ORDER OF THE GENERAL COURT (Third Chamber)
5 September 2012 (*)
(Law governing the institutions – Decision of the President of the Parliament imposing on a Member of the Parliament the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 10 days – Decision of the Committee on Legal Affairs of the Parliament declaring inadmissible the Member’s request for defence of his Parliamentary immunity – Manifest lack of jurisdiction of the General Court – Manifest inadmissibility)
In Case T‑564/11,
Nigel Paul Farage, residing in Brussels (Belgium), represented by P. Bennett, solicitor,
applicant,
v
European Parliament, represented by N. Lorenz and D. Moore, acting as Agents,
and
Jerzy Buzek, residing in Brussels,
defendants,
ACTION for annulment, first, of the decision of the President of the Parliament of 2 March 2010 imposing on the applicant the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 10 days, secondly, of the decision of the Bureau of the Parliament of 24 March 2010 confirming the above decision of the President of the Parliament, thirdly, of the decision of the Committee on Legal Affairs of the Parliament declaring inadmissible the applicant’s request for defence of immunity and, fourthly, of an unspecified decision of the Parliament,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The President of the European Council, Mr Van Rompuy, addressed the Parliament during the plenary sitting of 24 February 2010. Following that speech, a number of Members spoke, including the applicant, Mr Farage.
2 By letter of 2 March 2010 (‘the decision of 2 March 2010’), the President of the Parliament, Mr Buzek, imposed a penalty on the applicant consisting in the forfeiture of entitlement to the daily subsistence allowance for a period of 10 days. That penalty was based on Rule 153(1) in Chapter 4 of Title VI of the Rules of Procedure of the Parliament, concerning measures to be taken in the event of non-compliance with the standards of conduct of Members, which provides that ‘[i]n exceptionally serious cases of disorder or disruption of Parliament … the President, after hearing the Member concerned, shall adopt a reasoned decision laying down the appropriate penalty’. The President considered that certain remarks made by the applicant in his reply, mentioned in the previous paragraph, concerning Mr Van Rompuy were insulting both to him and to his Member State of origin.
3 Pursuant to the internal appeal procedure laid down in Rule 154 of the Parliament’s Rules of Procedure, the applicant lodged an appeal against that decision of the President of the Parliament on 3 March 2010, within the prescribed period of two weeks.
4 By letter of 25 March 2010, the President of the Parliament notified the applicant of the decision of the Bureau of the Parliament of 24 March 2010 confirming the decision of 2 March 2010 imposing a penalty on him (‘the decision of 24 March 2010’). That decision was also made available to all Members on the Parliament’s intranet site.
5 By letter of 7 April 2010, the applicant submitted a request for defence of immunity, on the basis of Rule 6(3) of the Parliament’s Rules of Procedure.
6 By letter of 10 November 2010, the Director General for Finance informed the applicant that he was to pay the sum of EUR 2 980, corresponding to 10 daily subsistence allowances, by 31 January 2011 at the latest.
7 When that sum was not paid by the deadline, the Parliament’s accounting officer sent the applicant a letter on 23 February 2011, informing him that the sum would be offset against his salary and other allowances.
8 The administration of the Parliament rejected the applicant’s request, made by letter of 24 February 2011, for enforcement of the penalty to be suspended until a decision had been made on his request for defence of immunity.
9 By letter of 18 May 2011, the Director General for Finance informed the applicant that the penalty would be enforced by the relevant services over a period of several weeks, starting on 30 May 2011, in accordance with a method defined in that letter.
10 The penalty was in fact enforced by the administration of the Parliament from that date.
11 By letter of 31 August 2011, the President of the Parliament informed the applicant of the decision of the Committee on Legal Affairs, taken at the meeting of 20 June 2011, to declare his request for defence of immunity inadmissible. That decision was announced at the plenary sitting of 4 July 2011.
Procedure and forms of order sought by the parties
12 By application lodged at the Registry of the General Court on 28 October 2011, the applicant brought the present action.
13 The Parliament, by document lodged at the Registry of the General Court on 10 February 2012, raised an objection of inadmissibility under Article 114(1) of the Court’s Rules of Procedure. The applicant did not submit observations on the objection within the time-limit laid down.
14 The applicant claims that the General Court should:
– annul the decision of 2 March 2010;
– annul the decision of 24 March 2010;
– annul the decision of the Committee on Legal Affairs;
– annul the decision of the Parliament;
– order the defendants to pay the costs.
15 The Parliament contends that the Court should:
– dismiss the application in its entirety as manifestly inadmissible;
– order the applicant to pay the costs.
Law
16 Under Article 114 of the Rules of Procedure, where a party applies to the Court for a decision on admissibility not going to the substance of the case, the remainder of the proceedings concerning the objection of inadmissibility must be oral, unless the Court otherwise decides. In the present case the Court considers that it has sufficient information from the documents before it and decides that there is no need to open the oral procedure.
Admissibility of the action in so far as it is brought against Mr Buzek
17 The Parliament submits that the action is inadmissible in so far as there are two defendants named in the present case, the European Parliament and Mr Buzek, its President.
18 It must be observed that the decision of 2 March 2010 is a decision of the Parliament, taken by the authority competent under its internal rules, namely its President. It follows that an application for the annulment of that decision must necessarily be brought against the Parliament, which adopted the measure. On the other hand, the application must be dismissed in so far as it is directed against Mr Buzek, especially as the General Court has no jurisdiction to hear an action brought under Article 263 TFEU against a natural person.
The application for annulment of the decisions of 2 and 24 March 2010
19 The Parliament considers that the applicant has failed to comply with the time-limit of two months for bringing an action for annulment, laid down by the sixth paragraph of Article 263 TFEU in conjunction with Article 101 of the Rules of Procedure of the General Court. It claims that the decisions of 2 and 24 March 2010 can no longer be the subject of an action for annulment, because the application is out of time.
20 In accordance with the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to his knowledge, as the case may be.
21 According to settled case-law, that time-limit is a matter of public policy which was established in order to ensure that legal positions are clear and certain and to avoid discrimination or arbitrary treatment in the administration of justice. It is thus for the European Union judicature to ascertain of its own motion whether it has been complied with (Case 4/67 Muller (née Collignon) v Commission [1967] ECR 365, and order in Case T‑372/07 Dimos Kerateas v Commission, not published in the ECR, paragraph 9).
22 In the present case, the decision of 2 March 2010 is contained in a letter of that date addressed to the applicant. That the letter was received by the applicant by 3 March 2010 is beyond doubt, since on the latter date he lodged his appeal against that decision with the Bureau of the Parliament, which was dismissed by the decision of 24 March 2010. As to the latter decision, the applicant annexed a copy of it to his application, while the Parliament produced as an annex to its objection of inadmissibility a letter of 7 April 2010, addressed by the applicant to the President of the Parliament, in which he referred to the dismissal of his appeal by the Bureau of the Parliament. It follows that by 7 April 2010 at the latest the applicant had received the letter notifying the decision of 24 March 2010.
23 Consequently, in so far as it is directed against the two decisions mentioned above, the present application brought on 28 October 2011 is out of time, and therefore inadmissible. It may be added that, not having submitted observations on the Parliament’s objection of inadmissibility within the time-limit prescribed, the applicant has not relied on unforeseeable circumstances or force majeure which might justify the lateness of the application.
The application for annulment of the decisions of the Committee on Legal Affairs and the Parliament
24 In the introductory part of his application, the applicant states that his application is directed, besides the decisions of 2 and 24 March 2010, against the decision of the Committee on Legal Affairs and an unspecified decision of the Parliament. Since the applicant mentions in the same context the letter of the President of the Parliament of 31 August 2011 (see paragraph 11 above), the latter reference can only be to a hypothetical decision of the Parliament approving the decision of the Committee on Legal Affairs, whose existence the applicant deduces from the fact that the decision of the Committee on Legal Affairs was announced at the plenary sitting of the Parliament on 4 July 2011.
25 However, at the end of his application, the applicant sets out a ‘proposed order’, granting his application, which mentions only the decisions of 2 and 24 March 2010. The result is a certain confusion as to the extent of the subject-matter of the application, as the Parliament rightly points out.
26 There is no need, however, to decide whether the application seeks also the annulment, first, of the decision of the Committee on Legal Affairs and, secondly, of a hypothetical decision of the Parliament approving the decision of the Committee on Legal Affairs. Even supposing that the application were to be understood in those terms, such a head of claim is inadmissible.
27 On this point, the settled case-law must be recalled which states that a reply by an institution of the European Union to a request addressed to it does not necessarily constitute a decision within the meaning of the fourth paragraph of Article 263 TFEU, thereby entitling the person to whom the reply is addressed to bring an action for its annulment (order in Case C‑25/92 Miethke v Parliament [1993] ECR I‑473, paragraph 10, and order in Case T‑22/98 Scottish Soft Fruit Growers v Commission [1998] ECR II‑4219, paragraph 34). As is also settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment within the meaning of Article 263 TFEU (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case T-351/02 Deutsche Bahn v Commission [2006] ECR II‑1047, paragraph 35; and order in Case T‑130/02 Kronoply v Commission [2003] ECR II‑4857, paragraph 43). It follows that the rejection by an institution of a request that has been made to it is not a measure against which an action for annulment may be brought, where the request was not aimed at the adoption by that institution of a measure producing binding legal effects (see, to that effect, order in Case C‑289/99 P Schiocchet v Commission [2000] ECR I‑10279, paragraphs 19 and 21).
28 It is apparent from Joined Cases C‑200/07 and C‑201/07 Marra [2008] ECR I‑7929, paragraph 39, and Case C‑163/10 Patriciello [2011] ECR I‑0000, paragraph 39, that even where criminal proceedings have been brought against a Member of the European Parliament in a national court, a decision to defend immunity, adopted by the Parliament on the basis of its Rules of Procedure in response to a request by the Member concerned, is no more than an opinion which does not have binding effects on the national courts. It necessarily follows that a decision rejecting a request for the adoption of such a decision is likewise not a measure producing binding legal effects and cannot be the subject of an action for annulment.
29 It follows from all the foregoing considerations that the action must be dismissed, in part on the ground of manifest lack of jurisdiction and in part as manifestly inadmissible.
Costs
30 Under 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. Since the applicant has been unsuccessful, he must be ordered to pay the costs incurred by the Parliament, in accordance with the form of order sought by it.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed.
2. Nigel Paul Farage is to bear his own costs and to pay those of the European Parliament.
Luxembourg, 5 September 2012.