62023CO0732
ORDER OF THE COURT (Sixth Chamber)
8 July 2024 (
*1
)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Law governing the institutions – Article 263 TFEU – Action for annulment – Full application of the provisions of the Schengen acquis in Romania – Absence of a challengeable act – Absence of the required unanimity – Manifest inadmissibility of the action at first instance – Appeal manifestly unfounded)
In Case C‑732/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 November 2023,
Răzvan-Eugen Nicolescu, residing in Bucharest (Romania),
Exclusive Car Trading SRL, established in Băicoi (Romania),
Asociația pentru Energie Curată și Combaterea Schimbărilor Climatice, established in Bucharest,
represented by Y. Beşleagă, M. Bodea, D.S. Bogdan, C. Pintilie and V. Stoica, avocaţi,
appellants,
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: M. Campos Sánchez-Bordona,
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 their appeal, Mr Răzvan-Eugen Nicolescu, Exclusive Car Trading SRL and the Asociația pentru Energie Curată și Combaterea Schimbărilor Climatice (Association for Clean Energy and Combating Climate Change) seek to have set aside the order of the General Court of the European Union of 26 October 2023, Nicolescu and Others v Council (T‑272/23, ‘the order under appeal, EU:T:2023:694), by which the General Court dismissed their action brought on the basis of Article 263 TFEU seeking annulment of the ‘decision’ of the Council of the European Union of 8 December 2022 leading to the non-adoption of Draft Council Decision No 15218/22 on the full application of the provisions of the Schengen acquis in Bulgaria and Romania (‘the act at issue’).
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 [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 18 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.
4
The appellants are a Romanian national who is a member of the European Institute of Innovation and Technology (EIT), a company established in Romania active in the international transport sector and a Romanian non-governmental organisation seeking to promote environmental protection.
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 decisions on the full application of the provisions of the Schengen acquis in Romania.
7
In its conclusions of 9 June 2011 on the completion of the process evaluating Romania’s preparedness 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 met in Romania, it concluded that the Council could take the decision referred to in Article 4(2) of the Act of Accession.
8
The two draft decisions on the full application of the provisions of the Schengen acquis in Romania drawn up by the Presidency of the Council 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.
9
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.
10
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.
11
On 22 March 2023, the appellants received notification of the minutes of that meeting and thus became aware of that Draft No 15218/22 had not been adopted.
The action before the General Court and the order under appeal
12
By application lodged at the Registry of the General Court on 19 May 2023, the appellants brought an action under Article 263 TFEU seeking to have the act at issue set aside.
13
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 being manifestly inadmissible.
14
The General Court found, first of all, in paragraph 28 of the order under appeal, that the Council decision, referred to in Article 4(2) of the Act of Accession, could exist, despite the Schengen evaluation procedures having been completed, and then produce binding legal effects for the appellants, only if it had been adopted unanimously under the conditions laid down in the second subparagraph of that Article 4(2).
15
The General Court then pointed out, first, in paragraph 29 of the order under appeal, that, despite the Schengen evaluation procedures having been completed and several resolutions of the Parliament having been adopted, the unanimity of the representatives of the Governments of the Member States concerned required under Article 4(2) of the Act of Accession had not been obtained in the Council during the vote on Draft No 15218/22 and, second, in paragraph 30 of that order, that Article 4 of the Act of Accession did not set any time limit on the expiry of which the Council’s decision was to be taken or was deemed to have been taken.
16
The General Court held, in paragraph 31 of that order, that it would be in conflict with the wording of that article, which expressly provides for a procedure in several stages and without setting any time limit for that purpose, to make it a condition of the successful completion of the prior stages that the Council’s power to adopt, by unanimity of the representatives of the Governments of the Member States concerned, a decision within the meaning of that article, should lapse and that, therefore, the Council decision provided for in that article cannot be regarded as an act which merely confirms that the ‘technical criteria’ laid down earlier in the context of the Schengen evaluation procedures have been met.
17
In addition, the General Court stated, in paragraph 32 of the order under appeal, that it remained open to the Council to put Draft No 15218/22 back on the agenda of a further meeting or to the Presidency of the Council to draw up a new draft Council decision on the full application of the provisions of the Schengen acquis in Romania.
18
Accordingly, in paragraph 33 of that order, the General Court concluded that, since the required unanimity had not been reached at the time of the vote on Draft No 15218/22, no Council decision had been taken, as provided for in Article 4(2) of the Act of Accession, and that the vote leading to that draft not being adopted did not, as such, amount to a refusal by the Council to take such a decision at a later stage.
19
Consequently, the General Court held, in paragraph 34 of that order, that the act at issue could not be regarded as being a challengeable act as provided for in Article 263 TFEU.
Forms of order sought by the parties and the procedure before the Court
20
By their appeal, lodged on 30 November 2023, the appellants request the Court to set aside the order under appeal.
The appeal
21
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.
22
It is appropriate to apply that provision in the present case.
23
In support of their appeal, the appellants raise three grounds of appeal, alleging, first, an error of law in that, when determining whether the act at issue has legal effects, the General Court ought to have taken into account the right of free movement of EU citizens and the obligation on both the European Union and the Member States to accept the full application of the provisions of the Schengen acquis once the technical conditions laid down in Article 4(2) of the Act of Accession have been met, second, an error of law in that the act at issue constitutes a challengeable act against which an action for annulment may be brought in accordance with Article 263 TFEU, and, third, raised in the alternative, an error of law in that the failure to adopt an act could constitute a challengeable act as provided for in that article, in exceptional circumstances.
The first and second grounds of appeal
24
By the first and second grounds of appeal, which it is appropriate to examine together, in the first place, the appellants submit, in essence, that paragraph 28 of the order under appeal is vitiated by error since the General Court ought to have classified the act at issue as a ‘challengeable act’ as provided for in Article 263 TFEU.
25
In that regard, it should be recalled that it is settled case-law that an action for annulment may, under the fourth paragraph of Article 263 TFEU, read in conjunction with the first paragraph thereof, be brought against all measures or acts adopted by the EU institutions, bodies, offices and agencies, whatever their form, which are intended to have binding legal effects which are capable of affecting the interests of a natural or legal person by bringing about a distinct change in their legal position. In order to ascertain whether an act has such effects and may, consequently, be the subject of such an action, it is necessary to examine the substance of that act and to assess those effects in the light of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution, body, office or agency which adopted the act (judgment of 18 June 2024, Commission v SRB, C‑551/22 P, EU:C:2024:520, paragraph 65 and the case-law cited).
26
As regards the context in which the act at issue was adopted and the powers of the EU institution which adopted it, it should be noted that Article 4(2) of the Act of Accession provides for a number of procedural stages and that only the completion of all those stages can lead to the full application of the provisions of the Schengen acquis in Romania. Those stages include verification, in accordance with the applicable Schengen evaluation procedures, that the necessary conditions for the application of all the parts concerned of the acquis are met in the State in question, a consultation of the Parliament (together, ‘the technical conditions’) and the adoption of a Council decision, acting unanimously, on the full application of the provisions of that acquis in Romania.
27
In addition, it must be stated that, as regards the content of the act at issue, it consists, as stated by the General Court in paragraph 17 of the order under appeal, of a finding, at the meeting of the JHA configuration of the Council of 8 December 2022, that Draft No 15218/22 for a Council decision on the full application of the provisions of the Schengen acquis in Romania had not been adopted in the absence of the unanimity of votes of the representatives of the Governments of the Member States during the vote on that draft.
28
Having regard to the substance of the act at issue, which the General Court duly took into account, it is necessary to reject the appellants’ argument that that vote constitutes a position adopted by the Council not to apply in full the Schengen acquis since it had been agreed that the decision referred to in Article 4(2) of the Act of Accession was to be adopted by September 2011 at the latest and that, on that date, the Council postponed that vote.
29
Although it is true that it was agreed, on 24 June 2011, that that decision was to be taken by September 2011 at the latest, that does not amount to the adoption of a Council decision, as provided for in that provision, which is subject to the conditions set out in paragraph 26 of the present order and, in particular, to a procedural condition, namely the condition of unanimity within that institution.
30
Consequently, the General Court did not err in law in holding, in paragraph 28 of the order under appeal, that the Council decision, within the meaning of Article 4(2) of the Act of Accession, could exist, despite the completion of the Schengen evaluation procedures, and accordingly have binding legal effects on the appellants, only if it was adopted unanimously subject to the conditions set out in that provision.
31
That conclusion cannot be called into question by the appellants’ arguments based on the judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32). It is true that the Court held in that judgment that the proceedings of the Council of 20 March 1970 relating to the negotiation and conclusion, by the Member States of the European Economic Community, of the European Agreement concerning the work of crews of vehicles engaged in international road transport constituted a challengeable act for the purposes of the first sentence of the first paragraph of Article 173 EC (now the first paragraph of Article 263 TFEU).
32
Nevertheless, in the case which gave rise to that judgment, the Council had reached, during that meeting, a number of ‘conclusions’ on the attitude to be taken by the governments of the Member States in the decisive negotiations on that agreement. The Court had found that the purpose of those proceedings of the Council was to lay down a course of action binding on both the institutions and the Member States and that the Council had adopted measures which were capable of derogating from the procedures laid down by the Treaty regarding negotiations with third countries, which was why those proceedings had given rise to binding legal effects, irrespective of their nature or form. (see, to that effect, judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraphs 44 and 53 to 55). However, the act at issue did not give rise to such effects.
33
Similarly, contrary to the appellants’ assertions, the General Court cannot be criticised for having applied by analogy the judgment of 13 July 2004, Commission v Council (C‑27/04, EU:C:2004:436), in paragraphs 28 and 34 of the order under appeal, in which the Court of Justice held that, where the required majority is not achieved by a vote in the Council, no decision is taken, for the purpose of Article 104(8) and (9) EC (now Article 126(8) and (9) TFEU), that there is no provision of Community law prescribing a period on the expiry of which an implied decision under that provision is deemed to arise and establishing the content of that decision, and that the failure to adopt acts provided for in that provision cannot be regarded as giving rise to acts open for challenge for the purposes of Article 230 EC (now Article 263 TFEU) (judgment of 13 July 2004, Commission v Council, C‑27/04, EU:C:2004:436, paragraphs 31, 32 and 34).
34
While, as the appellants point out, in the case which gave rise to the latter judgment, the Court stated that, in that situation, the European Commission could have recourse to an action for failure to act, it must be recalled that, in addition to the EU institutions, on the basis of the first paragraph of Article 265 TFEU, a natural or legal person may also bring an action for failure to act under the conditions laid down in the third paragraph of Article 265 TFEU. Nevertheless, first, it is not apparent from the file submitted to the Court that the Council was invited to act in the present case and, second, it is for the Council to act in compliance with the condition of unanimity referred to in paragraph 26 of the present order.
35
In addition, the appellants’ argument – that it is neither correct nor relevant that there is allegedly no time limit on the expiry of which the Council’s decision was to be taken or would be deemed to have been taken – is based on a misreading of paragraph 30 of the order under appeal.
36
As is apparent from paragraph 29 of the present order, the adoption of a Council decision, in accordance with Article 4(2) of the Act of Accession, is subject not only to the technical conditions but also to a procedural condition, namely that of a unanimous vote within that institution.
37
In that regard, the case-law resulting from the judgment of 19 November 2013, Commission v Council (C‑63/12, EU:C:2013:752), relied on by the appellants, is irrelevant in the present case. In the case which gave rise to that judgment, the contested decision was a Council decision by which that institution had rejected a Commission proposal for a regulation submitted on the basis of Article 3 of Annex XI to the Staff Regulations of Officials of the European Union.
38
The Court held in that regard that the Council had not deferred but rejected that proposal, as was apparent from the recitals of that decision, thereby bringing to an end the ‘normal’ procedure for the annual adjustment of remuneration and pensions, provided for in Article 3(1) of Annex XI to the Staff Regulations and commenced under Article 3 thereof, before concluding that the purpose of the contested decision was to produce binding legal effects (judgment of 19 November 2013, Commission v Council, C‑63/12, EU:C:2013:752, paragraphs 32 and 33).
39
It must be stated that, in the present case, the act at issue does not bring to an end the Schengen evaluation procedure concerning Romania and is therefore not definitive.
40
Consequently, the General Court also did not err in law when it held, in paragraph 32 of the order under appeal, that it remained open to the Council to put Draft No 15218/22 back on the agenda of a further meeting or the Presidency of the Council to draw up a new draft Council decision on the full application of the provisions of the Schengen acquis in Romania.
41
In the second place, the appellants submit that, when determining whether the act at issue has legal effects, the General Court ought to have taken into account both the right of free movement of EU citizens and the obligation on both the European Union and the Member States, arising from the principles of sincere cooperation and mutual trust, to accept the full application of the provisions of the Schengen acquis in Romania once the technical conditions laid down in Article 4(2) of the Act of Accession have been met, as in the present case.
42
First, as is apparent from paragraphs 26 and 29 of the present order, there is nothing to suggest that the adoption of a decision referred to in Article 4(2) of the Act of Accession is subject only to the fulfilment of the technical conditions and not to that of all the procedural steps set out in that provision, including a Council decision which has been adopted unanimously. On the contrary, it is for that institution to comply with that condition of unanimity.
43
Second, as regards an alleged infringement of the free movement of Romanian citizens within the European Union, the appeal contains no concrete evidence to support the conclusion that the complaints raised concern a rule of EU law which could be applicable to Romania under Article 4(1) and (2) of the Act of Accession, read in conjunction with Annex II thereto.
44
Moreover, as regards the allegedly discriminatory treatment of Romania as compared with the Republic of Croatia, it should be noted that the appellants do not explain how such a difference in treatment, even if it were established, would have influenced the adoption of a Council decision, as provided for in Article 4(2) of the Act of Accession.
45
Consequently, the General Court did not err in law in finding, in paragraph 31 of the order under appeal, that the Council decision provided for in Article 4 of the Act of Accession cannot be regarded as an act which merely confirms that the ‘technical criteria’ laid down earlier and provided for in paragraph 2 of that article have been met.
46
In the third place, as regards the appellants’ argument that, even if the act at issue were an intermediate measure, it would constitute a challengeable act for the purposes of Article 263 TFEU, the Court of Justice has held that an intermediate measure which has independent legal effects may be the subject matter of an action for annulment where the illegality attaching to that measure cannot be remedied in an action brought against the final decision for which it represents a preparatory step (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 110 and the case-law cited).
47
Consequently, where a challenge to the legality of an intermediate act in such an action is not capable of ensuring effective judicial protection for the appellant against the effects of that act, it must be capable of being the subject matter of an action for annulment (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 111 and the case-law cited).
48
Nevertheless, it must be stated that the appellants have failed to prove that the act at issue had, as such, independent legal effects on their situation.
49
Consequently, the first and second grounds of appeal must be rejected.
The third ground of appeal
50
Lastly, as regards the third ground of appeal, which is raised in the alternative, and according to which an institution’s silence may be challenged in exceptional circumstances, it must be recalled that the Court has held that, in principle, mere silence on the part of an institution cannot be placed on the same footing as an implied refusal, except where that result is expressly provided for by a provision of EU law and it cannot exclude that, in certain particular circumstances that principle may not be applicable, so that an institution’s silence or inaction may exceptionally be considered to constitute an implied refusal (judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 45).
51
It should be noted in that regard, first, that the judgment of 9 December 2004, Commission v Greencore (C‑123/03 P, EU:C:2004:783), on which the appellants rely, does not concern the question of the full application of the provisions of the Schengen acquis in Romania. Second, contrary to the appellants’ assertions, the act at issue constitutes neither silence nor inaction on the part of the Council which would constitute an implied decision to reject the full application of the provisions of the Schengen acquis in Romania. While, in the absence of unanimity of votes, that act cannot be regarded as a decision within the meaning of Article 4(2) of the Act of Accession, it is also not mere silence or inaction, but rather an act consisting, as is apparent from paragraph 27 of the present order, in the failure to adopt Draft No 15218/22 for a Council decision on such full application, without prejudice to the possibility for this institution to adopt, at a later stage, such a decision under that provision. In any event, the appellants have put forward no such specific circumstances, as provided for in the case-law referred to in the preceding paragraph of this order.
52
Consequently, the third ground of appeal must be rejected.
53
It follows from all the foregoing considerations that the appeal must be dismissed in its entirety as being manifestly unfounded.
Costs
54
Under Article 137 of the Rules of Procedure of the Court of Justice, 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.
55
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 appellants are to bear their own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.
The appeal is dismissed as being manifestly unfounded.
2.
Mr Răzvan-Eugen Nicolescu, Exclusive Car Trading SRL and the Asociația pentru Energie Curată și Combaterea Schimbărilor Climatice shall bear their own costs.
[Signatures]
(
*1
)	Language of the case: Romanian.