The General Court of the European Union dismissed on Friday 17 July an action for a declaration that the European Council unlawfully refused to exclude Czech Prime Minister Andrej Babiš from summits relating to the Multiannual Financial Framework (MFF) 2021-2027 (see EUROPE 12530/1) on the grounds of an alleged conflict of interest.
Only the Member States are competent to determine, from among their respective Heads of State or Government, which of those persons is to represent them at a European summit and to establish the grounds which may lead to one of those persons being unable to represent them at meetings of that institution, the General Court added.
In June 2019, Mr Wagenknecht, a member of the Czech Senate, had asked the European Council to exclude Mr Babiš from the 20 June 2019 meeting of that institution and its successive meetings on the post-2020 MFF negotiations. This request was based on an alleged conflict of interest of the Czech Prime Minister resulting from his personal interests in the Agrofert Group. Active particularly in the agri-food sector, the companies in this group receive subsidies from the EU budget.
At the end of June 2019, the European Council - while specifying that it was not taking a position on the substance of the Senator’s allegations - had explained that the EU Treaty does not provide for the possibility of changing the composition of the European Council, which shall consist of the “Heads of State or Government of the Member States, together with its President and the President of the Commission” (Article 15(2) TEU). The question as to which person, as between the Head of State or Head of Government, should represent a Member State is a matter for national constitutional law alone.
Mr Wagenknecht brought an action for failure to act before the General Court under Article 265 TFEU, arguing that the European Council would infringe the rules of EU law on the protection of the Union’s financial interests and the avoidance of any conflict of interest in the management of Union funds.
By its order, the General Court considers that this action for failure to act is inadmissible and manifestly unfounded. It therefore welcomes the objection of inadmissibility raised by the European Council.
According to the European Judge, Mr Wagenknecht has not established that, if the European Council had unlawfully failed to oust Mr Babiš, he would have been the addressee of such a decision or that the act at issue would have directly and individually concerned him in a manner analogous to that in which the addressee of such an act would be.
Moreover, the Senator was unable to justify an interest in acting, the existence of which presupposes that the action is likely, by its outcome, to be of personal benefit to him.
Furthermore, the General Court points out that the refusal by an institution of the Union, with explanations, to act in accordance with a request for the adoption of a measure constitutes: - a position paper putting an end to any shortcomings of this institution; - and an act which may be challenged before the Union judicature in an action for annulment brought under Article 263 TFEU.
Mr. Wagenknecht, although given the opportunity, did not challenge that decision before the General Court.
With regard to the substance of the application at issue, the General Court notes that the European Council has no discretion when inviting the Heads of State or Government of the Member States to its meetings. In the absence of any clarification on this point in the EU Treaty, the General Court considers that it is the responsibility of the Member States to adopt the national measures, including constitutional measures, making it possible to determine whether they must be represented, at meetings of the European Council, by their Head of State or by their Head of Government.
Similarly, it is for the Member States to establish whether there are grounds for preventing either of those two persons from representing their respective Member State in that institution.
Finally, as regards the allegations concerning the alleged conflict of interest of the Czech Prime Minister, the General Court points out that the regularity of the payments made by the Union falls within the scope of the EU rules applicable to those funds and the conditions laid down by those rules. And to refer to the case Czech Republic vs Commission (T-76/20) pending before the General Court.
At the end of June, the European Parliament called for an “urgent” end to the conflict of interest against Mr Babiš (see EUROPE 12508/9). (Original version in French by Mathieu Bion)