Orders nº T-715/19 R of Tribunal General de la Unión Europea, July 17, 2020

• Resolution Date: July 17, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-715/19 R

(Action for failure to act - Protection of the European Union’s financial interests - Combating fraud - Meeting of the European Council - Multiannual financial framework - Financial regulation - Alleged conflict of interest of the representative of the Czech Republic at a meeting of the European Council - Alleged lack of action by the European Council - Article 130 of the Rules of Procedure - Interest in bringing proceedings - Locus standi - Definition of the position of the European Council - End of the failure to act - Inadmissibility - Article 15(2) TEU - Action manifestly lacking any foundation in law)

In Case T-715/19,

Lukáš Wagenknecht, residing in Pardubice (Czech Republic), represented by A. Dolejská, lawyer,

applicant,

v

European Council, represented by A. Westerhof Löfflerová, A. Jensen and M.J. Bauerschmidt, acting as Agents,

defendant,

APPLICATION on the basis of Article 265 TFEU seeking a declaration that the European Council unlawfully failed to act on the applicant’s request to exclude the Prime Minister of the Czech Republic, Mr Andrej Babiš, from the meeting of the European Council of 20 June 2019 and from future meetings concerning the financial perspective negotiations, due to his alleged conflict of interest with regard to the requirements of Article 325(1) TFEU and Article 61(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013 (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1),

THE GENERAL COURT (Eighth Chamber)

composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and J. Laitenberger, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 By letter dated 5 June 2019 and received by the European Council on 10 June 2019, the applicant, Mr Lukáš Wagenknecht, a member of the Senát Parlamentu České republiky (Senate of the Czech Republic), requested the European Council to exclude the Prime Minister of the Czech Republic, Mr Andrej Babiš, from the meeting of the European Council of 20 June 2019 and from future meetings relating to the financial perspective negotiations (Multiannual Financial Framework (MFF) 2021/2027) (‘the call to act’), due to the alleged conflict of interest of that representative of the Czech Republic, which stems from his personal and family interests in companies of the Agrofert Group, which is active, inter alia, in the agri-food sector.

2 On 24 June 2019, the European Council, while stating that it was not defining its position on the substance of the applicant’s allegations and while assuring him that it accorded the utmost importance to the combating of fraud and other illegal activities affecting the financial interests of the European Union, responded to the call to act by explaining to the applicant, in essence, that Article 15(2) TEU, a rule of primary law, intangibly laid down the composition of the European Council by providing that it ‘shall consist of the Heads of State or Government of the Member States, and of its President and the President of the [European] Commission’. Thus, that composition could not be altered since that provision does not provide for the possibility of such an alteration. Furthermore, the European Council explained that the question of which person, as between the Head of State or Head of Government, should represent each of the Member States of the European Union was a matter for national constitutional law alone. Thus, it did not fall within the discretion of the European Council or its President to decide who should be the representative of each Member State within that institution, nor to decide whom, as between the Head of State or the Head of Government, it should invite to the various meetings of the European Council. Those principles also apply to the meetings of the Council of the European Union. In those circumstances, the European Council replied to the applicant, with regard to the call to act, that it was not in a position to exclude the Prime Minister of the Czech Republic from the meetings to which he referred.

3 On 2 July 2019, the applicant again contacted the European Council, requesting clarification by email, from the Secretary-General of that institution, as regards the reply given to him on 24 June 2019. That email remained unanswered.

Procedure and forms of order sought

4 By application lodged at the Registry of the General Court on 21 October 2019 via an interim e-Curia account created by his counsel, the applicant brought an action on the basis of Article 265 TFEU seeking a declaration of failure to act by the European Council, in that that institution unlawfully failed to act in response to the call to act.

5 By separate document lodged at the Court Registry on the same day and under the same conditions, the applicant made an application for expedited procedure under Article 151 of the Rules of Procedure of the General Court.

6 Since the supporting documents required to validate the e-Curia access account were received at the Court Registry on 4 November 2019, while, pursuant to Article 56a(4) of the Rules of Procedure, they should have been received at the Registry within 10 days of the lodging of the document, in this case the document instituting proceedings, the applicant was invited to submit his observations in that regard.

7 On 21 November 2019, the applicant submitted his observations, in which his counsel explained that, on 24 October 2019, she had sent the supporting documents required for the opening of the e-Curia account by the international service of the Czech postal service, which should have ensured delivery in Luxembourg (Luxembourg) within two to three working days. However, as it transpired, the delivery took more than 11 days, as a result of delays attributable...