Judgment — ECLI:EU:T:2013:23
Date: 2013-01-17
Language of the case: French
Court formation: First Chamber
Subject matter: Privileges and immunities
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - decision unnecessary
Origin: France

summary of that Committee’s previous practice in taking decisions in the relevant field. 106 Furthermore, it should be borne in mind that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the Community authorities have, by giving him precise assurances, led him to entertain legitimate expectations (Joined Cases C‑37/02 and C‑38/02 Di Lenardo Adriano and Dilexport [2004] ECR I‑6911, paragraph 70, and Case T‑203/96 Embassy Limousines & Services v Parliament [1998] ECR II‑4239, paragraph 74). Regardless of the form in which it is communicated, precise, unconditional and consistent information which comes from authorised and reliable sources constitutes such assurances (see, to that effect, Case C‑82/98 P Kögler v Court of Justice [2000] ECR I‑3855, paragraph 33, and Case T‑439/09 Purvis v Parliament [2011] ECR II‑7231, paragraph 69). However, a person may not plead infringement of that principle unless he has been given precise assurances by the authorities (judgment of 24 November 2005 in Case C‑506/03 Germany v Commission, not published in the ECR, paragraph 58, and judgment in Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 147). Moreover, only assurances which comply with the applicable rules may give rise to legitimate expectations (Case T‑347/03 Branco v Commission [2005] ECR II‑2555, paragraph 102, and Case T‑282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II‑319, paragraph 77). 107 Since Notice No 11/2003 is not an act of the Parliament, but is merely a summary of the Committee on Legal Affairs and the Internal Market’s previous practice in taking decisions, drawn up by the General Secretariat of the Parliament with the aim of making Members of the Parliament aware of that practice in taking decisions, and since such a document cannot therefore bind the Parliament, it follows that it cannot contain precise, unconditional and consistent information coming from the Parliament capable of constituting precise assurances on its part on the basis of which Members of the Parliament could entertain legitimate expectations. 108 It follows that, in any event, the applicant cannot claim that the Parliament breached the principle of legitimate expectations by departing from a document which is not an act of the Parliament. 109 It must be borne in mind, however, that the institutions are under a duty to exercise their powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of sound administration, and that, regard being had to those principles, they must take into account the decisions already taken in respect of similar applications and consider with especial care whether they should decide in the same way or not. That said, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality (see, by analogy, Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑1541, paragraphs 73 to 75 and the case-law cited). 110 It must be borne in mind, in that regard, that the principle of equal treatment precludes, in particular, comparable situations being treated differently, unless such treatment is objectively justified (see Case C‑127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I‑9895, paragraph 23, and Case C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑9811, paragraph 78 and the case-law cited). 111 Furthermore, it has consistently been held that the principle of sound administration is included among the guarantees conferred by the European Union legal order in administrative proceedings, that principle entailing the duty of the competent institution to examine carefully and impartially all the relevant aspects of the particular case (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Case C‑505/09 P Commission v Estonia [2012] ECR, paragraph 95). 112 It must therefore be considered that, by his plea alleging breach of the ‘consistent case-law’ of the Parliament on matters of immunity, the applicant means to claim that there has been a breach of the principles of sound administration and equal treatment. 113 Even on the assumption that Notice No 11/2003 contained sufficiently precise information as to the approach that Members of the Parliament might expect on the part of the Parliament when it is called upon to rule on the immunity of a Member, with regard to, in particular, freedom of expression and fumus persecutionis, it must be considered that the Parliament can depart from it only if it provides sufficient reasons for doing so. 114 It must be borne in mind in that regard that the statement of reasons required under Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirement to state reasons must be evaluated according to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to the wording of the measure, but also to its context and to all the legal rules governing the matter in question (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; Case C‑301/96 Germany v Commission [2003] ECR I‑9919, paragraph 87; and Case C‑42/01 Portugal v Commission [2004] ECR I‑6079, paragraph 66). 115 Last, as regards the principle of legal certainty, it is clear from the case-law that that principle is a fundamental principle of EU law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. However, where a degree of uncertainty regarding the meaning and scope of a legal rule is inherent in that rule, it is necessary to examine whether the legal rule at issue displays such ambiguity as to make it difficult for the persons concerned to resolve with sufficient certainty any doubts as to the scope or meaning of that rule (see, to that effect, Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraphs 30 and 31). – The contested measure 116 The applicant claims, in support of his second plea, that the Parliament failed to follow its previous practice in taking decisions relating to the assessment of cases in which its Members’ freedom of expression is at issue and in which there is a suspicion of fumus persecutionis. 117 As regards, first of all, freedom of expression, it follows from the Parliament’s previous practice in taking decisions, according to Notice No 11/2003, that waiver of immunity may be envisaged in particular where the facts alleged against the applicant may be described as incitement to racial hatred. 118 It must be held in the present case that that characterisation of the facts by the competent authorities was mentioned at recitals A and B to the contested measure: ‘A. … a French public prosecutor has requested the waiver of the parliamentary immunity of Bruno Gollnisch, a Member of the … Parliament, so that a complaint alleging incitement to racial hatred can be investigated and so that and, if appropriate, Bruno Gollnisch can be produced before the Court of First Instance, the Court of Appeal and the Court of Cassation of the French Republic, B. … the request for waiver of the immunity of Bruno Gollnisch relates to an alleged offence of incitement to racial hatred following the publication, on 3 October 2008, of a press release of the Front National group of the Rhône-Alpes Region, of which Bruno Gollnisch was chair’. 119 Furthermore, as regards fumus persecutionis, it must be stated that the judicial proceedings against the applicant were initiated not by a political opponent but by an association authorised by French law to bring proceedings before the courts in respect of racist or anti-Semitic oral or written statements, in application of the Law of 29 July 1881 on the freedom of the press (Bulletin des Lois, 1881, No 637, p. 125), that the inquiry was not based on anonymous accusations, that the proceedings did not relate either to old facts or to acts committed during an election campaign and that there is no evidence, in the light of the facts taken into consideration by the Parliament, which, moreover, are not disputed by the applicant, that the proceedings were manifestly designed to make an example of the applicant. 120 None of the criteria identified in the Parliament’s previous practice in taking decisions and which led it in the past to oppose a request for waiver of immunity is therefore satisfied in the present case. 121 The Parliament was therefore well advised to state in the decision relating to waiver of the applicant’s immunity: ‘in the present case, the Parliament has found no evidence of fumus persecutionis, [that is to say,] a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member …’. 122 It follows that, as regards the assessment both of freedom of expression and of any fumus persecutionis, the Parliament’s duty to examine carefully and impartially all the relevant evidence in the present case was satisfied and the applicant has failed to establish that there has been any breach of the principle of sound administration. 123 The same applies to the principle of equal treatment, as the applicant has failed to demonstrate, in the light of the Parliament’s previous practice in taking decisions as described in Notice No 11/2003, that his treatment was different from the treatment normally afforded to Members of the Parliament in comparable situations. 124 In addition, given the legal nature of Notice No 11/2003, which is not a document of the Parliament (see paragraphs 107 and 108 above), the applicant cannot properly rely on the Parliament’s breach of the principle of legal certainty on the ground that it departed from that notice in a way not expected by the applicant, since that notice, which was drawn up solely by the General Secretariat of the Parliament, cannot therefore be regarded as a rule within the meaning of the case-law referred to above (paragraph 115). 125 Last, it follows from all of the foregoing considerations that the contested measure contains a sufficient statement of reasons with respect to the two points referred to above. 126 The second and third pleas must therefore be rejected in their entirety. Fifth plea, alleging breach of the provisions of the Rules of Procedure on the procedure liable to lead to disqualification of a Member of the Parliament from holding office 127 The applicant claims, in essence, that the acts in respect of which he was prosecuted are capable of being penalised, in French law, by an additional penalty of ineligibility, which entails disqualification from holding electoral office. 128 He maintains that the French Government did not comply with the procedure laid down in Rule 3(6) of the Rules of Procedure and failed to state in its correspondence that the proceedings brought against the applicant could have consequences for his disqualification from holding office as a Member of the Parliament. 129 Furthermore, in the applicant’s submission, no body of the Parliament asked the French Government an explanation. The president of the Parliament ought to have informed the Committee on Legal Affairs of that essential element and that committee would have been able to take it into account, even if it was highly unlikely that such an additional penalty would be imposed on the applicant. 130 It follows, in the applicant’s submission, that the failure to comply with that essential procedural requirement vitiates the report of the competent committee and, in consequence, the decision to waive the applicant’s immunity. 131 The Parliament disputes those allegations. 132 It has consistently been held that the purpose of the rules of procedure of a Community institution is to organise the internal functioning of its services in the interests of good administration. It follows that natural or legal persons may not rely in support of an action for annulment on an alleged breach of those rules, since they are not intended to ensure protection for individuals (Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraphs 49 and 50; see, to that effect, Case C‑443/05 P Common Market Fertilizers v Commission [2007] ECR I‑7209, paragraphs 144 and 145). 133 Furthermore, it is settled case-law that a breach of an essential procedural requirement may lead to annulment of the decision at issue if it is established that the content of that decision could have differed if that irregularity had not occurred (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 47, and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 416). 134 In the present case, the first complaint put forward by the applicant seeks, in essence, to secure a finding by the Court that the French authorities failed to fulfil their obligation under Rule 3(6) of the Rules of Procedure to inform the Parliament of the existence of a procedure that might lead to the applicant’s disqualification from holding office. 135 Rule 3(6) of the Rules of Procedure places no such obligation to that effect on the Member States. 136 Rule 3(6) of the Rules of Procedure provides that where the competition authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the president of the Parliament is to ask them to keep him regularly informed of the stage reached in the procedure and is to refer the matter to the committee responsible for the verification of powers, on whose proposal the Parliament may adopt a position on the matter. 137 The provisions of that rule thus envisage the procedure to be followed by the president of the Parliament and not by the Member States. It is in any event precluded, moreover, that such an obligation could be placed on the Member States on the basis of the Rules of Procedure of the Parliament. 138 The first complaint must therefore be rejected. 139 The second complaint alleges that no body of the Parliament, beginning with its president, took issue with the French authorities for not having informed the Parliament that the applicant might be disqualified from holding office, when the president ought to have drawn the attention of the competent committee to that omission, which could have been taken into account by that committee when the decision relating to the waiver of the applicant’s immunity was adopted. 140 Rule 3(6) of the Rules of Procedure, which contains no rules designed to safeguard the protection of individuals, is, as the Parliament claims, intended only to enable the Parliament to be informed of the action taken by the national authorities in proceedings that might lead to disqualification of a Member from holding office and to his being replaced. 141 It is therefore a provision the purpose of which is to ensure the internal smooth functioning of the Parliament and which therefore does not constitute an essential procedural requirement in the procedure for waiver of the immunity of a Member of the Parliament. 142 It follows that the second complaint too must be rejected. 143 The fifth plea must therefore be rejected in its entirety. Sixth plea, alleging breach of the inter partes principle and of the rights of the defence 144 The applicant maintains that the fact that he was unable to defend himself when a vote was taken in plenary session on the decision relating to the waiver of his immunity and that a request to that effect which he presented to the president of the European Parliament was rejected constitutes a breach of the inter partes principle and of the rights of the defence. 145 The applicant acknowledges that the third subparagraph of Rule 7(8) of the Rules of Procedure does indeed provide that, without prejudice to Rule 151, the Member whose privileges or immunities are under consideration is not to speak in the debate. 146 None the less, he raises an objection of illegality against that provision, claiming that it is inconsistent with respect for the rights of the defence and, in particular, for the right to be heard. 147 In that regard, first, the applicant claims that his rights of defence cannot be considered to have been respected solely because he was heard, in camera, before the Committee on Legal Affairs, when the sense of the report prepared by the rapporteur was not known. 148 Second, the applicant observes that the minutes of the Committee meetings do not mention the names of the Members of the Parliament actually present at his hearing, but only the attendance list. In his submission, a number of the Members who signed that list were no longer present when he was heard. 149 Third, he claims that a number of Members of the Parliament who took part in the vote on the report were not present when he was heard. Yet it is commonly accepted, in the context of disciplinary, judicial or administrative, proceedings, that a decision can be taken only by those who heard the person concerned, which assumes that the same persons took part in the hearing of the person concerned and also in the adoption of the decision concerning him. 150 Fourth, that refusal to hear the applicant is also contrary to most parliamentary usages and, in particular, to Rule 80(7) of the Rules of Procedure of the French National Assembly, which provides that a Member of the National Assembly is to take part in the debate in the context of the examination of a request to waive his immunity. 151 Fifth, the applicant claims that the Parliament also precluded any possibility of a debate by having recourse to a simplified procedure, without any debate, for the adoption of the unamended texts, in accordance with Rule 138(2) of the Rules of Procedure. In his submission, that general provision cannot apply when the special provisions of Rule 7(8) of the Rules of Procedure, applicable in relation to immunity, provide that a debate is to be held. 152 Sixth, and last, the proposals for the adoption of a measure with or without a debate are examined by the conference of presidents of the political groups. In the applicant’s submission, in the context of that conference, non-attached Members have no elected representative and have only an appointed representative, who has no vote in the deliberations, and cannot therefore require that a debate be held, which, in the applicant’s submission, constitutes a fresh instance of discrimination of non-attached Members of the Parliament, as in Joined Cases T‑222/99, T‑327/99 and T‑329/99 Martínez and Others v Parliament [2001] ECR II‑2823. 153 It should be pointed out that at the hearing the applicant stated that his plea related solely to the absence of guarantees provided by the internal procedures of the Parliament when it examines a request for waiver of immunity, namely the inter partes debate and respect for the rights of the defence, but that he did not maintain that there had been any breach of those internal procedures in the present case. 154 The Parliament disputes those allegations. 155 The applicant’s argument, as he made clear at the hearing, consists in essence in maintaining that he wished to speak in plenary session in order to defend himself and that he was denied the right to do so because Rule 7(8) in conjunction with Rule 138(2) of the Rules of Procedure prevented a debate from being held and the applicant from being able to speak. 156 The applicant maintains that recourse to Rule 138(2) of the Rules of Procedure prevented a debate from being held, although such a debate was none the less provided for in Rule 7(8) of those Rules, and that the application of Rule 7(8) of the Rules of Procedure also prevents the Member from expressing his views when such a debate takes place. 157 Although he recognises that the Parliament did indeed comply with the provisions of its Rules of Procedure, the applicant disputes the legality of such a mechanism, in so far as he maintains that it is contrary both to respect for the rights of the defence and to the inter partes principle. 158 It is necessary, therefore, to consider, first, whether a debate should have been held in plenary session; second, if so, whether the applicant could be denied the right to speak and, consequently, whether Rule 7(8) of the Rules of Procedure is illegal in that respect; and, third and last, whether the other complaints relating to the procedure followed by the Parliament undermine the legality of the way in which that procedure was carried out. – The holding of a debate in plenary session 159 It should be observed, as a preliminary point, that the applicant does not call Rule 7(8) of the Rules of Procedure into question in that it provides that a debate is to be held, but does so solely in that it provides that during that debate the Member concerned is unable to speak. 160 First, the Court must therefore consider whether it is permissible to apply Rule 138(2) of the Rules of Procedure, which provides for a simplified procedure, without debate and without amendment in plenary session, where a decision on the immunity of a Member is adopted in plenary session. 161 Rule 138(2) of the Rules of Procedure provides that where a non-legislative motion for a resolution has been adopted in committee with fewer than one tenth of the committee voting against that motion that item is to be placed on the agenda for vote without amendment and without debate unless Parliament decides otherwise on a proposal from the Conference of Presidents or at the request of a political group or at least 40 Members. 162 In the first place, the Court is of the view that, as the Parliament claims, the concept of ‘non-legislative motion for a resolution’, unlike that of ‘proposal for a legislative act’ within the meaning of Rule 138(1) of the Rules of Procedure, includes the concept of ‘proposal for a decision’ within the meaning of Rule 7(2) of the Rules of Procedure; nor is that interpretation disputed by the applicant. 163 In the second place, it should be observed that it is only at the close of a debate in committee, and provided that a minority of fewer than one tenth of the members of the committee has voted against, that the Rules of Procedure provide that the procedure which will then automatically be followed is the procedure without debate and without amendment provided for in Rule 138 of the Rules of Procedure, for reasons of procedural economy. 164 In the third place, it must be emphasised that the Rules of Procedure have none the less made provision for safeguard mechanisms, which allow a debate in plenary session to be held in spite of the result of the vote in committee, on a proposal from the Conference of Presidents or at the request of a political group or at least 40 Members. 165 The possibility of holding a debate in plenary session is therefore not precluded, even though Rule 138(2) has the effect that an item is to be placed on the agenda of the plenary session for vote without debate and without amendment. 166 In the fourth place, Rule 7(8) of the Rules of Procedure does not require that a debate be held in plenary session, but merely sets out the conditions in which that debate will proceed if it does take place, in this instance in the form of a debate limited to reasons for and against the proposal to waive or uphold a Member’s immunity and which, moreover, cannot lead to the tabling of any amendment. 167 It follows that those provisions do not preclude that, where the draft decision has been adopted in committee and a minority of fewer than one tenth of the members of the committee has voted against the measure, the item be automatically placed on the agenda of the plenary session for vote without debate and without amendment, in accordance with Rule 138(2) of the Rules of Procedure. 168 Rule 7(8) therefore does not constitute a lex specialis from which Rule 138(2) does not permit any derogation, but, on the contrary, those two provisions present a relationship of procedural complementarity designed to facilitate the work of the Parliament in plenary session where only a very small minority has expressed its opposition to the proposal adopted by the competent committee, or indeed where no minority has opposed that proposal. 169 Indeed, it should be noted that the Parliament stated, without being contradicted by the applicant, that the procedure without debate provided for in Rule 138(2) of the Rules of Procedure was that normally followed by the Parliament with respect to decisions relating to requests for waiver of immunity and that a debate in plenary session, as provided for in Rule 7(8), took place only exceptionally, since it was solely the result of the vote within the competent committee that determined whether Rule 138(2) applied. 170 Furthermore, it should be noted that in the present case the item was placed on the agenda of the plenary session for vote without amendment and without debate, in so far as the proposal for a decision had been adopted in committee even though a minority of fewer than one tenth of the members of the committee had voted against the measure in committee. In addition, it should be noted – and the applicant does not dispute – that neither the Conference of Presidents, nor a political group, nor even 40 Members of the Parliament expressed the view that a debate should be held concerning the decision to waive the applicant’s immunity. 171 It must therefore be held that the Parliament was correct to apply the procedure without amendment and without debate provided for in Rule 138 of the Rules of Procedure. 172 Consequently, and in conclusion, in so far as the applicant still claims that there has been a misuse of procedure, notwithstanding the additional information submitted in respect of the formulation of his complaints at the hearing, it must be borne in mind that, according to settled case-law, there is a misuse of powers, of which misuse of procedure is merely one form, only if the contested measure appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than those stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (Case C‑342/03 Spain v Council [2005] ECR I‑1975, paragraph 64, and Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 69). 173 Since it was by operation of law, in application of Rule 138(2) of the Rules of Procedure, that the item at issue was in this case placed on the agenda for the plenary session for vote without amendment and without debate, since the proposal for a decision had been adopted in committee, when at most a minority of fewer than one tenth of the members of the committee had voted against the measure in committee, there is in the present case no objective and relevant indication that the contested measure was adopted in a way that sought to evade a procedure specifically prescribed for that purpose. 174 Second, it is appropriate to consider whether, as the applicant maintains, in spite of the regularity of the procedure followed by the Parliament, the general principles relating to respect for the rights of the defence and the inter partes principle preclude a procedural mechanism for the adoption of a decision to waive the immunity of a Member of the Parliament such as that established by the Parliament’s Rules of Procedure. 175 It is appropriate to bear in mind, in that regard, that, according to settled case-law, respect for the rights of the defence, especially the right to be heard, in all proceedings initiated against a person which may lead to a measure adversely affecting him, is a fundamental principle of EU law which must be guaranteed, even when there are no rules governing the procedure in question (Case C‑344/05 P Commission v De Bry [2006] ECR I‑10915, paragraph 37, and Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 91). That principle, moreover, has been enshrined in Article 41(2)(a) of the Charter of Fundamental Rights. 176 Under that principle, the person concerned must have had the opportunity, before the decision relating to him was adopted, to put forward his point of view on the correctness and relevance of the facts and circumstances on the basis of which the decision was adopted (see, to that effect, Case 44/69 Buchler v Commission [1970] ECR 733, paragraph 9, and Case C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, paragraph 99). 177 It follows that, in accordance with those principles, a decision cannot be adopted on the basis of elements of fact and circumstances on which the person concerned was unable to put forward his point of view before the decision was adopted. 178 The right to be heard does not necessarily mean, however, that a public debate must be held in any proceedings initiated against a person which may lead to a measure adversely affecting him. 179 Respect for the rights of the defence and the inter partes principle therefore does not mean that the adoption by the Parliament of a decision relating to the waiver of the immunity of a Member of the Parliament necessarily be preceded by a debate in plenary session. 180 Nor has the applicant established that such a principle is widely observed in the laws of the Member States, or even in French law. 181 Indeed, the Parliament submitted at the hearing, without being contradicted by the applicant, that in France, since 1995, it is the responsibility of the bureau of the House to which the Member belongs, and no longer that of the House sitting in plenary formation, to take a decision relating to the waiver of his immunity. 182 It is appropriate, on the contrary, to have regard to Rule 7(3) of the Rules of Procedure, which provides that the Member concerned by a request for waiver of his immunity is to be given an opportunity to be heard and that he may present any documents or other written evidence which he deems relevant. He may also be represented by another Member. 183 Sufficient guarantees, by reference to the rights of the defence and the inter partes principle, are thus afforded to the person concerned in the procedure established by the Parliament for dealing with requests for waiver of the immunity of Members of the Parliament. 184 The applicant is therefore wrong to claim that the principle of respect for the rights of the defence and the inter partes principle preclude the procedural mechanism applicable before the Parliament in the context of the Rules of Procedure, under Rules 7 and 138, for dealing with requests for waiver of immunity. 185 In addition, it must be held in the present case that the applicant does not deny having been heard before the Committee on Legal Affairs before that committee adopted its draft decision. 186 Furthermore, the applicant has failed to establish what elements of fact or what circumstances were taken into account by the Committee on Legal Affairs or by the Parliament on which he was not given the opportunity to express his point of view before the decision relating to the waiver of his immunity was adopted. 187 It is apparent from the grounds of the decision relating to the waiver of the applicant’s immunity, moreover, that the Parliament responded to the two main arguments which the applicant again raises before the Court, namely that he acted in the exercise of his duties and that there is a fumus persecutionis that justifies the non-waiver of his immunity. 188 It must therefore be held that the applicant has not established that there has been a breach of his rights of defence or of the inter partes principle in the present case. – The Member’s right to speak in the debate provided for in Rule 7(8) of the Rules of Procedure 189 In the light of the foregoing developments, the applicant’s argument that the fact that he was not entitled to speak in the debate in plenary session when the decision on the waiver of his immunity was adopted is contrary to respect for the rights of the defence and the inter partes principle must be held to be ineffective. 190 If, in application of Rule 138(2) of the Rules of Procedure, it is permissible to place on the agenda of the plenary session for vote without debate and without amendment a draft decision on the waiver of a Member’s immunity, the complaint that the fact that he is not allowed to speak in such a debate is illegal is ineffective. 191 It also follows that, in such circumstances, Ms A., who presided over the plenary session, is not to be criticised for not having allowed the applicant to speak for the purposes of a debate on the waiver of his immunity, since no debate was provided for. – The other complaints put forward by the applicant concerning the conduct of the procedure 192 As regards the complaint relating to the fact that the debate within the competent committee took place in camera, it must be observed that it was in application of Rule 103(4) of the Rules of Procedure that that procedure was followed and that, under that rule, that procedure is always to be followed when requests for waiver of immunity are being considered, in order to protect both the Member concerned and the confidentiality of the debates, as stipulated in Rule 7(11) of the Rules of Procedure. 193 The applicant was therefore not given any different or special treatment by comparison with the treatment normally afforded to Members of the Parliament in comparable circumstances. 194 As regards the complaint relating to the fact that the debate before the competent committee took place before the applicant was made aware of the terms of the draft report, which meant that he was unable to defend himself properly, it should be observed that the applicant has failed to establish that a draft report already existed when he was heard on 26 January 2011 and that that draft was previously brought to the attention of the members of the competent committee but not to the applicant’s attention. 195 In any event, it should be borne in mind in that regard that the applicant has failed to establish what elements of fact or circumstances were taken into account by the Committee on Legal Affairs or by the Parliament on which he was not given the opportunity to express his viewpoint before the decision relating to the waiver of his immunity was adopted. 196 It follows that this complaint must be rejected. 197 As regards the complaint relating to the fact that the Members of the Parliament who attended the debate in committee were not the same as those who took part in the vote in that committee, first, it must be held that the Parliament was correct to claim – and was not contradicted on this point by the applicant – that there is no internal provision or rule that requires that the committee be composed in the same way for the debate and for the vote, provided that a quorum is present on each occasion, which is justified by the fact that the measures in question are not adopted by the Members individually but by the parliamentary committee. 198 Second, it should be borne in mind that, following the procedure established by the Parliament, after the request for waiver of a Member’s immunity has been referred to the competent committee, the Member is heard by that committee. A report is then drawn up by the member of the committee who is designated as rapporteur and the draft decision is annexed to that report, which, together with the draft decision, is then voted on by the members of the committee. 199 The applicant has failed to establish that that procedure was not followed in the present case. 200 Furthermore, it must be observed that the draft decision on which the committee votes sets out the reasons why the Parliament considered that the applicant had not acted in the context of his duties as a Member of the Parliament and that a fumus persecutionis was not established. 201 In addition, it should once again be borne in mind that the applicant has failed to establish what elements of fact or circumstances were taken into account by the members of the Committee on Legal Affairs when it voted and on which the applicant was not given an opportunity to express his viewpoint. 202 Third, and last, as the measure in question was an act adopted by the Parliament which assumes a political nature (see paragraph 59 above), no parallel can be drawn with the rules governing disciplinary or judicial proceedings as regards the composition of the deliberative body responsible for adjudicating in such proceedings. 203 The complaint must therefore be rejected. 204 As regards the complaint relating to the existence of procedural differences from French law, even on the assumption that it were established (see paragraph 181 above), it must be held that it is ineffective, since it is not the procedure for the adoption of the decision provided for in French law that is applicable in the present case but the procedure provided for in the Rules of Procedure. 205 This complaint must therefore be rejected. 206 The sixth plea must therefore be rejected in its entirety, as must the objection of illegality referring to the third paragraph of Rule 7(8) of the Rules of Procedure. 207 In conclusion, the action for annulment in Case T‑346/11, relating to the waiver of the applicant’s immunity, must be dismissed. The action for damages in Case T‑346/11, relating to the waiver of immunity 208 The applicant merely formulates a claim for damages in his application. 209 The Parliament disputes that claim. 210 According to settled case-law, in order for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (see Gollnisch v Parliament, paragraph 58 above, paragraph 90 and the case-law cited). 211 Those three conditions for the Community’s liability to be incurred are cumulative (Case C‑257/98 P Lucaccioni v Commission [1999] ECR I‑5251, paragraph 14, and Case T‑43/98 Emesa Sugar v Council [2001] ECR II‑3519, paragraph 59). Thus, failure to meet one of them is sufficient for an action for damages to be dismissed (Case T‑146/01 DLD Trading v Council [2003] ECR II‑6005, paragraph 74). 212 Since, in the present case, the condition that the Parliament’s conduct be unlawful has not been met, its decision to waive the applicant’s immunity is not vitiated by any illegality (see paragraph 207 above), the liability of that institution cannot be incurred on the basis of the second paragraph of Article 340 TFEU and the claim for damages must be dismissed. The action for annulment and the action for damages in Case T‑347/11, relating to the decision to refuse to defend the applicant’s immunity 213 The applicant puts forward six pleas in law, similar to the pleas put forward in Case T‑346/11, in support of his action for annulment of the Parliament’s decision not to defend his immunity. 214 He claims that there has been, first, a breach of Article 9 of the Protocol; second, a breach of the ‘consistent case-law’ of the Parliament’s Committee on Legal Affairs; third, a breach of the principles of legal certainty and legitimate expectations; fourth, a breach of the independence of a Member of the Parliament; fifth, a breach of the second subparagraph of Rule 3(4) of the Rules of Procedure on the procedure capable of leading to the disqualification of a Member of the Parliament from holding office; and, sixth, a breach of the inter partes principle and of the rights of the defence. 215 In addition, the applicant merely formulates a claim for damages in his application. 216 The Parliament contends, in essence, that the action is inadmissible, in so far as the decision relating to the defence of immunity is merely an opinion and is incapable of altering the applicant’s legal situation, relying on the principle established in Marra, paragraph 34 above (paragraph 44), and at the same time that the applicant has no interest in bringing an action, in so far as the decision to waive his immunity was adopted concomitantly with the decision refusing to defend his immunity in the context of this action. 217 Furthermore, the Parliament disputes the applicant’s argument and claims that the pleas which he puts forward in support of his action for annulment, and also his claim for damages, should be rejected for reasons similar to whose on which the Parliament relied in Case T‑346/11. 218 As has been recognised in a consistent line of decisions, the object of the dispute, as determined in the application initiating the proceedings, must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party which brought it (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and Case T‑45/06 Reliance Industries v Council and Commission [2008] ECR II‑2399, paragraph 35). 219 In so far as the action against the decision to waive immunity has been dismissed (see paragraph 207 above), it must be held that the applicant cannot derive any advantage from a judgment adjudicating on the legality of the Parliament’s decision not to defend his immunity. 220 Indeed, even if, by some remote chance, since the pleas raised are similar to those previously rejected with respect to the decision to waive immunity, the decision not to defend the applicant’s immunity were to be annulled, that judgment of annulment would have no impact on the applicant’s legal situation, since his immunity would in any event still be waived and could not at the same time be defended by the Parliament. 221 Consequently, there is no need to adjudicate on the action for annulment in Case T‑347/11, relating to the Parliament’s decision not to defend the applicant’s immunity. 222 As for the action for damages, it must be borne in mind, in the context of the conditions governing the European Union’s non-contractual liability referred to at paragraph 210 above, that, in accordance with consistent case-law, the requirement concerning the existence of a causal link is satisfied if there is a direct link of cause and effect between the misconduct of the institution concerned and the damage alleged, a link which it is for the applicant to prove. The European Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned, that is to say, the conduct must be the determining cause of the harm. By contrast, it is not the responsibility of the European Union to compensate for every harmful consequence, even a remote one, of the conduct of its organs (see Gollnisch v Parliament, paragraph 58 above, paragraph 110 and the case-law cited). 223 In the present case, since the Parliament had no alternative other than to find that there was no longer any need to adjudicate on the request to defend the applicant’s immunity, in so far as it was seised of a request to waive his immunity, it must be held that only the decision adjudicating on that request could have caused him any harm and that only that decision could render the Parliament liable, had it been illegal, which, however, it was not (see paragraph 212 above). 224 It follows that, in any event, no causal link can be established between the alleged non-pecuniary harm sustained by the applicant and the illegalities which in his submission vitiate the Parliament’s decision not to defend his immunity. 225 It follows that the action for damages must be dismissed. Costs 226 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 227 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are in the discretion of the Court. 228 As the applicant has been unsuccessful in Case T‑346/11 and also in the action for damages in Case T‑347/11, he must be ordered to pay the costs, including those relating to the interlocutory proceedings, in accordance with the form of order sought by the Parliament. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action for annulment and the action for damages in Case T‑346/11; 2. Declares that there is no longer any need to adjudicate on the action for annulment in Case T‑347/11; 3. Dismisses the action for damages in Case T‑347/11; 4. Orders Mr Bruno Gollnisch to pay the costs, including those relating to the interlocutory proceedings in Cases T‑346/11 and T‑347/11. Azizi Frimodt Nielsen Kancheva Delivered in open court in Luxembourg on 17 January 2013. [Signatures] Table of contents Legal context Protocol on privileges and immunities Rules of Procedure of the Parliament Background to the dispute Procedure and forms of order sought by the parties Law Preliminary observations The parliamentary immunity system established by the Protocol The distinction to be drawn between waiver of immunity and defence of immunity within the meaning of the Protocol The exercise of a remedy and the scope of the Court’s review in such a context The action for annulment in Case T‑346/11, relating to the waiver of the applicant’s immunity First plea, alleging breach of Article 9 of the Protocol, and fourth plea, alleging interference with the independence of a Member of the Parliament Second and third pleas, alleging, respectively, breach of the ‘consistent case-law’ of the Parliament’s Committee on Legal Affairs on freedom of expression and fumus persecutionis; and breach of the principles of legal certainty, protection of legitimate expectations and equal treatment – The legal nature of Notice No 11/2003 and the Court’s review – The contested measure Fifth plea, alleging breach of the provisions of the Rules of Procedure on the procedure liable to lead to disqualification of a Member of the Parliament from holding office Sixth plea, alleging breach of the inter partes principle and of the rights of the defence – The holding of a debate in plenary session – The Member’s right to speak in the debate provided for in Rule 7(8) of the Rules of Procedure – The other complaints put forward by the applicant concerning the conduct of the procedure The action for damages in Case T‑346/11, relating to the waiver of immunity The action for annulment and the action for damages in Case T‑347/11, relating to the decision to refuse to defend the applicant’s immunity Costs * Language of the case: French.