Appeal brought on 13 August 2021 by David Price against the order of the General Court (Tenth Chamber, Extended Composition) delivered on 8 June 2021 in Case T-231/20, Price v Council

(Case C-502/21 P)

(2021/C 452/14)

Language of the case: French

Parties

Appellant: David Price (represented by: J. Fouchet, avocat)

Other party to the proceedings: Council of the European Union

Form of order sought

Principally:

— Annul the order of 8 June 2021 (T-231/20);

— Annul, in whole, Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and its annexes, with variation, if necessary, of the retroactive effect of that annulment.

Alternatively:

— Annul the order of 8 June 2021 (T-231/20);

— Annul, in part, Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, in so far as those acts distinguish systematically and indiscriminately, without any review of proportionality, citizens of the European Union from nationals of the United Kingdom from 1 February 2020, and thus annul, inter alia, the sixth paragraph of the preamble and Articles 9, 10 and 127 of the withdrawal agreement;

— Order the European Union to pay all the costs of the proceedings, including legal fees in the amount of EUR 5 000.

Grounds of appeal and main arguments

A. Procedural irregularity of the order under appeal

The General Court infringed Article 130 of its Rules of Procedure, in so far as it only started one period running, that allowing the Council to present its defence on the substance. It did not grant any period to the appellant, who had to wait for ‘new time limits for further steps in the proceedings’ before expressing his views on both the objection of inadmissibility and the substance.

Furthermore, the Court decided not to communicate to the appellant the defence on the substance, making it impossible for him to know when he should express his views on admissibility.

Lastly, the General Court dismissed the application as inadmissible without a hearing and without ruling on two requests, for a stay of proceedings and for the file to be sent to the Court of Justice, which had a bearing on further steps in the proceedings.

B. Infringement of EU law as regards the admissibility of the application

(i) In the light of the criterion requiring that the decisions which are the subject of direct actions be regulatory acts which do not entail implementing measures

In the first place, the General Court wrongly, and without explanation, held that the withdrawal agreement was an international act although, by its subject matter and effects, that agreement still comes within the scope of the internal law of the European Union, since it governs the future relationship between the European Union and one of its Member States, on the basis of the internal law established by the European Union for more than fifty years (as far as the United Kingdom is concerned) and continues to render it applicable.

Furthermore, Article 4 of the withdrawal agreement, in its paragraphs 4 and 5, limits the judicial sovereignty of the United Kingdom in order to allow for a uniform interpretation of the case-law on the withdrawal agreement by the Court of Justice of the European Union. Such a provision is not typical of an international agreement.

In the second place, assuming that the Court of Justice also considers the withdrawal agreement to be an international act, the General Court failed to take account of Article 275 TFEU, which precludes the jurisdiction of the Court of Justice only in respect of certain acts concerning ‘the provisions relating to the common foreign and security policy’. The General Court therefore incorrectly combined Articles 263 and 275 TFEU, which imply that the Court of Justice has jurisdiction over any regulatory acts which do not entail implementing measures, with the exception of acts adopted on the basis of the provisions relating to the common foreign and security policy. In the light of Articles 23 and 26 of the Treaty on European Union, the withdrawal agreement does not come, as regards either its content or its procedure, within the scope of the common foreign and security policy.

In the third place, the arguments accepted by the General Court imply, in essence, that the Court of Justice should refrain from exercising a review of the rule of law of an international agreement. Such a position is neither politically nor legally acceptable, as it means that the Council can, without any review, call into question the actual application of the Treaties and the values which they establish.

In the fourth place, the Council and France take the view that the withdrawal agreement automatically revokes the appellant’s EU citizenship, which means that it does not, from that point of view, need any implementing measure to produce its effects, it being borne in mind that the action must not, contrary to the view of the General Court, be reduced to the sole question of the appellant’s voting rights.

(ii) In the light of the criterion of individual concern

In the first place, at the time he lodged his application, the appellant was part of a small minority of Britons who should have been granted the right to vote in the second round of the municipal elections.

In the second place, the General Court made a serious error of analysis in stating that the decision to sign the withdrawal agreement affects the appellant ‘by reason of his objective status as a national of the United Kingdom’, although the appellant challenges the withdrawal agreement as a British citizen residing in the European Union, having regard to the effects of the withdrawal agreement on his position.

In the third place, the General Court relies only on the appellant’s inability to vote in the municipal elections, although that consequence is only one of those complained of by the appellant.

C. The error of law as regards the refusal to refer a case from the General Court to the Court of Justice pursuant to Article 256(3) TFEU

Article 256(3) TFEU, read independently of the other paragraphs, allows for a dialogue between the EU Courts. Where a case is likely to affect the unity or consistency of EU law, contrary to what the General Court stated, the latter may refer a case to the Court of Justice.