C-167/02

1 — Original language: English. 2 — Case T-71/00 Rothley and Others v Parliament [2002] ECR 4 — Case C-25/62 [1963] ECR 95. II-579. 5 — Case C-50/00 P [2002] ECR I-6677. 3 — Annex XI of the current (15th) edition, OJ 2003 L 61, p. 1, 6 — Commission Decision of 28 April 1999 establishing the at p. 112. European Anti-Fraud Office (OLAF), OJ 1999 L 136, p. 20.

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[ing] the effectiveness of the fight against 5. Article 4 of the Regulation lays down fraud and other illegal activities detrimental more detailed guidance regarding the con- to the financial interests of the duct of internal investigations. By Article 4 Communities'. 7It is empowered by Reg- (1), they are to be carried out 'subject to the ulation (EC) No 1073/1999 8to conduct rules of the Treaties, in particular the internal administrative investigations Protocol on privileges and immunities of within the 'institutions, bodies, offices and the European Communities ... under the agencies established by, or on the basis of, conditions and in accordance with the the Treaties' for the purpose of: procedures provided for in this Regulation and in decisions adopted by each institu- tion, body, office and agency'.

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Commission concluded an interinstitutional 10. The fourth paragraph of Article 2 agreement on 25 May 1999. 10 By point 2 requires Members to inform the President thereof, they each undertook to adopt an of the Parliament or, if they consider it internal decision in accordance with a useful, OLAF directly, if they acquire model decision attached to the agreement, knowledge of 'evidence which gives rise to from which they could deviate only if their a presumption of the existence of possible own particular requirements made such cases of fraud, corruption or any other deviation a technical necessity. illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities or staff not subject to the Staff Regulations, liable to result in disciplinary or, where appropriate, 8. The contested measure implements the criminal proceedings'. interinstitutional agreement within the Parliament. It amends the Parliament's Rules of Procedure to give effect to a version of the model decision, modified to take account of the Parliament's particular requirements, which it appends to those Rules. 11. Article 4 provides that '[r]ules govern- ing Members' parliamentary immunity and the right to refuse to testify remain unchanged'.

13. Articles 8 to 10 of the Protocol on the privileges and immunities of the European Communities of 8 April 1965 are devoted Immunity cannot be claimed when a to the Members of the Parliament. Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.'

14. Article 9 provides that 'Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties'.

The contested judgment 15. Article 10 states that:

16. On 21 January 2000, the applicants brought proceedings before the Court of First Instance for annulment of the con- 'During the session of the European Parlia- tested measure. They also sought interim ment, its Members shall enjoy: measures pursuant to Article 242 EC. By order of 2 May 2000, " the President of the Court of First Instance suspended the operation of a number of provisions of the

(a) in the territory of their own State, the immunities accorded to Members of 11 — Case T-17/00 R Rothkeyand Others v Parliament [2000] their parliament; ECR II-2085.

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20. Thirdly, the Court considered the judicial protection otherwise available to the applicants. The risk could not be excluded that, in conducting an investiga- 18. The Court first considered whether the tion, OLAF might perform an act prejudi- applicants were affected by the contested cial to the immunity enjoyed by Members measure by reason of certain attributes of the Parliament. However, the Court peculiar to them or by reason of circum- noted that Members faced with such an stances which differentiated them from all act could at that stage avail themselves of other persons, in accordance with the test the legal remedies provided for by the for individual concern laid down in Treaty. The existence of such a risk could, Plaumann. 14 It concluded that they were in any event, not alter the conditions for not. The measure applied to the applicants standing laid down by the fourth paragraph as Members of the Parliament, a category of Article 230 EC. 17 which could not be regarded as closed merely because when the measure was adopted the number and identity of its members at that time were known. Nor was there any reason to suppose that the applicants formed a closed sub-category within the Parliament. 15 21. Lastly, the Court noted that, by contrast with the situation in Les 12 — At paragraphs 58 to 62. 13 — At paragraph 63. 14 — Cited in note 4. 16 — At paragraphs 71 to 72. 15 — At paragraphs 65 to 70. 17 — At paragraphs 73 to 74.

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Verts, the inadmissibility of the present breach of the fourth paragraph of Article action would not give rise to any inequality 230 EC; and that it infringed their right to as regards the judicial protection afforded effective judicial protection as enshrined in to the applicants as compared with that the general principles of Community law. afforded to other Members of the Parlia- ment.

28. In the applicants' submission, the Pre- the order of the President of the Court of sident was prepared when making that First Instance in Martinez and de order to accept a 'strong case' for consider- Gaulle. The President specifically referred ing that the main action would prove to the requirement of individual admissible, without considering in detail concern. The fact that he did not explore whether the requirement of individual in detail whether the applicants in the concern was satisfied, once he had first proceedings before him were individually concluded that the decision at issue was concerned can be attributed to the interim possibly capable of producing legal effects character of the proceedings in question. going beyond the internal organisation of the work of the Parliament.

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34. A second argument is advanced by the decision. The Court of First Instance found applicants in their reply. They seek to rely that they were individually concerned by upon the judgment of the Court of First that decision, which was at once a measure Instance in Martinez and de Gaulle,21 of general application and an individual where, in circumstances which they claim determination of the TDI group's status. 22 to be materially identical to those of the present case, the Court of First Instance found the requirement of individual con- cern to have been met.

21 — Joined Cases T-222/99, T-327/99 and T-329/99 [2001] ECR II-2823. 22 — At paragraphs 71 to 72.

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40. I cannot agree with that argument. spectively to Members of the Parliament, is liable to affect future Members as well as those who currently hold office, and as such is not of individual concern to any one or more of them.

41. It is clear that ordinarily under the traditional interpretation of individual con- cern instituted by the case of Plaumaim, 23 a person will not be individually concerned by a measure if he is affected by it only as 43. Although the Court of First Instance one of a group, however small and easily did not explicitly apply the test of indivi- identifiable its membership, the composi- dual concern, re-emphasising instead the tion of which is not permanently fixed at general application of the measure, it did the time when the m e a s u r e is refer to that test, and reached what was in adopted. Thus, in Plaumann, 24 the appli- my view the correct conclusion in rejecting cant was affected by the measure at issue the applicants' contention that the con- 'by reason of a commercial activity which tested measure concerned them individually may at any time be practised by any person' as members of a closed circle of persons and therefore lacked the requisite standing identifiable by name. I therefore consider to proceed. that the applicants' third argument must fail.

42. Whilst the composition of the Parlia- ment differs from that of groups engaged in 44. Fourthly, the applicants contend that many commercial activities in that it is the Court of First Instance was wrong to determined by and changes in accordance dismiss the possibility of applying the case- with a specified set of rules and procedures, law 2 5by virtue of which an action for it still cannot be regarded as fixed. In annulment is admissible where a superior consequence, an act, such as the contested rule of law required the decision-maker to measure, which applies generally and pro- take account of the applicants' peculiar circumstances.

46. I am not persuaded by the applicants' 49. In any event, the Court of First Instance submissions in that regard. was to my mind also correct to hold that Parliament did show appropriate regard to the rights of its Members when adopting the contested measure. Article 4 of the model decision confirms that the rules governing Members' parliamentary immun- ity and the right to refuse to testify remain unchanged. Moreover, the duty upon 47. The case-law upon which they rely Members to cooperate with OLAF, laid does not permit a person to challenge any down by Article 1 of the model decision, is measure which can be shown to violate a specifically stated to be without prejudice to superior rule of law. Otherwise, the test for the relevant provisions of the Treaties individual concern would become indistin- establishing the European Communities, in guishable from the substance of the case, particular the Protocol on privileges and given that every action challenging a Com- immunities, and of the texts implementing munity measure asserts its incompatibility them. Similarly, the Regulation empower- with some rule or principle of Community ing OLAF to conduct internal investigations law. Such an approach would circumvent is itself expressly subject to the rules of the any independent requirement of standing. Treaties, especially the Protocol.

48. It is therefore necessary also to show that the superior rule of law in question requires the decision-maker to pay particu- 50. I therefore consider that the applicants' lar regard to the applicant's situation, in first ground of appeal must fail.

52. The applicants submit that the obliga- tions to cooperate with and supply infor- mation to OLAF are imposed upon them directly by the contested measure, without the need for any implementing act which 56. As regards those obligations which the could form the object of subsequent judicial contested measure imposes upon Members proceedings. Nor, in the applicants' view, of the Parliament directly — such as their need OLAF adopt any kind of reviewable duties to cooperate with, and to supply legal act in the exercise of its investigatory information to, OLAF — it is in the first powers. As a consequence, there is no scope instance for Members to assess for them- for Members of the Parliament to challenge selves whether a given situation gives rise to the contested measure indirectly before the such obligations, bearing in mind the other Community courts. rights and obligations applicable to them by virtue of their office. Such assessment might be subject to subsequent review, most obviously in the context of disciplinary proceedings by the Parliament. However, an adverse decision taken in the context of such a review would itself be open to 53. The applicants consider it equally challenge before the Community Courts. unlikely that there would be any scope to challenge an infringement of Members' rights by OLAF in the context of subse- quent national judicial proceedings arising out of an internal investigation. They sub- mit that national courts would lack the competence to review measures taken by 57. As regards the measures taken by OLAF. OLAF during the course of an internal

61. It appears to me, however, that the 58. The Commission points to a number of need for discreet and expeditious action in legal acts which might be challenged in that the detection of fraud renders some such way: the decision of the director of OLAF risk unavoidable. It should, moreover, be to open an internal investigation as required noted that the contested measure contains by the second paragraph of Article 5 of the provisions designed to minimise the Regulation; various measures taken by danger. Thus, Article 5 of the model OLAF in the course of an investigation, decision requires Members to be informed including the decision to have access to an rapidly of their implication in an investiga- office, to seize documents or to request oral tion, as long as that would not harm the information; as well as the agreement, investigation. That article also prevents explicit or implicit, of the institution in Members from being named in OLAF's question. conclusions without their first having been heard except insofar as national investiga- tive procedures require the maintenance of absolute secrecy.

59. Even assuming that proceedings under Article 230 EC could not be brought against OLAF itself, they could in that case be directed against the Commission, which could ensure OLAF's compliance with an 62. If any difficulties were to emerge ensuing judgment, if necessary by means of relating to the admissibility of proceedings disciplinary measures including, in the last brought by Members of the Parliament in resort, the dismissal of the director. respect of OLAF's conduct of an internal investigation, they could in my view be resolved by respecting the obligation, recently confirmed in Unión de Pequeños Agricultores, 26 to interpret the relevant provisions of Community law, in so far as 60. It is true that such proceedings would often be retrospective in character, as is ordinarily the case with judicial review. The 26 — Cited in note 5, point 44.

(1) dismiss the appeal;

(2) order the applicants to pay the costs;

(3) order the Council, the Commission and the Netherlands, as interveners, to bear their own costs.

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