62013TO0043_EN
Parties
Grounds
Operative part
Parties
In Case T‑43/13,
Beniamino Donnici,
residing in Castrolibero (Italy), represented by V. Vallefuoco and J.-M. Van Gyseghem, lawyers,
applicant,
v
European Parliament,
represented by N. Lorenz and S. Seyr, acting as Agents,
defendant,
ACTION for damages for the loss which the applicant allegedly suffered as a result of the adoption of the Parliament’s decision of 24 May 2007 regarding the verification of the applicant’s credentials, which was annulled by decision of the Court of Justice in Joined Cases C‑393/07 and C‑9/08 Italy and Donnici
v Parliament
[2009] ECR I‑3679,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Grounds
Background to the dispute
1. At the elections to the European Parliament, held on 12 and 13 June 2004, the applicant, Mr Beniamino Donnici, was a candidate on the ‘Società Civile — Di Pietro Occhetto’ list. That list won two seats, the first in the Italy South constituency and the second in the Italy North-West constituency. Mr Antonio Di Pietro was placed first on the lists in both constituencies and opted for the Italy South constituency.
2. Mr Achille Occhetto was second on the electoral lists in the light of the number of votes obtained in the two constituencies, coming ahead of the applicant in the Italy South constituency and of Mr Giulietto Chiesa in the Italy North-West constituency. Since Mr Di Pietro opted to take his seat for the Italy South constituency, Mr Occhetto should have been declared elected in the Italy North-West constituency. However, by a written declaration of 6 July 2004 received the next day by the Ufficio elettorale nazionale per il Parlamento europeo presso la Corte di cassazione (National Electoral Office for the European Parliament at the Court of Cassation; ‘the National Electoral Office’), Mr Occhetto, who at the time was a member of the Senate of the Italian Republic, gave up his seat in the European Parliament for both constituencies.
3. Following that withdrawal, on 18 July 2004, the National Electoral Office declared the election of Mr Chiesa in the Italy North-West constituency and of Mr Di Pietro in the Italy South constituency and, on 12 November 2004, communicated the name of the applicant as first on the list of substitutes for Mr Di Pietro in respect of the Italy South constituency, whilst Mr Occhetto, who had withdrawn, did not appear on that list.
4. In the parliamentary elections held in Italy on 9 and 10 April 2006, Mr Di Pietro was elected as a Member of the Parliament of the Italian Republic and opted to take his seat in the national parliament, with effect from 28 April 2006. Since, pursuant to Article 7(2) of the act concerning the election of representatives to the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1976 L 278, p. 1), as amended and renumbered by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1), that office was incompatible with the office of Member of the European Parliament, the Parliament declared the seat in question vacant.
5. By declaration of 27 April 2006, addressed to the National Electoral Office, Mr Occhetto, who had stood as a candidate at those national elections but had not been re-elected, revoked his withdrawal of 6 July 2004 and asked to take over the seat which had fallen vacant following Mr Di Pietro’s decision to take his seat in the Parliament of the Italian Republic.
6. Following that declaration, on 8 May 2006, the National Electoral Office declared the election of Mr Occhetto to the European Parliament and on the same day communicated his name to that Parliament as substitute for Mr Di Pietro.
7. By judgment of 21 July 2006, the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio (Italy)) dismissed as unfounded the applicant’s action for annulment of that declaration.
8. The applicant also brought an appeal before the European Parliament against the declaration of the election of Mr Occhetto as a Member of the European Parliament in place of Mr Di Pietro. His objection was examined by the Parliament’s Committee on Legal Affairs at its meeting on 21 June 2006. After establishing that, under Article 12 of the act concerning the election of representatives to the European Parliament by direct universal suffrage, annexed to Decision 76/787, as amended and renumbered, the objection was inadmissible because it was founded on the legge n. 18, Elezione dei membri del Parlamento europeo spettanti all’Italia (Law No 18 on the election in Italy of Members of the European Parliament) of 24 January 1979 (GURI No 29 of 30 January 1979, p. 947), the Committee on Legal Affairs passed a unanimous resolution proposing the validation of Mr Occhetto’s mandate. On 3 July 2006, the European Parliament confirmed Mr Occhetto’s mandate.
9. By judgment of 6 December 2006, the Consiglio di Stato (Council of State, Italy) allowed the applicant’s appeal against the ruling of the Tribunale amministrativo regionale del Lazio and annulled the declaration of Mr Occhetto’s election as a Member of the European Parliament made by the National Electoral Office on 8 May 2006.
10. The judgment of the Consiglio di Stato became res judicata
following the judgment of 26 March 2007 of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which declared the appeal brought by Mr Occhetto inadmissible on account of a procedural defect.
11. On 29 March 2007, the National Electoral Office took formal note of the judgment of the Consiglio di Stato and declared Mr Donnici to have been elected as Member of the European Parliament for the Italy South constituency, and accordingly revoked Mr Occhetto’s mandate. That declaration was notified to the European Parliament, which took formal note of it in the minutes of the plenary session of 23 April 2007, pursuant to which the applicant took his seat in the Parliament, but only provisionally and subject to the Parliament’s subsequent decision regarding the verification of his credentials.
12. Meanwhile, by letter of 5 April 2007, Mr Occhetto raised an objection and requested the Parliament to ratify his mandate and not to validate that of the applicant. In response to that objection, the Parliament submitted the applicant’s mandate to examination by its Committee on Legal Affairs.
13. By decision of the European Parliament of 24 May 2007 regarding the verification of the applicant’s credentials (‘the contested decision’), the applicant’s mandate was declared invalid and Mr Occhetto’s mandate was confirmed.
14. The contested decision was notified to the applicant on 29 May 2007.
15. By application lodged at the Registry of the General Court on 22 June 2007, the applicant brought an action for annulment of the contested decision.
16. The applicant also submitted an application for suspension of the operation of the contested decision. The judge hearing the application for interim measures granted that application by order of 15 November 2007 in Case T‑215/07 R Donnici v Parliament
[2007] ECR II‑4673 and suspended the operation of the contested decision. The applicant was consequently able to take his seat in the European Parliament once again.
17. By application lodged at the Registry of the Court on 9 August 2007, registered as Case C‑393/07, the Italian Republic brought an action for the annulment of the contested decision.
18. By order in Case T‑215/07 Donnici
v Parliament [2007] ECR II‑5239, the General Court declined jurisdiction in Case T‑215/07 in favour of the Court of Justice in order to enable the latter to rule on the action for annulment. That action was registered at the Court of Justice as Case C‑9/08.
19. By judgment of 30 April 2009 in Joined Cases C‑393/07 and C‑9/08 Italy and Donnici
v Parliament [2009] ECR I‑3679, the Court annulled the contested decision.
20. By letter of 6 July 2010, the applicant requested the European Parliament to compensate him for the loss he had suffered as a result of the adoption of the contested decision.
21. The Secretary-General of the European Parliament replied by letter of 1 October 2010, refusing the applicant’s request for compensation.
22. By letter of 22 June 2011, the applicant answered the Secretary-General’s letter of 1 October 2010, reiterating his request for compensation and giving the Parliament formal notice to reply. The applicant received no answer from the Parliament.
Procedure and forms of order sought
23. By application lodged at the Registry of the General Court on 29 January 2013, the applicant brought the present action.
24. By separate document lodged at the Court Registry on 25 April 2013, the European Parliament raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. The applicant lodged his observations on that objection on 10 June 2013.
25. The applicant claims that the Court should:
– order the European Parliament to pay the sum of EUR 1 720 470 or such lesser sum as may be determined by the Court;
– order the European Parliament to pay the costs.
26. In its objection of inadmissibility, the European Parliament contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
27. In his observations on the objection of inadmissibility, the applicant contends that the Court should dismiss that objection and grant the form of order specified in his application.
Law
Arguments of the parties
28. The European Parliament submits that the action was brought after the expiry of the five-year period laid down by Article 46 of the Statute of the Court of Justice of the European Union.
29. The applicant disputes, in substance, that he commenced his action for damages after the expiry of the five-year limitation period and requests the Court to give judgment by default and grant him the form of order which he seeks on the ground that, in his opinion, the European Parliament lodged its objection of inadmissibility after the expiry of the two-month period within which the defendant must lodge its defence and that that time-limit should also apply to the lodging of its objection of inadmissibility.
30. The applicant seeks the payment of compensation in respect of four heads of claim: first, damages in respect of the salary that he would have received between 29 March and 15 November 2007, together with various allowances and the flat‑rate reimbursement of various expenses incurred in the performance of his duties as a Member over the same period; secondly, the loss of his opportunity of being re-elected for a new term; thirdly, damages arising from his having been deprived by the contested decision of the right to perform his political duties as a Member of the European Parliament for almost a fifth of the duration of his mandate and, fourthly, damages for the harm resulting from his inability to attend to the acquisition of pension rights that he could have acquired as a Member of the European Parliament.
Assessment of the Court
31. Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral.
32. Under Article 111 of the Rules of Procedure, where it is clear that the General Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.
33. In the present case, the General Court considers that the information in the documents before it is sufficient for there to be no need to proceed to the oral stage of the proceedings.
The late lodging of the objection of inadmissibility
34. The applicant argues, in substance, that it is appropriate for the Court to give judgment by default and grant him the form of order which he seeks on the ground that, in his opinion, the European Parliament lodged its objection of inadmissibility after the expiry of the two-month period laid down by Article 46(1) of the Rules of Procedure for lodging a defence and that that time-limit also applies to the lodging of an objection of inadmissibility.
35. In the present case, the application was lodged at the Registry of the General Court on 29 January 2013. It was notified to the European Parliament on 18 February 2013 and received by the Parliament on 19 February 2013 (see Annex B1 to the objection of inadmissibility).
36. The European Parliament lodged its objection of inadmissibility on 25 April 2013.
37. The period prescribed for lodging the defence is indeed two months.
38. That is the period of time within which the defendant institution must respond to the application, choosing either to answer the substance of the case by lodging a defence or to raise an objection of inadmissibility by lodging an objection to that effect in accordance with Article 114(1) of the Rules of Procedure.
39. It must therefore be held that the prescribed period for lodging an objection of inadmissibility is also two months.
40. However, in accordance with Article 102(2) of the Rules of Procedure, ‘[t]he prescribed time-limits shall be extended on account of distance by a single period of ten days’.
41. Moreover, it has been held that the period laid down by Article 46(1) of the Rules of Procedure for lodging the defence does not begin to run until the date of receipt of the application by the defendant (order in Case T‑47/92 Lenz
v Commission
[1992] ECR II‑2523, paragraph 34).
42. That case-law is to be regarded as equally applicable to the period for lodging an objection of inadmissibility.
43. In the present case, therefore, the prescribed period came to an end on 29 April 2013.
44. Since the European Parliament lodged its objection of inadmissibility on 25 April 2013, it therefore did so within the prescribed period.
45. Consequently, the applicant’s request for the Court to give judgment by default must be rejected.
The limitation period
46. Under Article 46 of the Statute of the Court of Justice, proceedings against the European Union in matters arising from non-contractual liability are barred after a period of five years from the occurrence of the event giving rise thereto.
47. The length of the limitation period thus laid down was determined by taking into account, in particular, the time that the party which has allegedly suffered harm needs to gather the appropriate information for the purpose of a possible action and to verify the facts likely to provide the basis of that action (see Case C‑469/11 P Evropaïki Dynamiki
v Commission
[2012] ECR, paragraph 33 and the case-law cited).
48. In accordance with settled case-law, that limitation period begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 34 and the case-law cited).
49. It is, admittedly, appropriate to interpret Article 46 of the Statute of the Court of Justice as meaning that limitation cannot constitute a valid defence to a claim by a person who has suffered damage in the case where that person only belatedly became aware of the event giving rise to it and thus could not have had a reasonable time in which to submit his application before the expiry of the limitation period ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 35 and the case-law cited).
50. However, the conditions to which the obligation to pay compensation for damage referred to in the second paragraph of Article 340 TFEU is subject and, therefore, the rules on limitation periods which govern actions relating to that compensation for such damage may be based only on strictly objective criteria ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 36 and the case-law cited).
51. Thus, exact and detailed knowledge of the facts of the cause is not one of the conditions which must be met in order for the limitation period to begin running. Similarly, the subjective appraisal of the reality of the damage by the victim cannot be taken into consideration for the purpose of determining the moment at which the limitation period begins to run in proceedings brought against the European Union for non-contractual liability ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 37 and the case-law cited).
52. In the case of disputes arising from individual measures, the limitation period begins to run as soon as the decision has produced its effects vis-à-vis the persons concerned by it ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 38 and the case-law cited).
53. In the present case, the applicant’s claim for compensation is founded on the contested decision, by which the European Parliament declared the applicant’s mandate invalid and confirmed Mr Occhetto’s mandate.
54. The European Parliament’s decision thus constitutes the loss-causing event capable of giving rise to non-contractual liability on the part of the Union, as indeed the applicant himself argues in paragraph 40 of the application.
55. The adverse effects of the contested decision consequently affected the applicant as from the time when the European Parliament notified him of the contested decision.
56. In that context, it is irrelevant that the contested decision was annulled by the Court’s judgment in Italy and Donnici v Parliament, cited in paragraph 19 above. According to settled case-law, it is immaterial, as regards the starting point of the period of limitation, whether the European Union’s unlawful conduct has been established by a judicial decision ( Evropaïki Dynamiki
v Commission, paragraph 47, paragraph 42 and the case-law cited). The argument which the applicant draws from the judgments of the Court of Justice in Joined Cases 256/80, 257/80, 265/80, 267/80 and 5/81 Birra Wührer and Others
v Council and Commission [1982] ECR 85; Case 51/81 De Franceschi
v Council and Commission [1982] ECR 117; and of the General Court in Joined Cases T‑8/95 and T‑9/95 Pelle and Konrad
v Council and Commission
[2007] ECR II‑4117, which is that the limitation period begins to run from the time when the Court declares an act illegal, is based on an incorrect reading of those judgments and must, therefore, be dismissed.
57. Admittedly, under Article 46 of the Statute of the Court of Justice, the limitation period can be interrupted if a prior application is made to the relevant institution. Nevertheless, in such a case, the limitation period will actually be interrupted only if the application is followed by the institution of proceedings within the time‑limit determined by reference to Article 263 TFEU or Article 265 TFEU.
58. In the present case, the letters which the applicant sent to the European Parliament on 6 July 2010 and 22 June 2011 were not followed by the institution of proceedings within the time-limit determined by reference to Article 263 TFEU or Article 265 TFEU and those letters therefore have no effect on the five-year limitation period laid down by Article 46 of the Statute of the Court of Justice.
59. Notwithstanding, it is important to bear in mind that, according to settled case‑law, damage is considered to be ongoing in nature due to the fact that the amount of the alleged damage increases in proportion to the number of days which have elapsed (Case C‑460/09 P Inalca and Cremonini v Commission
[2013] ECR, paragraph 80).
60. In the case of continuing damage, the limitation period referred to in Article 46 of the Statute of the Court of Justice applies, by reference to the date of the event which interrupted the limitation period, to the period preceding that date by more than five years and does not affect rights which arose during subsequent periods (orders in Case T‑369/03 Arizona Chemical and Others
v Commission
[2005] ECR II‑5839, paragraph 116, and of 10 April 2008 in Case T‑336/06 2K-Teint and Others
v Commission and EIB, not published in the ECR, paragraph 106).
61. It is therefore necessary to examine the various heads of damage in respect of which the applicant seeks compensation.
62. First, the applicant claims the sum of EUR 90 000 (EUR 12 000 x 7.5 months) by way of unpaid salary for the period from 29 March to 15 November 2007.
63. The applicant also seeks compensation, in respect of the same period, from 29 March to 15 November 2007, for various heads of damage arising from a loss of opportunity — which he evaluates by reference to a multiplier which he sets at 90% — as follows: EUR 45 000 in respect of the flat-rate reimbursement of air travel (EUR 1 500 x 4 weeks x 7.5 months), EUR 2 000 by way of flat-rate payments for conferences and round-table discussions (EUR 3 800 per annum), EUR 43 500 in subsistence allowances (EUR 290 x 5 working days x 4 weeks x 7.5 months), EUR 112 500 on account of having no parliamentary assistants (EUR 15 000 x 7.5 months) and EUR 30 000 by way of the flat-rate reimbursement of general expenses, in all giving a total of EUR 234 300, which, multiplied by 90%, gives a final sum of EUR 210 870.
64. However, according to the applicant himself, the alleged damage materialised definitively on 15 November 2007.
65. Consequently, the limitation period expired on 15 November 2012, without any action having been taken to interrupt it, the application having in fact been lodged only on 29 January 2013.
66. The action is therefore time-barred in so far as concerns this first head of damage.
67. In this connection, the applicant’s argument that, as at 15 November 2007, the loss was merely likely, not certain, and that it became certain only after the Court gave judgment in Italy and Donnici v Parliament
annulling the contested decision, is unfounded.
68. Indeed, the harm consisting in the loss of salary and of the various allowances and flat-rate reimbursements of expenses associated with the performance of the applicant’s duties between 29 March and 15 November 2007 had in fact entirely materialised and, consequently, was certain as from 15 November 2007.
69. Moreover, and in any event, the finding that the contested decision was unlawful has no effect on the starting point of the period of limitation (see paragraph 56 above).
70. Lastly, and for the sake of completeness, it should be observed that the applicant sat in the European Parliament, or was at least in a position to do so, from 23 April 2007 (the date on which the European Parliament took formal note, in plenary session, of the applicant’s election as a Member) to 24 May 2007 (the date on which it declared the applicant’s mandate invalid).
71. Secondly, the applicant claims an award of damages in the sum of EUR 200 000 arising from his having been deprived by the contested decision of the right to perform his political duties as a Member of the European Parliament for almost a fifth of the duration of his mandate.
72. Once again, it must be held that, according to the applicant’s own pleadings, any possible harm that he might have suffered had, in any event, entirely materialised by 15 November 2007.
73. The action is therefore time-barred also with regard to this second head of damage.
74. Thirdly, the applicant maintains that, since he was unable to perform his duties for seven and a half months he was unable to acquire pension rights in respect of the entirety of his mandate.
75. Consequently, the applicant claims the sum of EUR 831 600 corresponding to the entirety of the income that he would have received had he acquired rights throughout the five-year period of his mandate, which he assesses, ex aequo et bono, on the basis of fifteen years.
76. It must be held that, according to the applicant’s own pleadings, any possible harm that he might have suffered, that is to say, his failure to acquire pension rights between March and November 2007, had, in any event, entirely materialised by 15 November 2007.
77. The action is therefore time-barred also with regard to this third and last head of damage.
78. As to the remainder, it must be observed, first, that, since the applicant was merely a substitute and did not sit in Parliament between 12 and 13 June 2004 and 29 March 2007, he cannot claim that he was prevented from acquiring pension rights during that period, since he was not at that time a Member of the European Parliament. Secondly, inasmuch as the applicant sat in Parliament between 15 November 2007 and 6 June 2009, the date on which the legislature ended, he was in a position to acquire pension rights during that period.
79. Consequently, the applicant’s action alleging non-contractual liability on the part of the European Parliament was time-barred when he instituted the proceedings in so far as concerns the three heads of claim examined above.
The loss of opportunity of being re-elected for a further five-year term
80. The applicant claims an award of damages in the sum of EUR 388 000 on account of the loss of his opportunity of being re-elected for a further five-year term in that, in substance, he was prevented from sitting in Parliament for seven and a half months and was then implicated in the ensuing legal proceedings which lasted for more than two years. He maintains that he was thus excluded from political life for almost a fifth of the duration of his mandate, which prevented him from developing his network of contacts as he might have had he been engaged fully in the political sphere. He considers that his loss arises from his having foregone both the salary to which he would have been entitled had he been re-elected and the new opportunities which such a mandate could have created for his political career, which would have been of significant economic value, entailing new and prestigious institutional appointments.
81. It must be borne in mind in this connection that the second paragraph of Article 288 EC has consistently been interpreted as meaning that the non‑contractual liability of the Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see C‑419/08 P Trubowest Handel and Makarov
v Council and Commission
[2010] ECR I‑2259, paragraph 40 and the case-law cited).
82. Since the three conditions giving rise to liability laid down in the second paragraph of Article 288 EC must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (Case C‑257/98 P Lucaccioni v Commission
[1999] ECR I‑5251, paragraph 14).
83. Moreover, there is no requirement that those conditions be examined in any particular order (see, to that effect, Lucaccioni
v Commission, paragraph 82, paragraph 13).
84. The principles common to the laws of the Member States to which the second paragraph of Article 288 EC refers cannot be relied upon to found an obligation on the Union to make good every harmful consequence, even a remote one, of conduct of its institutions. The condition relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage (see, to that effect, Trubowest Handel and Makarov
v Council and Commission, paragraph 81, paragraph 53 and the case-law cited).
85. In the present case, the applicant merely alleges that he could not be re-elected because he had been prevented from sitting in Parliament from 29 March to 15 November 2007 and that that harm materialised on the day when he was not re‑elected. However, he has not in any way established that there is a sufficient direct causal nexus between those two events.
86. Moreover, it must be observed that the applicant has not even established that he was a candidate in the European elections or that his name was on any electoral list on that occasion.
87. Therefore, it must be held that his action is, in this regard, manifestly lacking any foundation in law
88. The action must therefore be dismissed in its entirety.
Costs
89. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful and the European Parliament has applied for costs, the applicant must be ordered to pay the costs relating to the present proceedings.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed.
2. Mr Beniamino Donnici is ordered to pay the costs relating to the present proceedings.
Luxembourg, 20 March 2014.