ORDER OF THE GENERAL COURT (Eighth Chamber)
12 June 2019(*)
(Actions for failure to act and for annulment — Agricultural policy — Regulation (EC) No 1/2005 — Animal welfare — Request by Members of the European Parliament to set up an inquiry committee — Defined position of the Parliament — Act not open to challenge — Informative act — Inadmissibility)
In Case T‑702/18,
Pascal Durand, residing in Paris (France), and the other applicants whose names are listed in the annex, (1) represented by O. Brouwer and E. Raedts, lawyers,
applicants,
v
European Parliament, represented by N. Lorenz and S. Alonso de León, acting as Agents,
defendant,
ACTION, principally, pursuant to Article 265 TFEU seeking a declaration that the Parliament, by decision taken by the Conference of Presidents of the Parliament, unlawfully failed to act on a request of 17 July 2018 seeking the setting up of an
inquiry committee and, in the alternative, seeking the annulment, pursuant to Article 263 TFEU, of the decision contained in the letter of the President of the Parliament of 21 September 2018,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins (Rapporteur), President, R. Barents and J. Passer, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        On 7 February 2018, 223 Members of the European Parliament including the applicants, Mr Pascal Durand and the other persons whose names are listed in the annex, addressed to the Conference of Presidents of the Parliament a request seeking the setting up of an
inquiry committee, pursuant to Article 226 TFEU and Article 198 of the Parliament’s Rules of Procedure to investigate the alleged contraventions and maladministration in the application of European Union law in relation to the welfare of animals during transport within and outside the European Union, in breach of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1 and corrigendum OJ 2017 L 226, p. 31) (‘the request of 7 February 2018’).
2        At the meeting of the Conference of Presidents of the Parliament of 15 March 2018, the request of 7 February 2018
and a proposal to confer responsibility for preparing an implementation report on the Committee on Agriculture and Rural Development of the Parliament (‘the AGRI Committee’) were debated. According to the minutes of that meeting, it was agreed by the Conference of Presidents of the Parliament, by a majority, that the second proposal be put to a vote first, instead of the first proposal. Next, it was decided, by a majority of votes, to entrust the AGRI Committee with preparing such a report instead of setting up an inquiry committee.
3        According to the Parliament, Ms Keller, who participated in the meeting of 15 March 2018 in her capacity as the representative of the political group to which the applicants belong, informed the latter of the decision adopted on that occasion by the Conference of Presidents.
4        By letter of 17 July 2018 addressed to the President of the Parliament, one of the applicants, Mr Durand, asked the Conference of Presidents of the Parliament, referring explicitly to Article 265 TFEU, to submit the request of 7 February 2018 to the plenary assembly of the Parliament. According to the applicants, that letter was also sent in the name of the 222 other Members of the Parliament who had signed the request of 7 February 2018, including the applicants.
5        By letter of 21 September 2018, the President of the Parliament replied to the letter of 17 July 2018 citing the minutes of the Conference of Presidents of the Parliament of 15 March 2018 and indicating that two votes were held at that conference. Thus, he recalled that it had been agreed by the Conference of Presidents, by a majority, to put to a vote first the proposal to prepare an implementation report instead of the proposal to set up an inquiry committee and that, next, it had been decided by the same conference, by a majority of votes, to entrust the AGRI Committee with drafting such a report. The relevant part of the minutes of the Conference of Presidents was attached as an annex.
Procedure and forms of order sought
6        By application lodged at the Registry of the General Court on 26 November 2018, the applicants brought the present action.
7        By separate document lodged at the Court Registry on 8 February 2019, the Parliament raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
8        The applicants submitted observations on the plea of inadmissibility, which they lodged at the Court Registry on 22 March 2019.
9        In the application, the applicants claim that the Court should:
–        principally, declare that the Parliament unlawfully failed to act on the request of 17 July 2018;
–        in the alternative, annul the decision contained in the letter of the President of the Parliament of 21 September 2018;
–        order the Parliament to pay the costs.
10      In the plea of inadmissibility the Parliament contends that the Court should:
–        reject the actions for failure to act and for annulment as inadmissible;
–        order the applicants to pay the costs.
11      In their observations on the plea of inadmissibility, the applicants claim that the Court should,
principally, reject the plea of inadmissibility raised by the Parliament or, in the alternative, reserve its decision until it rules on the substance.
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 without going to the substance of the case.
13      In the present case, as the Parliament has applied for a decision on the inadmissibility of the action brought by the applicants, the Court, which finds that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
14      In support of its plea of inadmissibility, the Parliament relies on the following objections.
15      As regards the claim of failure to act, the Parliament submits, first, that the letter of 17 July 2018 to the President of the Parliament does not constitute a call to act within the meaning of Article 265 TFEU, but must be regarded as a ‘procedural device’ seeking to circumvent the expiry of the time limit for lodging an action for annulment within the meaning of Article 263 TFEU. Secondly, there was no failure to act within the meaning of Article 265 TFEU. Thirdly, the time limit for lodging an action for failure to act had expired and, fourthly, that action was inadmissible in view of the Parliament’s discretionary power and the absence of a requirement for it to act.
16      As regards the request for annulment, the Parliament observes that, since the reply by the President of the Parliament of 21 September 2018 was of a purely informative character, it does not produce the legal effects that an action for annulment requires.
17      The applicants contest those pleas of inadmissibility.
Admissibility of the action for failure to act
18      By their first head of claim, the applicants ask the Court to declare that the Parliament unlawfully failed
to act on the request contained in their letter of 17 July 2018. They submit, in essence, that the Parliament wrongly failed to define a position on their proposal to submit the request of 7 February 2018 to the plenary of the Parliament.
19      The Parliament contends, in essence, that the action for failure to act is based on the incorrect premiss that the Conference of Presidents of the Parliament failed to act on the request of 7 February 2018. According to the Parliament, the Conference of Presidents of the Parliament decided, on 15 March 2018, not to submit that request to the plenary of the Parliament. Therefore, the action for failure to act is inadmissible because there was no failure to act within the meaning of Article 265 TFEU.
20      It must be recalled, first of all, that, under the third paragraph of Article 265 TFEU, natural and legal persons may seek a declaration from the Court that an institution, body, office or agency of the European Union has failed to adopt, in breach of the Treaty, an act other than a recommendation or an opinion. Under the second paragraph of Article 265 TFEU, that action is admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.
21      Next, it must be recalled that, according to the case-law, the conditions laid down in Article 265 TFEU for the admissibility of an action for failure to act are not met where the defendant institution called upon to act has defined its position on that request before proceedings are brought. The fact that the position adopted does not satisfy the person making the request is immaterial. Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned (see judgment of 7 October 2009, Vischim v Commission, T‑420/05, EU:T:2009:391, paragraphs 253 and 255 and the case-law cited).
22      In the present case, it must be observed, first of all, that it is clear from the minutes of the Conference of Presidents of the Parliament of 15 March 2018 that two votes were held. First, after an exchange of views regarding, inter alia and in substance, the unprecedented heavy legislative workload of the Parliament’s committees and the priority to be given to that work in the remainder of the parliamentary term, the fact that the Parliament had already set up three temporary committees working in parallel on other matters and, finally, the proposal to respond to the applicants’ request by means of a report, it was agreed by the Conference of Presidents of the Parliament, by a majority, to submit to a vote, first of all, the proposal to draft an implementation report.
Secondly, it was decided by the same conference, by a majority vote, to confer responsibility for drafting the report on the AGRI Committee.
Therefore, the Conference of Presidents of the Parliament also took the decision, on 15 March 2018, not to grant the request of 7 February 2018. Although the Conference of Presidents of the Parliament did not explicitly take a decision not to submit the request of 7 February 2018 to the plenary of the Parliament, it is clear from the minutes that the non-submission of the proposal to the plenary of the Parliament was, according to it, the inevitable and intentional consequence of the adoption of the two decisions taken on 15 March 2018.
23      The applicants acknowledge that, at that time, the Conference of Presidents of the Parliament had taken a decision on the request of 7 February 2018, since they assert, in the application, that ‘the Parliament infringed Article 226 TFEU and Article 198(4) of the [Rules of Procedure] because the [Conference of Presidents of the Parliament] has failed to submit a proposal for a Committee of Inquiry for decision to the Plenary of the Parliament’ and that ‘it does not have the power to take a decision not to do so’.
24      In that regard, it must be held that the decision of the Conference of Presidents of the Parliament of 15 March 2018 constitutes a challengeable act for the purposes of Article 263 TFEU since it establishes its final defined position on the request of 7 February 2018 and was intended to produce legal effects. Hence, as the Parliament has submitted, provided that the other conditions for the admissibility of an action for annulment based on that article are met, the arguments on the substance, which call into question the competence of the Conference of Presidents of the Parliament to decide not to submit the request of 7 February 2018 to the plenary of the Parliament should have been raised in the context of such an action. However, for the purpose of determining the admissibility of the action for failure to act, the applicants’ arguments on the substance are ineffective.
25      Next, it must be held that applicants’ argument that the decision taken at the Conference of Presidents of the Parliament on 15 March 2018
was not adequately communicated cannot succeed.
26      In that regard, it must be observed that, for the purpose of this action, only the communication to the applicants is relevant. Those applicants all belong to the same political group as Ms Keller, who participated in the conference of 15 March 2018 in her capacity as the representative for that group. Therefore, the applicants’ assertion that some Members of Parliament who had signed the request of 7 February 2018 were not members of the political groups represented at the Conference of Presidents of the Parliament is irrelevant.
27      In any event, it must be recalled, first, that, in accordance with protocol, the minutes of Conferences of Presidents of the Parliament are translated into all the official languages of the European Union and circulated to all the Members. Accordingly, it is significant that the applicants do not submit that they did not have access to the minutes of the Conference of Presidents of the Parliament of 15 March 2018. Second, contrary to the submission made by the applicants, their letter of 17 July 2018 does not contain any element indicating that doubts remained as to the decision of the Conference of Presidents of the Parliament of 15 March 2018 regarding the request of 7 February 2018. It is also clear from the letter of 17 July 2018 that the applicants had access to the minutes of that conference.
28      Next, it must be observed that the applicants’ arguments regarding the allegedly preparatory nature of the decision of the Conference of Presidents of the Parliament of 15 March 2018 are ineffective since, in certain circumstances, an act which is not challengeable by an action for annulment may constitute a definition of position terminating the failure to act if it is the prerequisite for the next step in a procedure which has, in principle, to culminate in a legal act which itself will be challengeable by an action for annulment (see
judgment of 17 February 1998, Pharos v Commission, T‑105/96, EU:T:1998:35, paragraph 43 and the case-law cited).
29      Consequently, it must be held that the action for failure to act is based on the incorrect premiss that the Conference of Presidents of the Parliament failed to act on the request of 7 February 2018. The Parliament effectively defined its position on that request at the Conference of Presidents of the Parliament of 15 March 2018. That finding cannot be called into question by the fact that, by letter of 17 July 2018, Mr Durand and 222 other Members of Parliament invited the Conference of Presidents of the Parliament, with express reference to Article 265 TFEU, to submit the request of 7 February 2018 to the plenary of the Parliament.
30      It follows that the conditions laid down for admissibility of the action for failure to act are not met. That action must therefore be dismissed as inadmissible, without it being necessary to rule on the other pleas of inadmissibility raised by the Parliament.
Admissibility of the application for annulment
31      By their second head of claim, the applicants apply to the Court, in the alternative, to annul the decision contained in the letter of the President of the Parliament of 21 September 2018.
32      The Parliament contests the admissibility of that application on the basis that, since the letter was purely informative, it could not produce the legal effects that an action for annulment requires.
33      In the first place, it should be recalled that, according to the case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (see judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54 and the case-law cited).
34      It also follows from the case-law concerning the admissibility of actions for annulment that it is necessary to look to the actual substance of the acts challenged in order to classify them (see order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 58 and the case-law cited). Next, it has been held that a measure of a purely informative character can neither affect the interests of the addressee nor change his legal position compared with the situation prior to receipt of that measure (see judgment of 11 December 2012, Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 30 and the case-law cited).
35      It must be held that the letter of the President of the Parliament of 21 September 2018 is of a purely informative character. It serves only to remind the applicants that, on 15 March 2018, the Conference of Presidents of the Parliament had decided, by a majority, to confer responsibility for drafting an implementation report on the AGRI Committee instead of setting up an inquiry committee in accordance with the request of 7 February 2018. That is unequivocally clear from the text of the letter itself and from the fact that the relevant part of the minutes of the meeting was attached. Therefore, that letter does not change the applicants’ legal situation in relation to the position prior to its receipt.
36      Consequently, the conditions laid down for admissibility of an action for annulment are not met.
37      That conclusion is not called into question by the applicants’ submission that the reply by the President of the Parliament of 21 September 2018 could not be informative since the Conference of Presidents of the Parliament had not taken any decision, whether positive or negative, on their request to submit to the plenary of the Parliament a proposal on the setting up of an inquiry committee. As has already been held in paragraph 22 above, the Conference of Presidents of the Parliament decided, at the meeting of 15 March 2018, that the non-submission of a proposal to the plenary assembly of the Parliament was, according to it, the inevitable and intentional consequence of the adoption of the two decisions taken on 15 March 2018.
38      It follows that the application for annulment must also be rejected as inadmissible and, therefore, the action in its entirety must be dismissed.
Costs
39      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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Mr Pascal Durand and the other applicants whose names are listed in the annex shall pay the costs.
Luxembourg,
12 June 2019.
E. Coulon
A.M. Collins
Registrar
President
*      Language of the case: English.
1      The list of the other applicants is annexed only to the version sent to the parties.