ORDER OF THE GENERAL COURT (Seventh Chamber)
16 January 2024 (*)
(Action for annulment – Institutional law – Member of Parliament – Request for the lifting of parliamentary immunity by the European Chief Prosecutor – Decision of the President of the Parliament to announce this request to the Parliament and refer it to the Committee of Legal Affairs – Acts not open to challenge – Inadmissibility)
In Case T‑46/23,
Eva Kaili, residing in Ixelles (Belgium), represented by S. Pappas, lawyer,
applicant,
v
European Parliament, represented by N. Lorenz and A.-M. Dumbrăvan, acting as Agents,
and
European Public Prosecutor’s Office, represented by L. De Matteis, C. Charalambous, and E. Farhat, acting as Agents,
defendants,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse and B. Ricziová (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, including:
– the plea of inadmissibility put forward by the Parliament by separate document lodged at the Court Registry on 20 April 2023,
– the plea of inadmissibility put forward by the European Public Prosecutor’s Office by separate document lodged at the Court Registry on 21 April 2023,
– the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 5 June 2023,
makes the following
Order
1 By her action pursuant to Article 263 TFEU, the applicant, Ms Eva Kaili, seeks the annulment, first, of the request of the European Chief Prosecutor of 15 December 2022 to lift her parliamentary immunity and, second, of the decision of the President of the European Parliament to announce that request to the European Parliament and refer it to the Committee of Legal Affairs.
Background to the dispute
2 By letter of 15 December 2022, sent to the President of the Parliament, the European Chief Prosecutor requested, in accordance with Article 29(2) of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1), the lifting of the privileges and immunities of two Members of Parliament, including the applicant, and of six accredited parliamentary assistants. It was stated therein that those persons were the subject of an investigation by the EPPO concerning the management of parliamentary allowances.
3 By letter of 9 January 2023 sent to the President of the Parliament, the European Chief Prosecutor stated that, as regards the Members of Parliament, in addition to Articles 11, 17 and 19 to 22 of Protocol No 7 on the privileges and immunities of the European Union (OJ 2016 C 202, p. 266) (‘the Protocol on privileges and immunities’), her request of 15 December 2022 must also be understood as referring to Articles 8 and 9 of that protocol.
4 On 10 January 2023, the Deputy Secretary-General of the Parliament sent a letter to the applicant to inform her that the EPPO had submitted a request to the Parliament to lift her parliamentary immunity and that, in accordance with Article 9(1) of the Rules of Procedure of the European Parliament, that request would be announced in plenary session and referred to the Committee of Legal Affairs (‘the letter of 10 January 2023’). The applicant was also informed that she could consult the file in the Parliament’s premises in Brussels (Belgium) and Strasbourg (France).
5 By letter dated 11 January 2023, the Head of the Members’ administration Unit in the Parliament sent the letter of 10 January 2023 to the applicant’s lawyer and invited him to consult the EPPO’s file.
6 At the plenary session of the Parliament of 18 January 2023, the President of the Parliament announced that she had received the European Chief Prosecutor’s request. That request was referred to the Committee of Legal Affairs.
Forms of order sought
7 The applicant claims that the Court should:
– annul the request of the European Chief Prosecutor of 15 December 2022 and the decision of the President of the Parliament, disclosed by the letter of 10 January 2023, to send that request to the Parliament and refer it to the Committee of Legal Affairs (‘the decision of the President of the Parliament’);
– order the EPPO and the Parliament to pay the costs.
8 The Parliament contends, in essence, that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
9 The EPPO contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
10 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Parliament and the EPPO have each requested a ruling on inadmissibility, the Court, considering that it has sufficient information from the documents in the case file, hereby decides to give a ruling regarding those requests without taking further steps in the proceedings.
The request of the European Chief Prosecutor
11 The EPPO raises a plea of inadmissibility of the action on the ground that the request of its Chief Prosecutor of 15 December 2022 is not an act open to challenge under Article 263 TFEU. Principally, it submits, in essence, that that request does not produce binding legal effects as regards the applicant. The request is a preliminary step which initiates the procedure for the lifting of the applicant’s immunity before the competent institution. It follows that, first, the said request is not an act that is open to challenge under the first paragraph of Article 263 TFEU. Secondly, the applicant is not directly concerned by the request of the European Chief Prosecutor. Thirdly, the applicant does not have any interest in the present case in seeking the annulment of that request, since that annulment cannot, in itself, procure a benefit for her. In the alternative, if the Court considers that that request produces legal effects as regards the applicant, the EPPO submits that the Court does not have jurisdiction to review that request.
12 The applicant disputes the EPPO’s arguments.
13 The applicant alleges, inter alia, that the request of the European Chief Prosecutor of 15 December 2022 is amenable to review given that the introduction of that request is mandatory where the conditions set out in Article 29(2) of Regulation 2017/1939 are met. In addition, such a request obliges the President of the Parliament to act, the latter having responsibility for its implementation, in principal with no discretion, and the subsequent act of the President of the Parliament will automatically have serious consequences for the applicant’s legal situation. Accordingly, the applicant is ultimately directly and seriously affected by the request of the European Chief Prosecutor by being the subject of a procedure in which she is the ‘defendant, defending her immunity, which for a politician and regulator constitutes a severe moral and reputational damage even if at the end the waiver is not granted’. She also submits that that request produces, taking account of its content, legal effects in her regard.
14 In addition, the applicant states that, having regard to its own effects, the request of the European Chief Prosecutor should be detached from the subsequent steps which could lead to the lifting of her immunity. Moreover, that request contains a definitive position of the EPPO.
15 In accordance with the second sentence of the first paragraph of Article 263 TFEU, the Court of Justice of the European Union is to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
16 In those circumstances, according to settled case-law, where, as in the present case, the applicant is a natural or legal person, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change to his or her legal position may be the subject of an action for annulment under Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51).
17 Thus, it is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, that constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 39).
18 It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings were themselves the culmination of a special procedure distinct from the main procedure and themselves produce independent legal effects and must therefore be capable of forming the subject matter of an action for annulment in order to ensure sufficient legal protection (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraphs 53 and 54).
19 In order to determine whether the contested act produces binding legal effects, it is necessary to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, where appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32 and the case-law cited; judgment of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47).
20 In the present case, the request of the European Chief Prosecutor of 15 December 2022 was submitted to the Parliament on the basis of Article 29(2) of Regulation 2017/1939, according to which, where the investigations of the EPPO involve persons protected by privileges or immunities under EU law, in particular the Protocol on privileges and immunities, and such privilege or immunity presents an obstacle to a specific investigation being conducted, the European Chief Prosecutor is to make a reasoned written request for its lifting in accordance with the procedures laid down by EU law.
21 As regards the content of the request of the European Chief Prosecutor, it merely asks the Parliament to lift the applicant’s immunity and refers, in an annex, to the type of irregularities that are the subject matter of the investigation. That request does not contain any definitive position by the EPPO as regards the investigation opened in relation to the applicant.
22 As regards the context of the request of the European Chief Prosecutor and the EPPO’s powers, it follows from the wording of Article 29(2) of Regulation 2017/1939 and of the general scheme of the regulation that the request to lift immunity is a preliminary and necessary measure, made available to the EPPO by the EU legislature, in order to ensure the effectiveness of the investigations where the immunity from which a person benefits is an obstacle to an investigation relating to him or her.
23 Furthermore, it must be recalled that the third paragraph of Article 9 of the Protocol on privileges and immunities confers on the Parliament the exclusive right to waive the immunity provided for in that article, that is to say, the right to deprive a Member of the protection he or she enjoys under that provision. Such a decision constitutes an act open to challenge for the purposes of Article 263 TFEU (judgment of 15 October 2008, Mote v Parliament, T‑345/05, EU:T:2008:440, paragraph 31). The exercise of that right means that a request for waiver of immunity has been made to the Parliament by a competent authority. That authority has thus already found that the Member concerned enjoyed the immunity provided for in Article 9 of that protocol in a given procedure and requested the Parliament to waive that immunity in order to continue those proceedings. It is thus for the Parliament to decide whether or not to waive that immunity (see, to that effect, judgments of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 59, and of 5 July 2023, Puigdemont i Casamajó and Comín i Oliveres v Parliament, T‑115/20, under appeal, EU:T:2023:372, paragraph 62).
24 It follows that the request of the European Chief Prosecutor does not entail, in itself, the lifting of the applicant’s immunity and is not capable of having any impact whatsoever on her rights or obligations. That request has the sole legal effect of seising the Parliament, which is the sole authority competent to make the decision and, where appropriate, to lift the applicant’s immunity. So long as the Parliament has not taken such a decision, the applicant continues to benefit from the protection of the privileges and immunities granted by EU law.
25 Having regard to those considerations, it must be held that the request of the European Chief Prosecutor of 15 December 2022, first, is not capable of producing binding legal effects that may affect the applicant’s interests by bringing about a distinct change to her legal situation and, secondly, that it is a preliminary measure which does not constitute the culmination of a special procedure distinct from that opened before the Parliament, the possible illegalities of which could, if necessary, be relied on in support of an action directed against the final act, namely the possible decision of the Parliament relating to the lifting of the applicant’s immunity, of which the said request constitutes a preparatory step (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and of 19 June 2015, Italy v Commission, T‑358/11, EU:T:2015:394, paragraph 26).
26 The arguments put forward by the applicant are not such as to call that conclusion into question.
27 In the first place, the applicant submits that the interpretation of the concept of a legal act, which appears in paragraphs 35 to 37 of the judgment of 10 May 2017, Efler and Others v Commission (T‑754/14, EU:T:2017:323), should be applied, by analogy, in the present case. It should be observed that, in paragraphs 34 to 36 of that judgment, the Court held that the concept of a legal act, for the purposes of a citizens’ initiative pursuant to Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1), is not limited only to definitive European Union legal acts which produce legal effects vis-à-vis third parties, but also includes acts such as a decision authorising the European Commission to open negotiations with a view to concluding an international agreement, which are preparatory and produce legal effects between the European Union and its Member States as well as between the institutions of the European Union. In that regard, it must be held that that interpretation cannot be transposed to the present case given that the concept of an act that is open to challenge in the context of an action for annulment brought by a natural or legal person on the basis of Article 263 TFEU is narrower and is limited to acts that produce binding legal effects on the applicant only, to the exclusion, in principle, of intermediate measures (see the case-law cited in paragraphs 16 to 18 above). In those circumstances, and as the Parliament rightly submits, in essence, the wide interpretation of the concept of a legal act in the light of the objective of the Treaties of promoting the participation of citizens in the exercise of public power by the Union cannot validly be relied on by the applicant in order to widen or relax the admissibility criteria for actions for annulment brought under Article 263 TFEU.
28 In the second place, as regards the applicant’s argument that the procedure opened by the request of the European Chief Prosecutor would cause severe moral damage and harm her reputation, it must be observed that the alleged damage and harm does not concern the applicant’s legal situation, but her material and moral situation.
29 In the third place, as regards the applicant’s argument alleging that the request of the European Chief Prosecutor should be detached from the subsequent steps that could lead to the lifting of her immunity, it suffices to observe that it is clear from paragraphs 20 to 25 above that that request, first, does not constitute the culmination of a special procedure distinct from that opened before the Parliament and, second, does not produce any independent legal effects as regards the applicant.
30 In the fourth place, the applicant refers to Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) enshrining the right to an effective remedy and submits that national remedies do not have effects equivalent to those before the Court, to the extent that Greek ordinary and criminal courts do not have jurisdiction to annul an act of a public authority. Furthermore, not all national courts participate in the enhanced cooperation established by Regulation 2017/1939, and those which do participate do not offer the same legal protection.
31 In that regard it suffices to recall that, although the requirement as to binding legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter, that right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Thus, the interpretation of the concept of ‘actionable measure’ in the light of that Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU Courts (judgment of 25 October 2017, Slovakia v Commission, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 66; see also, by analogy, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 81).
32 It follows from all of the foregoing that the request of the European Chief Prosecutor is not capable of being challenged by the applicant by means of an action for annulment under Article 263 TFEU. The plea of inadmissibility raised by the EPPO must therefore be upheld, without it being necessary to examine its other arguments.
The decision of the President of the Parliament
33 The Parliament raises a plea of inadmissibility of the action inter alia on the ground, in essence, that the decision of the President of the Parliament does not produce binding legal effects vis-à-vis third parties and does not constitute a final decision, but the start of an internal procedure, such that it does not constitute an ‘actionable measure’ within the meaning of Article 263 TFEU.
34 The applicant disputes the Parliament’s arguments.
35 The applicant observes, first of all, that the lifting of the immunity of a Member of Parliament is subject to a complex parliamentary procedure that comprises the proposal of the responsible committee and the final decision of the plenary, ‘while the decision of the President [of the Parliament] opening this procedure remains distinct’. The President of the Parliament is under duty to satisfy himself or herself of the fundamental legitimacy of the request for the lifting of immunity by checking that it originates from a competent authority and, in so doing, the President takes an independent decision that is ‘separate from the following complex procedure’.
36 In addition, the applicant states that the opening of the parliamentary procedure has a particular impact on her situation ‘as it is timely interlinked with a criminal case of major importance (Qatargate)’. The mere announcement of the request of the European Chief Prosecutor of 15 December 2022 at the plenary session of the Parliament seriously affected the applicant politically and interfered with the proceedings before the Belgian judicial authorities.
37 In addition, the applicant alleges that the decision of the President of the Parliament is open to challenge, since, if the EPPO could dispute the rejection by the President of the Parliament of its request for immunity to be lifted, the applicant must also have the right to challenge the opposite decision agreeing to commence the procedure for the lifting of immunity.
38 In the present case, in accordance with the case-law recalled in paragraphs 16 to 18 above, it must be ascertained whether, having regard to the criteria set out there, the decision of the President of the Parliament produces binding legal effects that may affect the applicant’s interests, including, inter alia, the conditions under which she performs her mandate as a Member of Parliament, by bringing about a distinct change to her legal situation, or whether that decision is a preparatory measure.
39 To that end, it should be recalled, first, as regards the content of the decision of the President of the Parliament, that that decision covers the announcement, at the plenary session of the Parliament, of the request of the European Chief Prosecutor of 15 December 2022 for the applicant’s parliamentary immunity to be lifted and the referral to the Committee of Legal Affairs. That decision therefore does not contain any final or even provisional position as to the legal situation of the applicant, including as to the merits of that request.
40 Secondly, as regards the context of the decision of the President of the Parliament and the latter’s powers, it should be observed that the announcement in plenary session of a request for the lifting of immunity of a Member and its referral to the Committee of Legal Affairs is part of a procedure that is comprised of many stages, at the end of which, in accordance with the third paragraph of Article 9 of the Protocol on privileges and immunities, the final decision is taken by the Parliament itself (see paragraph 23 above).
41 It follows that, as is the case for the request of the European Chief Prosecutor, the decision of the President of the Parliament does not produce binding legal effects that may affect the applicant’s interests by bringing about a distinct change to her legal situation. In that regard, it must be observed that, until the final decision of the Parliament is taken, the applicant continues to benefit from the protection of the privileges and immunities granted by EU law. Furthermore, it must be held that the decision of the President of the Parliament constitutes a preparatory act.
42 Effective judicial protection as regards that decision is ensured for the applicant by means, inter alia, of an action pursuant Article 263 TFEU that will be available to her before the EU judicature against the final decision of the Parliament, through which she will be able to rely, as the case may be, on possible illegalities that may vitiate the decision of the President of the Parliament.
43 The arguments put forward by the applicant are not such as to call those findings into question.
44 In the first place, the applicant submits that the decision of the President of the Parliament must be open to challenge since it remains separate from the parliamentary procedure that includes the final decision of the plenary assembly, because the President of the Parliament has a duty to check the fundamental legitimacy of the request for immunity to be lifted. That argument is not capable of succeeding. As follows from the analysis in paragraphs 38 to 42 above, the decision of the President of the Parliament, first, does not constitute the culmination of a special procedure distinct from that opened before the Parliament and, secondly, does not produce any independent legal effects as regards the applicant.
45 In the second place, as regards the applicant’s claim that the mere announcement in plenary session of the Parliament of the request of the European Chief Prosecutor would seriously affect the applicant politically and would have an ‘impact’ on the ongoing proceedings before the Belgian judicial authorities in the ‘Qatargate’ case, it must be held that the applicant produces no evidence capable of establishing that the alleged effects of the decision of the President of the Parliament, and in particular those on the pending proceedings before the Belgian judicial authorities, affect not only her material and moral situation, but also her legal situation.
46 In the third place, as regards the applicant’s argument that the decision of the President of the Parliament is open to challenge, since, if the EPPO could dispute the rejection by the President of the Parliament of its request for immunity to be lifted, the applicant must also have the right to challenge the opposite decision agreeing to commence the procedure for the lifting of immunity, it suffices to recall, as follows from paragraph 41 above, that the decision of the President of the Parliament does not produce binding legal effects that may affect the applicant’s interests.
47 It follows from all of the foregoing that the decision of the President of the Parliament is not capable of being challenged by the applicant by means of an action for annulment under Article 263 TFEU. The plea of inadmissibility raised by the Parliament must therefore be upheld, without it being necessary to examine the other arguments raised by the Parliament or by the applicant.
48 Consequently, the action must be rejected as being inadmissible in its entirety.
Costs
49 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
50 Since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by Parliament and the EPPO, in accordance with the forms of order sought by them.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. Ms Eva Kaili is ordered to bear her own costs and those incurred by the European Parliament and by the European Public Prosecutor’s Office.
Luxembourg, 16 January 2024.
V. Di Bucci | | K. Kowalik-Bańczyk |