Order of the General Court (Fifth Chamber) of 25 September 2019

– The admissibility of the claims for a declaration of failure to act

23 Under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency has not defined its position, the action may be brought within a further period of two months. However, the request for an institution to act must be sufficiently clear and precise to enable that institution to ascertain in specific terms the content of the decision that it is being asked to adopt and must also make it apparent that its purpose is to compel the institution to define its position (see judgment of 23 November 2017, Bionorica and Diapharm v Commission , C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 54 and the case-law cited).

24 According to the case-law of the Court, Article 265 TFEU concerns a failure to take a decision or to define a position (see judgment of 23 November 2017, Bionorica and Diapharm v Commission , C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 52 and the case-law cited).

25 In accordance with case-law, the third paragraph of Article 265 TFEU, which entitles natural and legal persons to bring an action for failure to act when an institution has failed to address to them any act other than a recommendation or an opinion, must be interpreted as allowing individuals to bring an action for failure to act against an institution which they claim has failed to adopt a measure producing binding legal effects that are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. In addition, an action for failure to act may also be brought against the failure to adopt a preparatory act, if it is a necessary preliminary act in a procedure leading to an act that has binding legal effects (see, to that effect, judgments of 26 November 1996, T. Port , C‑68/95, EU:C:1996:452, paragraph 59 and the case-law cited, and of 23 November 2017, Bionorica and Diapharm v Commission , C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 53 and the case-law cited).

26 It therefore follows from the principles recalled in paragraph 25 above that Article 265 TFEU does not entitle natural and legal persons to bring an action against any failure to define a position or to take a decision on the part of the institutions, further to a letter of formal notice sent to them. In accordance with those principles, that right exists only in three situations: where those persons would have been the addressees of the act which those institutions failed to address to them, where the omitted act would have had binding legal effects capable of affecting their interests by bringing about a distinct change in their legal position or, at the very least, where the act would have been a necessary preliminary act in a procedure capable of leading to an act that has binding legal effects in relation to them.

27 In the present case, leaving aside the question of whether the other conditions of admissibility of an action for failure to act laid down in paragraphs 23 and 24 above have been met, it must be stated, in any event, that the applicant’s situation does not correspond to any of the three situations mentioned in paragraph 26 above.

28 In this regard, first, it should be observed that the applicant is not the addressee of the measures which it requested that the Commission adopt in his letter of 22 October 2018. In that letter, he asks that institution, in his own words, to ‘take all legal measures permitted by the AFMP against [the Swiss Confederation]’.

29 Next, it should be pointed out that measures adopted by the Commission against the Swiss Confederation would not, in themselves, be capable of bringing about a distinct change in the applicant’s legal position as regards his right to pursue the profession of medical practitioner in the Canton of Geneva.

30 Lastly, such measures cannot be regarded as a necessary preliminary act in a procedure capable of leading to an act that has binding legal effects in respect of the applicant.

31 First, it should be noted that the only dispute settlement procedure applicable to the interpretation or the application of the AFMP is that provided for in Article 19 of that agreement, under which the Contracting Parties may bring a matter under dispute of that kind to the Joint Committee, which may settle the dispute by considering every possible means to maintain the good functioning of the agreement. Moreover, those provisions do not impose on the Joint Committee an obligation as to the result to be achieved as regards the settlement of disputes but merely an obligation to use its best endeavours.

32 There is, on the other hand, no dispute settlement procedure applicable in the present instance the preliminary act of which would be the adoption, by one of the Contracting Parties to the AFMP, of unilateral measures against the other Contracting Party. In this regard, it should be observed that the decision, cited by way of illustration by the applicant, not to renew the AFMP or to terminate it, on the basis of Article 25(2) or (3) of that agreement, cannot, by definition, be regarded as such a preliminary act, since adopting such a decision would terminate the agreement itself.

33 Furthermore, the adoption, outside any applicable procedure, of unilateral measures by one of the Contracting Parties to the AFMP against the other Contracting Party, on the ground of the latter’s infringement of its obligations under that agreement, would not, by definition, offer any guarantee as regards the outcome of the dispute between them. In that situation, it would be for the party concerned by those unilateral measures to decide freely and at its absolute discretion whether or not it should abide by the interpretation of the AFMP advocated by the other Contracting Party (see, to that effect and by analogy, order of 3 July 2007, Commune de Champagne and Others v Council and Commission , T‑212/02, EU:T:2007:194, paragraph 94 ).

34 Second, it is, admittedly, true that the exercise of the powers delegated to the EU institutions in international matters cannot escape judicial review (see, to that effect and by analogy, order of 3 July 2007, Commune de Champagne and Others v Council and Commission , T‑212/02, EU:T:2007:194, paragraph 94 and the case-law cited). It is likewise true, as the applicant submits, that, under Article 17(1) TEU, the Commission, as the guardian of Treaties and of the agreements concluded thereunder, must ensure the correct implementation by a third country of the obligations it has assumed under an agreement concluded with the European Union or, as in the present case, with the European Union and its Member States (see, to that effect and by analogy, judgment of 25 July 2008, C.A.S. v Commission , C‑204/07 P, EU:C:2008:446, paragraph 94 ).

35 However, in the present case, in the absence of provisions of international law or of EU law which involve, in some way or other, individuals in the decision-making process relating to the implementation of the AFMP, the applicant cannot derive from the infringement of that agreement by the Swiss Confederation, assuming that that were established, the right to require the Commission to adopt measures against the Swiss Confederation. If they were adopted, such measures would concern only the relations between the European Union and a third country and not the relations of the EU authorities with natural or legal persons. Accordingly, even if the existence of an obligation to adopt such measures is accepted, that obligation cannot confer any right on individuals (see, to that effect and by analogy, judgments of 13 June 2013, Syndicat OP 84 , C‑3/12, EU:C:2013:389, paragraphs 28 to 31 , and of 10 December 2013, Abdullahi , C‑394/12, EU:C:2013:813, paragraph 56 ).

36 Therefore, it follows from the foregoing that the claims for a declaration of failure to act put forward in the application are manifestly inadmissible.

37 The arguments raised by the applicant in the context of his observations on the objection of inadmissibility are clearly incapable of calling that conclusion into question.

38 In the first place, with regard to whether the Commission failed to define its position on the letter of formal notice which the applicant sent to it and whether the application was lodged within the time limit provided for in the second paragraph of Article 265 TFEU, it is sufficient to state that, for the reasons set out in paragraphs 28 to 35 above, the Court takes the view that the applicant’s situation does not correspond to any of the situations in which natural and legal persons may bring an action for failure to act, regardless of whether the other conditions of admissibility of such an action are satisfied. Accordingly, even accepting that the Commission failed, in the present case, to define its position and that the applicant lodged his action within the prescribed time limit, those facts are irrelevant.

39 In the second place, it should be stated that the question of whether the Commission was able to adopt unilateral measures against the Swiss Confederation and whether it was under a duty to do so are not relevant when assessing the admissibility of the present action for failure to act, but only when examining its merits (see, to that effect and by analogy, judgment of 29 September 2011, Ryanair v Commission , T‑442/07, not published, EU:T:2011:547, paragraph 27 ). The applicant’s arguments in relation to those questions are therefore ineffective.

40 In the third place, it is to be recalled that the FEU Treaty has established, not only by Articles 263 and 277, on the one hand, and Article 267, on the other, but also by Article 265, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Courts of the European Union (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 92 and the case-law cited).

41 However, although the conditions of admissibility of direct actions brought before the Courts of the European Union must be interpreted in the light of Article 47 of the Charter of Fundamental Rights, which enshrines the fundamental right to effective judicial protection, it follows from settled case-law that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly those conditions. Thus, that article does not require, inter alia, that an individual should be unconditionally entitled to bring an action against any failure to take a decision or to define a position on the part of the institutions (see, to that effect and by analogy, judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraphs 97, 98 and 105 and the case-law cited, and of 9 November 2017, SolarWorld v Council , C‑205/16 P, EU:C:2017:840, paragraphs 67 and 68 ).

42 In the present case, although the provisions of Article 265 TFEU cannot, in the light of the principle of effective judicial protection, be interpreted strictly, the fact remains that, having regard to the conditions of admissibility of actions for failure to act brought by natural and legal persons recalled in paragraphs 25 and 26 above, the Commission’s failure to define its position in relation to the applicant’s request for the adoption of unilateral measures against the Swiss Confederation cannot, in any event, entitle him to bring such an action. Therefore, the Court cannot set aside those conditions of admissibility, which follow from the FEU Treaty, as interpreted by settled case-law, without going beyond the jurisdiction conferred on it (see, to that effect and by analogy, order of 24 November 2016, Petraitis v Commission , C‑137/16 P, not published, EU:C:2016:904, paragraph 24 and the case-law cited).

43 In particular, with regard to the absence of any mechanism laid down in the AFMP enabling the applicant to bring the matter before a supranational court or a court ‘with jurisdiction in [EU] law’, it should be observed that the principle of effective judicial protection cannot justify the EU judicature going beyond the jurisdiction conferred on it with the sole aim of compensating for that absence.

44 Furthermore, contrary to what the applicant suggests, the principles of effectiveness and equivalence are not applicable in the present instance.

45 In that regard, it should be recalled that, in the absence of EU rules, the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law – rules which come under the domestic legal system of the Member States – must not be less favourable than those governing similar domestic actions (principle of equivalence) or render virtually impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 7 June 2007, van der Weerd and Others , C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 28 and the case-law cited).

46 It is sufficient to state that, by definition, those principles can be implemented only by the national courts and tribunals and not by the Courts of the European Union, which apply the detailed procedural rules provided for in EU law itself. Furthermore, acting within the limits of the powers conferred on them in the Treaties, in accordance with the principle of institutional balance, the Courts of the European Union cannot set aside those detailed procedural rules (see, to that effect and by analogy, judgment of 25 October 2017, Commission v Council (CMR-15) , C‑687/15, EU:C:2017:803, paragraph 40 ).

47 In any event, even if the claims for a declaration of failure to act could be regarded as admissible, they would have to be dismissed on the substance for the reasons set out below.

– The substance of the claims for a declaration of failure to act

48 It is settled case-law that, in order to rule on the substance of a claim for a declaration that an institution has failed to act, it is necessary to determine whether, at the time when the institution in question was formally called upon to define its position within the meaning of Article 265 TFEU, it was under a duty to act (see judgment of 29 September 2011, Ryanair v Commission , T‑442/07, not published, EU:T:2011:547, paragraph 28 and the case-law cited).

49 In the present case, it must be noted that, as the Commission rightly contends, there cannot be a duty on its part to adopt unilateral measures in respect of the Swiss Confederation here, regardless of that institution’s position on the compliance of the need clause with the AFMP.

50 As has already been held in paragraphs 31 and 32 above, there is no provision applicable to any disputes between the Contracting Parties to the AFMP regarding its interpretation or its application which obliges, or even authorises, the Commission to adopt such measures. Under Article 19 of that agreement, it is merely allowed to bring such a dispute to the Joint Committee.

51 Furthermore, first, it must be pointed out that the AFMP was concluded with the Swiss Confederation not only by the European Union but also by all Member States. Accordingly, as the Commission observes in essence, any adoption of unilateral measures against the Swiss Confederation on account of an infringement of the AFMP requires, at the very least, the Member States’ consent.

52 Second, it is true that the Commission enjoys a power of external representation of the European Union under Article 17(1) TEU and that that power authorises it to conduct, on behalf of the European Union, the necessary discussions with the Swiss authorities in order to implement that agreement and ensure that it is applied correctly by them. This does not mean, however, that it may decide, solely on the basis of that power, to adopt legally binding measures against the Swiss Confederation without having been expressly so authorised by the Council of the European Union (see, to that effect, judgment of 28 July 2016, Council v Commission , C‑660/13, EU:C:2016:616, paragraph 36 ). In the absence of any procedure governing such measures, any adoption of them would necessitate, particularly in view of their potential consequences, reconciling the divergent interests arising in the relations between the European Union and the Swiss Confederation, which is a matter for the Council (see, to that effect, judgment of 28 July 2016, Council v Commission , C‑660/13, EU:C:2016:616, paragraphs 33 and 39 ).

53 Moreover, such an obligation would risk undermining the implementation of the AFMP, which is one of the seven sectoral agreements concluded with the Swiss Confederation that are intended to strengthen economic ties between the European Union and that third country and which, more specifically, is intended to bring about between the Contracting Parties the free movement of persons on the basis of the rules applying in the European Union (see, to that effect, judgment of 27 February 2014, United Kingdom v Council , C‑656/11, EU:C:2014:97, paragraphs 53 and 55 ).

54 For the purposes of the settlement of disputes regarding the interpretation of the AFMP and its application, it is essential that the institutions of the European Union and the Member States have a degree of latitude, if not a discretion, that is at least sufficiently broad in order to reconcile, as required, the divergent interests arising in the relations with the Swiss Confederation and to decide on the most appropriate strategy with regard to protecting the interests of the European Union and the interests of the European Union’s citizens and operators (see, to that effect and by analogy, judgment of 6 December 2001, Area Cova and Others v Council and Commission , T‑196/99, EU:T:2001:281, paragraphs 122 to 124 and the case-law cited).

55 In addition, it should be observed that the absence of any provision in the AFMP envisaging the adoption of unilateral measures by the Contracting Parties, other than the provisions on the non-renewal or termination of that agreement, and the content of the provisions of Article 19 thereof on the settlement of disputes by the Joint Committee, which pursuant to Article 14 of the AFMP reaches decisions by mutual agreement, show the intention of the Contracting Parties to give preference to negotiation and consensus to ensure that that agreement functions properly.

56 Consequently, in the circumstances of the present case, the Commission was under no duty to adopt against the Swiss Confederation the measures requested by the applicant. Accordingly, assuming that the Commission failed to define its position or take a decision on that request, that failure did not, in any event, constitute a failure to act.

57 Those conclusions cannot be called into question by the application of the principles of the protection of legitimate expectations and of legal certainty, upon which the applicant relies.

58 In accordance with settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person who has been caused by an EU institution to entertain expectations which are justified by precise assurances provided to him. As regards the principle of legal certainty, it requires that EU legislation must be certain and its application foreseeable by those subject to it (see judgment of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council , T‑14/14 and T‑87/14, EU:T:2017:102, paragraphs 191 and 192 and the case-law cited).

59 First, with regard to the principle of the protection of legitimate expectations, it should be noted that the applicant did not receive any precise assurance as regards the adoption by the Commission of unilateral measures in respect of the Swiss Confederation in the light of infringements of the AFMP by that third country.

60 Thus, as has already been stated, there is no applicable provision which requires, or even authorises, the Commission to adopt such measures itself, measures which would, in any event, require the consent of the Member States and of the Council (see paragraphs 50 to 52 above).

61 Furthermore, in the emails of 30 May and 7 June 2018 from the Commission and the letter of 20 December 2018 from the EEAS, the authorities of the European Union provided only general assurances as regards the commitment to make every effort to guarantee the correct application of the AFMP and respect for the rights of Union citizens in Switzerland and as regards the commitment to monitor the legislative process for amending the need clause in that country, in conjunction with that country’s authorities (see paragraphs 5 and 8 above).

62 Second, with regard to the principle of legal certainty, it follows clearly and unambiguously from the provisions of the AFMP that that agreement does not provide, at this stage, for a dispute settlement procedure other than that laid down in Article 19 thereof, which allows the Contracting Parties to bring a dispute of that nature to the Joint Committee, without there being any obligation on the latter to reach a settlement of that dispute. Accordingly, as the applicable law currently stands, the AFMP does not provide the Commission with any legal means to protect the rights which Union citizens derive from the AFMP on Swiss territory other than to bring to the Joint Committee any question relating to whether the provisions of Swiss law and of administrative measures adopted under that law comply with that agreement.

63 Furthermore, as has been stated in paragraph 33 above, the adoption, outside any applicable procedure, of unilateral measures by one of the Contracting Parties to the AFMP against the other Contracting Party, on the ground of the latter’s infringement of its obligations under that agreement, does not, by definition, offer any guarantee as regards the outcome of the dispute between those contracting parties.

64 In his observations on the objection of inadmissibility, the applicant calls into question the legality of the provisions of the AFMP, on the ground that it does not provide for access to an independent tribunal to settle disputes related to the application of that agreement. However, those considerations cannot call into question the absence, in the present case, of a duty on the part of the Commission to adopt measures against the Swiss Confederation.

65 First, it should be observed that Article 11 of the AFMP provides for a right of appeal for the persons covered by that agreement to the competent authorities and, in particular, to the competent national judicial body. In the present case, it is clear from the material in the file that the applicant was able to bring an action before the TAF against the decision not to allow him to practise under the compulsory sickness insurance scheme. Although the applicant disputes that court’s interpretation of the AFMP and of the applicable EU law, he fails to establish that the court did not give its ruling independently. In this regard, it should be recalled that, according to the case-law of the European Court of Human Rights, the method of appointing judges, a point raised by the applicant in the present case, cannot on its own be sufficient to cast doubt on their independence (see, to that effect, ECtHR, 18 May 1999, Ninn-Hansen v. Denmark, CE:ECHR:1999:0518DEC002897295, and 26 August 2003, Filippini v. Saint-Marin, CE:ECHR:2003:0826DEC001052602). Furthermore, it is likewise clear from the documents before the Court that an appeal may be lodged against the judgment of the Tribunal arbitral des assurances du canton de Gèneve (Insurance Arbitration Tribunal, Canton of Geneva) of 3 July 2019 before the Tribunal fédéral Suisse (Federal Supreme Court, Switzerland). The applicant fails to establish therefore that, in the present instance, there is no access to an independent tribunal to settle disputes between him or his employers and the Swiss authorities regarding his right to pursue the profession of medical practitioner in the Canton of Geneva.

66 Second, and in any event, the fact that provision is not made in the AFMP for a mechanism allowing the EU judicature to rule on the Swiss authorities’ application of that agreement and of EU law cannot, on its own, give rise to a duty on the part of the Commission to adopt unilateral measures in respect of the Swiss Confederation. In that connection, it is sufficient to recall that, as has been held in paragraphs 51 and 54 above, the adoption of such measures requires, at the very least, the consent of the Member States and the approval of the Council and, in addition, cannot be mandatory, in the light of the broad discretion required to make the necessary reconciliations and to decide on the most appropriate strategy.

67 Accordingly, even if the claims for a declaration of failure to act put forward in the application were admissible, they would have to be dismissed in any event as manifestly lacking any foundation in law.

– The claims seeking the imposition of a penalty payment

71 As a preliminary point, it should be recalled that an action for damages based on Article 268 TFEU and on the second paragraph of Article 340 TFEU is an independent form of action with a particular purpose to fulfil within the system of actions and is subject to conditions as to its use dictated by its specific nature. It differs from an application for annulment in that its end is not the abolition of a particular measure but compensation for damage caused by an institution (see judgment of 24 October 2000, Fresh Marine v Commission , T‑178/98, EU:T:2000:240, paragraph 45 and the case-law cited).

72 That being so, in the context of an action for damages based on Article 268 TFEU and on the second paragraph of Article 340 TFEU, the EU judicature does not have jurisdiction to impose a penalty payment on the institution held liable for the alleged harm. The purpose of imposing a penalty payment cannot be to provide compensation for harm suffered, but merely to require the institution concerned to put an end to the infringement of EU law for which it is criticised either by adopting or by abolishing a particular measure (see, to that effect and by analogy, judgment of 17 November 2011, Commission v Italy , C‑496/09, EU:C:2011:740, paragraphs 42 to 45 ).

73 Accordingly, the applicant’s claims for a penalty payment have to be dismissed as manifestly inadmissible.

74 In any event, it should be recalled that, according to settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (see order of 6 September 2011, Mugraby v Council and Commission , T‑292/09, not published, EU:T:2011:418, paragraph 54 and the case-law cited). In particular, it should be recalled that the damage for which compensation is sought in an action to establish non-contractual liability on the part of the European Union, under the second paragraph of Article 340 TFEU, must be actual and certain, which it is for the applicant to prove. It is for the latter to adduce conclusive proof as to both the existence and the extent of the damage that he alleges (see judgment of 6 September 2018, Klein v Commission , C‑346/17 P, EU:C:2018:679, paragraph 147 and the case-law cited).

75 Assuming that the penalty payment which the applicant asks the Court to impose on the Commission is intended to compensate for the future harm that he will continue to suffer as long as the application of the need clause is maintained in relation to him, such harm cannot, by definition, be regarded as being actual and certain within the meaning of that case-law. The claims for a penalty payment must therefore, in any event, be dismissed as manifestly lacking any foundation in law.

– The claims for the European Union to be ordered to pay compensation for the harm allegedly suffered by the applicant since 2013

76 It should be recalled that, so far as concerns the unlawfulness of the alleged conduct of the institutions, which is one of the three conditions that must be satisfied in order for non-contractual liability of the European Union to be incurred, the case-law requires that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals. In relation to the requirement that the breach must be sufficiently serious, the decisive criterion for establishing that that requirement is satisfied is whether the institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see order of 6 September 2011, Mugraby v Council and Commission , T‑292/09, not published, EU:T:2011:418, paragraph 55 and the case-law cited).

77 In the present case, first, it is sufficient to observe that, as has been held in paragraph 35 above, in the absence of provisions of international law or of EU law which involve, in some way or other, individuals in the decision-making process relating to the implementation of the AFMP, even if the Commission did fail to fulfil its obligations by not adopting measures against the Swiss Confederation, that supposed failure cannot be regarded as being a breach of a rule of law intended to confer rights on individuals.

78 Second, and in any event, it should be recalled that, as has been held in paragraphs 50 to 52 and 60 above, the Commission is not authorised to adopt such measures within the context of the implementation of the AFMP and could not do so, in any event, without the Member States and the Council having given their consent to their adoption. Furthermore, as the Court has stated in paragraph 54 above, for the purposes of settling disputes regarding the interpretation of the AFMP and its application, it is essential that the institutions of the European Union and the Member States have a degree of latitude, if not a discretion, that is at least sufficiently broad in order to reconcile, as required, the divergent interests arising in the relations with the Swiss Confederation and to decide on the most appropriate strategy with regard to protecting the interests of the European Union and the interests of the European Union’s citizens and operators. Accordingly, the Commission’s failure to adopt the measures requested by the applicant cannot in any way constitute a manifest and grave disregard by that institution of the limits imposed on its discretion and, therefore, a sufficiently serious breach within the meaning of the case-law recalled in paragraph 76 above.

79 For the same reasons as those set out in paragraphs 58 to 63 above, those considerations cannot be called into question by the principles of the protection of legitimate expectations and of legal certainty.

80 It follows from all the foregoing that the applicant’s claims for damages put forward in respect of the Commission’s alleged wrongful failure to act must be dismissed as manifestly lacking any foundation in law, without it being necessary to examine whether harm exists and whether there is a link between that harm and the failure to act for which the Commission is criticised.

81 As regards the line of argument put forward in the alternative in the applicant’s observations on the objection of inadmissibility, by which he requests that the Court order the Commission to pay compensation for the alleged harm on the basis of strict liability, such a line of argument must be held to be manifestly lacking any foundation in law without it being necessary to rule on whether that line of argument is raised in support of independent claims or includes new pleas in law and whether, as the case may be, such claims or pleas in law would be admissible.

82 The Court has already held that, as it currently stands, EU law does not provide for a regime allowing the liability of the European Union to be put in issue in the absence of unlawful conduct by one of its institutions (see, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 167 and 179 ). That case-law may be applied in the present case since the provisions of the second paragraph of Article 340 TFEU are, in essence, analogous to the provisions of the second paragraph of the former Article 288 EC, on which that case-law is based.

83 The claims for the European Union to be ordered to pay compensation for the harm allegedly suffered by the applicant since 2013 must therefore be dismissed as manifestly lacking any foundation in law.