T-280/02

Case T-280/02 Johannes Jacobus Pikaart and Others v Commission of the European Communities «(Application for annulment – Actionable measures – Inadmissibility)» Order of the Court of First Instance (Third Chamber), 9 April 2003      Summary of the Order Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Letter from a Commission head of unit interpreting provisions of a regulation – Head of unit not acting on the basis of a legal provision giving him a decision-making power – Not covered (Art. 230 EC; Council Regulation No 1101/89) An action for annulment, brought by owners of a motor vessel who were asked to pay the special contribution required by Regulation No 1101/89 on structural improvements in inland waterway transport against a letter from the head of unit of the relevant Commission service providing them with an interpretation of that regulation in the light of the specific case submitted to him, is inadmissible.The only measures or decisions which are capable of being the subject of an action for annulment under Article 230 EC are those which produce binding legal effects so as to affect the interests of an applicant by bringing about a distinct change in his legal position. That was not the case with the letter in question, since the head of unit did not act on the basis of a legal provision which gave him a decision-making power, but merely gave them a non-binding opinion on the matter. The mere fact that a letter has been sent by a Community institution to its addressee in response to a request made by the latter is not sufficient for that letter to be characterised as a decision within the meaning of Article 230 EC.see paras 23, 26-27 ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) 9 April 2003 (1) ((Action for annulment – Reviewable measures – Inadmissibility)) In Case T-280/02, Johannes Jacobus Pikaart, residing in Papendrecht (Netherlands),Johanna Cornelia Pikaart-Leeuwestein, residing in Papendrecht,Scheepvaartonderneming Factotum vof, established in Papendrecht,represented by M.J. van Dam and D. Ouwerling, lawyers, applicants, v Commission of the European Communities, represented by W. Wils, acting as Agent, with an address for service in Luxembourg, defendant, APPLICATION for annulment of the Commission decision allegedly contained in the letter sent to the applicants by its services on 16 July 2002 (D (2002) 11 796), THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber), composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges, Registrar: H. Jung, makes the following Order Legal framework The objective of Council Regulation (EEC) No 1101/89 of 27 April 1989 on structural improvements in inland waterway transport (OJ 1989 L 116, p. 25), amended on a number of occasions, in particular by Council Regulation (EC) No 844/94 of 12 April 1994 (OJ 1994 L 98, p. 1) (hereinafter, as amended, Regulation No 1101/89), is to reduce the carrying overcapacity manifest in all sectors of the inland waterway transport market. To that end, provision is made for a scrapping scheme coordinated at Community level, together with supporting measures. Article 3(1) and (2) of Regulation No 1101/89 states: 1. Each of the Member States whose inland waterways are linked to those of another Member State and the tonnage of whose fleet is above 100 000 tonnes ... shall set up, under its national legislation and with its own administrative resources, a Scrapping Fund, hereinafter referred to as the Fund. 2. The competent authorities in the Member State concerned shall administer the Fund. Each Member State shall involve its national organisations representing inland waterway carriers in this administration. Article 8(1)(a) of Regulation No 1101/89 provides essentially that, for a period of 10 years from the entry into force of that regulation, vessels covered by that regulation which are newly constructed, imported from a third country or which leave national waterways not linked to other waterways in the Community may be brought into service only where the owner of the vessel scraps a tonnage of carrying capacity proportionately equivalent to the new vessel without receiving a scrapping premium, or where the owner scraps no vessel, he pays a special contribution into the Fund covering his new vessel (the old-for-new rule). Article 10(1) of Regulation No 1101/89 provides essentially that the Member States are to adopt the measures necessary to implement that regulation and that those measures are to provide, inter alia, for permanent and effective verification of compliance with the obligations imposed on undertakings by that regulation and the national provisions adopted in implementation thereof, and for appropriate penalties in the event of infringement. On the basis of Articles 6 and 10(3) of Regulation No 1101/89, the Commission adopted, on 27 April 1989, Regulation (EEC) No 1102/89 laying down certain measures for implementing Regulation No 1101/89 (OJ 1989 L 116, p. 30). Facts and procedure The applicants own the motor-vessel Factotum. The vessel was built in 1928 and in 1997 underwent renovation, which consisted principally in removing the mid and bow sections of the vessel and replacing them with new, longer structures. As a result of that renovation, the tonnage of carrying capacity was increased by around 600 tonnes. The applicants also intended to make the old mid and bow sections into a pusher craft. On 22 April 1998, the applicants sent a letter to the relevant Commission services seeking clarification on the implications of that renovation in the light of Regulation No 1101/89. On 8 June 1998, the Netherlands Scrapping Fund requested the applicants to pay the special contribution provided for in Regulation No 1101/89 for the entry into service of the Factotum following its renovation. On 29 June 1998, in response to the applicants' request of 22 April 1998, the Head of Unit of the relevant Commission service stated that a precise interpretation of the provisions of Regulation No 1101/89 could be provided only if a specific case was submitted to him, while at the same time pointing out that he was expressing solely the opinion of that Commission service. On 19 November 1999, the Netherlands Minister for Transport confirmed the decision of the Scrapping Fund of 8 June 1998. On appeal, on 22 May 2002, the College van Beroep voor het bedrijfsleven (Council for Economic Disputes) annulled the decision of the Netherlands Minister for Transport of 19 November 1999. Following the decision of the College van Beroep voor het bedrijfsleven of 22 May 2002, the applicants once again sent a letter, on 17 June 2002, to the relevant Commission services describing the work carried out and planned in connection with the renovation of the Factotum in 1997. In addition, in that letter, they stated how, in their opinion, Regulation No 1101/89 was to be applied in the circumstances and requested clarification on the implications of that renovation having regard to the provisions of Regulation No 1101/89. By letter of 16 July 2002, reference D (2002) 11 796, the Head of Unit of the relevant Commission service expressed his disagreement with the interpretation of Regulation No 1101/89 put forward by the applicants in their letter of 17 June 2002 (hereinafter the letter of 16 July 2002). Furthermore, following a brief analysis of the applicable provisions, he stated: The insertion of a new mid and bow section on the Factotum increased the fleet tonnage. If it had been decided, in the case of the Factotum, to scrap the segments that were replaced they would have had to be of equivalent weight to the new mid and bow section. Since the old segments were not scrapped, the old-for-new obligations must also be established on the basis of the new mid and bow section of the motor-vessel Factotum.I trust that this letter answers your question in a satisfactory manner. On 26 August 2002 the Netherlands Minister for Transport adopted a new decision concerning the Factotum, which the applicants challenged in court. By application lodged at the Registry of the Court of First Instance on 15 September 2002, the applicants brought the present action. By separate document received at the Court Registry on 12 November 2002, the Commission raised an objection of inadmissibility, under Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicants lodged their observations on that objection on 23 December 2002. Forms of order sought The applicants claim that the Court should: ─ reject the objection of inadmissibility; reject the objection of inadmissibility; ─ annul the letter of 16 July 2002; annul the letter of 16 July 2002; ─ order the Commission to pay the costs. order the Commission to pay the costs. The Commission contends that the Court should: ─ dismiss the application as inadmissible; dismiss the application as inadmissible; ─ order the applicants to pay the costs. order the applicants to pay the costs. Law Arguments of the parties The Commission does not consider the letter of 16 July 2002 to be a challengeable act. That letter comprises only an interpretation by a Commission official of the relevant provisions of Regulation No 1101/89, whereas, under Article 3(1) and (2), Article 8(1)(b) and Article 10(1) of that regulation, it is a matter for the competent national authorities alone to adopt a binding act concerning the application of that Regulation to the renovation of the Factotum in 1997. The applicants consider the letter of 16 July 2002 to contain a binding decision of the Commission concerning the application of Regulation No 1101/89 to the case. They rely on the fact that, by that letter, the Commission gave a reply to a precise question concerning a specific case. The wording used in that letter confirms that it is a definitive and binding act. Furthermore, they consider that it is within the Commission's power to decide on the application of Regulation No 1101/89 to that specific case since, under Article 8 of that regulation and on the basis of Article 10(2) of Regulation No 1102/89, it is the Commission's responsibility to lay down the rules concerning the uniform application of the provisions of Regulation No 1101/89. Finally, they put forward the fact that, in its decision of 22 May 2002, the College van Beroep voor het bedrijfsleven referred to the proceedings pending before the Commission, which shows that the letter of 16 July 2002 is of great importance in the judicial proceedings pending before the competent national authorities and courts and is to their detriment. Findings of the Court Pursuant to Article 114(1) of the Rules of Procedure, where a party so requests, the Court of First Instance may rule on admissibility without going into the substance of the case. Under Article 114(3), the remainder of the proceedings are to be oral unless the Court of First Instance decides otherwise. In this case, the documents in the file provide sufficient information to enable the Court to rule upon the request without opening the oral procedure. According to settled case-law, the mere fact that a letter has been sent by a Community institution to its addressee in response to a request made by the latter is not sufficient for that letter to be characterised as a decision within the meaning of Article 230 EC, thus entitling its recipient to bring an action for its annulment. Moreover, only measures which produce binding legal effects so as to affect the interests of an applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment under Article 230 EC (orders in Case T-22/98 Scottish Soft Fruit Growers v Commission [1998] ECR II-4219, paragraph 34, and in Case T-106/99 Meyer v Commission [1999] ECR II-3273, paragraph 31). In the present case, it is true that Regulation No 1101/89 provides, in the context of a common policy, for a scrapping scheme coordinated at Community level to reduce overcapacity and to improve the structure of the inland waterways sector. In the light of that objective, the Council, by Articles 6 and 10(3) of that regulation, conferred on the Commission the power to adopt a certain number of decisions to ensure the operation of that scheme and to avoid distortion of competition. On that basis the Commission adopted Regulation No 1102/89 as well as a number of notes concerning the uniform application in the Member States of the Community legislation on structural improvements in inland waterway transport. By contrast, as the Commission correctly pointed out, apart from the exclusion of certain specialised vessels from the benefits of the old-for-new rule for which power was conferred on the Commission under Article 8(3)(c) of Regulation No 1101/89 (see, in that regard, Case T-155/97 Natural van Dam and Danser Container Line v Commission [1998] ECR II-3921 and Case T-63/98 Transpo Maastricht and Ooms v Commission [2000] ECR II-135), the administration of the Scrapping Fund and verification of the application of the scheme provided for by Regulation No 1101/89 to particular cases are matters for the national authorities established for that purpose by the Member States, as is clear from Article 3(1) and (2) and Article 10(1) of that Regulation. Consequently, by providing in the letter of 16 July 2002 to the applicants an interpretation of the relevant provisions of Regulation No 1101/89 in the light of the specific case which they submitted to him, the Head of Unit of the relevant Commission service did not act on the basis of a legal provision which gave him a decision-making power, but merely gave them a non-binding opinion on the matter. Furthermore, it is clear from the facts of the present case that the applicants, who made use of the legal remedies available at the national level (see in particular paragraph 14 above), were perfectly aware that the application of Regulation No 1101/89 to the renovation of the Factotum was dependent on the decisions of the competent Netherlands administrative and judicial authorities. Even if, as the applicants seem to allege, those decisions were or may have been influenced by the opinion given in the letter of 16 July 2002, the fact remains that it is only the decisions and not the letter of 16 July 2002 that are capable of producing binding legal effects (see, as regards statements made by the Commission in the context of a proceeding relating to a concentration of undertakings, Joined Cases T-125/97 and T-127/97 Coca-Cola v Commission [2000] ECR II-1733, in particular paragraph 85). In the light of the above, the applicants cannot claim that the letter of 16 July 2002 produced binding legal effects so as to affect their interests by bringing about a distinct change in their legal position. Consequently, the application contesting that act must be dismissed as inadmissible. It should be added that the legal protection of the applicants is effectively ensured by means of the remedies available in the national courts which may or, in appropriate cases, must refer a question to the Court of Justice for a preliminary ruling in accordance with Article 234 EC concerning the interpretation of the applicable Community norms (see, to that effect, order in Case T-244/00 Coillte Teoranta v Commission [2001] ECR II-1275, paragraph 49, and Case C-50/00 P Uníon de Pequeños Agricultores v Council [2002] ECR I-6677, paragraphs 40 to 42). Costs Under Article 87(2) of the Rules of Procedure, 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 applicants have been unsuccessful, they must, having regard to the form of order sought by the Commission, be ordered to pay the costs. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby orders: 1. The application is dismissed as inadmissible. 2. The applicants shall bear their own costs and shall pay those incurred by the Commission. Luxembourg, 9 April 2003. H. Jung K. Lenaerts Registrar President – Language of the case: Dutch.