ORDER OF THE COURT (Tenth Chamber)

19 December 2022 ( )

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Access to documents – Regulation (EC) No 1049/2001 – Documents allegedly held by the European External Action Service (EEAS) – Action directed against the implied rejection of the request for access to documents – Admissibility – Article 76(d) of the Rules of Procedure of the General Court – Sufficiently clear and precise statement of the pleas in law relied on – Appeal in part manifestly inadmissible and in part manifestly unfounded)

In Case C‑315/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 May 2022,

Ahmad Aziz, residing in Pietà (Malta), represented by L. Cuschieri, avukat,

appellant,

the other party to the proceedings being:

European External Action Service (EEAS),

defendant at first instance,

THE COURT (Tenth Chamber),

composed of D. Gratsias (Rapporteur), President of the Chamber, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1 By his appeal, Mr Ahmad Aziz seeks to have set aside the order of the General Court of the European Union of 5 May 2022, Aziz v EEAS (T‑789/21, not published, EU:T:2022:288) (‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible his action, based on Article 263 TFEU, seeking a declaration from the General Court that the European External Action Service (EEAS) unlawfully failed to respond to his confirmatory application for access to documents under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

Background to the dispute, the proceedings before the General Court and the order under appeal

2 The appellant submitted to the EEAS an initial application and a confirmatory application for access to documents on 15 October and 12 November 2021 respectively.

3 By application lodged at the Court Registry on 20 December 2021, the appellant brought an action under Article 263 TFEU seeking inter alia a declaration from the General Court that the EEAS unlawfully failed to reply to his confirmatory application for access to documents.

4 By the order under appeal, the General Court, on the basis of Article 126 of its Rules of Procedure, dismissed the action as manifestly inadmissible on the ground, as is stated in paragraph 14 of that order, that the application did not satisfy the minimum requirements of Article 76(d) of those rules.

5 In that regard, first, the General Court noted, in paragraphs 7 and 8 of the order under appeal, that, although the application stated that the action was brought under Article 263 TFEU, none of the heads of claim set out in the application corresponded to those formulated in the context of an action for annulment and that the appellant did not specify the act whose annulment was sought or put forward any plea which might support an application for annulment. Examining, for the sake of completeness, each of those heads of claim in paragraphs 9 to 12 of that order, the General Court considered, in essence, that none of those heads of claim could be regarded, in itself, as admissible.

6 Second, the General Court held, in paragraph 13 of that order, that the application did not set out any legal plea in a sufficiently clear, intelligible and coherent manner in support of the form of order sought and, therefore, did not enable the defendant to prepare its defence and the General Court to rule on the action.

Form of order sought on appeal

7 The appellant contends that the Court should:

– set aside the order under appeal;

– annul the EEAS’s initial decision and confirmatory decision; and

– declare that the EEAS unlawfully failed to act on his requests.

The appeal

8 Under Article 181 of its Rules of Procedure, 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.

9 It is appropriate to apply that provision in the present proceedings.

10 In support of his appeal, the appellant relies, in essence, on a single ground of appeal, alleging infringement by the General Court of Article 47 of the Charter of Fundamental Rights of the European Union and of Article 19 TEU, in that the General Court unlawfully failed to annul, on the basis of Article 263 TFEU, the EEAS’s implied decision to refuse him access to the requested documents. That single ground of appeal comprises, in essence, six parts, alleging errors of law allegedly committed by the General Court in its examination of the admissibility of the action.

11 As a preliminary point, it should be borne in mind that it follows from Article 21 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of Article 53 of that statute, and from Article 76(d) of the Rules of Procedure of the General Court, that the application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of the pleas in law, and that those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action. It is therefore necessary for the essential points of fact and of law on which an action is based to be indicated coherently and intelligibly in the application itself and for the form of order sought in that application to be set out unambiguously so that the EU Courts do not rule ultra petita or indeed fail to rule on a plea in law (see, to that effect, judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 14 and the case-law cited).

12 Thus, where the application initiating proceedings does not satisfy the requirements of Article 76(d) of the Rules of Procedure of the General Court relating to the statement of the pleas in law, the General Court is entitled to declare the action inadmissible in its entirety (see, to that effect, order of 30 September 2021, González Calvet v SRB, C‑27/21 P, not published, EU:C:2021:789, paragraphs 23 to 28).

13 In the present case, in paragraph 13 of the order under appeal, the General Court held that ‘the application [did] not set out any legal plea in a sufficiently clear, intelligible and coherent manner in support of the form of order sought and, therefore, [did] not enable the defendant to prepare its defence and the Court to rule on the action’.

14 By the first, second and sixth parts of the single ground of appeal, the appellant challenges the grounds set out in that paragraph 13 of the order under appeal. Consequently, it is appropriate to examine those parts in the first place.

15 By the first part of the single ground of appeal, the appellant submits that the General Court erred in law by misapplying Article 126 of its Rules of Procedure, on the ground that, in his view, an action is manifestly inadmissible only where it is brought after the expiry of the prescribed period, where it is premature or where the appellant has not complied with the preconditions for bringing it.

16 Article 126 of the Rules of Procedure of the General Court provides that, where the action is manifestly inadmissible, the General Court may, acting on a proposal from the Judge-Rapporteur, at any time, decide by reasoned order without taking further steps in the proceedings.

17 In particular, as has been recalled in paragraph 11 of the present order, the General Court is required, pursuant to Articles 21 and 53 of the Statute of the Court of Justice of the European Union and Article 76(d) of its Rules of Procedure, to declare inadmissible any application initiating proceedings which does not state, in a sufficiently clear and precise manner, the subject matter of the proceedings, a summary of the pleas in law or the form of order sought in the application. Where such inadmissibility is beyond doubt, in particular in the absence of any sufficiently clear and precise plea set out in the application initiating proceedings, the General Court may, at any time, apply Article 126 of its Rules of Procedure by dismissing the action as manifestly inadmissible by reasoned order.

18 It follows that the first part of the single ground of appeal, by which the appellant submits that the cases of manifest inadmissibility in which the General Court may apply Article 126 of its Rules of Procedure are limited to the situations referred to in paragraph 15 of the present order, must be rejected as manifestly unfounded.

19 By the second part of the single ground of appeal, the appellant complains that the General Court did not consider that it was legally possible for him, in the course of the proceedings, to make amendments to the application initiating proceedings, for the purposes of rectifying errors.

20 As has been recalled in paragraph 11 of the present order, it follows from Articles 21 and 53 of the Statute of the Court of Justice of the European Union and from Article 76(d) of the Rules of Procedure of the General Court that any application initiating proceedings must state, in a sufficiently clear and precise manner, the subject matter of the proceedings and a summary of the pleas in law; the essential points of fact and of law on which an action is based must therefore be indicated coherently and intelligibly in the application itself.

21 It follows from those provisions that the admissibility of an application initiating proceedings must be assessed as at the date on which it was lodged. Therefore, contrary to what the appellant claims, he was not entitled to amend the statement of the pleas in law and the essential points of fact and of law on which his action was based, subsequent to the lodging of his application to initiate proceedings, the General Court being empowered by Article 126 of the Rules of Procedure to give a decision solely in view of that application, in particular if the inadmissibility of the action was manifest.

22 It follows that the second part of the single ground of appeal must be rejected as manifestly unfounded.

23 By the sixth part of the single ground of appeal, the appellant submits that his claims, pleas in law, arguments and the points of fact and of law supporting them were clearly set out in the application initiating proceedings. In particular, he submits that, in paragraph 13 of the order under appeal, the General Court wrongly held that the statement of the pleas in the application initiating proceedings did not satisfy the minimum requirements of Article 76(d) of the Rules of Procedure of the General Court.

24 It should be borne in mind that it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal against decisions of the General Court is limited to points of law and is to lie on the grounds of lack of competence of the General Court, breaches of procedure before the General Court which adversely affects the interests of the appellant or the infringement of EU law by the General Court. In addition, in accordance with Article 168(1)(d) of the Rules of Procedure of the Court of Justice, the appeal is to state the pleas in law and legal arguments relied on. Last, Article 169(2) of those rules provides that the pleas in law and legal arguments relied on are to identify precisely those points in the grounds of the decision of the General Court which are contested.

25 It follows that an appeal must indicate precisely not only the contested paragraphs of the judgment or order under appeal, but also the legal arguments specifically advanced in support of that claim, failing which the appeal or the ground of appeal concerned may be inadmissible (see, to that effect, judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).

26 In the present case, in order to challenge paragraph 13 of the order under appeal, by which the General Court found that the application did not set out any plea in a sufficiently clear, intelligible and coherent manner, the appellant, in the sixth part of the single ground of appeal, merely reaffirms that the pleas in the application were sufficiently clear and satisfied the minimum requirements of Article 76(d) of the Rules of Procedure of the General Court, without making any attempt to substantiate those assertions and, in particular, identify the parts of the application in which those supporting pleas and arguments are, as he claims, clearly and precisely set out.

27 It follows that the sixth part of the single ground of appeal must be rejected as clearly inadmissible, in so far as it refers to paragraph 13 of the order under appeal.

28 Consequently, since it is not apparent from paragraphs 15 to 27 of the present order that the General Court erred in law in paragraph 13 of the order under appeal and, as is apparent from paragraph 13 of the present order, that paragraph alone was sufficient to dismiss the action as manifestly inadmissible; any error on the part of that court concerning the assessment of the admissibility of the heads of claim in the application, in paragraphs 7 to 12 of the order under appeal, would have no bearing on the outcome of the dispute and would not affect the operative part of that order (see, to that effect, judgment of 24 March 2022, Wagenknecht v Commission, C‑130/21 P, EU:C:2022:226, paragraph 43 and the case-law cited).

29 It follows that the third, fourth and fifth parts of the single ground of appeal, which refer to paragraphs 7 to 12 of the said order, and the sixth part of that ground of appeal, in so far as it refers to those paragraphs, are ineffective and must therefore be rejected as manifestly unfounded.

30 It follows from all of the foregoing that the action must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

Costs

31 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, a decision as to costs is to be given in the order which closes the proceedings. Since the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before that party could have incurred costs, it is appropriate to decide that the appellant must bear his own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1. The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2. Mr Ahmad Aziz shall bear his own costs.

Luxembourg, 19 December 2022.

A. Calot Escobar D. Gratsias