Case C-43/23 P: Appeal brought on 28 January 2023 by DL (*) against the order of the General Court (Fifth Chamber) delivered on 18 November 2022 in Case T-586/22, DL (*) v Parliament and Council
Date: 2023-01-28
Institutions: Court of Justice
Subjects: EU national, coronavirus disease, epidemic, freedom of movement, health certificate, principle of proportionality, public health, right to health, vaccination




C_2023104EN.01001801.xml










20.3.2023   


EN


Official Journal of the European Union


C 104/18






Appeal brought on 28 January 2023 by DL (*1) against the order of the General Court (Fifth Chamber) delivered on 18 November 2022 in Case T-586/22, DL (*1) v Parliament and Council
(Case C-43/23 P)
(2023/C 104/23)
Language of the case: French

Parties


Appellant: DL (*1) (represented by: S. Manna, avocate)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought

The appellant claims that the Court of Justice should set aside the order of 18 November 2022 in Case T-586/22 in its entirety, on the ground that the General Court of the European Union made a number of errors of law.

Grounds of appeal and main arguments

In support of its appeal, the appellant puts forward five grounds.
The first ground of appeal alleges that the General Court of the European Union erred in law by distorting the pleas in law relied on by DL (*1). The General Court decided the case on the premiss that DL (*1) relied on the freedom of movement in the European Union, whereas his application was based on the right to health and the right to life.
The second ground of appeal alleges an error of law as to the requirement that the contested regulation must directly affect the legal situation of the applicant. The General Court held that the contested regulations did not affect the applicant’s legal situation on the ground that they merely lay down a technical framework.
Although Regulation (EU) 2022/1034 lays down a technical framework, that framework directly affects the legal situation of the applicant and any EU citizen who wishes to be eligible for an EU Digital COVID Certificate.
The third ground of appeal alleges an error of law as to the condition relating to the discretion of the addressees of the contested act. The General Court held that the contested regulations merely lay down a technical framework for the application of which Member States have a discretion, such that those regulations cannot be regarded as applying automatically.
However, the present case concerns a regulation of general application that lays down a technical framework making it possible to grant any EU citizen a digital COVID-19 certificate, which is directly applicable in national law. Member States have no discretion: either their national COVID-19 certificate satisfies the conditions set by the regulation and the citizen receives an EU Digital COVID Certificate, or it does not satisfy those conditions and the citizen does not receive the EU Digital COVID Certificate.
The fourth ground of appeal alleges an error of law as to whether the action is capable of procuring a personal advantage to the party who brought it. The General Court held that the annulment of the contested regulations is not likely to procure any advantage to citizens on the ground that the contested regulations only lay down a technical framework. However, it cannot be denied that the annulment of the contested regulations, due to their provisions granting the EU Digital COVID Certificate to people who have not been tested, will make it possible to protect the health and lives of EU citizens.
The fifth ground of appeal alleges that the decision to extend the duration of the scheme until 30 June 2023 breached the principle of proportionality. The General Court held that the principle of proportionality was observed ‘account being taken of the continuing uncertainty as to the future evolution of the pandemic’. However, in this the General Court relied on the precautionary principle, which is different from the principle of proportionality, requiring justification — scientific justification in the present case — and not vague conjecture.


(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.