Order — ECLI:EU:T:2007:393
Date: 2007-12-13
Language of the case: Italian
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions
Concepts: Allocation of jurisdiction among the various Community courts;Rights of the defence and procedural guarantees
Procedure: Action for annulment
Origin: Italy

Summary of the Order 1. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Interest of the applicant in obtaining the suspension sought (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 2. European Parliament – Verification of members’ credentials – Limits (Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 12) 3. European Parliament – Members – Meaning (Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 6) 4. European Parliament – Legality of a decision of the Parliament on the verification of elected candidates’ credentials (Art. 234 EC; Act concerning the election of representatives to the European Parliament by direct universal suffrage) 5. Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a measure of the European Parliament invalidating the mandate of one of its members for lack of credentials (Art. 242 EC; Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 8; Rules of Procedure of the Court of First Instance, Art. 104(2)) 1. An application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of suspension could not have the effect of changing the applicant’s position. However, a decision of the European Parliament carrying out a verification of an applicant’s credentials as a Member of the European Parliament and, following that verification, declaring his mandate invalid cannot be described as a negative measure. Granting suspension of operation of that decision would bring about a change in the applicant’s legal situation, since it would have the effect of maintaining the advantageous provisional situation enjoyed by him, during which he would continue to take his seat in Parliament and on its bodies, enjoying all the rights attaching thereto. (see paras 33, 35-36) 2. It is apparent from the wording of Article 12 of the 1976 Act concerning the election of representatives to the European Parliament by direct universal suffrage (‘the 1976 Act’) that the Parliament has no fundamental jurisdiction to ensure compliance with Community law, either generally or, more particularly, in the context of elections. On the contrary, the wording of that provision shows that the Parliament’s power of verification is, at least prima facie, limited, by the introduction of a dual restriction. First, the fact that the Parliament ‘shall take note’ of the results declared officially by the Member States seems to mean that the Parliament’s role is merely to take note of the declaration, already made by the national authorities, of the persons elected, that is, of a pre‑existing legal situation arising exclusively from a decision of those authorities, which highlights the Parliament’s total lack of discretion in the matter. It therefore appears that, in this context, the Parliament is precluded from calling in question the actual regularity of the national measure concerned and from refusing to take note of it, if it considers that there is an irregularity. Secondly, the Parliament’s special power to rule on disputes arising at the time of the verification of credentials is also restricted ratione materiae only to disputes which may arise out of the provisions of the 1976 Act other than those arising out of the national provisions to which the Act refers. (see paras 71-73, 75-76) 3. Article 6 of the 1976 Act relates only to the Members of the Parliament, who must be able to exercise their rights and powers independently, not to elected candidates whose credentials have not yet been verified by the Parliament, in accordance with Article 12 of the 1976 Act. The Parliament’s validation of the mandate of such a person, in the procedure to verify his credentials, is an essential prerequisite for Article 6 of the 1976 Act to become applicable to him. The situation of an elected candidate cannot be assimilated to that of a Member of the Parliament for the purposes of applying Article 6. (see paras 77, 79, 81) 4. Any irregularity that might affect the official proclamation of the election results by the national authority with competence in the matter cannot in any way affect the legality of the Parliament’s decision concerning the verification of the credentials of the elected candidates. Where a national measure forms part of a Community decision-making procedure and, by virtue of the division of powers in the field in question, is binding on the Community decision-taking authority and therefore determines the terms of the Community decision to be adopted, any irregularity that might affect the national measure cannot affect the validity of the decision of the Community authority. It is for the national courts, where appropriate after obtaining a preliminary ruling from the Court of Justice pursuant to Article 234 EC, to rule on the lawfulness of the national electoral provisions and procedures. (see paras 91-93) 5. Serious and irreparable harm, one of the criteria for establishing urgency, constitutes the first element in the comparison carried out in assessing the balance of interests. More particularly, that comparison must lead the judge hearing the application for interim measures to examine whether the possible annulment of the act in question by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that act would be such as to prevent its being fully effective in the event of the action being dismissed on the merits. Where the specific interests involved are evenly matched, the more general interests, which argue for the grant or refusal of suspension of operation, take on a special significance. In that regard, the Member State concerned by a decision of the European Parliament invalidating the mandate of one of its members for lack of credentials undeniably has an interest in having its electoral legislation respected by the Parliament, since, pursuant to Article 8 of the 1976 Act, electoral procedure is governed by national provisions in each Member State. It is true that the Parliament’s general interest in the maintenance in force of its decisions may be weighed against that interest. However, that latter interest cannot prevail over the balance of the interests involved. Also, even though the Parliament may invoke its power to disregard the electoral results communicated by the Member State concerned where it considers those results to be contrary to the 1976 Act, the fact remains that it may exercise that power only in rare and therefore exceptional cases, since it is reasonable to assume that, as a general rule, the Member States will fulfil their obligation under Article 10 EC to adapt their electoral law to the requirements of the 1976 Act. (see paras 106, 109-110, 113)