Order — ECLI:EU:T:2006:126
Date: 2006-05-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Action for damages;Application for interim measures
Origin: France

summary of the pleas advanced. An application seeking compensation for damage allegedly caused by an institution must, to satisfy those requirements, state the evidence on which the conduct alleged against the institution may be identified, the reasons why it is submitted that a causal link exists between that conduct and the damage claimed to have been suffered, and the nature and extent of that damage (see the order in Case T‑376/04 Polyelectrolyte Producers Group v Council and Commission [2005] ECR II‑3007, paragraph 54, and the case-law cited). Those statements must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further supporting information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action is to be admissible – that the basic legal and factual particulars relied on be indicated, at least summarily, but coherently and intelligibly in the application itself (see Case T‑308/05 Italy v Commission [2007] ECR II‑5089, paragraph 72, and the case-law cited). 78 It is necessary, consequently, to determine whether the statements contained in the application were sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the claim for damages without any further supporting information. 79 It is plain from reading the application, which is particularly detailed, that the conduct alleged against the Parliament is clearly identified, that the application states that the contested decision exposed the applicant to non-material damage and ‘judicial persecution’ and that it contains a claim for an order that the Parliament pay the sum of EUR 8 000 as compensation for the non-material damage. 80 Those statements are sufficient to enable the Parliament to defend itself and the Court to adjudicate on the claim for damages. 81 The claim for damages must accordingly be held to be admissible. Substance Arguments of the parties 82 The applicant submits, in essence, that the Parliament’s conduct was unlawful and caused him non-material damage, which he has specified as damage to his reputation. He quantifies that damage at EUR 8 000. He accepts, however, that the judgment delivered by the Cour de cassation has expunged some of that damage. 83 It is appropriate to note that the applicant pleads, in essence, first, that the Parliament erred procedurally, secondly, that it infringed Articles 9 and 10 of the Protocol, thirdly, that it interfered with the settled practice of its Committee on Legal Affairs as regards both freedom of expression and fumus persecutionis, fourthly, that it infringed the principles of legal certainty and the protection of legitimate expectations, fifthly, that it prejudiced the independence of a Member and finally, sixthly, that it misapplied the provisions of its Rules of Procedure relating to a procedure which might lead to the disqualification of a Member. 84 As regards the second complaint, the applicant argues, in essence, that Article 9 of the Protocol, which covers opinions expressed and votes cast in the performance of their duties by Members of the Parliament and which was adopted by the Parliament as the basis for its decision not to defend his immunity, could not be applied in this case, since that provision concerns only opinions expressed or votes cast within the framework of the plenary assembly and meetings of parliamentary bodies, such as committees or political groups, and not opinions expressed at a conference or during an election campaign. 85 The applicant submits that, conversely, Article 10 of the Protocol should have been applied to his situation, since that provision in fact concerns, particularly, actions other than opinions or votes, whether within the framework of the European Parliament or not. The remarks for which he was prosecuted were made at a press conference to mark the resumption of political activities after the summer recess in the premises of the political party of which he is the representative. 86 By relying solely on Article 9 of the Protocol, the Parliament thus made an error of law. 87 The Parliament contends, in essence, that the conditions for the Community’s liability to be incurred are not satisfied and that the claim should be dismissed as unfounded. 88 As regards the unlawfulness of the conduct alleged against it, the Parliament argues, in essence, in connection with the claim for annulment, first, that the action is, in reality, directed against the report drawn up by the Committee on Legal Affairs, whereas only the decision the Parliament itself adopted can constitute one of its acts, since neither the decision recommended in the report of the Committee on Legal Affairs nor the statement of its grounds can be regarded as being an act of the Parliament; secondly, that, since acts relating to the defence of immunity cannot be based directly on the Protocol, the legal basis selected was the one contained in its Rules of Procedure on the procedure for adopting decisions on the defence of immunity; thirdly, that a decision of the Parliament not to defend immunity could theoretically have been adopted either on the basis of Article 9 of the Protocol or on that of Article 10; fourthly, that the applicant’s assertions that it was necessary to apply Article 10 of the Protocol do not so much raise the issue of the legal basis of the act but that of its substantive assessment; fifthly, that, according to the applicant, point (a) in the first paragraph of Article 10 of the Protocol does not refer back to the third paragraph of Article 26 of the French Constitution, and that the applicant does not claim, in his application, that the Parliament should have applied the third paragraph of Article 26 of the French Constitution, but that any decision to defend the applicant’s immunity should have had the effect provided for by that constitutional provision; sixthly, that, even if it could have applied that constitutional provision as regards the applicant, the Parliament could, given its discretion, have adopted the same decision as the contested decision; seventhly, that the application of the third paragraph of Article 26 of the French Constitution raises questions as to whether it ought to have acted directly on the basis of that provision of national law, rather than follow a procedure laid down by its Rules of Procedure, and that, even had the Parliament acted on the basis of the third paragraph of Article 26 of the French Constitution, it could have adopted a negative decision and the applicant’s legal position would thereby be the same; in addition, the effects of a decision to suspend the prosecution would have expired at the end of the 2005/06 annual session, that is to say, on the second Tuesday in March 2006, failing renewal, by the Parliament, of the decision to require the suspension of the prosecution, that is to say, before the applicant’s conviction by the tribunal correctionnel; eighthly, that the applicant cannot validly claim infringement of the principle of the protection of legitimate expectations; ninthly, that the applicant has adduced no evidence to support his allegations that the contested decision prejudices his independence as a Member; finally, tenthly, that the applicant’s allegations of infringement of the second subparagraph of Rule 3(6) of the Parliament’s Rules of Procedure are completely unfounded. 89 As regards the causal link, the Parliament contends that it is in no way responsible for the fact that third parties have misinterpreted the contested decision and seen it as a presumption of the applicant’s guilt. Findings of the Court 90 According to established case-law, in order for the Community to incur non-contractual liability, within the meaning of the second paragraph of Article 288 EC, 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 (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44). 91 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). 92 In this case, it is appropriate to examine, first of all, the allegations relating to the unlawfulness of the Parliament’s conduct. – The conduct alleged against the Parliament 93 As regards the first of the three requirements, mentioned in paragraph 90 above, for the Community’s non-contractual liability to be incurred, the case-law requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards the requirement that the breach must be sufficiently serious, the decisive test for determining whether that requirement is met, where, in particular, the institution concerned has a broad discretion, is whether that institution has manifestly and gravely disregarded the limits on its discretion. Where that institution has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 43 and 44, and Joined Cases T‑198/95, T‑171/96, T-230/97, T‑174/98 and T-225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134). 94 Furthermore, while the privileges and immunities conferred on the European Communities by the Protocol have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the Communities (orders in Case 1/88 SA Générale de Banque v Commission [1989] ECR 857, paragraph 9, and Case C-2/88 Imm. Zwartfeld and Others [1990] ECR I‑3365, paragraph 19), the fact remains that they have been expressly accorded to Members of the Parliament and to officials and other staff of the Community institutions. The fact that the privileges and immunities have been provided in the public interest of the Community justifies the power given to the institutions to waive the immunity where appropriate but does not mean that these privileges and immunities are granted to the Community exclusively and not also to its officials, to other staff and to Members of the Parliament. Therefore the Protocol confers an individual right on the persons concerned, compliance with which is ensured by the system of rights of recourse established by the Treaty (see, to that effect, Case T‑345/05 Mote v Parliament [2008] ECR II‑2849, paragraph 28; see also, by analogy, Case 6/60 Humblet v État belge [1960] ECR 559, 571). 95 In his letter of 7 April 2005 addressed to the President of the Parliament with a view to a reference to the Committee on Legal Affairs of a request for defence of the applicant’s immunity, Mr Romagnoli, by referring to point (a) in the first paragraph of Article 10 of the Protocol, stated that the immunity enjoyed by Mr Gollnisch was that provided for by Article 26 of the French Constitution which provides that the Assembly to which the Member of Parliament belongs may require a prosecution to be suspended. He was acting accordingly on the basis of Rule 6(3) of the Parliament’s Rules of Procedure, in defence of Mr Gollnisch’s immunity, with the latter’s agreement. 96 At the hearing, the Parliament agreed that the object of Mr Romagnoli’s request was explicitly to obtain from the Parliament a requirement that the prosecution be suspended pursuant to point (a) in the first paragraph of Article 10 of the Protocol and Article 26 of the French Constitution. 97 By following the proposal made to it by the Committee on Legal Affairs not to defend Mr Gollnisch’s immunity and by referring, in the contested decision, to the report of that committee without expressing any reservations regarding the content of the statement of the grounds contained in that document, the Parliament adopted as its own the grounds of the report. 98 It follows that the criticism of the statement of the grounds of the Committee on Legal Affairs’ report is to be treated as being directed against the grounds of the contested decision itself (see, to that effect, Mote v Parliament, paragraph 94 above, paragraph 59). 99 The draft reports of the Committee on Legal Affairs show that: – in the first draft report, the proposed conclusion was to defend the applicant’s immunity on the basis of point (a) in the first paragraph of Article 10 of the Protocol; – in the second draft report, the proposed conclusion was not to defend the applicant’s immunity on the basis of reasoning founded on point (a) in the first paragraph of Article 10 of the Protocol; – in the third draft report, the conclusion was not to defend the applicant’s immunity either on the basis of Article 9 or on the basis of Article 10 of the Protocol; – in its last version, the conclusion of the report, as adopted by the Committee on Legal Affairs and then by the Parliament itself, was not to defend the applicant’s immunity, stating in paragraph 1, under the title ‘III. Justification of the proposed decision’, that the Committee on Legal Affairs decided that the present case had to be examined under Article 9 of the Protocol. 100 Having regard to the content of the request which had been submitted to the Parliament, the object of which was to obtain the suspension of the prosecution pursuant to point (a) in the first paragraph of Article 10 of the Protocol and Article 26 of the French Constitution, the Parliament, by deciding to examine that request solely in the light of Article 9 of the Protocol, must be held to have refused to examine it under point (a) in the first paragraph of Article 10 thereof. 101 It must be accepted that the Parliament has a broad discretion as to the direction it wishes to give to a decision following a request such as that made in this case. 102 The fact remains that, since, in this case, the Parliament had before it a request, which was unambiguous, to suspend the prosecution on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the question whether the decision should be taken on the basis of Article 9 or on that of point (a) in the first paragraph of Article 10 of the Protocol is not within the ambit of the Parliament’s discretion. 103 In fact, the Parliament did not decide to accede or not to accede to the request made of it, which would have constituted a decision within its discretion. 104 On the other hand, the Parliament did reply to the request made of it that, in the light of Article 9 of the Protocol, it did not wish to defend the applicant’s immunity. 105 By refraining from deciding on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the Parliament did not adopt a decision on a possible suspension of prosecution, as provided for by the third paragraph of Article 26 of the French Constitution. 106 Indeed, the provisions of point (a) in the first paragraph of Article 10 of the Protocol mean that the extent and scope of the immunity enjoyed by Members of the Parliament in the territory of their own State are to be determined by the various national laws to which that provision refers. 107 Moreover, in the light of the fact that, under the first subparagraph of Article 7(2) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage (OJ 1976 L 278, p. 5), from the European Parliament elections in 2004, the office of Member of the European Parliament is to be incompatible with that of member of a national parliament, it is for the European Parliament to ensure the effectiveness of the immunities provided for by point (a) in the first paragraph of Article 10 of the Protocol, as the Parliament accepted at the hearing. 108 Since, for the reasons stated in paragraph 94 above, point (a) in the first paragraph of Article 10 of the Protocol, the purpose of which – combined with the provisions of national law to which it refers – is to establish the system of immunities enjoyed by Members of the Parliament in the territory of their own State during the Parliament’s sessions, confers an individual right on the persons concerned and since it constitutes, therefore, a rule of law intended to confer rights on the Members of the Parliament entitled to it, it follows that, by refraining from deciding on the basis of point (a) in the first paragraph of Article 10 of the Protocol, the Parliament committed a sufficiently serious breach of a rule of law intended to confer rights on individuals. 109 It is therefore necessary to consider whether the other requirements for the Community’s non-contractual liability to be incurred are satisfied, namely those relating to the reality of the damage and the existence of a causal link. – The causal link 110 It is settled case-law in respect of the Community’s non-contractual liability that 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 Community can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned (Joined Cases C‑363/88 and C‑364/88 Finsider and Others v Commission [1992] ECR I‑359, paragraph 25, and order of 5 July 2007 in Case C‑255/06 P Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission (not published in the ECR), paragraph 61), that is to say, the conduct must be the determining cause of the harm (see the order in Case T‑201/99 Royal Olympic Cruises and Others v Council and Commission [2000] ECR II‑4005, paragraph 26, and the case-law cited). By contrast, it is not the responsibility of the Community to compensate for every harmful consequence, even a remote one, of the conduct of its organs (see, to that effect, Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21). 111 The applicant alleges that the Parliament’s unlawful acts, which are noted in paragraph 83 above, caused the damage to his reputation upon which he relies. 112 It must however be pointed out that the applicant stated in his reply of 23 July 2009 to the Court’s written question that the Cour de cassation’s judgment had not completely expunged the non-material damage caused by the contested decision. The applicant thus himself identifies his prosecution by the French authorities as the cause of that damage or part of it. 113 Therefore, the Parliament’s unlawful act, which was the refusal to consider the request under point (a) in the first paragraph of Article 10 of the Protocol and, thus, the failure to reply on that basis, is not the direct and determining cause of the damage to his reputation – or at least part of it – upon which he relies. 114 In any event, the illegality vitiating the contested decision cannot be the direct and determining cause of the damage to his reputation upon which the applicant relies. 115 Indeed, as the applicant accepted in his written reply to the Court’s question regarding the effects of the judgment of the Cour de cassation, had the Parliament relied on point (a) in the first paragraph of Article 10 of the Protocol, it could have adopted validly either a decision to request that the prosecution be suspended or a decision not to request that the prosecution be suspended. 116 Given the Parliament’s wide discretion in that respect, a decision to require that a prosecution be suspended is not a necessary consequence of the submission of a request addressed to it for that purpose. 117 Therefore, the fact that it was on an incorrect legal basis that the Parliament did not accede to the request made to it to require that the prosecution be suspended cannot be the direct and determining cause of the damage alleged assuming it to be established. 118 Since a causal link has not been established, the application for damages must be dismissed as unfounded, without the need to consider the final requirement for the Community’s liability to be incurred, that is to say, the damage. Costs 119 The applicant claims, in essence, an order that the Parliament pay him a sum of EUR 4 000 for costs incurred for legal advice and the preparation of his action. He defers to the wisdom of the Court as regards the admissibility of that claim. 120 The Parliament contends, in essence, that the payment of a fixed sum as claimed by the applicant is not provided for by Article 87 et seq. of the Rules of Procedure and that the claim against the Parliament for costs is therefore inadmissible. 121 Under Article 91(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are to be regarded as recoverable costs. 122 Although he is not entitled, in that respect, to a fixed sum, it must be held that the applicant’s claim is for an order that the Parliament pays the costs. Therefore, it is not inadmissible. 123 Under the first subparagraph of 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. 124 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. 125 In the circumstances of this case, it is appropriate to decide that the Parliament shall bear its own costs and pay two thirds of the costs incurred by the applicant, including those relating to the application for interim measures. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Rules that there is no need to adjudicate on the claim for annulment; 2. Dismisses the claim for damages; 3. Orders the European Parliament to bear its own costs and to pay two thirds of the costs incurred by Mr Bruno Gollnisch, including those relating to the application for interim measures; 4. Orders Mr Bruno Gollnisch to bear one third of his costs, including those relating to the application for interim measures. Azizi Cremona Frimodt Nielsen Delivered in open court in Luxembourg on 19 March 2010. [Signatures] * Language of the case: French.