T-222/99

ORDER OF 25. 11. 1999 — CASE T-222/99 R

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 25 November 1999 *

In Case T-222/99 R,

Jean-Claude Martinez, Member of the European Parliament, residing in Montpellier (France), Charles de Gaulle, Member of the European Parliament, residing in Paris, represented by François Wagner, of the Nice Bar, 2 Rue de la Poissonnerie, Nice (France),

applicants,

v

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Relevant provisions

1 Rule 29 of the Rules of Procedure of the European Parliament (OJ 1999 L 202, p. 1, hereinafter 'the Rules of Procedure'), headed 'Formation of political groups', reads:

'1. Members may form themselves into groups according to their political affinities.

2 By way of parliamentary rights, the Rules of Procedure (Rule 23) confer on the President of the Parliament and the chairmen of the political groups the right to attend and cast votes at the Conference of Presidents. In addition, any political group may table a motion for a resolution at the end of the debate on the election of the Commission (Rule 33), be a member of the Parliament's delegation to the Conciliation Committee (Rule 82) and give an explanation of vote lasting not more than two minutes (Rule 137).

3 The Rules of Procedure also provide that a number of initiatives may only be taken by 'a political group or by at least 32 Members', in particular as regards,

— nominations for the positions of President, Vice-Presidents and Quaestors (Rule 13); II - 3402

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— questions to the Council or the Commission for an oral answer (Rule 42);

— tabling a proposal for a recommendation to the Council concerning subjects under Titles V and VI of the Treaty on European Union (Rule 49);

— a proposal to request the Council not to authorise the opening of negotiations on the conclusion, renewal or amendment of an international agreement until Parliament has stated its position on the proposed negotiating mandate on the basis of a report from the committee responsible (Rule 97);

— tabling of amendments and recommendations drafted by the committee responsible within the framework of the common foreign and security policy (Rule 104);

— proposals to amend the draft agenda of Parliament (Rule 111);

— proposals for urgent debate (Rule 112);

— requests for a split vote (Rule 131);

— requests for voting by roll call (Rule 134);

— contesting an interpretation of the Rules of Procedure by the committee responsible (Rule 180).

4 Rule 30 of the Rules of Procedure concerning Non-attached Members reads:

'1. Members who do not belong to a political group shall be provided with a secretariat. The detailed arrangements shall be laid down by the Bureau on a proposal from the Secretary-General.

2. The Bureau shall also determine the status and parliamentary rights of such Members.'

Factual background to the dispute and the proceedings

5 By letter of 19 July 1999, the President of the Parliament was notified of the formation of the 'Groupe Technique des Députés Indépendants (Groupe TDI) — II - 3405

— the purpose of meetings of the [TDI Group] shall be to allocate speaking time and to settle any administrative and financial matters concerning the [TDI Group],

— the Bureau of the [TDI Group] shall be made up of representatives of the individual members.'

7 The President of the European Parliament announced the formation of the TDI Group at the plenary session on 20 July 1999. The presidents of the other II - 3406

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political groups represented in the Parliament, considering that the conditions laid down in the Rules of Procedure for the formation of political groups were not met, requested that the Committee on Constitutional Affairs should be asked to provide an interpretation. Under paragraph XV. 8 of Annex VI to the Rules of Procedure, which deals with the powers of parliamentary standing committees, that committee is responsible for matters relating to the interpretation of the Rules of Procedure, in pursuance of Rules 142 and 180.

8 The Committee on Constitutional Affairs considered that the statement notifying the President of the formation of the TDI Group was not in compliance with Rule 29(1) since it 'excludes any political affinities', and proposed the following interpretation:

13 By a separate document lodged at the Registry of the Court of First Instance on the same day they also made the present application for interim measures, under Article 242 EC, by which they are seeking suspension of the operation of the decision of 14 September 1999.

14 The Parliament submitted its observations on that application on 14 October 1999.

15 The parties presented oral argument on 18 October 1999. At the hearing the representative of the Parliament put forward two proposed amendments to the Rules of Procedure that were submitted by some of the Members under Rule 181 ; the object of those proposals was to enable Members who do not belong to a political group to sit as of right in a single group known as a 'mixed group'.

16 At the end of the hearing the representative of the Parliament was asked to inform the President of the Court of First Instance within one month of 18 October 1999 on progress made in considering the proposals to amend the Rules of Procedure, and the representative of the applicants was asked about the applicants' views on the possible adoption of those proposals.

17 On 21 October 1999 the representative of the applicants stated that the latter would withdraw their application for interim measures if the proposed amendments to the Rules of Procedure were adopted. II - 3408

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22 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for suspension of operation must be dismissed if either of those conditions is not met (order of the President of the Court of First Instance in Case T-70/99 R Alpharma v Council [1999] ECR II-2027, paragraph 42). The President of the Court of First Instance will also, where appropriate, weigh up the interests at stake (order of the President of the Court of Justice in Case C-107/99 R Italy v Commission [1999] ECR I-4011, paragraph 59).

Arguments of the parties

Admissibility

23 The Parliament claims that the main application is inadmissible and that therefore the application for suspension which derives from it must be dismissed as inadmissible.

24 First, the contested decision is an internal matter for the Parliament. Such a decision cannot be challenged under the first paragraph of Article 230 EC, which provides that the Court shall review the legality of acts of the Parliament 'intended to produce legal effects vis-à-vis third parties', that is to say only acts adopted under its decision-making powers in the sphere of the Treaty. O n the other hand, acts arising from the Parliament's power to determine its own internal organisation cannot be challenged (judgment of the Court of Justice in Case 230/81 Luxembourg v Parliament [1983] ECR 255).

28 The admissibility of an action by a natural or legal person against an act of general application is conditional upon that act being in reality a decision which is of direct and individual concern to the applicant (order of the Court of First Instance in Case T-39/98 Sadam Zuccherifici and Others ν Council [1998] ECR II-4207, paragraph 17).

29 In this connection, the applicants claim that they cannot properly exercise their mandates and are directly concerned by the contested act since that act reduces II - 3411

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them to 'second class' Members. However, that statement fails to take account of the rules of operation introduced by the Rules of Procedure, which rely on a distinction between Members as individuals and the political groups. In this particular case, only the benefits accorded to political groups are in issue and not the individual rights of the Members (in particular the right to vote and the parliamentary allowances).

30 Moreover, the rules for Non-attached Members were drafted in the light of the requirements of the Parliament's internal functioning. The present situation is therefore not comparable with the situation which gave rise to the judgment of the Court of Justice in Case C-314/91 Weber v Parliament [1993] ECR I-1093, paragraph 8 et seq.

31 Similarly, the argument that the decision of 14 September 1999 is of direct concern to the applicants on the ground that it is enforceable is unfounded. Nor do the applicants take account of the possibility open to Members of the Parliament to propose amendments to the Rules of Procedure under Rule 181(1) of those Rules.

35 The applicants state, first, that the contested decision amounts to discrimination against Members who do not belong to a political group.

36 Membership of a political group does indeed entail advantages with regard to the extent of parliamentary and administrative prerogatives.

37 So far as parliamentary prerogatives are concerned, they point out that under the Rules of Procedure only political groups are entitled to attend the Conference of Presidents with a right to vote (Rule 23) and they also refer to certain initiatives, referred to above (paragraph 3), that can only be taken by a political group or by at least 32 Members.

38 In addition, positions as members of committees and delegations are not allocated until after the demands of the political groups have been met, and Non- attached Members must content themselves with those positions which remain vacant. This exclusion of Non-attached Members is even more evident within a group of bodies, in particular, the ad hoc delegations set up by the Conference of Presidents.

39 As regards administrative prerogatives, the applicants state that unlike the political groups Non-attached Members cannot hold regular meetings with

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44 The decision of 14 September 1999 also infringes the fundamental right of freedom of association guaranteed under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the principle of equal treatment. As regards this last aspect, the applicants claim that the Parliament is setting itself up as a judge of Members' 'political affinities' and that the political decision it has taken must be regarded as arbitrary.

45 The Parliament contends that the pleas put forward by the applicants are manifestly unfounded.

49 The Parliament also denies that it failed to comply with the principle of legal certainty. It maintains that interpretation of the criteria of Rule 29 is an aspect for political assessment by the competent authorities, and so that the Community judicature can substitute its assessment for that of those authorities only where there is a manifest error, which is not the case here.

50 As regards the so-called mixed groups that had existed during previous legislatures, it points out that, under the provisions of Article 199 EC in conjunction with Rule 180, each Parliament is master of its own rules of procedure, subject to possible review by the Community judicature, and the Parliament has never been faced with such a manifest case of lack of any political affinities. Thus, according to the Parliament, the 1979 Technical Group was made up of members who at the time were somewhat opposed to European integration. The Technical Group formed for a period of two months in 1987 did not have the same disparity between its members as that which exists between the members of the TDI Group. So far as the present-day Group for a Europe of Democracies and Diversities is concerned, no political divergencies have so far been identified justifying denial of a political affinity between its members.

51 Lastly, the Parliament denies that it has failed to respect fundamental rights. In particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 11 of which is cited by the applicants, does not apply in this case since it is designed only to protect the rights of an individual vis- à-vis the State. II - 3416

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56 Moreover, no need has been established for the suspension applied for as regards administrative and financial advantages. Such advantages would only be 'ancillary' opportunities, which only the real political groups could enjoy.

57 In addition, it is settled case-law that financial damage cannot, except in exceptional circumstances, be regarded as irreparable, or even reparable with difficulty, when it can be the subject of financial compensation in the future.

58 Since the applicants have not given any indication either of the imminence of financial damage or of the existence of exceptional circumstances their application for suspension of the contested decision is not justified and hence the Court of First Instance cannot grant it.

Findings of the President of the Court of First Instance

Admissibility

61 The first paragraph of Article 230 EC provides that the Court of Justice is to review, in particular, the legality of acts adopted by the European Parliament which are intended to produce legal effects vis-à-vis third parties. That provision is designed in particular to submit for review by the Community judicature measures adopted by the Parliament in the context of the EC Treaty which might encroach on the powers of the Member States or of the other institutions, or exceed the limits which have been set to the Parliament's powers (judgment in Les Verts v Parliament, cited above, paragraph 25). On the other hand, measures which relate only to the internal organisation of the work of the Parliament cannot be challenged in an action for annulment (orders of the Court of Justice in Case 78/85 Group of the European Right v Parliament [1986] ECR 1753, paragraph 11, in Case C-68/90 Blot and National Front v Parliament [1990] ECR 1-2101, paragraph 11, and judgment in Weber v Parliament, cited above, paragraph 9). This category also includes acts of the European Parliament which either do not have legal effects or have legal effects only within the Parliament as regards the organisation of its work and are subject to review procedures laid down in its Rules of Procedure (judgment in Weber v Parliament, cited above, paragraph 10).

62 In the present case, the main application challenges the legality of the decision of 14 September 1999 adopting the interpretation of Rule 29 proposed by the Committee on Constitutional Affairs after a procedure initiated following the statement made to the President of the Parliament regarding the formation of the TDI Group.

66 Moreover, it should be pointed out that the Court of Justice has ruled that the purpose of the rules of procedure of a Community institution is to organise the internal functioning of its services in the interests of good administration. The rules laid down, particularly with regard to the organisation of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution (judgment of the Court of Justice in Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 49).

67 Even in the light of that case-law, and although Rule 29 is, admittedly, designed essentially to organise the work of Members of the Parliament, it cannot be ruled out that the decision of 14 September 1999 may be regarded as a measure having

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legal effects going beyond the internal organisation of the work of the Parliament, since it deprives certain Members of that institution of the opportunity of exercising their parliamentary mandates under the same conditions as Members belonging to a political group and thus prevents them from participating in the process leading to the adoption of Community acts as fully as the latter.

68 As for the question whether the contested decision is of individual and direct concern to the applicants under the conditions laid down in the fourth paragraph of Article 230 EC, it is sufficient to point out, on the one hand, that the interpretation contained in the decision of 14 September 1999 was applied for after an objection was lodged by the presidents of the political groups represented within the Parliament following the statement that the TDI Group, to which the applicants belonged, had been set up. Moreover, that interpretation directly prevents the applicants from belonging to the TDI Group, since the latter had ceased to exist as a political group within the meaning of Rule 29 following the adoption of that decision.

72 In that connection, Rule 29(1), by stating that Members may form themselves into groups according to their political affinities, does not in itself preclude the Parliament from taking different views, on the basis of all the relevant facts, of the various statements made to the President of the Parliament regarding the formation of political groups. Different treatment of that nature can be regarded as constituting prohibited discrimination only if it appears to be arbitrary.

73 In this case, as the Parliament claims, the rules under which the TDI Group was set up indicate that 'the various signatory members affirm their total political independence of one another', a statement which is capable of justifying objectively the different treatment accorded to the TDI Group. II - 3422

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74 However, it must be observed that the Parliament, as constituted following the last election, did not oppose the formation of the Group for a Europe of Democracies and Diversities, which the applicants claim is a mixed group. The Parliament states in this connection that it has so far been unable to identify any political differences between the members of that group which would justify denying they have political affinities, and merely states that 'it is apparent from its draft rules that there is a certain political affinity between the group's members', without however producing any documentary evidence in support or offering to provide such evidence.

75 The possibility remains therefore that the Parliament has discriminated arbitrarily against the applicants by preventing them from forming the TDI Group, a group in which they intended to combine with other Members. It should be added in this connection that it is clear from the applicants' statements — and the defendant has not adduced any evidence to the contrary — that political groups of a technical nature have been allowed since 1979.

80 If the decision of 14 September 1999 is not suspended, serious damage will be caused to the applicants since they are unable to enjoy the rights and advantages conferred on political groups and are therefore unable to speak as representatives of the citizens of the Member States of the Community under the same conditions as Members who belong to a political group. The damage is all the more serious because the time taken to investigate and dispose of the case in the main proceedings, time during which it cannot be ruled out that the applicants might suffer discrimination, may represent a not insignificant portion of their limited term of office.

81 Such damage is also irreparable in that even if the decision of 14 September 1999 is annulled at the end of the main proceedings this will not remedy the situation. II - 3424

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82 Moreover, suspension of the operation of the decision of 14 September 1999 until the Court of First Instance has given judgment on the main application, since it would have the effect of enabling the TDI Group to receive the same treatment as the Group for a Europe of Democracies and Diversities and the political groups formed since 1979 mentioned above (paragraph 43), cannot adversely affect the organisation of the work of the defendant. In this connection, it should be pointed out that the treatment accorded to those various political groups is a factor weighing in favour of the applicants' application, which can be taken into account when balancing the interests involved, since the Parliament has not established the existence of political affinities between the members of those groups, although they have been allowed to be set up, or even produced copies of their rules.

2. The costs are reserved.

Luxembourg, 25 November 1999.

H.Jung B. Vesterdorf Registrar President

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