Case T‑627/19
(publication by extracts)
Harry Shindler and Others
v
European Commission
Order of the General Court (Tenth Chamber), 14 July 2020
(Actions for failure to act and for annulment — Area of freedom, security and justice — Withdrawal of the United Kingdom from the European Union — Applications for the adoption of a decision maintaining the European citizenship of certain UK nationals and of a decision on various measures relating to the rights of UK nationals — Adoption of a position by the Commission — No invitation to act — Refusal to adopt a decision maintaining the European citizenship of certain UK nationals — No interest in bringing proceedings — Action manifestly inadmissible)
1. Action for failure to act — Failure to act — Definition — Measure not considered satisfactory — Precluded
(Art. 265 TFEU)
(see paragraph 28)
2. Action for failure to act — Natural or legal persons — Admissibility criteria — Invitation to act — No position adopted by the institution — Locus standi — Conditions cumulative in nature — Inadmissibility of the action where just one of those conditions not met
(Art. 265 TFEU)
(see paragraph 32)
3. Action for failure to act — Institution called upon to act — Absence — Inadmissibility
(Article 265, second para., TFEU)
(see paragraph 35)
4. Action for annulment — Natural or legal persons — Interest in bringing proceedings — Need for a vested and present interest — Action capable of securing a benefit for the applicant — Absence — Inadmissibility
(Article 263, fourth para., TFEU)
(see paragraph 47)
5. Action for annulment — Natural or legal persons — Interest in bringing proceedings — Annulment capable of giving rise only to a new decision identical on the substance — No interest
(Art. 263 TFEU)
(see paragraphs 48, 49)
Résumé
On 23 June 2016, the citizens of the United Kingdom of Great Britain and Northern Ireland voted in a referendum in favour of the withdrawal of their country from the European Union. On 29 March 2017, the United Kingdom notified the European Council of its intention to withdraw from the European Union pursuant to Article 50(2) TEU. Subsequently, the European Council, in agreement with the United Kingdom, adopted several decisions (1) extending the period, prescribed by Article 50(3) TEU, at the end of which the Treaties were due to cease to apply to the United Kingdom if no agreement setting out the arrangements for its withdrawal was concluded. Under Article 1 of Decision 2019/584, that period was due to expire, in principle, on 31 October 2019.
On 31 July 2019, several UK nationals residing in Italy or in France (‘the applicants’) sent a letter to the European Council and to the Council of the European Union. On 1 August 2019, they sent an essentially identical letter to the European Commission. In those letters, the applicants, inter alia, drew the attention of the three institutions referred to above to the situation of UK nationals residing in Member States other than the United Kingdom and having built a private and family life there, asking those institutions to ‘declare that they had failed to act’ as a result of their ‘unlawful failure to protect the European citizenship of [those nationals]’. Moreover, they requested that those three institutions take, before the planned withdrawal of the United Kingdom on 31 October 2019, a decision maintaining the European citizenship of those same nationals beyond the date of that withdrawal, irrespective of whether or not an agreement setting out the arrangements for that withdrawal was concluded. By letter signed on 11 September 2019, the Commission responded to the letter of 1 August 2019 (‘the letter of 11 September 2019’). In that letter, it declined the invitation to act contained in the letter of 1 August 2019, noting that the Treaties did not allow it to take a decision such as that requested by the applicants.
The applicants subsequently brought an action before the Court. That action contains, first, a claim for failure to act under Article 265 TFEU. Second, it contains a claim for annulment of the ‘… Commission’s express refusal of [11] September 2019 to acknowledge a failure to act’ that the applicants, when requested by the Court, defined as a claim for annulment under Article 263 TFEU.
By its order of 14 July 2020, the Court dismissed the action of the applicants, after finding that both the claim for failure to act and the claim for annulment were inadmissible.
Regarding the claim for annulment, the applicants had asked the Court to annul the decision contained in the letter of 11 September 2019, by which the Commission had, in essence, refused to adopt a decision maintaining, as from the withdrawal of the United Kingdom from the European Union and irrespective of whether or not an agreement setting out the arrangements of that withdrawal was concluded, the European citizenship of certain UK nationals who did not, at that time, have the nationality of an EU Member State. In support of that claim, the applicants had raised three pleas disputing the loss of EU citizenship by those nationals.
As a preliminary matter, the Court verified of its own motion that the applicants had an interest in raising those three pleas. In that regard, it recalled that it is settled case-law that, first, an applicant cannot have a legitimate interest in the annulment of a decision where it is already certain that that decision which concerns it cannot be other than reconfirmed in its regard and, second, a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction. Thus, an applicant cannot establish an interest in a claim for annulment of a decision refusing to act on a given matter on the basis of a given plea where the institution concerned does not, in any event, have any competence to act on that matter.
The Court next noted that, in the present case, were the decision contained in the letter of 11 September 2019 to be annulled on the basis of the pleas raised by the applicants, the applicants could obtain satisfaction only if the Commission itself subsequently adopted a binding act maintaining, as from the withdrawal of the United Kingdom from the European Union, the European citizenship of certain UK nationals.
In that regard, after having recalled that pursuant to Article 13(2) TEU, each institution is to act within the limits of the powers conferred on it in the Treaties, The Court found that no provision in the Treaties or in secondary legislation authorises the Commission to adopt binding acts the purpose of which is to confer European citizenship on certain categories of persons. That finding is supported by the fact that that institution has, in principle, only a power of proposal in accordance with Article 17(2) TEU.
Therefore, the Court held that, irrespective of whether or not the withdrawal of the United Kingdom from the European Union could result in the loss of European citizenship by all UK nationals not holding, at the time of that withdrawal, the nationality of a Member State, the Commission did not have, in this case, any competence to adopt a binding act maintaining, as from that withdrawal, the EU citizenship of certain categories of persons and was required to refuse to adopt the act requested by the applicants. It follows that, were the decision contained in the letter of 11 September 2019 to be annulled on the basis of the pleas raised by the applicants, the Commission would manifestly lack competence and would be able only to take a new decision refusing to adopt the act requested by the applicants. The Court then explained that such an annulment would thus not be capable of giving the applicants satisfaction, meaning that the latter have not demonstrated a legitimate interest in raising the pleas referred to above.
The Court concluded that those pleas had to be rejected as inadmissible and, as a result, that the claim for annulment, since it was not supported by any admissible plea, was itself manifestly inadmissible.