Provisional text

ORDER OF THE COURT (Sixth Chamber)

4 July 2024 (*)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Law governing the institutions – Article 265 TFEU – Action for failure to act – Full application of the provisions of the Schengen acquis in Romania – Obligation to adopt a decision pursuant to the Act concerning the conditions of accession to the European Union of the Republic of Bulgaria and Romania – Appeal in part manifestly inadmissible and in part manifestly unfounded)

In Case C‑786/23 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 December 2023,

Eugen Tomac, residing in Brussels (Belgium), represented by R. Duta, avocat,

appellant,

the other party to the proceedings being:

Council of the European Union

defendant at first instance,

THE COURT (Sixth Chamber),

composed of T. von Danwitz, President of the Chamber, P.G. Xuereb (Rapporteur) and A. Kumin, Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By his appeal, Mr Eugen Tomac seeks to have set aside the order of the General Court of the European Union of 26 October 2023, Tomac v Council (T‑244/23, ‘the order under appeal’, EU:T:2023:685), by which the General Court dismissed his action brought on the basis of Article 265 TFEU seeking, first, a declaration that the Council of the European Union unlawfully failed to take steps in order to decide on the full application of the provisions of the Schengen acquis in Romania and, second, recognition that he is a ‘privileged applicant’ and accordingly to reserve to him all rights, pleas and actions in that context.

 Legal context

2        Under Article 4 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203; ‘the Act of Accession’), annexed to the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 11), pursuant to Article 2(2) of that Treaty, which was signed on 25 April 2005 and entered into force on 1 January 2007:

‘1.      The provisions of the Schengen acquis as integrated into the framework of the European Union …, and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of accession, shall be binding on and applicable in Bulgaria and Romania from the date of accession.

2.      Those provisions of the Schengen acquis as integrated into the framework of the European Union and the acts building upon it or otherwise related to it not referred to in paragraph 1, while binding on Bulgaria and Romania from the date of accession, shall only apply in each of those States pursuant to a Council decision to that effect after verification in accordance with the applicable Schengen evaluation procedures that the necessary conditions for the application of all parts of the acquis concerned have been met in that State.

The Council shall take its decision, after consulting the European Parliament, acting with the unanimity of its members representing the Governments of the Member States in respect of which the provisions referred to in this paragraph have already been put into effect and of the representative of the Government of the Member State in respect of which those provisions are to be put into effect. …’

 Background to the dispute

3        The background to the dispute was set out by the General Court in paragraphs 2 to 23 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

4        The appellant is a Member of the European Parliament of Romanian nationality.

5        Following its accession to the European Union on 1 January 2007, Romania undertook, between 2009 and 2011, a series of steps pursuant to the Schengen evaluation procedures, with the aim of meeting the criteria required for the full application of the provisions of the Schengen acquis.

6        The Presidency of the Council drew up two draft Council decisions on the full application of the provisions of the Schengen acquis in Romania, which were followed by the adoption of various resolutions of the Parliament expressing its support for Romania’s accession to the Schengen area and inviting the Council to take the necessary measures to that end. However, those two drafts did not result in a vote in the Council.

7        On 29 November 2022, on the basis of Article 4(2) of the Act of Accession, the Presidency of the Council drew up Draft No 15218/22 for a Council Decision on the full application of the provisions of the Schengen acquis in Bulgaria and Romania (‘Draft No 15218/22’).

8        At its meeting of 8 December 2022, the ‘Justice and Home Affairs’ (JHA) configuration of the Council sat in order to rule on Draft No 15218/22, included under point 3(a) of the meeting’s agenda, which provided that a vote could be requested with a view to possible adoption by the representatives of the governments of the Member States. In the absence of unanimity of the votes, the draft was not adopted.

9        By email of 15 December 2022, the appellant asked the Director-General for JHA of the General Secretariat of the Council whether it was possible for her to communicate to him the results of the vote on Draft No 15218/22, as well as the minutes of the Council meeting of 8 December 2022 or the report relating thereto.

10      By email of 16 December 2022, the Director-General for JHA of the General Secretariat of the Council replied to the appellant that, during that meeting, Draft No 15218/22 had not in fact been adopted and that, in accordance with Articles 8 and 9 of the Council’s Rules of Procedure, in so far as those were deliberations on a non-legislative act not open to the public, the results of the votes were not subject to any publicity. She added that the minutes of that meeting were also not made public.

11      By letter of 6 February 2023, the appellant sent a Minister, a member of the JHA configuration of the Council, an invitation to act addressed to the Council, on the basis of the second paragraph of Article 265 TFEU, in order to have that institution decide on the full application of the provisions of the Schengen acquis in Romania, pursuant to Article 4(2) of the Act of Accession. In support of that invitation to act, the appellant relied, in particular, on a breach of the principles of equality, non-discrimination and sincere cooperation between Member States. Furthermore, in so far as it was set out that Romania satisfied the conditions of the evaluation procedure, its integration could not have been dismissed on the pretext of the unjustified opposition of a single Member State and that the Council ought to have disregarded that manifestly unjustified opposition, for the purpose, in particular, of Article 4 of the Act of Accession.

12      By letter of 13 April 2023, the Director-General for General and Institutional Policy (GIP) of the Council replied to the appellant. He reminded the appellant of the condition of unanimity laid down in Article 4(2) of the Act of Accession, compliance with which was necessary for the adoption of a decision within the meaning of that article. Subsequently, he explained to the appellant that Draft No 15218/22 had not received the unanimous support of the representatives of the Member States concerned at the meetings of 8 and 9 December 2022 and that, consequently, the negotiations on the full application of the provisions of the Schengen acquis in Romania continued in order to find the unanimity required by the Act of Accession.

 The action before the General Court and the order under appeal

13      By application lodged at the Registry of the General Court on 10 May 2023, the appellant brought an action against the Council under Article 265 TFEU for failure to act, seeking, first, a declaration that the Council failed to take any steps in order to decide on the full application of the provisions of the Schengen acquis in Romania, pursuant to Article 4(2) of the Act of Accession, and second, to grant the appellant the status of ‘privileged applicant’ and to reserve to him all rights, pleas and actions in that context.

14      On 26 October 2023, the General Court, pursuant to Article 126 of its Rules of Procedure, without taking further steps in the proceedings, dismissed that action as manifestly lacking any foundation in law.

15      As regards the first head of claim, the General Court found, in paragraph 30 of the order under appeal, that Article 4 of the Act of Accession did not set any time limit on the expiry of which a Council decision under that article was to be taken or was deemed to have been taken.

16      In addition, the General Court noted, inter alia, in paragraph 31 of that order, that it followed, in particular, from the vote provided for in Article 4 of the Act of Accession and from the condition of unanimity that that article raises, that the representatives of the governments of the Member States concerned are not required to adopt in all circumstances a decision within the meaning of that article, but that, in that respect, on the contrary, they enjoy a discretionary power of assessment which precludes any right on the part of individuals to require them, and therefore the Council, to take a particular position when a draft decision is being discussed.

17      Accordingly, the General Court noted, in paragraph 32 of that order, that the Director-General responsible for the GIP was correct in stating that the Council could not lawfully ignore the lack of unanimity during the vote of the representatives of the Member States concerned, if the conditions laid down in Article 4(2) of the Act of Accession were not to be disregarded.

18      The General Court concluded, in paragraph 33 of that order, that, at the time when the appellant invited the Council to act, it was under no obligation to adopt a decision under Article 4 of the Act of Accession, but it was for the Council to act in compliance with the condition of unanimity expressly laid down in that article.

19      In paragraphs 34 and 35 of the order under appeal, the General Court added that the Council had not refrained, within the framework of its powers, from taking, before the action was brought, any steps necessary for the adoption of a decision, within the meaning of Article 4 of the Act of Accession, in the light of the fact that the Presidency of the Council had drawn up three draft decisions which sought the full application of the provisions of the Schengen acquis in Bulgaria and Romania. Therefore, the Council did not unlawfully fail to act, within the meaning of Article 265 TFEU.

20      As regards the second head of claim, the General Court recalled in paragraph 37 of the order under appeal that, according to the second paragraph of Article 263 TFEU, the status of ‘privileged applicant’ is recognised exhaustively in respect of the Member States, the Parliament, the Council or the European Commission and thus held that the appellant could not be granted that status.

 Forms of order sought and procedure before the Court of Justice

21      By his appeal lodged on 18 December 2023, the appellant requests the Court of Justice, in essence, to set aside the order under appeal and to refer the case back to a different composition of the General Court for it to rule on his application and, in the alternative, to vary that order.

 The appeal

22      Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

23      It is appropriate to apply that provision in the present case.

24      In support of his appeal, the appellant raises two grounds of appeal, alleging, first, an error of law in the interpretation of the time limit relating to the adoption of a decision under Article 4(2) of the Act of Accession and, second, an infringement by the General Court of certain general principles of law, such as the principles of legal certainty, free movement of persons and goods, non-discrimination and equal treatment, ‘mutual assistance’, ‘fraternity’ and sincere cooperation between the Member States, as well as a manifest error of assessment.

 The first ground of appeal

25      As regards the first ground of appeal, alleging that the obligation to adopt a decision under Article 4(2) of the Act of Accession within a reasonable time follows from Article 3(2) and (3) TEU and from Article 4(2) TEU, it must be noted that those provisions do not lay down any such obligation in relation to the Council and that, in addition, the General Court did not err in law in paragraph 30 of the order under appeal in finding that Article 4 of the Act of Accession did not lay down a time limit on the expiry of which a Council decision under that article was to be taken, or was deemed to have been taken.

26      As such, the first ground of appeal must be rejected.

 The second ground of appeal

27      As regards the second ground of appeal, the appellant maintains, first of all, that the failure to adopt a decision, within the meaning of Article 4(2) of the Act of Accession, infringes certain general principles of law such as those set out in paragraph 24 of the present order.

28      In that regard, it should be recalled that it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must identify precisely the contested points in the grounds of the judgment of the General Court which the appellant seeks to have set aside and indicate precisely the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 31 and the case-law cited).

29      It must be stated, first, that the appellant has not identified the contested points in the grounds of the order under appeal as regards the principles referred to in paragraph 24 of the present order and, second, that he has not put forward any argument capable of calling into question the General Court’s finding, in paragraph 33 of the order under appeal, that, at the time when the appellant called upon the Council to act, that institution was under no obligation to adopt a decision under Article 4 of the Act of Accession, if the condition of unanimity laid down in that article were not to be disregarded.

30      In addition, as regards allegedly discriminatory treatment of Romania as compared with the Republic of Croatia, it should be noted that the appellant has not explained how such a difference in treatment, even if it were established, would have affected the adoption of a decision within the meaning of Article 4(2) of the Act of Accession.

31      Lastly, in so far as the appellant complains, in essence, that the General Court did not hold that it was for the Council to disregard the condition of unanimity by acting by a qualified majority in accordance with the first indent of Article 31(2) TEU, it must be observed that that provision forms part of Chapter 2 of Title V of the EU Treaty laying down specific provisions on the Common Foreign and Security Policy and is therefore not relevant to the interpretation of Article 4(2) of the Act of Accession.

32      Consequently, the second ground of appeal must also be rejected.

33      It follows from all the foregoing considerations that the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.

 Costs

34      Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules of procedure, a decision as to costs is to be given in the order which closes the proceedings.

35      In the present case, since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before the latter could have incurred costs, it is appropriate to decide that the appellant is to bear his own costs.

On those grounds, the Court (Sixth Chamber) hereby orders:

1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2.      Mr Eugen Tomac shall bear his own costs.

[Signatures]

*      Language of the case: French.