C-470/00

PARLIAMENT v RIPA DI MEANA AND OTHERS

OPINION OF ADVOCATE GENERAL MISCHO delivered on 26 June 2003 1

1. The European Parliament has brought parliament of the State for which the an appeal against the judgment delivered by Member of the Parliament concerned was the Court of First Instance of the European elected, is mentioned in Annex III to the Communities (Fourth Chamber) in Ripa di Rules Governing the Payment of Expenses Meana and Others v Parliament 2 ('the and Allowances to Members of the Eur- contested judgment'), claiming that it opean Parliament ('Annex III'). should be set aside in so far as concerns Cases T-83/99 and T-84/99.

3. The version of Annex III in force from 25 May 1982 provided inter alia as follows:

I — Legal background

'Article 1

Article 3 Once that time-limit has expired, member- ship of the pension scheme shall take effect from the first day of the month in which the application was received.

For the calculation of the amount of the pension, any period of service in the parliament of a Member State may be aggregated with the period of service in 2. Applications for payment of the pension the European Parliament. Any period dur- must be made within six months of the ing which a Member has a dual mandate shall count only as a single period.' commencement of entitlement.

4. The provisional pension scheme was Once that time-limit has expired, the amended by a decision of the Bureau of pension shall be payable from the first day the Parliament of 13 September 1995 ('the of the month in which the application was 1995 decision') seeking essentially to make received.'

I - 4172

PARLIAMENT v RIPA DI MEANA AND OTHERS

6. Article 4 of Annex III, as amended by '1. On commencement of their term of the 1995 decision, reproduces in full the office, Members shall receive from the terms of former Article 3 of that Annex. Secretary-General a copy of these Rules and shall acknowledge receipt thereof in writing.

6 [Mr Ripa di Meana, Mr Orlando and 9 After a number of fruitless approaches Mr Parigi], believing that they were to the competent departments, the covered by the provisional pension applicants turned to the Vice-Presi- scheme, as is the case with respect to dents of the Parliament, Mr Imbeni the Italian parliament, did not apply to and Mr Podestà, to ask them to join the provisional scheme as pro- intervene to resolve the problem. vided for by the amendment of 13 Sep- tember 1995. It was not until the first few months of 1998 that [they] learned by chance that in fact they enjoyed no pension protection because they had not formally joined the scheme within the period of six months from the entry into force of the new Article 3(1) of 10 Mr Imbeni and Mr Podestà sent a Annex III, as amended by decision of letter dated 19 November 1998 to the the Bureau of 13 September 1995. College of Quaestors seeking a review of the applicants' situation. The request was rejected by individual letters sent to the applicants (No 300762 to Mr Ripa di Meana, No 300763 to Mr Orlando and No 300761 to Mr Parigi) by the College on 4 February 1999, on the ground 7 [Mr Ripa di Meana, Mr Orlando and that all the Members had been Mr Parigi] then followed different informed that membership of the courses of action. Mr Parigi submitted abovementioned retirement scheme his application for membership of the would only be possible if an applica- abovementioned scheme to the Social tion to that effect was submitted within Affairs Division ... of the Personnel the period prescribed in the decision of Directorate-General of the Parliament the Bureau of the Parliament of 13 ... on 18 February 1998. He requested September 1995 ...' the retroactive application of the pro- visional pension scheme. The College of Quaestors replied by two letters, dated 2 July and 20 October 1998, informing him that it was impossible to join the provisional pension scheme retrospectively. 11. Those are the circumstances in which, by applications lodged at the Registry of the Court of First Instance on 13 April 1999, Mr Ripa di Meana (Case T-83/99), Mr O r l a n d o (Case T-84/99) and Mr Parigi (Case T-85/99) brought an action for annulment of the decisions of the 8 Mr Ripa di Meana and Mr Orlando Parliament of 4 February 1999 rejecting contacted the Parliament administra- their requests for the provisional pension tion without submitting a written scheme referred to in Annex III to apply application. with retroactive effect.

13. By the contested judgment, the Court '27 It must be borne in mind, next, that as of First Instance in part allowed the early as its judgment in Joined Cases objection of inadmissibility raised by the 16/62 and 17/62 Confédération natio- Parliament. nale des producteurs de fruits et légumes and Others v Council [1962] ECR 471 the Court of Justice held that the term "decision" in the second paragraph of Article 173 of the EC Treaty (now the fourth paragraph of 14. In respect of the action brought by Article 230 EC) must be understood in Mr Parigi, the Court of First Instance took the technical sense in which it is used in the view that the letter of 4 February 1999 Article 189 of the EC Treaty (now sent to him by the College of Quaestors did Article 249 EC) and that the criterion not contain any new factor as compared for distinguishing between a legislative with the letters of 2 July and 20 October act and a decision within the meaning 1998 and was therefore a mere confirma- of the latter article must be sought in tion of the previous decisions. Since the two the general application or otherwise of 1998 decisions were not challenged within the act in question. the prescribed time-limits and since, more- over, the decision of 4 February 1999 was not preceded by any re-examination of Mr Parigi's situation, the Court of First Instance held, in paragraph 36 of the 28 Moreover, it is settled case-law that the contested judgment, that his action was fact that the number and even the inadmissible in its entirety. identity of the persons to whom a measure applies can be determined more or less precisely is not such as to call in question the normative nature of the measure (order of the Court of 15. In respect of the actions brought by Justice in Case C-10/95 P Asocame v Mr Ripa di Meana and Mr Orlando, on the Council [1995] ECR I-4149, para- other hand, the Court of First Instance graph 30 and the case-law cited).

'75 The Court finds that the Parliament, in 30 Even though the Court of Justice has order to satisfy the requirements stem- acknowledged that, in certain circum- ming from the principle of legal stances, a measure may be of direct certainty and sound administration and individual concern to certain and having regard to Article 27(1) of natural or legal persons (Joined Cases the Rules Governing the Payment of T-172/98 and T-175/98 to T-177/98 Expenses and Allowances to Members Salamander and Others v Parliament of the Parliament, ought to have and Council [2000] ECR II-2487, informed the Members concerned of paragraph 30 and the case-law cited), the amendment to Annex III by way of that case-law may not be relied upon in individual notification with a form of the present case since the contested acknowledgement of receipt. provision has not adversely affected any specific right of the applicants in the sense of that case-law.

76 Only by acting in this way would the Parliament have conducted itself in conformity with the case-law of the Community judicature, which requires that every measure of the administra- 31 It follows that the arguments of the tion having legal effects must be clear Parliament relating to the inadmissi- and precise and must be brought to the bility of the actions in Cases T-83/99 notice of the person concerned in such and T-84/99 must be rejected.' a way that he can ascertain exactly the

I - 4176

PARLIAMENT v RIPA DI MEANA AND OTHERS

time at which the measure comes into 79 Accordingly, the applicants submitted being and begins to have legal effects their applications for membership of (see Joined Cases T-18/89 and T-24/89 the provisional pension scheme within Tagaras v Court of Justice [1991] ECR the period prescribed by the amend- II-53, paragraph 40; see also the ment to Annex III.' judgment of the Court of Justice in Case 5/85 AKZO Chemie v Commis- sion [1986] ECR 2585, paragraph 39).

I-4177

OPINION OF MR MISCHO - CASE C-470/00 P

21. The Parliament claims that the Court — accordingly, confirm paragraphs 1 and should: 3 of the operative part of the contested judgment by granting, definitively and in full, the forms of order sought by Mr Ripa di Meana and Mr Orlando at first instance;

— set aside the contested judgment so far as concerns Cases T-83/99 and T-84/99;

— declare that, as a consequence, the — order the Parliament to pay in addition actions brought by the applicants at the costs of the appeal. first instance are inadmissible and unfounded;

— order the applicants at first instance to pay all the costs of the proceedings 23. If the Court upholds the appeal wholly brought before the Court of First or in part, Mr Ripa di Meana and Instance and the Court of Justice. Mr Orlando claim that the Court should:

— order Mr Parigi to pay the whole of the costs of the appeal proceedings.

— set aside the contested judgment only so far as concerns paragraph 4 of the operative part, relating to Case T-85/99;

V — Analysis of the main appeal

— accordingly, declare that, in respect of the proceedings in Case T-85/99, the parties are to bear their own costs; A — The first plea in law

1. Arguments of the parties — order the Parliament to repay the costs of the present appeal.

27. In its first plea, the Parliament disputes the Court of First Instance's characterisa- tion of the letter of 19 November 1998 from the two Vice-Presidents of the Parlia- 25. Mr Parigi claims that, if the Court ment as 'the applicants' application for rejects the cross-appeal in full or in part, it membership'. The Court of First Instance should apportion the costs of the appeal on held, in paragraph 26 of the contested an equitable basis. judgment, that '[t]he letter of 19 November

31. As regards Mr Ripa di Meana and Mr Orlando's argument that neither Annex III nor any other provision of national or Community law specifies detailed rules for submitting an application to join the provi- sional pension scheme, the Parliament points out, firstly, that there are special 29. This conclusion, moreover, is con- forms provided by the competent Parlia- firmed by a reading of the actual wording ment departments — forms which Mr Ripa of that letter, which shows, according to the di Meana and Mr Orlando knew existed — Parliament, that the Vice-Presidents did not and, secondly, that, if one accepts that an fully understand the situation. In this letter, application to join the provisional pension they liken Mr Ripa di Meana and scheme does not require particular formal- Mr Orlando's situation to Mr Parigi's: yet ities, it should, in any event, be written in it is clear from reading the contested such a way as to provide the authorities to

I-4180

PARLIAMENT v RIPA DI MEANA AND OTHERS

33. Mr Ripa di Meana and Mr Orlando observe that neither Annex III nor any 35. Mr Ripa di Meana and Mr Orlando other provision of national or Community then point out that the Parliament's argu- law lays down detailed rules for submitting ments relating to the alleged absence of an application to join the provisional applications to join the provisional pension pension scheme. Therefore, nothing pre- scheme are, in any event, irrelevant, since vented Mr Ripa di Meana and Mr Orlando the documents contested before and from being represented by the Italian Vice- annulled by the Court of First Instance are Presidents of the Parliament in making such the letters from the College of Quaestors of an application. In the absence of mandatory 4 February 1999 and, therefore, it is in the rules on the form that must be taken by the light of these letters only that the admissi- authority, the latter may be granted in any bility of the application at first instance form whatsoever, even orally or tacitly. should be examined.

I-4181

OPINION OF MR MISCHO — CASE C-470/00 P

2. Assessment 39. I therefore propose that the Court dismiss the Parliament's first plea in law as unfounded.

36. The way Mr Ripa di Meana and Mr Orlando proceeded was certainly un- usual. B — The second plea in law

1. Arguments of the parties 37. However, the Parliament's contention that the Vice-Presidents' letter of 19 Novem- ber 1998 could not be treated by the Court of First Instance as an application for 40. In its second plea in law, the Parlia- membership is demolished by the fact that ment challenges the Court of First one of its own institutions, namely the Instance's view that the letters of 4 Febru- College of Quaestors, also regarded it as an ary 1999 from the College of Quaestors are application for membership made by the 'decisions of the Parliament'. In the Parlia- Vice-Presidents on behalf of the Members ment's eyes, these were simple communica- concerned. tions, purely for information, from the Quaestors of the Parliament, who merely confirmed an existing situation perfectly well known to the Members concerned.

EC. Failure to act before the expiry of these 43. Finally, the Parliament points out that time-limits could in no case be regularised the letters of 4 February 1999 could not, in by an action to challenge letters viewed by any case, be described as 'decisions of the the Parliament as simple courtesy letters, Parliament' since Mr Ripa di Meana and merely confirming a rule known to Mem- Mr Orlando, by their exceptional informal bers of the Parliament. Any other inter- approach to the Vice-Presidents, have pretation would, in the Parliament's view, placed themselves in any event outside entail breach of the fundamental principle normal rules and procedures.

ought to have brought an action for present case, there is no measure imple- annulment against this measure within the menting the relevant rules, since the legal period prescribed, running from the day on conditions required for such a measure to which they learned of the measure. Once come about were not satisfied. In other this period had expired, the action ought to have been declared inadmissible by the Court of First Instance. 4 — Case C-314/91 Weber v Parliament [1993] ECR I-1093.

words, the College of Quaestors' letters 46. In the latter case, the College of could not have any legal effect, inasmuch as Quaestors rejected the application from a there had been, in this case, no formal Member of the European Parliament application on the part of Mr Ripa di attempting to obtain, after she had left Meana and Mr Orlando to join the provi- office, a transitional end-of-service allow- sional pension scheme. The Parliament ance. The College of Quaestors had rejected points out, in this regard, that a voluntary this Member's application on the basis of a act — in writing and signed by the decision of the Bureau of the Parliament to interested person — is indispensable to which the College of Quaestors' letter initiate an administrative procedure and expressly referred. In its judgment, the lead, where appropriate, to a challengeable Court declared admissible the action decision. In this case, no such act was brought by Mrs Weber against the College undertaken by the two Members. The letter of Quaestors' letter rejecting her applica- from the two Vice-Presidents — which, by tion, on the ground that 'the rules on the definition, did not come from the interested transitional end-of-service allowance for parties themselves — can therefore have no Members of Parliament and individual legal force. measures applying those rules have legal effects going beyond the internal organisa- tion of the work of that institution in so far as they affect the financial situation of Members of Parliament when they cease to serve in that capacity'. According to Mr Ripa di Meana and Mr Orlando, all measures affecting the financial situation of Members are therefore challengeable, including measures applying rules of a general nature. 45. While observing, in their reply to the Parliament's second plea in law, that it was the College of Quaestors itself which, in replying directly to the Members con- cerned, infringed the procedure provided for in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament, Mr Ripa di Meana and Mr Orlando dispute the Parliament's argument that the College 47. According to them, such is precisely the of Quaestors' letters were simple courtesy case of the College of Quaestors' letters of 4 communications and that the only chal- February 1999. Far from being simple lengeable act is the decision of 13 Septem- information or courtesy communications, ber 1995. They claim, in this regard, that such communications are, in fact, measures this argument is belied both by the unam- applying the Parliament's general rules on biguous nature of the terms used in those retirement pensions. Even if they were letters, according to which '[Mr Ripa di measures taken under the amendment made Meana and Mr Orlando's] application to Annex III by the 1995 decision, it was cannot be accepted', and by an authorita- those letters which concretely affected the tive precedent in the case-law of the Court, financial situation of the Members con- namely Weber v Parliament. cerned and it was therefore them — and not

49. Pointing out in addition that they had 52. Secondly, the Parliament's argument no interest in applying for annulment of the that the College of Quaestors' letters of 4 amendment made to Annex III — which February 1999 are merely a confirmation of had not been brought to their notice —, but the 1995 decision and that the time-limit only in securing application of this amend- for bringing an action has therefore expired ment to them from the date at which they cannot be accepted.

I-4185

OPINION OF MR MISCHO - CASE C-470/00 P

53. The Court of First Instance was right to 56. Similarly, the comparison made by hold, in paragraphs 29 and 30 of the Mr Ripa di Meana and Mr Orlando contested judgment, that the scope of the between the present case and Weber v 1995 decision is general and normative Parliament seems to me relevant in the and, in itself, has not adversely affected any sense that the latter also concerned the specific right of the Members concerned. In refusal of a financial advantage by the fact, it simply provides, in a general way, College of Quaestors under provisions that an application to join the provisional adopted by the Bureau of the Parliament. pension scheme must be made within six However, in that case, the Parliament in no months, otherwise the pension can no way denied that the action brought by Mrs longer be secured retroactively. Weber against the rejection by the Office of the Quaestors was admissible.

57. Finally, the Parliament's argument 54. The College of Quaestors' letters of 4 relating to an alleged contradiction between February 1999 are, on the other hand, paragraphs 29 and 30 on the one hand and different in character, in that they apply the paragraph 75 on the other in the contested 1995 decision to the specific case of the judgment seems to me to come under the Members concerned. It was only at that third plea in law put forward by the time, through the concrete rejection of the Parliament, which indeed returns to this application for retroactive membership of argument in the context of its third plea. the provisional pension scheme, that one of their specific rights was adversely affected and that a decision under Article 230 EC existed.

Mr Orlando actually submitted their appli- According to the Parliament, this article — cation for membership of the provisional which provides that, 'on commencement of pension scheme within the period pre- their term of office, Members shall receive scribed in the 1995 decision. It puts from the Secretary-General a copy of these forward, in this regard, four arguments, Rules and shall acknowledge receipt thereof which I propose to consider in two groups: in writing' — concerns only the full Rules in the first group, consisting of the first two force at the commencement of the Mem- arguments, concerns the question of bers' term of office, and not later amend- whether an individual notification of the ments to these Rules and their Annexes. 1995 decision was required (paragraphs 75 and 76 of the contested judgment); the second group, consisting of the last two arguments, relates to the ways in which Mr Ripa di Meana and Mr Orlando learned of the 1995 decision (paragraphs 77 and 78 of the contested judgment).

I - 4187

OPINION OF MR MISCHO — CASE C-470/00 P

62. Mr Ripa di Meana and Mr Orlando nity ... requires that every measure of the have replied that Annex III forms an administration having legal effects must be integral part of the Rules, of which each clear and precise and must be brought to Member receives a copy, with a form of the notice of the person concerned in such a acknowledgement of receipt, at the com- way that he can ascertain exactly the time mencement of his term of office, and that at which the measure comes into being and therefore the procedure provided for in begins to have legal effects', the Parliament Article 27(1) of these Rules should be points out that this rule applies only to applied to any amendment to the Rules, individual measures or, in any event, to including amendments to its Annexes. Only measures having a bearing on the situation this interpretation serves to respect the of certain persons. Such measures apply to principles of legal certainty and sound particular persons and can be notified to administration. them. However, it is apparent from para- graphs 28 to 30 of the contested judgment that the amendment to Annex III was treated by the Court of First Instance as a legislative measure of general scope, adopted to govern the pension rights of all Members, present and future, who are not 63. Mr Ripa di Meana and Mr Orlando covered by a definitive scheme for which point out, in this regard, that it is absurd to their Member State is responsible. The require a written form of acknowledgement Court of First Instance therefore erred in of receipt for the body of rules concerned, if law by subsequently taking the view, in later modifications to these can take effect paragraph 75 et seq. of the contested after an informal — and, moreover, uncer- judgment, that the amendment to Annex tain — communication to the interested III was an individual administrative mea- persons. Such an approach is, in their eyes, sure, requiring individual notification with just as absurd as one which requires the acknowledgement of receipt. obligation to publish Community rules in the Official Journal and allows publication of amendments made to those rules in any bulletin internal to the institutions.

both to the Parliament and to the interested time for membership of the additional person's home address does not mean that pension scheme and who, in 1997, after there is any legal obligation to do this in all rejection of his (late) application by the those cases where the principle of sound competent Parliament departments, made a administration would necessarily require complaint of maladministration against the more than one method of communication. Parliament to the Ombudsman. The Legal Service of the Parliament replied, in that case, that the complainant's statement that he had not been duly informed of amend- ments made to the additional pension scheme — amendments which, as in the 66. Mr Ripa di Meana and Mr Orlando present case, consisted of making entitle- point out the contradictory nature of what ment to that pension scheme subject to the Parliament is saying: it maintains, on submission of an application within a six- the one hand, that they can contest only the month time-limit — was not well founded, decision of 13 September 1995 and, on the since the Member 'had been given written other hand, that this decision must be notice at the Parliament and his home treated as a legislative measure of general address'. Subsequently, the complaint was scope, intended to govern the enjoyment of rejected by the Ombudsman on the ground pension rights for all Members, present and that these two opportunities to acquire future, even those from future Member knowledge of the time-limit for submission States of the European Union. The scope of of the application sufficiently protected this decision is, in fact, so general that it is both the Member and the requirements of difficult to maintain that the two Members good administration. Mr Ripa di Meana could contest it under Article 230 EC. and Mr Orlando are surprised, in the circumstances of this case, at the absence of a similar method of communication for the amendments made to Annex III.

75. Therefore the Court of First Instance rightly held that the attention of Members 7 1 . Like Mr Ripa di Meana and of Parliament ought to have been drawn to Mr Orlando, I take the view that the Court the newly-established time-limit, using for of First Instance, in reasoning thus, did not this the method of individual notification err in law. accompanied by a form of acknowledge- ment of receipt.

72. By providing, in Article 27(1) of the 76. On the other hand, I do not share the Rules, that on 'commencement of their term Court of First Instance's reasoning in regard of office, Members shall receive from the to paragraph 76 of the contested judgment. Secretary-General a copy of these Rules and shall acknowledge receipt thereof in writ- ing', the Parliament has shown that it attaches great importance to Members' precise knowledge of their rights. 77. Paragraph 76 states that:

'Only by acting in this way [that is, using an 73. The amendment made in 1995 was of individual notification with a form of considerable importance, since failure to acknowledgement of receipt] would the

I - 4190

PARLIAMENT v RIPA DI MEANA AND OTHERS

79. In Tagaras v Court of Justice, the issue 82. Despite paragraph 76 of the contested related to the publication of a decision to judgment, I am however of the opinion appoint an official, which is, by its very that, for the reasons set out above, the nature, an individual decision. However, as Court of First Instance rightly decided that the Parliament rightly observes, the Court the 1995 decision ought to have been of First Instance held, in paragraph 30 of notified individually. the contested judgment, that the 1995 decision is specifically not such a decision. In this sense, the reasoning followed by the Court of First Instance in paragraph 76 is therefore not relevant.

83. I therefore propose that the Court 5 — Emphasis added dismiss the first part of the third plea in law.

I-4191

OPINION OF MR MISCHO — CASE C-470/00 P

2. Second part of the third plea in law, them do not produce effects as long as these relating to the ways in which the Members officials do not gain precise knowledge of learned of the 1995 decision them within a reasonable period of time; however, the legal situation of Members of the Parliament is completely different.

(a) Arguments of the parties

PARLIAMENT v RIPA DI MEANA AND OTHERS

and its employees cannot be transposed to (ii) The Parliament's second argument the relations between an institution and its members, Mr Ripa di Meana and Mr Orlando claim that it is not the organic relationship linking a person to an institu- tion which determines the application of specific rules to an employment relation- ship. On the contrary, there should be an examination on a case-by-case basis, taking 89. The Parliament challenges the assertion into due consideration the matter at issue. in paragraph 78 of the contested judgment In the present case, it is undeniable, since that, '[e]ven though the applicants do not these questions are linked to the Members' deny having become aware of the existence retirement pension scheme, that relations of the amendment to Annex III during the between the Parliament and its (former) early months of 1998, the Parliament has Members are purely administrative in not proved that they had precise knowledge nature and in no way linked to the political of the amending measure more than six office of these Members. Therefore, the months before the applications were sub- action brought by Mr Ripa di Meana and mitted on 19 November 1998'. Mr Orlando before the Court of First Instance should be viewed, in the present case, like any other action brought against the institutions by a staff member.

I-4193

OPINION OF MR MISCHO — CASE C-470/00 P

91. In the second place, according to the 93. In paragraph 78 of its judgment, the Parliament, the Court of First Instance Court of First Instance, in the Parliament's committed a procedural irregularity by eyes, neglects the consequences of the shifting the burden of proof and requiring applicants' assertion during the written the Parliament to demonstrate that the procedure and at the hearing that they simple awareness of the amendment to became aware of the amendment made to Annex III admitted by the applicants Annex III 'early in 1998 at the latest'. The became a 'precise knowledge' of this Parliament points out, in this regard, that amendment more than six months before the text of the amendment was sent to the the Vice-Presidents' letter, which was Members through Communication No viewed by the Court of First Instance as 25/95, dated 28 September 1995, and via an application to join the provisional the minutes of the meeting of the Bureau of pension scheme. 13 September 1995 which, in accordance with Article 28(1) of the Rules of Procedure of the Parliament, is distributed to all Members in the official languages of the European Union.

PARLIAMENT v RIPA DI MEANA AND OTHERS

bership of the provisional pension scheme 98. According to Mr Ripa di Meana and or other pension schemes. It was therefore Mr Orlando, it is clear, inter alia from easy for the Members concerned to check paragraph 30 of the latter judgment, that in whether or not they enjoyed pension order for a person who, without having protection. acted wrongfully, has failed to submit the required application to join the provisional pension scheme within the six-month time- limit, to be viewed as having observed the principle of diligence, this person must, once informed of the existence of the measure establishing this time-limit, (a) within a reasonable time make approaches, 96. So far as concerns, firstly, the Parlia- if only orally, to the competent services in ment's argument that there is no need to order to acquire a precise knowledge of the distinguish, in the present case, 'precise contents of the measure concerned and the knowledge' from simple awareness of the reasoning on which it is based, and (b) then amendment made to Annex HI, Mr Ripa di submit the membership application in Meana and Mr Orlando point to a contra- question within six months. In the present diction in what the Parliament is saying. It case, the Court of First Instance found that seems here to be denying the existence of a phases (a) and (b) had taken place between distinction between these two concepts February and November 1998, within a whereas it had previously accepted it, period which accords with this case-law. maintaining that the reasonable period The Parliament's plea in law is therefore within which the Members must pass from inadmissible, since it seeks to challenge awareness of the existence of a measure to before the Court an unappealable determi- precise knowledge of it cannot exceed one nation of the facts by the Court of First month. Instance.

(b) Assessment 100. Finally, Mr Ripa di Meana and Mr Orlando reject the Parliament's argu- ment deriving from the fact that they received every month, at their request, a statement of their expenses and allowances, which should have enabled them to check 102. In my view, the Court of First at once whether or not contributions to the Instance was entitled to refer, in paragraph provisional pension scheme had been 77 of the contested judgment, to the deducted: they do so on the ground that distinction between, on the one hand, the argument is inadmissible, since it awareness of the existence of a measure — represents a new attempt by the Parliament in the present case, the 1995 decision — to challenge before the Court an unappeal- and, on the other hand, precise knowledge able determination of the facts by the Court of this measure. It must be borne in mind of First Instance. that the Court of Justice has held, in paragraph 14 of Dillinger Hüttenwerke v Commission, 7to which the Court of First Instance referred indirectly in paragraph 77 of the contested judgment, that:

101. They also claim that, in any event, this argument is not well founded, in so far as the receipt of monthly statements is not identical for officials and for Members of '[i]t is clear from the Court's case-law the Parliament. For the former, the figure relating to the third paragraph of Article 'zero' appears on these statements where 173 of the EEC Treaty (judgments of 5 there has been no contribution by the March 1980 in Case 76/79 Koenecke officials concerned under a given heading. [1980] ECR 665, and of 5 March 1986 in Officials are therefore in a position to realise their administrative situation con- cerning this account heading, so that any 7 — Case 236/86 [1988] ECR 3761.

8 — Sec also Case C-180/88 Wirtschaftsvereinigung Eisen- und 108. Instead, it merely established, in Stahlindustrie v Commission [1990] ECR I-4413, paragraph 22, Casc C-309/95 Commission v Council [1998] ECR paragraph 78 of the contested judgment, I-655, paragraph 18, and the order of 5 Marcii 1993 i n Case that the Parliament was obliged to show C-102/92 Ferriere Acciaierie Sarde v Commission [19931 ECR I-801, paragraph IS. that Mr Ripa di Meana and Mr Orlando

I-4197

OPINION OF MR MISCHO - CASE C-470/00 P

knew of the content of the 1995 decision 112. When questioned at the hearing more than six months before their request through their counsel about learning of was submitted. However, it seems to me the contents of the 1995 decision, Mr Ripa that, since these Members were obliged to di Meana and Mr Orlando were able to request the text of the decision within a give no explanation of either the date when reasonable period, the burden of proof lies or the means by which they learned of the with them: it is their responsibility to show contents of the 1995 decision. that they took the necessary steps within a reasonable time.

111. It has been established that Mr Ripa 114. Therefore, there is no reason to accept di Meana and Mr Orlando, as is apparent that Mr Ripa di Meana and Mr Orlando from paragraph 78 of the contested judg- had knowledge of the contents of the 1995 ment, were aware of the existence of the decision at a date later than the date on 1995 decision 'during the early months of which they undoubtedly became aware of 1998'. the existence of this measure.

I-4198

PARLIAMENT v RIPA DI MEANA AND OTHERS

115. The facts confirm, moreover, that, as 117. It is unquestionably apparent from the Parliament maintains, these two forms the above, therefore, that Mr Ripa di of knowledge did not occur at substantially Meana and Mr Orlando had knowledge different moments in time. of the contents of the amendment 'immedi- ately' after having learned of its existence.

116. I refer, in this regard, to a passage from Mr Ripa di Meana and Mr Orlando's 118. The reply given by the Parliament rejoinder, in which they discuss the Parlia- departments coincides entirely with the ment's first plea in law and which reads as contents of the 1995 decision, which follows: essentially contains nothing other than the six-month time-limit on retroactive entitle- ment to a pension.

I-4199

OPINION OF MR MISCHO - CASE C-470/00 P

121. Since the application was made on 19 Mr Orlando request it in any event to reject November 1998, by means of the Vice- as inadmissible the Parliament's claim that Presidents' letter, they would have to have the applicants at first instance should be learned of the 1995 decision at a date later ordered to pay 'all the costs of the than 19 May 1998 for the application to proceedings brought before the Court of have been made within the six-month First Instance ...'. According to them, that period. is, in fact, a new claim, submitted for the first time at the appeal stage, an approach which is prohibited by the second indent of Article 113(1) of the Court's Rules of Procedure. They point out, in this regard, that, at first instance, the Parliament did not 122. As we have just seen, they learned of submit a specific claim for an order against both the existence of the 1995 decision and the applicants, but simply requested the its contents — at the latest — early in 1998, Court of First Instance to 'make an appro- which means the months of January, priate order as to costs'. Pursuant to the February or, at the very latest, March, but first subparagraph of Article 87(2) of the not May. Rules of Procedure of the Court of First Instance, under which 'the unsuccessful party shall be ordered to pay the costs [only] if they have been [expressly] applied for in the successful party's pleadings', the Parliament should therefore have had to 123. The Parliament was therefore right to bear its own costs if it had won the case at reject, by its decisions of 4 February 1999, first instance. The claim submitted at the the applications made by Mr Ripa di appeal stage for Mr Ripa di Meana and Meana and Mr Orlando. Consequently, I Mr Orlando to be ordered to pay all the propose that the Court reject the action for costs of the proceedings before the Court of annulment brought against these decisions. First Instance is therefore a new claim which should be rejected as inadmissible.

129. These provisions do not make the Court's competence in the matter of costs 2. Assessment dependent on what one party has or has not requested from the Court of First Instance on this subject.

126. It is, of course, true, as Mr Ripa di Meana and Mr Orlando rightly observe, that a claim for an appropriate order as to costs does not amount to a claim for the other party to be ordered to pay the costs. 130. The first paragraph of Article 122 The Court so held expressly in Lestelle v provides generally that '... where the appeal Commission. 10 is well founded and the Court itself gives final judgment in the case, the Court shall make a decision as to costs'.

127. However, I am of the opinion that the fact that the Parliament asked the Court of First Instance to make an appropriate order 131. Furthermore, under Article 69(2) of as to costs does not bind the Court of the Rules of Procedure, the unsuccessful Justice in determining the apportioning of party is to be ordered to pay the costs if costs at the appeal stage, including costs these have been applied for in the successful relating to the proceedings before the Court party's pleadings. Since, in my opinion, of First Instance. Mr Ripa di Meana and Mr Orlando ought to be unsuccessful in Cases T-83/99 and T-84/99 as well as in the present appeal and 10 — Case CM/91 P |1992| ECR I-1755, paragraph 38. since the Parliament has applied to the

I-4201

OPINION OF MR MISCHO - CASE C-470/00 P

Court for them to be ordered to pay the Court of First Instance to order Mr Parigi costs of both actions, there is no reason not to pay the costs, but only to 'make an to find for the Parliament. I therefore appropriate order as to costs'. propose that the Court order Mr Ripa di Meana and Mr Orlando to pay the whole of the costs of the two actions.

135. Finally, as to the ban, provided for in the second paragraph of Article 51 of the EC Statute of the Court of Justice, on appeals regarding only the amount of the 133. Firstly, the Court of First Instance costs or liability for them, Mr Parigi has infringed the first subparagraph of Article pointed out that this provision must be 87(2) of its Rules of Procedure by holding, interpreted as meaning that it only obliges in the third sentence of paragraph 81 of the the Court to declare inadmissible those contested judgment, that since Mr Parigi appeals which seek to challenge the decision had been unsuccessful in his claims he must taken by the Court of First Instance in the be ordered to pay the costs incurred by the matter of costs, after the Court of First Parliament 'as applied for by it'. According Instance has determined the facts presented to Mr Parigi, the Parliament, in its defence to it. In the present case, on the other hand, and its rejoinder, in fact never requested the the cross-appeal underlines an obvious

I - 4202

PARLIAMENT v RIPA DI MEANA AND OTHERS

138. The Parliament points out, lastly, 136. The Parliament challenges, firstly, the that, even if Mr Parigi's response were way Mr Parigi categorises his appeal. taken into consideration, it should, in any According to the Parliament, it is clear event, be declared inadmissible on the from analysis both of the articles quoted by ground that it contravenes the second Mr Parigi and from the actual content of his paragraph of Article 51 of the EC Statute 'response' that it is not so much a 'cross- of the Court of Justice, under which '[n]o appeal' against the judgment of the Court appeal shall lie regarding only the amount of First Instance as an independent appeal of the costs or the party ordered to pay against this judgment, brought after the them'. The Parliament rejects, in this expiry of the time-limit. The Parliament regard, the 'fallacious' interpretation given alleges, in this regard, that the first para- to this provision by Mr Parigi in his graph of Article 51 of the EC Statute of the response. Court of Justice invoked by Mr Parigi does not apply to cross-appeals, whilst Article 115(1) of the Rules of Procedure of the Court refers to the response to the appeal and not to a document 'containing a cross- appeal'. Similarly, the first indent of Article 116(1) of these Rules of Procedure applies to the total or partial rejection of the appeal B — Assessment or the total or partial annulment of the Court of First Instance's decision forming the subject of the appeal. In the present case, the claims in the response may there- 139. It need only be stated that the cross- fore relate only to the Court of First appeal brought by Mr Parigi is an appeal Instance's judgment in Cases T-83/99 and with the sole object of challenging the T-84/99, concerning Mr Ripa di Meana Court of First Instance's decision on the and Mr Orlando. costs in Case T-85/99.

143. It is of course true, as is clear from 12 — See, inter alia, Case 200/87 Giordani v Commission [1989] Kontogeorgis v Commission, 11 to which ECR 1877, paragraph 22. 13 — See the Opinion of Advocate General Jacobs in Konto- georgis v Commission, point 7. 14 — See, for example, Case C-416/92 H. v Court of Auditors [1994] ECR I-1741, and in particular the Opinion of 11 — Case 163/88 [1989] ECR 4189. Advocate General Lenz in this case, point 31.

I - 4204

PARLIAMENT v RIPA DI MEANA AND OTHERS

VII — Conclusion

146. Having regard to the foregoing, I propose that the Court:

— set aside the judgment of the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-83/99 to T-85/99 Ripa di Meana and Others v Parliament in so far as it upheld, in Cases T-83/99 and T-84/99, the action for annulment of the European Parliament's decisions of 4 February 1999, Nos 300762 and 300763, rejecting the requests submitted by Mr Ripa di Meana and Mr Orlando respectively for the provisional pension scheme referred to in Annex III to the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament to apply with retroactive effect;