ORDER OF THE GENERAL COURT (Tenth Chamber)
18 November 2021 (*)
(Action for annulment – Area of freedom, security and justice – Trade and Cooperation Agreement between the European Union and the Euratom, on the one hand, and the United Kingdom, on the other – Council decision on the signing and on provisional application of the Trade and Cooperation Agreement – Mechanism of surrender pursuant to an arrest warrant – Person arrested and detained in Ireland after the end of the transition period for the purpose of the execution of a European Arrest Warrant issued by the United Kingdom during the transition period – Act not of individual concern – Non-regulatory act – Inadmissibility)
In Case T‑157/21,
RG, represented by R. Purcell, Solicitor,
applicant,
v
Council of the European Union, represented by A. Antoniadis, J. Ciantar and A. Stefanuc, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for the partial annulment of Council Decision (EU) 2020/2252 of 29 December 2020 on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information (OJ 2020 L 444, p. 2),
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, K. Kowalik-Bańczyk (Rapporteur) and G. Hesse, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 31 January 2020, the United Kingdom of Great Britain and Northern Ireland withdrew from the European Union and the European Atomic Energy Community.
2 The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7) entered into force on 1 February 2020. That agreement provides for a transition period ending on 31 December 2020, during which EU law, and in particular Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), remain applicable to and in the United Kingdom.
3 On 5 October 2020, Birmingham Magistrates’ Court (United Kingdom) issued a European arrest warrant against the applicant, RG.
4 On 14 December 2020, the High Court (Ireland) endorsed the European arrest warrant issued against the applicant.
5 On 24 December 2020, negotiations between the European Union and the United Kingdom led, inter alia, to an agreement on trade and cooperation between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2020 L 444, p. 14; ‘the Trade and Cooperation Agreement’). Title VII of Part Three of that agreement, entitled ‘Surrender’, establishes a mechanism of surrender pursuant to an arrest warrant applicable between the Member States, on the one hand, and the United Kingdom, on the other. Under Article LAW.SURR.112 of that agreement, that mechanism for surrender applies, inter alia, to European arrest warrants issued by a Member State or by the United Kingdom before the end of the transition period where the requested person has not been arrested for the purpose of executing the arrest warrant before the end of that period.
6 On 29 December 2020, the European Council adopted Council Decision (EU) 2020/2252 on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information (OJ 2020 L 444, p. 2; ‘the contested decision’). Article 1(1) of the contested decision authorises the signing of the Trade and Cooperation Agreement. Article 12(1) of that decision provides for the provisional application as from 1 January 2021 of the two agreements covered by that decision.
7 On 30 December 2020, the representatives of the European Union and the United Kingdom signed the Trade and Cooperation Agreement.
8 On 1 January 2021, the Trade and Cooperation Agreement began to be provisionally applied.
9 On 25 February 2021, the applicant was arrested and remanded in custody in Ireland on the basis of the European arrest warrant issued against him.
Procedure and forms of order sought
10 By application lodged on 22 March 2021, the applicant brought the present action.
11 By separate document lodged at the Court Registry on 8 April 2021, the applicant requested to be granted anonymity in accordance with Article 66 of the Rules of Procedure of the General Court. By decision of 31 May 2021, the General Court granted that request.
12 By separate document lodged at the Court Registry on 13 July 2021, the Council raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure.
13 The applicant did not submit any observations on the objection of inadmissibility within the prescribed period.
14 In the meantime, by documents lodged at the Court Registry on 28 and 30 July 2021, respectively, the European Commission and Ireland sought leave to intervene in the present case in support of the form of order sought by the Council.
15 The applicant claims that the Court should:
– annul the contested decision to the extent that it provisionally applies Title VII of Part Three of the Trade and Cooperation Agreement to Ireland;
– order the Council to pay the costs.
16 In the plea of inadmissibility, the Council contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
17 Under Article 130(1) and (7) of the Rules of Procedure, the Court may give a decision on inadmissibility without going to the substance of the case if a defendant makes an application asking it to do so. In the present case, the Court considers that it has sufficient information from the documents in the file to give a decision without taking further steps in the proceedings.
18 The Council submits that the action is inadmissible because the applicant does not have standing to bring proceedings against the contested decision. First, the applicant is not the addressee of that decision. Second, the applicant is not directly and individually concerned by that decision. Third, the contested decision is not a regulatory act.
19 The applicant claims that he is directly and individually concerned by the contested decision.
20 It must be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings for annulment of three types of act, namely, (i) an act addressed to that person, (ii) an act which is of direct and individual concern to them and, (iii) a regulatory act which is of direct concern to them and does not entail implementing measures.
21 In the present case, the applicant’s standing to bring proceedings must be assessed solely in the light of the contested decision. However, it must be observed that the review of legality to be carried out by the Courts of the European Union in respect of a decision on the signing and on provisional application of an international agreement is capable of encompassing the legality of that decision in the light of the actual content of the international agreement at issue. It follows that, for the purposes of assessing the applicant’s standing to bring proceedings, account must be taken of the nature and content of the Trade and Cooperation Agreement whose signing and provisional application the contested decision authorises (see, by analogy, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 51 and the case-law cited, and order of 8 June 2021, Silver and Others v Council, T‑252/20, under appeal, EU:T:2021:347, paragraph 33).
22 It should be noted at the outset that neither the contested decision nor the Trade and Cooperation Agreement is addressed to the applicant. It follows that he has no right of action on the basis of the first limb of the fourth paragraph of Article 263 TFEU.
23 In those circumstances, it is necessary to examine whether the applicant has a right to bring an action on the basis of one or other of the situations provided for in the second and third limbs of the fourth paragraph of Article 263 TFEU.
The applicant’s standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU
24 It should be recalled that the conditions for direct and individual concern, as provided for in the second limb of the fourth paragraph of Article 263 TFEU, are cumulative (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 75 and 76 and the case-law cited).
25 In the circumstances of the present case, it is necessary to examine first whether the second condition, relating to the individual concern of the applicant, is satisfied.
26 In that regard, it must be borne in mind that it is settled case-law that, in order to be regarded as individually concerned by a measure not addressed to that person, a natural or legal person must be affected by that measure by reason of certain attributes which are peculiar to them or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed by a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 93).
27 As a general rule and except in special circumstances, a natural or legal person cannot be individually affected by an act of general application which applies to objectively determined situations and produces legal effects in respect of categories of persons considered in a general and abstract manner (see, to that effect, judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 48, and of 16 May 2019, Pebagua v Commission, C‑204/18 P, not published, EU:C:2019:425, paragraph 37).
28 In the present case, the applicant claims, in essence, that he was arrested in Ireland after the commencement of the provisional application of the Trade and Cooperation Agreement on the basis of a European arrest warrant issued by the United Kingdom during the transition period. Therefore, the surrender proceedings against him are governed by Article LAW.SURR.112 of that agreement so that the contested decision is of direct and individual concern to him.
29 However, it is common ground that the provisions of Title VII of Part Three of the Trade and Cooperation Agreement and, in particular, Article LAW.SURR.112 of that agreement apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged generally and in the abstract. Accordingly, the abovementioned provisions of the Trade and Cooperation Agreement are of general application. The same is true of the contested decision, which authorises the signing of the Agreement and the provisional application of those provisions.
30 It follows that the contested decision, in so far as it provides for the provisional application to Ireland of Title VII of Part Three of the Trade and Cooperation Agreement, affects the applicant by reason of his objective status as a requested person on the basis of a European arrest warrant issued by the United Kingdom during the transition period who has not been arrested for the purpose of executing the arrest warrant before the end of that period.
31 Furthermore, the applicant has not referred to any circumstance capable of demonstrating that, despite their general scope, the Trade and Cooperation Agreement and, therefore, the contested decision affect him by reason of certain attributes peculiar to him or factual circumstances which differentiate him from all other persons.
32 In those circumstances, it must be held that the applicant is not individually concerned by the contested decision. Accordingly, without it being necessary to examine whether the applicant is directly concerned by that decision, he does not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
The applicant’s standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU
33 It should be recalled that the conditions relating (i) to the regulatory nature of the contested act, (ii) to the applicant being directly concerned and, (iii) to the absence of implementing measures provided for in the third limb of the fourth paragraph of Article 263 TFEU, are cumulative (see, to that effect, orders of 19 November 2020, Buxadé Villalba and Others v Parliament, T‑32/20, not published, EU:T:2020:552, paragraph 30 and the case-law cited, and of 8 June 2021, Silver and Others v Council, T‑252/20, under appeal, EU:T:2021:347, paragraph 68).
34 In the circumstances of the present case, it is necessary to examine first whether the first condition, relating to the regulatory nature of the contested decision, is satisfied.
35 It is important to recall that the concept of ‘regulatory acts’ within the meaning of the third sentence of the fourth paragraph of Article 263 TFEU, on the one hand, refers to acts of general application and, on the other hand, does not include legislative acts (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 60 and 61, and order of 8 June 2021, Silver and Others v Council, T‑252/20, under appeal, EU:T:2021:347, paragraph 71).
36 In the present case, the Council rightly argues that, although the contested decision is an act of general application, it is neither a legislative act nor a regulatory act.
37 First, the contested decision is an act of general application as indicated in paragraph 29 above.
38 Second, it must be recalled that a legal act can be classified as a legislative act of the European Union only if it has been adopted on the basis of a provision of the Treaties which expressly refers either to the ordinary legislative procedure or to the special legislative procedure (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 62). In the present case, the contested decision was adopted on the basis of Article 217 TFEU, in conjunction with Article 218(5) and the second subparagraph of Article 218(8) TFEU. It must be held that none of those provisions makes express reference either to the ordinary legislative procedure or to the special legislative procedure. It follows that the contested decision cannot be classified as a legislative act.
39 Third, it should be noted that, according to the case-law of the General Court, the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted as not including decisions approving the conclusion of an international agreement (orders of 8 June 2021, Silver and Others v Council, T‑252/20, under appeal, EU:T:2021:347, paragraph 90; of 8 June 2021, Shindler and Others v Council, T‑198/20, under appeal, EU:T:2021:348, paragraph 80; and of 8 June 2021, Price v Council, T‑231/20, not published, under appeal, EU:T:2021:349, paragraph 74). That interpretation applies, by analogy, to decisions authorising the signing and provisional application of an international agreement, such as, inter alia, the contested decision.
40 In that regard, it must in particular be noted that, like any international agreement concluded by the European Union, the Trade and Cooperation Agreement binds the EU institutions and takes precedence over the acts they lay down. It follows from that primacy of international agreements concluded by the European Union over secondary legislation that the Trade and Cooperation Agreement has, within the hierarchy of norms, a higher rank than other acts of general application, both legislative and regulatory. It follows that the contested decision permits the provisional application, within the EU legal order, of rules contained in the Trade and Cooperation Agreement which prevail over legislative and regulatory acts and which cannot therefore themselves be of a regulatory nature (see orders of 8 June 2021, Silver and Others v Council, T‑252/20, under appeal, EU:T:2021:347, paragraphs 81 to 83 and the case-law cited; of 8 June 2021, Shindler and Others v Council, T‑198/20, under appeal, EU:T:2021:348, paragraphs 71 to 73 and the case-law cited; and of 8 June 2021, Price v Council, T‑231/20, not published, under appeal, EU:T:2021:349, paragraphs 65 to 67 and the case-law cited).
41 In those circumstances, the contested decision, in so far as it authorises the signing and provisional application to Ireland of Title VII of Part Three of the Trade and Cooperation Agreement, cannot be classified as a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
42 It follows from the foregoing that, without there being any need to examine whether the contested decision directly affects the applicant and whether it entails implementing measures, the applicant does not have standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU.
43 It follows that the Council is justified in maintaining that the applicant does not have standing to bring proceedings. Therefore, the plea of inadmissibility must be upheld and the action must be dismissed as inadmissible.
The applications to intervene
44 Under Article 142(2) of the Rules of Procedure, the intervention becomes devoid of purpose if the application is declared inadmissible. In the present case, since the action is dismissed as inadmissible, there is no longer any need to adjudicate on the applications to intervene made by Ireland and by the Commission.
Costs
45 In the first place, under Article 134(1) 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. In the present case, since the applicant has been unsuccessful in his action, he must be ordered, in addition to bearing his own costs, to pay those of the Council, in accordance with the form of order sought by the Council, with the exception of those relating to the applications to intervene.
46 In the second place, under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. In the present case, the applicant, the Council, Ireland and the Commission shall each bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to adjudicate on the applications for leave to intervene submitted by Ireland and the European Commission.
3. RG is ordered to pay, in addition to his own costs, those incurred by the Council of the European Union, with the exception of those relating to the applications for leave to intervene.
4. RG, the Council, Ireland and the Commission shall each bear their own costs relating to the applications to intervene.
Luxembourg, 18 November 2021.