Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 11 January 2024 (1)
Cases C‑725/20 P, C‑198/21 P and C‑391/21 P
Maria Teresa Coppo Gavazzi
and Others (C‑725/20 P),
Giacomo Santini
and Others (C‑198/21 P),
and
Enrico Falqui (C‑391/21 P)
v
European Parliament
(Appeal – Institutional law – Single statute for Members of the European Parliament – Members of the European Parliament elected in Italian constituencies – Adoption by the Ufficio di Presidenza della Camera dei deputati (Office of the President of the Chamber of Deputies, Italy) of Decision No 14/2018 on pensions – Alteration in the amounts of the pensions of national Members of Parliament – Corresponding alteration, by the European Parliament, in the amounts of the pensions of certain former Members of the European Parliament elected in Italy – Replacement of the decisions at issue by the European Parliament during the proceedings before the Court – Action which becomes devoid of purpose and no longer any legal interest on the part of the appellants in bringing proceedings)
Table of contents
I. Introduction
II. Legal framework
A. European Union law
B. Italian law
III. Background to the dispute
A. Recalculation of the appellants’ retirement or survivors’ pensions by the Parliament
B. Proceedings before the General Court
IV. Proceedings before the Court, forms of order sought by the parties and further developments following the conclusion of the written part of the procedure
V. Assessment
A. Continued purpose of the appeals and continued interest in bringing legal proceedings despite the replacement of the decisions at issue
B. The appeals
1. The legal basis for the adoption of the decisions at issue and the distinction between claims based on their reason and their amount
2. The compatibility of the implementation of Decision No 14/2018 by the Parliament with higher-ranking rules and principles of EU law
(a) The principles of legal certainty and the protection of legitimate expectations as well as the right to property
(b) Proportionality
3. The jurisdiction of the author of the decisions at issue
4. The reasons for the decisions at issue
5. Ms Panusa’s application at first instance
6. Interim conclusion
C. The applications before the General Court
D. Interim conclusion
VI. Costs
A. Costs of the appeal proceedings
B. Costs incurred at first instance
VII. Conclusion
I. Introduction
1. Prior to the establishment of a uniform pension scheme for Members of the European Parliament, the latter could, where their national system did not provide for a pension scheme or the amount and/or the arrangements of such a pension did not correspond to those that applied to the Members of the national Parliament of their Member State, receive a retirement pension from the EU budget, the amount and conditions of which were identical to those of the retirement pension for the Members of the Chamber of Deputies in their Member State.
2. The present appeals relate to the situation of former Members of the European Parliament who were elected in Italy or their survivors, whose retirement pensions or survivors’ pensions (‘pensions’) are coupled to the amount and conditions of the pensions of former Members of the Italian Chamber of Deputies in accordance with this rule, referred to by the General Court as ‘the identical pension rule’.
3. The present appeal proceedings centre around the question of whether the European Parliament (‘the Parliament’), in application of this ‘identical pension rule’, was right to reduce the pensions of the appellants, who were already in receipt of those pensions, after the Ufficio di Presidenza della Camera dei deputati (Office of the President of the Chamber of Deputies, Italy) had, for its part, ordered a reduction in the pensions of the former Italian Members.
4. Alongside the question of whether the General Court was right to dismiss the appellants’ applications against the corresponding decisions by the Parliament, a further question that must be answered is whether the present proceedings retain their purpose and whether the appellants still have an interest in bringing legal proceedings. This is because, in the meantime, as a result of further changes to the Italian legal situation, the decisions at issue of the Parliament have been replaced by new decisions.
5. Analysis of the present appeals will reveal that these two questions are inextricably linked with one another, because the errors in law asserted by the appellants prove to be decisive not only with regard to the lawfulness of the judgments under appeal and decisions at issue, but also in terms of the present actions becoming devoid of purpose.
II. Legal framework
A. European Union law
6. Annex III to the Rules governing the payment of expenses and allowances to Members of the European Parliament (‘the PEAM Rules’) provided as follows in the version in force until 14 July 2009: (2)
‘Article 1
1. All Members of the European Parliament shall be entitled to a retirement pension.
2. Pending the establishment of a definitive Community pension scheme for all Members of the European Parliament, where no pension is provided under national arrangements or where the level and/or conditions of such pension are not identical to those applicable to Members of the national parliament of the Member State for which the Member was elected, a provisional pension shall, at the request of the Member concerned, be paid from the European Union budget, Parliament Section.
Article 2
1. The level and conditions of such pension shall be identical to those applicable to the pension for Members of the lower house of the parliament of the Member State for which the Member of the European Parliament was elected.
2. A Member benefiting under Article 1(2) shall be required, when joining the scheme, to pay to the European Union budget a sum so calculated that he or she pays the same overall contribution as that payable by a Member of his or her parliament under national provisions.
Article 3
1. Applications to join this provisional pension scheme must be submitted within 12 months of the beginning of the Member’s term of office.
Once that time limit has expired, membership of the pension scheme shall take effect from the first day of the month in which the application was received.
2. Applications for payment of the pension must be made within six months of the commencement of entitlement.
Once that time limit has expired, the pension shall be payable from the first day of the month in which the application was received.
…’
7. The Statute for Members of the European Parliament was approved by Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (‘the Statute for Members’), (3) and entered into force on 14 July 2009, the first day of the seventh parliamentary term.
8. By decisions of 19 May and 9 July 2008, the Bureau of the Parliament adopted Implementing Measures for the Statute for Members. (4) Pursuant to Article 73 of the Implementing Measures for the Statute for Members, those measures entered into force on the same date as the Statute for Members, that is to say, 14 July 2009.
9. Article 74 of the Implementing Measures for the Statute for Members specifies that, subject to the transitional provisions laid down in Title IV thereof – and in particular Article 75 thereof – the PEAM Rules are to cease to be valid on the date on which the Statute for Members enters into force.
10. Article 75 of the Implementing Measures for the Statute for Members, concerning, inter alia, retirement pensions, provides the following in the version amended by the Decision of the Bureau of the Parliament of 13 December 2010amending the Implementing Measures for the Statute for Members: (5)
‘(1) The survivor’s pension, the invalidity pension, the additional invalidity pension granted for dependent children and the old-age pension paid pursuant to Annexes I, II and III to the PEAM Rules shall continue to be paid pursuant to those annexes to those persons who were in receipt of the benefits in question prior to the date of entry into force of the Statute.
Where a former Member in receipt of the invalidity pension dies after 14 July 2009, the survivor’s pension shall be paid to his or her spouse, stable non-marital partner or dependent children, subject to the conditions laid down in Annex I to the PEAM Rules.
(2) The old-age pension rights acquired prior to the date of entry into force of the Statute pursuant to the aforementioned Annex III shall be maintained. Persons who have acquired rights under that pension scheme shall receive a pension calculated on the basis of their acquired rights pursuant to the aforementioned Annex III as soon as they meet the relevant conditions laid down by the national law of the Member State concerned and they have submitted the application referred to in Article 3(2) of the aforementioned Annex III.’
11. According to recital 7 of the Implementing Measures for the Statute for Members, ‘in the transitional provisions steps should be taken to ensure that persons in receipt of certain benefits under the PEAM Rules continue to receive them after those rules have been repealed, in keeping with the principle of legitimate expectations. Steps should also be taken to guarantee maintenance of the pension rights acquired on the basis of the PEAM Rules prior to the entry into force of the Statute’.
B. Italian law
12. On 12 July 2018, the Office of the President of the Chamber of Deputies adopted Decision No 14/2018 reassessing the amount of lifetime annuities and of the lifetime annuity proportion of pro rata pension benefits and survivors’ benefits relating to years of service completed before 31 December 2011 (‘Decision No 14/2018’).
13. Article 1 of Decision No 14/2018 provides:
‘(1) From 1 January 2019, the amount of direct and survivors’ lifetime annuities and of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits, entitlement to which was acquired pursuant to the rules in force on 31 December 2011, shall be calculated in accordance with the new rules provided for in this decision.
(2) The new calculation referred to in the preceding paragraph shall be carried out by multiplying the amount of the individual contribution by the conversion coefficient relating to the age of the Member of Parliament on the date on which the Member of Parliament became entitled to the lifetime annuity or pro rata pension benefit.
(3) The conversion coefficients set out in Table 1, annexed to this decision, shall be applied.
(4) The amount of direct and survivors’ lifetime annuities and of the lifetime annuity proportion of direct and survivors’ pro rata pension benefits, recalculated in accordance with this decision, shall under no circumstances exceed the amount of the lifetime annuity, whether paid directly or to survivors, or of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits specified for each Member of Parliament by the Regulation in effect on the date of commencement of the term of office of the Member of Parliament.
(5) The amount of direct and survivors’ lifetime annuities, and of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits, recalculated in accordance with this decision, shall under no circumstances be lower than the amount calculated by multiplying the amount of individual contributions paid by a Member of Parliament who held office during the seventeenth parliamentary term, reviewed in accordance with Article 2 below, by the conversion coefficient corresponding to the age of 65 in force on 31 December 2018.
(6) In the event that, as a result of the recalculation carried out pursuant to this decision, the new amount of direct or survivors’ lifetime annuities and of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits is reduced by more than 50% compared with the amount of the direct or survivors’ lifetime annuity or lifetime annuity proportion of pro rata direct or survivors’ pension benefit specified for each Member of Parliament by the Regulation in force on the date when he or she commenced his or her parliamentary term of office, the minimum amount determined pursuant to paragraph 5 shall be increased by half.
(7) The Office of the President, on a proposal from the College of Quaestors of the Parliament, may increase by up to a maximum of 50% the amount of direct and survivors’ lifetime annuities and of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits, recalculated pursuant to this decision, for persons who so request and meet the following conditions:
(a) they do not receive any other annual income exceeding the annual amount of social assistance, with the exception of any income derived, on whatever ground, from the building designated as their principal dwelling;
(b) they have a serious illness requiring the administration of life-saving therapy, substantiated by appropriate documents issued by public health establishments, or they have a health condition causing a situation of 100% disability recognised by the competent authorities.
(8) The documentation proving that the conditions referred to in paragraph 7 are met must be submitted by the requester with the request and, subsequently, by 31 December of each year at the latest.’
III. Background to the dispute
A. Recalculation of the appellants’ retirement or survivors’ pensions by the Parliament
14. The appellants are all former Members of the Parliament elected in Italy or their survivors who are in receipt of pensions on the basis of Articles 1 and 2 of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members.
15. The amount of these pensions is calculated in accordance with Article 2(1) of Annex III to the PEAM Rules, with reference to the rules for calculating the pensions of the former Italian Members. According to this provision, ‘the level and conditions of the provisional pension must be identical to those applicable to the pensions for Members of the lower house of the parliament of the Member State for which the Member of the European Parliament was elected’.
16. According to the information provided by the Parliament in the proceedings before the General Court, until 2012 the amount of the pensions for the Members of the Italian Chamber of Deputies was calculated on the basis of the duration rather than the amount of their contribution payments. From 1 January 2012 onwards, this system was changed to a contributory calculation. Since this change related only to pension claims acquired after 1 January 2012, however, it had no effect on the situation of former Italian Members of the Parliament. This is because the PEAM Rules were repealed upon the entry into force of the Statute for Members on 14 July 2009, and so no further pension claims could be acquired on the basis of Annex III to those rules after that date.
17. As the Parliament further submitted in the proceedings before the General Court, the Office of the President of the Italian Chamber of Deputies, when adopting Decision No 14/2018, however decided also to recalculate the amounts of the pensions for the former Italian Members using a contributory system for the period before 31 December 2011. On this basis, the competent Italian authority significantly reduced the pensions for a large number of former Italian Members from 1 January 2019 onwards.
18. On 16 October 2018, the Ufficio di Presidenza del Senato (Office of the President of the Senate, Italy) adopted similar new rules in Decision No 6/2018.
19. Subsequently, many of the individuals affected contested Decision No 14/2018 before the Consiglio di giurisdizione della Camera dei deputati (Judicial Council of the Chamber of Deputies, Italy) and Decision No 6/2018 before the competent body of the Italian Senate.
20. The appellants in Cases C‑198/21 P and C‑391/21 P as well as some of the appellants in Case C‑725/20 P were in receipt of their pensions prior to the entry into force of the Statute for Members on 14 July 2009; a number of other appellants in Case C‑725/20 P were only in receipt of their pensions from a point in time after its entry into force. All of the pensions to which the present appeals relate were however being received by their beneficiaries upon the adoption of Decision No 14/2018 by the Office of the President of the Italian Chamber of Deputies.
21. By including a note in the pension statements for January 2019, the Parliament warned the appellants that the amounts of their pensions would be reviewed pursuant to the decisions recently adopted by the Office of the President of the Italian Chamber of Deputies and the Office of the President of the Italian Senate, and that this recalculation might give rise to the recovery of overpaid sums.
22. By an undated note from the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s Directorate-General (DG) for Finance, annexed to the appellants’ pension statements for February 2019, the Parliament informed the appellants that its Legal Service had confirmed that Decision No 14/2018 was automatically applicable to their situation. That note added that, once the Parliament had received the necessary information from the Italian Chamber of Deputies, it would notify the appellants of the new amounts of their pensions and would recover any difference over the following 12 months. Lastly, the appellants were informed that the final calculation of the amounts of their pensions would be decided in a formal act against which it would be possible to lodge a complaint pursuant to Article 72 of the Implementing Measures for the Statute for Members or an action for annulment under Article 263 TFEU.
23. By notes of April 2019, the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s DG for Finance informed the appellants that, as he had stated in his note of February 2019, the amounts of their pensions would be adjusted in application of Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members, pursuant to Decision No 14/2018. Those notes also stated that the amounts of the appellants’ pensions would be adjusted as from April 2019 (and with retroactive effect from 1 January 2019) pursuant to the proposed new pension calculations appended to those notes (‘the first recalculation’). Lastly, the same notes gave the appellants a period of 30 days, from their receipt, to submit their comments. If they did not do so, the effects of those notes would be considered final and would entail, in particular, recovery of the amounts overpaid for January to March 2019.
24. On 23 May 2019, Mr Falqui, the appellant in Case C‑391/21 P, forwarded comments to the Parliament. In a letter dated 8 July 2019, the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s DG for Finance informed Mr Falqui that his comments had not brought about any change in the Parliament’s position and that the recalculation of his pension based on the note dated April 2019 had therefore become final.
B. Proceedings before the General Court
25. The appellants lodged applications before the General Court, and in particular moved for the notes referred to in point 23 of this Opinion and, in the case of Mr Falqui, the letter from the Parliament referred to in point 24 of this Opinion (‘the decisions at issue’) to be declared non-existent or annulled.
26. The Parliament moved in particular for the applications to be dismissed as partly inadmissible and partly unfounded.
27. The Parliament furthermore requested the General Court to suspend the applications until a decision had been handed down by the Judicial Council of the Chamber of Deputies, which was to adjudicate on the validity of Decision No 14/2018.
28. The General Court did not grant this request, and dismissed the applications in judgments of 15 October 2020, Coppo Gavazzi and Others v Parliament (T‑389/19 to T‑394/19, T‑397/19, T‑398/19, T‑403/19, T‑404/19, T‑406/19, T‑407/19, T‑409/19 to T‑414/19, T‑416/19 to T‑418/19, T‑420/19 to T‑422/19, T‑425/19 to T‑427/19, T‑429/19 to T‑432/19, T‑435/19, T‑436/19, T‑438/19 to T‑442/19, T‑444/19 to T‑446/19, T‑448/19, T‑450/19 to T‑454/19, T‑463/19 and T‑465/19, EU:T:2020:494; ‘the judgment in Coppo Gavazzi’); of 10 February 2021, Santini and Others v Parliament (T‑345/19, T‑346/19, T‑364/19 to T‑366/19, T‑372/19 to T‑375/19 and T‑385/19, EU:T:2021:78; ‘the f’); and of 5 May 2021, Falqui v Parliament (T‑695/19, EU:T:2021:242; ‘the judgment in Falqui’) (together ‘the judgments under appeal’), and ordered the applicants at first instance to bear the costs.
IV. Proceedings before the Court, forms of order sought by the parties and further developments following the conclusion of the written part of the procedure
29. In submissions dated 28 December 2020 (Case C‑725/20 P), 29 March 2021 (Case C‑198/21 P) and 24 June 2021 (Case C‑391/21 P), the appellants lodged appeals against the judgments under appeal.
30. The 34 appellants in Case C‑725/20 P listed in the annex to this Opinion (6) are contesting the judgment in Coppo Gavazzi in so far as it affects them. The judgment was delivered in 49 linked cases; in so far as the 15 cases not listed in the annex are concerned, they are not the subject of the present appeal proceedings.
31. The appellants in Case C‑725/20 P claim that the Court should:
– set aside the judgment in Coppo Gavazzi;
– refer Case T‑453/19, Panusa v Parliament, back to the General Court for examination of the substance of the case;
– annul the decisions at issue in respect of the appellants other than Ms Panusa;
– order the Parliament to pay the costs of both sets of proceedings.
32. The appellants in Case C‑198/21 P claim that the Court should:
– set aside the judgment in Santini;
– consequently annul all acts, communications and/or decisions at issue and grant the forms of order sought in the applications filed by the appellants at first instance;
– order the Parliament to pay the costs of both sets of proceedings.
33. The appellant in Case C‑391/21 P claims that the Court should:
– set aside the judgment in Falqui and, as a result, annul the decision at issue (and, in so far as necessary, the proposed decision and the opinion of the Legal Service upon which the decision is based), leading to an obligation for the Parliament to reimburse the incorrectly deducted amounts of his pension and to order the Parliament to pay the costs of both sets of proceedings.
34. The Parliament contends, in all three cases, that the appeals should be dismissed and the appellants ordered to pay the costs.
35. Following the conclusion of the written part of the present appeal proceedings, the parties, with a view to the further progress of the proceedings, submitted documents to the Court concerning the recalculation of the pensions of the former Members or their survivors both by Italy and by the Parliament.
36. This includes first the decisions by the bodies of the Italian Chamber of Deputies and the Italian Senate, before which Decisions No 14/2018 and No 6/2018 had been challenged (see point 19 above), namely Decision No 4/2021 of the Judicial Council of the Chamber of Deputies of 23 December 2021 as well as Decision No 253/2021 of the Consiglio di Garanzia del Senato (Guarantee Council of the Senate, Italy) of 12 January 2022.
37. The Judicial Council of the Chamber of Deputies declared Decision No 14/2018 partly unlawful in its (non-final) Decision No 4/2021 of 23 December 2021. That declaration of partial unlawfulness related to certain arrangements for the recalculation of pensions for those affected. The decision was however reserved in relation to other legal issues raised by the applicants.
38. The parties furthermore informed the Court of Decision No 150/2022 of the Office of the President of the Italian Chamber of Deputies of 3 March 2022, by means of which the pensions of the former Italian Members affected by Decision No 14/2018 were recalculated a further time with retroactive effect as of 1 January 2019 as a result of Decision No 4/2021 of the Judicial Council of the Chamber of Deputies.
39. Finally, the parties notified the Court that the Parliament had also recalculated the appellants’ pensions a further time (‘second recalculation’) as a result of Decision No 150/2022 of the Office of the President of the Italian Chamber of Deputies with retroactive effect as of 1 January 2019 in decisions dated September to November 2022.
40. That second recalculation meant that the pensions of certain appellants were increased again to the entirety of their original amount before the first recalculation. In the case of other appellants, however, the amounts remained lower than before the first recalculation.
41. Some of the appellants contested before the General Court the Parliament’s decisions concerning the second recalculation of their pensions as a result of Decision No 150/2022 by the Office of the President of the Italian Chamber of Deputies. (7) The corresponding proceedings are currently suspended until a decision has been handed down in the present appeal proceedings.
42. The Court of Justice suspended the present appeal proceedings until the Parliament had carried out the second recalculation of the appellants’ pensions as a result of Decision No 150/2022 by the Office of the President of the Italian Chamber of Deputies, and subsequently resumed them.
43. The Court furthermore asked the parties whether the present appeal proceedings might have ceased to serve any useful purpose given that the decisions at issue had been replaced by the decisions of the Parliament referred to in points 39 to 42 above concerning the second recalculation of the appellants’ pensions. In the view of all parties to the present appeal proceedings, that is not the case.
44. In accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, the Court refrained from holding a hearing.
V. Assessment
45. As explained in the introduction, the present appeal proceedings raise the question of whether the General Court correctly confirmed that the Parliament, from 1 January 2019 onwards and in application of ‘the identical pension rule’ pursuant to Articles 1 and 2 of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members, rightly reduced the pensions of the appellants, who were already in receipt of those pensions, after the Office of the President of the Italian Chamber of Deputies had for its part decreed a reduction in the pensions of the former Italian Members from 1 January 2019 onwards in Decision No 14/2018.
46. As was also mentioned in the introduction, a further question that is raised is whether the present appeals retain their purpose and the appellants still have an interest in bringing legal proceedings despite the fact that the decisions at issue have in the meantime been replaced by the decisions of the Parliament on the second recalculation of the appellants’ pensions as referred to in points 39 to 42 above.
47. The replacement of the decisions at issue alone does not automatically mean that the present proceedings become devoid of purpose and the appellants lose their interest in bringing legal proceedings.
48. Instead, whether the present appeals retain their purpose and the appellants still have an interest in bringing legal proceedings depends on whether it is possible in the context of these appeals to clarify definitively whether changes to the national legal situation pursuant to Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members, automatically result in changes to the retirement pensions of the former Members of the Parliament who are affected by those rules (A).
49. In order to determine that, it is appropriate first to examine the lawfulness of the judgments under appeal on the basis of the asserted grounds of appeal. It will transpire in this connection that the General Court erred in law on several occasions, in particular when it confirmed the compatibility of the reduction in the appellants’ pensions with the higher-ranking rules and principles of EU law (B).
50. During the subsequent examination of the applications at first instance, it will be necessary to investigate whether it is possible to examine such incompatibility in isolation from the respective content of the national decision to be implemented by the Parliament in the context of ‘the identical pension rule’. If that were not to be so, the applications before the General Court affected in the cases at hand would have become devoid of purpose owing to the replacement of the decisions at issue (C).
A. Continued purpose of the appeals and continued interest in bringing legal proceedings despite the replacement of the decisions at issue
51. Both the appellants and the Parliament argue that the appeals in the present proceedings retain their purpose and the appellants continue to have an interest in bringing legal proceedings, despite the replacement of the decisions at issue. In their opinion, the new decisions by the Parliament differ from the decisions at issue merely in terms of changes to the amount of the appellants’ pensions; fundamentally, however, they are based on the same legal interpretation, according to which the Parliament, first on the basis of Decision No 14/2018 and then on the basis of Decision No 150/2022 of the Office of the President of the Italian Chamber of Deputies (point 38 above), was right to recalculate the appellants’ pensions. According to the parties, the appellants therefore have an interest in the Court of Justice clarifying, in the context of the present proceedings, whether the dynamic application of ‘the identical pension rule’ is lawful.
52. The interest in bringing legal proceedings and the matter in dispute must exist not only at the stage of lodging the action, but must also continue until the final decision, failing which there will be no need to adjudicate. This presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. (8)
53. In various circumstances, the Court of Justice has already acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him or her has ceased to have effect in the course of proceedings. (9) For example, an interest in bringing proceedings may continue to exist to avoid the risk of repetition of the alleged unlawfulness underlying the act challenged. (10) The question of whether an applicant retains his or her interest in bringing proceedings must be assessed in the light of the specific circumstances of each case.(11) Particularly as regards the risk of repetition, it must be proven precisely and specifically that a risk of repetition of the alleged unlawfulness exists. (12)
54. At first glance this appears to be so in the cases at hand, since the Parliament argues that it is bound by amendments to the Italian rules on pensions and is therefore likely to implement future changes as well, thereby repeating the alleged unlawfulness. As explained in point 37 above, Decision No 4/2021 of the Judicial Council of the Chamber of Deputies, which declared Decision No 14/2018 partly unlawful, has not yet become final. It is therefore entirely possible that further changes to the legal situation will take place at Italian level and will in turn be implemented by the Parliament, resulting in a repetition.
55. Furthermore, the present situation is characterised by the fact that the Parliament has already recalculated the amount of the appellants’ pensions in implementation of Decision No 150/2022 of the Office of the President of the Italian Chamber of Deputies (point 38 above) a second time compared to the original decisions at issue, and thus the unlawfulness alleged by the appellants has already been repeated once. As explained in point 41 above, some of the appellants have contested before the General Court the new decisions by the Parliament adopted in this connection, and the General Court has suspended the relevant proceedings pending the decisions on the present appeals.
56. It would therefore also comply with the principle of procedural economy to clarify in the context of the present appeals, in so far as possible, the fundamental question of whether the Parliament was permitted to recalculate the appellants’ pensions in application of Decision No 14/2018 and the following Decision No 150/2022. That would mean that the General Court could take the Court of Justice’s solution into account when adjudicating on the applications against the decisions replacing the decisions at issue.
57. However, this presupposes that it is possible to clarify this fundamental question in the context of the present appeal proceedings. Whether this is possible depends on whether the question as to the dynamic nature of the reference to Italian law can be clarified in isolation from the specific substance of the respective Italian provisions and the decisions by the Parliament in each individual case. The following assessment will reveal that this is not the case.
58. Nevertheless, this assessment will show the approach that must be followed by the General Court when examining the (currently pending) applications against the decisions replacing the decisions at issue, and by the Parliament when reassessing the applicability of national decisions in the context of ‘the identical pension rule’, in order to act in compliance with EU law.
B. The appeals
59. According to the appellants, the General Court erred in law several times when it confirmed the lawfulness of the decisions at issue in the judgments under appeal.
60. First, in their opinion it disregarded the fact that the PEAM Rules, from the point in time when the Statute for Members entered into force, no longer provided a legal basis for the adoption of new decisions, (13) and erred in law by introducing a distinction between pension claims according to their reason on the one hand and their amount on the other hand (14) (1). According to the appellants, the General Court then incorrectly confirmed that the reduction in the appellants’ pensions resulting from the decisions at issue did not breach the higher-ranking principles of EU law (15) (2). Finally, it erred in law by finding that the decisions at issue had been adopted by the competent body within the Parliament (3) and that they were adequately reasoned (16) (4). In Case C‑725/20 P, the appellants furthermore assert that the General Court was wrong to regard Ms Panusa’s application as inadmissible (17) (5).
1. The legal basis for the adoption of the decisions at issue and the distinction between claims based on their reason and on their amount
61. According to the appellants’ assertions, the General Court disregarded the fact that from the point at which the Statute for Members entered into force, the PEAM Rules no longer served as a legal basis for the adoption of new decisions; in other words, the reference to Italian law was no longer dynamic from this time onwards. They furthermore believe that the General Court made an error in law when it distinguished between the acquisition of pension claims according to the reason for and the amount of the claim.
62. Those objections are to be dismissed.
63. The General Court was right to find that although, pursuant to Article 74 of the Implementing Measures for the Statute for Members, the PEAM Rules became invalid on the day when that statute entered into force (14 July 2009), pursuant to Article 74 of the Implementing Measures, read in conjunction with Article 75 thereof, ‘the identical pension rule’ set out in Annex III to the PEAM Rules nevertheless remained in force on a transitional basis.
64. Furthermore, the General Court correctly recognised that both Article 75(1) and Article 75(2) of the Implementing Measures for the Statute for Members guarantee the continued payment of pensions to those affected (for those in receipt of a pension even before the entry into force of the statute) or the continued existence of the relevant claims (for those only in receipt of a pension from a point in time after the entry into force of the statute), in both cases ‘pursuant to Annex III to the PEAM Rules’. Pursuant to Article 2(1) of that annex, as already mentioned, ‘the level and conditions of the provisional pension must be identical to those applicable to the pensions for Members of the lower house of the parliament of the Member State for which the Member of the European Parliament was elected’.
65. On that basis, the General Court did not err in law when it decided that the amount and conditions of the affected parties’ pensions in principle continued to be coupled, even after the entry into force of the Statute for Members, to the amount and conditions of the pensions of Members of the Chamber of Deputies of the Member State for which the affected parties were elected. (18)
66. The reference to the national scheme in Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members, is therefore fundamentally dynamic in so far as those rules merely grant the affected Members of the Parliament a claim to a pension in the same amount as that received by the former national Members. Conversely, those rules do not in and of themselves guarantee a pension or a claim to a pension in a certain amount or in the amount received by the affected parties at a particular point in time, for example when the claims were acquired, as the appellants assert in the alternative.
67. In that respect, it is at first sight logical to assume that changes to the national regime are also reflected, where applicable, in changes to the pensions of the former Members of the Parliament who are affected. As the General Court correctly found by referring to the mandatory wording of the provisions in Article 2 of Annex III to the PEAM Rules, the Parliament does not as a basic principle have any discretion to apply a stand-alone method to calculate the pensions of the affected parties.
2. The compatibility of the implementation of Decision No 14/2018 by the Parliament with higher-ranking rules and principles of EU law
68. As the General Court itself recognised, the above however only applies subject to compliance with higher-ranking rules of EU law, including the general principles of law and the Charter of Fundamental Rights of the European Union. The General Court namely clarified that the Parliament, as an institution of the European Union, is obliged pursuant to Article 51(1) of the Charter of Fundamental Rights to comply with the provisions of the latter when implementing Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members. (19) Furthermore, the regime governing the former Italian Members was incorporated into EU law through the reference to it in that annex for the purpose of its application to the former Members of the Parliament, and must therefore be compatible with the higher-ranking rules of EU law. That incorporation means that the Parliament cannot simply apply a national rule automatically if it may entail an encroachment on acquired rights. Instead, it must check on a case-by-case basis whether it should implement a reduction that may represent an encroachment on acquired rights, or whether such a reduction breaches the higher-ranking rules and principles of EU law.
69. The appellants however criticise the Parliament of having failed to carry out such checks before implementing Decision No 14/2018 and of having committed a disproportionate encroachment on their acquired rights as a result of the automatic application of that decision, thereby breaching the principles of legal certainty and the protection of legitimate expectations as well as the right to property (a) and the principle of proportionality (b); in their opinion, the General Court disregarded this, and in doing so erred in law.
(a) The principles of legal certainty and the protection of legitimate expectations as well as the right to property
70. As a basic principle, amending legislation applies, unless otherwise provided, to the future consequences of situations which arose under the previous legislation. The position is different only in respect of situations originating and becoming definitive under the previous legislation, which create acquired rights. (20)
71. A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment. However, a right is considered merely as a right conferring prospective entitlement rather than an acquired right when the event creating the right did not take place under the legislation that has been amended. (21)
72. The appellants’ pensions that are concerned by these cases and that were reduced are therefore no longer rights conferring prospective entitlements, but acquired rights, because the event creating the appellants’ right to those benefits, namely fulfilment of the conditions for retirement and payment of the pension, had already been met by the appellants upon the adoption of Decision No 14/2018, given that they were already in receipt of their pensions at that point in time (see point 20 above). (22)
73. As the Court of Justice has already found, although there is no principle of EU law stating that acquired rights cannot be amended or reduced under any circumstances, such rights can only be amended under certain conditions if the interests at stake have been adequately weighed against each other; (23) in other words, if the principle of proportionality is observed. (24)
74. Equally, the right to property, which covers social security benefits assured by law, does not guarantee an entitlement to a pension of a particular amount, but can however also only be restricted in so far as that is justified and necessary for the general interest. (25)
(b) Principle of proportionality
75. The appellants however assert that in the cases at hand the General Court wrongly confirmed that the decisions at issue were compatible with the principle of proportionality (a point which they had already disputed at first instance). According to the appellants, the far-reaching restrictions on their rights were excessive in the light of the goals pursued, and the Italian measure was contradictory, since it was specifically targeted at the former national Members of Parliament and demanded disproportionate sacrifices of them compared to other pensioners.
76. The appellants noted that Decision No 14/2018 did not in fact impose a percentage reduction on the relevant pensions or solidarity levy; instead, it ordered a complete retroactive recalculation of those pensions on the basis of a wholly new calculation method and new criteria. In the words of the appellants, those criteria were no longer based on benefits during the term of office but on the contributions paid, and yet did not even take those contributions adequately into account.
77. According to the appellants, this recalculation represented a disproportionate burden on the former Members compared to other pensioners; for example, a contributory scheme had been introduced in Italy for the first time (on a pro rata basis) in 1995, and only applied to the majority of employees from 2012 onwards. In the appellants’ opinion, that scheme had conversely been applied retroactively to much earlier periods for the former Members as a result of Decision No 14/2018 (from 1979 onwards in the case of the former Members of the Parliament). In this connection the appellants had explicitly submitted at first instance that Decision No 14/2018 was a merely symbolic and politically motivated measure that was targeted only at the former Members and was aimed at ‘penalising’ them, but that the associated potential for savings was negligible in relation to Italy’s budgetary deficit.
78. According to the appellants, the Parliament ought to have verified these factors before applying Decision No 14/2018 to them. In their opinion, in the absence of such an assessment it is impossible to assess whether the application of that decision is compatible with the higher-ranking principles of EU law and in particular the principle of proportionality, and to investigate whether the reductions that were imposed undermined the very substance of the appellants’ acquired rights.
79. In the appellants’ opinion, the Parliament had however failed to carry out such an assessment and had contented itself with confirming the ‘automatic’ applicability of Decision No 14/2018 to the appellants (see point 22 above); by endorsing that course of action, the General Court had committed an error in law.
80. The appellant in Case C‑391/21 P furthermore submits that there is no adequate link between, on the one hand, the reductions to the appellants’ benefits, which are paid out of the EU budget, and, on the other hand, the pursued goal of implementing savings measures in favour of the Italian budget.
81. Taken individually, the latter argument is to be rejected. As explained in points 66 and 67, Articles 1 and 2 of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members, provide for the alignment of the benefits paid to the former Members of the Parliament affected by this scheme with those paid to the former national Members. In principle, therefore, it must be possible for an objective that is legitimate in the light of national law to be regarded as a legitimate objective in respect of ‘the identical pension rule’.
82. As the Court has already demonstrated in a different context, the question of whether a Member State’s reduction measure is compatible with EU law and in particular whether it is proportionate is to be answered as part of a comprehensive assessment of the specific substance of that measure, its system and its context.
83. Thus, in its judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, the Court of Justice found that the national measures reducing the relevant remuneration upon which that judgment was based provided for a limited reduction of the amount of remuneration, by a percentage varying in accordance with the level of remuneration. Furthermore, those measures were applied not only to the applicants in the main proceedings, but also to a whole range of public office holders and employees performing duties in the public sector, including the representatives of the legislature, the executive and the judiciary. The Court concluded that those measures could not be perceived as being specifically adopted in respect of the applicants in the main proceedings, but that they were, on the contrary, in the nature of general measures seeking a contribution from all members of the national public administration to the austerity effort dictated by the mandatory requirements for reducing the Member State’s excessive budget deficit. Lastly, the Court found that the reduction measures in question were temporary in nature. (26)
84. An assessment that meets this standard has not been carried out in the case at hand by either the Parliament or the General Court.
85. Thus, the General Court initially found – correctly – that it was not competent to review the legality of Decision No 14/2018 in the light of Italian law, but merely to determine whether, by applying the rules of that decision, the Parliament had infringed the provisions of EU law. (27) According to the General Court, that meant verifying in particular whether the restriction in question observed the substance of the applicants’ right to property, whether it met an objective of general interest and whether it was necessary for that purpose. (28)
86. The General Court however then considered that the fact that the Parliament had not carried out that verification had no bearing on the present cases. In its opinion, such a verification did not constitute a mandatory procedural formality with which the Parliament was obliged to comply before adopting the decisions at issue; instead, all that mattered was that the specific effects of those decisions should not adversely affect the essence of the appellants’ right to property. (29)
87. According to the General Court, this was not the case, first because the reductions pursued the legitimate objective of rationalising expenditure under the Italian budget, secondly because Decision No 14/2018 contained two hardship clauses, one of which had been applied to several of the appellants, and thirdly because the new pension amounts and the method for calculating them were still related to the individual contributions and terms of office of the appellants. (30) That assessment, which was carried out in relation to the right to property, was also referred to by the General Court when assessing the proportionality of the decisions at issue (31) or carried out in that context. (32)
88. The appellants rightly assert that those arguments by the General Court are vitiated by several errors in law.
89. First, the General Court was wrong to hold that it was of negligible importance that the Parliament had failed to assess whether the application to the appellants of Decision No 14/2018 breached higher-ranking principles of EU law, because the only relevant factor was whether a breach had ultimately occurred, and the General Court could simply verify that itself. That view ignores the fact that the legislature, as explained in point 68 above, has imposed on the Parliament a separate obligation to carry out an assessment by means of the reference to national law in Article 2(1) of Annex III to the PEAM Rules. This means that within that system, before applying a national rule that may justify an encroachment on acquired rights, the Parliament must check whether that encroachment is compatible with higher-ranking rules and principles of EU law.
90. It is true that the General Court’s statement that the Parliament did not carry out any such review is factually incorrect, because the Parliament’s Legal Service did in fact carry out a summary review of the proportionality of Decision No 14/2018 (as follows from paragraph 13 of the expert opinion prepared by that service, which was presented by the appellants to the General Court).
91. However, the Parliament did not make that expert opinion available to the appellants, and the General Court was therefore wrong to incorporate it into the reasoning for the decisions at issue (for further details, see points 107 to 109 below). The aforesaid expert opinion cannot therefore be used as evidence that the Parliament verified the compatibility with EU law of the application of Decision No 14/2018. Furthermore, the Legal Service’s assessment of the proportionality of that decision is in any case inadequate, since the Legal Service contented itself with a reference in one paragraph to the fact that that decision provides for a minimum amount for pensions and contains two hardship clauses. A summary review of that kind is not sufficient to determine whether that national rule is compatible with EU law, as demonstrated by the example outlined in point 83. Instead, a comprehensive assessment of the national rule must be carried out for that purpose in order to confirm that the rule is not arbitrary and that it is comprehensible and coherent.
92. First and foremost, however, the viewpoint in question ignores the General Court’s own jurisdiction because the EU Courts must not under any circumstances substitute their own reasoning for that of the author of the contested act. (33)
93. However, the General Court’s approach in the cases at hand results in precisely such a substitution of reasoning because, when dismissing the pleas in law at first instance, the General Court based its decision on an assessment that was not contained in the grounds for the decisions at issue and thus fills a gap that exists in them. By acting in that way, the General Court exceeded the limits of its power of review. (34)
94. Finally, the assessment of the compatibility with EU law of the decisions at issue, particularly as regards the proportionality of the national measure to be implemented by those decisions, which the General Court carried out independently without referring to a corresponding statement of reasons by the Parliament, is at any rate insufficient in relation to the benchmark explained in point 83 of the present Opinion. As shown by the example cited therein and as already outlined in point 91 above, an assessment of this kind requires a precise and comprehensive examination of the national measure to be implemented with regard to its context and its concrete impacts in order to confirm that it is not arbitrary and that it is comprehensible and coherent. Merely a general finding that the measure serves the objective of economical budgetary management and contains hardship clauses does not meet that benchmark.
95. It follows from the above that the General Court erred in law several times when it confirmed the compatibility of the decisions at issue with the higher-ranking rules and principles of EU law. The grounds of appeal based on the above are therefore well founded.
96. In view of the central significance of the compatibility of the decisions at issue with EU law, the well-founded nature alone of those grounds of appeal results in the setting aside of the judgments under appeal. It is nevertheless expedient, particularly in view of the applications pending before the General Court against the decisions replacing the decisions at issue (see point 41 above), also to examine, in the alternative, the remaining grounds of appeal submitted by the appellants.
3. The jurisdiction of the author of the decisions at issue
97. According to the appellants in Cases C‑725/20 P and C‑198/21 P, the General Court erred in law again when it confirmed that the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s DG for Finance was competent to adopt the decisions at issue. The appellants asserted at first instance that those decisions should instead have been adopted by the Bureau of the Parliament.
98. The General Court rejected that complaint on the basis of the following reasons:
‘In response to a written question from the Court, the Parliament stated, supported by evidence, that the Head of the Members’ Salaries and Social Entitlements Unit of the Parliament’s DG Finance had been appointed authorising officer by subdelegation for budget line 1030 relating to retirement pensions referred to in Annex III to the PEAM Rules, by Decision FINS/2019-01 of the Director-General for Finance of the Parliament of 23 November 2018. Furthermore, in accordance with Article 73(3) of Regulation 2018/1046, Decision FINS/2019-01 expressly states that that subdelegation of competence authorises the Head of the Members’ Salaries and Social Entitlements Unit of the Parliament’s DG Finance, inter alia, to make legal and budgetary commitments, validate expenditure and authorise payments, and also draw up estimates of amounts receivable, establish entitlements to be recovered and issue recovery orders.’ (35)
99. In the light of those considerations, the General Court found that, ‘contrary to the applicants’ submissions, the Head of the Members’ Salaries and Social Entitlements Unit of the Parliament’s DG Finance was therefore competent to adopt the contested decisions’. (36)
100. It is not, however, clear from the General Court’s reasoning reproduced in point 98 above, which merely repeats the substance of Decision FINS/2019-01, why the General Court believed that the Head of Unit was competent to adopt the decisions at issue. In particular, it is not clear why, in the General Court’s opinion, the subdelegation of competence by means of Decision FINS/2019-01 encompasses the competence to assess the compatibility with EU law of the implementation of a national reduction measure that entails an encroachment upon the acquired rights of former Members of the Parliament. The response to that question is also not apparent from a simple reading of Decision FINS/2019-01. The General Court’s reasoning does not therefore allow the Court of Justice to verify whether the General Court correctly confirmed that the Head of Unit concerned was competent to adopt the decisions at issue, since it gives no indication of the grounds upon which the General Court based that viewpoint.
101. It follows from this that the judgment under appeal is vitiated by a lack of reasoning. Inadequate reasoning of that kind is to be assessed ex officio. (37) It follows from the foregoing that the appellants’ submissions are justified in so far as they rightly assert that the General Court erred in law in dismissing their submissions regarding the competence of the author of the decisions at issue. (38)
102. The Court of Justice could however only base the setting aside of the judgments under appeal on that lack of reasoning determined on an ex officio basis if it had heard the parties beforehand in that connection. (39) Since the judgments under appeal, as established in point 96 above, are however already to be set aside on other grounds, a hearing of that kind is not necessary in the cases at hand.
4. The reasons for the decisions at issue
103. The appellants in Cases C‑725/20 P and C‑198/21 P continue to assert that the General Court erred in finding that the decisions at issue contained adequate reasoning. According to the appellants, those decisions are conversely vitiated by a lack of reasoning because the Parliament failed to document in them an assessment of the compatibility with EU law of the implementation of Decision No 14/2018.
104. The General Court essentially based its opinion that the decisions at issue were adequately reasoned on the fact that those decisions made clear both their legal basis and the opinion of the Parliament that Decision No 14/2018 applied to the appellants pursuant to Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 75 of the Implementing Measures for the Statute for Members. (40)
105. The General Court’s analysis is based on the assumption that the Parliament did not need to carry out any further assessment of the compatibility with EU law of the application of Decision No 14/2018 to the appellants. As explained in point 89 above, that assumption is incorrect.
106. Instead, before adopting the decisions at issue the Parliament ought to have assessed and substantiated why, in its opinion, those decisions were compatible with the higher-ranking EU law, in particular the principle of proportionality. The reasoning for the decisions at issue was inadequate owing to the absence of the relevant details that would have allowed the General Court to carry out a review of lawfulness in that connection without substituting its own assessment for that of the Parliament (see point 93 above).
107. That is all the more true since the appellants rightly assert that the General Court incorrectly incorporated into its assessment of the reasoning set out in the decisions at issue the expert opinion by the Parliament’s Legal Service in which the proportionality of Decision No 14/2018 was examined at least in summary form, albeit inadequately (see points 90 and 91 above). (41) That expert opinion was not attached to those decisions and was not made available to the appellants by the Parliament. It was only mentioned to them indirectly. Thus, the note which was included in their pension statements for the month of February 2019 (see point 22 above) and to which the decisions at issue refer merely indicates that the Parliament’s Legal Service had confirmed the automatic applicability of Decision No 14/2018 to the appellants. However, that note did not contain a direct reference to the Legal Service’s expert opinion or an indication of whether and where that opinion could be accessed. (42)
108. Although it is true that the statement of reasons for an act of law must be assessed with regard not only to its wording but also to its context, (43) a document whose existence must be ‘guessed at’ by the addressees of a decision and which they must obtain for themselves cannot be categorised as part of the known context of that decision. This must apply even if the addressees present the document in question in proceedings before the judicature of the European Union. Even if that fact proves that they have subsequently obtained the document, it cannot serve as evidence that the original decision was adequately reasoned at the point in time used to determine the start of the time limit for commencing proceedings, that is when it was served to the addressees.
109. The Courts of the European Union, when reviewing the lawfulness of a decision, can only take into consideration further details provided by its author if those details supplement a statement of reasoning that is adequate in and of itself; (44) in the case at hand, however, the original statement of reasoning was specifically not adequate, as explained above.
110. To sum up, the General Court’s rejection of a defective statement of reasons for the decisions at issue is therefore vitiated by an error in law.
5. Ms Panusa’s application at first instance
111. Finally, the appellants in Case C‑725/20 P also assert that the General Court erred in law when it dismissed Ms Panusa’s application at first instance in Case T‑453/19 as inadmissible on the grounds of a lack of interest in bringing legal proceedings, because the decision at issue did not result in any reduction in the level of Ms Panusa’s survivors’ pension. (45)
112. According to the appellants, however, Ms Panusa has an interest in clarifying the question raised in the hearing before the General Court as to whether her survivors’ pension should be calculated on the basis of Annex I to the PEAM Rules instead of Annex III to the PEAM Rules, as had been the case to date. The appellants stated that if the latter were true, the level of her survivors’ pension may in fact increase.
113. As the Parliament correctly responded, the judgment in Coppo Gavazzi does not however contain any reference to submissions at first instance by Ms Panusa to the effect that her survivors’ pension should have been calculated on the basis of Annex I to the PEAM Rules. As far as can be seen, Ms Panusa’s application at first instance also does not contain any corresponding plea in law. As regards Ms Panusa’s reference to the hearing before the General Court, it should be noted that, pursuant to Article 84 of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Ms Panusa however fails to adduce any such arguments.
114. Ms Panusa’s submissions in the present appeal proceedings are thus to be dismissed as inadmissible, since it is inadmissible to put forward in appeal proceedings a new plea in law which was not raised during the proceedings at first instance. (46)
6. Interim conclusion
115. It follows from all of the foregoing that all of the judgments under appeal in all of the joined cases forming the subject of those judgments and the present appeal proceedings were vitiated by errors of law and are therefore to be set aside, with the exception of the judgment in Coppo Gavazzi in so far as it relates to Case T‑453/19, Panusa v Parliament.
C. The applications before the General Court
116. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
117. That applies in the cases at hand.
118. The aforesaid results in particular from the examination of the ground of appeal stating that the General Court incorrectly confirmed that the reduction in the appellants’ pensions which resulted from the decisions at issue did not breach higher-ranking principles of EU law and in particular the principle of proportionality (see points 75 to 95 above).
119. It emerged from an examination of that ground of appeal that the General Court wrongly determined that it was irrelevant that the Parliament had not assessed to what extent the application of Decision No 14/2018 might be compatible with EU law (point 89 above). Instead, it results from the Court of Justice’s case-law that the compatibility with EU law of a reduction carried out by a Member State must be assessed within the framework of a detailed analysis of the specific content of that measure as well as its system and context (points 82 and 83 above).
120. It also necessarily results from that case-law that an assessment of that kind should in each individual case be carried out with reference to the specific measure in question.
121. As explained above, Decision No 14/2018, which was implemented in the decisions at issue, has been amended at national level in the meantime, and the decisions at issue have been replaced by new decisions by the Parliament (points 35 to 41 above). An assessment of the compatibility with EU law of the decisions at issue can therefore no longer provide the appellants with any advantage. There is therefore no need to adjudicate on the applications at first instance against these decisions.
122. Instead, within the framework of the applications against the Parliament’s new decisions (point 41 above), the General Court must assess whether the Parliament carried out an adequate assessment of the compatibility with EU law of the new Italian rules implemented in those decisions before the adoption of those decisions. If that were not the case, the General Court would need to annul the relevant decisions of the Parliament. The Parliament would subsequently be able to carry out the necessary assessment and, if it were to confirm that the implementation of the national rules was compatible with EU law, adopt new decisions implementing these rules in respect of the former Members affected, which could then in turn form the subject of a review by the General Court.
123. As explained in point 41 of the present Opinion, only some of the appellants challenged the new decisions by the Parliament concerning the second recalculation of their benefits. If it resulted from the assessment of the corresponding actions that those decisions are to be annulled, the Parliament would need to assess the compatibility with EU law of the second recalculation not merely in respect of the former Members who had brought applications against that second recalculation. Instead, in keeping with Article 266 TFEU, the Parliament would need to assess whether the implementation of the new Italian rules was compatible with EU law for all of the Members affected and, where applicable, amend all of the decisions concerning them correspondingly. After all, it would be unlawful for the Parliament to continue paying former Members reduced benefits, at least as regards the future, despite the fact that the unlawfulness of the relevant reductions had been determined by the Courts of the European Union, albeit in relation to other former Members.
D. Interim conclusion
124. It follows from all of the aforesaid that there is no need to adjudicate on the appellants’ applications before the General Court, with the exception of the application in Case T‑453/19.
VI. Costs
A. Costs of the appeal proceedings
125. Under Article 184(2) of its Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. In accordance with Article 138(1) of those rules, which applies to the procedure on appeal in accordance with Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
126. Since the Parliament is the unsuccessful party and the appellants, with the exception of Ms Panusa, are the successful parties, the Parliament is to bear its own costs as well as the costs of the appellants, with the exception of Ms Panusa, in the appeal proceedings, in accordance with the forms of order sought by the appellants. Ms Panusa is however to be ordered to bear her own costs as well as the costs of the Parliament in the appeal proceedings on a pro rata basis in relation to the appeal proceedings of Ms Panusa.
B. Costs incurred at first instance
127. Since the judgments under appeal are to be set aside, the Court must also adjudicate on the sharing of costs for the proceedings at first instance, with the exception of the proceedings in Case T‑453/19, Panusa v Parliament, for which the decision on costs at first instance remains in place.
128. Article 149 of the Rules of Procedure of the Court, which pursuant to Article 190(1) of those rules applies to the appeal proceedings, stipulates that the Court shall give a decision as to costs if it declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. Pursuant to Article 142 of the Rules of Procedure, which applies to the appeal proceedings by virtue of Article 184(1) of those rules, where a case does not proceed to judgment the costs shall be at the discretion of the Court.
129. Although the present examination has revealed that it is unnecessary to adjudicate on the cases at first instance, it has also revealed that the General Court was wrong to confirm the lawfulness of the decisions at issue even though the Parliament had not carried out any assessment of the compatibility of those decisions with EU law. In view of the foregoing, it is appropriate to order the Parliament to bear its own costs as well as the costs of the appellants, with the exception of Ms Panusa, in the proceedings at first instance.
VII. Conclusion
130. Based on the foregoing considerations, I propose, in respect of Case C‑725/20 P, that the Court should:
(1) set aside points 2 and 3 of the operative part of the judgment by the General Court of the European Union of 15 October 2020, Coppo Gavazzi and Others v Parliament (T‑389/19 and Others, EU:T:2020:494) in so far as they concern all of the appellants listed in the annex to the present Opinion, with the exception of Ms Panusa;
(2) decide that there is no longer any need to adjudicate on the legal dispute underlying the applications at first instance cited in the annex to the present Opinion, with the exception of the application in Case T‑453/19;
(3) dismiss the appeal in Case C‑725/20 P in so far as it concerns Ms Panusa;
(4) order the Parliament to bear its own costs as well as the costs of the appellants in relation to both sets of proceedings, with the exception of the costs incurred by Ms Panusa as well as the costs incurred by the Parliament on a pro rata basis in relation to the appeal proceedings of Ms Panusa;
(5) order Ms Panusa to bear her own costs in the appeal proceedings as well as the costs incurred by the Parliament on a pro rata basis in relation to the appeal proceedings of Ms Panusa.
131. In addition, I propose, in respect of Case C‑198/21 P, that the Court should:
(1) set aside the judgment of the General Court of the European Union of 10 February 2021, Santini and Others v Parliament (T‑345/19, T‑346/19, T‑364/19 to T‑366/19, T‑372/19 to T‑375/19 and T‑385/19, EU:T:2021:78);
(2) decide that there is no longer any need to adjudicate on the legal dispute underlying the applications at first instance in the Cases T‑345/19, T‑346/19, T‑364/19 to T‑366/19, T‑372/19 to T‑375/19 and T‑385/19;
(3) order the Parliament to bear its own costs as well as the costs of the appellants in relation to both sets of proceedings.
132. Finally, I propose, in respect of Case C‑391/21 P, that the Court should:
(1) set aside the judgment of the General Court of the European Union of 5 May 2021, Falqui v Parliament (T‑695/19, EU:T:2021:242);
(2) decide that there is no longer any need to adjudicate on the legal dispute underlying the application at first instance in Case T‑695/19;
(3) order the Parliament to bear its own costs as well as the costs of the appellant in relation to both sets of proceedings.