ORDER OF THE GENERAL COURT (Second Chamber)
6 October 2020 (*)
(Action for annulment – Withdrawal of the United Kingdom from the European Union – Letter from the President of the Court of Justice inviting the Member States to provide for the appointment of an Advocate General – Act not open to challenge – Inadmissibility)
In Case T‑184/20,
Eleanor Sharpston, residing in Schoenfels (Luxembourg), represented by N. Forwood, Barrister,
applicant,
v
Court of Justice of the European Union, represented by J. Inghelram and Á. Almendros Manzano, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of the decision contained in the letter of the President of the Court of Justice of 31 January 2020 addressed to the President of the Council of the European Union inviting the Member States to provide for the appointment of an Advocate General to the post currently held by the applicant,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, F. Schalin and I. Nõmm, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In 2005, on the nomination of the Government of the United Kingdom of Great Britain and Northern Ireland, the representatives of the governments of the Member States appointed the applicant, Ms Eleanor Sharpston, to the Court of Justice to serve as an Advocate General for the remainder of the mandate of her predecessor, that is, until 6 October 2009. In 2009, following a new proposal from the same government, the applicant was appointed as Advocate General at the Court of Justice for a new six-year mandate for the period from 7 October 2009 to 6 October 2015. Finally, upon re-nomination by the same government, Decision (EU, Euratom) 2015/578 of the Representatives of the Governments of the Member States of 1 April 2015 appointing Judges and Advocates-General to the Court of Justice (OJ 2015 L 96, p. 11) appointed the applicant to serve as Advocate General for the period from 7 October 2015 to 6 October 2021.
2 On 29 January 2020, the representatives of the governments of the Member States adopted the Declaration by the Conference of the Representatives of the Governments of the Member States on the consequences of the withdrawal of the United Kingdom from the European Union for the Advocates General of the Court of Justice of the European Union (‘the declaration of 29 January 2020’).
3 In the declaration of 29 January 2020, it was noted that since the United Kingdom of Great Britain and Northern Ireland had initiated the procedure laid down in Article 50 TEU for withdrawal from the European Union the Treaties would cease to apply to that Member State from the date of entry into force of the Withdrawal Agreement. In addition, it was noted that the mandates of members of the institutions, bodies, offices and agencies of the European Union nominated, appointed or elected in relation to the membership of the European Union of the United Kingdom of Great Britain and Northern Ireland would end on the date of the withdrawal. Thus, the permanent post of Advocate General assigned to the United Kingdom of Great Britain and Northern Ireland by virtue of the Declaration on Article 252 of the Treaty on the Functioning of the European Union regarding the number of Advocates General in the Court of Justice, would be included in the rotation system among the Member States for the appointment of Advocates General, involving six Advocates General, the next eligible Member State being the Hellenic Republic.
4 On 31 January 2020, the President of the Court of Justice sent a letter addressed to the President of the Council of the European Union inviting the Member States to provide for the appointment of an Advocate General to the post currently held by the applicant (‘the contested letter’).
5 The contested letter, adopted following the declaration of 29 January 2020, is worded as follows:
‘… As is apparent from the [declaration of 29 January 2020] on the consequences of the withdrawal of the United Kingdom from the [European] Union for the Advocates General of the Court of Justice …, an Advocate General’s post will be vacant at the Court of Justice from 1 February 2020.
The Governments of the Member States are therefore [invited] to provide for the appointment of an Advocate General to that post, in accordance with the provisions of Article 253 [TFEU].
Pursuant to Articles 5 and 8 of the Statute of the Court of Justice of the European Union, the Advocate General who is currently occupying that post will continue to hold office until her successor takes up his or her duties …’
Procedure and forms of order sought
6 The applicant brought the present action by application lodged at the Registry of the General Court on 9 April 2020.
7 By separate document, lodged at the Registry of the General Court on 9 April 2020, the applicant requested, under Article 66 of the Rules of Procedure of the General Court, anonymity and that certain information not be made public. The Court granted that request by decision of 22 April 2020.
8 By separate document lodged at the Registry of the General Court on 12 May 2020, the applicant requested that the case be dealt with under the expedited procedure, in accordance with Article 151 of the Rules of Procedure. That request was refused by decision of the Court of 19 May 2020.
9 By separate document, lodged at the Registry of the General Court on 12 May 2020, the applicant requested that anonymity be lifted. The Court granted that request by decision of 29 May 2020.
10 By separate document lodged at the Registry of the General Court on 8 June 2020 the Court of Justice of the European Union raised a plea of inadmissibility under Article 130 of the Rules of Procedure. The applicant lodged her observations on that plea on 26 August 2020.
11 The applicant claims that the General Court should:
– annul the contested letter;
– order the Court of Justice of the European Union to pay the costs.
12 In its plea of inadmissibility, the Court of Justice of the European Union contends that the General Court should:
– dismiss the action as manifestly inadmissible;
– order the applicant to pay the costs.
Law
13 Under Article 130(1) and (7) of the Rules of Procedure, the General Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case.
14 In the present case, the Court of Justice of the European Union having applied for a decision on inadmissibility, the General Court, finding that it has sufficient information from the documents in the case file, has decided to give a decision without taking further steps in the proceedings.
15 In support of her action seeking annulment of the contested letter, the applicant alleges infringement of essential procedural requirements, infringement of the Treaties and the rules of law relating to their application, and misuse of powers.
16 The applicant claims, in essence, that the contested letter is unlawful, in so far as it stated that her post had become vacant and initiated the procedure for the appointment of an Advocate General to that post in breach of the Treaties and the Statute of the Court of Justice of the European Union.
17 The Court of Justice of the European Union raises a plea of inadmissibility of the action.
18 In the first place, the Court of Justice of the European Union maintains that the contested letter does not bring about a distinct change in the applicant’s legal position, to the extent that it merely takes note of a vacancy, which is not the same thing as creating such a vacancy.
19 In the second place, the Court of Justice of the European Union submits that, as the applicant herself acknowledges, the contested letter is part of a chain of measures leading to the decision appointing a successor to the post of Advocate General she occupied and initiating the procedure for his appointment. The contested letter thus constitutes a preparatory act which does not produce autonomous legal effects beyond those produced by the act in respect of which it is preparatory and cannot therefore be the subject of an action for annulment under Article 263 TFEU.
20 In the third place, the Court of Justice of the European Union contends that, since the action, even though it is formally directed against the contested letter, in reality challenges the legality of the declaration of 29 January 2020, the General Court therefore manifestly lacks jurisdiction to hear an action, under Article 263, brought against an act of the Member States.
21 In her observations on the plea of inadmissibility, at the outset, the applicant claims that the line of argument of the Court of Justice of the European Union challenging the admissibility of the action is circular, in so far as it is not possible to decide whether the declaration of 29 January 2020 and the contested letter affected her position, without first deciding whether the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, pursuant to Article 50(3) TEU, led to the ‘automatic’ termination of her mandate. In addition, she maintains that, if, by virtue of the combined effect of the declaration of 29 January 2020, the contested letter and the potential appointment of a successor to her post, she is forced to leave her post before the expiry of her six-year mandate, with the result that she is prevented from exercising the functions required of her, a rule-of-law issue is raised, which should be capable of being subject to review by the EU Courts.
22 More specifically, the applicant submits, in essence, that the contested letter produces binding legal effects, in that it sets out the definitive position of the institution on the expiry of her mandate. In the present case, the Court of Justice of the European Union could not have merely taken note of a vacancy, because the existence of such a vacancy had not yet been legally established. It is not a confirmatory act but rather an interpretative act. She concludes that the contested letter adversely affects her professional future and necessarily concerns her directly and individually, irrespective of the act nominating her successor to the post of Advocate General.
23 With regard to the objection to admissibility alleging that the contested letter was preparatory by nature, the applicant submits, at the outset, that it is not possible to maintain that an act confirms an existing act and, at the same time, is preparatory in respect of another act.
24 In any event, the applicant submits that the contested letter cannot be considered a preliminary step in the procedure leading to the finding that an Advocate General’s post is vacant, in so far as it is precisely that letter that declared the definitive position of the institution as regards the existence of such a vacancy. Nor can the contested letter be considered a preparatory act in the procedure leading to the nomination of a successor to her post, in so far as such a nomination does not fall within the competence of the Court of Justice of the European Union, but of the Member States.
25 As regards the arguments concerning the lack of jurisdiction on the part of the General Court to review the legality of the declaration of 29 January 2020, the applicant maintains that it follows from well-established case-law that the EU Courts have jurisdiction to review the validity of all acts adopted pursuant to the powers created by the Treaties that have binding legal effects for third parties, irrespective of their author. In a complete system of legal remedies, she should be entitled to review by an independent and impartial tribunal established by law of the acts that decided that her mandate as Advocate General had expired on account of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, that her post had become vacant, and that a successor would be appointed to that post. In any event, the arguments relating to the admissibility of an action against the declaration of 29 January 2020 are irrelevant in the context of the present action which concerns only the annulment of the contested letter.
26 An action for annulment is available in the case of all measures adopted by the institutions which intend to produce binding legal effects that are capable of affecting the interests of an applicant by bringing about a distinct change in his or her legal position. In that regard, it is necessary to recall the case-law according to which in order to determine whether an act may be the subject of a challenge in an action under Article 263 TFEU, it is the substance of the act in question and the intention of its author which should be taken into account. According to settled case-law, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an application for annulment (see judgment of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 46 and the case-law cited).
27 The contested letter, the wording of which is set out in paragraph 5 above, had the clear intention of inviting the Member States to appoint a person to the post of Advocate General that would soon be vacant.
28 It follows from the paragraph of the contested letter invoking the declaration of 29 January 2020, that such a reference is not in any way declaratory but constitutes solely an introduction relating to the context in which the letter is sent.
29 Thus, in the contested letter, the President of the Court of Justice refers to the declaration of 29 January 2020, by indicating that it is apparent from it that an Advocate General’s post will soon be vacant. That paragraph cannot be regarded as producing legal effects itself with regard to the applicant. As the Court of Justice of the European Union correctly submits, the fact of referring to a vacancy cannot create that vacancy. The President of the Court of Justice does not have such a power and it does not follow from that paragraph that he claims to be the source of that vacancy. In so far as the role of the President of the Court of Justice is merely to take note of the existence of a vacancy, that does not equate to declaring that the vacancy in question exists (see, to that effect and by analogy, judgment of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 50).
30 Nor can the paragraph containing the invitation made to the governments of the Member States to provide for the appointment of an Advocate General, on account of the very nature of that invitation, be regarded as producing binding legal effects, in respect of the applicant.
31 Finally, the paragraph of the contested letter that refers to what is provided in Articles 5 and 8 of the Statute of the Court of Justice of the European Union in order to ensure the continuity of work at the Court of Justice until successors to members whose mandates come to an end take up their duties, is by nature purely informative for the Member States in that it paraphrases provisions of the Statute of the Court of Justice of the European Union and therefore merely draws attention to those relevant provisions. It cannot accordingly confer a binding nature on the contested letter (see, to that effect and by analogy, judgment of 15 September 2016, La Ferla v Commission and ECHA, T‑392/13, EU:T:2016:478, paragraph 58).
32 As regards the context in which the contested letter was drawn up, as the applicant herself acknowledges, that type of letter is regularly sent by the President of the Court of Justice on expiry of members’ mandates. The mere fact that that letter concerns only one specific vacancy and not several in the context of the expiry of several mandates of members of the Court of Justice cannot alter the nature of the letter which consists, in essence, of an invitation to the Member States for their governments to provide for the appointment of an Advocate General.
33 It follows from the foregoing that the contested letter cannot be regarded as producing binding legal affects and is therefore not capable of affecting the interests of the applicant by bringing about a distinct change in her legal position. The contested letter cannot therefore be the subject of an action for annulment under Article 263 TFEU.
34 Accordingly, the present action must be dismissed as inadmissible, without it being necessary to rule on the other objections to admissibility raised by the Court of Justice of the European Union.
Costs
35 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, she must be ordered to pay, in addition to her own costs, those incurred by the Court of Justice of the European Union, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed.
2. Ms Eleanor Sharpston shall bear her own costs and pay those incurred by the Court of Justice of the European Union.
Luxembourg, 6 October 2020.