Case T‑198/20

Harry Shindler and Others

Council of the European Union

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 – Lack of individual concern – Non-regulatory act – Inadmissibility)

Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Person individually affected by a measure of a general nature – Conditions – Council decision approving the conclusion of the agreement setting out the arrangements for the United Kingdom’s withdrawal from the European Union – Action brought by United Kingdom nationals – Loss of EU citizenship and related rights – Lack of individual concern – Inadmissibility

(Art. 263, fourth para., TFEU; Council Decision (EU) 2020/135)

(see paragraphs 35, 37-41, 47-57)
Action for annulment – Natural or legal persons – Concept of regulatory act within the meaning of the fourth paragraph of Article 263 TFEU – Council decision approving the conclusion of the agreement setting out the arrangements for the United Kingdom’s withdrawal from the European Union – Not included

(Art. 263, fourth para., TFEU; Council Decision (EU) 2020/135)

(see paragraphs 58, 60, 61, 63, 64, 71-83)

Résumé

The Council Decision approving the Brexit agreement does not constitute a regulatory act according to the Treaty on the Functioning of the European Union.

The actions brought by United Kingdom nationals who challenged that decision are inadmissible because they have no standing to bring proceedings

The applicants, who include H. Shindler and J. Silver, are United Kingdom nationals resident in the United Kingdom and in several Member States of the European Union.

Following the referendum of 23 June 2016, 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. On 24 January 2020, representatives of the European Union and the United Kingdom signed the withdrawal agreement, ( 1 ) following which the Council of the European Union adopted the contested decision ( 2 ) by which that agreement was approved on behalf of the European Union and the European Atomic Energy Community. On 31 January 2020, the United Kingdom withdrew from the European Union and from the European Atomic Energy Community. On 1 February 2020, the withdrawal agreement entered into force.

Against that background, the applicants brought before the Court two actions for partial annulment of the contested decision, in so far as that act deprived them of their status as EU citizens and of the rights attaching thereto. ( 3 )

In these two orders, the Court, sitting in extended composition, holds that a decision approving the conclusion of an international agreement – in the present case the decision approving the conclusion of the agreement setting out the arrangements for the withdrawal of the United Kingdom from the European Union – does not constitute a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU. ( 4 ) As a result, the Court dismisses the two actions as inadmissible since the applicants do not have legal standing to bring an action against such a decision.

Findings of the Court

First of all, the Court notes that the applicants are not addressees of either the withdrawal agreement or the contested decision and therefore have no right of action on the basis of the first limb of the fourth paragraph of Article 263 TFEU. In those circumstances, the Court examines whether the applicants might have a right of 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.

As regards the second limb of the fourth paragraph of Article 263 TFEU, the Court notes that the conditions of, first, direct concern and, second, individual concern, laid down in that provision, are cumulative. In the circumstances of the present case, the Court first of all examines whether the second condition, relating to individual concern, is satisfied. In that regard, it notes that the contested decision, which brings the act of withdrawal 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. The circumstances on which the latter rely, namely, inter alia, the fact that they belong to specific categories of UK nationals who have exercised their right to freedom of movement within the European Union, do not permit a finding that they form part of a limited class of persons individually concerned by the contested decision at the time of its adoption, since the status of EU citizen and the rights attached thereto cannot be classified as specific or exclusive rights the loss of which would have, for the applicants, specific, different and significant effects which would distinguish them individually from any other person, just as in the case of the persons to whom the contested decision is addressed.

As a result, the Court finds that the applicants are not individually concerned by the contested decision and that, therefore, they do not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU.

As regards the third limb of the fourth paragraph of Article 263 TFEU, the Court recalls that the conditions relating, first, to the regulatory nature of the contested act, second, to the applicants’ direct concern and, third, to the absence of implementing measures, provided for in the third limb of the fourth paragraph of Article 263 TFEU, are cumulative. In the circumstances of the present case, the Court first of all examines whether the contested decision constitutes a ‘regulatory act’. In that regard, it recalls that the concept of ‘regulatory act’, within the meaning of that provision, is narrower in scope than that of ‘acts’, used in the first and second limbs of the fourth paragraph of Article 263 TFEU, since it relates to a more restricted category of acts of general application and does not include legislative acts.

In the present case, the Court finds, in the first place, that the contested decision is a non-legislative act of general application, since it was adopted under Article 50(2) TEU. In that regard, the Court notes 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 does not refer expressly 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.

In the second place, the General Court notes that 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. In those circumstances, the General Court examines whether the concept of ‘regulatory act’ also covers such decisions. In that regard, the Court notes in particular that, like any international agreement concluded by the European Union, an agreement setting out the arrangements for the withdrawal of a Member State is binding on its institutions and takes precedence over both legislative and regulatory acts of general application which they enact. As a result, the contested decision introduces into the EU legal order rules, contained in the withdrawal agreement, which prevail over legislative and regulatory acts and which, therefore, cannot be of a regulatory nature. Therefore, 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.

As a result, the contested decision does not constitute a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU and the applicants do not have standing to bring proceedings under that provision. ( 5 )

( 1 ) 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).

( 2 ) 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 contested decision’).

( 3 ) Rights which include the right to move and reside freely in the territories of the Member States and the right to vote and to stand as a candidate in elections to the European Parliament and in the municipal elections of their State of residence.

( 4 ) The fourth paragraph of Article 263 TFEU provides: ‘Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.

( 5 ) The order in Price v Council (T-231/20, not published) concerns the same issue.