Judgments nº T-458/17 of Tribunal General de la Unión Europea, November 26, 2018

• Resolution Date: November 26, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-458/17

(Action for annulment - Institutional law - Withdrawal of the United Kingdom from the EU - Agreement setting out the arrangements for withdrawal - Article 50 TEU - Council Decision authorising the opening of negotiations with the United Kingdom with a view to conclusion of that agreement - UK citizens residing in another EU Member State - Preparatory act - Act not open to challenge - Lack of direct concern - Inadmissibility)

In Case T-458/17,

Harry Shindler, residing in Porto d’Ascoli (Italy), and the other applicants whose names are listed in the annex,(1) represented by J. Fouchet, lawyer,

applicants,

v

Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Council Decision (EU, Euratom) of 22 May 2017 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for that Member State’s withdrawal from the European Union (document XT 21016/17), including the annex to that decision establishing directives for the negotiation of that agreement (document XT 21016/17 ADD 1 REV 2),

THE GENERAL COURT (Ninth Chamber, Extended Composition)

composed of S. Gervasoni (Rapporteur), President, L. Madise, R. da Silva Passos, K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,

Registrar: M. Marescaux, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 July 2018,

gives the following

Judgment

Background to the dispute

1 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.

2 On 13 March 2017 the United Kingdom Parliament adopted the European Union (Notification of Withdrawal) Act 2017, authorising the Prime Minister to notify the United Kingdom’s intention to withdraw from the European Union in accordance with Article 50(2) TEU.

3 On 29 March 2017 the Prime Minister of the United Kingdom notified the European Council of the intention of that Member State to withdraw from the European Union and from the European Atomic Energy Community (Euratom) (‘the notification of intention to withdraw’).

4 By a declaration made the same day, the European Council stated that it had received the notification of intention to withdraw.

5 On 29 April 2017 the European Council adopted guidelines setting out the framework for the negotiations provided for by Article 50 TEU and establishing the positions and general principles that the EU would defend throughout the negotiations.

6 On 22 May 2017 the Council of the European Union adopted, on the basis of the provisions of Article 50 TEU, read in conjunction with Article 218(3) TFEU, and on the recommendation of the European Commission of 3 May 2017, the decision authorising the European Commission to open negotiations with the United Kingdom for an agreement setting out the arrangements for its withdrawal from the EU and Euratom (‘the agreement setting out the arrangements for withdrawal’ or ‘the withdrawal agreement’; and ‘the contested decision’).

7 The contested decision nominates the Commission as Union negotiator (Article 1) and stipulates that the negotiations will be conducted in the light of the guidelines adopted by the European Council and in line with the negotiating directives set out in the annex to that decision (Article 2).

8 The annex to the contested decision (document XT 21016/17 ADD 1 REV 2) contains the negotiating directives for the first phase of the negotiations as regards, inter alia, citizens’ rights, a single financial settlement, the situation of goods placed on the market and outcome of procedures based on Union law, other administrative issues relating to the functioning of the Union and the governance of the agreement setting out the arrangements for withdrawal.

Procedure and forms of order sought

9 By application lodged on 21 July 2017, the applicants, Harry Shindler and the other applicants whose names are listed in the annex to this judgment, brought the present action.

10 By separate document lodged at the Court Registry on 16 October 2017, the Council raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

11 By document lodged at the Court Registry on 20 October 2017, the Commission sought leave to intervene in the present case in support of the form of order sought by the Council, in accordance with Article 143 of the Rules of Procedure.

12 On 30 November 2017 the applicants lodged their observations on the plea of inadmissibility at the Court Registry.

13 Acting on a proposal from the Ninth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

14 Acting on a proposal from the Judge-Rapporteur, the Court (Ninth Chamber, Extended Composition) decided, in accordance with Article 130(6) of the Rules of Procedure, to open the oral phase of the procedure, limited to the admissibility of the action.

15 At the hearing held on 5 July 2018, the parties presented their oral arguments and answered the oral questions asked by the Court.

16 The applicants claim that the Court should:

- annul the contested decision, including the negotiating directives annexed to it;

- order the Council to pay the costs, including legal fees of EUR 5 000.

17 The Council contends that the Court should:

- dismiss the action as being manifestly inadmissible;

- order the applicants to pay the costs.

18 By document lodged at the Court Registry on 5 September 2018, the applicants produced further evidence, pursuant to Article 85 of the Rules of Procedure, on which the Council was given the opportunity to comment.

Law

19 The Council claims that the action based on Article 263 TFEU is manifestly inadmissible since the contested decision is not open to challenge by natural or legal persons and the applicants have no interest or standing to bring proceedings against the contested decision.

20 The applicants dispute the Council’s argument and take the view that the action is admissible.

Admissibility of the action

21 The Court considers it appropriate to rule on whether the contested decision is open to challenge and on the standing of the applicants, within the meaning of the fourth paragraph of Article 263 TFEU, and to assess, in that regard, whether the contested decision is of direct concern to the applicants. More precisely, it is appropriate to consider whether the contested decision directly affects the applicants’ legal situation.

22 The Council claims that the contested decision cannot be the subject of an action for annulment since it is, as regards the applicants, a measure of a preliminary or preparatory nature, intended to pave the way for the agreement setting out the arrangements for withdrawal pursuant to Article 50 TEU. Authorising the Commission to open negotiations on behalf of the Union and to conduct those negotiations in the light of the guidelines adopted by the European Council and in line with the negotiating directives annexed to the decision does not affect the applicants’ legal situation, which remains the same before and after the adoption of the contested decision.

23 Furthermore, the Council claims that the applicants do not have standing to bring proceedings pursuant to the fourth paragraph of Article 263 TFEU since, inter alia, the contested decision is not of direct concern to them. In particular, the contested decision does not affect the applicants’ legal situation. First, it is not the contested decision which triggered the procedure laid down in Article 50 TEU but the notification of intention to withdraw. If the Council had not adopted the contested decision the procedure laid down in Article 50 TEU would have followed its course and, two years after the notification of intention to withdraw, the United Kingdom would have left the Union without an agreement setting out the arrangements for withdrawal. Second, the contested decision also did not ‘ratify’ the notification of intention to withdraw and merely acts upon that national decision without having any effect on the right of the applicants. Irrespective of the adoption of the contested decision, the United Kingdom continues to be a member of the Union until the date of its withdrawal and the applicants continue to benefit from the rights they derive from the Treaties in that regard. It is only at the end of the procedure laid down in Article 50 TEU that the rights of the applicants are liable to be affected, to an extent which is not, however, possible to predict.

24 The applicants maintain that the contested decision may be the subject of an action for annulment. They also argue that their standing to bring proceedings stems from the fact that they are expatriate UK citizens and citizens of the EU, that they reside in another Member State and that they were denied, because of the so-called ’15 years rule’, the right to vote in the referendum of 23 June 2016 and in the general elections of 7 May 2015 which led to the appointment of the Members of Parliament who ‘confirmed’ the referendum by adopting the European Union (Notification of Withdrawal) Act 2017.

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