Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

ORDER OF THE GENERAL COURT (Sixth Chamber)

26 June 2017 (*)

(Action for annulment - Brexit - Discontinuance - Removal from the register - Allocation of costs)

In Case T-713/16,

Fair Deal for Expats, established in Lauzun (France), and the other applicants whose names are set out in the annex, represented initially by P. Green QC, H. Warwick and M. Gregoire, Barristers, and R. Croft, E. Hazzan and L. Nelson, Solicitors, and subsequently by P. Green QC, H. Warwick and M. Gregoire, Barristers, and R. Croft, Solicitor,

applicants,

v

European Commission, represented by L. Flynn and I. Martínez del Peral, acting as Agents,

defendant,

ACTION brought under Article 263 TFEU for annulment, first, of the letter of the President of the European Commission of 28 June 2016, sent to the Members of the College of Commissioners and the Directors-General of the Commission following the referendum of 23 June 2016, giving the instruction not to negotiate with the United Kingdom before receipt of the notification provided for in Article 50 TEU and, secondly, of the passage of the speech of 28 June 2016, delivered by the President of the Commission and recorded in the Commission Press Release (SPEECH/162353), referring to that instruction,

THE GENERAL COURT (Sixth Chamber)

composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,

Registrar: E. Coulon,

makes the following

Order

1        By application lodged at the Court Registry on 7 October 2016, the applicants brought the present action for annulment. The action seeks the annulment, first, of the letter of the President of the European Commission of 28 June 2016, sent to the Members of the College of Commissioners and the Directors-General of the Commission following the referendum of 23 June 2016, giving the instruction not to negotiate with the United Kingdom before receipt of the notification provided for in Article 50 TEU and, secondly, of the passage of the speech of 28 June 2016, delivered by the President of the Commission and recorded in the Commission Press Release (SPEECH/162353), referring to that instruction.

2        In support of their action, the applicants pleaded, in essence, that the President of the Commission lacked competence to adopt the contested measures, that those measures infringed the Treaties and rules of law relating to their application, and that it was a misuse of powers to adopt those measures.

3        On 7 October 2016 the applicants also requested that their action be decided under an expedited procedure, in accordance with Article 152 of the Rules of Procedure of the General Court. On 19 October 2016 the Commission lodged its observations on that request. By decision of 26 October 2016 the General Court (Sixth Chamber) decided not to grant the application for an expedited procedure.

4        By separate document, lodged at the Court Registry on 16 December 2016, the Commission raised an objection of inadmissibility in accordance with Article 130(1) of the Rules of Procedure. The Commission contended, in essence, that the contested measures were not challengeable acts since they were not capable of producing legal effects as regards third parties. It stated in particular that there could not possibly be any change in the applicants’ legal position under EU law before the United Kingdom gave the notification provided for in Article 50 TEU of withdrawal from the European Union. Furthermore, the Commission stated that, as regards the contested speech, the action seemed to be out of time. The Commission therefore contended that the action had to be dismissed as manifestly inadmissible and that the applicants were to be ordered to pay the costs.

5        On 28 November 2016 the applicants sent the Commission a letter in which they referred to the British press making mention of talks between the Commission and the United Kingdom Government. They requested the Commission to state whether the order of the President of the Commission could be regarded as overtaken by events and indicated that, depending on the reply, they would decide whether their action was to be maintained. By letter of 29 November 2016, the Commission replied that it would file its reaction with the General Court by the date fixed by the latter. By letters of 22 December 2016 and 27 January 2017, the applicants repeated their request, in respect of which the Commission replied on 10 and 30 January 2017 respectively, stating in essence that it did not wish to engage in discussions in that regard outside the procedure before the Court.

6        By letter lodged at the Court Registry on 30 January 2017, the applicants informed the General Court that, in accordance with Article 125 of the Rules of Procedure, they were discontinuing their action. They also requested, pursuant to Article 136(2) of the Rules of Procedure, that the Commission be ordered to bear its own costs and their costs.

7        In support of their request that the Commission be ordered to pay all the costs, the applicants submit, in essence, that, by refusing to provide responses to their letters of 28 November 2016, 22 December 2016 and 27 January 2017, the Commission prevented earlier resolution of the dispute. They add that the interests of equity would require the Commission to be ordered to pay the costs. Apart from the Commission’s behaviour, they plead in this regard the fact that their action is entirely justified and raises an issue of public interest of paramount significance.

8        By letter lodged at the Court Registry on 6 February 2017, the Commission informed the Court that it had no observations on the discontinuance. In addition, it asked the Court to dismiss the applicants’ request under Article 136(2) of the Rules of Procedure and to order the applicants to pay the costs pursuant to Article 136(1) thereof.

9        Pursuant to Article 19(2) of the Rules of Procedure, the President of the Sixth Chamber decided to refer the request lodged under Articles 125 and 136(2) of the Rules of Procedure to the Sixth Chamber.

10      Under Article 136(1) and (2) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. However, at the request of the party who discontinues or withdraws from proceedings, the costs are to be borne by the other party if this appears justified by the conduct of that party.

11      In the present case, it is not apparent from the material in the file that the Commission’s conduct justifies its bearing the costs. Indeed, it is in the light of the arguments contained in the objection of inadmissibility and of passing events that the applicants have decided to discontinue their action for annulment, and not on account of an act or conduct of the Commission. Nor, contrary to the applicants’ assertions, has the Commission contributed to the prolonging of the present dispute since it has contended, from the objection of inadmissibility onwards, that the contested measures are internal documents that are not open to challenge and have no legal effects vis-à-vis third parties.

12      Accordingly, the applicants’ arguments do not demonstrate conduct on the part of the Commission that justifies an order that it pay the costs under Article 136(2) of the Rules of Procedure. Therefore, the applicants likewise cannot rely on grounds of equity to justify an order that the Commission pay the costs.

13      The orders pleaded by the applicants concern different situations and do not cast doubt on that conclusion. Unlike the situation in Groupement Adriano, Jaime Ribeiro, Conduril v Commission (order of 21 October 2011, T-335/09, EU:T:2011:614), a case in which the drafting of the contested measure was regarded as having been capable of giving rise to the impression, in the applicant’s mind, that a measure open to challenge by an action for annulment was involved, that was not true of the contested measures in the present case. Nor - in contrast to the case of González y Díez v Commission which gave rise to the order of 2 September 2004 (T-291/02, not published, EU:T:2004:252) - has the Commission withdrawn the contested measures.

14      The case must therefore be removed from the register and the applicants ordered to pay all the costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

1.      Case T-713/16 is removed from the register of the General Court.

2.      Fair Deal for Expats and the other applicants whose names are set out in the annex shall bear their own costs and those incurred by the European Commission.

Luxembourg, 26 June 2017.

Annex

George Birnie, residing in Lauzun (France),

John Carter, residing in Lauzun (France),

Richard Edwards, residing in Lauzun (France),

Wynne Edwards, residing in Lauzun (France),

Rosalie Griffiths, residing in Lauzun (France),

Margaret Morton, residing in Lauzun (France),

John Edward Mcdonald Nicholson, residing in Agnac (France),

John Shaw, residing in Lauzun (France).

*      Language of the case: English.

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