ORDER OF THE GENERAL COURT (Sixth Chamber)
28 November 2023 (*)
(Actions for failure to act and for annulment – Right to asylum – Invitation to act – Invitation submitted in the name and on behalf of an anonymous person – Failure to follow the pre-litigation procedure – Article 46(4) of Regulation (EU) 2019/1896 – No interest in bringing proceedings – Inadmissibility)
In Case T‑600/22,
ST, represented by F. Gatta, lawyer,
applicant,
v
European Border and Coast Guard Agency (Frontex), represented by S. Karkala and R.-A. Popa, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
the plea of inadmissibility raised under Article 130(1) of the Rules of Procedure of the General Court by Frontex, by separate document lodged at the Court Registry on 26 October 2022,
the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 8 December 2022,
the measure of organisation of procedure of 2 June 2023 inviting the applicant to state whether, in accordance with the case-law, he had a legal interest in the annulment of the contested decision.
makes the following
Order
1        By his action, the applicant, ST, is seeking, principally, under Article 265 TFEU, a declaration from the Court that the European Border and Coast Guard Agency (Frontex) unlawfully failed to adopt, pursuant to Article 46(4) of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ 2019 L 295, p. 1), a decision to suspend or terminate its activities in the Aegean Sea and, in the alternative, under
Article 263 TFEU, the annulment of Frontex’s decision of 27 July 2022 refusing to act in response to the call to act pursuant to Article 46(4) of Regulation 2019/1896 (‘the contested decision’).
Background to the dispute
2        The applicant is a Congolese national residing in Türkiye, who fled his country owing to ill-treatment inflicted by his uncle and who wishes to obtain asylum in Greece in order to find safety and pursue his studies there.
3        On 6 June 2022, Front-Lex, a non-profit non-governmental organisation (NGO) established in Amsterdam (Netherlands), sent, in accordance with Article 265 TFEU, a letter to the Executive Director ad interim of Frontex, on behalf of A and another person who wished to remain anonymous, inviting her to suspend or terminate Frontex’s activities in the Aegean Sea region, pursuant to Article 46(4) of Regulation 2019/1896.
4        On 27 July 2022, Frontex replied to that invitation to act by the contested decision, in which it noted that that invitation was similar to that previously sent to it by Front-Lex on 15 February 2021, and then referred to its letter of 23 March 2021 in which it had refused to suspend or terminate its activities in the Aegean Sea region.
Forms of order sought
5        The applicant claims, in essence, that the Court should:
–        principally, declare that, after Frontex was called upon to act in accordance with the procedure laid down in Article 265 TFEU, Frontex unlawfully failed to act, by refraining from taking the decision to withdraw the financing for all or part of its activities in the Aegean Sea region, to suspend those activities or to terminate them in whole or in part, in accordance with Article 46(4) of Regulation
2019/1896, or by not providing duly justified grounds for failing to implement the relevant measure within the meaning of Article 46(6) of that regulation, and, further, that it did not define its position in response to the applicant’s preliminary request;
–        in the alternative, annul the contested decision;
–        order Frontex to pay the costs.
6        In the plea of inadmissibility, Frontex contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
7        In his observations on the plea of inadmissibility, the applicant claims, in essence, that the Court should:
–        principally, dismiss the plea of inadmissibility;
–        in the alternative, reserve its decision on admissibility until it rules on the substance of the case.
Law
8        Under Article 130(1) and (7) of the Rules of Procedure, where, by a separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence, without going to the substance of the case, the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure.
9        In addition, under Article 129 of the Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
10      In the present case, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
11      In support of its objection of inadmissibility, Frontex raises, first, in respect of the application under Article 265 TFEU, three pleas of inadmissibility, alleging, first, that there is no evidence that the applicant is the anonymous person who initiated the pre-litigation procedure, second, that it did define its position on the call to act addressed to it and, third, that the applicant lacks locus standi and interest in bringing proceedings. Second, Frontex raises, in respect of the application under Article 263 TFEU, one plea of inadmissibility, alleging that the contested decision is not of direct and individual concern to the applicant.
Admissibility of the application under Article 265 TFEU
12      By its first plea of inadmissibility, Frontex submits, in essence, that the application under Article 265 TFEU is inadmissible, in so far as it was not submitted by the same person who had previously called upon it to act. It argues in that regard that the applicant has not demonstrated that he is the ‘anonymous asylum seeker’ in whose name and on whose behalf the letter of 6 June 2022 was sent to it.
13      The applicant submits, in essence, that Frontex disregards the fact that the NGO which signed the invitation to act is the same as that which brought the present action. That fact alone should suffice to establish that the persons represented in the pre-litigation procedure are the same as those represented before the Court. Furthermore, the analogy drawn by Frontex between the present case and that which led to the order of 6 February 1997, de Jorio v Council (T‑64/96, EU:T:1997:15), is irrelevant, given the factual differences between the two cases.
14      In that regard, it should be recalled that an action brought under Article 265 TFEU for failure to act is admissible only in so far as the applicant has duly followed the pre-litigation procedure, satisfying the essential procedural requirement of calling upon the institution concerned to act, within the meaning of the second paragraph of that provision
(see order of 30 April 1999, Pescados Congelados Jogamar v Commission, T‑311/97, EU:T:1999:89, paragraph 34 and the case-law cited). The second paragraph of Article 265 TFEU states that an action for failure to act is admissible only if the institution, body, office or agency concerned has first been called upon to act.
15      It is also clear from the case-law that, in order to be admissible, the action must be brought by the same person who has previously called upon the institution concerned to act (see, to that effect, order of 14 June 2016, Europäischer Tier- und Naturschutz and Giesen v Commission, T‑595/15, not published, EU:T:2016:362, paragraph 13 and the case-law cited).
16      Although in his written pleadings the applicant maintains that the pre-litigation procedure was duly followed in the present case, since he is the anonymous person in whose name and on whose behalf the invitation to act was submitted, it must nevertheless be stated that there is nothing in the file to support that claim. The fact that the NGO which signed the invitation to act is the same as that which brought the present action is irrelevant, since it does not prove that the invitation to act came from the applicant and does not, therefore, satisfy that essential procedural requirement.
17      The same is true of the argument that there is no possible analogy between the present case and the order of 6 February 1997, de Jorio v Council (T‑64/96, EU:T:1997:15), in view of the factual differences between the two cases, since the condition that the action for failure to act must be brought by the same person who has previously called upon the institution concerned to act does not stem from the order of 6 February 1997, de Jorio v Council (T‑64/96, EU:T:1997:15), but from the second paragraph of Article 265 TFEU.
18      Consequently, and since the applicant has not demonstrated that he was the anonymous person in whose name and on whose behalf the invitation to act was submitted, the plea of inadmissibility raised by Frontex must be upheld.
19      In any event, even if the applicant is the anonymous person in whose name and on whose behalf the invitation to act was submitted, the application would also be inadmissible in so far as Frontex, by the contested decision, defined its position on the invitation to act of 6 June 2022 before the action was brought (see, to that effect, order of 7 April 2022, SS and ST v Frontex, T‑282/21, not published, EU:T:2022:235, paragraphs 22 and 23 and the case-law cited).
20      It follows from all of the foregoing that the application brought by the applicant under Article 265 TFEU must be dismissed as inadmissible.
Admissibility of the application under Article 263 TFEU
21      Frontex contends, in its observations lodged further to the measure of organisation of procedure of 2 June 2023, that the application under Article 263 TFEU is inadmissible, since the applicant has not demonstrated that he has a vested and present interest in having the contested decision annulled.
22      In his observations on that measure of organisation of procedure, the applicant reiterated the arguments put forward in the application in relation to this issue.
He maintains, in essence, that the desired measure, namely the suspension or termination of Frontex’s activities in the Aegean Sea, will reduce his risk of exposure, during his imminent and inevitable further crossing attempt, to fundamental rights violations committed jointly by the Hellenic Republic and Frontex against asylum seekers such as him. According to the applicant, he therefore has a personal interest in the contested decision being annulled.
23      In that regard, it should be recalled that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested measure annulled. An interest in bringing proceedings presupposes that the annulment of the contested measure must be capable, in itself, of having legal consequences, that the action may therefore, through its outcome, procure an advantage for the party who brought it and that that party has a vested and present interest in the annulment of that measure (see order of 1 March 2022, Agreiter and Others v Commission, T‑632/21, not published, EU:T:2022:135, paragraph 20 and the case-law cited).
24      In accordance with case-law, it is for the applicant to prove his or her interest in bringing proceedings. In particular, the applicant must be able to demonstrate a personal interest in the annulment of the contested measure. That interest must be vested and present and is evaluated as at the date on which the action is brought (see order of 1 March 2022, Agreiter and Others v Commission, T‑632/21, not published, EU:T:2022:135, paragraph 21 and the case-law cited).
25      If the interest upon which an applicant relies concerns a future legal situation, he or she must demonstrate that the prejudice to that situation is already certain. Therefore, an applicant cannot rely upon future uncertain circumstances to establish his or her interest in applying for the annulment of the contested measure (see order of 22 December 2021, D & A Pharma v EMA, T‑381/21, not published, EU:T:2021:960, paragraph 25 and the case-law cited).
26      As a preliminary point, it must be borne in mind that, by the present application, the applicant seeks the annulment of the decision by which Frontex, in response to an invitation to act submitted by Front-Lex in the name and on behalf of, inter alia, an anonymous person, refused to suspend or terminate its activities in the Aegean Sea. More specifically, in the contested decision, Frontex found that the conditions for adopting a decision to withdraw financing or to suspend or terminate its activities, pursuant to Article 46(4) of Regulation 2019/1896, were not satisfied in the present case, since all its activities carried out in that region had been in strict compliance with the provisions of Regulation 2019/1896, including its fundamental rights obligations.
27      In the present case, the applicant merely states that he has a personal interest in the annulment of the contested decision, without indicating or demonstrating that the annulment of that decision is capable, in itself, of having legal consequences for his situation and that the action may therefore, through its outcome, procure an advantage for him. He also claims, in an abstract and general manner, that the desired measure, namely the suspension or termination of Frontex’s activities in the Aegean Sea, in accordance with Article 46(4) of Regulation 2019/1896, is liable to have a positive effect on his situation, since it reduces his risk of exposure, at the time of his imminent and inevitable further attempt to cross the Aegean Sea, to fundamental rights violations committed jointly by the Hellenic Republic and Frontex against asylum seekers such as him.
28      In that regard, it should be noted at the outset that, contrary to what the applicant appears to consider, any annulment of the contested decision would not have the automatic effect of suspending or terminating Frontex’s activities in the Aegean Sea. It would only have the effect of leading Frontex to re-examine the conditions for adopting a decision under Article 46(4) of Regulation 2019/1896, in the light of the information of which it was aware at the material time. In accordance with the scheme of that provision, such a decision is based on the existence, on the date of its adoption, of
violations
of fundamental rights or international protection
obligations related to the activity concerned that are of a serious nature or
are likely to persist. It follows that the likelihood that the annulment of the contested decision will provide the advantage sought by the applicant depends not on the outcome of the present proceedings, but on whether, following a re-examination by Frontex of the conditions applicable
in the light of the case at hand, a decision is adopted suspending or withdrawing financing for the relevant activities under Article 46(4) of Regulation 2019/1896.
29      Consequently, it is not certain that the applicant could derive any advantage from the annulment of the contested decision. That finding applies to the past, since it is not possible retroactively to suspend or terminate activities that have now ceased, and to the future, since such an advantage, even if established, is based on the future and uncertain situation
where Frontex takes the decision sought by the applicant, which is itself conditional on the existence, on the date of its adoption, of violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.
30      Moreover, even if, in the event that the contested decision is annulled, Frontex were to take the decision sought by the applicant, that decision would not have the effect of facilitating his conditions of entry into Greece, which, as is apparent from the provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), come within the exclusive competence of the Member States. It must be pointed out, in that regard, that it is apparent from the applicant’s written pleadings that his three attempts to cross the Aegean Sea failed following intervention by the Greek police authorities.
31      Nor would that decision remedy the fundamental rights violations alleged by the applicant resulting from the expulsions to which he was subject following his crossing attempts, even if those violations were established, since, as is apparent from the applicant’s written pleadings, those expulsions were all carried out by the Greek police authorities and not by Frontex directly.
32      In addition, it must be noted that the advantage relied on by the applicant, even if established, is based on there being an imminent and inevitable further attempt to cross the Aegean Sea. However, as pointed out in paragraph 25 above, an applicant may rely on an interest concerning a future legal situation only if the prejudice to that situation is already certain.
33      In the present case, the prejudice to the legal situation referred to by the applicant is future and hypothetical.
34      The applicant merely states, in general and abstract terms, that his new attempt to cross the Aegean Sea is imminent and inevitable. However, such an intention, even if imminent or dictated by necessity, cannot guarantee that a future situation will materialise in the absence of any other factor capable of rendering it certain.
Similarly, there is no certainty at this stage that that crossing, if it had to be attempted again, would result in yet another failure.
35      Accordingly, the factors relied on by the applicant, limited to a reference to an imminent and inevitable crossing, cannot, in themselves, establish an interest in bringing proceedings.
36      In any event, it must be pointed out that the contested decision, which has the sole effect of maintaining Frontex’s activities in the Aegean Sea, does not have the consequence of depriving the applicant of the right to lodge an application for international protection with a Member State of the European Union or to enter the territory of one of those States lawfully.
37      It follows from all of the foregoing that the applicant has not adduced any evidence to support the conclusion that he had a vested and present interest in the annulment of the contested decision, within the meaning of the case-law cited in paragraphs 23 to 25 above.
38      In those circumstances, the present application must be dismissed as inadmissible, without the need to examine, first, whether the applicant is directly and individually concerned within the meaning of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 7 February 2022, Faller and Others v Commission, T‑464/21, not published, EU:T:2022:68, paragraph 24 and the case-law cited) and, second, whether the contested decision constitutes an act against which an action for annulment may be brought.
39      It follows from all of the foregoing that the action must be dismissed in its entirety as inadmissible, without the need to rule on the admissibility of Annexes D1 and D2, produced by the applicant on 26 May 2023 and relating to the substance of the case, or to order, as measures of organisation of procedure, the production by Frontex of the documents requested by the applicant, given that the Court has been able to rule on the action on the basis of the forms of order sought, the pleas in law and the arguments made during the proceedings and in the light of the annexes lodged by the parties.
Costs
40      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
41      Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by Frontex.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      ST shall pay the costs.
Luxembourg, 28 November 2023.
V. Di Bucci
M.J. Costeira
Registrar
President
*      Language of the case: English.