A reminder, in unusual circumstances, that individual cannot compel the Commission to commence infringement proceedings against a Member State pursuant to Article 258 TFEU. That is what the Court of Justice recalls in its Order in Case C-411/14 P Romano Pisciotti v Commission EU:C:2015:48. The case was a little different ….

 The US authorities requested Germany to extradite Mr. Pisciotti under the 2003 Agreement on extradition between the European Union and the United States of America (OJ 2003 L181, p. 27) (was that the first such request ?). He complained to the European Commission that Germany had acted in breach on EU law. The Commission rejected his complaint in April 2014.

Mr Pisciotti then sought the annulment of the Commission’s letter rejecting his complaint. The General Court dismissed his action as manifestly inadmissible by Order of 2 July 2014 in Case T-403/14 Romano Pisciotti v Commission, EU:T:2014:692.

The General Court held that it is settled case-law that private individuals are not entitled to bring proceedings against a refusal by the Commission to institute proceedings against a Member State for failure to fulfil its obligations (order of 12 June 1992, Asia Motor France/Commission, C‑29/92, EU:C:1992:264, paragraph 21; order of 13 November 1995, Dumez/Commission, T‑126/95, EU:T:1995:189, paragraph 33, and judgment of 22 May 1996, AITEC/Commission, T‑277/94, EU:T:1996:66, paragraph 55).

He appealed that order. The Court of Justice dismissed his appeal by its Order of 28 January 2015 in Case C-411/14 P Romano Pisciotti v Commission EU:C:2015:48.

The Court recalled that accorded to well established caselaw individuals cannot challenge a Commission decision refusing to commence infringement proceedings against a Member State (Order in H-Holding/Commission, C‑235/12 P, EU:C:2013:132, paragraph 11).

Mr Pisciotti had claimed, in his appeal that the General Court’s order in Case T-403/14 was inconsistent with the position it took in its judgment in Aiscat/Commission, T‑182/10, EU:T:2013:9 in which the General Court had declared partly admissible an action to annul a Commission decision informing a complainant that it closed infringement proceedings on the one hand and that the matter complained of did not involve state aid on the other. In that case, the General Court held that the action was partly admissible in so far as the Commission’s decision stated that the measure complained of did not constitute state aid 9it then went on to dismiss the action on the merits).

In Aiscat, the General Court recalled that the Court of Justice has held that the examination of a complaint on State aid necessarily gives rise to the opening of the preliminary examination stage which the Commission is obliged to close by adopting a decision pursuant to Article 4 of Regulation No 659/1999. Where the Commission finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid, it refuses by implication to initiate the formal investigation procedure, a measure which cannot be characterised as a mere provisional measure (Case C‑322/09 P NDSHT v Commission EU:C:2010:701, paragraphs 49 to 51 and 53).

Accordingly, once the complainant has submitted additional observations following a first letter from the Commission, informing it, in accordance with the second sentence of Article 20(2) of Regulation No 659/1999, that it considers that there are insufficient grounds for taking a view on the case, the Commission is required, in accordance with Article 13(1) of that regulation, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure (Case C‑521/06 P Athinaïki Techniki v Commission EU:C:2008:422, paragraph 40). Thus, the Commission must, in that context, adopt a challengeable measure and the question is then whether the plaintiff has standing to challenge it.

In its Order of 28 January 2015 in Case C-411/14 P, the Court of Justice distinguished the Aiscat case, which concerned the procedure for the control of state aid, and the findings of the General Court in that case could not be applied to the different context of infringement procedures brought by the Commission under Article 258 TFEU.