ORDER OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
8 June 2021 (*)
(Action for annulment – Area of freedom, security and justice – Agreement on the withdrawal of the United Kingdom from the European Union and from Euratom – Council Decision on the conclusion of the Agreement on withdrawal – United Kingdom nationals – Loss of Union citizenship – Act not of individual concern – Non-regulatory act – Inadmissibility)
In Case T‑198/20,
Harry Shindler, residing in Porto d’Ascoli (Italy), and the other applicants whose names are set out in the annex, (1) represented by J. Fouchet, lawyer,
applicants,
v
Council of the European Union, represented by M. Bauer, R. Meyer and J. Ciantar, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking annulment, in whole or in part, first, of 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), and, secondly, of Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of 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. 1),
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk (Rapporteur), G. Hesse and M. Stancu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, Mr Harry Shindler and the other applicants whose names are set out in the annex, are nationals of the United Kingdom residing in Ireland, Spain, France and Italy.
2 On 23 June 2016, the citizens of the United Kingdom determined by referendum that their country should withdraw from the European Union.
3 On 29 March 2017, the United Kingdom of Great Britain and Northern Ireland notified the European Council of its intention to withdraw from the European Union pursuant to Article 50(2) TEU.
4 On 24 January 2020, the representatives of the European Union and the United Kingdom signed 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; ‘the withdrawal agreement’).
5 On 30 January 2020, the Council of the European Union adopted Decision (EU) 2020/135 on the conclusion of 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. 1). Under Article 1 of that decision, the withdrawal agreement was approved on behalf of the European Union and the European Atomic Energy Community.
6 On 31 January 2020, the United Kingdom withdrew from the European Union and the European Atomic Energy Community. On 1 February 2020, the withdrawal agreement entered into force.
Procedure and forms of order sought
7 By application lodged on 30 March 2020, the applicants brought the present action.
8 On 21 April 2020, the applicants submitted a written statement asking the General Court to refer questions to the Court of Justice for a preliminary ruling. On 28 April 2020, the President of the General Court decided not to include that statement in the case file.
9 By separate document lodged at the General Court Registry on 14 July 2020, the Council raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
10 On 21 August 2020, the applicants lodged their observations on the plea of inadmissibility at the Court Registry.
11 In the meantime, by document lodged at the Court Registry on 15 June 2020, the European Commission sought leave to intervene in the present case in support of the form of order sought by the Council. By letter lodged at the Court Registry on 8 July 2020, the Council stated that it had no observations to make on that letter.
12 By document lodged at the Court Registry on 6 August 2020, British in Europe, an association constituted under French law, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letter lodged at the Court Registry on 26 November 2020, the Council left it to the discretion of the General Court as to whether that intervention should be allowed.
13 By order of 5 November 2020, the Court (Tenth Chamber) reserved its decision on the plea of inadmissibility until it ruled on the substance of the case, pursuant to Article 130(7) of the Rules of Procedure, and reserved the costs.
14 By decision of 10 November 2020, the Court referred the case to the Tenth Chamber sitting in extended composition, pursuant to Article 28 of the Rules of Procedure.
15 The Council lodged the defence on 18 January 2021. On 11 February 2021, the President of the Tenth Chamber, Extended Composition, decided not to serve that statement on the applicants.
16 By letter lodged at the Court Registry on 19 January 2021, the applicants requested that the proceedings in the present case be stayed pursuant to Article 69(d) of the Rules of Procedure. By letter lodged at the Registry on 8 February 2021, the Council submitted its observations on that request to stay proceedings. By decision of 10 February 2021, the President of the Tenth Chamber, Extended Composition, rejected that request to stay proceedings.
17 The applicants claims that the Court should:
– principally, annul in full the withdrawal agreement and Decision 2020/135;
– in the alternative, annul in part the withdrawal agreement and Decision 2020/135, ‘in so far as those acts, automatically and generally, … distinguish between European Union citizens and United Kingdom nationals’, and thus annul, in particular, the sixth paragraph of the preamble and Articles 9, 10 and 127 of the withdrawal agreement;
– order the Council to pay the costs, ‘including legal fees of EUR 5 000’.
18 In the plea of inadmissibility, the Council contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
Law
Whether it is possible to give a decision by way of order
19 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 accordance with Article 130(6) of those rules, the Court may decide to open the oral part of the procedure in respect of the plea of inadmissibility.
20 According to the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the Court has previously adopted an order reserving its decision on a plea submitted on the basis of Article 130(1) of the Rules of Procedure until it rules on the substance of the case (see, to that effect, order of 19 February 2008, Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28).
21 In the present case, although it decided by order of 5 November 2020 to reserve its decision on the Council’s plea of inadmissibility until it ruled on the substance of the case, the Court now considers that it has sufficient information from the documents in the file to give a decision by way of an order on that plea.
Subject matter of the action
22 As a preliminary point, in the first place, it should be noted that the applicants claim, in the alternative, the annulment in part of the withdrawal agreement and Decision 2020/135, ‘in so far as those acts, automatically and generally, … distinguish between European Union citizens and United Kingdom nationals’, and annulment, in particular, of the sixth paragraph of the preamble and Articles 9, 10 and 127 of the withdrawal agreement (second indent of paragraph 17 above).
23 In that regard, it is apparent from all the written submissions of the applicants that, by their application for partial annulment, they seek, in essence, annulment of the acts referred to in paragraph 22 above, in so far as those acts deprive United Kingdom nationals – and in particular those of them who exercised their right to freedom of movement in the European Union and who were not authorised to vote in the referendum of 23 June 2016 – of their status as Union citizens and of the rights attaching to that status.
24 In the second place, it is worth noting that the applicants seek the annulment, in whole or in part, not only of Decision 2020/135, but also of the withdrawal agreement itself.
25 However, the withdrawal agreement is not a unilateral act of the European Union, but an act of international treaty law concluded between the European Union, on the one hand, and the United Kingdom, on the other.
26 In such a case, the review of lawfulness to be ensured by the EU judicature applies to the European Union act intended to give effect to the international agreement at issue, and not to the latter as such (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 286). That review is nonetheless capable of encompassing the legality of that act in the light of the actual content of the international agreement at issue (see, by analogy, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 51).
27 Therefore, when an action is brought against an international agreement concluded by the European Union, the EU judicature reclassifies the action as being, in reality, directed against the decision approving the conclusion of that agreement (see, to that effect, judgment of 9 August 1994, France v Commission, C‑327/91, EU:C:1994:305, paragraphs 13 to 17).
28 Accordingly, the action must be reclassified as being directed against Decision 2020/135 alone (‘the contested decision’).
The plea of inadmissibility
29 The Council submits that the action is inadmissible in so far as the applicants do not have standing to bring proceedings against the contested decision. First, the applicants are not addressees of that decision. Secondly, the applicants are not individually concerned by that decision. Thirdly, the contested decision, on the one hand, entails implementing measures and, on the other hand, is not a regulatory act.
30 The applicants dispute the plea of inadmissibility. They submit, first, that they are directly and individually concerned by the contested decision and, secondly, that that decision is a regulatory act which is of direct concern to them and does not entail implementing measures.
31 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, first, an act addressed to that person, secondly, an act which is of direct and individual concern to them and, thirdly, a regulatory act which is of direct concern to them and does not entail implementing measures.
32 In the present case, in view of the partial reclassification of the action (paragraph 28 above), the applicants’ standing to bring proceedings must be assessed solely in the light of the contested decision. However, in accordance with the case-law (paragraph 26 above), it is necessary, for the purposes of that assessment, to take into account the nature and content of the withdrawal agreement.
33 It should be noted at the outset that neither the contested decision nor the withdrawal agreement is addressed to the applicants. It follows that they have no right of action on the basis of the first limb of the fourth paragraph of Article 263 TFEU, which, moreover, they do not dispute.
34 In those circumstances, it is necessary to examine whether the applicants have 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 applicants’ standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU
35 It should be recalled that the conditions that the act of which annulment is sought should be of direct concern, on one hand, and individual concern, on the other, laid down 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:С:2013:625, paragraphs 75 and 76 and the case-law cited).
36 In the circumstances of the present case, it is necessary to examine first whether the second condition, relating to whether the applicants are individually concerned, is satisfied.
37 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).
38 Consequently, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (judgments of 22 November 2001, Antillean Rice Mills v Council, C‑451/98, EU:C:2001:622, paragraph 52, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 94).
39 Similarly, the fact that a legal instrument may have different specific effects which differ according to the various persons to whom it applies is not such as to differentiate them in relation to all the other persons concerned where that measure is applied on the basis of an objectively determined situation (judgment of 22 February 2000, ACAV and Others v Council, T‑138/98, EU:T:2000:45, paragraph 66, and order of 3 December 2008, RSA Security Ireland v Commission, T‑227/06, EU:T:2008:547, paragraph 59).
40 However, the fact that a provision is by its nature and scope a provision of general application, inasmuch as it applies to the persons concerned in general, does not of itself prevent that provision from being of individual concern to some (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 58, and of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29).
41 Where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of persons. That can be the case particularly when the measure alters rights acquired by those persons prior to its adoption (see, to that effect, judgments of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 and 72 and the case-law cited, and of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59).
42 In the present case, the applicants submit, in essence, that they are directly and individually concerned by the contested decision in so far as it deprives them of their status as Union citizens and of the rights attaching to that status, in particular the right to move and reside freely within the territories of the Member States and the right to vote and to stand as a candidate in elections to the European Parliament and in the municipal elections of their Member State of residence.
43 More specifically, in order to justify that the decision is of individual concern to them, the applicants explain that they form part of an initial limited class of United Kingdom nationals who have exercised their right to freedom of movement within the European Union (2% of the ‘general British population’). In addition, they also form part of a further even more limited class of United Kingdom nationals who have, in addition, resided for more than 15 years outside the United Kingdom and who, as a result, were deprived of the right to vote in the United Kingdom parliamentary elections and in the referendum of 23 June 2016 pursuant to the ‘15-year rule’ (1.2% of the ‘British population’). That deprivation of the right to vote prevented them from participating in elections which were decisive for maintaining their status as Union citizens.
44 The applicants also explain that each of them is significantly and particularly affected by the loss of their status as a Union citizen and of the rights attaching to that status. In that regard, they rely on the consequences of losing Union citizen status and of the rights attaching to that status by reason of different attributes, such as, in particular:
– that of a veteran of the Second World War (one applicant);
– that of ‘victims of the “15-year rule”’ (five applicants);
– that of persons who were prevented from voting or being candidates in the 2020 French municipal elections (five applicants);
– that of a person who will be affected in the performance of his professional activity in Gibraltar (one applicant);
– that of persons whose private and family life will be affected (two applicants);
– that of persons whose right to property will be affected (four applicants);
– those of persons who will be subject to a social security contribution or new tax charge on their retirement pensions paid by the United Kingdom (seven applicants);
– that of persons who will be subject to new formalities in order to enter into or reside in the territory of the European Union (three applicants).
45 It must be stated at the outset that the applicants’ arguments seeking to establish their standing under the second limb of the fourth paragraph of Article 263 TFEU are based on the premiss that the contested decision entails the ‘loss’ or ‘withdrawal’ of their status as Union citizens and of the rights attaching to that status.
46 In that regard, it is true that neither the contested decision nor the withdrawal agreement expressly removes the status as Union citizens and the rights attaching to that status from United Kingdom nationals.
47 Nonetheless, it is clear from the wording and scheme of the withdrawal agreement – and in particular from the sixth paragraph of its preamble, from Article 2(b) to (d) thereof, Article 10(1)(a) to (d) thereof and, more generally, from all the second part thereof entitled ‘Citizens’ Rights’ – that that agreement treats United Kingdom nationals, including those who were Union citizens at the date of the United Kingdom’s withdrawal from the European Union, as persons who do not have, or who no longer have from that date, Union citizen status. Thus, that agreement does not provide for the status as Union citizens for United Kingdom nationals, and for all the rights attaching to that status, to be retained.
48 It should be pointed out that, indisputably, the loss or non-retention of Union citizen status is liable to have a considerable impact on the rights of a national of a Member State which withdraws from the European Union (see, to that effect, judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 64). Nationals of such a Member State who are expatriates in another Member State are all the more likely to be affected by the exit from the European Union of the Member State from which they originate, because of the links created sometimes over a long period, from both a personal and a professional and economic point of view (order of 16 June 2020, Walker and Others v Parliament and Council, T‑383/19, not published, EU:T:2020:269, paragraph 41).
49 However, as regards the condition of individual concern and in accordance with the case-law cited in paragraph 37 above, it is for the applicants to substantiate that the contested decision, in so far as it allegedly deprives them of their status as Union citizens and the rights attaching to that status, affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of addressees.
50 In that regard, in the first place, it is common ground that the withdrawal agreement, in particular in so far as it does not provide for the retention of Union citizen status for United Kingdom nationals, applies to all nationals of that State and is thus of general application.
51 It follows that the contested decision, which brings the withdrawal agreement into the EU legal order, is itself an act of general application and, as such, affects the applicants by reason of their objective status as United Kingdom nationals.
52 In the second place, the circumstances relied on by the applicants, referred to in paragraph 43 above, alleging that they belong to particular categories of United Kingdom nationals who have exercised their right to freedom of movement within the European Union and, in the case of some of them, were also deprived of their right to vote during the votes organised by that Member State, do not permit the inference that the applicants form part of a limited class of persons within the meaning of the case-law referred to in paragraph 41 above.
53 The contested decision, in so far as it allegedly deprives United Kingdom nationals of their status as Union citizens and of the rights attaching to that status, first, was not adopted on the basis of criteria specific to persons belonging to the particular categories of United Kingdom nationals relied on by the applicants and, secondly, does not deprive those persons of an acquired right which is specific to or exclusive to the members of those categories. On the contrary, it follows from that noted in paragraph 51 above that the alleged loss of the status of Union citizens and of the rights attaching to that status apply to an objectively determined group of persons, namely all nationals of the United Kingdom irrespective of their State of residence (see, by analogy, order of 16 June 2020, Walker and Others v Parliament and Council, T‑383/19, not published, EU:T:2020:269, paragraphs 52 and 53).
54 In those circumstances and in accordance with the case-law cited in paragraphs 38 and 39 above, the facts, first, that the number, or even the identity, of the persons forming part of the categories of nationals of the United Kingdom relied on by the applicants can be determined more or less precisely and, secondly, that those persons are more affected by the alleged loss of Union citizen status and of the rights attaching to that status than the other nationals of the United Kingdom are not, in themselves, such as to render those persons individually concerned by the contested decision (see, to that effect and by analogy, order of 16 June 2020, Walker and Others v Parliament and Council, T‑383/19, not published, EU:T:2020:269, paragraphs 43, 45 and 46).
55 In the third place, the various attributes relied on, in a personal capacity, by each of the applicants and listed in paragraph 44 above are, at most, capable of establishing the specific, different and possibly significant effects which the alleged loss of Union citizen status and of the rights attaching to that status may have for each of them. However, none of those attributes is capable of demonstrating that the loss of that status and of the rights attaching thereto has consequences for them that are so specific and so peculiar to them that they would distinguish them individually from all other persons, in the same way as addressees, as provided for in the case-law referred to in paragraph 37 above.
56 In the fourth place, the applicants have not adduced any evidence capable of establishing that they are individually concerned by aspects of the contested decision other than the alleged loss of Union citizen status and of the rights attaching to that status.
57 In those circumstances, it must be held that the applicants are not individually concerned by the contested decision. Accordingly, without it being necessary to examine whether the applicants are directly concerned by that decision, they do not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
The applicants’ standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU
58 It should be recalled that the conditions relating (i) to the regulatory nature of the contested act, (ii) to the applicants 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, order 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).
59 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.
60 It must be borne in mind that the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU is more restricted in scope than that of ‘acts’ used in the first and second limbs of the fourth paragraph of Article 263 TFEU. Accordingly, that concept cannot refer to all acts of general application but relates to a more restricted category of such acts (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 58).
61 Consequently, the concept of ‘regulatory act’ (i) refers to acts of general application and (ii) 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).
62 In the present case, in the first place, the parties rightly agree that the contested decision is a non-legislative act of general application.
63 First, it is common ground that the contested decision is a measure of general application (paragraph 51 above).
64 Secondly, 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 50(2) TEU. It must be stated that, although that provision states that the agreement setting out the arrangements for the withdrawal of a Member State is concluded on behalf of the European Union by the Council, acting by a qualified majority, after obtaining the consent of the Parliament, it makes no 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.
65 In the second place, the parties disagree as to the consequences to be drawn from the fact that the contested decision is a non-legislative act of general application. According to the applicants, that decision can only be a regulatory act. According to the Council, that decision is neither a legislative act nor a regulatory act.
66 In that regard, it must be observed that, in the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625), the Court of Justice did not hold that the concept of ‘regulatory acts’ covers all non-legislative acts of general application.
67 Admittedly, in a subsequent judgment, the Court of Justice ruled out the interpretation that there were non-legislative acts of general application that were not covered by the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU. Consequently, the Court of Justice held that that concept extended to all non-legislative acts of general application (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 24 and 28).
68 However, it should be noted that, in the case that gave rise to the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873), the act at issue was a Commission decision on State aid. Although it was of general application because it ruled on national schemes, that decision was of an administrative nature and was adopted by the Commission alone, without the intervention of the Council and the Parliament. In that context, the argument put forward by the Commission that that decision was a non-legislative act of general application and did not fall within the concept of ‘regulatory act’ had no basis in the wording, origin or purpose of the third limb of the fourth paragraph of Article 263 TFEU, as the Court of Justice observed in paragraphs 24 to 27 of that judgment.
69 By contrast, the Court of Justice has not yet had the opportunity to examine whether decisions approving the conclusion of an international agreement, and in particular decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State, must be classified as regulatory acts within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
70 In those circumstances, it is necessary to examine whether the concept of ‘regulatory act’ also covers such decisions.
71 In that regard, first, it should be noted that, like any international agreement concluded by the European Union, an agreement setting out the arrangements for the withdrawal of a Member State binds the EU institutions and takes precedence over the acts they lay down (see, by analogy, judgment of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44 and the case-law cited).
72 It follows from that primacy of international agreements concluded by the European Union over secondary legislation that the withdrawal agreement has, within the hierarchy of norms, a higher rank than other acts of general application, both legislative and regulatory.
73 It follows that the contested decision introduces into the EU legal order rules, contained in the withdrawal agreement, which prevail over legislative and regulatory acts and which cannot, therefore, themselves be of a regulatory nature.
74 Secondly, having regard to its adoption procedure and in the same way as other international agreements concluded by the European Union, the withdrawal agreement may be regarded as being the equivalent, externally, of that which is a legislative act internally (see, to that effect and by analogy, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 146).
75 The withdrawal agreement was concluded on behalf of the European Union by the Council, after obtaining the consent of the Parliament, in accordance with the procedure laid down in Article 50(2) TEU. In so far as it involves the Council and the Parliament, that procedure is similar to the ordinary and special legislative procedures defined in Article 289(1) and (2) TFEU and referred to in Article 21(2) and (3), Article 22(1) and (2), the second paragraph of Article 23, the first paragraph of Article 24, the second paragraph of Article 25 and Article 228(4) TFEU on the basis of which those two institutions may adopt provisions relating to rights attaching to Union citizen status.
76 It follows that the contested decision introduces into the EU legal order rules, contained in the withdrawal agreement, which are characterised by a particularly high democratic legitimation, like those contained in a legislative act. It is precisely the particularly high democratic legitimation of legislation adopted in accordance with a procedure providing for the participation of the Council and the Parliament which justifies the refusal to relax the conditions under which individuals may bring actions for annulment against legislative acts (see, to that effect, Opinion of Advocate General Kokott in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:21, point 38).
77 Moreover, in many language versions of the third limb of the fourth paragraph of Article 263 TFEU, the terms used for ‘regulatory act’ are less evocative of rule-making by the legislature than of rule-making by the executive (see, to that effect, Opinion of Advocate General Kokott in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:21, point 41). A decision approving the conclusion of an international agreement or an agreement laying down the arrangements for the withdrawal of a Member State, such as the contested decision, cannot be compared with an act of the executive.
78 Thirdly, it would be inconsistent and paradoxical to relax the conditions under which individuals may bring an action for annulment against the contested decision by classifying it as a regulatory act. Such a relaxation would have the consequence that individuals could more easily challenge a particular legal rule when it appears in an international agreement, such as the withdrawal agreement, and is then introduced into the EU legal order by means of a decision approving the conclusion of the agreement in question, such as the contested decision, than where the same legal rule appears in a legislative act having the same content and holding a lower rank in the hierarchy of norms.
79 Fourthly, it is apparent from the origin of the third limb of the fourth paragraph of Article 263 TFEU that the authors of the draft Treaty establishing a Constitution for Europe and then those of the Treaty of Lisbon did not intend to relax the conditions for admissibility of actions brought by individuals against decisions approving the conclusion of an international agreement, such as, in particular, decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State. In particular, the travaux préparatoires for the draft Treaty establishing a Constitution for Europe – and in particular Article III‑365(4) thereof, the content of which was reproduced in identical terms in the fourth paragraph of Article 263 TFEU – do not in any way indicate that those authors wished such decisions to be classified as ‘regulatory acts’ within the meaning of those two articles.
80 In those circumstances, 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, such as, in particular, decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State.
81 Therefore, the contested decision cannot be classified as a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
82 It follows from the foregoing that, without there being any need to examine whether the contested decision directly affects the applicants and whether it entails implementing measures, the applicants do not have standing to bring proceedings in the light of the third limb of the fourth paragraph of Article 263 TFEU.
83 It follows that the Council is justified in maintaining that the applicants do 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
84 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 the Commission and British in Europe.
Costs
85 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 applicants have been unsuccessful in their action, they must be ordered, in addition to bearing their 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.
86 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 for leave 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 applicants, the Council, the Commission and British in Europe are each to bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (Tenth Chamber, Extended Composition)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to adjudicate on the applications to intervene submitted by the European Commission and British in Europe.
3. Mr Harry Schindler and the other applicants whose names are set out in the annex shall, in addition to bearing their own costs, pay those incurred by the Council of the European Union, with the exception of those relating to the applications to intervene.
4. Mr Shindler and the other applicants whose names are set out in the annex, the Council, the Commission and British in Europe shall each bear their own costs relating to the applications to intervene.
Luxembourg, 8 June 2021.