Case T‑458/17

Harry Shindler and Others

v

Council of the European Union

(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)

Summary — Judgment of the General Court (Ninth Chamber, Extended Composition), 26 November 2018

1. Actions for annulment — Natural or legal persons — Actionable measures — Meaning — Measures producing binding legal effects — Measures altering the applicant's legal situation — Council decision authorising the opening of negotiations with a Member State with a view to an agreement setting out the arrangements for that Member State’s withdrawal from the EU — Action by nationals of the Member State concerned — No binding legal effect on the applicants — Inadmissibility

   (Art. 50 TEU; Arts 218(3) and (11) TFEU and 263, fourth para. TFEU)

2. Member States — Withdrawal from the European Union — Decision of a Member State to initiate the withdrawal procedure — Unilateral nature — Confirmation by the Council that the constitutional requirements of the Member State concerned have been respected — Not included

   (Art. 50 TEU)

3. Actions for annulment — Actionable measures — Meaning — Measures producing binding legal effects — No possibility of disregarding that condition by invoking an infringement of the principle of democracy

   (Art. 2 TEU; Art. 263, fourth para. TFEU)

4. Actions for annulment — Actionable measures — Meaning — Measures producing binding legal effects — No possibility of disregarding that condition by invoking the right to effective judicial protection

   (Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

1.  Where an action for annulment is brought by non-privileged applicants against a measure that has not been addressed to them, both the requirement that the binding legal effects of the contested measure be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position and the condition that a natural or legal person must be directly concerned by the act forming the subject matter of the proceedings, as laid down in the fourth paragraph of Article 263 TFEU, require that the contested decision in this action directly affects the legal situation of the applicants.

   An action brought by nationals of a Member State against a decision taken by the Council on the basis of the third sentence of Article 50(2) TEU, in combination with Article 218(3) TFEU authorising the Commission to open negotiations with that Member State for an agreement setting out the arrangements for that Member State’s withdrawal from the European Union and from Euratom must be dismissed as being unfounded. Such a decision does not affect the rights of the applicants, who have the same rights after the contested decision as before. As regards the rights of the citizens of the Member State concerned in the EU 27 from the date of withdrawal, that decision merely constitutes a preparatory act for any final agreement, which would be subject to a subsequent decision of the Council, acting by qualified majority, after obtaining the consent of the European Parliament. Annulment of the contested decision would thus have no impact on the legal situation of the citizens of the Member State concerned, including those who live in another EU Member State and did not have the right to vote in the referendum on whether or not that Member State would remain in the European Union and the general elections in that State. It would lead neither to annulment of the notification of intention to withdraw nor to suspension of the two-year time limit provided for by Article 50(3) TEU. The applicants’ rights would remain unchanged.

   In that respect, although it is true that the applicants’ legal situation, particularly as regards their status as EU citizens, is likely to be affected when the Member State concerned withdraws from the EU, whether or not an agreement is concluded, such potential effect on their rights — the nature and extent of which cannot, however, be known at this time — does not result from the contested decision. In particular, if the Council was wrong not to make use of the possibility, provided for in Article 218(11) TFEU, of obtaining the opinion of the Court as to the compatibility of the envisaged agreement with the Treaties, or infringed the principle of sincere cooperation, that fact cannot have the effect of setting aside the conditions governing admissibility expressly provided for in Article 263 TFEU.

   (see paras 31, 33, 35, 45-47, 69, 78)

2.  It is clear from the wording of Article 50 TEU that the possibility for a Member State to withdraw from the Union is based on a unilateral decision by that Member State pursuant to its own constitutional requirements. In that regard, although Article 50(1) TEU provides that the decision by which a Member State decides to withdraw from the Union is taken in accordance with its own constitutional requirements, that does not mean that the withdrawal decision gives rise to a decision of acceptance from the EU institutions, by which they confirm that the State has respected those requirements. Such a decision of acceptance by the Council or by any other EU institution is not needed and is not provided for by Article 50 TEU.

   Therefore, it cannot validly be argued that the Council decision authorising the Commission to open negotiations with a Member State for an agreement setting out the arrangements for that Member State’s withdrawal from the EU and Euratom constitutes an implicit act by which the Council accepted the notification of intention to withdraw or that that decision acknowledged the ‘exit’ of that Member State at the end of the two-year time limit provided for in Article 50(3) TEU.

   (see paras 56, 58, 60)

3.  It cannot validly be argued that an action should be found to be admissible on the basis that the contested decision was made in breach of the principle of democracy. Such reasoning would be tantamount to inferring the admissibility of an action for annulment under Article 263 TFEU from the possible unlawfulness of the contested decision. The seriousness of the alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the FEU Treaty.

   (see para. 70)

4.  See the text of the decision.

   (see para. 76)