Order;Abstract — ECLI:EU:T:2023:684
Date: 2023-10-26
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - inadmissible
Origin: Belgium

Case T‑48/23 Eugen Tomac v Council of the European Union Order of the General Court (Fourth Chamber) of 26 October 2023 (Action for annulment – Institutional law – Full application of the provisions of the Schengen acquis in Romania – Absence of a challengeable act – Required unanimity not achieved – Manifest inadmissibility in part – Request for a time limit capable of allowing the action to be resumed – Manifest lack of jurisdiction in part) 1. Action for annulment – Actionable measures – Concept – Measures producing binding legal effects – Vote leading to the non-adoption by the Council of a draft decision requiring unanimity of the representatives of Governments of the Member States – Not included – Manifest inadmissibility (Art. 263 TFEU) (see paragraphs 25-36, 38) 2. Action for annulment – Time limits – Mandatory – Request for a time limit capable of allowing the action to be resumed – Manifest lack of jurisdiction (Art. 263, sixth para., TFEU) (see paragraph 40) Résumé The Schengen acquis (1) is a body of law aimed at the gradual abolition of checks at the common borders within the Schengen Member States. As regards Romania, Article 4(1) and (2) of the Protocol to the Act of Accession of Romania to the European Union (2) provides in essence that the provisions of the Schengen acquis and the acts building upon on it or otherwise related to it, listed in Annex II, are binding and apply in Bulgaria and Romania from the date of accession. Paragraph 2 states that the provisions and acts not referred to in paragraph 1, although still binding, are to apply in Bulgaria and Romania only following a decision of the Council of the European Union to that effect, after it has been verified that the necessary conditions for the application of all relevant parts of the acquis are met in the State in question. The Council, after consulting the European Parliament, is then to act with the unanimity of its members representing the Governments of the Member States for which the provisions of the Schengen acquis have already been put into effect and of the representative of the Government of the Member State for which those provisions are to be put into effect. Following its accession to the European Union on 1 January 2007, Romania undertook, between 2009 and 2011, a series of steps under the Schengen evaluation procedures, with the aim of meeting the criteria required for the full application of the provisions of the Schengen acquis. In its conclusions of 9 June 2011 on the completion of the process of evaluation of the state of preparedness of Romania to implement all provisions of the Schengen acquis, the ‘Schengen Evaluation’ formation of the Council’s Working Party for Schengen Matters took note of the completion of the Schengen evaluation procedures concerning Romania. Observing that the conditions in all areas of the Schengen acquis had been fulfilled in Romania, it concluded that the Council could take the decision referred to in Article 4(2) of the Protocol to the Act of Accession of Romania to the Union. Subsequently, the European Commission confirmed that Romania met the necessary conditions for the provisions of the Schengen acquis to be recognised as applicable in that State and called on the Council to take the necessary measures to that effect. On 21 October 2022, an expert report drawn up under the authority of the Commission confirmed the conclusions of the evaluation procedures completed in 2011. That report also stated that Romania had implemented the acquis and its tools and had even strengthened their application in all areas. The Commission renewed its invitation to the Council to accept Romania’s accession to the Schengen area. On 29 November 2022, on the basis of Article 4(2) of the Protocol to the Act of Accession of Romania to the Union, 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 Romania. On 8 December 2022, at a meeting of the Justice and Home Affairs (JHA) configuration of the Council, in the absence of unanimity of the representatives of the Governments of the Member States in respect of Draft No 15218/22, that draft was not adopted. On 15 December 2022, the applicant, a Member of the European Parliament of Romanian nationality, asked the General Secretariat of the Council to send him the results of the vote on the full application of the Schengen acquis in Romania, as well as the minutes or report of that meeting. On 16 December 2022, the General Secretariat of the Council replied to the applicant that, during that meeting, Draft No 15218/22 had not in fact been adopted and that, in accordance with 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. The same applied to the minutes of that procedure. On 6 February 2023, the applicant brought an action before the General Court seeking, inter alia, annulment of the Council’s ‘decision’ of 8 December 2022 not to adopt Draft No 15218/22 (Case T‑48/23). On the same day, the applicant 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 decide on the full application of the provisions of the Schengen acquis in Romania, pursuant to Article 4(2) of the Protocol to the Act of Accession of Romania to the Union. On 13 April 2023, the Director-General for General and Institutional Policy (GIP) of the Council replied to the applicant, recalling that Draft No 15218/22 had not received unanimous support from the representatives of the Member States concerned and that negotiations continued until the unanimity required by the Protocol to the Act of Accession of Romania to the Union was obtained. The applicant then brought an action for failure to act before the Court, seeking, inter alia, a declaration that the Council had failed to take any steps to decide on the full application of the provisions of the Schengen acquis in Romania, pursuant to Article 4(2) of the Protocol to the Act of Accession of Romania to the Union (Case T‑244/23). By two orders, the Court dismisses the first action in part as manifestly inadmissible and in part on the ground of manifest lacking in jurisdiction (Case T‑48/23) and the second as manifestly lacking any foundation in law (Case T‑244/23). The issue in both cases is linked to the importance of the subject matter of the dispute, which concerns the adoption by the Council of a decision on the full application of the provisions of the Schengen acquis in Romania. Furthermore, those two cases give the Court the unprecedented opportunity to interpret, in the context of an action for annulment and an action for failure to act, Article 4(2) of the Protocol to the Act of Accession of Romania to the Union. Findings of the Court In respect of the action for annulment (T‑48/23), the Court determines whether, in the present case, the Council’s failure to adopt Draft No 15218/22 constitutes a challengeable act within the meaning of Article 263 TFEU. In that regard, as regards the adoption of a Council decision on the full application of the provisions of the Schengen acquis in Romania, within the meaning of Article 4(2) of the Protocol to the Act of Accession of Romania to the Union, the Court states that the completion of the Schengen evaluation procedures is only one stage in the procedure laid down in that article. That stage is accompanied by consultation of the Parliament, followed by the adoption of a Council decision. Above all, it is apparent from the second subparagraph of Article 4(2) of the Protocol to the Act of Accession of Romania to the Union that such a decision can exist, and consequently produce legal binding effects for the applicant, only if it is adopted with the unanimity of the members of the Council representing the Governments of the Member States for which the provisions of the Schengen acquis have already taken effect and of the representative of the Government of Romania for which those provisions are to take effect. In the present case, the Court points out that the required unanimity was not achieved in respect of the vote of those representatives on Draft No 15218/22. In addition, it observes that Article 4(2) of the Protocol to the Act of Accession of Romania to the Union does not set any time limit, on the expiry of which the Council decision must or is deemed to have been taken. Thus, the outcome of the other stages provided for in that article, or any position adopted by institutions of the Union, cannot bind those representatives, or presume that they have adopted a position before the formal adoption of such a decision under the conditions referred to above. Furthermore, the vote on Draft No 15218/22 does not imply reversing the completion of the preliminary stages and recommencing the procedure laid down in its entirety. In the absence of the required unanimity, the Court concludes that no decision of the Council was taken within the meaning of Article 4(2) of the Protocol to the Act of Accession of Romania to the Union and that the vote leading to the non-adoption of Draft No 15218/22 is not equivalent to a refusal by the Council to take such a decision at a later stage. Thus, that non-adoption of Draft No 15218/22 cannot be regarded as giving rise to a challengeable act within the meaning of Article 263 TFEU.(3) Such a conclusion is not contrary to the right to an effective remedy, set out in Article 47 of the Charter of Fundamental Rights of the European Union, which is not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union. Consequently, the Court dismisses the action as manifestly inadmissible, in so far as it seeks annulment of the non-adoption of Draft No 15218/22 in the vote of the Council. In respect of the action for failure to act (T‑244/23), the Court considers, from the outset, the case-law according to which an action for failure to act cannot be founded unless the institution concerned has an obligation to act, so that the alleged failure to act is contrary to the Treaty and that natural and legal persons may bring proceedings before the Courts of the European Union under the third paragraph of Article 265 TFEU only for a declaration that a Union institution, body, office or agency has declined, in breach of the Treaty, to adopt an act, other than a recommendation or an opinion, of which they are the potential addressee or which they could challenge in annulment proceedings. Thus, the Court is concerned to establish whether, in the present case, at the time when the Council was called upon to act, it was under an obligation to act in the manner advocated by the applicant. In that regard, the Court notes that Article 4(2) of the Protocol to the Act of Accession of Romania to the Union does not set any time limit on the expiry of which the Council decision under that article must or is deemed to have been taken. Furthermore, since that article requires the unanimity of the representatives of the Governments of the Member States concerned, they are not obliged to adopt a decision in all circumstances and, on the contrary, enjoy a discretionary power which precludes any right on the part of individuals to require them, and the Council, to take a position in a particular direction when a draft decision is being discussed. In those circumstances, in response to the applicant’s request for action, the Council could not lawfully ignore the lack of unanimity of the representatives of the Member States concerned when voting on Draft No 15218/22, as otherwise the conditions laid down in Article 4(2) of the Protocol to the Act of Accession of Romania to the Union would be disregarded. Consequently, at the time when the applicant called upon the Council to act, there was no obligation on the Council to adopt a decision under Article 4 of the Protocol to the Act of Accession of Romania to the Union, which must, on the contrary, act in compliance with the requirement of unanimity expressly laid down in that article and which therefore did not, in the present case, unlawfully fail to act within the meaning of Article 265 TFEU. Therefore, the Court dismisses the action as manifestly lacking any foundation in law in so far as it seeks a declaration that the Council failed to act in the light of its obligations under Article 4(2) of the Protocol to the Act of Accession of Romania to the Union. 1 As referred to in Article 1 of, referring to Annex A to, Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis (OJ 1999 L 176, p. 1). 2 Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union (OJ 2005 L 157, p. 29; ‘the Protocol to the Act of Accession of Romania to the Union’), to 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). 3 See, by analogy, judgment of 13 July 2004, Commission v Council (C‑27/04, EU:C:2004:436, paragraph 34).