62023TO0244
ORDER OF THE GENERAL COURT (Fourth Chamber)
26 October 2023 (
*1
)
(Action for failure to act – Institutional law – Full application of the provisions of the Schengen acquis in Romania – Obligation to adopt a decision pursuant to Article 4 of the Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union – Status of privileged applicant – Action manifestly lacking any foundation in law)
In Case T‑244/23,
Eugen Tomac, residing in Brussels (Belgium), represented by R. Duta, lawyer,
applicant,
v
Council of the European Union,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and I. Reine, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1
By his action based on Article 265 TFEU, the applicant, Mr Eugen Tomac, asks the Court, in essence, first, to declare 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, secondly, to grant him the status of privileged applicant and thus to reserve to him all rights, pleas and actions in that context.
Background to the dispute
2
The Schengen acquis, as mentioned in Article 1, which refers to Annex A, of 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), is a body of law aimed at the gradual abolition of checks at the common borders within the Member States of the Schengen area.
3
The Treaty of Amsterdam annexed to the EU Treaty and the EC Treaty the Protocol integrating the Schengen acquis into the framework of the European Union (OJ 1997 C 340, p. 93). Subsequently, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, annexed to the EU Treaty (OJ 2008 C 115, p. 290), was annexed to the Treaty of Lisbon (OJ 2010 C 83, p. 290).
4
In particular, as regards Romania, Article 4(1) and (2) of the 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), provides:
‘1.   The provisions of the Schengen acquis, … 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 [the Republic of] 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 [the Republic of] Bulgaria and Romania from the date of accession, shall only apply in each of those States pursuant to a European decision of the Council 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. …’
5
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.
6
On 29 September 2010 and 8 July 2011, the Presidency of the Council drew up, and subsequently amended, a first draft Council Decision on the full application of the provisions of the Schengen acquis in the Republic of Bulgaria and in Romania, namely Draft No 14142/10, now Draft No 14142/1/10 (‘Draft No 14142/10’).
7
By resolution of 8 June 2011 on Draft No 14142/10 (OJ 2012 C 380E, p. 160), the Parliament adopted a position in favour of that draft.
8
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 (9166/3/11 REV 3), 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.
9
Although it had been agreed on 24 June 2011 that the decision on Romania’s accession to the Schengen area should be taken by September 2011 at the latest, the Council nevertheless postponed the vote on the adoption of that decision at a meeting on 22 September 2011.
10
By resolution of 13 October 2011 on the Accession of Bulgaria and Romania to Schengen (OJ 2013 C 94E, p. 13), the Parliament reiterated its support for Romania’s accession to the Schengen area. It invited the Council to take the necessary measures for that purpose.
11
Draft Council Decision No 14302/3/11 of 7 December 2011, drawn up by the Presidency of the Council, did not lead to a vote of the Council, at a meeting on 9 December 2011.
12
By resolution of 11 December 2018 on the full application of the provisions of the Schengen acquis in Bulgaria and Romania: abolition of checks at internal land, sea and air borders (OJ 2020 C 388, p. 18), the Parliament called on the Council, first, to present as soon as possible a new draft decision on the full application of the provisions of the Schengen acquis in Romania, on the basis of Draft No 14142/10 and, secondly, by means of a single legal act, to take an immediate decision for the purpose of abolishing controls at internal borders.
13
Subsequently, the European Commission confirmed that Romania satisfied the necessary conditions for the provisions of the Schengen acquis to be recognised as applicable in that State and invited the Council to take the necessary measures for that purpose in a first Communication to the European Parliament and the Council of 2 June 2021, ‘A strategy towards a fully functioning and resilient Schengen area’ (COM(2021) 277 final), and then in a second Communication to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions of 24 May 2022 entitled ‘State of Schengen Report 2022’ (COM(2022) 301 final).
14
By resolution of 18 October 2022 on the accession of Romania and Bulgaria to the Schengen area (OJ 2023 C 149, p. 11), the Parliament again called on the Council to do everything necessary to adopt a decision on the full application of the provisions of the Schengen acquis in Romania by the end of 2022.
15
An expert report of 21 October 2022, drawn up, under the authority of the Commission, in the context of a voluntary based fact-finding mission to Bulgaria and Romania on the application of the Schengen acquis and its developments since 2011 (13906/22), 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. In a Communication to the European Parliament and the Council of 16 November 2022 entitled‘Making Schengen stronger with the full participation of Bulgaria, Romania and Croatia in the area without internal border controls’ (COM(2022) 636 final), the Commission renewed its invitation to the Council to admit Romania to the Schengen area.
16
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 Bulgaria and Romania (‘Draft No 15218/22’).
17
On 8 December 2022, the Justice and Home Affairs (JHA) configuration of the Council sat in order to rule, in respect of the political governance of the Schengen area (namely, the Schengen Council) and non-legislative activities, 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. At that meeting, 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.
18
The applicant is a Member of the European Parliament of Romanian nationality.
19
By email of 15 December 2022, the applicant asked the Director-General for JHA of the General Secretariat of the Council whether it would be possible for her to communicate to him the results of the vote on the full application of the Schengen acquis in Romania, which was on the agenda for the Council meeting of 8 December 2022, and the minutes of that meeting or the report relating thereto.
20
By email of 16 December 2022, the Director-General for JHA of 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 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 procedure were not made public either.
21
By document lodged at the Court Registry on 6 February 2023, the applicant brought, under Article 263 TFEU, an action for annulment of the ‘decision’ of the Council of 8 December 2022 leading to the non-adoption of Draft No 15218/22. That action was registered as Case T‑48/23.
22
By letter of 6 February 2023, 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. In support of that request, the applicant set out, in essence, the background to the dispute and the arguments he had raised in support of his action for annulment in Case T‑48/23. In that regard, he particularly relied on a breach of the principles of equality, non-discrimination and sincere cooperation between Member States. The applicant further added that, ‘in so far as it [was] set out that Romania satisfied the conditions of the evaluation procedure, its integration could not be dismissed on the pretext of the unjustified opposition of a single … Member State’ and that the Council ‘[had] to disregard a manifestly unjustified opposition for the purpose, in particular, of Article 4 of the Protocol [to the Act] of Accession of Romania to the Union’.
23
By letter of 13 April 2023, the Director-General for General and Institutional Policy (GIP) of the Council replied to the applicant. He reminded the applicant of the condition of unanimity laid down in Article 4(2) of the Protocol to the Act of Accession of Romania to the Union, compliance with which was necessary for the adoption of a decision within the meaning of that article. Subsequently, he explained to the applicant 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 of Romania to the Union.
Form of order sought by the applicant
24
The applicant claims, in essence, that the Court should:
–
declare the wrongful failure of the Council 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;
–
grant him the status of privileged applicant and thus reserve to him all rights, pleas and actions in that context;
–
order the Council to pay the costs.
Law
25
Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the Court may at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
26
In the present case, the Court considers that it has been sufficiently informed by the documents in the file and decides, pursuant to that article, to give judgment without taking further steps in the proceedings.
27
As set out in Article 265 TFEU:
‘Should [a Union institution, body, office or agency], in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. …
[The action for failure to act] shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.
Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.’
28
It should be noted at the outset that, according to the case-law, 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 (orders of 6 July 1998, Goldstein v Commission, T‑286/97, EU:T:1998:150, paragraph 24, and of 6 September 2011, Mugraby v Council and Commission, T‑292/09, not published, EU:T:2011:418, paragraph 34), 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 those persons are the potential addressees or which they could challenge in annulment proceedings (order of 27 November 2012, H-Holding v Parliament, T‑672/11, not published, EU:T:2012:628, paragraph 16).
29
Thus, in order to rule on the substance of a claim for a declaration of a failure to act, it is necessary for the Court to determine whether, at the time of the call to act addressed to the institution, body, office or agency concerned within the meaning of the second paragraph of Article 265 TFEU, that institution, body, office or agency was under a duty to act in the manner requested by the applicant in the call to act (see, to that effect, order of 17 July 2020, Wagenknecht v European Council, T‑715/19, EU:T:2020:340, paragraph 34 and the case-law cited).
30
In that respect, in the present case, it should be noted that Article 4 of the Protocol to the Act of Accession of Romania to the Union does not set any time limit, on the expiry of which a Council decision under that article must or is deemed to have been taken (see paragraph 4 above).
31
Furthermore, it follows from the scheme of that article and, in particular, from the vote provided for therein and the condition of unanimity which it raises, that the representatives of the Governments of the Member States concerned are not obliged to adopt in all circumstances a decision within the meaning of that provision, 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 position in a particular direction when a draft decision is being discussed (see, to that effect and by analogy, judgments of 14 February 1989, Star Fruit v Commission, 247/87, EU:C:1989:58, paragraph 11, and of 5 September 2023, Parliament v Commission(Visa exemption for nationals of the United States), C‑137/21, EU:C:2023:625, paragraphs 57 to 62).
32
In that regard, it is important to point out that the Director-General responsible for the GIP of the Council rightly mentioned to the applicant, in response to his invitation to act of 6 February 2023, that his request could not be granted as regards the adoption of a decision on the full application of the provisions of the Schengen acquis in Romania without taking account of the vote leading to the non-adoption of Draft No 15218/22, in so far as the Council could not lawfully ignore the lack of unanimity of the representatives of the Member States concerned, 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. Thus, that reason justified the failure to adopt a decision in compliance with those conditions and, consequently, the continuation of negotiations in that regard (see paragraph 23 above).
33
Consequently, it must be concluded that, at the time when the applicant invited the Council to act, it was under no obligation to adopt a decision under Article 4 of the Protocol to the Act of Accession of Romania to the Union. On the contrary, it was for the Council to act in compliance with the condition of unanimity expressly laid down in Article 4 of the Protocol to the Act of Accession of Romania to the Union.
34
Moreover, it should be observed that, in light of the fact that the Presidency of the Council drew up Drafts Nos 14142/10, 14302/3/11 and 15218/22, the Council did not refrain, 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 Protocol to the Act of Accession of Romania to the Union, as subsequently requested, in essence, by the applicant.
35
Consequently, it is clear that, by refusing to act on the applicant’s invitation to act, and irrespective of whether a Member State’s opposition to the adoption of the draft at issue could infringe the principle of sincere cooperation between Member States, the Council did not, in any event, unlawfully fail to act under Article 4 of the Protocol to the Act of Accession of Romania to the Union, which forms part of primary law in the same way as the Treaties.
36
It follows that the Council did not, in the present case, unlawfully fail to act within the meaning of Article 265 TFEU. Therefore, it must be concluded that the first head of claim seeking, in essence, 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 must be dismissed as manifestly lacking any foundation in law.
37
In addition, as regards the second head of claim, by which the applicant requests, in essence, that he be granted the status of privileged applicant, and thus that he be reserved all rights, pleas and actions in that context, it should be noted that, under the second paragraph of Article 263 TFEU, the status of privileged applicant is recognised exhaustively in respect of a Member State, the Parliament, the Council or the Commission. In those circumstances, the applicant cannot be granted that status in the present case.
38
Accordingly, the second head of claim must also be dismissed as manifestly lacking any foundation in law.
39
In the light of all the foregoing considerations, the action must be dismissed in its entirety as manifestly lacking any foundation in law, without it being necessary to serve it on the Council.
Costs
40
Since the order was adopted before service of the application on the Council and before the latter could have incurred any costs, it is sufficient to decide that the applicant must bear his own costs, in accordance with Article 133 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.
The action is dismissed as manifestly lacking any foundation in law.
2.
Mr Eugen Tomac shall bear his own costs.
Luxembourg, 26 October 2023.
V. Di Bucci
Registrar
R. Da Silva Passos
President
(
*1
)	Language of the case: French.