C-303/96

the other party to the proceedings being:

European Parliament, represented by Ezio Perillo, of its Legal Service, acting as Agent, assisted by Denis Waelbroeck, of the Brussels Bar, with an address for ser­ vice at the General Secretariat of the European Parliament, Kirchberg,

T H E C O U R T (First Chamber),

composed of: L. Sevón, President of the Chamber, D. A. O. Edward and M. Wathelet (Rapporteur), Judges,

* Language of the case: French.

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2 Article 138e of the E C Treaty created the post of Ombudsman the holder of which, under the same provision, is appointed by the Parliament.

3 According to the findings of the Court of First Instance, since the first appoint­ ment procedure in July 1994 did not result in an appointment, the Parliament initi­ ated a new procedure (paragraph 2). To that end, the Parliament, during its plenary session of 16 May 1995, amended Rule 159 of its Rules of Procedure (paragraph 3).

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4 That article now provides:

'1. ... the President [of the Parliament] shall call for nominations for the office of Ombudsman and set a time-limit for submitting nominations. A notice calling for nominations shall be published in the Official Journal of the European Communi­ ties.

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ORDER OF 6. 3.1997 — CASE C-303/96 Ρ

6 O n 9 June 1995 the appellant sent to the President of the Parliament a letter to which he attached his nomination for the post of Ombudsman (paragraph 6).

7 At the same time, the appellant raised objections as to both the form and the sub­ stance of the condition requiring that nominations should have the support of 29 Members. According to the appellant, the manner in which such support was to be given, the type of Member whose support was to be sought (whether Members of the European or national parliaments) and the date at which such support had to be given, were not made sufficiently clear. Moreover, the requirement for such sup­ port itself undermined, in his view, the Ombudsman's independence, despite the fact that it is expressly enshrined in Article 138e of the Treaty. His nomination therefore did not include names of Members likely to support him. In order, how­ ever, to satisfy that requirement, the appellant requested the President of the Par­ liament, if he considered it appropriate, to distribute his nomination document as a matter of urgency, translated into all the official languages of the Union, among the Parliament's various Members and political groups (paragraph 6).

8 By letter of 15 June 1995, the Secretary General of the Parliament informed the appellant that his nomination had been registered but indicated that the registry 'had no power to intervene in the procedure by distributing nominations among the Members of Parliament in order to seek their support within the meaning of Article 159(2) of the Rules of Procedure' (paragraph 7).

13 By order of 11 July 1995, the Court of Justice, finding that the applications fell within the jurisdiction of the Court of First Instance, referred the two cases to that Court (paragraph 13).

1 4 By order of 18 August 1995 (Case T-146/95 R Bernardi v Parliament [1995] E C R II-2255), the President of the Court of First Instance dismissed the application for interim measures.

15 In his application for annulment, the appellant claimed that the Court should:

'declare that:

— no Parliamentary committee was expressly and formally declared "competent" with regard to Article 159 of the Rules of Procedure of the European Parlia­ ment;

— no official or Member was expressly or formally assigned to consider the nomi­ nations;

— Decision N o 019473 of the Secretary General of 15 June 1995, in particular in so far as it refuses to distribute the applicant's nomination document among the Members of Parliament;

— the acts, written or otherwise, relating to the admissibility of the nominations of the persons concerned, particularly of politicians;

— the administrative acts following the public hearing of 28-29 June 1995;

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BERNARDI ν PARLIAMENT

find at the same time that the applicant's nomination document was in fact received by the Parliament, but that no clear, written and reasoned decision regard­ ing him was made known to him personally; that he was given no opportunity either to establish whether his exclusion was improper or to challenge it;

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ORDER OF 6.3.1997 — CASE C-303/96 Ρ

make an interim order that the applicant is entitled to have copies of the applica­ tion in the main proceedings and the application for interim relief and of the interim order itself forwarded by the Parliament, at its own cost, to the 626 Mem­ bers (appearing in the EP Directory of March 1995, or in a more up-to-date EP Directory) of the 15 countries of the European Union (EU) and translated into the 11 official languages;

order the defendant to pay all the costs of the proceedings ...' (paragraph 17).

16 In his reply, the appellant claimed that the Court should:

'find that the applicant had been "denied justice" as a result of the non-application of Article 36 of the E C Statute (of the Court of Justice);

17 With the exception of the claim seeking the annulment of the letter of the Secretary General of the Parliament sent to the appellant on 15 June 1995, the Court of First Instance declared the action inadmissible in its entirety.

18 It found, in paragraph 23 of the contested judgment, that the claims which only sought declarations in respect of matters of fact or matters of law could not, of themselves, be considered valid in the context of an action for annulment and, in paragraphs 26 and 27, that the claim seeking the annulment of 'all related and con­ sequential acts' and the claim for 'any other appropriate orders' were not suffi­ ciently precise to comply with Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance, according to which the applicant is required to state in his application the subject-matter of the proceedings. The Court observed, at para­ graph 29, that, in order to be admissible, an application for interim measures should, under Article 104(3) of the Rules of Procedure, be submitted by a separate document and, at paragraph 31, that, under Article 19 of the E C Statute of the Court of Justice and Article 44 of the Rules of Procedure, new claims may not be introduced at the reply stage. Accordingly, in paragraphs 30 and 32, it declared inadmissible both the applications for interim measures included in the main appli­ cation and the claims put forward in the reply, the latter with the exception of those seeking a declaration that the action was admissible and well founded and those referring to the claims in the application.

22 By his appeal, the appellant claims that the Court of Justice should set aside the contested judgment and uphold the claims he made at first instance.

23 This appeal is divided into eight 'elements'.

24 In the first 'element', the appellant argues that the Court of First Instance had no jurisdiction to hear and determine his action. Under Article 3(l)(c) of Council Decision 88/591/ECSC, E E C , Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), proceedings initiated pursuant to Article 173 of the Treaty may not be brought before that Court unless they relate to the implementation of the competition rules applicable to undertakings.

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25 The second 'element', which contains four parts, is worded as follows:

3. Infringement of essential procedural requirements inasmuch as the appellant's nomination:

*was not registered as a nomination;

*was not made known to the Members who were to elect the Ombudsman, so that it was impossible for them to make an objective choice;

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ORDER OF 6. 3.1997 — CASE C-303/96 Ρ

*was rejected by officials who evidently did not have the authority to take a decision from the point of view of Community law;

BERNARDI ν PARLIAMENT

27 In his fourth 'element', the appellant seeks the annulment of paragraphs 25 to 27 of the contested judgment in which the Court of First Instance held that the claim for the annulment of all related and consequential acts and that for any other appro­ priate orders to be made were not sufficiently precise and that, if the latter claim were to be interpreted as an application for a direction to be issued, the Court had no power so to do.

28 According to the appellant, the Court of First Instance infringed Community law by interpreting erroneously the concepts of 'purpose of the claims', 'related and consequential acts' and the power to make 'any other appropriate orders'.

29 In the first part, the appellant recalls the purpose of his application before the Court of First Instance and, in the second part, he sets out what he understands by 'related and consequential acts'. In the third part he emphasizes 'the requirement, for example, to refer the case back, in order to enable proper proceedings to be reopened'.

30 The fifth 'element' seeks the annulment of paragraph 29 of the contested judgment in which the Court of First Instance stated that, under Article 104(3) of its Rules of Procedure, an application for interim measures must be submitted by a separate document.

31 According to the appellant, that article 'must necessarily remain subject — where there is actual urgency — to Article 36 of the Statute of the Court of Justice (which provides for a summary procedure, which may, in so far as necessary, differ from some rules, such as for example the abovementioned Article 104)'.

Findings of the Court

35 Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is clearly inadmissible or clearly unfounded, the Court may at any time, by reasoned order dismiss the appeal, without opening the oral procedure.

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36 Before considering the pleas in law put forward by the appellant, it should be observed that, according to the first paragraph of Article 51 of the E C Statute of the Court of Justice, an appeal is limited to points of law and may lie on grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interest of the appellant or the infringement of Com­ munity law by the Court of First Instance; Article 112(1)(c) of the Rules of Pro­ cedure further provides that an appeal must contain the pleas in law and the legal arguments relied upon.

37 It follows from those provisions that an appeal must indicate precisely the con­ tested elements of the judgment which it is requested to have set aside and also the legal arguments which specifically support that request (orders in Case C-244/92 Ρ Kupka-Floridi ν Economic and Social Committee [1993] E C R I-2041, paragraph 9; Case C-338/93 PDe Hoe ν Commission [1994] E C R I-819, paragraph 18; Case C-26/94 Ρ Χ ν Commission [1994] E C R I-4379, paragraph 12; and Case C-62/94 Ρ Turner ν Commission [1995] E C R I-3177, paragraph 16).

42 So far as concerns the first plea in law, it need merely be observed that, by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21), the Council extended the juris­ diction of the Court of First Instance to all actions brought by natural or legal persons.

43 Moreover, it should be pointed out that, by the order of 11 July 1995 mentioned in paragraph 13 above, this Court has already ruled definitively on the jurisdiction of the Court of First Instance. The appellant cannot challenge the validity of that order in the context of the present appeal without disregarding its authority as res judicata.

44 The first plea in law is therefore both clearly unfounded and clearly inadmissible.

45 So far as concerns the third plea in law, as the Court of First Instance rightly held, actions initiated under Article 173 of the Treaty can have as their purpose only the annulment of a measure adopted by a Community institution. They cannot seek mere declarations of fact or law.

46 The third plea in law is therefore clearly inadmissible.

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51 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the appellant has been unsuccessful in his appeal, he must be ordered to pay the costs.

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ORDER OF 6.3.1997 — CASE C-303/96 Ρ

O n those grounds,

T H E C O U R T (First Chamber)

hereby orders: