ORDER OF THE GENERAL COURT (Third Chamber)
14 November 2024 (*)
( Action for annulment – Regulation (EU) 2021/241 – Financing agreement and loan agreement concluded by the Commission and Poland – Trade association – Lack of direct concern – Manifest inadmissibility )
In Case T‑116/23,
Magistrats européens pour la démocratie et les libertés (Medel),
established in Strasbourg (France),
International Association of Judges (IAJ), established in Rome (Italy),
Association of European Administrative Judges (AEAJ),
established in Trier (Germany),
Stichting Rechters voor Rechters, established in The Hague (Netherlands),
represented by C. Zatschler, E. Egan McGrath, Senior Counsel, A. Bateman and M. Delargy, Solicitors,
applicants,
v
European Commission, represented by S. Delaude, T. Adamopoulos and K. Herrmann, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna and S. Żyrek, acting as Agents,
and by
Council of the European Union, represented by M. Chavrier, E. Rebasti and J. Bauerschmidt, acting as Agents,
interveners,
THE GENERAL COURT (Third Chamber),
composed of I. Nõmm, acting as President, G. Steinfatt and D. Kukovec (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By their action under Article 263 TFEU, the applicants, Magistrats européens pour la démocratie et les libertés (Medel), International Association of Judges (IAJ), Association of European Administrative Judges (AEAJ) and Stichting Rechters voor Rechters, seek the annulment of the Financing Agreement and the Loan Agreement of 24 August 2022 (‘the contested agreements’) concluded by the Republic of Poland and the European Commission pursuant to Article 15(2) and Article 23(1) of Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility (OJ 2021 L 57, p. 17).
Background to the dispute
2        The applicants are organisations representative of judges at transnational level. They contest the lawfulness of the contested agreements on the basis of alleged illegalities vitiating certain milestones of the Council Implementing Decision of 17 June 2022 on the approval of the assessment of the recovery and resilience plan for the Republic of Poland, as amended by the Council Implementing Decision of 8 December 2023 (‘the implementing decision’).
3        The milestones fixed by the implementing decision the illegality of which is alleged by the applicants are milestones F1G, F2G and F3G, concerning judicial reform in Poland.
The fixing of the contested milestones and the conclusion of the contested agreements
4        Under the Recovery and Resilience Facility (‘the Facility’) introduced by Regulation 2021/241, funds may be granted to Member States in the form of a financial contribution consisting, pursuant to Article 2(2) of that regulation, in non-repayable financial support, or in the form of a loan.
5        In order to receive funds under the Facility, the Member State must submit its recovery and resilience plan to the Commission, pursuant to Article 18(1) of Regulation 2021/241.
6        Following a positive assessment of the recovery and resilience plan by the Commission and on a proposal from it, the Council approves, by means of an implementing decision, the assessment of that plan, pursuant to Article 20(1) of Regulation 2021/241.
7        The implementing decision makes the payment of a financial contribution subject to compliance with conditions, those being the implementation of that plan, including the achievement of milestones and targets which, in accordance with Article 2(4) of Regulation 2021/241, are measures of progress towards the achievement of a reform or an investment.
8        In the present case, the second sentence of Article 1 of the implementing decision states that the milestones and targets to be achieved by the Republic of Poland are set out in the annex to that decision.
9        Milestones F1G, F2G and F3G, relating to judicial reform in Poland, are set out in the first part of the annex to the implementing decision. In accordance with milestone F1G, a number of measures must be taken in order to reinforce the independence and impartiality of judges in Poland. In accordance with milestone F2G, measures must be taken in order to guarantee that the judges affected by decisions of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) (‘the Disciplinary Chamber’) have access to proceedings to review decisions of that chamber affecting them. In accordance with milestone F3G, review proceedings referred to in milestone F2G must, in principle, be adjudicated on in accordance with the indicative schedule, in the course of the fourth quarter of 2023.
10      Following the adoption of the implementing decision by the Council, the Commission concludes, with regard to the financial contribution, an agreement with the Member State concerned, pursuant to Article 23(1) of Regulation 2021/241 (‘the Financing Agreement’). As regards support in the form of a loan, the Commission concludes a loan agreement with the Member State concerned, pursuant to Article 15(2) of Regulation 2021/241 (‘the Loan Agreement’).
11      The contested agreements are the Financing Agreement and the Loan Agreement concluded on 24 August 2022 by the Commission and the Republic of Poland in order to grant the latter funds by way of the Facility.
12      As is apparent, first, from Article 2(3) of the implementing decision and the contested agreements; second, from recital 3, Article 1(1) and Article 6(1)(2) and (5) of the Financing Agreement; and, third, from recital 3, Article 1(1), Article 7(1), (2) and (5) and Article 9(1) of the Loan Agreement, the disbursement of payments under the Facility presupposes, inter alia, that the Commission has adopted a decision pursuant to Article 24 of Regulation 2021/241, recognising that the Republic of Poland has satisfactorily achieved the milestones and targets identified in the annex to the implementing decision, including milestones F1G, F2G and F3G.
The applicants’ actions in Medel and Others v Council, Joined Cases T‑530/22 to T‑533/22
13      The Court notes that, by their actions in Medel and Others v Council, Joined Cases T‑530/22 to T‑533/22, the applicants contested the lawfulness of the implementing decision, precisely on the point that milestones F1G, F2G and F3G were not compatible with EU law.
14      By order of 4 June 2024, Medel and Others v Council (T‑530/22 to T‑533/22, under appeal, EU:T:2024:363) the applicants’ actions brought against the implementing decision were dismissed as inadmissible.
15      As expressly acknowledged in paragraph 6 of the application, the applicants contest the contested agreements on essentially identical grounds to those set out in the applications in Medel and Others v Council, Joined Cases T‑530/22 to T‑533/22.
16      The only ground of annulment put forward in the present action that is substantively different from those previously relied on by the applicants in challenging the implementing decision in Medel and Others v Council, Joined Cases T‑530/22 to T‑533/22, is the sixth plea in law, alleging ultra vires action by the Commission, as well as infringement of Regulation 2021/241 in the adoption of the contested agreements.
Forms of order sought
17      The applicants claim that the Court should:
–        annul the contested agreements;
–        order the Commission to pay the costs.
18      The Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible or, in any event, unfounded;
–        order the applicants to pay the costs.
19      The Council, intervening in support of the Commission, contends that the Court should:
–        dismiss the action as manifestly inadmissible or, in the alternative, as unfounded;
–        order the applicants to pay the costs.
20      The Republic of Poland, intervening in support of the Commission, contends that the Court should dismiss the action as inadmissible and, should the Court hold that the action is admissible, as unfounded.
Law
21      As regards the admissibility of their action, the applicants submit, inter alia, that they and their members are directly concerned by the contested agreements. In their submission, that direct concern follows from the content of the implementing decision, in particular milestones F1G, F2G and F3G.
22      As is apparent from paragraphs 7 to 9 above, and as expressly accepted by the applicants, the milestones the lawfulness of which is contested were fixed definitively by the implementing decision.
23      In that regard, the applicants submit that the implementing decision and, more specifically, milestones F1G, F2G and F3G fixed thereby, produce direct legal effects on their legal position and on that of their members, which renders their action admissible as against the contested agreements, which are regulatory acts not entailing implementing measures.
24      The applicants further argue for the conditions of admissibility to be relaxed.
25      Although not raising an objection of inadmissibility, the Commission, supported by the Council and the Republic of Poland, dispute the applicants’ line of argument.
26      Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the General Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
27      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings.
28      The fourth paragraph of Article 263 TFEU provides that ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
29      Since the contested agreements are not addressed to the applicants, the admissibility of their action must be examined in the light of the second and third limbs of the fourth paragraph of Article 263 TFEU, in which the requirement of direct concern is laid down.
30      As the applicants are, in fact, challenging the contested agreements concluded by the Commission and the Republic of Poland, it should be borne in mind that, according to settled case-law, any provisions adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects are regarded as ‘challengeable acts’ for the purposes of Article 263 TFEU (judgment of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; see also judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31 and the case-law cited).
31      It is also apparent from the case-law that an action for annulment brought by a natural or legal person lies only if the binding legal effects of the contested act are capable of affecting the interests of the applicant by bringing about a distinct change in their legal position (judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 37, and of 9 March 2023, Intermarché Casino Achats v Commission, C‑693/20 P, EU:C:2023:172, paragraph 52), although where, as in the present case, an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, that requirement overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU in respect of that party’s standing to bring proceedings (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 38, and order of 13 January 2015, Istituto di vigilanza dell’urbe v Commission, T‑579/13, not published, EU:T:2015:27, paragraph 31).
32      It should be noted that the contested agreements produce and exhaust all their effects in the context of the contractual relations by which the Commission and the Republic of Poland are bound, in regard to which the applicants and their members are third parties.
33      In that regard, the Court notes that the applicants’ line of argument is based on two postulates. First, milestones F1G, F2G and F3G underlie the contested agreements and are indissociable from them and, second, those milestones produce mandatory effects capable of bringing about a distinct change in their legal position, with the result that their action, brought against the contested agreements, is admissible.
34      Without it being necessary to examine, as a preliminary point, whether the first postulate is well founded, it is appropriate to examine whether the second postulate, to the effect that the applicants have standing to challenge the milestones, is correct.
35      According to the case-law, actions for annulment brought by associations have been held to be admissible in three types of situation: first, where a legal provision expressly grants a series of procedural powers to trade associations; second, where the association represents the interests of its members, who would themselves be entitled to bring proceedings; and, third, where the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the act in respect of which annulment is sought (see order of 8 May 2019, Carvalho and Others v Parliament and Council, T‑330/18, not published, EU:T:2019:324, paragraph 51 and the case-law cited).
Admissibility of the action of the applicants acting in their own name
36      As regards the first type of situation referred to in the case-law cited in paragraph 35 above, the Court notes that the applicants do not rely on the existence of legal provisions expressly granting them procedural powers; nor is there anything in the case file to suggest that there are such provisions.
37      The applicants submit that they are bodies whose mission is to defend the rule of law and the independence of the judiciary. Furthermore, they are associations representing judges and thus representing one of the powers of the State.
38      In that regard, should the applicants’ line of argument be construed as meaning that, in order to ensure effective judicial protection of the judiciary, in particular in the light of the value of the rule of law, enshrined in Article 2 TEU, they should be granted certain procedural powers, it must be held that no legal provision conferred powers on the applicants in order to ensure such protection in the context of the Facility (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 43).
39      Consequently, the applicants, as associations representing judges, cannot benefit from a procedural treatment differing from that accorded to any other association (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 44).
40      In the light of the foregoing, the admissibility of the applicants’ action cannot be established in relation to the first type of situation referred to in paragraph 35 above.
41      The applicants further argue that their action is admissible because they come within the third type of situation referred to in paragraph 35 above, relating to whether the associations’ own interests are affected by the contested agreements in their capacity as interlocutors representing the judiciary in dealings with the European Parliament, the Council and the Commission.
42      It should be emphasised, however, in the light of the case-law cited in paragraph 35 above, that the fact that the applicants were ‘interlocutors’ with the EU institutions is not sufficient to confer on them the status of ‘negotiator’ in the specific context of the adoption of the implementing decision (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 47).
43      The same inference may be drawn for the fact that the applicants have observer status in various bodies of the Council of Europe, such as the European Commission for the Efficiency of Justice (CEPEJ) and the Consultative Council of European Judges (CCJE) (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 48).
44      In addition, the applicants’ argument [confidential] (1) does not establish that their own interests are affected. Mere reliance on that argument [confidential] does not establish that Medel, still less the other applicants, is or are directly concerned (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 50).
45      It follows that the applicants have not satisfied the conditions relating to the first and third types of situation referred to in paragraph 35 above and, therefore, are not entitled, in the present case, to bring proceedings in their own name.
Admissibility of the action of the applicants acting on behalf of their members whose interests they defend
46      As a preliminary point, it should be borne in mind that, in the second type of situation referred to in paragraph 35 above, associations have standing to bring proceedings where they represent the interests of their members who themselves are entitled to bring proceedings.
47      The case-law referred to in paragraph 35 above entails examining whether the members of the associations, the latter being members of the applicants, are themselves entitled to bring proceedings. In the present case, it is necessary to examine the locus standi of the judges who are members of the associations which are members of the applicants.
48      The applicants submit, in essence, that the judges whose interests they defend are directly concerned, distinguishing between three groups of judges, namely, the Polish judges affected by decisions of the Disciplinary Chamber who are directly concerned by the review proceedings envisaged in milestones F2G and F3G; all of the Polish judges who are directly concerned by those review proceedings and by milestone F1G; and all the other European judges who are also directly concerned by those milestones.
49      According to settled case-law, the condition that a natural or legal person must be directly concerned by the measure being challenged requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal position of that person and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 43 and the case-law cited).
50      First, it must be borne in mind that, in paragraphs 65 to 93 of the order of 4 June 2024, Medel and Others v Council (T‑530/22 to T‑533/22, under appeal, EU:T:2024:363), the Court held that the implementing decision, in view of its substance and assessed in the light of its content and its context, did not directly affect the legal position of the judges affected by decisions of the Disciplinary Chamber.
51      In that regard, the Court stated that milestones F1G, F2G and F3G were of a budgetary conditionality nature in that their relevance was confined to the process of releasing funds under the Facility (see, to that effect, order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraphs 72 and 74).
52      Thus, the Court found that the implementing decision had not had the effect of making the judges affected by decisions of the Disciplinary Chamber subject to the conditions laid down therein, or render a specific rule directly applicable to them, with the result that, even after the implementing decision was adopted, the situation of the judges affected by decisions of the Disciplinary Chamber remained governed by the relevant provisions of Polish law applicable to that situation as well as by the provisions of EU law and the judgments of the Court of Justice of the European Union (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraphs 88 and 89).
53      Second, the Court also found that, in so far as milestones F2G and F3G did not directly affect the situation of Polish judges affected by decisions of the Disciplinary Chamber, the same applied, a fortiori, to Polish judges who were not affected by such decisions (order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 96).
54      As regards the Polish judges’ being directly concerned due to milestone F1G, the Court also found that the applicants had failed to demonstrate a sufficiently close link between the situation of all the Polish judges and milestone F1G to support the conclusion that that milestone directly affected the legal position of those judges (see, to that effect, order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraphs 98 to 101); nor have the applicants in the present case adduced sufficient other evidence on that point.
55      Third, the same holds true for the judges of the other Member States and of the European Economic Area (EEA), who the Court also found were not directly concerned by the implementing decision (see, to that effect, order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraphs 102 to 106).
56      Consequently, neither the Polish judges, whether or not they were affected by a decision of the Disciplinary Chamber, nor the judges of other Member States or the EEA are directly concerned by the implementing decision. Accordingly, the applicants may not rely on the situation of those judges in order to establish the admissibility of their action.
57      Similarly, since the implementing decision is of no direct concern, there is no need to examine whether that decision constitutes a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 4 June 2024, Medel and Others v Council, T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraph 108).
58      Consequently, the Court finds that one of the basic postulates of the action, that milestones F1G, F2G and F3G produce mandatory effects capable of bringing about a distinct change in the applicants’ legal position (see paragraph 33 above), is incorrect.
59      The applicants are unable to demonstrate that they have standing to bring proceedings to challenge those milestones because, according to the case-law cited in paragraph 31 above, those milestones cannot be regarded as producing mandatory effects capable of bringing about a distinct change in their legal position.
60      Thus, even if the contested agreements were challengeable acts the unlawfulness of which could be relied on in regard to milestones F1G, F2G and F3G, the applicants lack standing to bring proceedings to have them annulled.
61      In the light of the foregoing and given that the judges whose interests the applicants purport to defend do not themselves have standing to bring proceedings, the applicants do not satisfy the conditions required for their action to be admissible under the second type of situation referred to in the case-law cited in paragraph 35 above.
62      Moreover, and as also held by the Court in the order of 4 June 2024, Medel and Others v Council (T‑530/22 to T‑533/22, under appeal, EU:T:2024:363, paragraphs 113 to 117), there are no grounds for easing the conditions of admissibility of the action, as requested by the applicants.
63      In that regard, it should be borne in mind that, although the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited, and of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited).
64      In particular, the protection conferred by Article 47 of the Charter of Fundamental Rights of the European Union is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited).
65      Inter alia, the protection conferred by Article 47 of the Charter of Fundamental Rights does not require that an individual should have an unconditional entitlement to bring an action for annulment of EU legislative acts directly before the Courts of the European Union (judgment of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 62).
66      In the present case, as found in paragraph 61 above, the applicants may not claim that they are directly concerned by the implementing decision, which they consider to be indissociable from the contested agreements.
67      In those circumstances, an easing of the conditions for admissibility, as requested by the applicants, would in fact mean setting aside the condition of direct concern which is expressly laid down in the fourth paragraph of Article 263 TFEU, which would be contrary to the case-law referred to in paragraph 63 above. Thus, the systemic deficiencies in the judicial system in Poland alleged by the applicants cannot, in any event, justify the General Court’s derogating from the condition of direct concern which applies to actions brought by natural or legal persons, in accordance with the fourth paragraph of Article 263 TFEU.
68      In the light of all of the foregoing, the action must be dismissed as manifestly inadmissible.
Costs
69      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. As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by it.
70      Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Council and the Republic of Poland are to bear their own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The action is dismissed as manifestly inadmissible.
2.      Magistrats européens pour la démocratie et les libertés (Medel), International Association of Judges (IAJ), Association of European Administrative Judges (AEAJ) and Stichting Rechters voor Rechters shall bear their own costs and pay those incurred by the European Commission.
3.      The Council of the European Union and the Republic of Poland shall bear their own costs.
Luxembourg, 14 November 2024.
V. Di Bucci
I. Nõmm
Registrar
Acting President
*      Language of the case: English.
1 Confidential information redacted.