Appeal brought on 30 August 2023 by Mr René Repasi against the order of the General Court (Sixth Chamber) delivered on 21 June 2023 in Case T-628/22 René Repasi v European Commission
(Case C-552/23 P)
Language of the case: German
Parties
Appellant: René Repasi (represented by: H.-G. Kamann, Rechtsanwalt, D. Fouquet, Rechtsanwältin, and F. Kainer and M. Nettesheim, university professors)
Other party to the proceedings: European Commission
Form of order sought
The appellant claims that the Court should:
set aside the order of the General Court of the European Union of 21 June 2023, Repasi v Commission (Case T-628/22, EU:T:2023:353);
annul Delegated Regulation (EU) 2022/1214; 1
order the Commission to pay the costs.
Grounds of appeal and main arguments
The appellant relies on two grounds of appeal in support of the appeal: First, the contested order infringes the fourth paragraph of Article 263 TFEU and, second, the appellant’s fundamental right to effective judicial protection under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.
In the order under appeal, the General Court denied that the appellant was directly affected under the fourth paragraph of Article 263 TFEU and thus that he had standing, essentially on the grounds that the rights asserted by the appellant as a Member of the European Parliament could be only indirectly infringed by the alleged encroachment on the legislative competence of the Parliament and that the appellant should be able to exercise his democratic parliamentary participation rights only within the framework of the Parliament’s internal procedures.
First, the appellant submits that this constitutes an error in law in the application of the criterion of direct concern pursuant to the fourth paragraph of Article 263 TFEU, with incorrect classification of the legal position of the Members of the European Parliament.
Pursuant to Articles 2, 10(1), 13(1) and 14(1) TEU, substantiated by his parliamentary participation rights, in particular pursuant to the first sentence of Article 6(1) of the Direct Elections Act, Article 2 et seq. of the Statute for Members of the European Parliament and Articles 177 and 218(1) of the Rules of Procedure of the European Parliament, the appellant has an individual right to participate in a proper legislative procedure resulting from his status as a Member of the European Parliament. That right is a right of the appellant in its own right, which he can assert not only intra-institutionally in the procedure of the Parliament, but also inter-institutionally vis-à-vis the Commission. By adopting the delegated regulation at issue on the basis of Article 290 TFEU instead of initiating the actually relevant ordinary legislative procedure pursuant to Article 289 TFEU by means of a corresponding proposal of the Commission, the appellant is directly affected with respect to that right.
In addition, the General Court also infringed the fourth paragraph of Article 263 TFEU in its otherwise legally incorrect interpretation of the criterion of direct concern. The appellant must also be presumed to be directly affected if – as the General Court assumes – the right to participate in a proper legislative procedure is to be regarded as being connected with or derived from the legislative competence of the Parliament and can thus be only indirectly infringed by the delegated regulation at issue. The criterion of direct concern refers only to the act complained of, but not to the appellant’s right. The assumption of direct concern only in the case of an encroachment on a direct, i.e. non-derivative, right is incompatible with the wording, scheme and purpose of the fourth paragraph of Article 263 TFEU.
Second, the appellant submits that the contested decision infringes the appellant’s right to effective judicial protection under Article 47 of the Charter of Fundamental Rights by depriving the appellant of any possibility to defend himself judicially against the infringement of his rights of participation as a Member of Parliament. The intra-parliamentary procedures to which the General Court refers do not constitute an appropriate means of legal protection for the purposes of Article 47 of the Charter of Fundamental Rights. An action by the Parliament, which has privileged standing under the second paragraph of Article 263 TFEU, does not constitute an effective remedy for the appellant, in particular if the majority of the Parliament refuses to bring an action.
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1 Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities (OJ 2022 L 188, p. 1).