ORDER OF THE COURT (Sixth Chamber)
11 October 2024 (*)
( Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Area of freedom, security and justice – Right to asylum – Activities by Frontex in the Aegean Sea – Regulation (EU) 2019/1896 – Article 46 – Margin of discretion – Action for failure to act – Invitation to act submitted in the name and on behalf of an anonymous person – Decision refusing the invitation to act before the action for failure to act was brought – Manifest inadmissibility – Action for annulment – Interest in bringing proceedings – Annulment not capable of securing a benefit for the applicant – Appeal, in part, manifestly inadmissible and, in part, manifestly unfounded )
In Case C‑62/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 January 2024,
ST, represented by F. Gatta, avvocato,
appellant,
the other party to the proceedings being:
European Border and Coast Guard Agency (Frontex),
defendant at first instance,
THE COURT (Sixth Chamber),
composed of T. von Danwitz, Vice-President of the Court, acting as President of the Sixth Chamber, A. Arabadjiev (Rapporteur) and I. Ziemele, Judges,
Advocate General: P. Pikamäe,
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 his appeal, ST is seeking to have set aside the order of the General Court of the European Union of 28 November 2023, ST v Frontex (T‑600/22, ‘the order under appeal’), by which the General Court dismissed his action seeking, principally, under Article 265 TFEU, a declaration from the General Court that the European Border and Coast Guard Agency (Frontex) unlawfully failed to adopt, pursuant to Article 46(4) of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ 2019 L 295, p. 1), a decision to suspend or terminate its activities in the Aegean Sea and, in the alternative, under Article 263 TFEU, the annulment of Frontex’s decision of 27 July 2022 refusing to act in response to the call to act pursuant to Article 46(4) of Regulation 2019/1896 (‘the decision at issue’).
Legal context
2        As set out in Article 46(4) of Regulation 2019/1896:
‘The executive director shall, after consulting the fundamental rights officer and informing the Member State concerned, withdraw the financing for any activity by [Frontex], or suspend or terminate any activity by [Frontex], in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.’
Background to the dispute
3        The background to the dispute is set out in paragraphs 2 to 4 of the order under appeal as follows:
‘2      The applicant is a Congolese national residing in Türkiye, who fled his country owing to ill-treatment inflicted by his uncle and who wishes to obtain asylum in Greece in order to find safety and pursue his studies there.
3      On 6 June 2022, Front-Lex, a non-profit non-governmental organisation (NGO) established in Amsterdam (Netherlands), sent, in accordance with Article 265 TFEU, a letter to the Executive Director ad interim of Frontex, on behalf of A and another person who wished to remain anonymous, inviting her to suspend or terminate Frontex’s activities in the Aegean Sea region, pursuant to Article 46(4) of Regulation 2019/1896.
4      On 27 July 2022, Frontex replied to that invitation to act by the [decision at issue], in which it noted that that invitation was similar to that previously sent to it by Front-Lex on 15 February 2021, and then referred to its letter of 23 March 2021 in which it had refused to suspend or terminate its activities in the Aegean Sea region.’
The procedure before the General Court and the order under appeal
4        By application lodged at the General Court Registry on 26 September 2022, ST brought an action seeking, principally, under Article 265 TFEU, a declaration from the General Court that Frontex unlawfully failed to adopt a decision to suspend or terminate its activities in the Aegean Sea and, in the alternative, under Article 263 TFEU, the annulment of Frontex’s decision of 27 July 2022 refusing to act in response to the call to act.
5        Frontex raised a plea of inadmissibility. In respect of the application under Article 265 TFEU, that plea was based, first, on the lack of evidence that the applicant is the anonymous person who initiated the pre-litigation procedure, second, on the fact that Frontex had defined its position on the call to act addressed to it and, third, on the applicant’s lack of standing and interest in bringing proceedings. In respect of the application under Article 263 TFEU, that plea was based on the fact that the decision at issue is not of direct and individual concern to the applicant.
6        By the order under appeal, the General Court dismissed the action as being inadmissible. As regards the action for failure to act, the General Court found, on the grounds set out in paragraphs 14 to 19 of that order, that the evidence provided did not prove that the invitation to act had come from ST, and therefore did not prove that ST had followed the pre-litigation procedure by satisfying that essential procedural requirement. The General Court added that, in any event, even if the invitation to act had been submitted on behalf of ST, that application would also be inadmissible in so far as Frontex had, by the decision at issue, defined its position on the invitation to act of 6 June 2022 before the action was brought.
7        As to the application for annulment, the General Court held, in paragraph 28 of the order under appeal, that any annulment of the decision at issue would not have the effect of suspending or terminating Frontex’s activities in the Aegean Sea, but only of leading Frontex to re-examine the conditions for adopting a decision under Article 46(4) of Regulation 2019/1896. The General Court concluded that it was not certain that ST could derive any advantage from the annulment of the decision at issue. The General Court found, in paragraphs 30 to 34 of that order, that, moreover, even if, in the event that the decision at issue is annulled, Frontex were to take the decision sought by the applicant, that decision would not have the effect of facilitating the applicant’s conditions of entry into Greece, the determination of those conditions coming within the exclusive competence of the Member States. Furthermore, an allegedly imminent and inevitable further attempt to cross the Aegean Sea was not certain, with the result that the applicant was not able to rely on such a future and hypothetical legal situation.
Forms of order sought by the appellant
8        ST contends that the Court should:
–        set aside the order under appeal;
–        principally, declare the action for failure to act admissible or
–        in the alternative, declare the action for annulment of the decision at issue admissible or
–        in the further alternative; refer the case back to the General Court, and
–        order Frontex to pay the costs of both sets of proceedings.
The appeal
9        Under 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.
10      It is appropriate to apply that provision in the present case.
11      In support of his appeal, ST raises 10 grounds, the first to fourth of which relate to the General Court’s assessment of the admissibility of the action for failure to act, while the fifth to tenth grounds of appeal relate to the General Court’s assessment of the admissibility of the action for annulment.
The first to fourth grounds of appeal, relating to the action for failure to act
Arguments of the appellant
12      By his first to third grounds of appeal, ST challenges the General Court’s finding that the evidence produced does not prove that the invitation to act came from ST. The first ground alleges a failure to take account of the arguments put forward at first instance and an error in the legal characterisation of the facts that were presented in order to show that that invitation came from ST. The second ground alleges that the General Court erred in law in finding that the effect of the second paragraph of Article 265 TFEU is that such an invitation to act must come from the applicant bringing the action for failure to act. By his third ground of appeal, ST submits that the General Court applied excessively stringent conditions regarding the evidence required to establish that the invitation to act came, in the present case, from ST.
13      The fourth ground of appeal criticises the General Court’s finding in paragraph 19 of the order under appeal that, in any event, the application for failure to act is inadmissible in so far as Frontex had, by the decision at issue, defined its position on the invitation to act of 6 June 2022 before the action was brought at first instance. ST submits that that finding is vitiated by a failure to state reasons.
14      According to ST, the Executive Director of Frontex stated that she was ‘not in a position’ to define her position. In doing so, she did not refuse to act, but rather refused to define her position. By accepting Frontex’s explanation without addressing ST’s arguments, the order under appeal did not enable ST to ascertain the reasons for the General Court’s decision.
Findings of the Court
15      As regards the fourth ground of appeal, which it is appropriate to examine first, it must be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 130 and the case-law cited).
16      It follows that, in accordance with the settled case-law of the Court of Justice, the General Court fulfils that obligation when the statement of reasons for a judgment or an order clearly and unequivocally discloses the General Court’s reasoning, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and to enable the Court of Justice to exercise its power of review. The obligation to state reasons incumbent on the General Court does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, the reasoning may thus be implicit, on condition that it enables the persons concerned to ascertain the reasons why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 131 and the case-law cited).
17      The wording of paragraph 19 of the order under appeal enabled ST to understand that the General Court held that the action for failure to act was, in any event, inadmissible, since Frontex had, by the decision at issue, defined its position on the invitation to act of 6 June 2022 before that action was brought. That statement of reasons also enables the Court of Justice to exercise its power of review.
18      Moreover, to the extent that the appellant argues, in essence, that Frontex did not refuse to act, but rather to define its position and that the General Court therefore erred in declaring his action inadmissible, it should be stated that, in putting forward such a line of argument, the appellant is questioning whether the grounds of the order under appeal are well founded. However, in accordance with the case-law recalled in paragraph 15 above, arguments questioning whether the grounds of a decision of the General Court are well founded are not such as to substantiate a ground of appeal alleging a failure to state reasons for that decision.
19      It follows that the fourth ground of appeal, alleging a failure to state reasons, must be dismissed as being manifestly unfounded.
20      In so far as concerns the first to third grounds of appeal, the General Court was correct to point out, in paragraph 19 of the order under appeal, that the conditions for admissibility of an action for failure to act, laid down in Article 265 TFEU, are not satisfied where the institution called upon to act has defined its position on that request before the action is brought and that the adoption of a measure different from that sought or considered necessary by the persons concerned, such as a duly reasoned refusal to act in accordance with the call to act, constitutes a definition of position putting an end to the failure to act (judgment of 24 March 2022, Wagenknecht v Commission, C‑130/21 P, EU:C:2022:226, paragraph 31).
21      Accordingly, since the ground set out in paragraph 19 of the order under appeal is sufficient on its own for the action for failure to act to be declared inadmissible, the first to third grounds of appeal must be dismissed as ineffective.
22      It follows that the first to fourth grounds of appeal must be dismissed as being manifestly unfounded.
The fifth to tenth grounds of appeal, relating to the action for annulment
Arguments of the appellant
23      By his fifth ground of appeal, ST argues that the General Court erred in its legal characterisation of the facts in finding, in paragraph 21 of the order under appeal, that he ‘has not demonstrated’ and, in paragraph 27 of that order, that he ‘merely states … without indicating or demonstrating … [and] also claims, in an abstract and general manner’ that he has an interest in bringing proceedings. According to ST, it is evident from the documents in the file that the facts upon which he relied in order to demonstrate his legal interest in bringing proceedings went beyond mere statements and that, had the General Court taken into account his arguments and the evidence of the European Anti-Fraud Office, the United Nations High Commissioner for Refugees and the Member State establishing the existence of widespread and systematic violations of fundamental rights related to the activities of Frontex in the Aegean Sea, it would have recognised ST’s interest in the annulment of the decision at issue.
24      By his sixth ground of appeal, ST submits that the General Court erred in law in finding, in paragraph 37 of the order under appeal, that ST had not adduced any evidence to support the conclusion that he had a vested and present interest in the annulment of the decision at issue, inasmuch as, according to ST, the annulment of the decision at issue would reduce his risk of exposure to serious and persistent violations related to the activities of Frontex in the Aegean Sea to which asylum seekers are subjected.
25      By his seventh ground of appeal, ST argues that the General Court, in paragraphs 30 and 31 of the order under appeal, erred in the legal characterisation of the facts and distorted his arguments. ST had argued not that he was seeking a facilitated entry into Greece, but that the unlawfulness of the joint operations of Frontex and the Greek authorities is proved by the evidence that he submitted.
26      By his eighth ground of appeal, ST pleads an error in the legal characterisation of the facts in paragraph 33 of the order under appeal, by which the General Court characterised ST’s imminent and inevitable further attempt to cross the Aegean Sea as a legal situation that is future and hypothetical, whereas that legal situation entails his current impossibility to apply for asylum.
27      The ninth ground of appeal is directed against paragraphs 28 and 29 of the order under appeal, by which the General Court held that it was not certain that ST could derive an advantage from the annulment of the decision at issue, on the ground that that annulment would have the effect only of obliging Frontex to make a fresh decision.
28      First of all, Frontex would not be permitted, during a re-examination, to make the same manifest errors of assessment as those made when adopting the decision at issue and would therefore be obliged to adopt a decision in the terms sought by ST.
29      Next, since ST is concerned by the continuation of the activities of Frontex in the Aegean Sea, the General Court made a substantial error in finding that it was not certain that ST could derive any advantage from the annulment of the decision at issue in respect of the past.
30      Lastly, the annulment of the decision at issue, first, could oblige Frontex to amend the administrative procedure for the application of Article 46(4) of Regulation 2019/1896, if that procedure were to prove incompatible with certain legal requirements and, second, could serve as the basis for a possible action for damages.
31      By his tenth ground of appeal, ST argues that the General Court erred in law in requiring, in paragraphs 32 and 34 of the order under appeal, that the prejudice to his future legal situation had to be already certain. Such a requirement is not permissible, since ST’s survival is at stake. In the absence of any other remedy, his access to effective judicial protection could not be made subject to a prior infringement of his fundamental rights.
Findings of the Court
32      As regards the ninth ground of appeal, which it is appropriate to examine first, it should be borne in mind that, in accordance with settled case-law, any action for annulment brought under Article 263 TFEU by a natural or legal person must be based on an interest on the part of the applicant in bringing proceedings. The existence of such an interest presupposes that annulment of the contested measure must be capable of procuring an advantage for that person (judgment of 13 July 2023, D & A Pharma v EMA, C‑136/22 P, EU:C:2023:572, paragraph 43 and the case-law cited).
33      That interest, which is an essential and fundamental prerequisite for the action, must be vested and current. Since it may not concern a future and hypothetical situation, it must exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (judgment of 13 July 2023, D & A Pharma v EMA, C‑136/22 P, EU:C:2023:572, paragraph 44 and the case-law cited).
34      In particular, it follows from the Court’s case-law that such an interest cannot arise from mere hypotheses the realisation of which, at the time of bringing the action, is still uncertain (order of 6 April 2017, Proforec v Commission, C‑176/16 P, EU:C:2017:290, paragraph 35 and the case-law cited).
35      In addition, considerations of a general nature, or an interest in the resolution of legal questions which might arise in the future in similar situations, are not sufficient to warrant a decision on that action (see, to that effect, order of 19 September 2018, Parliament v Strabag Belgium, C‑229/18 P(R), EU:C:2018:740, paragraph 23).
36      It is for the applicant to prove its interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings. In particular, in order for an action for annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, EU:C:2015:356, paragraphs 27 and 28).
37      The question whether, in the light of the facts and evidence assessed by the General Court, the annulment sought of the contested measure is capable of conferring a benefit on the applicant is a question of law which comes within the scope of the Court of Justice’s review in the context of an appeal (judgment of 13 July 2023, D & A Pharma v EMA, C‑136/22 P, EU:C:2023:572, paragraph 45 and the case-law cited).
38      The ninth ground of appeal concerns the grounds set out in paragraphs 28 and 29 of the order under appeal, which read as follows:
‘28      In that regard, it should be noted at the outset that, contrary to what [ST] appears to consider, any annulment of the [decision at issue] would not have the automatic effect of suspending or terminating Frontex’s activities in the Aegean Sea. It would only have the effect of leading Frontex to re-examine the conditions for adopting a decision under Article 46(4) of Regulation 2019/1896, in the light of the information of which it was aware at the material time. In accordance with the scheme of that provision, such a decision is based on the existence, on the date of its adoption, of violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist. It follows that the likelihood that the annulment of the [decision at issue] will provide the advantage sought by [ST] depends not on the outcome of the present proceedings, but on whether, following a re-examination by Frontex of the conditions applicable in the light of the case at hand, a decision is adopted suspending or withdrawing financing for the relevant activities under Article 46(4) of Regulation 2019/1896.
29      Consequently, it is not certain that [ST] could derive any advantage from the annulment of the [decision at issue]. That finding applies to the past, since it is not possible retroactively to suspend or terminate activities that have now ceased, and to the future, since such an advantage, even if established, is based on the future and uncertain situation where Frontex takes the decision sought by the applicant, which is itself conditional on the existence, on the date of its adoption, of violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.’
39      By this ground of appeal, ST argues, first of all, that Frontex would not be permitted, during a re-examination, to make the same manifest errors of assessment as when the decision at issue was adopted and would therefore be required to adopt a decision in the terms sought by ST. However, it should be noted that it follows from the wording of Article 46(4) of Regulation 2019/1896 that the executive director of Frontex is only to withdraw the financing for an activity by that agency, or suspend or terminate any such activity, in whole or in part, first, after consulting the fundamental rights officer and having informed the Member State concerned and, second, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.
40      It follows that, in order to take a measure under that provision, the executive director of Frontex is called upon to carry out a combined assessment concerning, first, the existence and/or persistence of – possibly serious, depending on the circumstances – violations of fundamental rights or international protection obligations and, second, whether those violations are related to the activity of that agency in question, an assessment for the purposes of which he or she must, inter alia, consult the fundamental rights officer.
41      In the context of that combined assessment, the executive director of Frontex must necessarily have a margin of discretion, which also follows from Article 46(4) of Regulation 2019/1896, according to which he or she is to take such a measure only ‘if he or she considers’ that there are sufficiently serious, or sufficiently persistent, violations of those rights or obligations to warrant the taking of such decisions.
42      Consequently, even if the General Court had found that the decision at issue was vitiated by manifest errors of assessment, the executive director of Frontex would not be required to adopt a decision in the terms sought by ST, as ST claims, but only to re-examine the conditions for adopting a decision under Article 46(4) of Regulation 2019/1896, as the General Court correctly held in paragraph 28 of the order under appeal.
43      Next, as regards the line of argument by which ST pleads an interest in Frontex’s activities in the Aegean Sea, suffice it to note that ST does not in any way explain how the General Court’s finding, in paragraph 29 of the order under appeal, that it is not certain that ST could derive any advantage from the annulment of the decision at issue in respect of the past, is vitiated by error.
44      In accordance with the requirements stemming from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169 of the Rules of Procedure, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned will be inadmissible (judgment of 4 July 2024, Portugal v Commission (Madeira Free Zone), C‑736/22 P, EU:C:2024:579, paragraph 54).
45      More specifically, in accordance with the Court’s case-law, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its power of judicial review, in particular because the essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in an unclear manner in that regard, does not satisfy those requirements and must be declared inadmissible (judgment of 4 July 2024, Portugal v Commission (Madeira Free Zone), C‑736/22 P, EU:C:2024:579, paragraph 55).
46      Lastly, in so far as ST submits that the annulment of the decision at issue, first, could oblige Frontex to amend the administrative procedure for the application of Article 46(4) of Regulation 2019/1896 and, second, could serve as the basis for any action for damages, it must be pointed out that that line of argument was raised for the first time at the appeal stage.
47      In accordance with settled case-law, the jurisdiction of the Court of Justice when examining an appeal is limited to the legal review of findings made in relation to the pleas and arguments debated before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 30 November 2023, Sistem ecologica v Commission, C‑787/22 P, EU:C:2023:940, paragraph 136 and the case-law cited).
48      In any event, first, even if the annulment of the decision at issue did require Frontex to amend the administrative procedure for the application of Article 46(4) of Regulation 2019/1896, such an effect cannot be regarded, in the light of the case-law referred to in paragraph 35 above, as an advantage capable of demonstrating ST’s interest in bringing proceedings. It follows that that line of argument is also manifestly unfounded.
49      Second, since ST does not explain how the annulment of the decision at issue, which would give rise only to a re-examination of the conditions for adopting a decision under Article 46(4) of Regulation 2019/1896, could serve as the basis for a possible action by ST for damages, that line of argument must, in any event, be rejected as manifestly inadmissible, in accordance with the case-law referred to in paragraphs 46 and 47 above.
50      It follows that the ninth ground of appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.
51      Accordingly, since the grounds contained in paragraphs 28 and 29 of the order under appeal are sufficient in themselves to demonstrate the inadmissibility of the action for annulment, the fifth to eighth and tenth grounds of appeal must be dismissed as ineffective.
52      Consequently, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
53      Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(2) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
54      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it could have incurred costs, it is appropriate to decide that ST is to bear his own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      ST shall bear his own costs.
Luxembourg, 11 October 2024.
A. Calot Escobar
T. von Danwitz
Registrar
Vice-President, acting as President of the Chamber
*      Language of the case: English.