1 By their appeal, Mr Harry Shindler, Mr Christopher David Randolph, Mr Douglas Edward Watson, Mr Michael Charles Strawson, Ms Hilary Elizabeth Walker, Ms Sarah Caroline Griffiths, Mr James Graham Cherrill, Ms Anita Ruddell Tuttell, Ms Joséphine French and Mr William John Tobbin seek to have set aside the order of the General Court of the European Union of 8 June 2021 in Shindler and Others v Council (T‑198/20, EU:T:2021:348; ‘the order under appeal’), by which the General Court dismissed as inadmissible their action for annulment, in whole or in part, 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 (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’) and of 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 (OJ 2020 L 29, p. 1; ‘the decision at issue’) (together, ‘the acts at issue’).
2 The appellants are nationals of the United Kingdom of Great Britain and Northern Ireland who reside in Ireland, in Spain, in France and in Italy.
3 On 23 June 2016, the citizens of the United Kingdom determined by referendum that their country should withdraw from the European Union.
4 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) TEU.
5 On 24 January 2020, the representatives of the European Union and the United Kingdom signed the Withdrawal Agreement.
6 On 30 January 2020, the Council of the European Union adopted the decision at issue. Under Article 1 of that decision, the Withdrawal Agreement was approved on behalf of the European Union and the European Atomic Energy Community.
7 On 31 January 2020, the United Kingdom withdrew from the European Union and from the European Atomic Energy Community. On 1 February 2020, the Withdrawal Agreement entered into force.
8 By application lodged at the Registry of the General Court on 30 March 2020, the appellants brought an action seeking annulment, in whole or in part, of the acts at issue.
9 On 21 April 2020, the appellants submitted a written statement asking the General Court to refer questions to the Court of Justice for a preliminary ruling. On 28 April 2020, the President of the General Court decided not to include that statement in the case file.
10 By separate document lodged at the Registry of the General Court on 14 July 2020, the Council raised a plea of inadmissibility in respect of the action.
11 On 21 August 2020, the appellants presented their observations on that plea of inadmissibility.
12 By order of 5 November 2020, the General Court reserved its decision on that plea of inadmissibility for the final judgment and reserved the costs.
13 On 18 January 2021, the Council lodged its defence. On 11 February 2021, the President of the Tenth Chamber (Extended Composition) of the General Court decided not to serve that statement on the appellants.
14 By letter lodged at the Court Registry on 19 January 2021, the appellants requested that the proceedings relating to the examination of the action be stayed. By letter lodged at the Registry on 8 February 2021, the Council submitted its observations on that request to stay proceedings. By decision of 10 February 2021, the President of the Tenth Chamber (Extended Composition) of the General Court rejected that request to stay proceedings.
15 By the order under appeal, the General Court held, in the first place, in paragraphs 19 to 21 of the order, that, although it had previously decided to reserve its decision on the plea of inadmissibility raised by the Council for the final judgment, it had sufficient information from the documents in the file to give a decision by way of an order, in accordance with Article 130 of its Rules of Procedure.
16 In the second place, as regards the subject matter of the action, after noting, in paragraphs 22 to 28 of the order under appeal, that, when an action is brought against an international agreement concluded by the European Union, the EU judicature reclassifies the action as being directed against the decision approving the conclusion of that international agreement, the General Court reclassified the action brought by the appellants as being directed against the decision at issue alone.
17 In the third place, as regards the merits of the plea of inadmissibility raised by the Council, the General Court held that the appellants did not satisfy any of the conditions that must be fulfilled in order to have standing to bring proceedings, for the purposes of the fourth paragraph of Article 263 TFEU.
18 In that regard, the General Court noted, in paragraph 32 of the order under appeal, that, for the purposes of assessing the appellants’ standing to bring proceedings, it was necessary to take into account not only the decision at issue, but also the nature and content of the Withdrawal Agreement.
19 In that context, the General Court found, first, in paragraph 33 of the order under appeal, that neither the decision at issue nor the Withdrawal Agreement was addressed to the appellants and that, consequently, they did not have a right of action on the basis of the first limb of the fourth paragraph of Article 263 TFEU.
20 Secondly, as regards the appellants’ standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU, in particular the condition that the appellant must be individually concerned, the General Court noted, in paragraph 49 of the order under appeal, that it was for the appellants to substantiate that the decision at issue, in so far as it allegedly deprived them of their status as EU citizens and of the rights attaching to that status, affected them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the addressees of such a decision.
21 The General Court held, in paragraph 57 of the order under appeal, that the appellants were not individually concerned by the decision at issue and that, therefore, they did not have standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU, without it being necessary to examine whether they were directly concerned by that decision.
22 Thirdly, as regards the appellants’ standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU, the General Court noted, in paragraphs 62 to 64 of the order under appeal, that the decision at issue was a ‘non-legislative act of general application’.
23 The General Court held, in paragraphs 80 and 81 of the order under appeal, that the concept of ‘regulatory act’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU, had to be interpreted as not including decisions approving the conclusion of an international agreement, such as the decision at issue, which approves the conclusion of an agreement setting out the arrangements for the withdrawal of a Member State from the European Union.
24 In those circumstances, the General Court held, in paragraphs 82 and 83 of the order under appeal, that the appellants did not have standing to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU, that the plea of inadmissibility raised by the Council had to be upheld and that, therefore, the action had to be dismissed as inadmissible.
25 By document lodged at the Registry of the Court of Justice on 13 August 2021, the appellants lodged an appeal against the order under appeal.
26 By their appeal, the appellants claim that the Court should: - set aside the order under appeal; - annul the acts at issue in their entirety; - in the alternative, annul in part the acts at issue in so far as they distinguish between EU citizens and United Kingdom nationals as from 1 February 2020 and, in particular, the sixth paragraph of the preamble and Articles 9, 10 and 127 of the Withdrawal Agreement; and - order the Council to pay the costs, ‘including legal fees’.
27 The Council contends that the Court should: - dismiss the appeal, and - order the appellants to pay the costs.
28 By documents lodged at the Court Registry on 6 and 9 January 2023, the parties replied to the question put by the Court to be answered in writing, on the basis of Article 61 of its Rules of Procedure, concerning the possible inferences to be drawn from the judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques (C‑673/20, EU:C:2022:449), as regards the assessment of the admissibility of the action brought before the General Court.
29 By document lodged at the Court Registry on 1 March 2023, the appellants’ representative informed the Court of the death of Mr Shindler, on 20 February 2023, without indicating whether his successors were pursuing the proceedings.
30 In support of their appeal, the appellants raise, in essence, two grounds of appeal, alleging, first, procedural irregularity before the General Court and, secondly, errors of law in the assessment of the admissibility of the action.
31 By the first ground of appeal, the appellants claim that the General Court infringed Article 130 of its Rules of Procedure and the principle of the right to a fair trial.
32 In that regard, the appellants submit, in the first place, that the purpose of that article is to enable the parties to discuss all the pleas raised before the General Court and, in order to do so, to comply with the new time limits set for them. The appellants thus criticise the General Court, first, for having set, under that article, a time limit for the Council to submit its defence on the substance of the case, without subsequently granting the appellants a new time limit within which to submit their observations both on the plea of inadmissibility raised by that institution and on its defence.
33 Secondly, the appellants challenge the General Court’s refusal to communicate that defence to them and its dismissal of their action in the order under appeal, without holding a hearing or providing any information on the course of the proceedings following its decision to reserve its decision on the plea of inadmissibility until it ruled on the substance of the case.
34 The appellants infer from this that they were ‘misled’ as to the course of the proceedings before the General Court and that the parties to the proceedings were not placed on a level playing field, since the appellants did not have the opportunity to express their views. The General Court thus disregarded the principle of equality of arms, which is a corollary of the very concept of a fair trial, guaranteed in particular in Article 47 of the Charter of Fundamental Rights of the European Union.
35 Furthermore, the appellants submit that the General Court disregarded Article 64 of its Rules of Procedure, since, according to the wording of that article, it must ‘take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views’. That procedural irregularity is confirmed, according to the appellants, by the fact that, in Case T‑231/20, Price v Council, the General Court communicated the defence lodged by the Council to the applicant.
36 In the second place, the appellants submit that, on 19 January 2021, they requested that the proceedings be stayed on the basis of Article 69 of the Rules of Procedure of the General Court, so that the General Court could give its decision, ‘after hearing the parties’, pursuant to Article 54 of the Statute of the Court of Justice of the European Union. However, the parties were not heard at all on that request for a stay of proceedings.
37 In the third place, the appellants submit that the General Court failed to rule on the Council’s request to refer the matter to the Court of Justice because of the ‘identity of the substantive questions raised by the [appellants]’ and those forming the subject matter of the requests for a preliminary ruling submitted by the tribunal judiciaire de Perpignan (Court of Perpignan, France) and the tribunal judiciaire d’Auch (Court of Auch, France) pursuant to Article 267 TFEU.
38 The Council submits that the first ground of appeal is manifestly bound to fail.
39 In the first place, as regards the appellants’ claims that the General Court infringed Articles 64 and 130 of its Rules of Procedure, it should be borne in mind that no provision of the Rules of Procedure of the General Court can be interpreted as meaning that the fact that the General Court has decided, pursuant to Article 130(7) thereof, to reserve its decision on a plea of inadmissibility until it rules on the substance of the case means that it is deprived of the possibility of dismissing the action, without an oral part of the procedure, as inadmissible by reasoned order. It follows, on the contrary, from Article 130(6) of the Rules of Procedure of the General Court that, in the event of a plea of inadmissibility or lack of competence, the General Court may decide to open the oral part of the procedure (see, to that effect, order of 19 February 2008, Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 and 27).
40 It follows that the General Court did not commit any procedural irregularity by deciding, first to reserve its decision on the plea of inadmissibility raised by the Council until it ruled on the substance of the case, under Article 130(7) of its Rules of Procedure, and, subsequently, to give a decision by reasoned order.
41 Furthermore, it is apparent from paragraph 10 of the order under appeal that, on 21 August 2020, the appellants lodged their observations on that plea of inadmissibility at the Registry of the General Court. Consequently, it is sufficient to note that, since the appellants were able to submit their observations on that plea of inadmissibility and the General Court confined itself to ruling by reasoned order without ruling on substantive issues, the principle of audi alteram partem and, accordingly, the appellants’ rights of defence were respected.
42 Furthermore, since the General Court did not rule on the substance of the case in the order under appeal, it also did not infringe Article 64 of its Rules of Procedure, since it is clear that the General Court did not take into consideration the defence lodged by the Council. Those considerations cannot be called into question, contrary to what the appellants claim, by the fact that, in the context of other proceedings, the General Court communicated to the applicant the defence lodged by the Council.
43 In the second place, as regards the appellants’ claims that the General Court did not hear the parties on the appellants’ request for a stay of the proceedings, submitted under Article 54 of the Statute of the Court of Justice of the European Union and Article 69 of the Rules of Procedure of the General Court, it is apparent from paragraph 16 of the order under appeal that, on 19 January and 8 February 2021 respectively, the appellants requested that the proceedings be stayed and the Council submitted its observations on that request for a stay of proceedings, and that the President of the Tenth Chamber (Extended Composition) of the General Court rejected, by decision of 10 February 2021, that request for a stay of proceedings. Consequently, those claims cannot succeed and must be rejected.
44 In the third place, as regards the claims by which the appellants complain that the General Court disregarded the Council’s request to refer the matter to the Court of Justice because of the ‘identity of the substantive questions raised by the [appellants]’ and those forming the subject matter of the requests for a preliminary ruling submitted by the tribunal judiciaire de Perpignan (Court of Perpignan, France) and the tribunal judiciaire d’Auch (Court of Auch, France) under Article 267 TFEU, it is not apparent from the case file before the General Court that such a request was made by the Council. Those claims must therefore also be rejected.
45 In the light of the foregoing, the first ground of appeal must be rejected.
46 By the second ground of appeal, the appellants submit that the General Court erred in law in its assessment of their standing to bring proceedings under the second and third limbs of the fourth paragraph of Article 263 TFEU. This ground of appeal is divided in two parts.
47 By the first part of the second ground of appeal, the appellants argue that the General Court erred in law in holding that the decision at issue could not be classified as a ‘regulatory act’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
48 The appellants submit that the Court of Justice held, in the judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 60), that the purpose of the ‘regulatory act’ criterion is to enable natural and legal persons to bring, under less stringent conditions, an action for annulment of acts of general application other than legislative acts. The General Court added, in paragraphs 61 and 62 and 67 to 81 of the order under appeal, an ‘additional condition’, which is not apparent from the case-law arising from that judgment.
49 In that regard, the appellants criticise the General Court for having held, in the order under appeal, that the Withdrawal Agreement was an international agreement. They submit that the United Kingdom was still a Member State of the European Union at the time when that agreement was signed and that the agreement must therefore be regarded as an ‘internal act’ of the European Union.
50 That conclusion as regards the nature of the Withdrawal Agreement is supported, according to the appellants, first, by the very purpose of that agreement, which is - as is apparent from the sixth paragraph of its preamble - to resolve the situations created by EU law and, secondly, by the provisions of that agreement which indicate a limitation of the United Kingdom’s sovereignty, such as Article 6 thereof, which provides that EU law is to continue to apply where the Withdrawal Agreement refers to it, and Article 4 thereof, which provides that, in the event of a dispute, the judicial and administrative authorities of the United Kingdom must have due regard to the relevant case-law of the Court handed down after the end of the period laid down in Article 126 of that agreement, known as the ‘transition period’.
51 Furthermore, the appellants dispute the analysis carried out by the General Court in the order under appeal concerning ‘regulatory acts’ and, in particular, the analysis relating to whether decisions approving the conclusion of an international agreement may be regarded as such acts. In particular, the appellants complain that the General Court failed to take Article 275 TFEU into account. Since that article provides that certain international agreements or certain acts are excluded from the jurisdiction of the Court of Justice of the European Union, the question is therefore whether in the present case ‘the Withdrawal Agreement is an act falling within the scope of the common foreign and security policy or adopted on the basis of provisions relating to that policy’. According to the appellants, neither the decision approving the conclusion of an international agreement nor the signing of that agreement falls within the scope of the common foreign or security policy and the acts at issue cannot therefore be excluded from the jurisdiction of the Court of Justice.
52 In addition, the appellants challenge the General Court’s assessment of the primacy of international agreements concluded by the European Union over other acts of general application. They submit, in that regard, that the Court of Justice has jurisdiction over all acts of the EU institutions, whether legislative or not, and that international agreements are therefore regulatory acts falling within the scope of Article 263 TFEU.
53 The appellants submit that the acts at issue are regulatory acts which do not entail implementing measures and the effects of which, such as the loss of the status of EU citizen and of the rights attaching to that status, do not depend on the existence of such measures. They submit that they have standing to bring proceedings against those acts under the third limb of the fourth paragraph of Article 263 TFEU.
54 By the second part of the second ground of appeal, the appellants claim that the General Court erred in law as regards the assessment of their standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU, since the specific nature of their situation shows that they are individually concerned by the acts at issue.
55 The appellants maintain, in that regard, that they ‘were deprived of the possibility of democratically opposing the loss of their European citizenship’ even though they were ‘directly and individually concerned’ by the decision at issue.
56 In that regard, the appellants claim that the General Court erred in law in paragraph 51 of the order under appeal in finding that the decision at issue affected them ‘by reason of their objective status as United Kingdom nationals’. The appellants submit that their action sought the annulment of the acts at issue ‘in so far as they [did] not retain European citizenship and the attributes attaching thereto’, and that it sought to demonstrate that UK citizens who resided in the European Union formed a ‘specific group of persons’, such that ‘omitting them’ affects them more than any other person. Thus, the condition that the applicant must be individually concerned must be assessed in the light of the effects of the decision at issue on the appellants and not solely in the light of its purpose.
57 Furthermore, the appellants dispute the General Court’s findings in paragraph 52 of the order under appeal that the circumstances on which they relied do not support the conclusion that they form part of a ‘limited class of persons’, within the meaning of the case-law cited in paragraph 41 of that order.
58 The appellants submit, in that regard, that the question whether the condition that the applicant must be individually concerned is satisfied must also be assessed by reference to the combined effects of the acts at issue. In their submission, regulatory acts are capable of affecting a large number of persons, but it is only by taking account of the way in which they affect the individual situations of those persons that that condition can genuinely be assessed. Thus, the appellants form part of a ‘limited class of persons’, since they are British potential voters in French municipal elections and they include British municipal councillors already elected in France, persons resident in France and persons who have been unable to apply for dual nationality of Spain and the United Kingdom. Furthermore, the loss of EU citizen status and of the rights attaching to that status have also had other specific consequences, such as a reduction in their standard of living, which demonstrates an interest giving them standing to bring proceedings.
59 The Council disputes the appellants’ claims and submits that the General Court correctly held that the appellants did not have standing to bring proceedings under the second and third limbs of the fourth paragraph of Article 263 TFEU.
60 As a preliminary point, it should be noted that the General Court held that the appellants were not entitled to bring proceedings under the fourth paragraph of Article 263 TFEU, finding, in paragraphs 57 and 81 of the order under appeal respectively, that they were not individually concerned by the decision at issue, within the meaning of the second limb of that provision, and that that decision could not be classified as a regulatory act within the meaning of the third limb of that provision. In the interests of procedural economy, the General Court started from the premiss that the ‘loss’ or ‘deprivation’ of EU citizen status and of the rights attaching to that status is a consequence of the adoption of that decision.
61 Without it being necessary to assess whether, in so ruling, the General Court erred in law, the Court of Justice notes that, according to settled case-law, any fact which relates to the admissibility of the action for annulment brought before the General Court is likely to constitute a question of public policy which the Court of Justice, hearing an appeal, is required to raise of its own motion (orders of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraph 20, and of 4 February 2021, Pilatus Bank v ECB, C‑701/19 P, not published, EU:C:2021:99, paragraph 23).
62 It is settled case-law, in the first place, that the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to them. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (see, to that effect, inter alia, judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 59).
63 In the second place, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested act. Such an interest presupposes that the annulment of the act is likely, in itself, to have legal consequences and that the action may thus, by its result, procure a benefit for the party that brought it. The interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (see, to that effect, judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 55 and 58). By contrast, there is no interest in bringing proceedings when the favourable outcome of an action could not, in any event, give the applicant satisfaction (see, to that effect, judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49, and of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 85).
64 In the third place, an interest in bringing proceedings and locus standi are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in order to be admissible to bring an action for annulment under the fourth paragraph of Article 263 TFEU (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 62 and the case-law cited).
65 Having regard to the circumstances of the case and without there being any need to assess whether the General Court erred in law in ruling as it did in paragraphs 45 to 57, 61, 62 and 67 to 81 of the order under appeal, the Court considers that it must raise of its own motion the question whether the appellants have an interest in bringing proceedings.
66 In that regard, it should be borne in mind that Article 50(1) TEU provides that any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements. The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice (see, to that effect, judgments of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 50, and of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 53).
67 Furthermore, since possession of the nationality of a Member State constitutes, in accordance with Article 9 TEU and Article 20(1) TFEU, an essential condition for a person to be able to acquire and retain the status of citizen of the European Union and to benefit fully from the rights attaching to that status, the loss of that nationality therefore entails, for the person concerned, the loss of that status and of those rights (judgment of 9 June 2022, Préfet du Gers and Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 57).
68 Accordingly, for the appellants, the loss of the status of citizen of the European Union, and consequently the loss of the rights attached to that status, is an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, by virtue of Article 50(1) TEU (see, to that effect, judgment of 9 June 2022, Préfet du Gers et Institut national de la statistique et des études économiques, C‑673/20, EU:C:2022:449, paragraph 59), and not of the Withdrawal Agreement or the decision at issue.
69 It follows that the action must be dismissed as inadmissible, since it is directed against the acts at issue on the ground that those acts allegedly entailed the loss for the appellants of their status as EU citizens and of the rights attaching to that status, whereas that loss results solely from the United Kingdom’s sovereign decision to withdraw from the European Union, pursuant to Article 50(1) TEU.
70 The annulment of the decision at issue could not procure an advantage for the appellants capable of justifying an interest in bringing proceedings, since that loss would not, in any event, be called into question by that annulment.
71 Since the appellants do not have an interest in bringing proceedings against the decision at issue, there is no need to examine their arguments alleging an incorrect assessment of their standing to bring proceedings under the second and third limbs of the fourth paragraph of Article 263 TFEU. Any such error of law would have no bearing on the outcome of the dispute and would not affect the operative part of the order under appeal in so far as that action was dismissed as inadmissible (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).
72 It follows that, for the reasons set out in paragraphs 69 and 70 of the present judgment, the General Court did not err in law in concluding, in paragraph 83 of the order under appeal, that the action had to be dismissed as inadmissible.
73 The second ground of appeal must therefore be rejected.
74 In the light of all the foregoing considerations, the appeal must be dismissed.
75 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
76 In accordance with Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
77 As the appellants have been unsuccessful, they must be ordered to pay their own costs and those incurred by the Council, in accordance with the form of order sought by the Council.