62000TO0017_EN
Parties
Grounds
Operative part
Parties
In Case T-17/00 R,
Willi Rothley and 70 Others, whose names are listed in the Appendix, Members of the European Parliament, represented by H.-J. Rabe and G. Berrisch, Rechtsanwälte, Hamburg, of 35 Avenue de Tervuren, Brussels, Belgium,
applicants,
v
European Parliament, represented by J. Schoo, Director of the Legal Service, and H. Kürck, Head of Department in the Legal Service, acting as Agents, with an address for service in Luxembourg at the General Secretariat of the European Parliament, Kirchberg,
defendant,
supported by
Council of the European Union, represented by J. Aussant, Director of the Legal Service, and M. Bauer and I. Diez Parra, of the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of A. Morbilli, Director-General of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenhauer,
and by
Commission of the European Communities, represented by C. Timmermans, Assistant Director-General of the Legal Service, H.-P. Hartwig and U. W_lker, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of C. G_mez de la Cruz, of the Legal Service, Wagner Centre, Kirchberg,
interveners,
APPLICATION for the suspension of the operation of the Decision of the European Parliament of 18 November 1999 amending its Rules of Procedure pursuant to the Interinstitutional Agreement of 25 May 1999 concerning internal investigations conducted by the European Anti-Fraud Office or, alternatively, for interim relief,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Grounds
The relevant provisions
Protocol on the Privileges and Immunities of the European Communities of 8 April 1965
1 Articles 8 to 10 of the Protocol on the Privileges and Immunities of the European Communities (OJ 1967 152, p. 13) are devoted to the Members of the Parliament.
2 Article 9 provides that Members of the Assembly 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.
3 Article 10 states:
During the sessions of the Assembly, its members shall enjoy:
a) in the territory of their own State, the immunities accorded to members of their parliament;
b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the Assembly.
Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the Assembly from exercising its right to waive the immunity of one of its members.
Commission Decision establishing the European Anti-Fraud Office
4 On 28 April 1999 the Commission adopted Decision 1999/352/EC, ECSC, Euratom, establishing the European Anti-fraud Office (OLAF) (OJ L 136, p. 20, the Decision establishing the Office). The Decision is based, in particular, on Article 162 of the EC Treaty (now Article 218 EC), paragraph 2 of which provides that, [t]he Commission shall adopt its Rules of Procedure so as to ensure that both it and its departments operate in accordance with the provisions of this [EC] Treaty.
5 It is provided in the second and third subparagraphs of Article 2(1) of the Decision establishing the Office that:
The [European Anti-Fraud] Office shall be responsible for carrying out internal administrative investigations intended:
(a) to combat fraud, corruption and any other illegal activity adversely affecting the Community's financial interests;
(b) to investigate serious facts linked to the performance of professional activities which may constitute a breach of obligations by officials and servants of the
Communities likely to lead to disciplinary and, in appropriate cases, criminal proceedings or an analogous breach of obligations by Members of the institutions and bodies, heads of the bodies or members of staff of the institutions and bodies not subject to the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Communities.
The Office shall exercise the Commission's powers as they are defined in the provisions established in the framework of the Treaties, and subject to the limits and conditions laid down therein.
6 Under Article 3, the European Anti-Fraud Office (the Office) is to exercise the powers of investigation conferred upon it in complete independence.
Regulation No 1073/1999
7 Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OJ L 136, p. 1) has, as its legal basis, Article 280 EC. Article 1(1) of the Regulation is worded as follows:
In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Community, the [...] Office established by [...] Decision 1999/352 [...] shall exercise the powers of investigation conferred on the Commission by the Community rules and regulations and agreements in force in those areas.
8 Article 4 of the Regulation governs administrative investigations within the institutions, bodies, offices and agencies. Paragraph 1 provides that [T]hese internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on Privileges and Immunities [...] under the conditions and according to the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. [...]
9 Under Article 4(2):
Provided that the provisions referred to in paragraph 1 are complied with:
- the Office shall have the right of immediate and unannounced access to any
information held by the institutions, bodies, offices and agencies, and to their premises. The Office shall be empowered to inspect the accounts of the institutions, bodies, offices and agencies. The Office may take a copy of and obtain extracts from any document or the contents of any data medium held by the institutions, bodies, offices and agencies and, if necessary, assume custody of such documents or data to ensure that there is no danger of their disappearing,
[...]
10 Article 4(4) provides:
The institutions, bodies, offices and agencies shall be informed whenever employees of the Office conduct an investigation on their premises or consult a document or request information held by such institutions, bodies, offices and agencies.
11 Article 4(6) is drafted as follows:
Without prejudice to the rules laid down by the Treaties, in particular the Protocol on Privileges and Immunities [...], the decision to be adopted by each institution, body, office or agency as provided for in paragraph 1, shall in particular include rules concerning:
(a) a duty on the part of members [...] of the institutions and bodies [..] [t]o cooperate with and supply information to the Office's servants;
(b) the procedures to be observed by the Office's employees when conducting internal investigations and the guarantees of the rights of persons concerned by an internal investigation.
Interinstitutional Agreement of 25 May 1999 between the Parliament, the Council and the Commission
12 On 25 May 1999 the Parliament, the Council and the Commission concluded an agreement concerning internal investigations carried out by the Office (OJ L 136, p. 15).
13 Under point 1 of the Agreement, the institutions which are signatories thereto agree
to adopt common rules consisting of the implementing measures required to ensure the smooth operation of the investigations carried out by the Office within their institutions.
14 They also agree to draw up [common rules] and make then immediately applicable by adopting an internal decision in accordance with the model attached to this Agreement and not to deviate from that model save where their own particular requirements make such deviation a technical necessity (point 2 of the Agreement).
15 The model decision attached to the Agreement was transposed by the Council and the Commission on 25 May 1999 (OJ L 149, p. 36) and 2 June 1999 (OJ L 149, p. 57) respectively. On 18 November 1999 the Parliament adopted the Decision amending its Rules of Procedure pursuant to the Interinstitutional Agreement of 25 May 1999 concerning internal investigations conducted by the Office (the contested decision).
The contested decision
16 The contested decision adds to the Rules of Procedure of the European Parliament (OJ 1999, L 202, p. 1) Article 9a concerning the Internal investigations conducted by the [...] Office, which is worded as follows:
The common rules laid down in the Interinstitutional Agreement of 25 May 1999 [...] comprising the measures needed to facilitate the smooth running of investigations conducted by the Office shall be applicable within Parliament, pursuant to the Parliament Decision annexed to these Rules of Procedure.
17 The contested Decision also contains an approval of the European Parliament Decision concerning the conditions and procedure for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the interests of the Communities (the Parliament Decision concerning the terms and conditions for internal investigations), which reproduces the model decision attached to the Interinstitutional Agreement of 25 May 1999 introducing the technical adjustments necessary for its implementation within the Parliament.
18 The second paragraph of Article 1 of that decision provides:
Without prejudice to the relevant provisions of the Treaties establishing the European Communities, in particular the Protocol on Privileges and Immunities, and of the texts implementing them, Members shall cooperate fully with the Office.
19 The fourth paragraph of Article 2 of the Decision provides:
Members who acquire knowledge of facts as referred to in the first paragraph [evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities or staff not subject to the Staff Regulations liable to result in disciplinary or, in appropriate case, criminal proceedings] shall inform the President of Parliament or, if they consider it useful, the Office direct.
20 Article 4 provides that [r]ules governing Members' parliamentary immunity and the right to refuse to testify shall remain unchanged.
21 Article 5 is worded as follows:
When the possible implication of a Member [...] emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member [...] may not be drawn once the investigation has been completed without the interested party having been enabled to express his views on all the facts which concern him.
In cases necessitating the maintenance of absolute secrecy for the purposes of the
investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the Member [...] to give his views may be deferred in agreement [...] with the President [...]
Proceedings
22 By application lodged at the Court Registry on 21 January 2000, Willi Rothley and 70 other Members of the Parliament (hereinafter the applicants) brought an action under the fourth paragraph of Article 230 EC for annulment of the contested Decision.
23 By separate document lodged at the Court Registry on the same day they also brought an application pursuant to Article 242 EC for suspension of the operation of the contested Decision until disposal of the case in the main proceedings.
24 On 9 February 2000 the Parliament submitted its observations on the application for interim relief.
25 By letters dated 4 February 2000 and 10 February 2000 respectively, the Council and the Commission applied for leave to intervene in support of the form of order sought by the defendant in the interlocutory proceedings.
26 The parties were notified of the applications to intervene in accordance with Article 116(1) of the Rules of Procedure of the Court of First Instance.
27 By order of 7 February 2000 the President of the Court gave the Council leave to intervene and invited it to submit its observations at the hearing.
28 At the hearing which was held on 10 February 2000 the President of the Court of First Instance gave the Commission leave to intervene. He also put questions to the Director of the Office, who had been invited to appear.
29 At the end of the hearing the parties were asked by the President of the Court to consider an amicable settlement to the interlocutory proceedings. Since the Parliament's Agents did not have the necessary authority for this purpose, the Parliament was granted a period of time in order for an agreement between the parties to be made possible by an express undertaking given by the authorities empowered to bind that institution to the effect, in essence, that the Office's agents would not be authorised to carry out a search of Members' office during their absence or without their prior consent.
30 In its reply of 23 February 2000 the Parliament referred to a letter written by its President on 18 February 2000 and to a letter which she had received from the Chairman of the Committee on Constitutional Affairs.
31 The aforementioned letter from the President of the Parliament contains, in particular, the following passage:
At the hearing of 11 February 2000 in Case T-17/00 R Willi Rothley and Others v
European Parliament, you suggested that, in order to reach an amicable settlement of the dispute, the European Parliament should make a statement to the effect that the Parliament does not authorise the [...] Office to enter Members' offices without their express consent.
I hereby confirm, for whatever purpose it may serve, the position adopted to this effect by the Agents of the European Parliament during these proceedings.
32 By letter of 2 March 2000, the applicants submitted their observations on the Parliament's reply.
33 On 7 March 2000 the Parliament was asked if it would make a clear statement, through its President, that it was willing, in the event of the Office's intending to take measures against Members, to undertake to inform the Members immediately, to refuse the Office access to Members' offices in their absence and to ensure that the Office could not gain access to Members' offices without their consent.
34 By letter of 22 March 2000 the Parliament replied to the President of the Court of First Instance that [A]t its meeting on 16 March 2000, the conference of the Chairmen of the political groups, to which the President of the Parliament had referred the matter, considered [her] request and came to the conclusion that a further response from the Parliament [was] unnecessary and that [i]n the opinion of the Chairmen's conference, the President gave a clear response to the Court's request in her letter of 18 February 2000 when she conformed the positions adopted by the Parliament's Agents during the proceedings.
35 On the same day the applicants submitted their observations on the Parliament's response. Since they considered that their rights were not adequately upheld by the Parliament's statements, the applicants continued with their application for interim relief and claimed that the Court should, in the alternative, prescribe interim measures under Article 243 EC, requiring the Parliament, in the event of an imminent action against the Members of the Parliament by the Office, to inform the Members without delay, and also prohibiting the Parliament from granting the Office access to the Members' offices in their absence or without their consent.
Law
36 Under Articles 242 EC and 243 EC in conjunction with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ L 144, p. 21), the Court may, if it considers that the circumstances so require, order suspension of the operation of the contested act or prescribe the necessary interim measures.
37 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case (fumus boni juris) for the measures applied for. These conditions are cumulative; accordingly, an application for suspension of operation must be dismissed if one of them is lacking (Order of the President of the Court of 30 June 1999 in Case T-70/99 R Alpharma v Council, not yet published in the ECR, paragraph 42). Also, where appropriate, the judge hearing the application for interim measures weighs up the interests involved (Order of the President of the Court of 29 June 1999 in Case C-107/99 R Italy v Commission ECR I-4011, paragraph 59; Order of the President of the Court of 25 November 1999 in Case T-222/99 R Martinez et de Gaulle v Parliament, [1999] not yet published in the ECR, paragraph 22).
Admissibility
Arguments of the parties
38 The Parliament considers that the application for interim relief must be dismissed, since the action on which it is based in manifestly inadmissible.
39 In the first place, the applicants were not directly and individually affected by the contested decision. The Members' rights were not directly prejudiced, because such prejudice can occur only when specific measures are implemented, and the applicants were not individually affected by the contested Decision because it affected not only the elected representatives currently sitting in the Parliament but also those who would sit there in the future. Furthermore, the fact that it was possible to identify the persons to whom the measure might apply did not mean that they were individually concerned by the contested act. In the present case, since no specific investigation was conducted by the Office, the Members were only theoretically concerned.
40 Secondly, it submits that the Parliament Decision concerning the conditions and procedure for internal investigations is an internal decision adopted by the Parliament, based on Article 199 EC relating to the conduct of its Members and has no legal effects in relation to third parties. In so far as the contested Decision remains within the context of the internal organisation of the Parliament, it cannot, under the first paragraph of Article 230 EC, be subject to judicial review (Orders of the Court of Justice of 4 June 1986 in Case 78/85 Group of the European Right v Parliament ECR 1753 and 22 May 1990 in Case C-68/90 Blot and Front National v Parliament ECR I-2101).
41 The new Article 9a of the Rules of Procedure of the Parliament and the Parliament Decision concerning the terms and conditions for internal investigations contain rules relating to the position of the deputies as Members of the Parliament and reflect their duty, inherent to that position, to cooperate in the fight against fraud, while expressly respecting the relevant provisions in the Treaty, parliamentary immunity and a Member's right to refuse to testify. Moreover, the contested decision does not adversely affect, either directly or individually, the Members' exercise of their mandate (Order in Martínez and de Gaulle v Parliament, paragraph 67).
42 Finally, the Parliament considers that, in actual fact, the applicants are trying to call into question the legality of an internal act in the light of a higher right, when there is no legal remedy in such a case.
43 The applicants consider that the action to which their application for interim relief is an adjunct is admissible since, in accordance with the provisions of the fourth paragraph of Article 230 EC, they are directly and individually concerned by the contested Decision.
Findings of the President of the Court
44 Under the second subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application for interim measures is admissible only if it is brought by a party to a case being heard by the Court. This rule is not a mere formality but presupposes that the action on the merits, to which the application for interim relief is an adjunct, may indeed be examined by the Court.
45 According to settled case-law, the question of the admissibility of the main action must not, in principle, be examined in proceedings for interim relief, lest the case in the main proceedings be prejudged. However, it may become necessary, where, as in the present case, the manifest inadmissibility of the main action to which the application for interim relief is an adjunct is raised, to establish the existence of certain factors which will justify the prima facie conclusion that the main action is admissible (Orders of the President of the Court of 16 October 1986 in Case 221/86 R Group of the European Right and Front National v Parliament ECR 2969, paragraph 19, and of 27 January 1988 in Case 376/87 R Distrivet v Council ECR 209, paragraph 21; Order in Mart_nez and de Gaulle v Parliament, paragraph 60).
46 The first paragraph of Article 230 EC provides that the Court of Justice is to review, inter alia, the legality of acts of the Parliament which are intended to produce legal effects vis-à-vis to third parties. The purpose of the provision is to make it possible to submit to review by the Community judicature measures adopted by the European Parliament in the context of the EC Treaty which could encroach on the powers of the Member States or of the other institutions, or exceed the limits which have been set to the Parliament's powers (judgment of the Court of Justice in Case 294/83 Les Verts v Parliament ECR 1339, paragraph 25). On the other hand, measures affecting only the internal organisation of the work of the Parliament cannot be subject to an action for annulment (Orders in Case 78/85 Group of the European Right v Parliament [1986] ECR 1753, paragraph 11, Blot et Front National v Parliament, paragraph 11; judgment of the Court of 23 March 1993 in Case C- 314/91 Weber v Parliament ECR I-1093, paragraph 9). That class of measures includes measures adopted by the Parliament which either do not produce legal effects or produce legal effects only within the Parliament as regards the organisation of its work and are subject to review procedures established by its Rules of Procedure (Weber v Parliament, paragraph 10).
47 In this case, the main action calls into question the legality of the aforementioned Parliament Decision of 18 November 1999 on the amendments to the Rules of Procedure following the Interinstitutional Agreement of 25 May 1999.
48 As a preliminary point, it should be pointed out that the contested decision was adopted by the majority of the Parliament's members and must therefore be considered as an act of the Parliament itself (see, by analogy, Les Verts v Parliament, paragraph 20).
49 It must be considered whether the decision is capable of producing legal effects going beyond the internal organisation of the institution's work.
50 The contested Decision makes an amendment in the Rules of Procedure of the Parliament by inserting an Article 9a relating to the internal investigations conducted by the Office and also approves the Parliament Decision concerning the terms and conditions for internal investigations. Recital 5 of the latter decision and five of its eight articles make express reference to the Members as holding rights and having obligations, amongst them those of cooperating fully with the Office (Article 1) and supplying information (Article 2). The contested decision therefore produces legal effects in relation to the Members which do not fall within the scope of the Parliament's mandate or the political activities relating thereto.
51 Furthermore, it must be noted that the Court of Justice has 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, and that the rules laid down, particularly with regard to the organisation of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution (Case C-69/89 Nakajima v Council ECR I-2069, paragraph 49). To that effect, the ultimate aim of the contested decision is to ensure the smooth operation of the internal investigations which the Office may conduct within the Parliament.
52 However, even in the light of this case-law and although it is acknowledged that the contested decision seeks to ensure the smooth operation of the internal investigations conducted by the Office within the Parliament, it may conceivably be regarded as a measure producing legal effects going beyond the mere internal organisation of the Parliament's work. In fact, those investigations, which it has been possible to carry out in respect of the Members since the contested decision came into force, may compromise the immunity which each of them enjoys. Moreover, as Article 10(2) of Regulation 1073/1999 provides, information obtained during internal investigations into matters liable to result in criminal proceedings is forwarded by the Director of the Office to the judicial authorities of the Member State concerned which, in the case of a Member of the Parliament, may request that his immunity be waived.
53 Whether the contested Decision is of individual and direct concern to the applicants, in accordance with the conditions set out in the fourth paragraph of Article 230 EC, it need only be pointed out, firstly, that it is conceivable that the Protocol on Privileges and Immunities requires the Parliament to bear especially in mind that the Members are in a special position and that it is particularly important that they should carry out their activity wholly independently. It is important to point out, in that regard, that the dispute between the parties concerning the extent of parliamentary immunity is a matter related to the substance of the case and the President of the Court of First Instance cannot, therefore, take it into account when determining whether the present application is admissible. Moreover, it is also conceivable that the applicants form part of a closed circle of persons comprising all the Members currently sitting in the Parliament, on whom the contested Decision individually imposes the duties of cooperating with the Office and supplying information to the President of the Parliament or to the Office direct. Thus, in respect of the duty to supply information, the fourth paragraph of Article 2 of the Parliament Decision concerning the terms and conditions for internal investigations provides that [m]embers who acquire knowledge of facts as referred to in the first paragraph shall inform the President of Parliament or, if they consider it useful, the Office direct. Secondly, the duties of the Members to supply information and to cooperate arise directly from the contested Decision.
54 Consequently, there is a strong case for holding that the admissibility of the main action is not precluded. In this connection it is important to take into account the case-law of the Court of Justice, according to which the European Community is a community based on the rule of law inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty, and that the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions (judgments in Les Verts v Parliament, paragraph 23, and Weber v Parliament, paragraph 8; judgment of the Court of Justice of 22 October 1987 in Case 314/85 Foto-Frost ECR 4199, paragraph 16, and order of the Court of 13 July 1990 in Case C-2/88 Imm. Zwartveld and Others ECR I-3365, paragraph 16).
55 Accordingly, this application for interim relief must be declared admissible.
Prima facie case
Arguments of the parties
56 In order to establish a prima facie case for suspension of the operation of the contested decision, the applicants put forward five pleas, alleging, first, breach of essential procedural requirements, second, breach of the principle of the free exercise of the mandate, third, breach of parliamentary immunity, fourth, infringement of the parliamentary right of inquiry and, fifth, that the decision setting up the Office and Regulation No 1073/1999 are unlawful.
57 In the first place, the adoption of the contested Decision was flawed. In spite of the rejection of the request made by one political group that the report containing the proposed amendments to the Parliament's Rules of Procedure and the draft Decision attached thereto should be referred to the Parliamentary Committee on Constitutional Affairs, and the rejection by the Assembly in plenary session of the proposed amendments to the Rules of Procedure, the Leaders' Conference had decided to confirm the referral of the report to the Committee on Constitutional Affairs. Since Article 24 of the Parliament's Rules of Procedure does not confer this power on the Leaders' Conference, the referral was unlawful.
58 In the second place, the applicants point out that the Office's powers of inquiry and the rules of conduct imposed on the Members are contrary to the principle of the free exercise of the mandate, as safeguarded under Article 4(1) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage (OJ 1976 L 278, p. 5), as amended, and by Articles 2 and 9 of the Parliament's Rules of Procedure. This principle, which has constitutional status, guarantees the independence of Members and is designed to save them being subject, in the exercise of their activity, to the obstacles, constraints or pressures which might be exerted on them, in particular by the Executive.
59 They maintain that the extension of the Office's powers of inquiry to cover the performance by Members of their duties infringes that principle. In fact, the Office has immediate and unannounced access to any information held by the representatives and also to their premises, it can take a copy and obtain extracts from any document or the contents of any data medium held by the representatives and is authorised to seize such documents and information. Furthermore, the contested decision does not specify with adequate clarity the criteria for the exercise of the Office's powers to interfere. Contrary to the requirements of Article 4(1), (2) and (6) and of Article 6(4) of Regulation No 1073/1999, the contested decision gives no details of the terms, conditions and procedures with which the Office's employees have to comply when conducting internal investigations.
60 The fact that the Office's investigatory powers may be exercised simply on the ground of mere irregularities or anomalies, which could be suppressed by disciplinary measures, in their view infringes the principle of proportionality. Also disproportionate is the Office's right to exercise its powers of search and
seizure on the slightest suspicion of a financial offence or other irregularity committed in the Parliament. The Office is not even subject to the condition that a judicial decision has to order the search or seizure, and can, at any time, without Members being informed, enter the offices in which they work and take custody of documents.
61 They submit that the contested decision also violates the principle of the free exercise of the mandate in that it imposes rules of conduct on the Members, notably the duty to supply information to and cooperate with the Office. In particular, the duty of Members to supply information is wholly disproportionate. The national legal systems imposes a duty to provide information only in the case of criminal offences. The personnel of the Parliament and the Members are required to inform the Office of serious facts, even though these might not give rise to criminal proceedings. Such an objection is liable to encourage political adversaries to inform on each other, thereby prejudicing the general ability of the Parliament to function.
62 In the third place, the applicants point out that the contested Decision infringes the parliamentary immunity afforded to Members of the Parliament under Article 10 of the Protocol on the Privileges and Immunities of the European Communities of
8 April 1965, to which reference is made by Article 3(1) of the Parliament's Rules of Procedure and Article 4(2) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage, as amended. It is apparent from the spirit and purpose of the provision that the immunity thus conferred should give the Members of the Parliament general protection from criminal proceedings. In particular, subparagraph b) of the first paragraph of Article 10 constitutes the basis for an immunity for Members of the Parliament specific to Community law (see, to that effect, the Opinion delivered by Advocate General Darmon prior to the Judgment of the Court of Justice of 10 July 1986 in Case 149/85 Wybot ECR 2391, 2392, point 8).
63 Moreover, to allow the Office to take steps to investigate failure of a Member to fulfil his obligations which could not give rise to criminal proceedings goes far beyond what is permitted to the national authorities responsible for suppressing breaches of criminal law in their own parliamentary assemblies. Nor are the Office's powers of access and seizure made conditional on a judicial order, contrary to what is required in many Member States in relation to investigations conducted by the prosecuting authority or the police. The issuing of a judicial decision ordering searches and seizures by the authorities responsible for preventing crime is still a general principle in every State governed by the rule of law (as regards the investigations conducted by the Commission in the competition sphere, see the judgment of the Court of Justice of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v Commission ECR 2859). Finally, under Article 5 of the contested decision, the Office has a wide margin of discretion to conduct secret investigations concerning Members of the Parliament, which compromises their immunity.
64 In the fourth place, according to the applicants, the Office's powers and the corresponding rules of conduct imposed on Members infringe the parliamentary right of inquiry provided for in Article 193 EC. Moreover, the powers are irreconcilable with the rules of conduct imposed on those Members sitting on temporary committees of inquiry, inasmuch as the latter are required not to allow access to confidential information. Furthermore, the Office can, in principle, gain unannounced and immediate access to the relevant documents of the temporary committee of inquiry and seize them.
65 In the fifth place, the applicants plead that the decision establishing the Office and Regulation No 1073/1999 are unlawful.
66 The Decision establishing the Office is based on a misconceived legal basis. In fact, Paragraph 2 of Article 162 of the EC Treaty (now Article 218 EC) provides that the Commission is to adopt its Rules of Procedure so as to ensure that both it and its departments operate in accordance with the provisions of the Treaty. However, the establishment of the Office goes beyond creating rules for the internal operation of the Commission. It is apparent from Article 3 of the Decision establishing the Office and Article 12(3) of Regulation No 1073/1999 that the Office is wholly independent. The impossibility of monitoring the body which the Commission has established pursuant to its own internal organisational power is contrary to the case-law which states that a subordinate body cannot be empowered to exercise a wholly independent administrative activity which is not open to review (Case 25/70 Köster ECR 1161, paragraph 9). Furthermore, the Office's legal status, which is determined by the the Decision which established it, and, in particular, its powers of inquiry in relation to the other Community institutions and their members, are unconnected with the Commission's internal organisation and the progress of its work.
67 In establishing the Office, the Commission has unlawfully delegated powers which it does not itself possess. (Cases 9/56 and 10/56 Meroni v High Authority ECR 9 and ECR 51 respectively). It does not have, in relation to the Parliament and its Members, any jurisdiction to carry out internal administrative investigations within the meaning of the second subparagraph of Article 2(1) of the Decision establishing the Office.
68 Furthermore, the Commission has improperly delegated discretionary powers. In the organising and conducting of internal administrative investigations, the Office and its Director have a degree of latitude which is not reviewable as confirmed by Articles 4, 5 and 6 of Regulation No 1073/1999.
69 With regard to Regulation No 1073/1999, which has as its legal basis Article 280 EC, the applicants point out that this provision in the Treaty allows for the adoption of the measures needed to combat fraud in order to offer effective and uniform protection in the Member States, but they do not believe that it seeks to combat fraud within the Community.
70 Furthermore, in their view, the provision allows the adoption only of measures intended to prevent and combat criminal acts. Regulation No 1073/1999 does not seek only to prevent and combat criminal acts but is also concerned with serious facts such as to constitute a dereliction of the obligations of officials and other servants of the Communities liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of the Community institutions (Article 1(3)).
71 The Parliament disputes that the pleas put forward by the applicants are well-founded.
72 With regard to the plea alleging breach of essential procedural requirements, it considers that the rejection of one political group's request for referral to the Committee on Constitutional Affairs does not conflict with the decision of the Leaders' conference, taken on the same day, to refer the matter to the Committee, since the rejection of the request for referral occurred before the final vote on the amendment to the Parliament's Rules of Procedure. Accordingly, the Leaders' conference thought that it was authorised to refer the matter, even though no such express provision is made in the Rules of Procedure, in order that the procedure to adopt the contested Decision could advance.
73 In any event, the Parliament maintains that a breach of its Rules of Procedure does not lead to annulment of the contested Decision since the provisions relating to referral to the relevant committee are not designed to safeguard the interests and rights of the Members.
74 The contested Decision does not violate the free exercise of the mandate, or infringe parliamentary immunity or the parliamentary right of inquiry.
75 With regard to the first two of those points, the Parliament points out, first of all, that investigation of proceedings in respect of breach of obligations within the institution are a matter for the institution itself and a Member, in the exercise of his mandate, does not have unlimited immunity. That immunity, established by Article 10 of the Protocol of Privileges and Immunities, is an institutional right of the Parliament designed to guarantee its ability to function (Judgment in Wybot, cited above) and may be waived at the request of the competent authorities.
76 In the present case, the Parliament decision concerning the terms and conditions for internal investigations (Recital 5 and Article 4) and Regulation No 1073/1999 (the second subparagraph of Article 4(1) and Article 4 (6)) protected Members against any infringement of their parliamentary rights.
77 Contrary to what the applicants believe, the Office does not have powers reserved for the prosecuting authorities or the police. It cannot seize documents from Members or compel them to give evidence. Nor is it able to monitor bank movements or carry out phone-tapping operations. The Office's sole task, as is apparent from Recitals 3 and 4 of the Parliament Decision concerning the terms and conditions for internal investigations, is to conduct administrative investigations for the purpose of inquiring into matters detrimental to the Community's financial interests. Those preliminary investigations can also be directed against Members, for example by means of inquiries made at the Parliament's Secretariat. In specific cases, Members can invoke their immunity or their right to refuse to testify if the Office intends to conduct investigations directly concerning them. There are no coercive measures available to the Office for the purpose of carrying out investigations or seizures against Members. If the Office had suspicions about Members, it is required to call for the competent national judicial authorities to carry out an actual investigation using their resources and in compliance with the procedures for waiving immunity.
78 The applicants' argument that there was a risk that Members would inform on each other is unfounded. The information gathered by the Office must be treated with confidentiality and the Office is required to inform the persons concerned. Furthermore, the fourth paragraph of Article 2 of the Parliament Decision concerning the terms and conditions for internal investigations gives specific
protection to the Members by providing that officials who acquire knowledge of objectionable or unlawful acts on the part of Members are to inform the President of the Parliament and do not have the right to refer the matter directly to the Office.
79 The claim that the contested decision infringes the principle of proportionality on the ground that the Office does not intervene only in cases of serious breach of obligation liable to lead to criminal proceedings must also be rejected. Article 280(1) EC require the Community to combat fraud and any other illegal activity detrimental to the Community's financial interests, which encompasses any kind of adverse effect on its interests.
80 The Parliament considers that there has been no infringement of the parliamentary right of inquiry, in particular because the Office's investigatory powers do not contravene the provisions of Article 193 EC.
81 The requests for a declaration that the various measures concerned in this case are illegal should, in its submission, be refused. In the first place, the contested decision is founded on Article 199 EC, not on the decision establishing the Office or on Regulation No 1073/1999.
82 In any event, the validity of the Decision establishing the Office cannot be challenged. Internal investigations are conducted only in accordance with the provisions established in the framework of the Treaties, and subject to the limits and conditions laid down therein (the third subparagraph of Article 2(1) of the Decision establishing the Office). Article 4 of Regulation no 1073/1999 delegates those powers to the Office. Decision establishing the Office took effect, in accordance with Article 7 thereof, only when Regulation No 1073/1999 came into force. That regulation and the approval of the carrying out of other investigations by other bodies and institutions form the basis of the Office's power.
83 Furthermore, it is not unknown to Community law for tasks of Community institutions to be performed by independent or autonomous bodies. The Office's structural organisation resembles that of the Office for Official Publications, which is also part of the Commission but which carries out some of the tasks of the institutions independently on the basis of the joint decision of the institutions (OJ 1969 L 13, p. 19). Since the Office's powers have been conferred on it by several institutions jointly, it is reasonable for it to be monitored by a supervisory committee whose members are appointed by mutual agreement between the institutions concerned.
84 Wit regard to the alleged illegality of Regulation No 1073/1999, the Parliament considers that the scope of Article 280(1) EC includes acts which are likely to lead only to disciplinary measures. Moreover, the question whether the adverse effect on the Community's financial interests is likely to lead to criminal proceedings can only arise during investigations. Finally, the war against fraud and the other illegal activities should be waged not only in the Member States but also within the Community's institutions and bodies.
Findings of the President of the Court
85 In the pleas put forward to show that their action in the main proceedings is well-founded, the applicants maintain that the contested decision, in so far as it enables the Office to conduct internal investigations concerning Members of the Parliament, infringes the immunity afforded to them by the Protocol on Privileges and Immunities. In order to make a prima facie evaluation of this plea, which relates essentially to the substantive scope of the immunity enjoyed by the Members of the Parliament, it is necessary first to determine the scope of the provisions which confer the immunity and then to decide whether the internal investigations conducted by the Office within the Parliament and in respect of its Members are likely to infringe that immunity.
86 Firstly, it should be borne in mind that Chapter III of the Protocol on Privileges and Immunities defines the privileges and immunities of the European Parliament. Article 9, which is reproduced in Paragraph 2 above, states the principle that Members are exempt from liability, in that they are not to 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.
87 The wording of Article 10 of the Protocol, which is also cited above (Paragraph 3), shows that the immunity conferred on Members by the provision affords them protection against measures taken by the authorities of the Member States in connection with acts carried out in the territory of their own State or that of any other Member State. The definition of immunity is determined either by renvoi to the various national legal systems [Article 10(a)] or by exemption from detention or legal proceedings [Article 10(b)]. The provision does not specifically afford Members of the Parliament immunity against the interventions of Community institutions or bodies, in this case the Office, during the sessions of the Assembly.
88 However, to determine the scope of a provision of Community law, we must take account not only of the words in which it is couched, but also of its context and aims.
89 With regard to the context of this provision, the first paragraph of Article 18 of the Protocol states that privileges, immunities and facilities shall be accorded to officials and other servants of the Communities solely in the interests of the Communities. Furthermore, it has already been held that the privileges and immunities have a purely functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the Communities (order in Zwartveld and Others, paragraph 19; judgments in Case T-80/91 Campogrande v Commission [1992] ECR II-2459, paragraph 42, and in Case T497/93 Hogan v Court of Justice [1995] ECR II-703, paragraph 48). The provisions of the Protocol which relate to the Members of the Parliament must therefore be construed as intended to safeguard the independence of the Members in carrying out their duties and to ensure that the Parliament has freedom of operation (see the Judgment of the Court of Justice in Case 208/80 Lord Bruce of Donington [1982] ECR 2205, paragraph 14).
90 The objective of Article 10 of the Protocol is to ensure the Members' independence by ensuring that pressure, in the form of threats of arrest or legal proceedings, cannot be brought to bear on them during the sessions of the Parliament. Its aim is not, therefore, to allow Members to escape the consequences of their objectionable acts but to defer their arrest or the legal proceedings while the Parliament is in session.
91 Finally, in order to interpret a provision of Community law, we also have to take into consideration the stage reached in the development of that law at the date on which the provision in question is to be applied (see, Opinion of the Court of Justice of 4 October 1979 Opinion 1/78 ECR 2871, point 44, and Judgment in Case C-35/90 Commission v Spain ECR I-5073, paragraph 9). In this regard it should be noted that the date of the Protocol on Privileges and Immunities is 8 April 1965, when the fight against fraud and any other illegal activity detrimental to the Community's financial interests within the Community institutions was not covered by any specific provisions.
92 It follows from the above that subparagraph (b) of the first paragraph of Article 10 may conceivably be construed as meaning that the immunity afforded to Members of the Parliament also protects them jointly, while the Parliament is in session, against certain actions by Community institutions or organs, in this case the Office, since those actions might be preliminary to legal proceedings before a national court and might hinder the internal working of the Parliament.
93 Secondly, it must be determined whether the contested decision, in that it approves the Parliament Decision concerning the terms and conditions for internal investigations, prima facie contains provisions which ensure that the Members' immunity remains unaffected when they are the subject of those investigations.
94 In that regard, it is important to point out that Recital 5 of the Parliament Decision concerning the terms and conditions for internal investigations states that the investigations should be conducted in full compliance with the relevant provisions
of the Treaties establishing the European Communities, in particular the Protocol on Privileges and Immunities, of the texts implementing them, and the Staff Regulations. Furthermore, Article 4 provides that [r]ules governing Members' parliamentary immunity and the right to refuse to testify shall remain unchanged.
95 However, as the applicants maintain, the contested decision does not contain any specific guarantee with regard to respect for the rights of Members when the Office exercises the powers of investigation it holds under Article 4 of Regulation No 1073/1999. In particular, it is not apparent from the contested decision that the Office's employees would be prevented from gaining access to Members' offices within the Parliament, in their absence or without their consent, in order to obtain certain information. In this connection, more particularly, it was revealed during the hearing that the argument put forward by the Parliament in its pleadings that the Office could not seize documents from Members' offices was not confirmed by the Director of the Office, who was invited to appear before the President of the Court of First Instance and who invoked Article 4(2), first indent, of Regulation No 1073/1999. Furthermore, the applicants' arguments seems to be reinforced by Article 5 of the Parliament Decision concerning the terms and conditions for internal investigations (cited in point 21 above): the first paragraph makes it clear that a Member will not be informed that he may be personally implicated if this would be harmful to the investigation, and the second paragraph states that the obligation to invite the Member to give his views may be deferred in agreement with the President.
96 In those circumstances, it is possible that internal investigations conducted by the Office against Members within the Parliament may infringe their immunity.
97 Therefore, the plea alleging infringement of immunity is well-founded, and consequently the condition relating to the fumus boni juris is satisfied.
Urgency and balance of interests
Arguments of the parties
98 The appellants claim that the suspension of the operation of the contested decision is necessary in order that they may avoid suffering serious and irreparable damage (Order in Martínez and de Gaulle v Parliament, paragraph 79). Indeed, since the entry into force of the contested decision, the Office's investigatory powers, as specified in Regulation No 1073/1999, and the rules of conduct imposed on them by the contested decision constituted a permanent threat to the Members' position, particularly with regard to the free exercise of their mandate and to their immunity.
99 Furthermore, annulment of the contested Decision could not repair the damage suffered. In this respect, they point out that the Office's investigatory powers and the rules of conduct imposed on the Members already hinder the smooth running of the Parliament, adversely affecting the exercise of their duties, especially in relation to the trust they need to have in each other and in the staff of the Parliament and their advisers.
100 The cessation of the adverse effect on the Member' position, on the exercise of their mandate and on the smooth running of the Parliament should provisionally outweigh the objective of protecting the Community's financial interests. The consequences for the fight against fraud at Community level if interim measures, particularly the suspension of operation, were adopted, would be less significant than those for the applicants if the measures were not adopted. Finally, the Parliament has its own monitoring devices (parliamentary inquiry and scrutiny of the majority by the opposition), for uncovering irregularities.
101 The Parliament considers that the condition relating to urgency is not satisfied. The applicants have not been exposed to immediate damage which would be brought to an end if suspension were granted. They could therefore wait until the Office actually initiated an investigation and bring an action against the decision to intervene within the Parliament, combining it, if appropriate, with an application for suspension of operation. In any event, the Office's powers of investigation must be exercised in compliance with the Treaties and, in particular, with the Protocol on Privileges and Immunities. With regard to the Members, the Office can carry out only preliminary inquiries and cannot compel the Members to supply information; if a Member were presumed to have failed to fulfil his obligations, the Office is required to call on the competent national judicial authorities for the necessary investigations to be carried out.
102 Furthermore, when the Members' interest in the protection of their position was weighed against the Parliament's interest in the lawful, complete and uniform protection of the Community's financial interests, the scales are tipped in favour of the Parliament.
Findings of the President of the Court
103 It is apparent from settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable harm to the party applying for those measures. It is for that party to prove that it cannot wait for the outcome of the main action without suffering harm of that nature (Order of the President of the Court of First Instance (Second Chamber) of 16 July 1999 in Case T-143/99 R Hortiplant v Commission, not yet published in the ECR, paragraph 18).
104 In the present case, the serious and irreparable damage invoked by the applicants has several component parts.
105 The first part of the alleged damage is the risk that the Office's employees may conduct an internal investigation of one of the applicants even though the specific guarantees concerning the extent of the Members' rights are not satisfied. In this connection, the applicants stated during the proceedings that their rights would be adequately protected until a final judgment was delivered in the main proceedings if the Parliament could give an undertaking that, if the Office intended taking measures against Members, it would immediately inform the Members concerned, refuse the Office access to Members' offices in their absence and ensure that the Office could not gain access to Members' offices without their consent.
106 Whether the risk identified by the applicants materialises depends on the occurrence of a number of factors, in particular the Office's decision to initiate an internal investigation of one of them and the seizure of information from his office in his absence or without his prior consent.
107 However, if the Office's agents were to initiate an internal investigation concerning one of the applicants and assume custody of documents or information in his office, in accordance with Article 4(2) of Regulation No 1073/1999, in his absence or without having previously obtained his consent, as Article 5 of the Parliament Decision concerning the terms and conditions for internal investigations, apparently permits in certain circumstances the risk that his immunity as a Member of the Parliament would be infringed seems foreseeable with a sufficient degree of probability (Order of the Court of 29 June 1993 in Case C- 280/93 R Germany v Council ECR I-3667, paragraphs 32 and 34). Clearly, the Parliament has not interpreted the contested Decision as requiring the Parliament, where the Office intends taking action against Members, to inform the members concerned immediately, to refuse the Office access to Members3 offices in their absence and to ensure that the Office cannot gain access to Members' offices without their consent. Therefore the exercise of the powers conferred on the Office carries the risk that the immunity enjoyed by every Member of the Parliament will be infringed. The materialisation of that risk cannot subsequently be repaired by annulment of the contested Decision.
108 The second part of the alleged damage is connected with the rules of conduct which the applicants have had to adopt since the contested decision came into force. On this point, it need only be stated that the applicants' duty to cooperate and supply information, as established in the Parliament Decision concerning the conditions and procedure for internal investigations, risks infringing their parliamentary immunity.
109 Thus, in the absence of any contrary provision in the contested decision, the duty to cooperate fully with the Office must be performed by Members when its employees conduct investigations within the Parliament. Performance of the duty to cooperate fully with the Office might therefore mean that the Member must authorise access to his office and allow the Office to assume custody of documents and information in order to ensure there is no danger of their disappearing, as it is permitted to do under Article 4(2) of Regulation no 1073/1999.
110 As regards the duty to inform the President of the Parliament or, if Members consider it useful, the Office direct, the applicants' fulfilment of that duty is liable to constitute a preliminary to an internal investigation conducted by the Office in respect of one of them. Therefore the exercise of the powers conferred on the Office entails the risk that parliamentary immunity will be infringed (See point 107 above).
111 Accordingly, the condition relating to urgency is satisfied.
112 At this stage of the findings, it is again the task of the President of the Court to weigh the applicants' interest in obtaining the interim measures requested against the interest of the Parliament, and the institutions supporting it, in maintaining the contested decision. As part of that evaluation, he must decide whether the possible annulment of the contested decision by the court adjudicating on the substance would allow the situation which would have been caused by its immediate operation to be reversed and, conversely, whether suspension of the operation of the measure would prevent it from taking full effect if the main action were dismissed (orders of the President of the Court of Justice of 11 May 1989 in Joined Cases 76/89 R, 77/89 R and 91/89 R RTE and Others v Commission ECR 1141, paragraph 15, and of the President of the Court of First Instance of 21 March 1997 in Case T-41/97 R Antillean Rice Mills v Council ECR II-447, paragraph 42).
113 In that regard, it must be stated that it is unarguably in the Community's interest to prevent and to combat fraud and any other illegal activity detrimental to the financial interests of the Community, as provided under Article 280 EC.
114 However, it is equally in the Community's interest that the Members of the Parliament should be able to carry out their activities with the assurance that their independence will not be compromised.
115 In order to ensure that the applicants' interests are protected in the interim while at the same time preserving as best possible the interests of the Community, firstly, operation of Articles 1 and 2 of the Parliament's Decision concerning the conditions and procedure for internal investigations must be suspended in so far as those provisions require the applicants to cooperate with the Office and to provide information to the President of the Parliament or to the Office and, secondly, it must be ordered that the Parliament is required to inform the applicants without delay of any measure imminently to be taken against them by the Office and to refrain from granting agents of the Office access to the offices of the applicant only with the consent of the latter, pending delivery by the Court of First Instance of final judgment in the main proceedings.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1) Operation of Articles 1 and 2 of the Parliament's Decision concerning the conditions and procedure for internal investigations is suspended in so far as those articles require the applicants to cooperate with the European Anti-Fraud Office and to provide information to the President of the Parliament or to the Anti-Fraud Office.
2) The Parliament is to inform the applicants without delay of any measure imminently to be taken against them by the Anti-Fraud Office and to refrain from granting agents of the Anti-Fraud Office access to the applicants' offices unless the latter consent thereto, pending delivery by the Court of First Instance of final judgment in the main proceedings.
3) Costs are reserved.