Germany and Others

(Appeal – German graduates of Higher Colleges of Law – Discrimination)

Order of the Court (Fourth Chamber), 3 June 2005

Summary of the Order

1. Appeals — Pleas in law — Grounds of a judgment vitiated by an infringement of Community law — Operative part well founded on other grounds — Dismissed

2. Actions for failure to act — Institution must be called upon to act — Invitation to act — Constitution by the action itself — Excluded

(Art. 232, second para., EC)

3. Community law — Principles — Right to an effective remedy — Infringement of Community law by the national authorities of a Member State — Bringing of proceedings before the Community Courts by the Commission or by another Member State and bringing of proceedings before the competent national courts by any natural or legal person — Effectiveness of judicial protection not undermined

1. An infringement of Community law by the Court of First Instance does not trigger the annulment of the contested order where its operative part appears well founded on other legal grounds.

(see para. 12)

2. The second paragraph of Article 232 EC makes the admissibility of an action for failure to act subject to the condition that the defendant institution concerned should first have been called upon to act. As regards a condition of the admissibility of the action, it cannot be considered that the application brought before the Court of First Instance may be described as an invitation for the purposes of the second paragraph of Article 232 EC.

(see para. 16)

3. In the system of legal remedies provided for by the Treaty, an infringement of Community law by the national authorities, including an infringement of the third paragraph of Article 234 EC, may be brought before the Community Courts by the Commission or by another Member State, or may be brought before the competent national courts by any natural or legal person. In the latter case, it is for the national courts to ensure that rules of Community law are protected and thus that the effectiveness of judicial protection is not undermined in any way.

(see para. 28)

ORDER OF THE COURT (Fourth Chamber)

3 June 2005 ( * )

(Appeal – German graduates of Higher Colleges of Law – Discrimination)

In Case C-396/03 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 22 September 2003,

Magnus Killinger, residing at Meiningen (Germany), represented by T. Scheuernstuhl, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Federal Republic of Germany ,

Council of the European Union ,

Commission of the European Communities,

defendants at first instance,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, K. Schiemann (Rapporteur) and E. Juhász, Judges,

Advocate General: A. Tizzano,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By his appeal, Mr Killinger seeks the annulment of the order of the Court of First Instance of the European Communities of 8 July 2003 in Case T-186/03 Killinger v Germany and others (not published in the ECR; ‘the contested order’), by which the Court of First Instance dismissed as inadmissible his action for:

– annulment of a decision of the Minister for Justice and European Affairs of the Land Thuringia as well as of a series of decisions of German courts concerning an action which Mr Killinger initially brought before the Verwaltungsgericht Weimar (Weimar Administrative Court);

– an order that the Federal Republic of Germany allow him the freedom to pursue, at Community level, the professional and economic activities of a lawyer on the same terms as those which apply to qualified lawyers of other Member States;

alternatively, remittance of the case which gave rise to the decisions mentioned in the previous indent to another chamber of the Verwaltungsgericht Weimar and a declaration that the German courts have failed to fulfil their obligations under the second and third paragraphs of Article 234 EC;

– an order that the Federal Republic of Germany pay him compensation for the material and non-material damage he has suffered as a result of the discriminatory practices applied by that Member State;

– a declaration that the Federal Republic of Germany, the Council of the European Union and the Commission of the European Communities have failed to act, in that they have omitted to adopt the legislation and the measures within their executive powers which are required to allow qualified German lawyers to practise their profession at Community level without discrimination; and

– an order that the Federal Republic of Germany, the Council and the Commission amend or supplement their legislation and the measures within their executive powers in order to ensure that the freedom of lawyers qualified in Germany to practise their profession at Community level is not subject to different qualitative conditions than those imposed on lawyers who are qualified in other Member States.

2 In addition, Mr Killinger asks the Court to give a definitive ruling on the dispute and to allow the claims which he submitted to the Court of First Instance.

3 Mr Killinger primarily argued at first instance that the criterion of a second State examination in the education and training of lawyers in Germany discriminates against German nationals in favour of lawyers trained in other Member States. That criterion is disproportionately strict. First, it puts German lawyers at a disadvantage as regards their entry into the legal profession in Germany, given that those who qualify in other Member States can have their more easily acquired education and training recognised as an equivalent qualification. Second, several international institutions, including the Court of Justice of the European Communities, apply discriminatory practices in making entry into certain careers conditional on a second State examination for lawyers qualified in Germany, whereas lawyers of other Member States are required only to satisfy the qualitatively less stringent criteria which apply to entry into the legal profession in their own States.

The contested order

4 By the contested order, the Court of First Instance has, in application of Article 111 of its Rules of Procedure, declared Mr Killinger’s action to be manifestly inadmissible.

5 In that regard, the Court of First Instance held, first, that it did not have jurisdiction over actions by a natural person against a Member State. Second, it held in paragraph 4 of the contested order:

‘By the present action, the applicant seeks the annulment of a decision by the national administration and of several decisions by national courts. The action is not therefore directed against an institution or body of the European Communities and is, consequently, manifestly inadmissible. Furthermore, as the action is directed against a Member State, it must be dismissed as manifestly inadmissible without the need to serve notice of the action on the defendants.’

The appeal

6 Where an appeal is clearly unfounded, the Court may, at any time, dismiss it by reasoned order pursuant to Article 119 of its Rules of Procedure.

7 Four distinct grounds of appeal can be identified. Mr Killinger alleges that the Court of First Instance:

– applied Article 111 of its Rules of Procedure in an unjustified manner;

– failed to recognise that his action was aimed not only against Germany’s institutions as defendants but also the Council and the Commission, and that he was challenging positive measures but also the failure to act, the Court of First Instance having erred in not addressing those aspects of the action;

– failed to recognise that Germany’s institutions must be regarded as institutions of the European Union from a functional point of view, and that the Court of First Instance therefore has jurisdiction over an action directed against them; and

– failed to recognise that it is essential for the safeguarding of Community law that the rights of citizens can be the subject of actions before the Community courts.

The first ground of appeal

The second ground of appeal

10 By his second ground of appeal, Mr Killinger alleges that the Court of First Instance failed to recognise that his action was aimed not only against Germany’s institutions as defendants but also the Council and the Commission, and that he was challenging positive measures but also the failure to act, the Court of First Instance having erred in not addressing those aspects of the action.

13 It is therefore necessary to consider whether the operative part of the contested order is affected by the fact that the Court of First Instance did not deal with the fourth and fifth heads of claim submitted by Mr Killinger at first instance.

The fourth head of claim submitted at first instance

14 The fourth head of claim submitted by Mr Killinger at first instance asks the Court of First Instance to declare that Germany, the Council and the Commission have failed to act, in that they have omitted to adopt the legislation and the measures within their executive powers which are required to allow qualified German lawyers to practise their profession at Community level without discrimination.

16 As regards the Council and the Commission, the Court of First Instance has jurisdiction, in principle, over actions for a declaration of failure to act which are brought by natural persons pursuant to the third paragraph of Article 232 EC. However, the second paragraph of that article makes the admissibility of such actions subject to the condition that the defendant institution concerned should first have been called upon to act. Mr Killinger expressly admitted on page 11 of the application lodged at the Court of First Instance that he did not first send the Council or the Commission any invitation to act. It must be added that, as this is a condition of the action’s admissibility, it cannot be considered, contrary to Mr Killinger’s claim, that his application may be described as an invitation for the purposes of the second paragraph of Article 232 EC.

17 Accordingly, the fourth head of claim submitted by Mr Killinger at first instance was manifestly inadmissible and the operative part of the contested order is not affected by the fact that the Court of First Instance did not deal with that head of claim.

The fifth head of claim submitted at first instance

18 The fifth head of claim submitted by Mr Killinger at first instance seeks an order that Germany, the Council and the Commission amend or supplement their legislation and the measures within their executive powers in order to ensure that the freedom of lawyers qualified in Germany to practise their profession at Community level is not subject to different quantitative and qualitative conditions from those imposed on lawyers of other Member States, namely, the requirement of a second State examination. Mr Killinger complains, in particular, that the Commission makes that second examination a requirement for qualified German lawyers participating in competitions for recruitment to that institution, which is discriminatory by comparison with lawyers of other Member States, to whom less stringent conditions apply. At page 62 of the Annex attached to his application to the Court of First Instance, Mr Killinger disclosed a letter from the Court’s Personnel Services dated 11 March 1991, according to which his candidature for a lawyer/linguist post in the German translation division, in the context of Competition Notice CJ 5/90, published on 17 October 1990 (OJ 1990 C 262, p. 11), was rejected solely on the ground that he had not passed the aforementioned second State examination as required for admission to that competition in accordance with Title III 2(a) of the competition notice.

19 As regards Germany, the fifth head of claim submitted by Mr Killinger at first instance was manifestly inadmissible, for the reasons stated in paragraph 15 of this order, since the Community courts do not have jurisdiction over disputes between natural persons and Member States.

20 As regards the Council and the Commission, the points made in paragraph 16 of this order apply and that fifth head of claim is likewise manifestly inadmissible, since the condition laid down in the second paragraph of Article 232 EC has not been fulfilled.

21 Furthermore, it must be pointed out that, under the terms of that article, an action may be brought before the Court to have a failure by the institutions to act established, but it is clear that the Court does not have jurisdiction to issue injunctions against them.

22 As for the allegedly discriminatory recruitment criteria of the Community institutions referred to by Mr Killinger, it is sufficient to declare that he has not brought an action in accordance with the provisions of Article 236 EC, in conjunction with Articles 90 and 91 of the Staff Regulations of officials of the European Communities, against a specific competition notice or rejection of candidature. As regards the rejection of Mr Killinger’s candidature by the Court’s Services on 11 March 1991, it must be pointed out that an action should have been brought against the Court of Justice rather than against the Commission in any event, and that the three-month time-limit laid down by Article 91(3) of the Staff Regulations in that respect has long since expired. Regarding the notification of 30 April 2003 of a post at the European Court of Human Rights, a copy of which appears at pages 310 and 311 of the Annex to the application lodged at the Court of First Instance, it must be pointed out that that court is not a part of the institutional system of the European Union and that the Community courts therefore do not have jurisdiction over actions against that institution in any event.

23 Accordingly, the fifth head of claim submitted by Mr Killinger at first instance was manifestly inadmissible and the operative part of the contested order is not affected by the fact that the Court of First Instance did not deal with that head of claim.

24 The second ground of appeal raised by Mr Killinger is therefore manifestly immaterial and, accordingly, must be dismissed as manifestly unfounded.

The third ground of appeal

25 By his third ground of appeal, Mr Killinger alleges that the Court of First Instance declared his action to be inadmissible inasmuch as it was directed against Germany. In his view, the Court of First Instance should have regarded Germany’s institutions as institutions of the European Union from a functional point of view and, consequently, should have declared that it had jurisdiction.

The fourth ground of appeal

27 By his fourth ground of appeal, Mr Killinger argues, in essence, that it is essential for the safeguarding of the right to effective judicial protection, as provided for in Article 13 of the ECHR, that the Court of First Instance regards itself as having jurisdiction over a dispute, including one against a Member State, notwithstanding the fact that the Treaty makes no provision for any specific jurisdiction in that respect, where it is claimed that the second and third paragraphs of Article 234 EC have been infringed. Otherwise the national authorities could misinterpret Community law without being subject to any sanction for doing so.

28 In that respect, it must be noted that the Community courts have jurisdiction to act only in the areas in which jurisdiction has been expressly conferred upon them by the EC Treaty, as held in paragraph 26 of this order. In the system of legal remedies provided for by the Treaty, an infringement of Community law by the national authorities, including an infringement of the third paragraph of Article 234 EC, may be brought before the Community courts by the Commission or by another Member State, or may be brought before the competent national courts by any natural or legal person. In the latter case, it is for the national courts to ensure that rules of Community law are protected and thus that the effectiveness of judicial protection is not undermined in any way. The fourth ground of appeal must therefore be dismissed as manifestly unfounded.

29 Accordingly, applying Article 119 of the Rules of Procedure of the Court, the appeal must be dismissed as manifestly unfounded.

Costs

30 Under Article 69(1) of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal by virtue of Article 118, a decision as to costs is to be given in the order which closes the proceedings. Since his appeal has been dismissed, Mr Killinger is to bear his own costs.

On those grounds, the Court (Fourth Chamber) hereby orders:

1. The appeal is dismissed.

2. Mr Killinger shall bear his own costs.

[Signatures]

* Language of the case: German.