ORDER OF THE GENERAL COURT (Fourth Chamber)
1 February 2018 (*)
(Privileges and immunities — Member of the European Parliament — Decision not to defend the privileges and immunities — Action manifestly inadmissible — Manifest lack of jurisdiction — Action manifestly lacking any foundation in law)
In Case T‑919/16,
Jane Maria Collins, residing in Hotham (United Kingdom), represented by I. Anderson, solicitor,
applicant,
v
European Parliament, represented by S. Alonso de León and M. Dean, acting as Agents,
defendant,
concerning, first, an action under Article 263 TFEU for the annulment of the decision of the European Parliament of 25 October 2016 not to defend the immunity and privileges of the applicant, secondly, an action under Article 268 TFEU seeking compensation for the damage allegedly incurred as a result of that decision and, thirdly, a request that the General Court should rule on the request for defence of the immunity and privileges of the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        In the elections held on 25 May 2014, the applicant, Ms Jane Maria Collins, was elected to the European Parliament on the list of the United Kingdom Independence Party (UKIP).
2        On 26 September 2014, the applicant made a speech at a UKIP conference in the constituency of Yorkshire and Humber (United Kingdom). On that occasion, she mentioned a child sexual abuse scandal in the area of Rotherham (United Kingdom), which is part of that constituency, and stated that she was convinced that three members of the Labour party who were elected from that constituency to the Parliament of the United Kingdom ‘knew many of the details of what was happening’. She further stated that, by failing to take action, the persons who were aware of the abuse in question had helped and encouraged the perpetrators and were just as guilty (‘the statements at issue’).
3        On 5 December 2014, before the Queen’s Bench Division of the High Court of Justice (England and Wales) (United Kingdom), the three MPs in question brought a civil action against the applicant, seeking, on the one hand, damages for libel and slander and, on the other, an injunction restraining the applicant from repeating the statements at issue.
4        On 3 May 2016, the applicant made a request to the European Parliament, on the basis of Article 7 of its Rules of Procedure, for the defence, in the proceedings referred to above, of her privileges and immunities as enshrined in Article 8 of Protocol No 7 on the privileges and immunities of the European Union (OJ 2010 C 83, p. 266; ‘the protocol’).
5        On 17 May 2016, the Queen’s Bench Division of the High Court of Justice (England and Wales) suspended the proceedings after having been informed, by the European Parliament, of the Applicant’s request for the defence of her privileges and immunities.
6        By decision of 25 October 2016, the European Parliament decided not to defend the privileges and immunity of the applicant (‘the contested decision’). The decision is reasoned as follows:
‘whereas ... the request concerns the defence of the freedom of Members of the European Parliament, under Article 8 of the Protocol, from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;
whereas this part of the request relates to the fact that [the applicant] is subject to a civil claim in the United Kingdom for damages, including aggravated damages, for alleged libel and slander, as well as to a claim for an injunction against her to desist from repeating the [statements at issue];
whereas the claim of libel and slander concerns accusations which [the applicant] made at a party conference;
whereas the parliamentary immunity conferred by Article 8 of the Protocol applies to opinions expressed by Members of the European Parliament only in the performance of their duties;
whereas statements made by Members of the European Parliament outside the precincts of the European Parliament are considered to be made in the performance of their duties only if they amount to a subjective appraisal having a direct, obvious connection with the performance of those duties ...;
whereas, however, there is no direct [and] obvious connection between the [statements at issue] and [the applicant]’s duties as a Member of the European Parliament, as they do not relate to her activity as a Member of the European Parliament or to the policies of the European Union, and were made in the context of national political debate;
whereas the [statements at issue] are, therefore, not covered by Article 8 of the Protocol.’
7        On 27 October 2016, a journalist of the British Broadcasting Corporation (BBC) published an article on the BBC website setting out the background and political context of the case, the scope of the contested decision, as well as comments from a Member of the European Parliament on the matter. In its comments, the MEP in question stated that there had been, within the European Parliament, some raised eyebrows as to what he described as the apparent hypocrisy of a member of a party that wants to dismantle all European Union institutions apparently trying to hide behind one of them to avoid the decision of a court of the United Kingdom.
Procedure and forms of order sought
8        By application lodged at the Registry of the Court on 28 December 2016, the applicant brought the present action.
9        By separate document lodged at the Registry of the Court on 5 July 2017, the Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. The applicant lodged its observations on that objection on 21 August 2017.
10      The applicant claims that the Court should:
–        annul the contested decision;
–        decide on her request for the defence of her immunity and privileges;
–        order the Parliament to pay her compensation for the damage suffered, in the amount of EUR 10 000 for non-material damage and in the amount of EUR 25 000 for material damage;
–        order the Parliament to pay the costs.
11      The Parliament contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, in the event that the plea of inadmissibility is not upheld or is reserved for the final judgment, prescribe new time-limits to enable the Parliament to submit its defence, pursuant to Article 130(8) of the Rules of Procedure;
–        order the applicant to pay the costs.
Law
12      Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility or lack of competence without considering the merits of the case. Furthermore, under Article 126 of the Rules of Procedure, where it is clear that the General Court has no jurisdiction to hear and determine an action or where it is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
13      In the present case, the Tribunal considers that there is sufficient information before it and has decided, pursuant to those provisions, to give a decision by reasoned order without taking further steps in the proceedings.
The claim for annulment
Arguments of the parties
14      The European Parliament submits that the contested decision did not bring about a distinct change in the applicant’s legal situation and that it is therefore not a measure against which an action for annulment may be brought. The purpose of the request for the defence of parliamentary immunity was not the adoption of a measure producing binding legal effects; a decision taken on the basis of such a request merely constitutes an opinion. Consequently, the Parliament took the view that the claims for annulment must be rejected as manifestly inadmissible.
15      The applicant states, first, that in her action she alleges infringement of Articles 6 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), that the breach of those provisions had brought about a distinct change in her legal situation, and that that breach gave her a right of action before the General Court. On the one hand, the contested decision was intended to produce legal effects and that had been the case in practice, inasmuch as the infringement of the applicant’s right to be heard fairly and impartially caused her damage. On the other, if the contested decision were not subject to challenge before the Court, the Parliament could act without having to comply with the above provisions.
16      Secondly, the case-law is not unambiguous. In its judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579), the Court held that the decision of the Parliament not to defend the immunity of one of its Members constituted an opinion which was not binding on national courts. In its objection of inadmissibility, the Parliament inferred from the order of 5 September 2012, Farage v Parliament and Buzek (T‑564/11, not published, EU:T:2012:403), that that case-law was well established. However, the case which gave rise to that order concerned a financial penalty imposed by the institution on one of its members. Moreover, in its judgment of 15 October 2008, Mote v Parliament (T‑345/05, EU:T:2008:440), the General Court held that a decision of Parliament lifting the immunity of one of its members was a measure which could be the subject of an action for annulment.
17      Thirdly, although the judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 32), states that the protocol does not confer on the Parliament the power to determine, in cases of legal proceedings against one of its Members in respect of opinions expressed or votes cast by him, whether the conditions for applying that immunity are met, the fact remains that the Parliament did, in the present case, act as the competent authority in that regard. In those circumstances, the Queen’s Bench Division of the High Court (England and Wales) may take the view that it is not for it to examine itself whether the statements at issue are covered by the immunity provided for in Article 8 of the Protocol. The contested decision thus has an impact on the proceedings before that court.
18      Fourthly, it is apparent from Rule 7(5) of the Parliament’s Rules of Procedure that a decision of the Parliament not to defend the immunity of one of its members is subject to appeal before the General Court.
Findings of the Court
19      According to settled case-law, an institution’s reply to a request addressed to it does not necessarily constitute a decision within the meaning of the fourth paragraph of Article 263 TFEU, thus opening the way for the addressee of that reply to bring an action for its annulment. In addition, it has consistently been held that only a measure the legal effects of which are binding on and capable of affecting the interests of an applicant by bringing about a distinct change in his legal position is a measure against which an action for annulment may be brought under Article 263 TFEU. It follows that the rejection by an institution of a request addressed to it does not constitute a measure against which an action for annulment may be brought where that request did not lead to the adoption, by that institution, of a measure producing binding legal effects (see order of 5 September 2012, Farage v Parliament and Buzek, T‑564/11, not published, EU:T:2012:403, paragraph 27 and the case-law cited).
20      As regards, more particularly, a request for the defence of parliamentary immunity, it must be borne in mind that Article 8 of the Protocol provides that ‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties’. Article 9(1) of the Rules of Procedure provides that any request addressed to the President of the Parliament by a Member of the Parliament to defend his immunity and privileges is to be announced in Parliament and referred to the committee responsible. Furthermore, it is apparent from a reading of Article 9(8) of the Parliament’s Rules of Procedure in conjunction with Article 9(9) of those rules that the discussions before the Parliament concern only the reasons for and against defence of immunity or a privilege. Finally, it is stated in Article 9(10) of those rules that the competent authority of the Member State concerned, to which Parliament’s decision is communicated, is invited to inform it of any developments and judicial rulings issued in the proceedings in question.
21      In a similar context, the Court held, in its judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 39) and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 39) that, even where criminal proceedings have been brought against a Member before a national court, a decision to defend immunity, adopted by the Parliament on the basis of the Rules of Procedure following a request from the Member concerned, constitutes only an opinion which does not have binding effect with regard to national judicial authorities. It necessarily follows that a decision rejecting a request for the adoption of such a decision does not constitute a measure producing binding legal effects and cannot be the subject of an action for annulment (order of 5 September 2012, Farage v Parliament and Buzek, T‑564/11, not published, EU:T:2012:403, paragraph 28).
22      The fact that no action may be brought against the contested decision is not called into question by the arguments put forward by the applicant in its observations on the plea of inadmissibility.
23      First, as regards the applicant’s argument that the contested decision was intended to go beyond the mere expression of an opinion and to produce legal effects vis-à-vis the national judicial authorities, it should be recalled that in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context, its substance and the intention of its author (see order of 12 October 2016, Cyprus Turkish Chamber of Industry and Others v Commission, T‑41/16, not published, EU:T:2016:613, paragraph 33 and the case-law cited).
24      However, although, in the contested decision, the Parliament took the view that ‘there was no direct [and] obvious connection between the [statements at issue] and [the applicant]’s duties as a Member of the European Parliament’ and that ‘the [statements at issue] [were], therefore, not covered by Article 8 of the Protocol’, the Parliament thus confined itself to replying to the application submitted to it by the applicant for the defence of her immunity and privileges.
25      Secondly, while Article 7(5) of the Rules of Procedure provides that, where a decision not to defend the privileges and immunities of an MEP has been taken, that MEP may make a request for reconsideration unless an action has been brought against the decision under Article 263 TFEU. However, those rules are an act of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the protocol (judgment of 21 October 2008, Marra, C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 38).
26      Thirdly, the applicant’s claim that the Queen’s Bench Division of the High Court (England and Wales) may consider itself bound by the contested decision is purely speculative. Since the contested decision is merely an opinion, the national court is entitled to depart from it (see, to that effect, judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraph 40).
27      Fourthly, as regards the applicant’s argument alleging infringement of Articles 6 and 11 of the ECHR which she claims to have suffered, it must be pointed out that it amounts, in actual fact, to inferring that the contested decision is an act adversely affecting a person on the basis of its alleged illegality. In so doing, the applicant conflates the separate issues of the admissibility and the merits of the claim for annulment, whereas the existence of possible unlawful acts does not fall within the scope of the examination of the admissibility of the action for annulment, but of its merits (see judgment of 20 May 2010, Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 56 and the case-law cited). Consequently, the alleged infringement of Articles 6 and 11 of the ECHR, moreover not formally incorporated into EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 32), is not sufficient to render admissible an action for annulment against an act which does not produce binding legal effects and does not therefore affect the interests of an applicant, by bringing about a distinct change in his legal position (see, to that effect, judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 87). In any event, the alleged infringement could, at most, be linked to the conduct of Parliament lacking the features of a decision. In that case, the applicant's right to effective judicial protection is ensured by the possibility of bringing an action for damages conferred on her by Article 268 TFEU (see, to that effect, judgment of 21 January 2016, SACBO v Commission and INEA, C‑281/14 P, not published, EU:C:2016:46, paragraph 47, and of 20 May 2010, Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 59), which the applicant moreover did in her third head of claim (see paragraph 30 et seq. below).
28      Fifthly, the case-law is not inconsistent, contrary to what the applicant claims. First of all, while paragraph 31 of the judgment of 15 October 2008, Mote v Parliament (T‑345/05, EU:T:2008:440) accepted that the contested decision constituted a measure against which an action for annulment could be brought, it related to a Parliament decision waiving the immunity of one of its Members in accordance with the third paragraph of Article 10 of the protocol, so as to make it possible to bring criminal proceedings against that Member, and not a decision finding that there were no grounds for defending the immunity of an MEP provided for in Article 8 of that protocol. Subsequently, although the order of 5 September 2012, Farage v Parliament and Buzek (T‑564/11, not published, EU:T:2012:403), did relate to an action brought against a financial penalty imposed by the institution on one of its members, the Court also ruled, in paragraphs 27 and 28 of its order, on the admissibility of the action in so far as it was also directed against a decision refusing to defend the immunity of the Member concerned. On that occasion, the Court held, in line with the judgments of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579), and of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543), that such a decision did not constitute a measure producing binding legal effects capable of being the subject of an action for annulment.
29      It follows from the foregoing that it is necessary to uphold the plea of inadmissibility and to dismiss the claim for annulment of the contested decision as manifestly inadmissible.
The claim that the Court should rule on the request for defence of the immunity and privileges of the applicant
30      The Parliament submits that the General Court manifestly lacks jurisdiction to hear the claim that it should itself rule on the request for the defence of the immunity and privileges of the applicant, since it is not for the Court to issue directions to the institutions or to substitute itself for them.
31      The applicant did not respond to that plea of inadmissibility.
32      According to settled case-law, the General Court is not entitled, in the context of a review of legality on the basis of Article 263 TFEU, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before the Court (see, to that effect, judgments of 12 July 2001, Mattila v Council and Commission, T‑204/99, EU:T:2001:190, paragraph 26; of 8 October 2008, Agrar-Invest-Tatschl v Commission, T‑51/07, EU:T:2008:420, paragraphs 27 and 28; and of 17 December 2010, EWRIA and Others v Commission, T‑369/08, EU:T:2010:549, paragraph 45), and thus also in the field of immunity and privileges granted to Members (see, by analogy, judgment of 15 June 2017, Bay v Parliament, T‑302/16, EU:T:2017:390, paragraph 45).
33      In the light of the foregoing, the claim that the Court should rule on the request for defence of the immunity and privileges of the applicant must be rejected on the grounds of manifest lack of jurisdiction.
The claim that the Court should order the Parliament to pay compensation to the applicant for the damage allegedly suffered by it
34      The Parliament submits that, in so far as the claim for annulment is manifestly inadmissible, the same applies to the claim for compensation.
35      It should be borne in mind that the action for compensation based on the second paragraph of Article 340 TFEU is an autonomous form of action in the system of remedies available in EU law, so that the fact that an application for annulment is inadmissible does not in itself render a claim for damages inadmissible (order of 13 January 2014, Investigación y Desarrollo en Soluciones y Servicios IT v Commission, T‑134/12, EU:T:2014:31, paragraph 59).
36      Admittedly, where an action for damages is actually aimed at securing the withdrawal of an individual decision addressed to the applicant which has become definitive — so that it has the same purpose and the same effect as an action for annulment — that action for damages might be regarded as an abuse of process; the burden of proving such an abuse of process lies on the party pleading it (see order of 13 January 2014, Investigación y Desarrollo en Soluciones y Servicios IT v Commission, T‑134/12, EU:T:2014:31, paragraph 60).
37      However, in the present case, the Parliament does not allege, let alone prove, that the applicant’s claims for compensation have the same purpose and the same effect as her claim for annulment, which was deemed inadmissible in paragraph 29 above.
38      The Parliament’s plea of inadmissibility in respect of the claim for damages must therefore be rejected.
39      It should nevertheless be pointed out, ex officio, that the claim in question does not meet part of the requirements laid down by Article 76(d) of the Rules of Procedure.
40      In order to meet the requirements of that provision, any application must state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. More specifically, in order to satisfy those requirements, the claims relating to compensation for the damage allegedly caused by a European Union institution must state the evidence from which the conduct alleged against the institution may be identified, the reasons why it considers that a causal link exists between that conduct and the damage which it claims to have suffered, and the nature and extent of that damage (see order of 14 July 2016, Alcimos Consulting v ECB, T‑368/15, not published, EU:T:2016:438, paragraph 42 and the case-law cited).
41      The applicant claims, first, that, ‘in refusing to defend the immunity of the Applicant under Article 8 of the Protocol, the Parliament ... [has] exposed the Applicant to substantial aggravated damages in the national courts for causing proceedings to be stayed under the principle of sincere cooperation in order for the request to the Parliament to be heard’.
42      That finding does not, however, make it possible to identify with the degree of clarity and precision required by Article 76(d) of the Rules of Procedure either the nature of the damage allegedly suffered, or the extent or the existence of a sufficiently direct causal link between the alleged unlawful acts and the alleged damage. Consequently, that claim is manifestly inadmissible.
43      As regards the substance of the claim, it is settled case-law that in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful; actual damage must have been suffered; and there must be a causal link between the conduct and the damage pleaded. Since those three conditions are cumulative, the absence of any one of them is sufficient for an action for damages to be dismissed (see, to that effect, judgments of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraphs 210 and 211 and the case-law cited, and of 15 January 2015, Ziegler and Ziegler Relocation v Commission, T‑539/12 and T‑150/13, not published, EU:T:2015:15, paragraphs 59 and 60).
44      With regard more specifically to the condition relating to the existence of a causal link, it is met where there is a direct link of cause and effect between the fault committed by the institution concerned and the alleged damage, the existence of which the applicant must prove. In other words, the European Union can be held liable only for damage which is a sufficiently direct consequence of the wrongful act of the institution concerned, that is to say, the conduct must be the determining cause of the harm. By contrast, it is not for the Union to make good every harmful consequence, even a remote one, of the conduct of its institutions (judgments of 17 January 2013, Gollnisch v Parliament, T‑346/11 and T‑347/11, EU:T:2013:23, paragraph 222, and of 16 December 2015, Chart v EEAS, T‑138/14, EU:T:2015:981, paragraph 53).
45      It must be observed in that regard that, even assuming the admissibility of the statement in question referring to the stay of proceedings granted by the Queen’s Bench Division of the High Court (England and Wales), the damage resulting from such a stay of proceedings is directly caused by the choice, made freely by the applicant, to ask the Parliament to defend her privileges and immunities.
46      In its application, the applicant maintains, secondly, that the comment on the case by an MEP, reproduced in the article of 27 October 2016 published by a BBC journalist, involves an assessment that is damaging to her reputation and which is the direct consequence of the contested decision.
47      However, it is clear from the wording of the contested decision, as reproduced in paragraph 6 above, that, in that decision, the Parliament merely recalled briefly the background to the case and the scope of Article 8 of the Protocol, before concluding that, in its view, the statements at issue had no connection with the applicant’s activity as a Member of the Parliament or with the policies of the European Union. The contested decision is drafted in neutral terms and does not reflect any opinion unfavourable to the applicant, especially with regard to the potentially libellous or defamatory nature of the statements at issue. Furthermore, under Article 115 of the Rules of Procedure of the Parliament, Parliament’s debates are open to the public, and the texts it adopts are also made public pursuant to Article 116 of those rules. Consequently, the applicant could not have been unaware, in her capacity as MEP, that the request that she had freely chosen to introduce for the defence of her immunity and privileges would lead to the adoption by the Parliament of a decision which would be made public.
48      In those circumstances, it cannot be concluded that there is a direct link of cause and effect between the alleged illegalities committed by the Parliament at the time of the adoption of the contested decision and the alleged damage to the applicant’s reputation, since such damage could ensue, by definition, only from the press article drafted by a journalist.
49      In its application, the applicant alleges, thirdly, that she suffered financial loss as a result of the fact that, in order to bring the present action before the Court, she was obliged to pay a lawyer.
50      However, it is settled case-law that the expenses incurred by the parties for the purposes of legal proceedings before a court of the European Union are not material damage but costs (see, to that effect, judgment of 10 June 1999, Commission v Montorio, C‑334/97, EU:C:1999:290, paragraph 54, and order of 17 February 2012, Dagher v Council, T‑218/11, not published, EU:T:2012:82, paragraph 39).
51      In the light of the foregoing, it must be held that the applicant’s claims for compensation are in part manifestly inadmissible, and in part manifestly lacking any foundation in law.
52      Consequently, the action must be dismissed in its entirety, in part as it is manifestly inadmissible, in part as it manifestly falls outside the jurisdiction of the Court, and in part as it is manifestly unfounded.
Costs
53      Under Article 134(1) 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. Since the applicant has been unsuccessful, and the Parliament has applied for costs, she must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed.
2.      Jane Maria Collins is ordered to bear her own costs and to pay those of the European Parliament.
Luxembourg, 1 February 2018.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.