Action brought on 10 October 2022 — Repasi v Commission

(Case T-628/22)

(2023/C 24/60)

Language of the case: German

Parties

Applicant: René Repasi (Karlsruhe, Germany) (represented by: H.-G. Kamann and D. Fouquet, lawyers, and Prof. F. Kainer and Prof. M. Nettesheim)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities, published in the Official Journal of the European Union of 15 July 2022 L 188, p. 1;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law.

The applicant alleges that the contested Delegated Regulation (EU) 2022/1214 infringes the second subparagraph of Article 290(1) TFEU, read in conjunction with Articles 2, 10(1), 13(1) and 14(1) TEU, which are given specific expression by the applicant’s parliamentary participation rights under secondary law, in particular under the first sentence of Article 6(1) of the Elections Act, Article 2 et seq. of the Statute for Members and Rules 177 and 218(1) of the Rules of Procedure of the European Parliament.

The applicant claims that he has an individual right to participate in a properly administered legislative procedure, on account of his status as a member of the European Parliament, pursuant to Articles 2, 10(1), 13(1) and 14(1) TEU, which are given specific expression by the applicant’s parliamentary participation rights under secondary law, in particular under the first sentence of Article 6(1) of the Elections Act, Article 2 et seq. of the Statute for Members and Rules 177 and 218(1) of the Rules of Procedure of the European Parliament. He claims that, by adopting the contested delegated regulation on the basis of Article 290 TFEU instead of initiating the ordinary legislative procedure — which was, in actual fact, appropriate — pursuant to Article 289 TFEU by means of a corresponding proposal, the European Commission infringed not only the institutional legislative power of the European Parliament, pursuant to Article 14(1) TEU and Articles 289 and 294 TFEU, and the principle of institutional balance pursuant to the first sentence of Article 13(2) TEU, but also the applicant’s individual right to participate in a properly administered legislative procedure directly and individually. A member of the European Parliament may bring an action for annulment under the fourth paragraph of Article 263 TFEU against breach of the rules governing allocation of powers, essential procedural requirements or a misuse of powers by other EU bodies, in so far as his or her right to participate in a properly administered legislative procedure is affected, in order to obtain a referral to the European Parliament.

The applicant alleges that the classification of energy production by fossil natural gas and nuclear power as environmentally sustainable economic activities within the meaning of the Taxonomy Regulation (EU) 2020/852 of 18 June 2020 constitutes — irrespective of the political position — a highly political and thus essential aspect of facilitating sustainable investment, which, pursuant to the second sentence of Article 290(1) TFEU, is reserved for a legislative act pursuant to Article 289 TFEU. The applicant submits that, by adopting the contested delegated regulation, irrespective of its substantive legality, the Commission exceeded its powers in breach of the principle of institutional balance under the first sentence of Article 13(2) TEU. This also constitutes infringement of the European Parliament’s legislative power and of the applicant’s democratic and parliamentary right to participate in a properly administered legislative procedure.