Opinion of the Advocate General — ECLI:EU:C:2024:305
Date: 2024-04-11
Language of the case: English
Procedure: Action for annulment;Appeal - unfounded;Action for damages
Origin: Belgium

ORDER OF THE VICE-PRESIDENT OF THE COURT 19 August 2024 (*) ( Interim relief – Appeal – Articles 278 and 279 TFEU – Application for suspension of the operation of a measure and for other interim measures – Law governing the institutions – Members of the European Parliament – Official communication of the names of Members of Parliament by the Member States – Powers of the Parliament – Inadmissibility ) In Case C‑600/22 P‑R, APPLICATION for suspension of the operation of a measure and for other interim measures pursuant to Articles 278 and 279 TFEU, made on 11 July 2024, Antoni Comín i Oliveres, residing in Waterloo (Belgium), represented by G. Boye, abogado, appellant, the other parties to the proceedings being: Carles Puigdemont i Casamajó, residing in Waterloo, represented by G. Boye, abogado, applicant at first instance, European Parliament, represented by N. Görlitz, T. Lukácsi and J.-C. Puffer, acting as Agents, defendant at first instance, Kingdom of Spain, represented by A. Gavela Llopis, acting as Agent, intervener at first instance, THE VICE-PRESIDENT OF THE COURT, after hearing the Advocate General, M. Szpunar, makes the following Order 1 By his application for interim measures, Mr Antoni Comín i Oliveres requests the Court, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, to order, in the first place, suspension of the effects of the judgment of the General Court of the European Union of 6 July 2022, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19, ‘the judgment under appeal’, EU:T:2022:421), by which the General Court dismissed the action brought by Mr Carles Puigdemont i Casamajó and Mr Antoni Comín i Oliveres seeking the annulment, first, of the Instruction of 29 May 2019 of the President of the European Parliament refusing them access to the welcome and assistance service offered to new Members of the European Parliament and, second, of the refusal by the President of the Parliament to recognise their status as Members of the European Parliament, contained in a letter of 27 June 2019 (‘the contested acts’); and, in the second place, suspension of the effects of the Parliament’s decision to treat Mr Comín i Oliveres as an outgoing Member of the European Parliament and, consequently, to question his status as a Member of the European Parliament for the 10th parliamentary term (2024-2029) (‘the Parliament’s new decision’). 2 The application has been made in parallel with an appeal lodged by Mr Puigdemont i Casamajó and Mr Comín i Oliveres on 16 September 2022, pursuant to Article 56 of the Statute of the Court of Justice of the European Union, seeking to have the judgment under appeal set aside. The background to the dispute and the procedure before the General Court and the Court of Justice 3 The background to the dispute is set out in paragraphs 13 to 36 of the judgment under appeal. For the purposes of the present proceedings, it can be summarised as follows. 4 Mr Comín i Oliveres was a Member of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Catalan Parliament regulating the referendum on self-determination) of 6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1) and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1); and of the holding, on 1 October 2017, of the referendum on self-determination provided for by the first of those laws, application of the provisions of which had, in the meantime, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain). 5 Following the adoption of those laws and the holding of that referendum, the Ministerio fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (State Counsel, Spain) and the VOX political party brought criminal proceedings against, inter alia, Mr Comín i Oliveres on charges of ‘sedition’ and ‘misuse of public funds’. 6 By order of 9 July 2018, the Tribunal Supremo (Supreme Court, Spain) declared Mr Comín i Oliveres to be in default of appearance, following his departure from Spain, and stayed those criminal proceedings until such time as he was found. 7 Mr Comín i Oliveres subsequently stood as a candidate and was elected in the elections to the European Parliament which were held in Spain on 26 May 2019. 8 On 29 May 2019, the President of the Parliament issued an internal instruction to the Secretary-General of that institution, stating that all the candidates elected in Spain should be refused access to the ‘Welcome Village’ and to the assistance provided to candidates newly elected to the Parliament, and that their accreditation should be suspended until the Parliament had officially received confirmation of their election. 9 On 13 June 2019, the Junta Electoral Central (Central Electoral Commission, Spain) issued a declaration stating that Mr Comín i Oliveres was one of the candidates elected to the Parliament and that those candidates were required to give the pledge to abide by the Constitución española (Spanish Constitution) required by the Spanish legislation. 10 On 17 June 2019, the Central Electoral Commission provided the Parliament with the list of candidates elected in Spain, which did not include the name of Mr Comín i Oliveres. 11 By a letter of 27 June 2019, the President of the Parliament informed Mr Comín i Oliveres, in essence, that he could not treat him as a future Member of the European Parliament, because his name was not on the list of elected candidates officially communicated by the Spanish authorities. 12 By an application lodged at the Registry of the General Court on 28 June 2019, Mr Puigdemont i Casamajó and Mr Comín i Oliveres brought an action for annulment of the contested acts. 13 By a separate document lodged at the Registry of the General Court on the same day, they made an application for interim measures seeking, in essence, suspension in part of the effects of the contested acts. 14 By order of 1 July 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R, EU:T:2019:467), the President of the General Court dismissed that application for interim measures. 15 By order of 20 December 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament (C‑646/19 P(R), EU:C:2019:1149), the Vice-President of the Court of Justice set aside the order of the President of the General Court of 1 July 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R, EU:T:2019:467), and referred the case back to the General Court. 16 At the plenary session of 13 January 2020, the Parliament took note, as a result of the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), of the election of Mr Comín i Oliveres to the Parliament with effect from 2 July 2019. 17 By order of 19 March 2020, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R‑RENV, EU:T:2020:114), the President of the General Court, ruling on a referral back to that court, held that there was no longer any need to adjudicate on the application for interim measures referred to in paragraph 13 of the present order. 18 By the judgment under appeal, the General Court dismissed the action referred to in paragraph 12 of the present order as inadmissible, on the ground that it was directed against acts that could not be the subject matter of an action for annulment under Article 263 TFEU. 19 Mr Comín i Oliveres stood as a candidate and was elected in the elections to the Parliament which were held in Spain on 9 June 2024. 20 On 27 June 2024, the Central Electoral Commission issued a declaration stating that Mr Comín i Oliveres was one of the candidates elected to the Parliament. 21 On 1 July 2024, the Central Electoral Commission provided the Parliament with the list of candidates elected in Spain, which did not include the name of Mr Comín i Oliveres. 22 Referring to a series of news items that had appeared in the press and to communications from the Parliament and statements by members of its staff, Mr Comín i Oliveres submits that that institution has decided to treat him as an outgoing Member of the European Parliament and, therefore, to question his status as a Member of the European Parliament for the 10th parliamentary term (2024-2029). Forms of order sought 23 Mr Comín i Oliveres claims that the Court should: – suspend the effects of the judgment under appeal; – suspend the effects of the Parliament’s new decision; – order those measures even before hearing the Parliament, pursuant to Article 160(7) of the Rules of Procedure of the Court of Justice; and – order the Parliament to pay the costs. 24 The Parliament claims that the Court should: – dismiss the application for interim measures; and – order Mr Comín i Oliveres to pay the costs. 25 The Kingdom of Spain claims that the Court should: – dismiss the application for interim measures as inadmissible or, in the alternative, as unfounded; and – order Mr Comín i Oliveres to pay the costs of the interim measures proceedings. 26 Mr Puigdemont i Casamajó claims that the Court should grant the application for interim measures. Admissibility of the application for interim measures Arguments 27 In the first place, Mr Comín i Oliveres asserts that he is entitled to apply for the grant of interim measures relating to a decision other than the decisions forming the subject matter of the main action. 28 In his view, the Court of Justice has accepted that it is possible to do so, and that fact should apply in the present case. The Parliament’s new decision is accordingly closely linked to the subject matter of Case C‑600/22 P, as demonstrated by the statements of members of the Parliament’s staff who referred to that case in order to explain that institution’s position in relation to the situation of Mr Comín i Oliveres. 29 Furthermore, suspension of the effects of the Parliament’s new decision is necessary in order to ensure that the decision to be delivered in Case C‑600/22 P will be fully effective. 30 In the second place, Mr Comín i Oliveres puts forward a series of arguments intended to establish that he is entitled to bring an action against the Parliament’s new decision even though that decision has not been formally communicated to him by that institution. 31 In the third place, he submits that it is apparent from the case-law of the Court of Justice that an appellant in an appeal against a decision of the General Court rejecting an action for annulment may apply, in interim measures proceedings, for suspension of the effects not only of that decision of the General Court but also of a decision against which that action for annulment was directed. 32 In the fourth place, Mr Comín i Oliveres submits that he still has an interest in bringing proceedings in Case T‑388/19. 33 Mr Puigdemont i Casamajó considers the application for interim measures to be admissible and refers in that regard to the arguments invoked by Mr Comín i Oliveres. He adds that the opposite approach would prejudice the effective judicial protection that must be afforded to Mr Comín i Oliveres, by obliging him to bring a new action before the General Court, even though that court has held that such an action was inadmissible. In the light of its own case-law and that of the International Court of Justice, the Court of Justice of the European Union must avoid any formalism and must find an application for interim measures to be admissible, with no need to establish definitively that it has jurisdiction to rule on the case in the main proceedings and the admissibility of the main action. 34 The Parliament asserts that the application for interim measures must be dismissed as inadmissible. 35 First, Mr Comín i Oliveres has not, in its view, demonstrated that he could benefit from any suspension of the judgment under appeal or of the contested acts. 36 Second, the suspension of the effects of the Parliament’s new decision has no direct link with the subject matter of Case C‑600/22 P, whereas an application for interim measures is only admissible to the extent that it has a direct link with a case before the Court of Justice. Parliament notes, in that regard, that the statement by Mr Comín i Oliveres that the Parliament’s new decision constitutes the inevitable consequence of the contested acts is incorrect, since that new decision relates to a different parliamentary term from the term to which the contested acts relate. Furthermore, although admittedly the decision to be made in Case C‑600/22 P could have consequences for the position adopted by the Parliament in its new decision, that is merely the result of the fact that the Parliament is required to apply the same rules to determine the status of Mr Comín i Oliveres in connection with the 9th parliamentary term (2019-2024) and in connection with the 10th parliamentary term (2024-2029). 37 The Kingdom of Spain submits, referring to the order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727), that the application for interim measures must be dismissed as inadmissible. It asserts, in particular, that the interim measures applied for do not contribute to ensuring the effects of the decision to be made in Case C‑600/22 P, which in its view concerns only the ninth parliamentary term (2019-2024). Assessment 38 Article 278 TFEU provides that actions brought before the Court of Justice are not to have suspensory effect, but that the Court may, however, if it considers that circumstances so require, order that application of the contested act be suspended. 39 According to Article 279 TFEU, in any cases before it, the Court of Justice may prescribe any necessary interim measures. 40 As regards, in the first place, the admissibility of the request to suspend the effects of the Parliament’s new decision, it should be noted that that new decision is not the ‘contested act’, within the meaning of Article 278 TFEU, in Case C‑600/22 P. No interim measure of that nature may therefore be granted under that article. 41 Nevertheless, Article 279 TFEU confers on the judge hearing an application for interim measures a wide discretion to decide on the measures to be ordered, which may, inter alia, consist of appropriate injunctions and ancillary measures intended to ensure the effectiveness of the interim measures ordered by that judge (order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 73 and the case-law cited). 42 However, it is clear from the case-law of the Court of Justice that such interim measures must have a direct link with the subject matter of the main action, a requirement which is, in essence, recalled in Article 160(2) of the Rules of Procedure of the Court of Justice, which provides that an application relating to one of the interim measures referred to in Article 279 TFEU is to be admissible only if it is made by a main party to a case before the Court and relates to that case (see, by analogy, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 74 and the case-law cited). 43 In that context, interim measures adopted under Article 279 TFEU must not go beyond the scope of the dispute as determined by the main action, since they may have no purpose other than to safeguard the interests of one of the parties to an action before the Court of Justice in order not to render the final judgment in the main proceedings illusory by depriving it of practical effect (see, by analogy, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 75 and the case-law cited). 44 Accordingly, it is apparent from the case-law of the Court of Justice that, where that Court is hearing an appeal against a decision of the General Court by which the latter dismissed an action for annulment, the appellant may, inter alia, apply to the judge hearing an application for interim relief for the suspension of the effects of the measure to which that action for annulment related (see, to that effect, order of the Vice-President of the Court of Justice of 3 December 2014, Greece v Commission, C‑431/14 P‑R, EU:C:2014:2418, paragraph 17 and the case-law cited). 45 In that context, since the judge hearing an application for interim measures made in an appeal may therefore, in order to preserve the effectiveness of the decision to be made in the main proceedings, grant interim measures which are, in principle, within the jurisdiction of a judge hearing an application for interim measures at first instance, it must be held that the judge hearing an application for interim measures in an appeal may, inter alia, on the basis of Article 279 TFEU, order an EU institution not to adopt a measure which would constitute a form of implementation of the contested measure or order it to suspend the effects of that measure (see, to that effect, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 76 and the case-law cited). 46 By contrast, the judge hearing an application for interim measures cannot, without exceeding the scope of a dispute relating to an action for annulment, order an EU institution to suspend a procedure which does not depend on the measure against which that action is directed – in order to prevent the measure adopted at the end of that procedure from containing the same illegality as that complained of in that action – or suspend the effects of such a measure (see, to that effect, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 77). 47 In the present case, the Parliament’s new decision, which relates to the 10th parliamentary term (2024-2029), does not constitute a measure implementing the contested acts, which related exclusively to the 9th parliamentary term (2019-2024), a point which has moreover not been disputed by Mr Comín i Oliveres. 48 Although it is not inconceivable that the Parliament’s new decision may, on the other hand, have its basis in a reiteration of the analysis that led to the adoption of the contested acts, it is clear from the case-law of the Court of Justice recalled in paragraph 46 of the present order that that fact is not sufficient for it to be found that an application for interim measures seeking suspension of the effects of that new decision is, in the present case, admissible. 49 In those circumstances, nor can that new decision be regarded as having a direct link with the judgment under appeal, since the case that gave rise to that judgment concerns only the lawfulness of the contested acts. It also follows from the foregoing observation that the argument put forward by Mr Comín i Oliveres that it is necessary to suspend the effects of the Parliament’s new decision in order to preserve the effectiveness of the decision to be made in Case C‑600/22 P, cannot succeed. 50 In that regard, the fact that certain members of the Parliament’s staff have referred explicitly to the judgment under appeal is in any event irrelevant, since those staff members referred to the judgment only in order to demonstrate the existence of legal uncertainty pending the decision to be made in Case C‑600/22 P. 51 In the light of the foregoing, the request to suspend the effects of the Parliament’s new decision must be rejected as inadmissible. 52 As regards, in the second place, the request to suspend the effects of the judgment under appeal itself, it should be noted that although, under Article 60 of the Statute of the Court of Justice of the European Union, an appeal against a judgment of the General Court does not, in principle, have suspensory effect, the Court of Justice may, pursuant to Article 278 TFEU, if it considers that circumstances so require, order the suspension of the effects of a judgment under appeal (see, to that effect, order of the President of the Court of Justice of 21 February 2002, Front national and Martinez v Parliament, C‑486/01 P‑R and C‑488/01 P‑R, EU:C:2002:116, paragraph 71). 53 However, an application for suspension of the effects of a measure cannot, in principle be envisaged against a negative decision. While the grant of such a suspension cannot have the effect of changing the position of the party seeking interim relief, the fact that that party has an interest in bringing proceedings, which is a condition of admissibility of that person’s application for interim measures, presupposes that that application may, if successful, procure an advantage for that party (see, to that effect, orders of the President of the Court of Justice of 21 February 2002, Front national and Martinez v Parliament, C‑486/01 P‑R and C‑488/01 P‑R, EU:C:2002:116, paragraph 73; and of 29 March 2012, Golnisch v Parliament, C‑570/11 P(R), EU:C:2012:200, paragraph 13; and order of the Vice-President of the Court of Justice of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), EU:C:2023:228, paragraph 22). 54 Mr Comín i Oliveres has not in fact demonstrated in what respect the suspension of the judgment under appeal would be such as to procure an advantage for him. 55 Accordingly, he has not disputed that, as the President of the General Court found in his order of 19 March 2020, Puigdemont i Casamajó and Comín i Oliveres v Parliament (T‑388/19 R‑RENV, EU:T:2020:114), the Parliament recognised his status as a Member of the European Parliament in respect of the ninth parliamentary term (2019-2024). 56 Furthermore, since, in the judgment under appeal, the General Court did not rule on the situation of Mr Comín i Oliveres in respect of the 10th parliamentary term (2024-2029), any suspension of the effects of that judgment would not be such as to directly call the Parliament’s new decision into question. 57 It follows that the request to suspend the effects of the judgment under appeal must be rejected as inadmissible. 58 It should also be noted that the foregoing findings cannot be called into question on the ground that they would cause Mr Comín i Oliveres to be deprived of the judicial protection granted to him by primary European Union law. The inability, in the present case, to obtain the interim measures he is seeking is not such as to deprive him of that protection, since, on the assumption that an action for the annulment of the contested acts would have to be found admissible, the Parliament’s new decision could also be the subject matter of an action for annulment, accompanied by an application for interim measures which could, where appropriate, seek interim relief pursuant to Article 156(2) of the Rules of Procedure of the General Court (see, by analogy, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 83). 59 Consequently, the application for interim measures must be dismissed in its entirety as inadmissible. Costs 60 In accordance with Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings. On those grounds, the Vice-President of the Court hereby orders: 1. The application for interim measures is dismissed. 2. The costs are reserved. Luxembourg, 19 August 2024. A. Calot Escobar L. Bay Larsen Registrar Vice-President * Language of the case: English.