62000CC0470_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The European Parliament has brought an appeal against the judgment delivered by the Court of First Instance of the European Communities (Fourth Chamber) in Ripa di Meana and Others
v Parliament (2) (‘the contested judgment’), claiming that it should be set aside in so far as concerns Cases T‑83/99 and T-84/99.
I – Legal background
2. In the absence of a uniform Community pension scheme for all the Members of the Parliament, the Bureau of the European Parliament adopted, on 24 and 25 May 1982, a provisional retirement pension scheme (‘the provisional pension scheme’) for Members from countries whose national authorities do not provide a pension scheme for Members of the Parliament. That scheme, which also applies where the level and/or the conditions of the pension provided for are not the same as those applicable to members of the parliament of the State for which the Member of the Parliament concerned was elected, is mentioned in Annex III to the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament (‘Annex III’).
3. The version of Annex III in force from 25 May 1982 provided inter alia as follows:
‘Article 1
1. All Members of the European Parliament shall be entitled to a retirement pension.
2. Pending the establishment of a definitive Community pension scheme for all Members of the European Parliament, a provisional pension may, at the request of the Member concerned, be paid from the budget of the European Communities, Parliament section.
Article 2
1. The level and conditions of such pension shall be identical to those applicable to the pension for Members of the lower house of the parliament of the State for which the Member of the European Parliament was elected.
2. A Member benefiting under Article 1(2) shall pay to the Community budget a sum so calculated that he or she pays the same overall contribution as that payable by a Member of his or her parliament under national provisions.
Article 3
For the calculation of the amount of the pension, any period of service in the parliament of a Member State may be aggregated with the period of service in the European Parliament. Any period during which a Member has a dual mandate shall count only as a single period.’
4. The provisional pension scheme was amended by a decision of the Bureau of the Parliament of 13 September 1995 (‘the 1995 decision’) seeking essentially to make both membership of that scheme and payment of the pension subject to the submission, within a certain period, of an application to that effect.
5. Thus, Article 3 of Annex III, as amended by the 1995 decision, henceforth provides that:
‘1. Applications to join this provisional pension scheme must be made within six months of the start of the Member’s term of office.
Once that time-limit has expired, membership of the pension scheme shall take effect from the first day of the month in which the application was received.
2. Applications for payment of the pension must be made within six months of the commencement of entitlement.
Once that time-limit has expired, the pension shall be payable from the first day of the month in which the application was received.’
6. Article 4 of Annex III, as amended by the 1995 decision, reproduces in full the terms of former Article 3 of that Annex.
7. Article 5 of Annex III now provides that:
‘These rules shall enter into force on the date of their adoption by the Bureau [that is to say on 13 September 1995].
However, Members who have already started their term of office on the date on which these rules are adopted shall have six months from the entry into force of these rules to submit their applications for membership of this scheme.’
8. The amendment to Annex III, inserted by the 1995 decision, was brought to the notice of all the Members of the European Parliament by communication of the European Parliament No 25/95 of 28 September 1995.
9. Article 27(1) and (2) of the Rules Governing the Payment of Allowances and Expenses to Members of the Parliament provides that:
‘1. On commencement of their term of office, Members shall receive from the Secretary-General a copy of these Rules and shall acknowledge receipt thereof in writing.
2. A Member who considers that those rules have been incorrectly applied may write to the Secretary-General. If no agreement is reached between the Member and the Secretary-General, the matter is to be referred to the College of Quaestors, which shall take a decision after consulting the Secretary-General. The College may also consult the President and/or the Bureau.’
II – Facts and the procedure before the Court of First Instance
10. The facts which gave rise to the dispute are set out in the contested judgment as follows:
‘1 [Carlo Ripa di Meana, Leoluca Orlando and Gastone Parigi] were Members of the European Parliament … during the 1994 to 1999 legislative period.
…
6 [Mr Ripa di Meana, Mr Orlando and Mr Parigi], believing that they were covered by the provisional pension scheme, as is the case with respect to the Italian parliament, did not apply to join the provisional scheme as provided for by the amendment of 13 September 1995. It was not until the first few months of 1998 that [they] learned by chance that in fact they enjoyed no pension protection because they had not formally joined the scheme within the period of six months from the entry into force of the new Article 3(1) of Annex III, as amended by decision of the Bureau of 13 September 1995.
7 [Mr Ripa di Meana, Mr Orlando and Mr Parigi] then followed different courses of action. Mr Parigi submitted his application for membership of the abovementioned scheme to the Social Affairs Division … of the Personnel Directorate-General of the Parliament … on 18 February 1998. He requested the retroactive application of the provisional pension scheme. The College of Quaestors replied by two letters, dated 2 July and 20 October 1998, informing him that it was impossible to join the provisional pension scheme retrospectively.
8 Mr Ripa di Meana and Mr Orlando contacted the Parliament administration without submitting a written application.
9 After a number of fruitless approaches to the competent departments, the applicants turned to the Vice-Presidents of the Parliament, Mr Imbeni and Mr Podestà, to ask them to intervene to resolve the problem.
10 Mr Imbeni and Mr Podestà sent a letter dated 19 November 1998 to the College of Quaestors seeking a review of the applicants’ situation. The request was rejected by individual letters sent to the applicants (No 300762 to Mr Ripa di Meana, No 300763 to Mr Orlando and No 300761 to Mr Parigi) by the College on 4 February 1999, on the ground that all the Members had been informed that membership of the abovementioned retirement scheme would only be possible if an application to that effect was submitted within the period prescribed in the decision of the Bureau of the Parliament of 13 September 1995 …’
11. Those are the circumstances in which, by applications lodged at the Registry of the Court of First Instance on 13 April 1999, Mr Ripa di Meana (Case T-83/99), Mr Orlando (Case T-84/99) and Mr Parigi (Case T-85/99) brought an action for annulment of the decisions of the Parliament of 4 February 1999 rejecting their requests for the provisional pension scheme referred to in Annex III to apply with retroactive effect.
12. On account of the connection between them, these three cases were joined for the purposes of the oral procedure and the judgment, by order of the President of the Fourth Chamber of the Court of First Instance on 22 May 2000.
III – The contested judgment
13. By the contested judgment, the Court of First Instance in part allowed the objection of inadmissibility raised by the Parliament.
14. In respect of the action brought by Mr Parigi, the Court of First Instance took the view that the letter of 4 February 1999 sent to him by the College of Quaestors did not contain any new factor as compared with the letters of 2 July and 20 October 1998 and was therefore a mere confirmation of the previous decisions. Since the two 1998 decisions were not challenged within the prescribed time-limits and since, moreover, the decision of 4 February 1999 was not preceded by any re-examination of Mr Parigi’s situation, the Court of First Instance held, in paragraph 36 of the contested judgment, that his action was inadmissible in its entirety.
15. In respect of the actions brought by Mr Ripa di Meana and Mr Orlando, on the other hand, the Court of First Instance rejected the Parliament’s contention that those actions were inadmissible on the ground that the letters of 4 February 1999 were merely a rewording of the decision of the Bureau of the Parliament of 13 September 1995. Having held, in paragraph 26 of the contested judgment, that ‘the letter of 19 November 1998 must be regarded as a request of the applicants made on their behalf by the Vice-Presidents’, the Court of First Instance stated, in paragraphs 27 to 31 of the same judgment, that:
‘27 It must be borne in mind, next, that as early as its judgment in Joined Cases 16/62 and 17/62 Confédération nationale des producteurs de fruits et légumes and Others
v Council
[1962] ECR 471 the Court of Justice held that the term “decision” in the second paragraph of Article 173 of the EC Treaty (now the fourth paragraph of Article 230 EC) must be understood in the technical sense in which it is used in Article 189 of the EC Treaty (now Article 249 EC) and that the criterion for distinguishing between a legislative act and a decision within the meaning of the latter article must be sought in the general application or otherwise of the act in question.
28 Moreover, it is settled case-law that the fact that the number and even the identity of the persons to whom a measure applies can be determined more or less precisely is not such as to call in question the normative nature of the measure (order of the Court of Justice in Case C-10/95 P Asocarne
v Council
[1995] ECR I‑4149, paragraph 30 and the case-law cited).
29 In the present case, it must be observed that the definitions adopted in the amendment of 13 September 1995 to Annex III, drafted in general and abstract terms, producing thereby legal effects in respect of certain Members of the Parliament in a general and abstract manner and, therefore, in respect of each of the Members, must be regarded as being of a general and normative nature. Even if it had been established that the Members to whom Article 5(2) of the amendment of 13 September 1995 applies were identifiable at the time it was adopted, the normative nature of that provision would not thereby be called into question, since it envisages objective legal or factual situations.
30 Even though the Court of Justice has acknowledged that, in certain circumstances, a measure may be of direct and individual concern to certain natural or legal persons (Joined Cases T‑172/98 and T-175/98 to T-177/98 Salamander and Others
v Parliament and Council
[2000] ECR II-2487, paragraph 30 and the case-law cited), that case-law may not be relied upon in the present case since the contested provision has not adversely affected any specific right of the applicants in the sense of that case-law.
31 It follows that the arguments of the Parliament relating to the inadmissibility of the actions in Cases T-83/99 and T-84/99 must be rejected.’
16. Continuing, in relation to the substance of the case, its examination of the actions brought by Mr Ripa di Meana and Mr Orlando, the Court of First Instance rejected the objection of illegality raised by them against the decision of the Bureau of the Parliament of 13 September 1995, but it accepted their pleas in law alleging, respectively, that there was no failure to comply with the six-month time-limit laid down by Annex III, breach of the principle of sound administration and breach of the principle of legal certainty.
17. In this regard, the Court of First Instance held in particular that:
‘75 The Court finds that the Parliament, in order to satisfy the requirements stemming from the principle of legal certainty and sound administration and having regard to Article 27(1) of the Rules Governing the Payment of Expenses and Allowances to Members of the Parliament, ought to have informed the Members concerned of the amendment to Annex III by way of individual notification with a form of acknowledgement of receipt.
76 Only by acting in this way would the Parliament have conducted itself in conformity with the case-law of the Community judicature, which requires that every measure of the administration having legal effects must be clear and precise and must be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and begins to have legal effects (see Joined Cases T‑18/89 and T-24/89 Tagaras
v Court of Justice
[1991] ECR II-53, paragraph 40; see also the judgment of the Court of Justice in Case 5/85 AKZO Chemie
v Commission
[1986] ECR 2585, paragraph 39).
77. Since there was no such notification, a period prescribed for the submission of an application based on a measure providing for pension rights of the kind involved in the present case can only begin to run, according to Community case-law, from the moment at which the third party concerned, having learnt of the existence of that measure, acquires, within a reasonable period, precise knowledge of the content of that measure (see, to that effect, Case T-100/92 La Pietra
v Commission
[1994] ECR-SC I-A-83 and II-275, paragraph 30, and the case-law cited therein).
78 Even though the applicants do not deny having become aware of the existence of the amendment to Annex III during the early months of 1998, the Parliament has not proved that they had precise knowledge of the amending measure more than six months before the applications were submitted on 19 November 1998. Furthermore, the facts of the case show that that precise knowledge was acquired within a reasonable time.
79 Accordingly, the applicants submitted their applications for membership of the provisional pension scheme within the period prescribed by the amendment to Annex III.’
18. On the basis of the above considerations, the Court of First Instance, in paragraphs 1 and 3 of the operative part of the contested judgment, therefore annulled decisions Nos 300762 and 300763 of the Parliament of 4 February 1999 rejecting the requests submitted by Mr Ripa di Meana and Mr Orlando respectively for the provisional pension scheme referred to in Annex III to apply with retroactive effect, and ordered the Parliament to bear its own costs and to pay those of Mr Ripa di Meana and Mr Orlando in Cases T-83/99 and T-84/99.
19. In paragraphs 2 and 4 of the operative part of the contested judgment, on the other hand, it dismissed Mr Parigi’s action as inadmissible and ordered him to bear his own costs and those of the Parliament in Case T-85/99.
IV – Procedure before the Court and forms of order sought by the parties
20. By an application lodged at the Registry of the Court of Justice on 22 December 2000, the Parliament, under Article 49 of the EC Statute of the Court of Justice, brought the present appeal.
21. The Parliament claims that the Court should:
– set aside the contested judgment so far as concerns Cases T‑83/99 and T‑84/99;
– declare that, as a consequence, the actions brought by the applicants at first instance are inadmissible and unfounded;
– order the applicants at first instance to pay all the costs of the proceedings brought before the Court of First Instance and the Court of Justice.
22. For their part, Mr Ripa di Meana and Mr Orlando claim that the Court should:
– dismiss in its entirety as manifestly inadmissible and/or unfounded, the appeal submitted by the Parliament against paragraphs 1 and 3 of the operative part of the contested judgment;
– accordingly, confirm paragraphs 1 and 3 of the operative part of the contested judgment by granting, definitively and in full, the forms of order sought by Mr Ripa di Meana and Mr Orlando at first instance;
– order the Parliament to pay in addition the costs of the appeal.
23. If the Court upholds the appeal wholly or in part, Mr Ripa di Meana and Mr Orlando claim that the Court should:
– declare inadmissible the Parliament’s claim that the applicants at first instance should be ordered to pay all the costs of the proceedings brought before the Court of First Instance, since that form of order is being sought for the first time at the appeal stage, in breach of the second indent of Article 113(1) of the Rules of Procedure;
– order that the costs of the appeal be shared in the interests of equity.
24. Mr Parigi has brought a cross-appeal against the contested judgment, inasmuch as the Court of First Instance ordered him to bear the Parliament’s costs in addition to his own costs. In his response, Mr Parigi claims that the Court should:
– set aside the contested judgment only so far as concerns paragraph 4 of the operative part, relating to Case T-85/99;
– accordingly, declare that, in respect of the proceedings in Case T‑85/99, the parties are to bear their own costs;
– order the Parliament to repay the costs of the present appeal.
25. Mr Parigi claims that, if the Court rejects the cross-appeal in full or in part, it should apportion the costs of the appeal on an equitable basis.
26. The Parliament has objected that this cross-appeal is inadmissible. It claims that the Court should:
– declare the cross-appeal brought by Mr Parigi inadmissible;
– order Mr Parigi to pay the whole of the costs of the appeal proceedings.
V – Analysis of the main appeal
A – The first plea in law
1. Arguments of the parties
27. In its first plea, the Parliament
disputes the Court of First Instance’s characterisation of the letter of 19 November 1998 from the two Vice-Presidents of the Parliament as ‘the applicants’ application for membership’. The Court of First Instance held, in paragraph 26 of the contested judgment, that ‘[t]he letter of 19 November 1998 must be regarded as a request of the applicants made on their behalf by the Vice-Presidents’.
28. The Parliament observes that there is no legal argument supporting the view of the Court of First Instance, since the Vice-Presidents concerned have no particular capacity to submit an application for membership of the provisional pension scheme on behalf of Mr Ripa di Meana and Mr Orlando, either on the basis of any relevant provision or on the basis of authority given to them by these two Members. According to the Parliament, it is inconceivable that there should be an unauthorised representation for acts such as those at issue in the main proceedings, which have a direct bearing on the legal and financial situation of the Members concerned. The letter of 19 November 1998 was therefore along the lines of an informal approach, seeking to request a re-examination of the applicants’ situation, but can in no way be viewed as an application to join the provisional pension scheme.
29. This conclusion, moreover, is confirmed by a reading of the actual wording of that letter, which shows, according to the Parliament, that the Vice-Presidents did not fully understand the situation. In this letter, they liken Mr Ripa di Meana and Mr Orlando’s situation to Mr Parigi’s: yet it is clear from reading the contested judgment that their positions are fundamentally different.
30. In any event, Mr Ripa di Meana and Mr Orlando have explicitly acknowledged that they never submitted an application to join the provisional pension scheme in accordance with the formalities laid down by the Rules Governing the Payment of Expenses and Allowances to Members of the Parliament, nor in any other way, and furthermore they never requested, in their written pleadings or during the oral procedure before the Court of First Instance, that the letter of 19 November 1998 be viewed as an application to join that scheme made by the Vice-Presidents in their name and on their behalf. The effect of this is that the Court of First Instance ruled ultra petitum .
31. As regards Mr Ripa di Meana and Mr Orlando’s argument that neither Annex III nor any other provision of national or Community law specifies detailed rules for submitting an application to join the provisional pension scheme, the Parliament points out, firstly, that there are special forms provided by the competent Parliament departments – forms which Mr Ripa di Meana and Mr Orlando knew existed – and, secondly, that, if one accepts that an application to join the provisional pension scheme does not require particular formalities, it should, in any event, be written in such a way as to provide the authorities to which it is addressed with the information necessary to complete the required formalities, in particular as regards the consequences of the date of submission of the application.
32. The Parliament goes on to point out, with respect to this same argument that there are no formal procedures for applying for membership, that the problem in the present case does not lie in the way in which application for membership was made, but in Mr Ripa di Meana and Mr Orlando’s failure to make any such application for membership. In this regard, the Parliament observes that these two Members contacted the Parliament administration not in order to apply ‘orally’ to join the provisional pension scheme, but only in order to request ‘information’ on the matter. The competent Parliament departments informed them, on that occasion, of the existence of a requirement to apply in writing for membership and of special forms available for this purpose.
33. Mr Ripa di Meana and Mr Orlando
observe that neither Annex III nor any other provision of national or Community law lays down detailed rules for submitting an application to join the provisional pension scheme. Therefore, nothing prevented Mr Ripa di Meana and Mr Orlando from being represented by the Italian Vice-Presidents of the Parliament in making such an application. In the absence of mandatory rules on the form that must be taken by the authority, the latter may be granted in any form whatsoever, even orally or tacitly.
34. In the present case, the Vice-Presidents’ letter mentioned clearly and unequivocally the existence of authority from the two Members concerned, so the Vice-Presidents’ letter should be viewed as a genuine application to join the provisional pension scheme, made in the name of and on behalf of Mr Ripa di Meana and Mr Orlando. Indeed, this conclusion was confirmed by the fact that the College of Quaestors – which could have refused to respond or have declared the Vice-Presidents’ letter inadmissible on the ground that the procedure laid down in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament had not been observed – not only replied to this letter, but even replied directly and individually to Mr Ripa di Meana and Mr Orlando, referring expressly to their application to join the provisional pension scheme. This circumstance clearly shows, according to these Members, that the Vice-Presidents’ letter must be regarded as a valid application to join that scheme, as the Court of First Instance confirmed in paragraph 26 of the contested judgment.
35. Mr Ripa di Meana and Mr Orlando then point out that the Parliament’s arguments relating to the alleged absence of applications to join the provisional pension scheme are, in any event, irrelevant, since the documents contested before and annulled by the Court of First Instance are the letters from the College of Quaestors of 4 February 1999 and, therefore, it is in the light of these letters only that the admissibility of the application at first instance should be examined.
2. Assessment
36. The way Mr Ripa di Meana and Mr Orlando proceeded was certainly unusual.
37. However, the Parliament’s contention that the Vice-Presidents’ letter of 19 November 1998 could not be treated by the Court of First Instance as an application for membership is demolished by the fact that one of its own institutions, namely the College of Quaestors, also regarded it as an application for membership made by the Vice-Presidents on behalf of the Members concerned.
38. This is apparent not only from the wording of the College of Quaestors’ letters of 4 February 1999, which conclude: ‘Accordingly, pursuant to the rules in force, your request
cannot be granted’, (3) but also, as Mr Ripa di Meana and Mr Orlando rightly observe, from the fact that those letters, while their content constitutes a reply to the Vice-Presidents’ letter of 19 November 1998, were addressed directly and individually to the three Members of the Parliament concerned.
39. I therefore propose that the Court dismiss the Parliament’s first plea in law as unfounded.
B – The second plea in law
1. Arguments of the parties
40. In its second plea in law, the Parliament
challenges the Court of First Instance’s view that the letters of 4 February 1999 from the College of Quaestors are ‘decisions of the Parliament’. In the Parliament’s eyes, these were simple communications, purely for information, from the Quaestors of the Parliament, who merely confirmed an existing situation perfectly well known to the Members concerned.
41. The Parliament first challenges the assertion, contained in paragraph 30 of the contested judgment, that the decision of the Bureau of the Parliament of 13 September 1995 ‘has not adversely affected any specific right of the applicants in the sense of [the] case-law’. In fact, by inserting time-limits for securing the Parliamentary pension, that decision does adversely affect the subjective legal position of the Members, and Mr Ripa di Meana and Mr Orlando were therefore perfectly entitled to bring an action for annulment against that decision. This action, however, had to be brought within the periods prescribed by Article 230 EC. Failure to act before the expiry of these time-limits could in no case be regularised by an action to challenge letters viewed by the Parliament as simple courtesy letters, merely confirming a rule known to Members of the Parliament. Any other interpretation would, in the Parliament’s view, entail breach of the fundamental principle of legal certainty.
42. The Parliament points out secondly that the Court of First Instance is inconsistent when it asserts on the one hand, in paragraphs 29 and 30 of the contested judgment, that the decision of the Bureau of the Parliament is a normative provision of a general nature, which has not adversely affected any specific right of the applicants, and on the other hand, in paragraph 75 of the same judgment, that in order to satisfy the requirements stemming from the principles of legal certainty and sound administration the Parliament ought to have informed the Members concerned of the amendment to Annex III by way of individual notification with acknowledgement of receipt. According to the Parliament, only one of these arguments can be upheld: either the 1995 decision must be viewed as a measure of general scope which does not prejudice the addressees’ rights, and the normal procedures by which an institution communicates with its members must then be viewed as adequate, or the same decision is a measure of individual scope which ought to have been notified to all the Members of the Parliament and, in this case, the Members of the Parliament ought to have brought an action for annulment against this measure within the period prescribed, running from the day on which they learned of the measure. Once this period had expired, the action ought to have been declared inadmissible by the Court of First Instance.
43. Finally, the Parliament points out that the letters of 4 February 1999 could not, in any case, be described as ‘decisions of the Parliament’ since Mr Ripa di Meana and Mr Orlando, by their exceptional informal approach to the Vice-Presidents, have placed themselves in any event outside normal rules and procedures. In this regard, the Parliament refers specifically to the rule laid down in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament, under which ‘a Member who considers that those rules have been incorrectly applied may write to the Secretary-General. If no agreement is reached between the Member and the Secretary-General, the matter is to be referred to the College of Quaestors which is to take a decision after consulting the Secretary-General. The College may also consult the President and/or the Bureau’.
44. As for Mr Ripa di Meana and Mr Orlando’s reliance on Weber
v Parliament, (4) the Parliament points out that although it is true that according to that judgment measures of the Parliament which have legal effects on third parties are subject to judicial review, a measure must exist which implements the rules in question. Weber
v Parliament
dealt with a decision of the College of Quaestors concerning the transitional end-of-service allowance sought by Mrs Weber. However, in the present case, there is no measure implementing the relevant rules, since the legal conditions required for such a measure to come about were not satisfied. In other words, the College of Quaestors’ letters could not have any legal effect, inasmuch as there had been, in this case, no formal application on the part of Mr Ripa di Meana and Mr Orlando to join the provisional pension scheme. The Parliament points out, in this regard, that a voluntary act – in writing and signed by the interested person – is indispensable to initiate an administrative procedure and lead, where appropriate, to a challengeable decision. In this case, no such act was undertaken by the two Members. The letter from the two Vice‑Presidents – which, by definition, did not come from the interested parties themselves – can therefore have no legal force.
45. While observing, in their reply to the Parliament’s second plea in law, that it was the College of Quaestors itself which, in replying directly to the Members concerned, infringed the procedure provided for in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament, Mr Ripa di Meana and Mr Orlando
dispute the Parliament’s argument that the College of Quaestors’ letters were simple courtesy communications and that the only challengeable act is the decision of 13 September 1995. They claim, in this regard, that this argument is belied both by the unambiguous nature of the terms used in those letters, according to which ‘[Mr Ripa di Meana and Mr Orlando’s] application cannot be accepted’, and by an authoritative precedent in the case-law of the Court, namely Weber
v Parliament .
46. In the latter case, the College of Quaestors rejected the application from a Member of the European Parliament attempting to obtain, after she had left office, a transitional end-of-service allowance. The College of Quaestors had rejected this Member’s application on the basis of a decision of the Bureau of the Parliament to which the College of Quaestors’ letter expressly referred. In its judgment, the Court declared admissible the action brought by Mrs Weber against the College of Quaestors’ letter rejecting her application, on the ground that ‘the rules on the transitional end-of-service allowance for Members of Parliament and individual measures applying those rules have legal effects going beyond the internal organisation of the work of that institution in so far as they affect the financial situation of Members of Parliament when they cease to serve in that capacity’. According to Mr Ripa di Meana and Mr Orlando, all measures affecting the financial situation of Members are therefore challengeable, including measures applying rules of a general nature.
47. According to them, such is precisely the case of the College of Quaestors’ letters of 4 February 1999. Far from being simple information or courtesy communications, such communications are, in fact, measures applying the Parliament’s general rules on retirement pensions. Even if they were measures taken under the amendment made to Annex III by the 1995 decision, it was those letters which concretely affected the financial situation of the Members concerned and it was therefore them – and not the 1995 decision – which should have been contested before the Court of First Instance.
48. Further, according to Mr Ripa di Meana and Mr Orlando, the fact that the letters from the College of Quaestors of 4 February 1999 are actually decisions which have legal effects for them is confirmed by another letter from the College of 21 May 1999, written in response to two letters, dated March and April 1999, in which Mr Ripa di Meana and Mr Orlando informed the College of Quaestors of their intention to bring the matter before the Court of First Instance. In this letter of 21 May 1999, the College of Quaestors declared, firstly, ‘that the College has examined [Mr Ripa di Meana’s and Mr Orlando’s letters, in which they challenge] the College’s refusal to grant [them] retroactive membership of the pension fund’ and, secondly, that, ‘in the absence of other factors supporting [their] application, the College repeats that it is impossible to give a favourable opinion’. These two assertions clearly confirm, according to Mr Ripa di Meana and Mr Orlando, that the letters of 4 February 1999, far from amounting to simple courtesy communications, are challengeable decisions under Article 230 EC.
49. Pointing out in addition that they had no interest in applying for annulment of the amendment made to Annex III – which had not been brought to their notice –, but only in securing application of this amendment to them from the date at which they became aware of it, Mr Ripa di Meana and Mr Orlando conclude, on this aspect, that the Court of First Instance was right to declare their actions admissible.
2. Assessment
50. I propose that the Court accept Mr Ripa di Meana and Mr Orlando’s argument that the Court of First Instance did not err in law by describing the College of Quaestors’ letters of 4 February 1999 as decisions for the purposes of Article 230 EC.
51. In the first plea, although the Parliament maintains that the letters from the College of Quaestors cannot be described as decisions, on the ground that there had not been, in the present case, any application for formal membership of the provisional pension scheme on the part of Mr Ripa di Meana and Mr Orlando, it should be stated that this second plea in law is indissociable from the first, which, as stated above, does not appear to me to be well founded.
52. Secondly, the Parliament’s argument that the College of Quaestors’ letters of 4 February 1999 are merely a confirmation of the 1995 decision and that the time-limit for bringing an action has therefore expired cannot be accepted.
53. The Court of First Instance was right to hold, in paragraphs 29 and 30 of the contested judgment, that the scope of the 1995 decision is general and normative and, in itself, has not adversely affected any specific right of the Members concerned. In fact, it simply provides, in a general way, that an application to join the provisional pension scheme must be made within six months, otherwise the pension can no longer be secured retroactively.
54. The College of Quaestors’ letters of 4 February 1999 are, on the other hand, different in character, in that they apply the 1995 decision to the specific case of the Members concerned. It was only at that time, through the concrete rejection of the application for retroactive membership of the provisional pension scheme, that one of their specific rights was adversely affected and that a decision under Article 230 EC existed.
55. The difference between the 1995 decision and the letters of 4 February 1999 and therefore the absence of a simple confirmation of the first by the latter are indeed very well demonstrated by Mr Ripa di Meana and Mr Orlando’s argument that they had no interest in applying for annulment of the 1995 decision, but only in securing the application of this amendment to them from the date at which they became aware of it.
56. Similarly, the comparison made by Mr Ripa di Meana and Mr Orlando between the present case and Weber
v Parliament
seems to me relevant in the sense that the latter also concerned the refusal of a financial advantage by the College of Quaestors under provisions adopted by the Bureau of the Parliament. However, in that case, the Parliament in no way denied that the action brought by Mrs Weber against the rejection by the Office of the Quaestors was admissible.
57. Finally, the Parliament’s argument relating to an alleged contradiction between paragraphs 29 and 30 on the one hand and paragraph 75 on the other in the contested judgment seems to me to come under the third plea in law put forward by the Parliament, which indeed returns to this argument in the context of its third plea.
58. In the light of the foregoing, I propose that the Court dismiss the Parliament’s second plea in law.
C – The third plea in law
59. In its third plea in law, the Parliament challenges the Court of First Instance’s conclusion that Mr Ripa di Meana and Mr Orlando actually submitted their application for membership of the provisional pension scheme within the period prescribed in the 1995 decision. It puts forward, in this regard, four arguments, which I propose to consider in two groups: the first group, consisting of the first two arguments, concerns the question of whether an individual notification of the 1995 decision was required (paragraphs 75 and 76 of the contested judgment); the second group, consisting of the last two arguments, relates to the ways in which Mr Ripa di Meana and Mr Orlando learned of the 1995 decision (paragraphs 77 and 78 of the contested judgment).
1. First part of the third plea in law, relating to the obligation to notify the 1995 decision
a) Arguments of the parties
i) The Parliament’s first argument
60. The Parliament
challenges the assertion in paragraph 75 of the contested judgment that the Parliament should have informed the Members concerned of the amendment to Annex III by way of individual notification with acknowledgement of receipt ‘having regard to Article 27(1) of the Rules Governing the Payment of Expenses and Allowances to Members of the Parliament’. According to the Parliament, this article – which provides that, ‘on commencement of their term of office, Members shall receive from the Secretary-General a copy of these Rules and shall acknowledge receipt thereof in writing’ – concerns only the full Rules in force at the commencement of the Members’ term of office, and not later amendments to these Rules and their Annexes.
61. In this regard, it states, on the one hand, that the full Rules constitute a much larger body of rules than the later measures amending or supplementing it and, on the other hand, that the rules in force at the start of a term of office have been adopted, generally, by a Parliament of which the person concerned was not yet part and cannot therefore be known to the Member, except where the latter has successive terms of office. Amendments to the Rules made during a Member’s term of office are, in contrast, Parliamentary measures to which the Member has been party, and therefore it would be usual for them to be brought to this Member’s notice in more flexible ways, typical of the internal dissemination of Parliamentary measures and familiar to all parliamentary assemblies. In interpreting Article 27(1) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament broadly, the Court of First Instance has therefore treated different situations in similar ways and infringed, as a consequence, the principle of substantive equality.
62. Mr Ripa di Meana and Mr Orlando
have replied that Annex III forms an integral part of the Rules, of which each Member receives a copy, with a form of acknowledgement of receipt, at the commencement of his term of office, and that therefore the procedure provided for in Article 27(1) of these Rules should be applied to any amendment to the Rules, including amendments to its Annexes. Only this interpretation serves to respect the principles of legal certainty and sound administration.
63. Mr Ripa di Meana and Mr Orlando point out, in this regard, that it is absurd to require a written form of acknowledgement of receipt for the body of rules concerned, if later modifications to these can take effect after an informal – and, moreover, uncertain – communication to the interested persons. Such an approach is, in their eyes, just as absurd as one which requires the obligation to publish Community rules in the Official Journal and allows publication of amendments made to those rules in any bulletin internal to the institutions.
ii) The Parliament’s second argument
64. While agreeing with the assessment made in paragraph 76 of the contested judgment that ‘the case-law of the Community … requires that every measure of the administration having legal effects must be clear and precise and must be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and begins to have legal effects’, the Parliament points out that this rule applies only to individual measures or, in any event, to measures having a bearing on the situation of certain persons. Such measures apply to particular persons and can be notified to them. However, it is apparent from paragraphs 28 to 30 of the contested judgment that the amendment to Annex III was treated by the Court of First Instance as a legislative measure of general scope, adopted to govern the pension rights of all Members, present and future, who are not covered by a definitive scheme for which their Member State is responsible. The Court of First Instance therefore erred in law by subsequently taking the view, in paragraph 75 et seq. of the contested judgment, that the amendment to Annex III was an individual administrative measure, requiring individual notification with acknowledgement of receipt.
65. As for Mr Ripa di Meana and Mr Orlando’s reference to the case of a Member of the Parliament who, as the European Ombudsman’s Annual Report for 1998 shows, received written communication of the 1995 decision both at the Parliament and at his home address, the Parliament maintains that this situation was different from that of Mr Ripa di Meana and Mr Orlando and, furthermore, that the fact that, in a given case, a written communication of a measure was made both to the Parliament and to the interested person’s home address does not mean that there is any legal obligation to do this in all those cases where the principle of sound administration would necessarily require more than one method of communication.
66. Mr Ripa di Meana and Mr Orlando
point out the contradictory nature of what the Parliament is saying: it maintains, on the one hand, that they can contest only the decision of 13 September 1995 and, on the other hand, that this decision must be treated as a legislative measure of general scope, intended to govern the enjoyment of pension rights for all Members, present and future, even those from future Member States of the European Union. The scope of this decision is, in fact, so general that it is difficult to maintain that the two Members could contest it under Article 230 EC.
67. Mr Ripa di Meana and Mr Orlando go on to observe that, even if the 1995 decision is a legislative measure of general scope, in any event an individual notification with acknowledgement of receipt is required, inasmuch as such a requirement follows from the actual wording of Article 27(1) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament.
68. Finally, these two Members refer to the situation of a Member of the European Parliament who omitted to apply in good time for membership of the additional pension scheme and who, in 1997, after rejection of his (late) application by the competent Parliament departments, made a complaint of maladministration against the Parliament to the Ombudsman. The Legal Service of the Parliament replied, in that case, that the complainant’s statement that he had not been duly informed of amendments made to the additional pension scheme – amendments which, as in the present case, consisted of making entitlement to that pension scheme subject to submission of an application within a six-month time-limit – was not well founded, since the Member ‘had been given written notice at the Parliament and his home address’. Subsequently, the complaint was rejected by the Ombudsman on the ground that these two opportunities to acquire knowledge of the time-limit for submission of the application sufficiently protected both the Member and the requirements of good administration. Mr Ripa di Meana and Mr Orlando are surprised, in the circumstances of this case, at the absence of a similar method of communication for the amendments made to Annex III.
b) Assessment
69. By these two arguments, the Parliament challenges paragraphs 75 and 76 of the contested judgment respectively, in which the Court of First Instance gives reasons for holding that the 1995 decision should have been notified individually to the Members concerned with acknowledgement of receipt.
70. It will be remembered that paragraph 75 reads as follows:
‘The Court finds that the Parliament, in order to satisfy the requirements stemming from the principle of legal certainty and sound administration and having regard to Article 27(1) of the Rules Governing the Payment of Expenses and Allowances to Members of the Parliament, ought to have informed the Members concerned of the amendment to Annex III by way of individual notification with a form of acknowledgement of receipt.’
71. Like Mr Ripa di Meana and Mr Orlando, I take the view that the Court of First Instance, in reasoning thus, did not err in law.
72. By providing, in Article 27(1) of the Rules, that on ‘commencement of their term of office, Members shall receive from the Secretary-General a copy of these Rules and shall acknowledge receipt thereof in writing’, the Parliament has shown that it attaches great importance to Members’ precise knowledge of their rights.
73. The amendment made in 1995 was of considerable importance, since failure to observe the six-month time-limit was likely to have a significant effect on Members’ pension rights under the earlier version of the Rules.
74. Therefore, the principle of sound management, the duty to have regard to the welfare of officials and, in a way, the principle of equivalence of form should have led the Parliament to give a broad interpretation to Article 27(1), taking the view that it covered at least those amendments which, if not taken into account, could have negative consequences for Members of the Parliament.
75. Therefore the Court of First Instance rightly held that the attention of Members of Parliament ought to have been drawn to the newly-established time-limit, using for this the method of individual notification accompanied by a form of acknowledgement of receipt.
76. On the other hand, I do not share the Court of First Instance’s reasoning in regard to paragraph 76 of the contested judgment.
77. Paragraph 76 states that:
‘Only by acting in this way [that is, using an individual notification with a form of acknowledgement of receipt] would the Parliament have conducted itself in conformity with the [Community case-law], which requires that every measure of the administration having legal effects
must be clear and precise and must be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and begins to have legal effects (see Joined Cases T-18/89 and T-24/89 Tagaras
v Court of Justice
[1991] ECR II-53, paragraph 40; see also the judgment of the Court of Justice in Case 5/85 AKZO Chemie
v Commission
[1986] ECR 2585, paragraph 39).’ (5)
78. However, the concept of ‘measure of the administration having legal effects’ is ambiguous, in the light of the case-law references which appear in this passage from the contested judgment.
79. In Tagaras
v Court of Justice, the issue related to the publication of a decision to appoint an official, which is, by its very nature, an individual decision. However, as the Parliament rightly observes, the Court of First Instance held, in paragraph 30 of the contested judgment, that the 1995 decision is specifically not such a decision. In this sense, the reasoning followed by the Court of First Instance in paragraph 76 is therefore not relevant.
80. On the other hand, AKZO Chemie
v Commission
dealt with the publication of decisions delegating authority to members of the Commission, which truly are, like the 1995 decision, measures of general scope. However, in the passage cited by the Court of First Instance, the Court of Justice referred only to the need to publish decisions granting the delegation of authority and not at all to any obligation to notify them individually.
81. Therefore, inasmuch as the reasoning followed by the Court of First Instance in paragraph 76 of the contested judgment applies to measures of general scope, this reasoning is incorrect. It cannot be inferred from AKZO Chemie
v Commission
that there is an obligation to notify legislative acts individually, an obligation which would moreover in most cases be impracticable.
82. Despite paragraph 76 of the contested judgment, I am however of the opinion that, for the reasons set out above, the Court of First Instance rightly decided that the 1995 decision ought to have been notified individually.
83. I therefore propose that the Court dismiss the first part of the third plea in law.
2. Second part of the third plea in law, relating to the ways in which the Members learned of the 1995 decision
a) Arguments of the parties
i) The Parliament’s first argument
84. The Parliament
challenges the assertion in paragraph 77 of the contested judgment that in the absence of an individual notification with acknowledgement of receipt ‘a period prescribed for the submission of an application based on a measure providing for pension rights of the kind involved in the present case can only begin to run, according to Community case-law, from the moment at which the third party concerned, having learned of the existence of that measure, acquires, within a reasonable period, precise knowledge of the content of that measure’. According to the Parliament, this rule, set out previously by the Court of First Instance in respect of relations between an institution and its employees, cannot be transposed to relations between an institution and its members. Officials are subject to the institution which employs them, so that measures of the appointing authority which concern them do not produce effects as long as these officials do not gain precise knowledge of them within a reasonable period of time; however, the legal situation of Members of the Parliament is completely different.
85. Firstly, the Members of the Parliament are not subject to the institution, but are themselves part of it. Consequently, the Members take part – although indirectly, in the case of decisions by the Bureau of the Parliament – in forming the institution’s intentions, and there cannot be any question of the Members’ being subordinate to the institution.
86. Secondly, the reasonable period within which these Members, who form part of the institution taking the measure, may pass from awareness of the existence of this measure to precise knowledge of its contents, which gives rise to legal effects, is particularly short and could not, in any case, exceed one month.
87. So far as concerns, first and foremost, the Parliament’s assertion that the rules identified by the Court of First Instance in respect of relations between an institution and its employees cannot be transposed to the relations between an institution and its members, Mr Ripa di Meana and Mr Orlando
claim that it is not the organic relationship linking a person to an institution which determines the application of specific rules to an employment relationship. On the contrary, there should be an examination on a case-by-case basis, taking into due consideration the matter at issue. In the present case, it is undeniable, since these questions are linked to the Members’ retirement pension scheme, that relations between the Parliament and its (former) Members are purely administrative in nature and in no way linked to the political office of these Members. Therefore, the action brought by Mr Ripa di Meana and Mr Orlando before the Court of First Instance should be viewed, in the present case, like any other action brought against the institutions by a staff member.
88. So far as concerns the Parliament’s assertion that the reasonable period within which the Members must pass from awareness of the existence of a measure to precise knowledge of its contents could not, in any case, exceed one month, Mr Ripa di Meana and Mr Orlando stress that this period cannot be quantified abstractly and mathematically, but must be assessed case by case, according to the circumstances of the case in point, and on the basis of the results of the preparatory inquiries carried out at first instance. This quantification falls within the exclusive competence of the Court of First Instance, the sole court to adjudicate on the substance, and therefore it cannot, in itself, form the subject of an appeal.
ii) The Parliament’s second argument
89. The Parliament
challenges the assertion in paragraph 78 of the contested judgment that, ‘[e]ven though the applicants do not deny having become aware of the existence of the amendment to Annex III during the early months of 1998, the Parliament has not proved that they had precise knowledge of the amending measure more than six months before the applications were submitted on 19 November 1998’.
90. In the first place, acquiring ‘precise knowledge’ cannot be distinguished, in the present case, from simple ‘awareness’, since the amendment to Annex III was clear and concise. It simply means that an application to join the provisional pension scheme which previously had a retroactive effect in every case, as from the time of this amendment still had such a retroactive effect only if it had been submitted in the six months which followed the amendment or, where relevant, the commencement of a Member’s term of office. The Parliament raises the question, under these conditions, of the exact meaning of the two ways of describing different degrees of knowledge of such a simple measure as that in the present case and, in particular, of the content of the ‘simple awareness’, which, in the eyes of the Court of First Instance, was not such as to incur the time-limits for bringing an action.
91. In the second place, according to the Parliament, the Court of First Instance committed a procedural irregularity by shifting the burden of proof and requiring the Parliament to demonstrate that the simple awareness of the amendment to Annex III admitted by the applicants became a ‘precise knowledge’ of this amendment more than six months before the Vice-Presidents’ letter, which was viewed by the Court of First Instance as an application to join the provisional pension scheme.
92. According to the Parliament, once effective knowledge of the amendment made to Annex III had been established in court, it was for the two Members concerned – and not for the Parliament – to prove that this simple awareness of the existence of this amendment was not sufficient to incur the time-limit for application to join the provisional pension scheme. This is shown by, inter alia, Michel
v Parliament . (6) If Mr Ripa di Meana and Mr Orlando wanted therefore to take advantage of the distinction between simple awareness and precise (or sufficient) knowledge and of a time-limit running only from the latter, they should have explained what they needed to know more precisely before submitting their application for membership, which, in this case, was never presented.
93. In paragraph 78 of its judgment, the Court of First Instance, in the Parliament’s eyes, neglects the consequences of the applicants’ assertion during the written procedure and at the hearing that they became aware of the amendment made to Annex III ‘early in 1998 at the latest’. The Parliament points out, in this regard, that the text of the amendment was sent to the Members through Communication No 25/95, dated 28 September 1995, and via the minutes of the meeting of the Bureau of 13 September 1995 which, in accordance with Article 28(1) of the Rules of Procedure of the Parliament, is distributed to all Members in the official languages of the European Union.
94. This amendment was, in addition, brought to the Members’ notice through transmission to them – under the normal procedure for transmitting internal rules of a general nature relating to all the Members of the Parliament – of the consolidated text of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament, which was published in March 1996 and September 1997.
95. Finally, Mr Ripa di Meana and Mr Orlando received every month, at their express request, a short statement of their expenses and allowances. Such statements always mention the deductions made by the administration of the Parliament from payments to the Members, as well as sums due, where appropriate, pursuant to membership of the provisional pension scheme or other pension schemes. It was therefore easy for the Members concerned to check whether or not they enjoyed pension protection.
96. So far as concerns, firstly, the Parliament’s argument that there is no need to distinguish, in the present case, ‘precise knowledge’ from simple awareness of the amendment made to Annex III, Mr Ripa di Meana and Mr Orlando
point to a contradiction in what the Parliament is saying. It seems here to be denying the existence of a distinction between these two concepts whereas it had previously accepted it, maintaining that the reasonable period within which the Members must pass from awareness of the existence of a measure to precise knowledge of it cannot exceed one month.
97. Mr Ripa di Meana and Mr Orlando go on to claim that, contrary to the Parliament’s assertion in its appeal, it was not in connection with the present case that the Court of First Instance introduced the condition that ‘precise knowledge’ of the measure incurs the six-month time-limit for submitting an application to the provisional pension scheme. Both this condition and the distinction between awareness of the existence of a measure and precise knowledge of its contents were in fact based in the settled case-law of the Court of Justice and of the Court of First Instance, inter alia in La Pietra
v Commission .
98. According to Mr Ripa di Meana and Mr Orlando, it is clear, inter alia from paragraph 30 of the latter judgment, that in order for a person who, without having acted wrongfully, has failed to submit the required application to join the provisional pension scheme within the six-month time-limit, to be viewed as having observed the principle of diligence, this person must, once informed of the existence of the measure establishing this time-limit, (a) within a reasonable time make approaches, if only orally, to the competent services in order to acquire a precise knowledge of the contents of the measure concerned and the reasoning on which it is based, and (b) then submit the membership application in question within six months. In the present case, the Court of First Instance found that phases (a) and (b) had taken place between February and November 1998, within a period which accords with this case-law. The Parliament’s plea in law is therefore inadmissible, since it seeks to challenge before the Court an unappealable determination of the facts by the Court of First Instance.
99. Further, so far as concerns the Parliament’s argument that the Court of First Instance committed a procedural irregularity by shifting the burden of proof and requiring the Parliament to demonstrate that the simple awareness of the amendment to Annex III became a ‘precise knowledge’ of this amendment more than six months before the Vice-Presidents’ letter, Mr Ripa di Meana and Mr Orlando observe, firstly, that issues linked to the burden of proof are issues of substance, and not of form, and therefore cannot result in a ‘procedural irregularity’ and, secondly, that it is clear from the case-law of the Court and of the Court of First Instance cited that it is for the institution concerned to prove that the person to whom a particular measure is addressed has in fact become aware of it.
100. Finally, Mr Ripa di Meana and Mr Orlando reject the Parliament’s argument deriving from the fact that they received every month, at their request, a statement of their expenses and allowances, which should have enabled them to check at once whether or not contributions to the provisional pension scheme had been deducted: they do so on the ground that the argument is inadmissible, since it represents a new attempt by the Parliament to challenge before the Court an unappealable determination of the facts by the Court of First Instance.
101. They also claim that, in any event, this argument is not well founded, in so far as the receipt of monthly statements is not identical for officials and for Members of the Parliament. For the former, the figure ‘zero’ appears on these statements where there has been no contribution by the officials concerned under a given heading. Officials are therefore in a position to realise their administrative situation concerning this account heading, so that any lack of attention on their part is unjustifiable. For Members of the Parliament, on the other hand, the monthly statements set out a single amount, so that it is impossible to see which deductions may have been made: consequently, these Members cannot be accused of lack of attention.
b) Assessment
102. In my view, the Court of First Instance was entitled to refer, in paragraph 77 of the contested judgment, to the distinction between, on the one hand, awareness of the existence of a measure – in the present case, the 1995 decision – and, on the other hand, precise knowledge of this measure. It must be borne in mind that the Court of Justice has held, in paragraph 14 of Dillinger Hüttenwerke
v Commission, (7) to which the Court of First Instance referred indirectly in paragraph 77 of the contested judgment, that:
‘[i]t is clear from the Court’s case-law relating to the third paragraph of Article 173 of the EEC Treaty (judgments of 5 March 1980 in Case 76/79 Koenecke
[1980] ECR 665, and of 5 March 1986 in Case 59/84 Tezi Textiel
[1986] ECR 887) that, failing publication or notification, it is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period but, subject thereto, the period for bringing an action can begin to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right of action’. (8)
103. Contrary to what the Parliament alleges, the relevance of the distinction between these two forms of knowledge is not limited to the civil service context, as Dillinger Hüttenwerke
v Commission, which concerns an ECSC matter, indeed shows.
104. On the other hand, I share the opinion of the Parliament, which it stated again at the hearing, that the Court of First Instance misapplied this case-law of the Court and, therefore, its own judgment in La Pietra
v Commission, which is based faithfully on this case-law, when it found, in paragraph 78 of the contested judgment, that once the date of awareness of the existence
of the measure had been established it was for the Parliament prove the date of the precise
knowledge of the measure.
105. The Court held, in the passage from Dillinger Hüttenwerke
v Commission
quoted above, that ‘it is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period’. This passage is entirely absent from the contested judgment.
106. However, this passage is fundamental. It would not be consonant with legal certainty to accept that a person who, it is established, is aware of the existence of a measure which is likely to produce legal effects for him may rely on his own passivity to justify the unenforceability of this measure.
107. I am therefore of the opinion that the Court of First Instance erred in law by not examining, once it had been established that Mr Ripa di Meana and Mr Orlando became aware of the existence of the 1995 decision early in 1998, the question of whether they had fulfilled their obligation to request the whole text of the decision within a reasonable period.
108. Instead, it merely established, in paragraph 78 of the contested judgment, that the Parliament was obliged to show that Mr Ripa di Meana and Mr Orlando knew of the content of the 1995 decision more than six months before their request was submitted. However, it seems to me that, since these Members were obliged to request the text of the decision within a reasonable period, the burden of proof lies with them: it is their responsibility to show that they took the necessary steps within a reasonable time.
109. The second part of the third plea in law is therefore well founded and I propose that the Court set aside the contested judgment in so far as it upheld, in Cases T-83/99 and T-84/99, the action for annulment of the Parliament’s decisions of 4 February 1999, Nos 300762 and 300763, rejecting the requests submitted by Mr Ripa di Meana and Mr Orlando respectively for the provisional pension scheme referred to in Annex III to apply with retroactive effect.
110. According to the second sentence of the first paragraph of Article 54 of the EC Statute of the Court of Justice, the latter, where it has quashed the decision of the Court of First Instance, may itself give final judgment in the matter, where the state of the proceedings so permits. This seems to me to be the situation in the present case.
111. It has been established that Mr Ripa di Meana and Mr Orlando, as is apparent from paragraph 78 of the contested judgment, were aware of the existence of the 1995 decision ‘during the early months of 1998’.
112. When questioned at the hearing through their counsel about learning of the contents of the 1995 decision, Mr Ripa di Meana and Mr Orlando were able to give no explan ation of either the date when or the means by which they learned of the contents of the 1995 decision.
113. In these circumstances, Mr Ripa di Meana and Mr Orlando have not shown that, once they knew of the existence of the 1995 decision, they actually requested the text of this decision within a reasonable period. They cannot therefore rely on the precedent in Dillinger Hüttenwerke
v Commission, which makes, through the expression ‘subject thereto’, the exception that the period for bringing an action is to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based subject to the condition that this third party, once he has learned of the existence of the measure concerned, has exercised due diligence by requesting the text of the measure within a reasonable period.
114. Therefore, there is no reason to accept that Mr Ripa di Meana and Mr Orlando had knowledge of the contents
of the 1995 decision at a date later than the date on which they undoubtedly became aware of the existence
of this measure.
115. The facts confirm, moreover, that, as the Parliament maintains, these two forms of knowledge did not occur at substantially different moments in time.
116. I refer, in this regard, to a passage from Mr Ripa di Meana and Mr Orlando’s rejoinder, in which they discuss the Parliament’s first plea in law and which reads as follows:
‘To maintain, as the Parliament does, that the applicants at first instance had not submitted a formal membership application and that they themselves recognised this amounts to reproducing the course of the facts incorrectly : an attentive reading of the documents in the case (see paragraphs 8 and 9 of the applications and paragraph 2 of the reply in Cases T-83/99 and T-84/99; paragraphs 8, 21, 25 and 26 of the contested judgment; paragraph 18 of the response to the appeal) shows clearly that Mr Ripa di Meana and Mr Orlando, immediately after having learned
by chance, early in 1998, of the amendment
to Annex III, requested, albeit orally, the competent Parliament departments for membership of the provisional pension scheme with retroactive effect, and these departments replied that this was not possible, since the six-month time-limit introduced in 1995 had expired .’ (9)
117. It is unquestionably apparent from the above, therefore, that Mr Ripa di Meana and Mr Orlando had knowledge of the contents of the amendment ‘immediately’ after having learned of its existence.
118. The reply given by the Parliament departments coincides entirely with the contents of the 1995 decision, which essentially contains nothing other than the six-month time-limit on retroactive entitlement to a pension.
119. In this regard, it should be borne in mind that the 1995 decision does not actually break new ground as far as the need to submit an application to join the provisional pension scheme is concerned. This obligation was already present in the version of Annex III in force before the adoption of the 1995 decision and it is not disputed that Mr Ripa di Meana and Mr Orlando had received this, against acknowledgement of receipt, at the time they took up office.
120. It is therefore apparent from the foregoing that it cannot be maintained that Mr Ripa di Meana and Mr Orlando submitted their application to join the provisional pension scheme within six months of learning of the 1995 decision.
121. Since the application was made on 19 November 1998, by means of the Vice-Presidents’ letter, they would have to have learned of the 1995 decision at a date later than 19 May 1998 for the application to have been made within the six-month period.
122. As we have just seen, they learned of both the existence of the 1995 decision and its contents – at the latest – early in 1998, which means the months of January, February or, at the very latest, March, but not May.
123. The Parliament was therefore right to reject, by its decisions of 4 February 1999, the applications made by Mr Ripa di Meana and Mr Orlando. Consequently, I propose that the Court reject the action for annulment brought against these decisions.
D – Costs
1. Arguments of the parties
124. If the Court upholds the appeal, in its entirety or in part, Mr Ripa di Meana and Mr Orlando
request it in any event to reject as inadmissible the Parliament’s claim that the applicants at first instance should be ordered to pay ‘all the costs of the proceedings brought before the Court of First Instance …’. According to them, that is, in fact, a new claim, submitted for the first time at the appeal stage, an approach which is prohibited by the second indent of Article 113(1) of the Court’s Rules of Procedure. They point out, in this regard, that, at first instance, the Parliament did not submit a specific claim for an order against the applicants, but simply requested the Court of First Instance to ‘make an appropriate order as to costs’. Pursuant to the first subparagraph of Article 87(2) of the Rules of Procedure of the Court of First Instance, under which ‘the unsuccessful party shall be ordered to pay the costs [only] if they have been [expressly] applied for in the successful party’s pleadings’, the Parliament should therefore have had to bear its own costs if it had won the case at first instance. The claim submitted at the appeal stage for Mr Ripa di Meana and Mr Orlando to be ordered to pay all the costs of the proceedings before the Court of First Instance is therefore a new claim which should be rejected as inadmissible.
125. The Parliament
points out that its claim for the applicants at first instance to be ordered to pay all the costs of the proceedings before the Court of First Instance is not new at the appeal stage, but had already been made, in other terms, before the Court of First Instance. The best evidence of this is that the latter correctly interpreted these words, in Case T-85/99, when it ordered Mr Parigi to bear his own costs, as well as those of the Parliament.
2. Assessment
126. It is, of course, true, as Mr Ripa di Meana and Mr Orlando rightly observe, that a claim for an appropriate order as to costs does not amount to a claim for the other party to be ordered to pay the costs. The Court so held expressly in Lestelle
v Commission . (10)
127. However, I am of the opinion that the fact that the Parliament asked the Court of First Instance to make an appropriate order as to costs does not bind the Court of Justice in determining the apportioning of costs at the appeal stage, including costs relating to the proceedings before the Court of First Instance.
128. Mr Ripa di Meana and Mr Orlando’s reasoning is based on the second indent of Article 113(1) of the Rules of Procedure, whereas costs are governed by Article 122 of these Rules and, subject to the provisions of the latter, by Articles 69 to 75, made applicable to the appeal procedure by Article 118 of the Rules of Procedure.
129. These provisions do not make the Court’s competence in the matter of costs dependent on what one party has or has not requested from the Court of First Instance on this subject.
130. The first paragraph of Article 122 provides generally that ‘… where the appeal is well founded and the Court itself gives final judgment in the case, the Court shall make a decision as to costs’.
131. Furthermore, under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if these have been applied for in the successful party’s pleadings. Since, in my opinion, Mr Ripa di Meana and Mr Orlando ought to be unsuccessful in Cases T-83/99 and T-84/99 as well as in the present appeal and since the Parliament has applied to the Court for them to be ordered to pay the costs of both actions, there is no reason not to find for the Parliament. I therefore propose that the Court order Mr Ripa di Meana and Mr Orlando to pay the whole of the costs of the two actions.
VI – Analysis of the cross-appeal
A – Arguments of the parties
132. In his cross-appeal, Mr Parigi
seeks the annulment of paragraph 4 of the operative part of the contested judgment, in so far as he was ordered to pay, in addition to his own costs, those incurred by the Parliament in Case T-85/99. He puts forward, in this regard, the following three arguments.
133. Firstly, the Court of First Instance infringed the first subparagraph of Article 87(2) of its Rules of Procedure by holding, in the third sentence of paragraph 81 of the contested judgment, that since Mr Parigi had been unsuccessful in his claims he must be ordered to pay the costs incurred by the Parliament ‘as applied for by it’. According to Mr Parigi, the Parliament, in its defence and its rejoinder, in fact never requested the Court of First Instance to order Mr Parigi to pay the costs, but only to ‘make an appropriate order as to costs’.
134. Secondly, the Court of First Instance infringed Article 88 of its Rules of Procedure, under which ‘... in proceedings between the Communities and their servants the institutions shall bear their own costs’. According to Mr Parigi, the action brought by him before the Court of First Instance should in fact be viewed as an action brought by a servant of the Community against one of its institutions, in so far as this action related not to a question linked to his political office, but to a decision of a strictly administrative nature taken by the College of Quaestors concerning retirement pension. Even though he was unsuccessful, the costs incurred by the Parliament could therefore never become his responsibility.
135. Finally, as to the ban, provided for in the second paragraph of Article 51 of the EC Statute of the Court of Justice, on appeals regarding only the amount of the costs or liability for them, Mr Parigi has pointed out that this provision must be interpreted as meaning that it only obliges the Court to declare inadmissible those appeals which seek to challenge the decision taken by the Court of First Instance in the matter of costs, after the Court of First Instance has determined the facts presented to it. In the present case, on the other hand, the cross-appeal underlines an obvious mistake made by the Court of First Instance concerning a fact – the request for an order for costs – whose existence was mistakenly recorded by the Court of First Instance, which consequently led to an error in law. Therefore, Mr Parigi, considering himself to be the victim of a judicial error, requests the Court to declare the cross-appeal admissible and well founded.
136. The Parliament
challenges, firstly, the way Mr Parigi categorises his appeal. According to the Parliament, it is clear from analysis both of the articles quoted by Mr Parigi and from the actual content of his ‘response’ that it is not so much a ‘cross-appeal’ against the judgment of the Court of First Instance as an independent appeal against this judgment, brought after the expiry of the time-limit. The Parliament alleges, in this regard, that the first paragraph of Article 51 of the EC Statute of the Court of Justice invoked by Mr Parigi does not apply to cross-appeals, whilst Article 115(1) of the Rules of Procedure of the Court refers to the response to the appeal and not to a document ‘containing a cross-appeal’. Similarly, the first indent of Article 116(1) of these Rules of Procedure applies to the total or partial rejection of the appeal or the total or partial annulment of the Court of First Instance’s decision forming the subject of the appeal. In the present case, the claims in the response may therefore relate only to the Court of First Instance’s judgment in Cases T-83/99 and T-84/99, concerning Mr Ripa di Meana and Mr Orlando.
137. The Parliament points out, secondly that although the second indent of Article 116(1) of the Rules of Procedure of the Court refers to the total or partial acceptance of the claims presented at first instance, to the exclusion of any new claim, it does not provide, in any event, for the time-limit laid down in the first paragraph of Article 49 of the EC Statute of the Court of Justice to be extended. However, in the present case, Mr Parigi brought his appeal well after the legal period of two months from the notification of the contested judgment.
138. The Parliament points out, lastly, that, even if Mr Parigi’s response were taken into consideration, it should, in any event, be declared inadmissible on the ground that it contravenes the second paragraph of Article 51 of the EC Statute of the Court of Justice, under which ‘[n]o appeal shall lie regarding only the amount of the costs or the party ordered to pay them’. The Parliament rejects, in this regard, the ‘fallacious’ interpretation given to this provision by Mr Parigi in his response.
B – Assessment
139. It need only be stated that the cross-appeal brought by Mr Parigi is an appeal with the sole object of challenging the Court of First Instance’s decision on the costs in Case T-85/99.
140. However, as the Parliament rightly points out, under the second paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may not relate solely to liability for and the amount of the costs. This provision is clear and does not, contrary to what Mr Parigi maintains, allow exceptions to be made depending on the nature of the error affecting the decision taken by the Court of First Instance on the costs.
141. I therefore propose that the Court dismiss the cross-appeal as inadmissible and order Mr Parigi to pay the costs incurred in the cross-appeal.
142. I should also add, just in case, that Mr Parigi’s argument that his action ought to be viewed as one brought by a servant of the Community against one of its institutions and that, therefore, the Court of First Instance ought to have applied Article 88 of the Rules of Procedure of the Court of First Instance cannot be accepted.
143. It is of course true, as is clear from Kontogeorgis
v Commission, (11) to which Mr Parigi refers, that a member of an institution may bring an action based on Article 236 EC against his institution.
144. However, it is mandatory that, for such an action to be admissible, it must be preceded by the preliminary administrative procedure provided for by Articles 90 and 91 of the Staff Regulations of Officials of the European Communities. (12)
145. Since Mr Parigi and, moreover, also Mr Ripa di Meana and Mr Orlando did not follow this procedure – unlike Mr Kontogeorgis (13) –, their action cannot be viewed as an action based on Article 236 EC. It must be defined rather as an action based on Article 230 EC which is also accessible to the members of an institution. (14)
VII – Conclusion
146. Having regard to the foregoing, I propose that the Court:
– set aside the judgment of the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T‑83/99 to T-85/99 Ripa di Meana and Others
v Parliament
in so far as it upheld, in Cases T-83/99 and T-84/99, the action for annulment of the European Parliament’s decisions of 4 February 1999, Nos 300762 and 300763, rejecting the requests submitted by Mr Ripa di Meana and Mr Orlando respectively for the provisional pension scheme referred to in Annex III to the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament to apply with retroactive effect;
– dismiss as unfounded the action for annulment in Cases T-83/99 and T‑84/99;
– dismiss as inadmissible the cross-appeal submitted by Mr Parigi;
– order Mr Ripa di Meana and Mr Orlando to bear their own costs as well as those of the European Parliament in Cases T-83/99 and T-84/99 and to bear their own costs as well as those of the European Parliament incurred in the main appeal;
– order Mr Parigi to bear his own costs as well as those of the European Parliament incurred in the cross-appeal.
(1) .
(2)  –	Cases T-83/99 to T-85/99 [2000] ECR II-3493.
(3)  –	Emphasis added.
(4)  –	Case C-314/91 Weber
v Parliament
[1993] ECR I-1093.
(5)  – Emphasis added
(6)  –	Case 195/80 [1981] ECR 2861.
(7)  –	Case 236/86 [1988] ECR 3761.
(8)  – See also Case C-180/88 Wirtschaftsvereinigung Eisen- und Stahlindustrie
v Commission
[1990] ECR I‑4413, paragraph 22, Case C-309/95 Commission
v Council
[1998] ECR I‑655, paragraph 18, and the order of 5 March 1993 in Case C-102/92 Ferriere Acciaierie Sarde
v Commission
[1993] ECR I‑801, paragraph 18.
(9)  – First subparagraph of paragraph 13(d) of the rejoinder. Emphasis in the original, with the exception of the part of the sentence ‘immediately … amendment’, where emphasis has been added.
(10)  –	Case C-30/91 P [1992] ECR I-3755, paragraph 38.
(11)  –	Case 163/88 [1989] ECR 4189.
(12)  –	See, inter alia, Case 200/87 Giordani
v Commission
[1989] ECR 1877, paragraph 22.
(13)  –	See the Opinion of Advocate General Jacobs in Kontogeorgis
v Commission, point 7.
(14)  –	See, for example, Case C-416/92 H.
v Court of Auditors
[1994] ECR I-1741, and in particular the Opinion of Advocate General Lenz in this case, point 31.