Appeal brought on 13 August 2021 by Harry Shindler and Others against the order of the General Court (Tenth Chamber, Extended Composition) made on 8 June 2021 in Case T-198/20, Shindler and Others v Council

(Case C-501/21 P)

(2021/C 452/13)

Language of the case: French

Parties

Appellants: Harry Shindler and Others (represented by: J. Fouchet, avocat)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellants claim that the Court should

Principally:

— set aside the order of 8 June 2021 (T-198/20);

— annul in full 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.

In the alternative:

— set aside the order of 8 June 2021 (T-198/20);

— 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, automatically and generally, without any test of proportionality, distinguish between European Union citizens and United Kingdom citizens from 1 February 2020, and thus annul in particular the sixth paragraph of the preamble and Articles 9, 10 and 127 of the withdrawal agreement;

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

Grounds of appeal and main arguments

A. Procedural irregularity in the order under appeal

The General Court infringed Article 130 of its Rules of Procedure in that it prescribed only one time limit, namely that given to the Council to submit its defence on the merits. It did not prescribe any time limit for the appellants, who had to wait for ‘new time limits for further steps in the proceedings’ before making observations on the plea of inadmissibility and on the merits.

Furthermore, the General Court decided not to make the defence on the merits available to the appellants, making it impossible for them to know when they had to submit their observations on admissibility.

Lastly, the General Court dismissed the application as inadmissible without a hearing and without ruling on two requests, namely for suspension of the proceedings and for reference of the file in the case to the Court of Justice, which, however, had a bearing on the further steps in the proceedings.

B. Infringement of EU law in relation to the admissibility of the application

(i) With regard to the requirement that decisions which form the subject matter of a direct action must be regulatory acts not entailing implementing measures

In the first place, the General Court found, wrongly, and without providing any explanation, that the withdrawal agreement was an international act, even though, in terms of its object and effects, that agreement remains part of internal EU law since it governs the future relations between the European Union and one of its Member States on the basis of the internal law established by the European Union over the course of more than 50 years (in the United Kingdom’s case), continuing to make that law applicable.

Moreover, Article 4(4) and (5) of the withdrawal agreement limits the judicial sovereignty of the United Kingdom in order to allow a single judicial interpretation of the agreement by the Court of Justice of the European Union. Such a provision is not characteristic of an international agreement.

In the second place, were the Court of Justice also to take the view that the withdrawal agreement is an international act, the General Court failed to take account of Article 275 TFEU, under which the jurisdiction of the Court of Justice is excluded only for certain acts with respect to ‘the provisions relating to the common foreign and security policy’. The General Court thus erroneously joined Articles 263 and 275 TFEU, which have as a consequence that the Court of Justice has jurisdiction over all regulatory acts which do not entail implementing measures, apart from acts adopted on the basis of the provisions relating to the common foreign and security policy. However, in the light of Articles 23 and 26 of the Treaty on European Union, the withdrawal agreement does not fall under the common foreign and security policy, whether in terms of its content or its procedures.

In the third place, the arguments accepted by the General Court imply in essence that the Court of Justice should refrain from exercising a power of review of the rule of law in respect of an international agreement. However, such a position is not acceptable, whether in political or in legal terms, because it means that the Council may, without being scrutinised, call into question the very application of the Treaties and the values which they establish.

In the fourth place, the Council and France are of the opinion that the withdrawal agreement automatically removes the appellants’ EU citizenship, which means that, from that point of view, it has no need of any implementing measure in order to bring about its effects, bearing in mind that, contrary to the view of the General Court, the appellants’ action should not be reduced solely to the question of their right to vote.

(ii) As regards the criterion of individual concern

In the first place, the General Court erred in law by failing to take account of the specifics of Ms G.’s situation as one of the 800 elected representatives in France, a limited class, who were unable to stand in France’s 2020 municipal elections.

In the second place, the General Court committed a serious error in its analysis by stating that the decision to sign the withdrawal agreement affects the appellants ‘by reason of their objective status as United Kingdom nationals’, whereas the appellants contest the withdrawal agreement as British citizens living on the territory of the European Union, having regard to the effects of the withdrawal agreement on their situation.

In the third place, the General Court bases its decision solely on the fact that the appellants cannot vote in municipal elections, even though that is only one of the consequences of which the appellants complain.