ORDER OF THE GENERAL COURT (Tenth Chamber)
14 December 2021 (*)
(Action for annulment – Action for failure to act – Draft Commission regulation making the exportation of certain products outside the European Union subject to the production of an export authorisation – Commission proposal to make the exportation of COVID-19 vaccines to Northern Ireland subject to the production of an export authorisation pursuant to Article 16 of the Protocol on Ireland/Northern Ireland to 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 – Absence of a published policy of the circumstances in which the European Union will trigger Article 16 of that protocol – Manifest inadmissibility in part – Action in part manifestly lacking any foundation in law)
In Cases T‑161/21 and T‑161/21 AJ I,
Raymond Irvine McCord, residing in Belfast (Ireland), represented by C. O’Hare, Solicitor,
applicant,
v
European Commission, represented by H. Krämer and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION, first, under Article 263 TFEU for annulment of the draft Commission regulation of 29 January 2021 intended, inter alia, to make the exportation of COVID-19 vaccines to Northern Ireland subject to the production of an export authorisation pursuant to Article 16 of the Protocol on Ireland/Northern Ireland to 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 of the Commission’s decision not to have published a policy on the circumstances in which it will trigger Article 16 of that protocol and, secondly, application under Article 265 TFEU for a declaration that the Commission unlawfully failed to adopt and publish such a policy,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov (Rapporteur), President, K. Kowalik-Bańczyk and G. Hesse, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 29 January 2021, the European Commission made public a draft regulation making the exportation of certain products outside the European Union subject to the production of an export authorisation (‘the draft regulation at issue’). The draft regulation at issue contained a provision which made the exportation of COVID-19 vaccines to Northern Ireland subject to the production of an export authorisation, pursuant to Article 16 of the Protocol on Ireland/Northern Ireland to 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 Protocol on Ireland/Northern Ireland’).
2 On the same day, the Commission adopted Implementing Regulation (EU) 2021/111 making the exportation of certain products subject to the production of an export authorisation (OJ 2021 L 31I, p. 1), which contained neither the provision described in paragraph 1 above nor any other reference to the Protocol on Ireland/Northern Ireland. That implementing regulation was published in the Official Journal of the European Union on 30 January 2021.
3 On 8 February 2021, the applicant, Mr Raymond Irvine McCord, informed the Commission of his concerns as to the possible triggering by the Commission of Article 16 of the Protocol on Ireland/Northern Ireland, which allows the European Union to derogate, in certain circumstances, from the application of certain parts 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. He also asked the Commission, on the one hand, to ‘accept publicly that [its] decision to trigger [Article] 16 was unlawful’ and, on the other, ‘to have and publish a policy on the triggering of [Article] 16’.
4 On 26 February 2021, the Commission replied to the applicant that the draft regulation at issue was merely a draft and that the provision complained of no longer appeared in the final version of Implementing Regulation 2021/111.
5 On 8 March 2021, the applicant sent a letter to the Commission in which, in essence, he reiterated his initial position. He also stated that if the Commission did not respond to his request made in the letter of 8 February 2021, he would bring an action before the Court under Articles 263 and 265 TFEU.
Procedure and forms of order sought
6 By application lodged at the Court Registry on 25 March 2021, the applicant claims that the Court should:
– annul, in essence, the draft regulation at issue in so far as it contained a provision intended to trigger Article 16 of the Protocol on Ireland/Northern Ireland;
– annul the ‘Commission’s decision not to have published a policy on the circumstances in which it will trigger Article 16 of that protocol’;
– declare that the Commission has unlawfully failed to publish a policy on the circumstances in which it will trigger Article 16 of that protocol;
– in the alternative, order the Commission to adopt and publish such a policy; and
– order the Commission to pay the costs.
7 By separate document lodged at the Court Registry on the same day, the applicant requested that the present action be dealt with under an expedited procedure in accordance with Article 152 of the Rules of Procedure of the General Court.
8 On 25 May 2021, the Commission lodged its observations on the application for an expedited procedure.
9 By application lodged at the Court Registry on 28 May 2021, the applicant applied for legal aid pursuant to Article 146 of the Rules of Procedure.
10 By decision of 18 June 2021, the General Court (Tenth Chamber) dismissed the application for an expedited procedure.
11 By separate document lodged at the Court Registry on 21 June 2021, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure.
12 On 27 August 2021, the applicant submitted his observations on the objection of inadmissibility.
13 By document lodged at the Court Registry on 22 September 2021, the applicant offered further evidence pursuant to Article 85(3) of the Rules of Procedure. The Commission lodged its observations in that regard at the Court Registry on 27 October 2021.
14 In its objection of inadmissibility, the Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
15 In his observations on the objection of inadmissibility, the applicant claims that the Court should declare the action admissible.
Law
16 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. Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
17 In the present case, since the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
18 The Commission contends that each of the heads of claim referred to in paragraph 6 above is inadmissible.
The first head of claim
19 The Commission contends that the first head of claim is inadmissible on the ground, inter alia, that it is directed against a preparatory act which does not have legal effects that are binding on, and capable of affecting the legitimate interests of, the applicant.
20 In response, the applicant claims that even an act which is no longer in force can be challenged before the Court in order to ensure that the alleged illegality is not repeated. The applicant also argues that the draft regulation at issue was an act producing binding legal effects, since the Protocol on Ireland/Northern Ireland does not provide for a specific procedure for the application of the derogation provided for in Article 16 thereof and that draft regulation reflects the Commission’s definitive position at that time. Furthermore, according to the case-law, even a non-binding act may constitute an act open to challenge.
21 It follows from settled case-law that an action for annulment under Article 263 TFEU must be available in the case of all measures adopted by the institutions, bodies, offices or agencies of the European Union, whatever their nature or form, which are intended to have legal effects that are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his or her legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51).
22 Furthermore, in the case of acts or decisions adopted by a procedure involving several stages, in principle an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10; of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and order of 15 May 1997, Berthu v Commission, T‑175/96, EU:T:1997:72, paragraph 19).
23 It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings, first, were themselves the culmination of a special procedure distinct from the main procedure and, second, themselves produce binding legal effects (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11).
24 In the present case, the applicant seeks annulment of the draft regulation at issue, in so far as it contained a provision intended to trigger Article 16 of the Protocol on Ireland/Northern Ireland.
25 However, the draft regulation at issue was a provisional and preparatory measure intended to pave the way for the adoption of Implementing Regulation 2021/111. That draft regulation did not therefore definitively lay down the Commission’s position and had no legal effects that were binding on, or capable of affecting the legitimate interests of, the applicant. In particular, the provision in that draft regulation complained of by the applicant never entered into force.
26 Furthermore, Implementing Regulation 2021/111, as finally adopted, no longer contained any provision intended to trigger Article 16 of the Protocol on Ireland/Northern Ireland.
27 Consequently, in accordance with the case-law referred to in paragraphs 21 to 23 above, the draft regulation at issue is not an act against which an action for annulment may be brought under Article 263 TFEU.
28 The applicant’s objections do not call that finding into question.
29 First, although the applicant is correct in observing that an act which is no longer in force may nevertheless, in certain circumstances, be regarded as an act open to challenge, the fact remains that the act the annulment of which is sought in the present case is not an act which is no longer in force but which has produced binding legal effects in the past. The act challenged in the present case is merely a draft regulation which never entered into force and therefore never produced binding legal effects. Nor is it, moreover, capable of producing such effects in the future.
30 Secondly, the applicant’s argument that an applicant may have a legal interest in bringing proceedings in order to ensure that the alleged illegality is not repeated in the future is also irrelevant. Nonetheless, the fact that an applicant may have a legal interest in bringing proceedings has no bearing on whether the act the annulment of which is sought constitutes an act open to challenge for the purposes of Article 263 TFEU.
31 Thirdly, the applicant cannot rely on the case-law according to which an oral statement may also constitute an act open to challenge in certain circumstances (judgment of 24 March 1994, Air France v Commission, T‑3/93, EU:T:1994:36), or concerning the fact that certain Council conclusions may be challenged (judgment of 13 July 2004, Commission v Council, C‑27/04, EU:C:2004:436), either, since the EU judicature found in those judgments that the acts challenged had produced legal effects, which is not the case here.
32 Accordingly, the first head of claim in the action must be dismissed as manifestly inadmissible.
The second head of claim
33 According to the Commission, the second head of claim, by which the applicant seeks annulment of the ‘Commission’s decision not to have published a policy on the circumstances in which it will trigger Article 16’ of the Protocol on Ireland/Northern Ireland, is inadmissible on the ground that it is directed against a non-existent act.
34 In its observations on the objection of inadmissibility, the applicant states that his claim relating to the Commission’s alleged failure to adopt or publish such a policy is ‘primarily brought under [Article] 265 TFEU, not [Article] 263 TFEU’.
35 In those circumstances, given that the applicant does not identify any ‘decision’ of the Commission not to adopt or publish such a policy, and that the alleged failure to act described in paragraph 33 above is the subject of the third head of claim based on Article 265 TFEU, with which it overlaps, the second head of claim must be reclassified as seeking a declaration, on the basis of Article 265 TFEU, that the Commission unlawfully failed to publish a policy on the circumstances in which it will trigger Article 16 of the Protocol on Ireland/Northern Ireland. That head of claim, thus reclassified, therefore coincides with the third head of claim, examined below.
The third head of claim
36 The Commission contends that the third head of claim is inadmissible on the ground, inter alia, that an action for failure to act based on a failure to exercise a discretionary power must be dismissed. That is so in the present case, since the development and publication of a policy relating to the circumstances in which the European Union will trigger the application of Article 16 of the Protocol on Ireland/Northern Ireland fall within such a discretionary power.
37 The applicant replies that, while it is true that the Commission has a discretionary power in that regard, the principles of the rule of law, transparency, integrity and accountability require the Commission to adopt a decision enabling the persons concerned to anticipate the steps taken by that institution.
38 It should be recalled that, according to the case-law, an action for failure to act under Article 265 TFEU cannot be founded unless the institution has an obligation to act, so that the alleged failure to act is contrary to the Treaty (orders of 6 July 1998, Goldstein v Commission, T‑286/97, EU:T:1998:150, paragraph 24, and of 19 September 2016, Gaki v Parliament, T‑112/16, not published, EU:T:2016:548, paragraph 16).
39 In such an action, the question whether the institution concerned is under an obligation to act is not a condition for the admissibility of that action, but a question which must be examined on the merits (judgments of 29 September 2011, Ryanair v Commission, T‑442/07, not published, EU:T:2011:547, paragraph 27, and of 21 March 2014, Yusef v Commission, T‑306/10, EU:T:2014:141, paragraph 76). Thus, in order to rule on the merits of such an action, it is necessary to determine whether, at the time when that institution was called upon to act within the meaning of Article 265 TFEU, it was under an obligation to act (see judgment of 19 May 2011, Ryanair v Commission, T‑423/07, EU:T:2011:226, paragraph 25 and the case-law cited).
40 In that regard, and without it being necessary to rule on the admissibility of the third head of claim, it must be stated, as the Commission stated, that no provision of the Protocol on Ireland/Northern Ireland, nor any other provision of EU law, imposes on it an obligation to adopt and publish a policy on the circumstances in which Article 16 of that protocol will be triggered.
41 Nor can such an obligation be inferred solely on the basis of the principles relied on by the applicant, failing any specific provision to that effect.
42 In those circumstances, it must be concluded that the adoption and publication of such a policy fall, at most, within the discretionary power of the European Union.
43 The fact that the United Kingdom Government stated, in a document offered by the applicant as further evidence, that the Protocol on Ireland/Northern Ireland should, according to that government, be amended is irrelevant to the question whether the Commission is under an obligation to adopt and publish a policy on the circumstances in which Article 16 of that protocol will be triggered.
44 Accordingly, it must be held that, at the time when the Commission was called upon to act within the meaning of Article 265 TFEU, it was under no obligation to act in the manner advocated by the applicant. Accordingly, the third head of claim in the action must be dismissed as manifestly unfounded.
The fourth head of claim
45 The Commission contends that the fourth head of claim is inadmissible because it contains a request that the Court issue directions to the Commission.
46 The applicant does not dispute that plea of inadmissibility, which must be upheld on the ground that, according to settled case-law, it is not for the EU judicature to issue directions to the institutions, bodies, offices or agencies of the European Union (order of 28 May 2020, Anthrakefs v Commission and IK, T‑39/20, not published, EU:T:2020:242, paragraph 12; see also, to that effect, order of 14 February 2019, Brunke v Commission, T‑258/18, not published, EU:T:2019:108, paragraph 14 and the case-law cited).
47 It follows from the foregoing that the action must be dismissed in its entirety as in part manifestly inadmissible and in part manifestly lacking any foundation in law.
The application for legal aid
48 Under Article 146(2) of the Rules of Procedure, legal aid is to be refused if, inter alia, the action in respect of which the application for legal aid is made appears to be manifestly inadmissible or manifestly lacking any foundation in law.
49 Since that is the case here, the application for legal aid must be dismissed, in accordance with Article 146(2) of the Rules of Procedure.
Costs
50 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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible and manifestly lacking any foundation in law.
2. The application for legal aid is dismissed.
3. Mr Raymond Irvine McCord shall pay the costs.
Luxembourg, 14 December 2021.