Opinion of the Advocate General — ECLI:EU:C:2005:60
Date: 2005-01-27
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment;Appeal - unfounded
Origin: France

summary below). 45. I will accordingly turn to the substance of the appeal, the essence of which is that the Court of First Instance committed an error of law in dismissing the application for annulment on the ground that the contested act is not capable of being the subject of an action for annulment under Article 230 EC. 46. More specifically the appellant submits first that there is a contradiction between the statements of the Court of First Instance that, on the one hand, the contested act was not intended to produce legal effects of its own, distinct from those of the decree (paragraph 97 of the judgment), and that, on the other hand, the Parliament had a power of verification, albeit limited (paragraph 91). 47. I am not persuaded by that argument. 48. Paragraph 91 is best read in its context. In paragraphs 85 to 88, which the appellant does not appear to contest, the Court of First Instance considered the scope of Article 12(2) of the 1976 Act, explaining that that provision ‘draws a distinction between two situations in which seats of Members of the European Parliament become vacant’, namely between ‘cases where the vacancy arises from the application of “national provisions”’ and ‘all other cases’. In the first situation, which ‘includes cases of ineligibility’, ‘the role of the Parliament is confined to “taking note” that the seat of the person concerned is vacant. In the second situation, which covers, for example, the resignation of one of its Members, the Parliament “shall establish that there is a vacancy and inform the Member State thereof”’. 49. The next two paragraphs, which are set out above, explain the concept of ‘taking note’. 50. In paragraphs 91 and 92, as set out above, the Court of First Instance expands on the precise scope of the Parliament’s powers when taking note of a declaration emanating from the national authorities. 51. I cannot see anything in those paragraphs which conflicts with the conclusion of the Court of First Instance that the contested act was not intended to produce legal effects of its own. On the contrary, they lead to that conclusion. As the citations above show, the Court of First Instance clearly explains that (i) the ‘taking note’ refers to the fact that a seat has become vacant as a result of national provisions and (ii) the Parliament may verify whether that seat is in fact vacant, for example by checking whether any domestic right of appeal has been exhausted, but no more. It follows from that limited power of verification that the ‘taking note’ by the Parliament has no legal effect distinct from the legal effect of the national provisions whose application led the national authorities to inform the Parliament of the fact that the seat had, in consequence, fallen vacant. 52. Second, the appellant submits that the Court of First Instance distorted the scope of Article 12 of the 1976 Act by finding that the decree was the only act which produced binding legal effects such as to prejudice his interests. (8) The appellant refers to examples from the case-law where the Community judicature accepted that a Commission code of conduct, (9) a Commission communication (10) and a statement by the spokesman for a Commissioner (11) were acts which could be challenged. He adds that the intention of the author of the act is also relevant. In the present case the Legal Affairs Committee and the President of the Parliament regarded the Parliament’s taking note as modifying the appellant’s status. It was accordingly specious for the Court of First Instance to distinguish between the legal and practical effects of the contested act by stating that the fact that the Parliament did not take note of the decree as soon as it was notified and the fact that certain practical consequences for the appellant flowed from it could not alter the legal consequences which attached to that notification pursuant to Article 12(2) of the 1976 Act. (12) 53. The appellant further submits that the Court in its case-law does not draw a clear distinction between legal and practical effect, and by way of illustration refers to decisions holding that the simple fact of imposing an obligation on a person constitutes a legal effect, (13) as does a decision exposing a person to a pecuniary risk (14) as does a request for information by way of decision taken under Article 11(5) of Regulation No 17 (15) since the undertaking concerned may be fined if it fails to provide the information requested. (16) 54. Much of the analysis in paragraphs 48 to 51 above is also relevant in the context of the appellant’s second argument. As is clear from the relevant paragraphs of its judgment, which are summarised or set out above, the Court of First Instance explains carefully why it considers that the contested act had no binding legal effects. Its analysis appears to me to be correct. Article 12(2) of the 1976 Act refers explicitly to the situation where a seat falls vacant ‘pursuant to national provisions in force in a MemberState’. The national provisions in question provide, with specific reference to the European Parliament, that ineligibility arising during the term of office ‘shall bring that term to an end [and] shall be declared by decree’. (17) The appellant’s ineligibility was so declared, the Parliament was notified and, as required by Article 12(2), it took note of that fact. 55. Third, the appellant notes that the Parliament, through its President, ruled on his legal situation, which demonstrates that the contested act did not flow automatically from another text; on the contrary, it implies that that act was based on an assessment of fact and law. 56. It is not clear to me which point in the judgment is being criticised by the appellant; the third ground of appeal may therefore be inadmissible for that reason. I will assume however that the appellant is referring to the procedure leading up to the contested act, and in particular the fact that the President of the Parliament seised the Legal Affairs Committee. That decision was taken pursuant to the second subparagraph of Rule 7(4) of the Rules of Procedure. (18) 57. The last sentence of that subparagraph admittedly suggests some discretion. However it seems clear that in the present case the Parliament was keeping its position open until the appellant had exhausted the national avenues of legal appeal open to him, at which point it ‘took note’ of the decree; in so doing, it had no scope for discretion. Although the second paragraph of Rule 7(4) provides that, on a proposal from the relevant committee, the Parliament ‘may adopt a position on the matter’, that does not mean that there is a discretion where the position to be adopted by the Parliament is clearly dictated by other provisions. I do not consider that the mere fact of seeking legal advice is evidence of the existence of a power of discretion: the advice may after all be that there is no discretion. In the present case, the President of the Parliament exercised a power to seek advice, but the relevant step, and the ‘decision’ which the appellant seeks to challenge under Article 230 EC, is the ‘taking note’, and as is demonstrated in the context of the appellant’s other grounds of appeal there was no discretion at that point. 58. The appellant adds that the reference by the Court of First Instance to the fact that he had asserted his rights before both the French Conseil d’État and the European Court of Human Rights shows that there was an assessment of facts and law by the Parliament and hence a genuine act susceptible to challenge. (19) 59. I cannot accept that argument. The Court of First Instance in paragraph 91 of its judgment was in fact saying precisely the opposite of what the appellant claims: namely that ‘it is not for the Parliament to verify that the procedure laid down by the applicable national law or the fundamental rights of the person concerned have been respected. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights’. The Court of First Instance then mentioned that the appellant had indeed asserted his rights before those courts: in doing so, that Court was simply setting out a fact which demonstrates that the appellant had other avenues in which to exercise his right to seek judicial review of national measures affecting him and that he had availed himself of those opportunities. It cannot be inferred from that reference that the Parliament therefore had a power of verification of fact and law such as to make its ‘taking note’ an act susceptible to challenge under Article 230 EC. 60. Fourth, the appellant submits that the contested act itself required implementing measures, (20) in particular given that France continued to pay his salary after the decree and until the contested act. 61. It may be assumed that by this ground of appeal the appellant is criticising the statement by the Court of First Instance in paragraph 94 of its judgment that its findings that the Parliament’s power of verification is particularly limited are not ‘undermined by the fact that, until 23 October 2000, the applicant continued to sit in the Parliament and to receive the allowances from that institution and that, until 24 October 2000, the French authorities paid him his salary’. But as the Court of First Instance went on to say, it is not in dispute between the parties that the decree was enforceable. As is clear from the letter of 17 May 2000 from the Legal Affairs Committee to the President of the Parliament, read out in Parliament the following day, (21) the Parliament did not take note of the decree immediately on notification by the French authorities because it had decided to wait until ‘expiry of the period prescribed for bringing proceedings before the Conseil d’État, or after the decision of that court, as the case may be’. As the Court of First Instance notes, ‘certain practical consequences for the applicant flowed from [that delay in taking note]’; that Court however went on to state, correctly in my view, that those practical consequences ‘cannot alter the legal consequences which attach to that notification pursuant to Article 12(2) of the 1976 Act’. 62. Finally, the appellant interprets paragraph 97 of the judgment, in which the Court of First Instance stated that the contested act was not intended to produce legal effects of its own, distinct from those of the decree, as an expression of the principle that a confirmatory act cannot be challenged under Article 230 EC. According to the appellant, that principle, articulated in particular in Irish Cement, (22) is applicable only where the operative part of the confirmatory act is identical to that of the earlier measure, which is not so in the present case. Moreover the two decisions were taken in different contexts, since the Parliament took into account the new legal factors which had arisen in the meantime, including the decision of the Conseil d’État. 63. I cannot however see anything in paragraph 97 of the judgment which suggests that the Court of First Instance had in mind the concept of a confirmatory act. Indeed the whole tenor of the judgment, of which paragraph 97 is the penultimate paragraph (other than those concerning costs) and the preface to the final conclusion, is designed to demonstrate – correctly in my view – that the decree and the contested act are conceptually and practically distinct. 64. As appears from the above, I consider that all the grounds of appeal raised by the appellant are unfounded and/or inadmissible; I accordingly conclude that the appeal should be dismissed. Conclusion 65. For the reasons given above I am of the opinion that the Court should: (1) dismiss the appeal; (2) order the appellant to bear the costs. 1 – Original language: English. 2 – Case T-353/00 Le Pen v Parliament [2003] ECR II-1729. 3 – OJ 1976 L 278, p. 5. 4 – OJ 1999 L 202, p. 1. 5 – JORF of 8 July 1977, p. 3579. 6 – Case T-353/00 R Le Pen v Parliament [2001] ECR II-125. 7 – Case C-208/03 P-R Le Pen v Parliament [2003] ECR I-7939. 8 – See paragraph 97 of the judgment. 9 – Case C-303/90 France v Commission [1991] ECR I-5315. 10 – Case C-325/91 France v Commission [1993] ECR I-3283. 11 – Case T-3/93 Air France v Commission [1994] ECR II-121. 12 – See paragraph 94 of the judgment. 13 – Joined Cases 32/58 and 33/58 SNUPAT v High Authority [1959] ECR 127, p. 137. 14 – Case T-19/91 Vichy v Commission [1992] ECR II-415. 15 – Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty, OJ, English Special Edition 1959-1962, p. 87. 16 – Case T-46/92 Scottish Football Association v Commission [1994] ECR II-1039, paragraph 13 of the judgment. 17 – See paragraph 14 above. 18 – Set out in paragraph 11 above. 19 – See paragraph 91 of the judgment. It may be noted that in 2001 the European Court of Human Rights dismissed the appellant’s action against the sentence imposed in France. 20 – As in Case 108/83 Luxembourg v Parliament [1984] ECR 1945, paragraphs 21 and 22 of the judgment. 21 – See paragraph 22 above. 22 – Joined Cases 166/86 and 220/86 [1988] ECR 6473.