ORDER OF THE GENERAL COURT (Second Chamber)
6 October 2020 (*)
(Action for annulment – Withdrawal of the United Kingdom from the European Union – 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 – Act not open to challenge – Inadmissibility)
In Case T‑180/20,
Eleanor Sharpston, residing in Schoenfels (Luxembourg), represented by N. Forwood and J. Robb, Barristers, and H. Mercer QC,
applicant,
v
Council of the European Union,
and
Conference of the Representatives of the Governments of the Member States
represented by M. Bauer, R. Meyer and A. Sikora-Kalėda, acting as Agents
defendants,
APPLICATION under Article 263 TFUE seeking partial annulment of 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, of 29 January 2020,
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 Under Article 19(2) TEU, the Court of Justice is to consist of one judge from each Member State and is to be assisted by Advocates General.
2 Article 252 TFEU provides that the Court of Justice is to be assisted by eight Advocates General and that, should the Court so request, the Council of the European Union, acting unanimously, may increase the number of Advocates General.
3 Under 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, the Representatives of the Governments of the Member States declared that if, in accordance with Article 252, first paragraph, of the [TFEU], the Court of Justice were to request that the number of Advocates General be increased by three (eleven instead of eight), the Republic of Poland would, as is already the case for the Federal Republic of Germany, the French Republic, the Italian Republic, the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland, have a permanent Advocate General and no longer take part in the rotation system, which would involve five Advocates General.
4 By Council Decision 2013/336/EU of 25 June 2013 increasing the number of Advocates General of the Court of Justice of the European Union (OJ 2013 L 179, p. 92), following the request made by the Court of Justice, the number of Advocates General was increased from eight to eleven.
5 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, by virtue of 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), she was appointed to serve as Advocate General for the period from 7 October 2015 to 6 October 2021.
6 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 contested declaration’).
7 In the contested declaration, 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.
Procedure and forms of order sought
8 By application lodged at the Registry of the General Court on 7 April 2020, the applicant brought the present action.
9 By separate document, lodged at the Registry of the General Court on the same day, the applicant requested, under Article 66 of the Rules of Procedure of the General Court, anonymity and that certain information not be made public. By decision of 21 April 2020, the Court granted that request.
10 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 152 of the Rules of Procedure. That request was refused by decision of the Court of 19 May 2020.
11 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.
12 By separate documents, lodged at the Registry of the General Court on 3 August 2020, the Council and the Conference of the Representatives of the Governments of the Member States, represented by the Council, raised a plea of inadmissibility under Article 130 of the Rules of Procedure. The applicant lodged her observations on that plea on 16 September 2020.
13 The applicant claims that the General Court should:
– annul the contested declaration in part;
– order the Council and the Conference of the Representatives of the Governments of the Member States to pay the costs.
14 In their plea of inadmissibility, the Council and the Conference of the Representatives of the Governments of the Member States contend that the General Court should:
– disregard paragraphs 39 to 45 of the application, which reveal information obtained in breach of the obligation of professional secrecy;
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
15 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.
16 In the present case, since the Council and the Conference of the Representatives of the Governments of the Member States have applied for a decision on inadmissibility, the 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.
17 The applicant seeks annulment of the contested declaration in so far as it seeks to declare that her mandate as Advocate General ended on 1 February 2020, by virtue of Article 50(3) TEU, and seeks to form a valid legal basis to declare a post of Advocate General at the Court of Justice to be vacant as from that date, for the purposes of the future appointment of a candidate proposed by the Hellenic Republic to replace the applicant before the normal expiry date of her mandate, on 6 October 2021.
18 In support of the action, the applicant relies on four pleas in law alleging, respectively, (i) that the Conference of the Representatives of the Governments of the Member States lacked competence to adopt the contested declaration, (ii) infringement of essential procedural requirements, (iii) infringement of the Treaties and rules of law relating to their application and (iv) misuse of powers.
19 The Council and the Conference of the Representatives of the Governments of the Member States raise a plea of inadmissibility of the action.
20 In the first place, the Council submits that it is not the author of the contested declaration.
21 In the second place, the Council and the Conference of the Representatives of the Governments of the Member States maintain that the General Court does not have jurisdiction to hear an action against the contested declaration, since it was not adopted by an EU body, but by representatives of the Governments of the Member States, acting not in the capacity of members of the Council or members of the European Council, but in their capacity as representatives of the governments of the Member States of the European Union, whose acts are not subject to judicial review by the EU Courts.
22 In the third place, the Council and the Conference of the Representatives of the Governments of the Member States claim that the contested declaration is not an act capable of forming the subject matter of an action for annulment, under Article 263 TFEU, in so far as, as a purely political declaration, it constitutes an act of collective interpretation which is neither capable of producing nor intended to produce any legal effects in the EU legal order.
23 The applicant claims, in essence, that since the contested declaration produces legal effects on the EU legal order, it must be capable of being the subject of review by the EU Courts and that the present action must therefore be admissible against the Council or the Conference of the Representatives of the Governments of the Member States.
24 In that regard, the applicant submits that, given its essence, the contested declaration had the effect of establishing the date of the end of her mandate, with the result that it should be attributed to the Council. At the very least, and for the same reasons, the Council must be capable of being held liable in court for such an act.
25 Alternatively, the applicant submits that the Conference of Representatives of the Governments of the Member States should be capable of being a defendant in the present action. Such a decision concerning the appointment of Members of the Court of Justice, being intrinsically linked to the provisions of the Treaties and thus having very significant effects on the legal order of the European Union, should be reviewed by the EU Courts. Accordingly, irrespective of the question whether that conference is an EU body, it follows from the general requirement, established in the case-law of the Court of Justice, to the effect that the interpretation of admissibility and jurisdiction of the EU Courts should respect the complete system of legal remedies and procedures established by the Treaties, that the present action is admissible against that Conference. To declare that the General Court does not have jurisdiction to hear and determine the present action would lead to a result contrary both to the spirit of the Treaty, as expressed in the second sentence of Article 19(1) TEU, and to its system.
26 As regards whether the contested declaration may be challenged, the applicant claims, in essence, that it is inferred from both its content and the context and circumstances of its adoption, that that declaration had the effect of stating that her mandate would terminate on 31 January 2020 and that her position as Advocate General at the Court of Justice, vacant as from that date, should be filled through the appointment of a replacement. Irrespective of its form, the substance of the contested declaration accordingly produces binding legal effects affecting her interests and, thus, that declaration must be capable of being the subject of an action for annulment.
27 First, in so far as the present action is directed against the Council, it must be noted that it is apparent from the content of the contested declaration that it was not adopted by the Council but by the Conference of the Representatives of the Governments of the Member States.
28 Accordingly the action is inadmissible to the extent that it is directed against the Council (order of 10 September 2020, Council v Sharpston, C‑423/20 P(R), not published, EU:C:2020:700, paragraph 24).
29 In so far as the present action is directed against the Conference of the Representatives of the Governments of the Member States, it must be noted that the jurisdiction of the General Court is that set out in Article 256 TFEU, as specified in Article 51 of the Statute of the Court of Justice of the European Union. Under those provisions, the General Court has jurisdiction to hear and determine actions brought under Article 263 TFEU only against acts of the institutions, bodies, offices or agencies of the European Union.
30 In that connection, it is necessary to recall the case-law according to which it is clear from Article 263 TFEU that acts adopted by representatives of the Member States, acting not in their capacity as members of the Council of the European Union or of the European Council but as representatives of their governments, and thus collectively exercising the powers of the Member States, are not subject to judicial review by the EU Courts (judgment of 30 June 1993, Parliament v Council and Commission, C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12).
31 In addition, it must be noted that the Court of Justice stated that acts by which Judges and Advocates General of the Court of Justice are appointed, in accordance with Article 253(1) TFEU, were adopted by common accord of the governments of the Member States (order of 10 September 2020, Representatives of the Governments of the Member States v Sharpston, C‑424/20 P(R), not published, EU:C:2020:705, paragraph 27).
32 More specifically, the Court of Justice has considered that an action was manifestly inadmissible to the extent that it sought the annulment of a decision taken not by an institution, body, office or agency of the Union, but by representatives of the Governments of the Member States exercising the powers of those States, with the consequence that such a decision was not subject to the judicial review that is exercised by the Court of Justice of the European Union on the basis of Article 263 TFEU (order of 10 September 2020, Representatives of the Governments of the Member States v Sharpston, C‑424/20 P(R), not published, EU:C:2020:705, paragraph 28).
33 In the present case, it must be noted that, on 29 January 2020, the representatives of the governments of 27 of the 28 Member States of the European Union on that date took part in the meeting giving rise to the contested declaration and adopted it in their capacity as representatives of the governments of the Member States and not as members of the Council.
34 In addition, it must be noted that, despite the fact that the Council is referred to in its heading and that it was published on the Council’s website, the contested declaration shows, by its content, that it is a declaration of the representatives of the governments of the Member States, by common accord, and not a declaration of the Council or an EU body or entity.
35 Accordingly, in so far as the General Court does not have jurisdiction to review the validity of an act adopted by the representatives of the governments of the Member States exercising the powers of those States, the present action must be dismissed as being inadmissible without out it being necessary to rule on the other objections to admissibility raised by the Council and the Conference of the Representatives of the Governments of the Member States or on the first head of claim, contending that the General Court should disregard paragraphs 39 to 45 of the application.
Costs
36 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 Commission and the Conference of the Representatives of the Governments of the Member States, in accordance with the form of order sought by the latter parties.
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 Council of the European Union and the Conference of the Representatives of the Governments of the Member States.
Luxembourg, 6 October 2020.