JUDGMENT OF THE GENERAL COURT (Third Chamber)
19 March 2010 (*)
(Privileges and immunities – Member of the European Parliament – Decision not to defend his privileges and immunities – Action for annulment – No longer any interest in bringing proceedings – No need to adjudicate – Action for damages – Conduct alleged against the Parliament – Sufficiently serious breach of a rule of law conferring rights on individuals – Causal link)
In Case T‑42/06,
Bruno Gollnisch, residing in Limonest (France), represented by W. de Saint Just and G. Dubois, lawyers,
applicant,
v
European Parliament, represented initially by H. Krück, C. Karamarcos and A. Padowska, and subsequently by H. Krück, D. Moore and A. Padowska, acting as Agents,
defendant,
APPLICATION for, first, annulment of the decision of the European Parliament of 13 December 2005 not to defend the immunity and privileges of Mr Bruno Gollnisch and, second, compensation for the damage suffered by Mr Gollnisch as a result of that decision,
THE GENERAL COURT (Third Chamber),
composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 28 January 2009,
gives the following
Judgment
Legal context
1. The Protocol on Privileges and Immunities
1 Article 9 of the Protocol on the Privileges and Immunities of the European Communities, originally annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities, then, by virtue of the Treaty of Amsterdam, to the EC Treaty (‘the Protocol’), provides:
‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.’
2 Article 10 of the Protocol provides:
‘During the sessions of the European Parliament, its Members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.
Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.’
2. The Parliament’s Rules of Procedure
3 Rule 5(1) in the 16th edition (July 2004) of the Parliament’s Rules of Procedure (OJ 2005 L 44, p. 1) provides that ‘Members shall enjoy privileges and immunities in accordance with the Protocol …’.
4 Rules 6(1) and (3) of the Parliament’s Rules of Procedure provide:
‘1. In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties.
…
3. Any request addressed to the President by a Member or a former Member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible.’
5 Rule 7(6) of the Parliament’s Rules of Procedure provides:
‘In cases concerning the defence of immunity or privileges, the committee shall state whether the circumstances constitute an administrative or other restriction imposed on the free movement of Members travelling to or from the place of meeting of Parliament or an opinion expressed or a vote cast in the performance of the mandate or fall within aspects of Article 10 of the Protocol … which are not a matter of national law, and shall make a proposal to invite the authority concerned to draw the necessary conclusions.’
3. Article 26 of the French Constitution
6 Article 26 of the French Constitution provides:
‘No Member of Parliament shall be subject to legal proceedings, investigations, arrest, detention or judgment for opinions expressed or votes cast by him while carrying out his duties.
No Member of Parliament may be arrested or subjected to any other measure depriving the Member of freedom or restricting that freedom for criminal or minor offences without the authorisation of the Bureau of the Assembly to which he belongs, except in the case of a crime or flagrante delicto or of final sentence.
Detention, measures depriving the Member of his freedom or restricting that freedom or the prosecution of the Member of Parliament shall be suspended during the session if the Assembly of which he is a member so requires …’
Facts
7 The applicant, Mr Bruno Gollnisch, is a Member of the European Parliament and a conseiller régional de la région Rhône-Alpes (Regional Councillor of the Rhône-Alps region, France).
8 On 11 October 2004, the applicant held a press conference at his political base in Lyon (Lyons, France).
9 On that occasion, the applicant discussed, successively, the following topics: the question of the Republic of Turkey’s accession to the European Union, the process of ratification of the Treaty establishing a Constitution for Europe, the case of the hostages in Iraq, the political and social situation and, finally, the report of the Commission on racism and denial at Jean Moulin Lyon-III University, delivered to the French Minister for Education (the so-called ‘Rousso report’) on, in particular, certain academics’ political views on the history of the Second World War in Europe.
10 On 15 October 2004, the French Minister for Justice ordered the opening of a police investigation regarding certain statements, made by the applicant at that press conference, which were regarded as calling into question the crimes against humanity committed by the National Socialist regime.
11 By letter of 29 November 2004, the procureur général près la cour d’appel de Lyon (Public Prosecutor before the Court of Appeal, Lyons) instructed the procureur de la République de Lyon (Public Prosecutor, Lyons) to prosecute the applicant for denial of crimes against humanity. The procureur de la République de Lyon initiated criminal proceedings against the applicant on the basis of Article 24a of the loi du 29 juillet 1881 sur la liberté de la presse (Law of 29 July 1881 on the freedom of the press (Bulletin des Lois (Journal of Laws), 1881, No 637, p. 125)). That article, which prohibits the public expression of an opinion denying the existence of crimes against humanity, on pain of criminal sanctions, was inserted by Article 9 of loi no 90-615, du 13 juillet 1990, tendant à réprimer tout acte raciste, antisémite or xénophobe (Law No 90-615 of 13 July 1990 to suppress all racist, antisemitic or xenophobic acts (JORF of 14 July 1990, p. 8333)).
12 On 7 April 2005, Mr Luca Romagnoli, a Member of the Parliament, addressed a letter, pursuant to Rule 6(3) of the Parliament’s Rules of Procedure, to the President of the Parliament asking him, in the following terms, to refer to the Committee on Legal Affairs a request for defence of the applicant’s parliamentary immunity:
‘There is here ... a clear case of fumus persecutionis, in which a member of the parliamentary opposition is being prosecuted on the orders of a member of the executive who is also his opponent locally.
Under [point (a) in the first paragraph] of Article 10 of the [Protocol], the parliamentary immunity enjoyed by Mr Gollnisch is that provided for by French constitutional law. Article 26 of the French Constitution provides that the Assembly to which a member belongs may require a prosecution to be suspended.
Under Rule 6(3) [of the Parliament’s Rules of Procedure], I have the honour, with Mr Gollnisch’s consent, to request the defence of his immunity.’
13 At the Parliament’s plenary sitting, on 14 April 2005, the President of the Parliament announced Mr Romagnoli’s letter and forwarded the request for defence of the applicant’s immunity to the Committee on Legal Affairs, which is responsible for such matters.
14 Ms Wallis, a Member of the Parliament, was appointed rapporteur for that file at the meeting of the Committee on Legal Affairs on 21 April 2005.
15 On 25 April 2005, Mr Romagnoli addressed a further letter to the President of the Parliament, following receipt by the applicant of a summons to appear on 26 April 2005 before the tribunal correctionnel de Lyon (Criminal Court, Lyons).
16 At the hearing before the tribunal correctionnel de Lyon, the case was adjourned to a later date on the ground that the request for defence of the applicant’s immunity had not yet been considered by the Parliament.
17 On 9 June 2005, the Chairman of the Parliament’s Committee on Legal Affairs wrote to the French Minister for Justice in order, first, to inform him of the existence of the request for defence of the applicant’s immunity and, second, to ask him certain questions relating to the judicial proceedings pending against the applicant.
18 On 13 July 2005, the Parliament’s President wrote to France’s Permanent Representative at the European Union to inform him of the state of the procedure before the Parliament and asked him to convey to the judicial authorities a request to stay the criminal proceedings temporarily to enable the Parliament to consider the matter and adopt a decision on the request for defence of the applicant’s immunity.
19 At its meeting on 14 July 2005, the Parliament’s Committee on Legal Affairs took an indicative vote in pursuance of which it instructed Ms Wallis to prepare a draft report on defence of the applicant’s immunity.
20 In reply to the Parliament’s President’s letter of 13 July 2005, the French Minister for Justice wrote to the President, on 18 July 2005, as follows:
‘It is for the court before which the proceedings are pending, after a public trial between the parties, to rule on the existence and sufficiency of the evidence adduced by the prosecution, the defendant being entitled until then to the presumption of innocence. As garde des sceaux (Keeper of the Seals) I cannot express any view on that point.
I note also that, in the context of the judicial investigation, Mr Gollnisch, although he did not comply with the summons addressed to him by the police, was not detained or made subject to any security measure, such measures being the only ones that require, in respect of members of the national parliament, pursuant to Article 26 of the [French] Constitution, prior authorisation by the Bureau of the Assembly to which they belong.’
21 After meeting several times and having considered three draft reports, the Parliament’s Committee on Legal Affairs, at its meeting on 22 November 2005, adopted a fourth draft report by Ms Wallis, rejecting the request for defence of the applicant’s immunity.
22 The statement of the grounds of that report is as follows:
‘4. Since its first five-year legislative period, the European Parliament has ruled on a number of requests for waiver of immunity. From Parliament’s debates on these requests some general principles have emerged which were given definitive recognition in the resolution adopted by Parliament at its sitting of 10 March 1987. These were based on the report by Mr Donnez on the draft protocol revising the Protocol … in respect of Members of the European Parliament (A2-121/86). It is worth briefly recapitulating some of these principles which are relevant in the present case:
(a) Parliamentary immunity is not a privilege for the benefit of an individual [M]ember of Parliament, but a guarantee of Parliament’s independence and that of its [M]embers vis-à-vis other institutions.
(b) The fact that Article 10, first paragraph, [point] (a), of the Protocol … refers to the immunities granted to members of national parliaments does not mean that the European Parliament has no power to create its own rules in the matter of the waiver of parliamentary immunity. Parliament’s decisions have gradually forged a coherent notion of European parliamentary immunity which is, in principle, independent of the various practices of the national parliaments. This avoids differences in treatment between Members resulting from their nationality. Consequently, whereas immunity existing under national law is considered, the European Parliament applies its own consistent principles in deciding whether to waive the immunity of a Member or not.
Parliamentary immunity exists to protect Members’ freedom of expression and freedom of political debate. Parliament’s competent committee has therefore consistently held that it is a fundamental principle that in all cases where the acts of the Member standing accused form part of his or her political activity or are directly related to such activity, immunity will not be waived.
This includes, for example, expressions of opinion deemed to be covered by a Member’s political activity made at demonstrations, at public meetings, in political publications, in the press, in a book, on television, by signing a political tract and even in a court of law.
(c) This principle is taken together with other arguments for or against the waiver of immunity, particularly “fumus persecutionis”, i.e. the presumption that the prosecution originates in an intention to cause prejudice to the Member’s political activities. As it is defined in the explanatory statement of the Donnez report the concept of “fumus persecutionis” means, in essence, that immunity is not waived where the suspicion exists that the prosecution is based on an intention to prejudice the Member’s political activities.
For instance, where proceedings are brought by a political adversary, in the absence of evidence to the contrary immunity will not be waived in so far as the proceedings have to be regarded as intended to harm the Member concerned and not to obtain reparation for damage. Likewise, where proceedings are brought in circumstances such as to suggest that they have been initiated solely in order to harm the Member concerned, immunity will not be waived.
III. Justification of the proposed decision
1. The Committee on Legal Affairs has discussed in detail the articles of the Protocol … which may apply. The Committee decided that the present case has to be examined under Article 9 of the Protocol … in connection with the abovementioned principles.
Article 9 states that “Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties”. That absolute immunity only applies to “opinions expressed or votes cast by [Members] in the performance of their duties”.
Parliament has consistently taken it as a fundamental principle that immunity may on no account be waived in cases in which the acts of which a Member stands accused were carried out in the performance of his or her political duties as a Member of the European Parliament or were directly related to such duties. The same principles must apply in the case of a request for the defence of the parliamentary immunity.
(a) Applying these principles, the Committee notes that, when Mr Gollnisch expressed his opinion during the press conference of 11 October 2004, he was not exercising his freedom of speech in connection with “the performance of his duties” as a Member of the European Parliament.
According to the explanations given by Mr Gollnisch, he expressed his opinion about the massacre of Katyn in response to questions from journalists about his highly critical remarks relating to political interference in the Rousso report on the political views of Lyon-III University academics. The statements were directly related with the professional activities of Mr Gollnisch as professor at the Lyon-III University and had nothing to do with his duties as a Member of the European Parliament.
It cannot therefore be maintained that he was acting “in the performance of his duties” as a Member of the European Parliament.
(b) Rule 7(6) of the Rules of Procedure [of the Parliament] is satisfied. According to the information given by the French Ministry of Justice, the criminal inquiry carried out against Mr Gollnisch does not hinder him in the performance of his duties, for example by preventing him from participating in Parliament’s sessions, committee meetings, etc. It appears from this information that Mr Gollnisch is not obliged to be present at the hearing and can be represented by his counsel. Furthermore, the hearing can be postponed if Mr Gollnisch so requests.
2. According to Rule 7(2) of the Rules of Procedure [of the Parliament], the Committee’s proposal for a decision should simply recommend the adoption or rejection of the request for the defence of immunity and privileges.
IV. Conclusions
On the basis of the above considerations, the Committee on Legal Affairs, having examined the reasons for and against defending immunity, recommends that the request for the defence of Mr Gollnisch’s immunity be rejected.’
23 By Decision 2005/2072 (IMM) of 13 December 2005 (‘the contested decision’), the Parliament followed that proposal and, confining itself to citing the report adopted by the Committee on Legal Affairs without adopting other reasons, decided ‘not to defend the immunity and privileges’ of the applicant.
24 By judgment of 28 February 2008, the cour d’appel de Lyon (Court of Appeal, Lyons) confirmed the judgment of the tribunal correctionnel sentencing the applicant to a suspended term of three months’ imprisonment and a fine of EUR 5 000, with part of the fine to compensate the civil parties.
25 By judgment of 23 June 2009, however, the Cour de cassation (Court of Cassation, France) quashed and annulled the decision of the cour d’appel de Lyon of 28 February 2008. The Cour de cassation decided, essentially, that the facts alleged against the applicant could not found a prosecution and, thus, brought the criminal proceedings against him to a definitive conclusion.
Procedure and forms of order sought by the parties
26 By application lodged at the Court Registry on 13 February 2006, the applicant brought an action, under the fourth paragraph of Article 230 EC, for annulment of the contested decision and compensation for the non-material damage he claimed to have suffered.
27 By a separate document lodged at the Court Registry on 13 February 2006, the applicant lodged an application, under Article 242 EC, for suspension of the contested decision’s operation. That application was rejected by order of 12 May 2006 of the President of the Court.
28 By document lodged at the Court Registry on 21 February 2006, Mr Romagnoli applied for leave to intervene in support of the form of order sought by the applicant. That application was rejected by order of 14 February 2008 of the President of the Court’s Third Chamber.
29 By a separate document lodged at the Court Registry on 28 April 2006, the Parliament raised an objection of inadmissibility pursuant to Article 114(1) of the Court’s Rules of Procedure, claiming that the entire action should be dismissed as inadmissible.
30 By document lodged at the Court Registry on 20 June 2006, the applicant submitted his observations on the Parliament’s objection of inadmissibility.
31 The objection of inadmissibility was joined to the substance by order of the Court (Third Chamber) of 22 January 2008.
32 The Parliament lodged its defence on 14 March 2008.
33 The applicant was requested, by letter from the Registry dated 1 April 2008, to submit his reply.
34 The applicant failed to submit his reply within the period fixed but none the less subsequently stated his wish for the resolution of the dispute.
35 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
36 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 28 January 2009.
37 Following the judgment of the Cour de cassation of 23 June 2009, the General Court decided, by order of 9 July 2009, to reopen the oral procedure and, by way of measures of organisation of procedure, requested the parties to produce certain documents and to reply to some questions concerning that judgment. That request was complied with.
38 The oral procedure was closed by order dated 17 September 2009 of the President of the Court’s Third Chamber.
39 The applicant claims that the Court should:
– annul the contested decision;
– award him the sum of EUR 8 000 as compensation for his non-material damage;
– award him the sum of EUR 4 000 for costs incurred for legal advice and the preparation of his action.
40 The Parliament contends that the Court should:
– declare that the action has become devoid of purpose and that following the judgment of the Cour de cassation of 23 June 2009 there is no need to adjudicate;
– in the alternative, dismiss the action as inadmissible or unfounded;
– order the applicant to pay the costs.
Law
1. The claim for annulment
Arguments of the parties
41 Invited by the Court to make submissions on the effects of the judgment of the Cour de cassation on these proceedings, the applicant submits first of all, in essence, that he still has a legal interest in obtaining the annulment of the contested decision, first, to avoid that decision constituting a precedent, secondly, because he is the object of further proceedings brought against him on new facts and it is therefore important that the Court rules on the questions of law raised by the contested decision, so that the Parliament does not repeat, in the future, a similar decision, thirdly, because the Cour de cassation’s decision has not entirely expunged the non-material damage which the contested decision caused him and, fourthly, because he has suffered material damage on account of the costs which he had to incur in order to challenge the contested decision.
42 Moreover, the applicant maintains, in essence, that his action is admissible.
43 The applicant advances six pleas in law in support of his action. He alleges, first, that the Parliament erred procedurally, secondly, that it infringed Articles 9 and 10 of the Protocol, thirdly, that it interfered with the settled practice of its Committee on Legal Affairs as regards both freedom of expression and fumus persecutionis, fourthly, that it infringed the principles of legal certainty and the protection of legitimate expectations, fifthly, that it prejudiced the independence of a Member and finally, sixthly, that it misapplied the provisions of its Rules of Procedure relating to proceedings which might lead to the disqualification of a Member.
44 The Parliament contends, in essence, that the applicant no longer has a legal interest in obtaining the contested decision’s annulment, since the criminal proceedings brought against him were irrevocably terminated following the Cour de cassation’s judgment of 23 June 2009 and, therefore, the issue of the applicant’s immunity for the purposes of those proceedings no longer arises. It follows, in the Parliament’s submission, that the contested decision’s annulment could not procure any legal benefit for the applicant.
45 The Parliament submits that the applicant is actually seeking, by his action, that it be constrained to review the case and, following that review, to defend his immunity and decide that the prosecution should be suspended, which is now impossible given the Cour de cassation’s decision.
46 Therefore, whilst fully maintaining that the action is inadmissible, the Parliament submits that, even were it held to be admissible, there is no longer any need to adjudicate upon it.
47 As regards admissibility, the Parliament submits, in essence, that the contested decision does not produce legal effects because of, first, its nature and, second, the general scheme of parliamentary immunity, and that, therefore, it is not a challengeable act.
48 As regards the substance, the Parliament contends in essence, first, that the action is directed against the report drawn up by the Committee on Legal Affairs and, in particular, against the statement of the grounds of that report; yet only the decision adopted by the Parliament when it meets in plenary can constitute an act of the Parliament, since neither the decision recommended in the report of the Committee on Legal Affairs nor the statement of the grounds can be regarded as being acts of the Parliament.
49 The Parliament argues, in essence, secondly, that acts relating to the defence of immunity cannot be based directly on the Protocol and that, therefore, the legal basis selected was the one contained in its Rules of Procedure on the procedure for adopting decisions to defend immunity.
50 The Parliament contends, in essence, thirdly, that in the legal framework for the defence of immunity, a decision of the Parliament not to defend immunity could theoretically be adopted either on the basis of Article 9 of the Protocol or on the basis of Article 10.
51 The Parliament submits, in essence, fourthly, that the applicant’s assertions concerning the necessary application of Article 10 do not so much raise the issue of the legal basis of the contested decision but that of its substantive assessment.
52 The Parliament asserts in essence, fifthly, regarding the applicability of the suspension of prosecutions, that the applicant does not claim, in his application, that the Parliament should have applied the third paragraph of Article 26 of the French Constitution, but that any decision to defend the applicant’s immunity should have had the effect provided for by that constitutional provision and that, according to the applicant, point (a) in the first paragraph of Article 10 of the Protocol does not refer back to the third paragraph of Article 26 of the French Constitution.
53 The Parliament argues in essence, sixthly, that even if it could have applied that constitutional provision as regards the applicant, it could, given its discretion, have adopted the same decision as the contested decision.
54 The Parliament contends in essence, seventhly, that the application of the third paragraph of Article 26 of the French Constitution, first, raises questions as to whether it ought to have acted directly on the basis of that provision of national law, rather than follow a procedure prescribed by its Rules of Procedure, since they assume the existence of immunity so that a procedure defending immunity can succeed, whereas in the context of the third paragraph of Article 26 of the French Constitution, no immunity exists until the Assembly adopts its decision. Moreover, even had it acted on the basis of the third paragraph of Article 26 of the French Constitution, the Parliament contends that it could have adopted a negative decision and the applicant’s legal position would thereby be the same.
55 The application of the procedure for suspending prosecutions raises, on the other hand, according to the Parliament, a problem as regards the scope to be given to the concept of ‘session’, which should be considered in its Community sense, which would have meant that the effects of a decision to suspend the prosecution would have expired at the end of the 2005/06 annual session, that is to say, on the second Tuesday in March 2006, failing renewal, by the Parliament, of the decision to require the suspension of prosecution.
56 The Parliament argues in essence, eighthly, that the applicant cannot validly claim infringement of the principle of the protection of legitimate expectations, since the Parliament gave him no specific, unconditional and consistent assurances which led him to believe that his immunity would be defended, and all the more so as the Parliament has a broad discretion in the matter.
57 The Parliament contends, ninthly, that the applicant has adduced no evidence to support his allegations that the contested decision prejudices his independence as a Member.
58 Finally, the Parliament argues, tenthly, that the applicant’s allegations of infringement of the second subparagraph of Rule 3(6) of the Parliament’s Rules of Procedure are completely unfounded since that provision has no connection with the contested decision.
Findings of the Court
59 It is appropriate to examine, first of all, whether the applicant still has a legal interest in pursuing the proceedings and whether, in consequence, there is still a need to adjudicate on the action for annulment.
60 According to settled case-law, an applicant’s legal interest in bringing the proceedings must exist on the day on which they are brought, failing which they will be inadmissible. Furthermore, the applicant’s interest in obtaining satisfaction must continue until the final decision, failing which there will be no need to adjudicate (see, to that effect, Case 14/63 Forges de Clabecq v High Authority [1963] ECR 357, 371, and Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42).
61 In fact, it is settled case-law that there is no longer any need to adjudicate on a claim for annulment in the event that an applicant has, on account of an event occurring since the action was brought, lost all legal interest in having the contested measure annulled (see, to that effect, the order in Case T‑28/02 First Data and Others v Commission [2005] ECR II‑4119, paragraphs 36 and 37, and the case-law cited) which means that the annulment of that measure is, of itself, no longer capable of having legal consequences (see, to that effect, the order in Case T‑25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II‑363, paragraph 16, and the case-law cited).
62 In addition, it has been held that if the interest which an applicant claims concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain (Case T‑138/89 NBV and NVB v Commission [1992] ECR II‑2181, paragraph 33, and Case T‑141/03 Sniace v Commission [2005] ECR II‑1197, paragraph 26).
63 In the course of these proceedings, the Cour de cassation decided that the facts alleged against the applicant were not capable of founding a prosecution. It thus definitively terminated the criminal proceedings which were brought against him and gave rise to the request that led to the adoption of the contested decision.
64 The annulment of the contested decision is therefore no longer capable, of itself, of having any legal consequences. Following the judgment of the Cour de cassation, it can in fact be excluded that the Parliament will adopt a new decision relating to the applicant’s immunity concerning the facts which gave rise to the present case, since the Cour de cassation has decided that those facts were incapable of founding a prosecution.
65 The applicant therefore no longer has any legal interest in obtaining the annulment of the contested decision and there is no need to adjudicate on the claim for annulment.
66 That conclusion is not undermined by the applicant’s arguments in his replies to the Court’s written question seeking his submissions on the effects of the Cour de cassation’s judgment of 23 June 2009.
67 The applicant alleges, in his reply to the Court’s written question, that he is the object of other proceedings on the initiative of organisations which are hostile to his teaching, because of a press release issued by a group of elected officials to which he belongs, and that since he has claimed immunity in that connection, it would be helpful if the Court ruled on this case.
68 It follows from the case-law of the Court of Justice that an applicant can retain a legal interest in claiming the annulment of an act of an institution only if the alleged unlawfulness is liable to recur in the future independently of circumstances particular to the case which gave rise to the action brought by that applicant (see, to that effect, Wunenburger v Commission, paragraph 60 above, paragraphs 50 to 52, and the case-law cited).
69 Even assuming, as he claims, that the applicant is the object of further proceedings in respect of new facts, that does not establish that the unlawfulness alleged in this case is liable to recur in the future independently of the circumstances particular to this case. The applicant does not actually challenge the lawfulness of the provisions which were applied to him, but argues that their application by the Parliament was unlawful in the circumstances particular to the case which gave rise to this dispute. It follows that the case-law referred to in paragraph 68 above is not applicable in this case and that, therefore, the applicant cannot validly rely, in order to establish a legal interest in bringing the proceedings, on the fact that such unlawfulness is liable to recur independently of the circumstances particular to the present case.
70 In addition, the applicant relies on his legal interest in obtaining the annulment of the contested decision in order to establish that his claim for damages, seeking compensation for the damage to his reputation which he alleges, is well founded.
71 It is correct that it follows from the case-law that an application for annulment is not inadmissible on the ground of lack of interest in bringing proceedings merely because, if the contested decision were annulled, it might prove impossible in the circumstances for the institution from which the act emanated to fulfil its obligation under the Treaty. In such a case, an interest in making the application still subsists, at least as the basis for a possible action for damages (Case 76/79 Könecke Fleischwarenfabrik v Commission [1980] ECR 665, paragraph 9, and Joined Cases C‑68/94 and C‑30/95 France and Others v Commission [1998] ECR I‑1375, paragraph 74).
72 However, in this case the applicant has claimed damages concurrently with his claim for annulment and the Court can therefore determine the existence of a fault, possibly committed by the Parliament, without any need to adjudicate on the claim for annulment. The applicant cannot therefore usefully rely on that case-law to establish a legal interest in bringing the proceedings.
73 Finally, compensation for expenses caused by this action comes within the compass of a determination as to the costs and cannot constitute any basis for the applicant’s legal interest in obtaining the annulment of the contested decision.
74 Therefore, without it being necessary to consider the grounds of inadmissibility put forward by the Parliament, it must be held that there is no need to adjudicate on the claim for annulment.
2. The claim for damages
Admissibility
Arguments of the parties
75 The Parliament contends, in essence, that the applicant does not put forward, in his application, any concrete evidence, let alone proof, which establishes the satisfaction of the three cumulative conditions for the Community’s liability to be incurred, namely the unlawfulness of the conduct of which the institution is accused, the fact of damage and the existence of a causal link between the alleged conduct and damage, and that, therefore, the claim for damages is inadmissible.
76 The applicant submits, in essence, first, that he has proved to the requisite legal standard that the Parliament’s conduct was unlawful, recalling the pleas in law upon which he relied in support of his claim for annulment and, in particular, the fact that the contested decision was adopted on a manifestly inappropriate legal basis. He submits, secondly, that the contested decision exposed him to non-material damage and ‘judicial persecution’, an injury that consists in damage to his reputation arising from the fact that the entire French and international press interpreted the refusal to defend his immunity as a disavowal by the Parliament. He submits, thirdly, that he has established the causal link between the Parliament’s unlawful act and the damage flowing from it.
Findings of the Court
77 According to Article 44(1)(c) of the Rules of Procedure, applications must state, in particular, the subject-matter of the action and give a summary of the pleas advanced. An application seeking compensation for damage allegedly caused by an institution must, to satisfy those requirements, state the evidence on which the conduct alleged against the institution may be identified, the reasons why it is submitted that a causal link exists between that conduct and the damage claimed to have been suffered, and the nature and extent of that damage (see the order in Case T‑376/04 Polyelectrolyte Producers Group v Council and Commission [2005] ECR II‑3007, paragraph 54, and the case-law cited). Those statements must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further supporting information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action is to be admissible – that the basic legal and factual particulars relied on be indicated, at least summarily, but coherently and intelligibly in the application itself (see Case T‑308/05 Italy v Commission [2007] ECR II‑5089, paragraph 72, and the case-law cited).
78 It is necessary, consequently, to determine whether the statements contained in the application were sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the claim for damages without any further supporting information.
79 It is plain from reading the application, which is particularly detailed, that the conduct alleged against the Parliament is clearly identified, that the application states that the contested decision exposed the applicant to non-material damage and ‘judicial persecution’ and that it contains a claim for an order that the Parliament pay the sum of EUR 8 000 as compensation for the non-material damage.
80 Those statements are sufficient to enable the Parliament to defend itself and the Court to adjudicate on the claim for damages.
81 The claim for damages must accordingly be held to be admissible.
Substance
Arguments of the parties
82 The applicant submits, in essence, that the Parliament’s conduct was unlawful and caused him non-material damage, which he has specified as damage to his reputation. He quantifies that damage at EUR 8 000. He accepts, however, that the judgment delivered by the Cour de cassation has expunged some of that damage.
83 It is appropriate to note that the applicant pleads, in essence, first, that the Parliament erred procedurally, secondly, that it infringed Articles 9 and 10 of the Protocol, thirdly, that it interfered with the settled practice of its Committee on Legal Affairs as regards both freedom of expression and fumus persecutionis, fourthly, that it infringed the principles of legal certainty and the protection of legitimate expectations, fifthly, that it prejudiced the independence of a Member and finally, sixthly, that it misapplied the provisions of its Rules of Procedure relating to a procedure which might lead to the disqualification of a Member.
84 As regards the second complaint, the applicant argues, in essence, that Article 9 of the Protocol, which covers opinions expressed and votes cast in the performance of their duties by Members of the Parliament and which was adopted by the Parliament as the basis for its decision not to defend his immunity, could not be applied in this case, since that provision concerns only opinions expressed or votes cast within the framework of the plenary assembly and meetings of parliamentary bodies, such as committees or political groups, and not opinions expressed at a conference or during an election campaign.
85 The applicant submits that, conversely, Article 10 of the Protocol should have been applied to his situation, since that provision in fact concerns, particularly, actions other than opinions or votes, whether within the framework of the European Parliament or not. The remarks for which he was prosecuted were made at a press conference to mark the resumption of political activities after the summer recess in the premises of the political party of which he is the representative.
86 By relying solely on Article 9 of the Protocol, the Parliament thus made an error of law.
87 The Parliament contends, in essence, that the conditions for the Community’s liability to be incurred are not satisfied and that the claim should be dismissed as unfounded.
88 As regards the unlawfulness of the conduct alleged against it, the Parliament argues, in essence, in connection with the claim for annulment, first, that the action is, in reality, directed against the report drawn up by the Committee on Legal Affairs, whereas only the decision the Parliament itself adopted can constitute one of its acts, since neither the decision recommended in the report of the Committee on Legal Affairs nor the statement of its grounds can be regarded as being an act of the Parliament; secondly, that, since acts relating to the defence of immunity cannot be based directly on the Protocol, the legal basis selected was the one contained in its Rules of Procedure on the procedure for adopting decisions on the defence of immunity; thirdly, that a decision of the Parliament not to defend immunity could theoretically have been adopted either on the basis of Article 9 of the Protocol or on that of Article 10; fourthly, that the applicant’s assertions that it was necessary to apply Article 10 of the Protocol do not so much raise the issue of the legal basis of the act but that of its substantive assessment; fifthly, that, according to the applicant, point (a) in the first paragraph of Article 10 of the Protocol does not refer back to the third paragraph of Article 26 of the French Constitution, and that the applicant does not claim, in his application, that the Parliament should have applied the third paragraph of Article 26 of the French Constitution, but that any decision to defend the applicant’s immunity should have had the effect provided for by that constitutional provision; sixthly, that, even if it could have applied that constitutional provision as regards the applicant, the Parliament could, given its discretion, have adopted the same decision as the contested decision; seventhly, that the application of the third paragraph of Article 26 of the French Constitution raises questions as to whether it ought to have acted directly on the basis of that provision of national law, rather than follow a procedure laid down by its Rules of Procedure, and that, even had the Parliament acted on the basis of the third paragraph of Article 26 of the French Constitution, it could have adopted a negative decision and the applicant’s legal position would thereby be the same; in addition, the effects of a decision to suspend the prosecution would have expired at the end of the 2005/06 annual session, that is to say, on the second Tuesday in March 2006, failing renewal, by the Parliament, of the decision to require the suspension of the prosecution, that is to say, before the applicant’s conviction by the tribunal correctionnel; eighthly, that the applicant cannot validly claim infringement of the principle of the protection of legitimate expectations; ninthly, that the applicant has adduced no evidence to support his allegations that the contested decision prejudices his independence as a Member; finally, tenthly, that the applicant’s allegations of infringement of the second subparagraph of Rule 3(6) of the Parliament’s Rules of Procedure are completely unfounded.
89 As regards the causal link, the Parliament contends that it is in no way responsible for the fact that third parties have misinterpreted the contested decision and seen it as a presumption of the applicant’s guilt.
Findings of the Court
90 According to established case-law, in order for the Community to incur non-contractual liability, within the meaning of the second paragraph of Article 288 EC, on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44).
91 Those three conditions for the Community’s liability to be incurred are cumulative (Case C‑257/98 P Lucaccioni v Commission [1999] ECR I‑5251, paragraph 14, and Case T‑43/98 Emesa Sugar v Council [2001] ECR II‑3519, paragraph 59). Thus, failure to meet one of them is sufficient for an action for damages to be dismissed (Case T‑146/01 DLD Trading v Council [2003] ECR II‑6005, paragraph 74).
92 In this case, it is appropriate to examine, first of all, the allegations relating to the unlawfulness of the Parliament’s conduct.
– The conduct alleged against the Parliament
93 As regards the first of the three requirements, mentioned in paragraph 90 above, for the Community’s non-contractual liability to be incurred, the case-law requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards the requirement that the breach must be sufficiently serious, the decisive test for determining whether that requirement is met, where, in particular, the institution concerned has a broad discretion, is whether that institution has manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 43 and 44, and Joined Cases T‑198/95, T‑171/96, T-230/97, T‑174/98 and T-225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134).
94 Furthermore, while the privileges and immunities conferred on the European Communities by the Protocol have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the Communities (orders in Case 1/88 SA Générale de Banque v Commission [1989] ECR 857, paragraph 9, and Case C-2/88 Imm. Zwartfeld and Others [1990] ECR I‑3365, paragraph 19), the fact remains that they have been expressly accorded to Members of the Parliament and to officials and other staff of the Community institutions. The fact that the privileges and immunities have been provided in the public interest of the Community justifies the power given to the institutions to waive the immunity where appropriate but does not mean that these privileges and immunities are granted to the Community exclusively and not also to its officials, to other staff and to Members of the Parliament. Therefore the Protocol confers an individual right on the persons concerned, compliance with which is ensured by the system of rights of recourse established by the Treaty (see, to that effect, Case T‑345/05 Mote v Parliament [2008] ECR II‑2849, paragraph 28; see also, by analogy, Case 6/60 Humblet v État belge [1960] ECR 559, 571).
95 In his letter of 7 April 2005 addressed to the President of the Parliament with a view to a reference to the Committee on Legal Affairs of a request for defence of the applicant’s immunity, Mr Romagnoli, by referring to point (a) in the first paragraph of Article 10 of the Protocol, stated that the immunity enjoyed by Mr Gollnisch was that provided for by Article 26 of the French Constitution which provides that the Assembly to which the Member of Parliament belongs may require a prosecution to be suspended. He was acting accordingly on the basis of Rule 6(3) of the Parliament’s Rules of Procedure, in defence of Mr Gollnisch’s immunity, with the latter’s agreement.
96 At the hearing, the Parliament agreed that the object of Mr Romagnoli’s request was explicitly to obtain from the Parliament a requirement that the prosecution be suspended pursuant to point (a) in the first paragraph of Article 10 of the Protocol and Article 26 of the French Constitution.
97 By following the proposal made to it by the Committee on Legal Affairs not to defend Mr Gollnisch’s immunity and by referring, in the contested decision, to the report of that committee without expressing any reservations regarding the content of the statement of the grounds contained in that document, the Parliament adopted as its own the grounds of the report.
98 It follows that the criticism of the statement of the grounds of the Committee on Legal Affairs’ report is to be treated as being directed against the grounds of the contested decision itself (see, to that effect, Mote v Parliament, paragraph 94 above, paragraph 59).
99 The draft reports of the Committee on Legal Affairs show that:
– in the first draft report, the proposed conclusion was to defend the applicant’s immunity on the basis of point (a) in the first paragraph of Article 10 of the Protocol;
– in the second draft report, the proposed conclusion was not to defend the applicant’s immunity on the basis of reasoning founded on point (a) in the first paragraph of Article 10 of the Protocol;
– in the third draft report, the conclusion was not to defend the applicant’s immunity either on the basis of Article 9 or on the basis of Article 10 of the Protocol;
– in its last version, the conclusion of the report, as adopted by the Committee on Legal Affairs and then by the Parliament itself, was not to defend the applicant’s immunity, stating in paragraph 1, under the title ‘III. Justification of the proposed decision’, that the Committee on Legal Affairs decided that the present case had to be examined under Article 9 of the Protocol.
100 Having regard to the content of the request which had been submitted to the Parliament, the object of which was to obtain the suspension of the prosecution pursuant to point (a) in the first paragraph of Article 10 of the Protocol and Article 26 of the French Constitution, the Parliament, by deciding to examine that request solely in the light of Article 9 of the Protocol, must be held to have refused to examine it under point (a) in the first paragraph of Article 10 thereof.
101 It must be accepted that the Parliament has a broad discretion as to the direction it wishes to give to a decision following a request such as that made in this case.
102 The fact remains that, since, in this case, the Parliament had before it a request, which was unambiguous, to suspend the prosecution on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the question whether the decision should be taken on the basis of Article 9 or on that of point (a) in the first paragraph of Article 10 of the Protocol is not within the ambit of the Parliament’s discretion.
103 In fact, the Parliament did not decide to accede or not to accede to the request made of it, which would have constituted a decision within its discretion.
104 On the other hand, the Parliament did reply to the request made of it that, in the light of Article 9 of the Protocol, it did not wish to defend the applicant’s immunity.
105 By refraining from deciding on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the Parliament did not adopt a decision on a possible suspension of prosecution, as provided for by the third paragraph of Article 26 of the French Constitution.
106 Indeed, the provisions of point (a) in the first paragraph of Article 10 of the Protocol mean that the extent and scope of the immunity enjoyed by Members of the Parliament in the territory of their own State are to be determined by the various national laws to which that provision refers.
107 Moreover, in the light of the fact that, under the first subparagraph of Article 7(2) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage (OJ 1976 L 278, p. 5), from the European Parliament elections in 2004, the office of Member of the European Parliament is to be incompatible with that of member of a national parliament, it is for the European Parliament to ensure the effectiveness of the immunities provided for by point (a) in the first paragraph of Article 10 of the Protocol, as the Parliament accepted at the hearing.
108 Since, for the reasons stated in paragraph 94 above, point (a) in the first paragraph of Article 10 of the Protocol, the purpose of which – combined with the provisions of national law to which it refers – is to establish the system of immunities enjoyed by Members of the Parliament in the territory of their own State during the Parliament’s sessions, confers an individual right on the persons concerned and since it constitutes, therefore, a rule of law intended to confer rights on the Members of the Parliament entitled to it, it follows that, by refraining from deciding on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the Parliament committed a sufficiently serious breach of a rule of law intended to confer rights on individuals.
109 It is therefore necessary to consider whether the other requirements for the Community’s non-contractual liability to be incurred are satisfied, namely those relating to the reality of the damage and the existence of a causal link.
– The causal link
110 It is settled case-law in respect of the Community’s non-contractual liability that the requirement concerning the existence of a causal link is satisfied if there is a direct link of cause and effect between the misconduct of the institution concerned and the damage alleged, a link which it is for the applicant to prove. The Community can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned (Joined Cases C‑363/88 and C‑364/88 Finsider and Others v Commission [1992] ECR I‑359, paragraph 25, and order of 5 July 2007 in Case C‑255/06 P Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission (not published in the ECR), paragraph 61), that is to say, the conduct must be the determining cause of the harm (see the order in Case T‑201/99 Royal Olympic Cruises and Others v Council and Commission [2000] ECR II‑4005, paragraph 26, and the case-law cited). By contrast, it is not the responsibility of the Community to compensate for every harmful consequence, even a remote one, of the conduct of its organs (see, to that effect, Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21).
111 The applicant alleges that the Parliament’s unlawful acts, which are noted in paragraph 83 above, caused the damage to his reputation upon which he relies.
112 It must however be pointed out that the applicant stated in his reply of 23 July 2009 to the Court’s written question that the Cour de cassation’s judgment had not completely expunged the non-material damage caused by the contested decision. The applicant thus himself identifies his prosecution by the French authorities as the cause of that damage or part of it.
113 Therefore, the Parliament’s unlawful act, which was the refusal to consider the request under point (a) in the first paragraph of Article 10 of the Protocol and, thus, the failure to reply on that basis, is not the direct and determining cause of the damage to his reputation – or at least part of it – upon which he relies.
114 In any event, the illegality vitiating the contested decision cannot be the direct and determining cause of the damage to his reputation upon which the applicant relies.
115 Indeed, as the applicant accepted in his written reply to the Court’s question regarding the effects of the judgment of the Cour de cassation, had the Parliament relied on point (a) in the first paragraph of Article 10 of the Protocol, it could have adopted validly either a decision to request that the prosecution be suspended or a decision not to request that the prosecution be suspended.
116 Given the Parliament’s wide discretion in that respect, a decision to require that a prosecution be suspended is not a necessary consequence of the submission of a request addressed to it for that purpose.
117 Therefore, the fact that it was on an incorrect legal basis that the Parliament did not accede to the request made to it to require that the prosecution be suspended cannot be the direct and determining cause of the damage alleged assuming it to be established.
118 Since a causal link has not been established, the application for damages must be dismissed as unfounded, without the need to consider the final requirement for the Community’s liability to be incurred, that is to say, the damage.
Costs
119 The applicant claims, in essence, an order that the Parliament pay him a sum of EUR 4 000 for costs incurred for legal advice and the preparation of his action. He defers to the wisdom of the Court as regards the admissibility of that claim.
120 The Parliament contends, in essence, that the payment of a fixed sum as claimed by the applicant is not provided for by Article 87 et seq. of the Rules of Procedure and that the claim against the Parliament for costs is therefore inadmissible.
121 Under Article 91(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are to be regarded as recoverable costs.
122 Although he is not entitled, in that respect, to a fixed sum, it must be held that the applicant’s claim is for an order that the Parliament pays the costs. Therefore, it is not inadmissible.
123 Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings.
124 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
125 In the circumstances of this case, it is appropriate to decide that the Parliament shall bear its own costs and pay two thirds of the costs incurred by the applicant, including those relating to the application for interim measures.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Rules that there is no need to adjudicate on the claim for annulment;
2. Dismisses the claim for damages;
3. Orders the European Parliament to bear its own costs and to pay two thirds of the costs incurred by Mr Bruno Gollnisch, including those relating to the application for interim measures;
4. Orders Mr Bruno Gollnisch to bear one third of his costs, including those relating to the application for interim measures.
Azizi | Cremona | Frimodt Nielsen |
Delivered in open court in Luxembourg on 19 March 2010.
[Signatures]