ORDER OF THE GENERAL COURT (Tenth Chamber)

14 July 2020 ( *1 )

(Actions for failure to act and for annulment — Area of freedom, security and justice — Withdrawal of the United Kingdom from the European Union — Applications for the adoption of a decision maintaining the European citizenship of certain UK nationals and of a decision on various measures relating to the rights of UK nationals — Adoption of a position by the Commission — No invitation to act — Refusal to adopt a decision maintaining the European citizenship of certain UK nationals — No interest in bringing proceedings — Action manifestly inadmissible)

In Case T‑627/19,

Harry Shindler, residing in Porto d’Ascoli (Italy), and the other applicants whose names are listed in the annex, ( 1 ) represented by J. Fouchet, lawyer,

applicants,

v

European Commission, represented by F. Erlbacher, C. Giolito and E. Montaguti, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,

intervener,

APPLICATION (i) under Article 265 TFEU seeking a declaration that the Commission unlawfully refrained from adopting, on the one hand, a decision maintaining, as from the withdrawal of the United Kingdom from the European Union, the European citizenship of certain UK nationals who did not, at that time, have the nationality of an EU Member State, irrespective of whether or not an agreement setting out the arrangements of that withdrawal was concluded, and, on the other hand, a decision on various measures relating to the rights of those nationals, should such withdrawal take place without such an agreement having been concluded and (ii) seeking annulment, pursuant to Article 263 TFEU, of the letter of the Commission of 11 September 2019 refusing to adopt a decision maintaining the European citizenship of those nationals,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, J. Passer and K. Kowalik-Bańczyk (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order ( 2 )

Background to the dispute

1 The applicants, Mr Harry Shindler and the other applicants whose names are listed in the annex, are United Kingdom nationals, Mr Schindler residing in Italy and the others in France.

2 On 23 June 2016, the citizens of the United Kingdom of Great Britain and Northern Ireland determined by referendum that their country should withdraw from the European Union.

3 On 29 March 2017, the United Kingdom notified the European Council of its intention to withdraw from the European Union pursuant to Article 50(2) of the Treaty on European Union.

4 On 8 June 2017, parliamentary elections took place in the United Kingdom.

5 By Decision (EU) 2019/476 of 22 March 2019 (OJ 2019 L 80 I, p. 1), the European Council, in agreement with the United Kingdom, decided to extend the period, prescribed by Article 50(3) TEU, at the end of which the Treaties cease to apply to the United Kingdom should no agreement setting out the arrangements for its withdrawal be concluded. Under Article 1 of that decision, that period was due to expire on either 12 April 2019 or 22 May 2019.

6 By Decision (EU) 2019/584 of 11 April 2019 (OJ 2019 L 101, p. 1), the European Council, in agreement with the United Kingdom, again extended the period referred to in paragraph 5 above. Under Article 1 of that decision, that period was due to expire, in principle, on 31 October 2019.

7 On 31 July 2019, the applicants, as well as another UK national residing in Italy, sent a letter to the European Council and to the Council of the European Union. The following day, they sent an essentially identical letter to the European Commission (‘the letter of 1 August 2019’).

8 In the letters referred to in paragraph 7 above, the applicants, in essence, drew the attention of the European Council, the Council and the Commission to the situation of UK nationals residing in Member States other than the United Kingdom and having built a private and family life there, especially those who, like them, had left the United Kingdom more than 15 years ago. They recalled that, under the ‘15-year rule’, those nationals had not been permitted to participate in the referendum of 23 June 2016 or in the parliamentary elections of 8 June 2017, when those ballots were decisive for the United Kingdom’s withdrawal from the European Union and for the retention of their status as EU nationals. Consequently, they asked the European Council, the Council and the Commission to ‘declare that they had failed to act’ as a result of their ‘unlawful failure to protect the European citizenship of [those nationals]’. Moreover, they requested that those three institutions take, before the planned withdrawal of the United Kingdom from the European Union on 31 October 2019, a decision maintaining the European citizenship of those nationals beyond the date of that withdrawal, irrespective of whether or not an agreement setting out the arrangements for that withdrawal was concluded.

9 By letter signed on 11 September 2019, the Commission responded to the letter of 1 August 2019 (‘the letter of 11 September 2019’). In that letter, it declined the invitation to act contained in the letter of 1 August 2019. It explained that, as from the United Kingdom’s withdrawal from the European Union, UK citizens who did not have the nationality of an EU Member State would no longer be regarded as EU citizens. As a result, it took the view that the Treaties did not allow it to take a decision maintaining, as from that withdrawal, the European nationality of those nationals who did not, at that time, have the nationality of an EU Member State.

Procedure and forms of order sought

…

15 By measure of organisation of procedure adopted under Article 89(3)(a) of the Rules of Procedure, the Court put a question to the applicants. The applicants complied with that request within the period prescribed. …

17 The applicants claim that the Court should: – ‘annul the … Commission’s express refusal of [11] September 2019 to acknowledge a failure to act’; – declare that the Commission unlawfully failed to take, first, a ‘decision [maintaining] the European citizenship of the applicants … who enjoy a private and family life in the other Member States of the European Union … and did not have the right to vote on whether [the United Kingdom] should leave the European Union, based solely on the exercise of their freedom of movement [the 15-year rule], irrespective of whether or not there is an agreement on [that] withdrawal’, and, second, a ‘binding decision uniformly applicable in the other 27 Member States of the European Union in which [UK nationals] live, comprising various measures with regard to [the] entry, stay, social rights and occupation [of those nationals], applicable should no agreement on the United Kingdom’s withdrawal from the European Union be concluded’; – order the Commission to pay each of them the sum of EUR 1500 by way of costs.

18 The Commission contends that the Court should: – dismiss the action as inadmissible or, failing that, as manifestly unfounded; – order the applicants to pay the costs.

Law

19 Under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In this instance, the Court, considering itself to have sufficient information from the documents in the file, decides, pursuant to that article, to give a decision without taking further steps in the proceedings.

Subject matter of the dispute

…

22 In the second place, having regard to the wording of the applicants’ first head of claim, by which they seek annulment of the ‘… Commission’s express refusal of [11] September 2019 to acknowledge a failure to act’, the applicants were requested, by the measure of organisation of procedure referred to in paragraph 15 above, to specify whether the action was based on Article 265 TFEU alone or whether it was to be interpreted as containing not only a claim for failure to act under Article 265 TFEU but also a claim for annulment under Article 263 TFEU. By letter lodged at the Registry on 14 February 2020, the applicants responded, stating that the action contained both a claim for failure to act under Article 265 TFEU and a claim for annulment under Article 263 TFEU.

23 In those circumstances, it must be stated that, by their first head of claim, the applicants ask the Court to annul the decision contained in the letter of 11 September 2019, by which the Commission, in essence, refused to adopt a decision maintaining, as from the withdrawal of the United Kingdom from the European Union and irrespective of whether or not an agreement setting out the arrangements of that withdrawal was concluded, the European citizenship of certain UK nationals who did not, at that time, have the nationality of an EU Member State. …

The claim for annulment

40 As has been noted in paragraph 23 above, the applicants seek annulment of the decision contained in the letter of 11 September 2019.

Admissibility of the claim for annulment

…

43 In the present case, it should be noted that, in order to establish the Commission’s ‘failure to act’ in not adopting a decision maintaining the European citizenship of certain UK nationals, as from the withdrawal of the United Kingdom from the European Union, irrespective of whether or not an agreement setting out the arrangements of that withdrawal was concluded, the applicants raise, in essence, three pleas challenging the loss of European citizenship by those nationals. Those pleas allege (i) infringement of the Treaties, of the principle of legal certainty and of acquired rights, (ii) infringement of the principle of proportionality and of the right to respect for private and family life, and (iii) unlawful deprivation of the right to vote in the referendum of 23 June 2016 and in the parliamentary elections of 8 June 2017, that deprivation of the right to vote infringing the ‘audi alteram partem’ rule, the right to move and reside freely within the territory of the Member States, the right to respect for private and family life and the ‘principle of equality in the exercise of the right to vote’.

44 By the letter of 11 September 2019, which is the subject of the claim for annulment, the Commission specifically refused to adopt a decision maintaining the European citizenship of certain UK nationals. Therefore, even though they refer to a ‘failure to act’ by the Commission, the pleas and arguments set out in paragraph 43 above must be regarded as being submitted also in support of the claim for annulment. …

Admissibility of the pleas submitted in support of the claim for annulment

46 It is appropriate for the Court to verify of its own motion that the applicants have an interest in raising the pleas submitted in support of the claim for annulment set out in paragraph 43 above.

47 It should be borne in mind that it is settled case-law that, first, an applicant cannot have a legitimate interest in the annulment of a decision where it is already certain that that decision which concerns it cannot be other than reconfirmed in its regard and, second, a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (see judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited; judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 93).

48 Thus, an applicant cannot establish an interest in a claim for annulment of a decision on the basis of a given plea where the institution concerned has no discretion and is bound to act as it did. In such a case of circumscribed powers, the annulment of the decision on the basis of that plea could only result in the adoption of a new decision that is identical, in its operative part, to the decision annulled (see, to that effect, judgments of 6 July 1983, Geist v Commission, 117/81, EU:C:1983:191, paragraph 7; of 20 May 1987, Souna v Commission, 432/85, EU:C:1987:236, paragraph 20; and of 28 November 2019, Portigon v SRB, T‑365/16, EU:T:2019:824, paragraph 192).

49 A fortiori, an applicant cannot establish an interest in a claim for annulment of a decision refusing to act on a given matter on the basis of a given plea where the institution concerned does not, in any event, have any competence to act on that matter, with the result that the annulment of such decision on the basis of that plea could only result in a new decision refusing to act on that matter.

50 In the present case, were the decision contained in the letter of 11 September 2019 to be annulled on the basis of the pleas set out in paragraph 43 above, the applicants could obtain satisfaction only if, accepting the invitation to act contained in the letter of 1 August 2019, the Commission itself subsequently adopted a binding act maintaining, as from the withdrawal of the United Kingdom from the European Union, the European citizenship of certain UK nationals.

51 However, it should be borne in mind that, pursuant to Article 13(2) TEU, each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. It follows that, as it maintains in its submissions, the Commission can act only on the basis of the powers conferred on it by the Treaties.

52 It is therefore appropriate to examine whether the Commission is competent to act in the manner desired by the applicants.

53 In that regard, irrespective of whether or not the withdrawal of the United Kingdom from the European Union could result in the loss of European citizenship by all UK nationals not holding, at the time of that withdrawal, the nationality of a Member State, it is clear that no provision in the Treaties or in secondary legislation authorises the Commission to adopt binding acts the purpose of which is to confer European citizenship on certain categories of persons.

54 The fact that the Commission is not competent in that regard is supported by the fact that that institution has, in principle, only a power of proposal in accordance with Article 17(2) TEU.

55 Indeed, even though they claim that the Commission is competent to safeguard the European citizenship of UK nationals at the time of the United Kingdom’s withdrawal from the European Union, the applicants do not refer to any provision empowering the Commission itself to adopt binding acts the purpose of which is to confer or maintain European citizenship for the benefit of certain categories of persons. Although it is true that the applicants refer, in the application, to the second paragraph of Article 25 TFEU, it is sufficient to note that that provision confers decision-making power not on the Commission, but on the Council, the European Parliament and the Member States.

56 In those circumstances, the Commission is manifestly not competent itself to adopt a binding act maintaining, as from the withdrawal of the United Kingdom from the European Union, the European citizenship of certain UK nationals.

57 Accordingly, irrespective of whether or not the withdrawal of the United Kingdom from the European Union could result in the loss of European citizenship by all UK nationals not holding, at the time of that withdrawal, the nationality of a Member State, the Commission did not have, in this case, have any competence to adopt a binding act maintaining, as from that withdrawal, the EU citizenship of certain categories of persons and was required to refuse to adopt the act requested by the applicants.

58 It follows that, were the decision contained in the letter of 11 September 2019 to be annulled on the basis of the pleas set out in paragraph 43 above, the Commission would manifestly lack competence and would be able only to take a new decision refusing to adopt the act requested by the applicants. Such an annulment would thus not be capable of giving the applicants satisfaction, meaning that the latter do not demonstrate a legitimate interest in raising the pleas set out in paragraph 43 above. Accordingly, those pleas must be rejected as inadmissible.

59 In those circumstances, since it is not supported by any admissible plea, the claim for annulment is itself manifestly inadmissible. …

61 It follows from the foregoing that the action must be dismissed in its entirety. …

On those grounds, THE GENERAL COURT (Tenth Chamber) hereby orders:

1. The action is dismissed.

2. Mr Harry Shindler and the other applicants whose names are listed in the annex shall pay the costs, including those relating to the interlocutory proceedings.

3. The Council of the European Union shall bear its own costs.

Luxembourg, 14 July 2020. E. Coulon Registrar A. Kornezov President

( *1 ) Language of the case: French.

( 1 ) The list of the other applicants is annexed only to the version notified to the parties.

( 2 ) Only the paragraphs of the present order which the Court considers it appropriate to publish are reproduced here.