Provisional text
ORDER OF THE COURT (Sixth Chamber)
4 July 2024 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Law governing the institutions – Article 263 TFEU – Action for annulment – Full application of the provisions of the Schengen acquis in Romania – Absence of a challengeable act – Required unanimity not achieved – Manifest inadmissibility in part of the action at first instance – Request for a time limit capable of allowing the appeal to be ‘resumed’ – Manifest lack of jurisdiction in part of the General Court of the European Union – Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑787/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 December 2023,
Eugen Tomac, residing in Brussels (Belgium), represented by R. Duta, avocat,
appellant,
the other party to the proceedings being:
Council of the European Union,
defendant at first instance,
THE COURT (Sixth Chamber),
composed of T. von Danwitz, President of the Chamber, P.G. Xuereb (Rapporteur) and A. Kumin, Judges,
Advocate General: A.M. Collins,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 By his appeal, Mr Eugen Tomac seeks to have set aside the order of the General Court of the European Union of 26 October 2023, Tomac v Council (T‑48/23, ‘the order under appeal’, EU:T:2023:684), by which the General Court dismissed his action brought on the basis of Article 263 TFEU seeking, first, to have set aside the act of the Council of the European Union of 8 December 2022 leading to the failure to adopt Draft Council Decision No 15218/22 on the full application of the provisions of the Schengen acquis in Bulgaria and Romania (‘the act at issue’), and, second, if he is not recognised as being a ‘privileged applicant’, to be granted a time limit capable of allowing the action to be ‘resumed’, as appropriate, by the European Parliament, another institution of the European Union or national institution acting in that capacity.
Legal context
2 Under Article 4 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203; ‘the Act of Accession’), annexed to the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11), pursuant to Article 2(2) of that Treaty, which was signed on 25 April 2005 and entered into force on 1 January 2007:
‘1. The provisions of the Schengen acquis as integrated into the framework of the European Union …, and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of accession, shall be binding on and applicable in Bulgaria and Romania from the date of accession.
2. Those provisions of the Schengen acquis as integrated into the framework of the European Union … and the acts building upon it or otherwise related to it not referred to in paragraph 1, while binding on Bulgaria and Romania from the date of accession, shall only apply in each of those States pursuant to a Council decision to that effect after verification in accordance with the applicable Schengen evaluation procedures that the necessary conditions for the application of all parts of the acquis concerned have been met in that State.
The Council shall take its decision, after consulting the European Parliament, acting with the unanimity of its members representing the Governments of the Member States in respect of which the provisions referred to in this paragraph have already been put into effect and of the representative of the Government of the Member State in respect of which those provisions are to be put into effect. …’
Background to the dispute
3 The background to the dispute was set out by the General Court in paragraphs 2 to 20 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.
4 The appellant is a Member of the European Parliament of Romanian nationality.
5 Following its accession to the European Union on 1 January 2007, Romania undertook, between 2009 and 2011, a series of steps pursuant to the Schengen evaluation procedures, with the aim of meeting the criteria required for the full application of the provisions of the Schengen acquis.
6 The Presidency of the Council drew up two draft decisions on the full application of the provisions of the Schengen acquis in Romania, which were followed by the adoption of various resolutions of the Parliament expressing its support for Romania’s accession to the Schengen area and inviting the Council to take the necessary measures to that end. However, those two drafts did not result in a vote in the Council.
7 On 29 November 2022, on the basis of Article 4(2) of the Act of Accession, the Presidency of the Council drew up Draft No 15218/22 for a Council Decision on the full application of the provisions of the Schengen acquis in Bulgaria and Romania (‘Draft No 15218/22’).
8 At its meeting of 8 December 2022, the ‘Justice and Home Affairs’ (JHA) configuration of the Council sat in order to rule on Draft No 15218/22, included under point 3(a) of the meeting’s agenda, which provided that a vote could be requested with a view to possible adoption by the representatives of the governments of the Member States. In the absence of unanimity of the votes, the draft was not adopted.
9 By email of 15 December 2022, the appellant asked the Director-General for JHA of the General Secretariat of the Council whether it was possible for her to communicate to him the results of the vote on Draft No 15218/22, as well as the minutes of the meeting of 8 December 2022 or the report relating thereto.
10 By email of 16 December 2022, the Director-General for JHA of the General Secretariat of the Council replied to the appellant that, during that meeting, Draft No 15218/22 had not in fact been adopted and that, in accordance with Articles 8 and 9 of the Council’s Rules of Procedure, in so far as those were deliberations on a non-legislative act not open to the public, the results of the votes were not subject to any publicity. She added that the minutes of that meeting were also not made public.
The action before the General Court and the order under appeal
11 By application lodged at the Registry of the General Court on 6 February 2023, the appellant brought an action under Article 263 TFEU seeking to have the act at issue set aside and, if he is not recognised as being a ‘privileged applicant’, seeking to have the action ‘resumed’, as appropriate, on behalf of the Parliament, another EU institution or a national institution acting in that capacity.
12 On 26 October 2023, the General Court, pursuant to Article 126 of its Rules of Procedure, without taking further steps in the proceedings, dismissed that action, in part, as manifestly lacking in jurisdiction and, in part, as being manifestly inadmissible.
13 As regards the first head of claim, the General Court found, first, in paragraph 31 of the order under appeal, that, despite the Schengen evaluation procedures having been completed and various resolutions of the Parliament having been adopted, the required unanimity of the representatives of the governments of the Member States concerned in Article 4(2) of the Act of Accession had not been obtained in the Council during the vote on Draft No 15218/22 and, second, in paragraph 32 of that order, that Article 4 of that act did not set any time limit on the expiry of which the Council’s decision was to be taken, or was deemed to have been taken.
14 The General Court stated, in paragraph 33 of that order, that it would be in conflict with the wording of that article, which expressly provides for a procedure in several stages and without setting any time limit for that purpose, to make it a condition of the successful completion of the prior stages that the Council’s power to adopt, by unanimity of the representatives of the governments of the Member States concerned, a decision within the meaning of that article, should lapse.
15 Furthermore, in paragraph 34 of the order under appeal, the General Court added that it remained open to the Council to put Draft No 15218/22 back on the agenda of a further meeting or to the Presidency of the Council to draw up a new draft Council decision on the full application of the provisions of the Schengen acquis in Romania.
16 Accordingly, in paragraph 35 of that order, the General Court concluded that, since the required unanimity had not been obtained at the time of the vote on Draft No 15218/22, no Council decision had been taken, as provided for in Article 4(2) of the Act of Accession, and that the vote leading to that draft not being adopted did not, as such, amount to a refusal by the Council to take such a decision at a later stage.
17 Consequently, the General Court held, in paragraph 36 of that order, that the act at issue could not be regarded as a challengeable act, as provided for in Article 263 TFEU, and dismissed, in paragraph 38 of that order, the first head of claim as being manifestly inadmissible.
18 As regards the second head of claim, the General Court stated, in paragraph 39 of the order under appeal, that the status of ‘privileged applicant’ was recognised exhaustively in respect of the Member States, the Parliament, the Council or the European Commission, but that the appellant could not be granted that status.
19 In addition, the General Court held, in paragraph 40 of that order, that it had no jurisdiction to ‘grant a time limit’ to the Parliament, to another EU institution or to Romania for the purposes of bringing an action for annulment, stating that the time limits for actions were a matter of public policy and that, therefore, they were not at the discretion of either the parties or the Court.
20 Consequently, in paragraph 41 of that order, the General Court dismissed the appellant’s second head of claim as manifestly lacking jurisdiction.
Forms of order sought and procedure before the Court of Justice
21 By his appeal lodged on 18 December 2023, the appellant requests the Court of Justice to set aside the order under appeal and to refer the case back to the General Court in a different composition for it to rule on his application and, in the alternative, to vary that order.
The appeal
22 Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
23 It is appropriate to apply that provision in the present case.
24 In support of his appeal, the appellant raises two grounds of appeal, alleging, first, an infringement of Article 263 TFEU and, second, an infringement by the General Court of certain general principles of law, such as the principles of legal certainty, free movement of persons and goods, non-discrimination and equal treatment, ‘mutual assistance’, ‘fraternity’ and sincere cooperation between the Member States, as well as a manifest error of assessment.
The first ground of appeal
25 As regards the first ground of appeal, first of all, it should be noted that the appellant is simply alleging that the act at issue constitutes a challengeable act, as provided for in Article 263 TFEU, and that he must be regarded ‘by extension’ as being a ‘privileged applicant’, by essentially reproducing the arguments which he put forward before the General Court, but does not put forward any line of argument capable of demonstrating that the General Court erred in law in that regard.
26 It should be recalled that, according to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 54 and the case-law cited).
27 Next, as regards the appellant’s argument that the failure to recognise the act at issue as a challengeable act, under Article 263 TFEU, infringes Article 4(2) TEU, it must be observed that the appellant does not explain how that circumstance undermines the equality of Member States before the Treaties and their national identities.
28 Lastly, in so far as the General Court held, in error, that it is not for the Council to take a decision under Article 4(2) of the Act of Accession within a reasonable time on the basis of Article 3(2) and (3) TEU and Article 4(2) TEU, it must be stated that those provisions do not lay down any such obligation vis-à-vis the Council and that, in addition, the General Court did not err in law, in paragraph 32 of the order under appeal, in finding that Article 4 of the Act of Accession did not set a time limit on the expiry of which the Council decision, referred to in paragraph 2 of that article, was to be taken, or was deemed to have been taken.
29 As such, the first ground of appeal must be rejected.
The second ground of appeal
30 As regards the second ground of appeal, the appellant maintains, in the first place, that the failure to adopt a decision, under Article 4(2) of the Act of Accession, infringes certain general principles of law, such as those set out in paragraph 24 of the present order.
31 It must be stated, first, that the appellant has not identified the contested points in the grounds of the order under appeal as regards the principles referred to in paragraph 24 of the present order and, second, that he has not put forward any argument capable of calling into question the General Court’s finding, in paragraph 35 of the order under appeal, that, since the required unanimity was not obtained at the time of the vote on Draft No 15218/22, no Council decision had been taken as provided for in Article 4(2) of the Act of Accession. Consequently, in so far as the appellant alleges an infringement of those principles, the second ground of appeal is inadmissible in accordance with the case-law referred to in paragraph 26 of the present order.
32 In the second place, as regards allegedly discriminatory treatment of Romania as compared with the Republic of Croatia, it should be noted that the appellant has not explained how such a difference in treatment, even if it were established, would have affected the adoption of a decision within the meaning of Article 4(2) of the Act of Accession.
33 Consequently, the second ground of appeal must also be rejected.
34 It follows from all the foregoing considerations that the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
35 Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules of procedure, a decision as to costs is to be given in the order which closes the proceedings.
36 In the present case, since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before the latter could have incurred costs, it is appropriate to decide that the appellant is to bear his own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
2. Mr Eugen Tomac shall bear his own costs.
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