ORDER OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
8 June 2021(*)
(Action for annulment – Area of freedom, security and justice – Agreement on the withdrawal of the United Kingdom from the European Union and from Euratom – Council Decision on the conclusion of the Agreement on withdrawal – United Kingdom nationals – Loss of EU citizenship – Act not of individual concern – Non-regulatory act – Inadmissibility)
In Case T‑252/20,
Joshua Silver, residing in Bicester (United Kingdom), and the other applicants whose names are set out in the annex, (1) represented by P. Tridimas, Barrister, D. Harrison and A. von Westernhagen, Solicitors,
applicants,
v
Council of the European Union, represented by M. Bauer, R. Meyer and J. Ciantar, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking partial annulment of Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion 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 (OJ 2020 L 29, p. 1),
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk (Rapporteur), G. Hesse and M. Stancu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, Mr Joshua Silver and the other applicants whose names appear in the annex, are United Kingdom nationals residing in France and the United Kingdom.
2 On 23 June 2016, the citizens of the United Kingdom determined by referendum that their country should withdraw from the European Union.
3 On 29 March 2017, the United Kingdom of Great Britain and Northern Ireland notified the European Council of its intention to withdraw from the European Union pursuant to Article 50(2) TEU.
4 On 24 January 2020, the representatives of the European Union and the United Kingdom signed 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 withdrawal agreement’).
5 On 30 January 2020, the Council of the European Union adopted Decision (EU) 2020/135 on the conclusion 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 (OJ 2020 L 29, p. 1; ‘the contested decision’). Under Article 1 of that decision, the withdrawal agreement was approved on behalf of the European Union and the European Atomic Energy Community.
6 On 31 January 2020, the United Kingdom withdrew from the European Union and the European Atomic Energy Community. On 1 February 2020, the withdrawal agreement entered into force.
Procedure and forms of order sought
7 By application lodged on 23 April 2020, the applicants brought the present action.
8 By separate document lodged at the General Court Registry on 16 June 2020, two of the applicants applied for anonymity. By decision of 24 June 2020, the General Court granted that request.
9 By separate document lodged at the Court Registry on 27 July 2020, the Council raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
10 On 8 September 2020, the applicants lodged their observations on the plea of inadmissibility at the Court Registry.
11 In the meantime, by document lodged at the Court Registry on 15 June 2020, the European Commission sought leave to intervene in the present case in support of the form of order sought by the Council. By letters lodged at the Court Registry on 28 and 31 August 2020 respectively, the applicants and the Council took note of that application to intervene.
12 By document lodged at the Court Registry on 19 August 2020, British in Europe, an association constituted under French law, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letters lodged at the Court Registry on 21 December 2020, the applicants and the Council submitted their observations on that application to intervene.
13 By document lodged at the Court Registry on 19 August 2020, Plaid Cymru – The Party of Wales, a political party under the law of the United Kingdom, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letters lodged at the Court Registry on 21 December 2020, the applicants and the Council submitted their observations on that application to intervene.
14 By document lodged at the Court Registry on 19 August 2020, European Democracy Lab, an association governed by German law, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letters lodged at the Court Registry on 21 December 2020, the applicants and the Council submitted their observations on that application to intervene.
15 By document lodged at the Court Registry on 20 August 2020, ECIT, a public foundation established under Belgian law, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letters lodged at the Court Registry on 21 December 2020, the applicants and the Council submitted their observations on that application to intervene.
16 By document lodged at the Court Registry on 20 August 2020, European Alternatives Ltd, which describes itself as a group of civil society organisations composed of a company governed by the law of England and Wales, an association governed by French law, an association governed by German law and an association governed by Italian law, sought leave to intervene in the present case in support of the form of order sought by the applicants. By letters lodged at the Court Registry on 21 December 2020, the applicants and the Council submitted their observations on that application to intervene.
17 By order of 5 November 2020, the Court (Tenth Chamber) reserved its decision on the plea of inadmissibility until it ruled on the substance of the case, pursuant to Article 130(7) of the Rules of Procedure, and reserved the costs.
18 By decision of 11 November 2020, the Court referred the case to the Tenth Chamber sitting in extended composition, pursuant to Article 28 of the Rules of Procedure.
19 The Council lodged its defence on 8 February 2021. On 11 February 2021, the President of the Tenth Chamber (Extended Composition), decided not to serve that statement on the applicants.
20 By letter lodged at the Court Registry on 8 February 2021, the Council requested the Court to examine, in the present case, whether it was appropriate to stay proceedings pursuant to Article 69(d) of the Rules of Procedure until the Court of Justice had given a ruling on the requests for a preliminary ruling registered as Cases C‑673/20 and C‑32/21 or to decline jurisdiction under Article 128 of those rules so that the Court of Justice may rule jointly on the present action and on those requests for a preliminary ruling. By letter lodged at the Registry on 17 February 2021, the applicants asked to be apprised of the defence in order to be able to submit their observations on whether it was appropriate to stay proceedings or decline jurisdiction. On 22 February 2021, the President of the Tenth Chamber (Extended Composition), decided to communicate paragraphs 42 and 61 of that pleading to the applicants. By letter lodged at the Registry on 10 March 2021, the applicants submitted their observations on whether it was appropriate to stay proceedings or decline jurisdiction. By decision of 15 March 2021, the President of the Tenth Chamber (Extended Composition) decided not to stay the proceedings.
21 The applicants claims that the Court should:
– annul the contested decision, in so far as it ‘deprives them … of their status as Union citizens and their rights arising therefrom’;
– order the Council to pay the costs.
22 In the plea of inadmissibility, the Council contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
Law
The suggestion to decline jurisdiction
23 Pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice of the European Union, where the Court of Justice and the General Court are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the General Court may, after hearing the parties, stay the proceedings before it until such time as the Court of Justice has delivered judgment or, where the action is one brought pursuant to Article 263 TFEU, may decline jurisdiction so as to allow the Court of Justice to rule on such actions.
24 It follows from that provision that the General Court may decline jurisdiction in a case only if both the Court of Justice and the General Court are seised of actions for annulment.
25 In the present case, the Council suggests that the General Court should decline jurisdiction so that the Court of Justice may rule on the present action together with two requests for a preliminary ruling (paragraph 20 above).
26 Consequently, the General Court cannot decline jurisdiction in the present case.
Whether it is possible to give a decision by way of order
27 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. In accordance with Article 130(6) of those rules, the Court may decide to open the oral part of the procedure in respect of the plea of inadmissibility.
28 According to the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the General Court has previously adopted an order reserving its decision on a plea submitted on the basis of Article 130(1) of the Rules of Procedure until it rules on the substance of the case (see, to that effect, order of 19 February 2008, Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28).
29 In the present case, although it decided, by order of 5 November 2020, to reserve its decision on the Council’s plea of inadmissibility until it ruled on the substance of the case, the Court now considers that it has sufficient information from the documents in the file to give a decision by way of an order on that plea.
The plea of inadmissibility
30 The Council submits that the action is inadmissible in so far as the applicants do not have standing to bring proceedings against the contested decision. First, the applicants are not addressees of that decision. Secondly, the applicants are not individually concerned by that decision. Thirdly, the contested decision, on the one hand, entails implementing measures and, on the other hand, is not a regulatory act.
31 The applicants dispute the objection of inadmissibility. They submit, first, that they are directly and individually concerned by the contested decision and, secondly, that that decision is a regulatory act which is of direct concern to them and does not entail implementing measures.
32 It must be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings for annulment of three types of act, namely, first, an act addressed to that person, secondly, an act which is of direct and individual concern to them and, thirdly, a regulatory act which is of direct concern to them and does not entail implementing measures.
33 In the present case, the applicants’ standing to bring proceedings must be assessed solely in the light of the contested decision. However, it must be observed that the review of legality to be carried out by the Courts of the European Union in respect of a decision concluding an international agreement is capable of encompassing the legality of that decision in the light of the actual content of the international agreement at issue (see, by analogy, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 51 and the case-law cited). It follows that, for the purposes of assessing the applicants’ standing to bring proceedings, account must be taken of the nature and content of the withdrawal agreement.
34 It should be noted at the outset that neither the contested decision nor the withdrawal agreement is addressed to the applicants. It follows that they have no right of action on the basis of the first limb of the fourth paragraph of Article 263 TFEU, which, moreover, they do not dispute.
35 In those circumstances, it is necessary to examine whether the applicants have a right to bring an action on the basis of one or other of the situations provided for in the second and third limbs of the fourth paragraph of Article 263 TFEU.
The applicants’ standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU
36 It should be recalled that the conditions that the act of which annulment is sought should be of direct concern, on one hand, and individual concern, on the other, laid down in the second limb of the fourth paragraph of Article 263 TFEU, are cumulative (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:С:2013:625, paragraphs 75 and 76 and the case-law cited).
37 In the circumstances of the present case, it is necessary to examine first whether the second condition, relating to whether the applicants are individually concerned, is satisfied.
38 In that regard, it must be borne in mind that it is settled case-law that, in order to be regarded as individually concerned by a measure not addressed to that person, a natural or legal person must be affected by that measure by reason of certain attributes which are peculiar to them or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed by a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 93).
39 Consequently, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (judgments of 22 November 2001, Antillean Rice Mills v Council, C‑451/98, EU:C:2001:622, paragraph 52, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 94).
40 Similarly, the fact that a legal instrument may have different specific effects which differ according to the various persons to whom it applies is not such as to differentiate them in relation to all the other persons concerned where that measure is applied on the basis of an objectively determined situation (judgment of 22 February 2000, ACAV and Others v Council, T‑138/98, EU:T:2000:45, paragraph 66, and order of 3 December 2008, RSA Security Ireland v Commission, T‑227/06, EU:T:2008:547, paragraph 59).
41 However, the fact that a provision is by its nature and scope a provision of general application, inasmuch as it applies to the persons concerned in general, does not of itself prevent that provision of being of individual concern to some (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 58, and of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29).
42 Where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of persons. That can be the case particularly when the measure alters rights acquired by those persons prior to its adoption (see, to that effect, judgments of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 and 72 and the case-law cited, and of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59).
43 In the present case, the applicants submit, in essence, that they are directly and individually concerned by the contested decision in so far as it deprives them of their status as EU citizens and of the rights attaching to that status.
44 More specifically, in order to justify that the decision is of individual concern to them, the applicants explain, first, that they form part of a closed group consisting of persons having the status of United Kingdom nationals and, therefore, the status of EU citizens, at the time of the entry into force of the withdrawal agreement and the contested decision.
45 According to the applicants, the ‘closed’ nature of that group of persons results from the fact that the members of that group are all identified or identifiable when the withdrawal agreement and the contested decision enter into force and no new member can subsequently be added to that group. Persons who acquire the status of United Kingdom nationals after the withdrawal of that State from the European Union cannot claim the status of EU citizens.
46 In addition, the applicants claim that the status of EU citizen is permanent and, in principle, non-defeasible and that it was conferred on them before the adoption of the contested decision. Consequently, that decision deprives them of an acquired right, which is specific and exclusive to the members of the closed group of which they form part.
47 Secondly, the applicants claim that each of them is individually affected by the loss of their status as an EU citizen and of the rights pertaining to that status. In that regard, they rely on the consequences of losing EU citizen status and of the rights attaching to that status, in particular for those who have already exercised their right to free movement. They rely in particular on:
– the acquisition of a house in France, actual or intended permanent residence in that Member State and the need to receive sickness insurance there (four applicants);
– the exercise, in the past, of the right of petition to the European Parliament (one applicant);
– the pursuit of a professional activity in France (one applicant);
– university studies conducted in the past or envisaged in the future in Germany and plans for professional activity in that Member State (two applicants);
– the presence of family members or friends in France or Germany (three applicants).
48 Thirdly, the applicants request the Court to make a broad assessment of the condition of individual concern. That condition, it is submitted, should be interpreted in the light of the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Furthermore, the present case concerns the principle of democracy and goes to the heart of the constitutional identity of the European Union.
49 Fourthly, the applicants consider that the question of their individual concern, in particular in the light of the existence of an acquired right, is linked to the question whether EU citizen status is permanent and non-defeasible and cannot be decided without an examination of the substance of the case.
50 It must be stated at the outset that the applicants’ arguments seeking to establish their standing under the second limb of the fourth paragraph of Article 263 TFEU are based on the premiss that the contested decision entails the ‘loss’ or ‘deprivation’ of their status as EU citizens and of the rights attaching to that status.
51 In that regard, it is true that neither the contested decision nor the withdrawal agreement expressly removes EU citizen status and the rights attaching to that status from United Kingdom nationals.
52 Nonetheless, it is clear from the wording and scheme of the withdrawal agreement – and in particular from the sixth paragraph of its preamble, from Article 2(b) to (d) thereof, Article 10(1)(a) to (d) thereof and, more generally, from all the second part thereof entitled ‘Citizens’ Rights’ – that that agreement treats United Kingdom nationals, including those who were EU citizens at the date of the United Kingdom’s withdrawal from the European Union, as persons who do not have, or who no longer have from that date, EU citizen status. Thus, that agreement does not provide for the status as EU citizens of United Kingdom nationals, and for all the rights attaching to that status, to be retained.
53 It should be pointed out that, indisputably, the loss or non-retention of EU citizen status is liable to have a considerable impact on the rights of a national of a Member State which withdraws from the Union (see, to that effect, judgment of 10 December 2018, Wightman and Others C‑621/18, EU:C:2018:999, paragraph 64). Nationals of such a Member State who are expatriates in another Member State are all the more likely to be affected by the exit from the European Union of the Member State from which they originate, because of the links created sometimes over a long period, from both a personal and a professional and economic point of view (order of 16 June 2020, Walker and Others v Parliament and Council, T‑383/19, not published, EU:T:2020:269, paragraph 41).
54 However, as regards the condition of individual concern and in accordance with the case-law cited in paragraph 38 above, it is for the applicants to substantiate that the contested decision, in so far as it allegedly deprives them of their status as EU citizens and the rights attaching to that status, affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of addressees.
55 In that regard, in the first place, it is common ground that the withdrawal agreement, in particular in so far as it does not provide for the retention of EU citizen status for United Kingdom nationals, applies to all nationals of that State and is thus of general application.
56 It follows that the contested decision, which brings the withdrawal agreement into the EU legal order, is itself an act of general application and, as such, affects the applicants by reason of their objective status as United Kingdom nationals.
57 In the second place, the circumstances relied on by the applicants, referred to in paragraphs 44 to 46 above and alleging that they belong to a group of persons who have acquired the status of EU citizens because of their status as United Kingdom nationals, do not permit the inference that the applicants form part of a limited class of persons within the meaning of the case-law referred to in paragraph 42 above.
58 First, the contested decision, in so far as it allegedly deprives United Kingdom nationals of their status as EU citizens and the rights attaching to that status, was adopted taking into account their objective status as persons holding the nationality of a Member State which withdraws from the European Union (paragraph 56 above) and, in addition, without taking into consideration the particular circumstances of their individual situations, with the result that those nationals are not specifically concerned by that decision (see, by analogy, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 66 and 67, and order of 20 May 2020, Nord Stream v Parliament and Council, T‑530/19, EU:T:2020:213, paragraph 64). It follows that the applicants, as they themselves acknowledge, are concerned by the contested decision only in the same way as all other United Kingdom nationals. Therefore, the ‘closed group’ on which they rely results from the very nature of the system established by the contested decision (see, by analogy, judgments of 10 July 1996, Weber v Commission, T‑482/93, EU:T:1996:97, paragraph 65, and of 6 June 2013, T & L Sugars and Sidul Açúcares v Commission, T‑279/11, EU:T:2013:299, paragraphs 84 and 89).
59 In those circumstances, and in accordance with the case-law cited in paragraph 39 above, the facts, first, that the number, or even the identity, of the persons forming part of the ‘closed group’ relied on by the applicants can be determined more or less precisely and, secondly, that that group can no longer be extended after the entry into force of the contested decision are not, in themselves, such as to render those persons individually concerned by that decision.
60 Secondly, contrary to what the applicants claim, EU citizen status and the rights attaching to that status cannot be classified as ‘specific’ or ‘exclusive’ rights. At the time of the United Kingdom’s withdrawal from the European Union, all the nationals of that State, then a Member of the European Union, held that status and the rights attaching thereto. Therefore, the situation of the members of the ‘closed group’ relied on by the applicants cannot be compared to that of the applicant in the case which gave rise to the judgment of 18 May 1994, Codorniu v Council (C‑309/89, EU:C:1994:197, paragraphs 21 and 22), which was prevented from using a registered trade mark, which constituted an individual and exclusive property right by nature (see, to that effect and by analogy, order of 23 November 2015, Beul v Parliament and Council, T‑640/14, EU:T:2015:907, paragraph 48).
61 It follows that the applicants are not justified in claiming that the contested decision deprived them of an acquired right which was specific or exclusive. The mere existence of an acquired or individual right, whose scope or exercise is potentially affected by the contested measure, is not sufficient to distinguish the rightholder individually where other persons may enjoy similar rights and hence be in the same situation as that rightholder (see, to that effect, judgment of 16 December 2011, Enviro Tech Europe and Enviro Tech International v Commission, T‑291/04, EU:T:2011:760, paragraph 116 and the case-law cited).
62 In the third place, the various items of evidence relied on, in a personal capacity, by each of the applicants and listed in paragraph 47 above are, at most, capable of establishing the specific effects, different and possibly significant, which the alleged loss of EU citizen status and of the rights attaching to that status may have for each of them. However, none of those items of evidence is capable of demonstrating that the loss of that status and of the rights attaching thereto has consequences for them that are so specific and so peculiar to them that they would distinguish them individually from all other persons, in the same way as addressees, as provided for in the case-law referred to in paragraph 38 above.
63 In the fourth place, as regards the applicants’ argument that the condition of individual concern should be interpreted broadly, it must be recalled that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union. Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in that Treaty (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 97 and 98 and the case-law cited; judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 43 and 44).
64 The protection conferred by Article 47 of the Charter does not require a person to be unconditionally entitled to bring an action for annulment against acts which do not affect him or her individually.
65 Moreover, the fact, claimed by the applicants, that the present case concerns the principle of democracy and goes to the heart of the constitutional identity of the European Union is, in itself, irrelevant for the purposes of assessing whether the latter satisfy the condition of individual concern. The conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU apply to all actions for annulment, without distinction as to the substantive issues raised. Furthermore, the factual context of the present case differs from the very specific context of the case which gave rise to the judgment of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraphs 32 to 37), cited by the applicants, which concerned the right of a political grouping not represented in the Parliament to bring proceedings against acts of the Parliament relating to the grant of credits for the preparation of the European elections and in the adoption of which rival political groupings represented in the Parliament had participated.
66 In the fifth place, contrary to what the applicants claim, the issue of whether they are individually concerned may, in the present case, be decided without any examination of the substance of the case and, in particular, without examining whether EU citizen status is permanent and non-defeasible.
67 In those circumstances, it must be held that the applicants are not individually concerned by the contested decision. Accordingly, without it being necessary to examine whether the applicants are directly concerned by that decision, they do not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.
The applicants’ standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU
68 It should be recalled that the conditions relating (i) to the regulatory nature of the contested act, (ii) to the applicants being directly concerned and, (iii) to the absence of implementing measures provided for in the third limb of the fourth paragraph of Article 263 TFEU are cumulative (see, to that effect, order of 19 November 2020, Buxadé Villalba and Others v Parliament, T‑32/20, not published, EU:T:2020:552, paragraph 30 and the case-law cited).
69 In the circumstances of the present case, it is necessary to examine first whether the first condition, relating to the regulatory nature of the contested decision, is satisfied.
70 It must be borne in mind that the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU is more restricted in scope than that of ‘acts’ used in the first and second limbs of the fourth paragraph of Article 263 TFEU. Accordingly, that concept cannot refer to all acts of general application but relates to a more restricted category of such acts (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 58).
71 Consequently, the concept of ‘regulatory act’ (i) refers to acts of general application and (ii) does not include legislative acts (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 60 and 61).
72 In the present case, in the first place, the parties rightly agree that the contested decision is a non-legislative act of general application.
73 First, it is common ground that the contested decision is a measure of general application (paragraph 56 above).
74 Secondly, it must be recalled that a legal act can be classified as a legislative act of the European Union only if it has been adopted on the basis of a provision of the Treaties which expressly refers either to the ordinary legislative procedure or to the special legislative procedure (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 62). In the present case, the contested decision was adopted on the basis of Article 50(2) TEU. It must be stated that, although that provision states that the agreement setting out the arrangements for the withdrawal of a Member State is concluded on behalf of the European Union by the Council, acting by a qualified majority, after obtaining the consent of the Parliament, it makes no express reference either to the ordinary legislative procedure or to the special legislative procedure. It follows that the contested decision cannot be classified as a legislative act.
75 In the second place, the parties disagree as to the consequences to be drawn from the fact that the contested decision is a non-legislative act of general application. According to the applicants, that decision can only be a regulatory act. According to the Council, that decision is neither a legislative act nor a regulatory act.
76 In that regard, it must be observed that, in the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625), the Court of Justice did not hold that the concept of ‘regulatory acts’ covers all non-legislative acts of general application.
77 Admittedly, in a subsequent judgment, the Court of Justice expressly ruled out the interpretation that there were non-legislative acts of general application that were not covered by the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU. Consequently, the Court of Justice held that that concept extended to all non-legislative acts of general application (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 24 and 28).
78 However, it should be noted that, in the case that gave rise to the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873), the act at issue was a Commission decision on State aid. Although it was of general application because it ruled on national schemes, that decision was of a marked administrative nature and was, moreover, adopted by the Commission alone, without the intervention of the Council and the Parliament. In that context, the argument put forward by the Commission that that decision was a non-legislative act of general application and did not fall within the concept of ‘regulatory act’ had no basis in the wording, origin or purpose of the third limb of the fourth paragraph of Article 263 TFEU, as the Court of Justice observed in paragraphs 24 to 27 of that judgment.
79 By contrast, the Court of Justice has not yet had the opportunity to examine whether decisions approving the conclusion of an international agreement, and in particular decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State, must be classified as regulatory acts within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
80 In those circumstances, it is necessary to examine whether the concept of ‘regulatory act’ also covers such decisions.
81 In that regard, first, it should be noted that, like any international agreement concluded by the European Union, an agreement setting out the arrangements for the withdrawal of a Member State binds the EU institutions and takes precedence over the acts they lay down (see, by analogy, judgment of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44 and the case-law cited).
82 It follows from that primacy of international agreements concluded by the European Union over secondary legislation that the withdrawal agreement has, within the hierarchy of norms, a higher rank than other acts of general application, both legislative and regulatory.
83 It follows that the contested decision introduces into the EU legal order rules, contained in the withdrawal agreement, which prevail over legislative and regulatory acts and which cannot, therefore, themselves be of a regulatory nature.
84 Secondly, having regard to its adoption procedure and in the same way as other international agreements concluded by the European Union, the withdrawal agreement may be regarded as being the equivalent, externally, of that which is a legislative act internally (see, to that effect and by analogy, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 146).
85 The withdrawal agreement was concluded on behalf of the European Union by the Council, after obtaining the consent of the Parliament, in accordance with the procedure laid down in Article 50(2) TEU. In so far as it involves the Council and the Parliament, that procedure is similar to the ordinary and special legislative procedures defined in Article 289(1) and (2) TFEU and referred to in Article 21(2) and (3), Article 22(1) and (2), the second paragraph of Article 23, the first paragraph of Article 24, the second paragraph of Article 25 and Article 228(4) TFEU on the basis of which those two institutions may adopt provisions relating to rights attaching to EU citizen status. Moreover, contrary to what is claimed by the applicants, EU citizens who are nationals of the Member State which is withdrawing participate in the adoption of the decision concluding an agreement setting out the arrangements for the withdrawal of that State, since Article 50 TEU does not provide for the exclusion of any MEP when the Parliament gives its consent to such an agreement.
86 It follows that the contested decision introduces into the EU legal order rules, contained in the withdrawal agreement, which are characterised by a particularly high democratic legitimation, like those contained in a legislative act. It is precisely the particularly high democratic legitimation of legislation adopted in accordance with a procedure providing for the participation of the Council and the Parliament which justifies the refusal to relax the conditions under which individuals may bring actions for annulment against legislative acts (see, to that effect, Opinion of Advocate General Kokott in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:21, point 38).
87 Moreover, in many language versions of the third limb of the fourth paragraph of Article 263 TFEU, the terms used for ‘regulatory act’ are less evocative of rule-making by the legislature than of rule-making by the executive (see, to that effect, Opinion of Advocate General Kokott in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:21, point 41). A decision approving the conclusion of an international agreement or an agreement laying down the arrangements for the withdrawal of a Member State, such as the contested decision, cannot be compared with an act of the executive.
88 Third, it would be inconsistent and paradoxical to relax the conditions under which individuals may bring an action for annulment against the contested decision by classifying it as a regulatory act. Such a relaxation would have the consequence that individuals could more easily challenge a particular legal rule when it appears in an international agreement, such as the withdrawal agreement, and is then introduced into the EU legal order by means of a decision approving the conclusion of the agreement in question, such as the contested decision, than where the same legal rule appears in a legislative act having the same content and holding a lower rank in the hierarchy of norms.
89 Fourthly, it is apparent from the origin of the third limb of the fourth paragraph of Article 263 TFEU that the authors of the draft Treaty establishing a Constitution for Europe and then those of the Treaty of Lisbon did not specifically intend to relax the conditions for admissibility of actions brought by individuals against decisions approving the conclusion of an international agreement, such as, in particular, decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State. In particular, the travaux préparatoires for the draft Treaty establishing a Constitution for Europe – and in particular Article III-365(4) thereof, the content of which was reproduced in identical terms in the fourth paragraph of Article 263 TFEU – do not in any way indicate that those authors wished such decisions to be classified as ‘regulatory acts’ within the meaning of those two articles.
90 In those circumstances, the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted as not including decisions approving the conclusion of an international agreement, such as, in particular, decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State.
91 Therefore, the contested decision cannot be classified as a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
92 That finding is not called into question by the applicants’ other arguments.
93 First, the fact that the contested decision was published in the Official Journal of the European Union under the heading ‘non-legislative acts’ does not mean that that decision is necessarily a regulatory act. It follows that that publication was not such as to mislead individuals as to the remedies available to them against that decision.
94 Secondly, the classification of the contested decision as an act of general application which is neither legislative nor regulatory is not contrary to the principles of legal certainty and effective judicial protection. Those principles cannot be interpreted as prohibiting the gradual clarification of the rules on the admissibility of actions by means of interpretations in the case-law, provided that those interpretations are reasonably foreseeable (see, by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 167 and the case-law cited). In the present case, the interpretation of the concept of ‘regulatory act’ adopted in paragraph 90 above was reasonably foreseeable in the light of the specific features of decisions approving the conclusion of an international agreement, such as, in particular, decisions approving the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State.
95 Thirdly, the principle of effective judicial protection, as enshrined in Article 47 of the Charter, does not require an individual to be unconditionally entitled to bring an action for annulment, directly before the Courts of the European Union, against acts of general application which are not covered by the concept of ‘regulatory act’ (see, by analogy, as regards legislative acts, judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 105, and of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 66).
96 It follows from the foregoing that, without there being any need to examine whether the contested decision directly affects the applicants and whether it entails implementing measures, the applicants do not have standing to bring proceedings in the light of the third limb of the fourth paragraph of Article 263 TFEU.
97 It follows that the Council is justified in maintaining that the applicants do not have standing to bring proceedings. Therefore, the plea of inadmissibility must be upheld and the action must be dismissed as inadmissible.
The applications to intervene
98 Under Article 142(2) of the Rules of Procedure, the intervention becomes devoid of purpose if the application is declared inadmissible. In the present case, since the action is dismissed as inadmissible, there is no longer any need to adjudicate on the applications to intervene made by the Commission, by British in Europe, by Plaid Cymru – The Party of Wales, by European Democracy Lab, by ECIT and by European Alternatives Limited.
Costs
99 In the first place, 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. In the present case, since the applicants have been unsuccessful in their action, they must be ordered, in addition to bearing their own costs, to pay those of the Council, in accordance with the form of order sought by the Council, with the exception of those relating to the applications to intervene.
100 In the second place, under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. In the present case, the applicants, the Council, the Commission, British in Europe, Plaid Cymru – The Party of Wales, European Democracy Lab, ECIT and European Alternatives Limited are each to bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (Tenth Chamber, Extended Composition)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to adjudicate on the applications to intervene submitted by the European Commission, British in Europe, Plaid Cymru – The Party of Wales, European Democracy Lab, ECIT and European Alternatives Ltd.
3. Mr Joshua Silver and the other applicants whose names are set out in the annex shall, in addition to bearing their own costs, pay those incurred by the Council of the European Union, with the exception of those relating to the applications to intervene.
4. Mr Silver and the other applicants whose names are set out in the annex, the Council, the Commission, British in Europe, Plaid Cymru – The Party of Wales, European Democracy Lab, ECIT and European Alternatives Ltd shall each bear their own costs relating to the applications to intervene.
Luxembourg, 8 June 2021.