C-190/84

2. The present case follows directly from the one which gave rise to the judgment to As the Court is aware, appropriations under which I have just referred. In that case les that item were used to finance the infor­ Verts challenged the decisions of the organs mation campaign prior to the second direct of the Parliament laying down the basic elections to the European Parliament, and rules for the application of item 3708; in have been the subject-matter of five other this case, they challenge the decisions taken applications made by les Verts. Four of by the administration of the Parliament them, those concerning measures pre­ implementing those rules. paratory to the approval of the 1984 budget (Cases 216/83, 295/83, 296/83 and 297/83), were ruled inadmissible by the Court, acting on its own motion, on the In support of their application les Verts rely ground that they did not meet the on the same submissions as they put forward requirement laid down in the second in the five cases to which I have referred: paragraph of Article 173 of the EEC Treaty. In its Orders of 26 September 1984 in those cases the Court held that inasmuch as the budget is defined in the financial regulation as the instrument which sets out forecasts (a) ultra vires acts ; of, and authorizes in advance, the Communities' revenue and expenditure, the procedure for its approval amounts only to the authorization of the commitment of expenditure. Steps in that procedure cannot (b) infringement of the Treaties, in therefore directly concern a natural or legal particular Article 138 of the EEC person; a person may, however, be affected Treaty, and of Article 7 (2) and (13) of by decisions implementing the budget the Act concerning the election of ([1984] ECR 3325, 3331, 3335 and 3339 the representatives of the European respectively). Parliament by direct universal suffrage;

(c) breach of the principle of electoral April 1986 quashed or left intact the equality; measures implementing item 3708 which were taken between the adoption and the annulment of the decisions establishing and (d) infringement of Articles 85 et seq. of the laying down the rules for that item. There is EEC Treaty; no solution to that problem in Community legislation or in the Court's case-law. The national systems of administrative law, (e) breach of the principle of equality however, do not seem to favour the before the law under the French automatic lapsing of consequential measures constitution; taken before the annulment of the act on which they are based; on the contrary, in so far as they may be challenged and provided (f) illegality, inasmuch as the vote of the that application is made within the appro­ French Minister in the Council of the priate time-limit, they are annulled by European Communities in the deliber­ separate decisions. 1 ations on the budget was ultra vires, and the Council's decision and all subsequent measures founded on it were thus unlawful; I am therefore inclined to conclude that the dispute now before us retains its raison d'être. On the substance of the case, (g) misuse of powers, inasmuch as the however, I do not think there can be any Bureau of the European Parliament discussion: the legal basis of the measures used the appropriations entered under implementing the decisions regarding item item 3708 to ensure the re-election of 3708 was removed by the judgment of 23 members elected in 1979. April 1986, and in so far as they may be challenged they must be annulled. Having said that, I do not propose that the Court Of those submissions the judgment of 23 annul them. In my view, the application is April 1986 upheld the first two, in particular inadmissible. that referring to an infringement of Article 7 (2) of the Act of 20 September 1976 on direct elections. The Court held that 'the reimbursement of election campaign expenses is not one of the matters covered 3. It should be recalled that by an interlo­ by the Act of 1976. Consequently, as cutory application lodged on 2 October Community law stands at present, the 1984 the European Parliament raised an setting up of a scheme for the reimbur­ objection of inadmissibility. The Parliament sement of election campaign expenses and requested that the Court rule on the the introduction of detailed arrangements objection without examining the substance for its implementation remain within the of the case; by an order of 28 November competence of the Member States' 1984, however, the Court reserved its (paragraph 54). decision on the objection until final judgment.

The Parliament puts forward two main capacity. Moreover, since the application arguments: it asserts that les Verts lacked was not made by a person with capacity to legal capacity at the time when the action act, it cannot be continued by the new asso was brought and that the conditions ciation. governing the bringing of proceedings under Article 173 by private parties have not been met. The facts on which it bases its first In reply, 'les Verts' put forward an argument are not contested. The association argument on two levels. First of all, they

. . an to wind itself up. On their dissolution, association acquires (and thus loses) legal however, the two groups merged, forming a personality only upon publication in the new political association to be called 'les Journal officiel' (my emphasis); they Verts, confédération écologiste — parti conclude from that that under the French écologiste'; the new association declared its system the acquisition and loss of legal existence to the préfecture de police on 20 personality are governed by a principle of June 1984 (Journal officiel, 25 July 1984, formal parallelism.

As the Court has held, Secondly, les Verts argue that even says the Parliament, the legal capacity of an supposing that the argument to the effect applicant is determined in accordance with that the dissolution and thus loss of legal the national law applicable to it (see, most personality of an association take place by recently the judgment of 27 November 1984 the simple intention of its members is in Case 50/84 Bensiderv Commission [1984] correct, the application was made by a ECR 3991) — in this case, therefore, in person which had legal capacity.

OPINION OF MR MANCINI — CASE 190/84

requirements. In the absence of any specific that by winding itself up after bringing the ru e l — leaving aside, of course, cases in application on 28 December 1983, the asso which associations are dissolved by the ciation 'les Verts — parti écologiste' had courts or by the authorities — it seems clear lost legal capacity. The Court held, to me that the matter is entirely one of indi however, that 'it can be seen from the vidual freedom.

As les Verts have correctly association and the new association pointed out, the instrument of merger (judgment of 23 April 1986, at para clearly shows that the members intended the graph 15). agreement dissolving the association to take effect only on the formation of a new asso ciation and to avoid any gap between the dissolution of the first and the formation of the second. Moreover, under Article 5 of the Law of 1 July 1901, 'every association As for the Parliament's argument which wishes to obtain legal capacity as concerning the continuation of the provided for in Article 6 must be made proceedings by the new association, I need public', and 'an association is made public merely point out that according to a only by publication in the Journal officiel'. If declaration of the association's Conseil the intention of the members of the asso interrégional (16 and 17 February 1985) the ciation 'les Verts — parti écologiste' is to be body competent under its articles of asso observed, therefore, it must be accepted that ciation to take legal proceedings expressly that association ceased to exist at the instant decided to continue the case brought by the at which the association 'les Verts, association 'les Verts — parti écologiste'. confédération écologiste — parti ecologiste' obtained legal personality, that is to say, in the words of Sousi, op. cit. at p. 447, 'upon the event whose automatic effect was the dissolution of the association'; inasmuch as

LES VERTS v PARLIAMENT

Parliament under the first paragraph of This objection cannot be upheld. It is true Article 173) which have been superseded by that the application refers to all the cases decided since the proceedings were decisions implementing item 3708 and brought. In support of its objection of inad­ identifies them only by indicating the stages missibility the Parliament makes the in the expenditure procedure (commitment, following arguments: authorization, validation, approval by the financial controller, payment). It is equally indisputable, however, that there was no publication of those decisions, and their (a) the decisions contested were not particulars (person responsible, recipient, specified; date) could not therefore be known to the applicant. Consequently, the applicant cannot be penalized for having identified (b) the application was premature inasmuch them only by reference to their common as it concerns decisions which had not subject-matter. I should add that this rather yet been made when the application was summary identification of the contested registered at the Court; measures in no way interfered with the parties' ability to present argument.

5. The following four objections are based Let me deal with those objections one by on the assertion that the conditions under one. In argument (a) the Parliament which applications may be made by private complains that les Verts did not specify in parties pursuant to Article 173 have not their application the decisions which they been met. According to the second seek to have annulled, and that the Court is paragraph of Article 173, a natural or legal therefore unable to determine with regard person may bring proceedings for to each of them whether the conditions laid annulment only 'against a decision down in the second paragraph of Article addressed to that person or against a 173 are fulfilled. Les Verts reply that their decision which, although in the form of a failure to specify the decisions concerned is regulation or a decision addressed to due to the fact that those decisions were not another person, is of direct and individual published. concern to the former'.

OPINION OF MR MANCINI —CASE 190/84

For les has not contested the only measure Verts, therefore, success in this case could addressed to it, that is to say the decision of mean only that they would have to repay 4 October 1984 by which the the sums received. Secretary-General of the Parliament granted it a refund in the amount of ECU 82 058. The fact that the association provided the documents necessary for that payment and accepted the sum concerned amounts to implied consent to the decision of the enlarged Bureau of 29 October 1983, and In reply to that argument les Verts, who consequently it cannot now challenge the were not represented at the hearing, measures implementing that decision. referred to the Orders of the Court of 26

6. Let me make a preliminary observation individually. That follows implicitly from before examining the views which I have paragraph 36 of the judgment of 23 April just summarized. Along with a number of 1986, where the Court held that if they could not challenge the decisions of the individual measures les Verts have chal bureau regarding item 3708, groups not lenged various accounting measures represented before 1984 would be 'unable to implementing the budget, and I think it plead the illegality of the basic decision must be determined whether an action will except in support of an action against the lie in respect of the latter measures.

LES VERTS v PARLIAMENT

Les Verts can therefore challenge only those individual measures implementing the basic With regard to the latter I am firmly of the decisions which are directed to them; in this opinion that les Verts do not meet the case the only such measure is the decision

OPINION OF MR MANCINI — CASE 190/84

already mentioned, by which the vidual decision concerning les Verts is to be Secretary-General of the Parliament included in the indeterminate number of determined the amount intended for infor­ contested measures. The fact that the mation expenses for the 1984 election decision is clearly ascertainable creates campaign. That decision has two aspects considerable difficulties for that hypothesis; which are crucial for this case: it was made in any event, it cannot surmount the last after the action was brought and is argument put forward by the Parliament. As addressed not to the applicant association I have already stated, pursuant to the but to its legal successor. In so far as 'les decisions annulled by the Court the asso­ Verts, parti écologiste' are concerned, ciation 'les Verts, confédération éco­ therefore, the application was clearly logiste — parti écologiste' received a certain premature; it is well known that amount of money and now, rather than proceedings cannot be brought to protect seeking to obtain a larger sum, it seeks the legal positions which have not yet come into annulment of the decision granting it that existence. benefit. The judgment sought by the applicant association can have only one I therefore conclude that the action is inad­ effect for it: to oblige it to repay the sum missible. That conclusion is not altered, already received. That shows that it has no moreover, if it is accepted that the indi­ legal interest in bringing the proceedings.