ORDER OF THE GENERAL COURT (Second Chamber)
6 October 2020(*)
(Action for annulment – Withdrawal of the United Kingdom from the European Union – Decision of the Representatives of the Governments of the Member States to appoint an Advocate General to the Court of Justice – Act not open to challenge – Manifest inadmissibility)
In Case T‑550/20,
Eleanor Sharpston, residing in Schoenfels (Luxembourg), represented by N. Forwood, Barrister, and J. Flynn QC,
applicant,
v
Council of the European Union,
and
Representatives of the Governments of the Member States,
represented by M. Bauer, R. Meyer and A. Sikora-Kalėda, acting as Agents,
defendants,
APPLICATION under Article 263 TFEU seeking partial annulment of Decision (EU) 2020/1251 of the Representatives of the Governments of the Member States of 2 September 2020 appointing three Judges and an Advocate General to the Court of Justice (OJ 2020 L 292, p. 1), in so far as it concerns the appointment of Mr Athanasios Rantos to the post of Advocate General at the Court of Justice,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, F. Schalin and I. Nõmm, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        Under Article 19(2) TEU, the Court of Justice is to consist of one judge from each Member State and is to be assisted by Advocates General.
2        Article 252 TFEU provides that the Court of Justice is to be assisted by eight Advocates General and that, should the Court so request, the Council of the European Union, acting unanimously, may increase the number of Advocates General.
3        Under the Declaration on Article 252 of the Treaty on the Functioning of the European Union regarding the number of Advocates General in the Court of Justice, the Representatives of the Governments of the Member States declared that if, in accordance with the first paragraph of Article 252 TFEU, the Court of Justice were to request that the number of Advocates General be increased by 3 (11 instead of 8), the Republic of Poland would, as is already the case for the Federal Republic of Germany, the French Republic, the Italian Republic, the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland, have a permanent Advocate General and no longer take part in the rotation system, which would involve five Advocates General.
4        By Council Decision 2013/336/EU of 25 June 2013 increasing the number of Advocates General of the Court of Justice of the European Union (OJ 2013 L 179, p. 92), following the request made by the Court of Justice, the number of Advocates General was increased from 8 to 11.
5        In 2005, on the nomination of the Government of the United Kingdom of Great Britain and Northern Ireland, the representatives of the governments of the Member States appointed the applicant, Ms Eleanor Sharpston, to the Court of Justice to serve as an Advocate General for the remainder of the mandate of her predecessor, that is, until 6 October 2009. In 2009, following a new proposal from the same government, the applicant was appointed as Advocate General at the Court of Justice for a new six-year mandate for the period from 7 October 2009 to 6 October 2015. Finally, upon re-nomination by the same government, Decision (EU, Euratom) 2015/578 of the Representatives of the Governments of the Member States of 1 April 2015 appointing Judges and Advocates General to the Court of Justice (OJ 2015 L 96, p. 11) appointed the applicant to serve as Advocate General for the period from 7 October 2015 to 6 October 2021.
6        On 29 January 2020, the representatives of the governments of the Member States adopted the Declaration by the Conference of the Representatives of the Governments of the Member States on the consequences of the withdrawal of the United Kingdom from the European Union for the Advocates General of the Court of Justice of the European Union.
7        In that declaration, it was noted that since the United Kingdom of Great Britain and Northern Ireland had initiated the procedure laid down in Article 50 TEU for withdrawal from the European Union, the Treaties would cease to apply to that Member State from the date of entry into force of the Withdrawal Agreement. In addition, it was noted that the mandates of members of the institutions, bodies, offices and agencies of the European Union nominated, appointed or elected in relation to the membership of the European Union of the United Kingdom of Great Britain and Northern Ireland would end on the date of the withdrawal. Thus, the permanent post of Advocate General assigned to the United Kingdom of Great Britain and Northern Ireland by the Declaration on Article 252 of the Treaty on the Functioning of the European Union regarding the number of Advocates General in the Court of Justice, would be included in the rotation system among the Member States for the appointment of Advocates General.
8        By letter of 31 January 2020, addressed to the President of the Council, the President of the Court of Justice took note that it was apparent from the declaration of 29 January 2020 referred to in paragraph 6 above that an Advocate General’s post would be vacant at the Court of Justice as from 1 February 2020. He requested that the Member States provide for the appointment of an Advocate General to that post, while specifying that the Advocate General occupying that post would continue to hold office until her successor took up his or her duties.
9        By Decision (EU) 2020/1251 of the Representatives of the Governments of the Member States of 2 September 2020 appointing three Judges and an Advocate General to the Court of Justice (OJ 2020 L 292, p. 1; ‘the contested decision’), Mr Athanasios Rantos was appointed Advocate General of the Court of Justice for the period from 7 September 2020 to 6 October 2021, following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union.
Procedure, forms of order sought and facts subsequent to the bringing of the action
10      By application lodged at the Registry of the General Court on 4 September 2020, the applicant brought the present action.
11      By separate document lodged at the Registry of the General Court on the same day, the applicant requested that the present action be dealt with under an expedited procedure, in accordance with Article 152 of the Rules of Procedure of the General Court. On 22 September 2020, the Council and the representatives of the governments of the Member States lodged their observations on that request.
12      The applicant claims that the General Court should:
–        partially annul the contested decision, in so far as it concerns the appointment of Mr Rantos to the post of Advocate General at the Court of Justice, for the period from 7 September 2020 to 6 October 2021;
–        order the Council and the representatives of the governments of the Member States to pay the costs.
13      By separate document lodged at the Registry of the General Court on 4 September 2020, the applicant made an application for interim measures seeking that the operation and all consequential effects of the contested decision, in so far as it concerns the appointment of Mr Rantos to the post of Advocate-General at the Court of Justice be suspended. The applicant inter alia requested, under Article 157(2) of the Rules of Procedure, that the interim measures requested be granted before 7 September 2020 or as soon as possible thereafter.
14      By order of 4 September 2020, Sharpston v Council and Representatives of the Governments of the Member States (T‑550/20 R, not published, EU:T:2020:416), the judge of the General Court hearing the application for interim measures, pursuant to Article 157(2) of the Rules of Procedure, provisionally upheld the request for interim measures until the order terminating the proceedings for interim relief was made, and the costs were reserved.
15      By applications lodged at the Registry of the Court of Justice on 5 September 2020, the Council and the Representatives of the Governments of the Member States, each lodged an appeal against the order of 4 September 2020, Sharpston v Council and Representatives of the Governments of the Member States
(T‑550/20 R, not published, EU:T:2020:416), under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union.
16      By orders of 10 September 2020, Council v Sharpston (C‑423/20 P(R), not published, EU:C:2020:700) and of 10 September 2020, Representatives of the Governments of the Member States v Sharpston (C‑424/20 P(R), not published, EU:C:2020:705), the order of the judge of the General Court hearing an application for interim measures was annulled.
17      In essence, the Vice-President of the Court of Justice considered that the condition concerning a prima facie case so that the stay of proceedings and other interim measures requested by the applicant could be granted by the judge hearing the application for interim measures was not satisfied in the present case, in so far as the action in the main proceedings must be considered, prima facie, manifestly inadmissible to the extent that it was directed against the Council, which was not the author of the contested decision. In addition, she considered that that action should also be regarded as being,  prima facie, manifestly inadmissible to the extent that it was directed against the representatives of the governments of the Member States, which, acting in their capacity as representatives of their governments and thus collectively exercising the competences of the Member States, were not subject to judicial review by the EU Courts. It concluded that, by granting the request for interim relief, even on a provisional basis, the judge of the General Court hearing an application for interim measures erred in law.
18      In those circumstances, the appeals were upheld and the order of 4 September 2020, Sharpston v Council and Representatives of the Governments of the Member States (T‑550/20 R, not published, EU:T:2020:416), was annulled.
19      In addition, under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Vice-President of the Court of Justice considered that the state of the proceedings was such that she was in a position to give a final ruling in the matter. In that regard, she considered that since the action in the main proceedings was, prima facie, manifestly inadmissible, the application for interim measures must be dismissed.
20      In those circumstances, the application for interim measures made by the applicant in Case T‑550/20 R, Sharpston v Council and Representatives of the Governments of the Member States, was dismissed in its entirety.
21      On 10 September 2020, Mr Rantos took a formal oath during a public hearing for the delivery of judgments and Opinions of the Court of Justice, thereby taking up his duties as a new Advocate General at the Court of Justice.
Law
22      Under Article 126 of the Rules of Procedure, where it is clear that the General Court has no jurisdiction to hear and determine an action, it may decide to give a decision by reasoned order without taking further steps in the proceedings.
23      In this instance, the General Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
24      In the present case, the applicant asks the General Court to annul the contested decision in part, in so far as it concerns the appointment of Mr Rantos to the post of Advocate General at the Court of Justice, for the period from 7 September 2020 to 6 October 2021. According to the applicant, Mr Rantos’s appointment to the post of Advocate General, which has the effect of replacing her and thus preventing her from holding office while her six-year mandate has not yet expired, was decided in breach of the Treaties and rules of law relating to their application.
25      In support of her action, the applicant relies on four pleas in law. The first alleges an error of law in the interpretation of Article 50(3) TEU, the second, infringement of the constitutional principle of the independence of the judiciary in EU law, the third, infringement of the procedures laid down by the Statute of the Court of Justice of the European Union to relieve a member of his or her duties, and the fourth, a lack of proportionality on legitimate and compelling grounds justifying the premature termination of her mandate.
26      As regards the jurisdiction of the General Court to rule on the present action, in the first place, the applicant claims that there are clear structural links between the decisions of the intergovernmental conferences of the Member States concerning the appointment of members of the Court of Justice, on the one hand, and the provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union, on the other hand.
27      In the second place, the applicant maintains that, in so far as the contested decision in reality creates legal effects within the EU legal order, the General Court has jurisdiction to review those aspects of that decision. Thus, she submits that if the General Court concludes that the legal effects generated by the contested decision are contrary to EU primary law, it has jurisdiction to declare that that decision is unlawful and of no effect within the EU legal order.
28      In the third place, the applicant claims that the action concerns the question whether her mandate was terminated automatically pursuant to Article 50(3) TEU, that question falling within the scope of primary EU law, that is, the Statute of the Court of Justice of the European Union. In that sense, the contested decision is not simply the expression or recognition of a voluntary coordination on the part of the Member States, but was designed to lay down a course of action binding on both the institutions and the Member States, which is capable of derogating from the procedures laid down by the Statute of the Court of Justice of the European Union and having definite legal effects. Thus, in reliance on the judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32), she maintains that an action seeking review of such a decision is admissible.
29      In the fourth place, relying on the judgment of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166), the applicant claims that the fact that the Conference of the Representatives of the Governments of the Member States is not expressly referred to in the Treaties as a body whose acts may be challenged, is no obstacle to the admissiblity of the present action, either on account of the fact that that conference may be considered to be an EU organ or, at the very least, by virtue of the general requirement that the interpretation of admissibility and jurisdiction of the EU Courts must respect the complete system of legal remedies and procedures established by the Treaties and avoid arriving at a result contrary both to the spirit of the Treaty, as expressed in the second sentence of Article 19(1) TEU, and to its system.
30      In the fifth place, the applicant claims that, in so far as the contested decision was concluded on the basis of a collective action by the representatives of the governments of the Member States, it encroaches on the exclusive powers granted to the Court of Justice, by virtue of the Statute of the Court of Justice of the European Union, with the result that the General Court has jurisdiction to review whether that decision indeed affects those powers.
31      First, in so far as the present action is directed against the Council, it must be noted that it is apparent from the content of the contested decision that it was not adopted by the Council but by the representatives of the governments of the Member States, on the basis of Article 253(1) TFEU.
32      Accordingly, as it was, moreover, indicated in the order of 10 September 2020, Council v Sharpston (C‑423/20 P(R), not published, EU:C:2020:700, paragraph 24), the action is manifestly inadmissible to the extent that it is directed against the Council.
33      In so far as the present action is directed against the representatives of the governments of the Member States, it must be noted that the jurisdiction of the General Court is that set out in Article 256 TFEU, as specified in Article 51 of the Statute of the Court of Justice of the European Union. Under those provisions, the General Court has jurisdiction to hear and determine actions brought under Article 263 TFEU only against acts of the institutions, bodies, offices or agencies of the European Union.
34      In that connection, it is necessary to recall the case-law according to which it is clear from Article 263 TFEU that acts adopted by representatives of the Member States, acting not in their capacity as members of the Council of the European Union or of the European Council but as representatives of their governments, and thus collectively exercising the powers of the Member States, are not subject to judicial review by the EU Courts (judgment of 30 June 1993, Parliament v Council and Commission, C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12).
35      In addition, it must be noted that the Court of Justice stated that acts by which Judges and Advocates General of the Court of Justice are appointed, in accordance with Article 253(1) TFEU, were adopted by common accord of the governments of the Member States (order of 10 September 2020, Representatives of the Governments of the Member States v Sharpston, C‑424/20 P(R), not published, EU:C:2020:705, paragraph 27).
36      More specifically, the Court of Justice has considered that an action was manifestly inadmissible to the extent that it sought the annulment of a decision taken not by an institution, body, office or agency of the Union but by representatives of the governments of the Member States exercising the powers of those States, with the consequence that such a decision was not subject to the judicial review that is exercised by the Court of Justice of the European Union on the basis of Article 263 TFEU (order of 10 September 2020, Representatives of the Governments of the Member States v Sharpston, C‑424/20 P(R), not published, EU:C:2020:705, paragraph 28).
37      In the present case, it must be noted that the applicant asks the Court to annul the contested decision in part, in so far as it concerns the appointment of Mr Rantos to the post of Advocate General at the Court of Justice, for the period from 7 September 2020 to 6 October 2021.
38      In that regard, it is sufficient to point out that it follows from the case-law cited in paragraphs 34 to 36 above that acts adopted by the representatives of the governments of the Member States are not subject to judicial review by the EU Courts.
39      In those circumstances, it must be held that the present action must be dismissed as manifestly inadmissible, without it being necessary to rule on the request for an expedited procedure.
Costs
40      Under Article 133 of the Rules of Procedure, the General Court is to give a decision as to costs in the judgment or order which closes the proceedings.
41      In accordance with Article 158(5) of the Rules of Procedure, in decisions of the General Court on the substance of a case, that court is to give a decision as to costs relating to the proceedings for interim relief. In addition, since, in the orders of 10 September 2020, Council v Sharpston (C‑423/20 P(R), not published, EU:C:2020:700) and of 10 September 2020, Representatives of the Governments of the Member States v Sharpston (C‑424/20 P(R), not published, EU:C:2020:705), the costs were reserved, it is for the General Court also to rule on the costs relating to those appeal proceedings.
42      Furthermore, 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.
43      Since the action has been dismissed as manifestly inadmissible in Case T‑550/20, and the applicant was unsuccessful in Case T‑550/20 R, the applicant must be ordered to pay, in addition to her own costs, those incurred by the Council and the Representatives of the Governments of the Member States, including those incurred before the General Court and the Court of Justice in Cases T‑550/20 R, C‑423/20 P(R) and C‑424/20 P(R).
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      The action is dismissed.
2.      Ms Eleanor Sharpston shall bear her own costs and pay those incurred by the Council of the European Union and the Representatives of the Governments of the Member States, including those incurred in the proceedings for interim relief before the General Court and the Court of Justice in Cases T‑550/20 R, C‑423/20 P(R) and C‑424/20 P(R).
Luxembourg, 6 October 2020.
E. Coulon
V. Tomljenović
Registrar
President
*      Language of the case: English.