ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
8 June 2009 (*)
(Application for interim measures – Recovery of allowances paid by way of reimbursement of parliamentary assistance expenses – Application for suspension of operation of a measure – Inadmissibility – No urgency)
In Case T‑149/09 R,
Densmore Ronald Dover, residing in Borehamwood, Hertfordshire (United Kingdom), represented by D. Vaughan QC, M. Lester, Barrister, and M. French, Solicitor,
applicant,
v
European Parliament, represented by H. Krück, D. Moore and M. Windisch, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Decision D (2009) 4639 of the Secretary General of the European Parliament of 29 January 2009 concerning the recovery of allowances unduly paid to the applicant by way of reimbursement of his parliamentary assistance expenses, of the debit note based on that decision and of any decision taken with a view to offsetting the amount claimed against payment of other parliamentary allowances due to the applicant,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 The applicant, Densmore Ronald Dover, has been a Member of the European Parliament since 1999 and was formerly a Member of the House of Commons of the United Kingdom of Great Britain and Northern Ireland.
2 On 3 February 2009, he was notified of Decision D (2009) 4639 of the Secretary General of the European Parliament of 29 January 2009 (‘the contested decision’) stating that a total sum of GBP 538 290 which had been unduly paid to him between 1999 and 2008 by way of parliamentary expenses and allowances was to be recovered pursuant to the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament (‘the PEAM Rules’), in particular Article 14 and Article 27(3) thereof.
3 The operative part of the contested decision is worded as follows:
‘1. A total amount of GBP 538 290 was unduly paid to [the applicant] under the PEAM rules.
2. Pursuant to Article 27(3) PEAM, instructions are hereby given to the authorising officer by delegation to take all necessary steps to recover, in cooperation with the accounting officer, the sum of GBP 538 290 from [the applicant].’
4 Next, the applicant received a debit note dated 30 January 2009 in which the Secretary General of the Parliament requested him to pay the sum of GBP 538 290, if necessary in instalments, by no later than 25 April 2009. The Secretary General of the Parliament added that, if the debt had not been recovered in full by that date, the Parliament reserved the right to charge default interest and to proceed with recovery of the debt by enforcement and by offsetting it against equivalent claims pursuant to Article 27(4) of the PEAM Rules.
5 In a number of letters addressed to the Secretary General of the Parliament, the applicant requested that the contested decision and the debit note of 30 January 2009 be suspended, in the light of the serious and irreparable harm that he would suffer if he were required to pay the sum of GBP 538 290 by 25 April 2009.
6 Since no replies to those letters were received, by application lodged at the Registry of the Court of First Instance on 10 April 2009, the applicant brought an action for annulment of the contested decision.
7 By separate document, lodged at the Court Registry on 21 April 2009, the applicant brought the present application for interim measures, in which he claims, in essence, that the President of the Court of First Instance should:
– suspend, pursuant to the second subparagraph of Article 105(2) of the Rules of Procedure of the Court of First Instance, the operation of the contested decision, the debit note of 30 January 2009 and any decision to offset the amount claimed pending the making of an order concluding the present proceedings for interim measures;
– in any event, following an oral hearing, suspend the operation of the contested decision, the debit note of 30 January 2009 and any decision to offset the amount claimed until the Court has ruled on the action in the main proceedings;
– order the Parliament to pay the costs.
8 After the application for interim measures had been lodged, a decision of the Secretary General of the Parliament dated 28 April 2009 was addressed to the applicant for partial recovery of the sum of GBP 538 290 by way of set-off, pursuant to Article 27(4) of the PEAM Rules, being 50% of the general expenditure allowance, the whole of the extra months half-allowance payable at the end of the applicant’s term of office, together with the end of service allowance and the entire capital of the life assurance from which the applicant stands to benefit at the end of his term of office.
9 In its written observations on the application for interim measures, lodged at the Court Registry on 4 May 2009, the Parliament contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
10 The applicant replied to those observations by document dated 13 May 2009, which was followed by further observations from the Parliament dated 19 May 2009.
Law
11 Pursuant to Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the President of the Court may, if he considers that the circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures.
12 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
13 In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
14 Moreover, since failure to comply with the Rules of Procedure constitutes an absolute bar to proceeding, the President of the Court must consider, where the circumstances of the case so justify and, if necessary, of his own motion, whether the relevant provisions of those rules have been complied with (order in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 43, and order of 2 August 2006 in Case T‑163/06 R BA.LA. Di Lanciotti Vittorio and Others v Commission, not published in the ECR, paragraph 35).
15 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties. There is therefore no need to grant the applicant’s request for an oral hearing.
16 In the circumstances of the case, it is appropriate to consider, first, whether the application for interim measures is admissible.
Whether the application for interim measures is admissible
17 The action in the main proceedings is directed only against the contested decision, whereas the present application for interim measures seeks the suspension of the operation not only of that decision but also of the debit note of 30 January 2009 and of any decision to offset the amount claimed. The first subparagraph of Article 104(1) of the Rules of Procedure expressly provides that an application to suspend the operation of any measure adopted by an institution made pursuant to Article 242 EC is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. The present application for interim measures is therefore inadmissible in so far as it seeks to suspend the operation of the debit note of 30 January 2009 and of any decision to offset the amount claimed.
18 As regards the application to suspend the operation of the contested decision, pursuant to Article 104(2) and (3) of the Rules of Procedure, an application for interim measures must, inter alia, state the circumstances giving rise to urgency and be made by a separate document and in accordance with the provisions of Articles 43 and 44 of those rules.
19 It follows that an application for interim relief must be sufficiently clear and precise in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out in a coherent and comprehensible fashion in the application for interim relief itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if it is annexed to the application for interim relief, cannot make up for the absence of essential elements in that application (orders in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; Aden and Others v Council and Commission, paragraph 52; Case T‑85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37; and order of 13 December 2006 in Case T‑288/06 R Huta Częstochowa v Commission, not published in the ECR, paragraph 12).
20 In the present case, as regards the requirement relating to urgency, the applicant simply states that he would suffer serious harm if he were obliged to repay to the Parliament immediately the sum claimed in the contested decision. He adds that, even if his application in the main proceedings were successful, the damage caused by his debts and possible bankruptcy and by his loss of reputation could not be remedied. In that regard, the applicant refers to a signed witness statement annexed to the application for interim measures, stating that it sets out the financial and political consequences that he would have to face if he were obliged to make payment of the debit note of 30 January 2009 or to pay the amount claimed by way of set-off.
21 A simple statement that serious and irreparable damage is imminent is manifestly inconsistent with the requirements of Article 104(2) of the Rules of Procedure and does not satisfy the criterion of clarity and precision laid down in the case-law cited at paragraph 19 above. Indeed, the present application for interim measures is not sufficient in itself to enable the judge hearing the application to rule on the requirement of urgency.
22 The application for interim relief is therefore inadmissible also in so far as it seeks to suspend the operation of the contested decision.
23 Moreover, even if the judge hearing that application also considered the witness statement annexed to the application, the requirement of urgency would not be met in the present case in respect of any of the three measures at which the application is directed.
Urgency
24 It should be noted, first, that Article 242 EC establishes the principle that actions cannot have suspensory effect (orders in Case C‑377/98 R Netherlands v Parliament and Council [2000] ECR I‑6229, paragraph 44, and Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 42). It is therefore only in exceptional circumstances that the judge hearing an application for interim measures may order that application of the act contested before the Court be suspended or prescribe interim measures.
25 Next, according to established case-law, urgency must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party seeking the interim measure. It is not necessary for the imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage – especially if its occurrence depends on a series of factors – is foreseeable with a sufficient degree of probability (see order in Case T‑346/06 R IMS v Commission [2007] ECR II‑1781, paragraphs 121 and 123 and the case-law cited). However, the party invoking such damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3259, paragraph 188; and Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 86).
26 In order to be able to determine whether the damage feared in the present case is serious and irreparable and therefore provides grounds for ordering the suspension sought, the judge hearing the application must therefore have hard evidence enabling him to determine the precise consequences to be suffered in all probability by the applicant, both financially and in terms of his reputation, if the application is not granted.
27 With regard to the pecuniary damage alleged, according to settled case-law, pecuniary damage cannot, save in exceptional circumstances, be regarded as irreparable or even as reparable only with difficulty since it may normally be the subject of subsequent financial compensation (orders in Case C‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113, and Case T‑339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94). In such a situation, the interim measure sought is justified only if it is apparent that, but for that measure, the applicant would be in a position that could lead to his financial ruin before final judgment was delivered in the main action (see, to that effect, order in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 84 and the case-law cited).
28 As regards the present case, it should be noted, first, that the operative part of the contested decision simply states that the sum of GBP 538 290 was unduly paid to the applicant and that instructions are given to the authorising officer by delegation to take all necessary steps, in cooperation with the accounting officer, to recover that sum from the applicant. It follows that, since it does not itself impose measures for the recovery or enforcement of the debt vis-à-vis the applicant, the contested decision cannot be regarded as giving rise, with a sufficient degree of probability, to the imminent risk of his financial ruin within the meaning of the case-law cited at paragraph 25 above.
29 Second, the same applies to the debit note of 30 January 2009, which, in the light of its content, does not contain any matter of a decisional nature and does not make provision for recovery, in the strict sense, of the sum claimed by the Parliament. It is therefore not capable of itself of having the ruinous effect feared by the applicant.
30 Moreover, the Parliament stated, without being contradicted by the applicant, that, unlike the Council of the European Union or the Commission of the European Communities, it does not have the competence under Article 256 EC to adopt enforceable decisions imposing pecuniary obligations on the persons to whom they are addressed and that explains why it will have no option other than to institute separate legal proceedings in order to secure an enforceable decision through the competent national courts, which could subsequently assist it in the recovery of the majority of the sum claimed.
31 As was held in the context of a national procedure for the recovery of State aid, Community law does not preclude the national court from ordering suspension of the operation of an application for repayment pending settlement of the substantive case before the Court of First Instance or a preliminary ruling of the Court of Justice on a question referred to it under Article 234 EC. Where the applicant challenges the legality of the contested Community measure under Article 230 EC, the definitive nature of the measure is not binding on the national court. Moreover, the fact that an application for suspension has not been successful before the Community judicature does not preclude the national court from ordering suspension. It follows that, in an application for interim measures, it is for the applicant to show that the domestic remedies available to him under national law to oppose recovery of State aid do not enable him to avoid serious and irreparable damage (see order of 14 March 2008 in Case T‑444/07 R Huta Buczek v Commission, not published in the ECR, paragraphs 67 and 68 and the case-law cited).
32 The case-law summarised at paragraph 31 above is also relevant to the present issue as to whether the sum claimed in the contested decision is recoverable by means of national judicial remedies, given that the applicant has challenged the legality of that decision before the Court of First Instance under Article 230 EC, so that the national courts – the Parliament refers in that connection to the courts in the United Kingdom and Luxembourg (in its observations of 19 May 2009) – would not be bound by the definitive nature of the decision. However, there is nothing to suggest at this stage that the domestic remedies available to the applicant to oppose any recovery of the sum at issue would not enable him to avoid the serious and irreparable damage alleged. From this point of view, the application for interim measures therefore appears to be premature.
33 Third, with regard to the decision of 28 April 2009 for the partial recovery of the sum of GBP 538 290 by way of set-off (see paragraph 8 above), it is sufficient to refer to the applicant’s reply of 13 May 2009 to the Parliament’s observations, in which it is stated expressly that ‘[i]f the Parliament is now confirming that it will not seek to recover the full amount set out in the contested decision by any means pending resolution of the main application, but will seek only to recover the sums set out at paragraph 31 of the Parliament’s observations,’ – that is to say, the sum of approximately GBP 60 000 recovered by way of set-off – ‘then the applicant’s evidence would plainly be different as to whether this would cause him serious and irreparable harm’. The applicant added that he ‘would be content to withdraw [the] application for interim measures upon such an undertaking (without any admission of liability to the Parliament) provided that the Parliament confirms that it will seek to recover only the amounts set out at paragraph 31’.
34 It necessarily follows that the applicant is himself of the view that the set-off measures adopted by the Parliament are not of such a kind as to cause him serious and irreparable harm.
35 Consequently, the financial damage invoked by the applicant is not of a serious and irreparable nature such as to justify the suspension of the operation of the measures in question that is sought.
36 With regard to the non-material damage alleged, the applicant stated in his reply of 13 May 2009 to the Parliament’s observations that there was a direct causal link between the Conservative Party’s decision to suspend his membership of the party in November 2008 and subsequently to withdraw the whip, on the one hand, and the reports published in the national media of the Parliament’s investigations into his Parliamentary assistance allowance on the other. It follows that the alleged harm to the applicant’s reputation had already occurred before the contested decision was adopted on 29 January 2009. The non-material damage claimed was not therefore caused by that decision.
37 In any event, even if it were established, the damage to the applicant’s reputation had already occurred and could, therefore, no longer be avoided if an order was made for the suspension sought. Accordingly since the purpose of interim proceedings is not to secure reparation of damage but to ensure the full effectiveness of the judgment on the substance, it must be concluded, as regards the non-material damage claimed, that the requirement of urgency is not satisfied in the circumstances of the present case. Finally, according to established case-law, the grant of the suspension of operation sought would not be able to remedy the non-material damage alleged any more than would annulment of the contested decision when the main action is decided (see, to that effect, order of 27 August 2008 in Case T‑246/08 R Melli Bank v Council, not published in the ECR, paragraph 53 and the case-law cited).
38 The application for interim measures must therefore be dismissed without there being any need to consider whether the other requirements for granting the suspension sought are satisfied, in particular the requirement to show that there is a prima facie case.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 8 June 2009.