Order of the Court of First Instance (Fourth Chamber) of 9 July 2002. - Carlo Ripa di Meana v European Parliament. - Case T-127/01.



European Court reports 2002 Page II-03005



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Actions for annulment - Actionable measures - Definition - Measures producing binding legal effects - Decision merely confirmatory - Not actionable

(Art. 230 EC)

Summary

$$Acts or decisions against which an action for annulment may be brought under Article 230 EC are those which produce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal situation. To determine whether an act or decision produces such effects, it is necessary to look to its substance. As a consequence, an action for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is inadmissible. A decision is merely confirmatory where it contains no new factors as compared with the earlier decision and is not preceded by a reexamination of the situation of the addressee of the earlier decision.

( see para. 25 )

Parties

In Case T-127/01,

Carlo Ripa di Meana, former Member of the European Parliament, residing in Montecastello di Vibio (Italy), represented by W. Viscardini Donà and G. Donà, lawyers,

applicant,

v

European Parliament, represented by A. Caiola and G. Ricci, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of the decision of the European Parliament of 26 March 2001 suspending the applicant's retirement pension following his election to the Regional Council of Umbria (Italy),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: M. Vilaras, President, V. Tiili and P. Mengozzi, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Background to the dispute

1 The applicant, an Italian national, was a Member of the European Parliament during the legislative periods 1979-1984 and 1994-1999.

2 In the absence of a definitive Community pension scheme for all the Members of the Parliament, the Bureau of the Parliament adopted, on 24 and 25 May 1982, a provisional retirement pension scheme (hereinafter the provisional pension scheme) for those Members from countries whose national authorities do not provide a pension scheme for Members of the Parliament. That scheme applies also where the level and/or the conditions of the pension provided for are not identical to those applicable to the members of parliament of the State for which the Member of the European Parliament concerned was elected. That provision applies at present only to Italian and French Members. The provisional pension scheme is mentioned in Annex III to the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament (hereinafter Annex III).

3 The provisional pension scheme (as amended by the decision of the Bureau of the Parliament of 13 September 1995) provides, inter alia:

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.

...

4 Article 12(1) of the Regolamento per gli assegni vitalizi dei deputati (regulation on life-annuities applicable to Members of the Lower Chamber of the Italian Parliament, hereinafter the Italian regulation) provides:

Where a member who has already completed his mandate is re-elected as a Member of the National or the European Parliament or is elected as a Regional Councillor, the payment of a life-annuity to which he is entitled shall be suspended for the duration of that new mandate.

5 In accordance with the provisions set out in Annex III and Article 12 of the Italian regulation, the Head of the Members' Financial Affairs Division of the European Parliament wrote a letter to the applicant dated 26 January 2001 in respect of the suspension of payment for the duration of his mandate of his retirement pension as a former Member of the European Parliament on the ground that he had been elected to the Regional Council of Umbria. The letter was set out in the following terms:

Allow me to draw your attention to the provisions of Article 12 of the Regolamento per gli assegni vitalizi dei deputati (copy attached), applicable by analogy to Italian members who have contributed towards a pension from the European Parliament, which provide that the payment of the pension be suspended during the mandate as a Member of the National or the European Parliament or as a regional councillor.

Since it has come to our attention that you are serving as a regional councillor, we are obliged to suspend your pension rights.

To enable us to calculate the amount of pension that has been paid to you in error, I should be grateful if you would inform me of the date you were elected regional councillor.

6 The applicant received this letter on 31 January 2001, as the acknowledgment of receipt shows.

7 By letter of 15 March 2001 the applicant expressed his surprise at the intention of the European Parliament to suspend the payment of his pension on the basis of his election as regional councillor. He set out the factual and legal reasons why, in his view, the Italian regulation was not applicable by analogy to him.

8 By letter of 26 March 2001 (hereinafter the letter of 26 March 2001 or the contested decision), the Parliament replied to him in the following terms:

In reply to your letter referred to above in which you expressed your surprise at the suspension of your pension as a former Member of the European Parliament following your election as regional councillor, I confirm that the decision is in accordance with the terms of Article 12(1) of the regulation of the Camera and the practice of the Camera.

I agree that the current text of the regulation of the Camera is incomplete. It is complete as regards the suspension of pensions but lacks, in respect of the reestablishment of rights, a reference to the office of regional councillor.

Nevertheless, the rules adopted by the political authority, intended to prevent the aggregation of a Member of Parliament or regional councillor pension and a Member of Parliament's or councillor's salary, are clear, and I would therefore ask that you inform me as soon as possible of the date of your election as regional councillor.

By way of information, I would point out that, in the meantime, your pension has been suspended.

Procedure and forms of order sought by the parties

9 By application lodged at the Registry of the Court of First Instance on 12 June 2001, the applicant brought the present action claiming that the Court should:

- annul the contested decision;

- in the alternative, annul the contested decision in so far as it concerns the suspension of his pension in respect of the legislative period 1979-1984;

- order the Parliament to pay the applicant the monthly payments of the suspended pension in relation to the legislative periods 1979-1984 and 1994-1999 or, in the alternative, in relation to the legislative period 1979-1984, together with interest as from the month in which the suspension took effect;

- order the Parliament to pay the costs.

10 By document lodged at the Registry of the Court of First Instance on 27 July 2001, the Parliament raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance. To that end, the Parliament requests the Court to:

- declare the application inadmissible;

- order the applicant to pay the costs.

11 In its observations on the plea of inadmissibility, lodged on 20 September 2001, the applicant claims that the Court should:

- declare the application admissible;

- order the Parliament to pay the costs.

12 By way of measures of organisation of procedure the Court of First Instance invited the applicant and the defendant to reply in writing to certain questions. The parties complied with the Court's request within the specified time-limit.

Admissibility

Arguments of the parties

13 The Parliament contests the admissibility of the action on the ground of, first, failure to observe the time-limit laid down in Article 230 EC and, second, failure to follow the procedure referred to in Article 27 of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament.

14 First, the Parliament considers that the letter of 26 March 2001 is merely a confirmation of the decision of 26 January 2001 notified to the applicant on 31 January 2001. Since the applicant did not challenge this latter decision within two months of its notification, the present action is out of time and therefore inadmissible.

15 In the Parliament's view, the letter of 26 March 2001 contains nothing new and is not therefore a decision capable of reopening the time-limits for bringing proceedings. That letter simply gives certain explanations to the applicant and cannot be considered an act open to challenge.

16 Second, the Parliament argues that the action is inadmissible due to the failure to follow the procedure laid down in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament. In the Parliament's view, that procedure provides that a Member who considers that those rules have been incorrectly applied may write to the Secretary-General of the Parliament and that, 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 and possibly the President and/or the Bureau.

17 Finally, third, the Parliament submits that the third head of claim is manifestly inadmissible since, according to the Treaties, it is for the institution which adopted the annulled act to take the measures required to comply with the judgments of the Community Courts.

18 The applicant responds that the letter of 26 January 2001 should be considered a mere interlocutory letter. In his view, it expressed a mere intention to suspend payment of his pension, which could not take effect immediately since the suspension required at least confirmation from the applicant that he had actually been elected to the Regional Council.

19 The applicant submits that he was entitled in good faith to expect that that question would first of all be discussed with him instead of a decision being taken immediately and in a unilateral manner, because it was the first time that the competent services had informed him that they considered that Article 12 of the Italian regulation was applicable to him.

20 In the applicant's view, the letter of 26 March 2001 cannot be considered merely as a confirmation of a previous decision since it was preceded by an examination of the grounds which he had put forward by the letter of 15 March 2001 contesting the Parliament's claim to apply by analogy Article 12 of the Italian regulation and because it includes at least one new element compared with the letter of 26 January 2001.

21 In respect of the first point, the tenor of the letter of 26 March 2001 shows that the Parliament took a view on the arguments put forward by the applicant by including in it two new arguments compared with the letter of 26 January 2001. These new arguments are, first, a reference to the intention of the political authority to prevent the aggregation of a pension and a salary as Member of Parliament or regional councillor and, second, a reference to the practice of the Italian Chamber of Deputies.

22 As regards the second point, the applicant submits that the letter of 26 March 2001 mentions for the first time that his pension has been suspended. It is therefore this letter which directly affected the applicant's financial situation.

23 In the applicants' view, the procedure laid down in Article 27(2) of the Rules Governing the Payment of Expenses and Allowances to Members of the European Parliament is not a compulsory pre-litigation procedure. If it were, it would be contrary to the principle of legal certainty and would not offer the necessary safeguards against the expiry of time-limits within which actions must be brought. Moreover, the non-compulsory nature of that procedure with respect to Members of the European Parliament was confirmed by the judgment of the Court of First Instance in Joined Cases T-83/99 to T-85/99 Ripa di Meana and Others v Parliament [2000] ECR II-3493, paragraph 20). The same conclusion is valid for persons who, like the applicant, have, at the time the action was commenced, no longer been Members of the European Parliament for more than two years.

Findings of the Court

24 Pursuant to Article 114(3) of the Rules of Procedure, where a party applies to the Court of First Instance for a decision on admissibility not going to the substance of the case, the remainder of the proceedings on the plea of admissibility is to be oral unless the Court of First Instance decides otherwise. In the present case, the Court of First Instance considers that it has sufficient information from an examination of the documents before it. Accordingly, there is no need to open the oral procedure before deciding the question of admissibility.

25 It has consistently been held that acts or decisions against which an action for annulment may be brought under Article 230 EC are those which produce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal situation (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Joined Cases T-125/97 and T-127/97 Coca Cola v Commission [2000] ECR II-1733, paragraph 77). To determine whether an act or decision produces such effects, it is necessary to look to its substance (Coca-Cola v Commission, paragraph 78). As a consequence, an action for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is inadmissible. A decision is merely confirmatory where it contains no new factors as compared with the earlier decision and is not preceded by a reexamination of the situation of the addressee of the earlier decision (order of the Court of First Instance of 4 May 1998 in Case T-84/97 BEUC v Commission [1998] ECR II-795, paragraph 52 and the case-law cited therein).

26 In the present case it is first necessary to examine whether the letter of 26 January 2001 constitutes an act open to challenge. In this letter, the person responsible in the competent service of the Parliament wrote to the applicant, inter alia, the following: Since it has come to our attention that you are serving as a regional councillor, we are obliged to suspend your pension rights. To enable us to calculate the amount of pension that has been paid to you in error, I should be grateful if you would inform me of the date you were elected regional councillor. That passage indicates that the Parliament had decided to suspend the applicant's entitlement to the pension. In addition, the Parliament had also given in that letter the reasons for that decision.

27 The letter of 26 January 2001 could be analysed as a preliminary or preparatory statement of position only if the Parliament had clearly indicated in it that its conclusion was valid only subject to the submission by the parties of supplementary observations (Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681, paragraph 30). The letter of 26 January 2001 did not contain any such qualification but merely asked the applicant to provide the date of his election for the purposes of calculating the amount of pension paid in error.

28 This analysis is supported by the reply of the Parliament to a written question posed by the Court, according to which the decision of 26 January 2001 was applied immediately, namely as from the next monthly payment, that is in February 2001. It is apparent from the applicant's statement of account of 1 March 2001, supplied by him to the Court, that he was not credited with his pension for February 2001. It follows that, after the payment of the pension for January 2001 which was made on 26 January 2001, the applicant no longer received his pension.

29 As a consequence, there is no doubt that the Parliament's initial decision of 26 January 2001 constitutes the act which immediately and directly affected the applicant's legal situation and which was liable to be challenged. It is common ground that the act in question was not challenged in due time.

30 The applicant's assertions that the contested decision was adopted after a reexamination of his position, following his letter of 15 March 2001, with the result that the position taken by the Parliament in its decision of 26 January 2001 is only interlocutory, must be rejected.

31 In that connection, it is to be noted that in its letter of 26 March 2001 the Parliament merely stated that the Italian regulation is incomplete in certain respects but that the rules aimed at preventing the aggregation of a Member of Parliament's or regional councillor's pension and a Member of Parliament's or councillor's salary are clear and that the decision of 26 January 2001 accords with Italian practice. Those statements, set in their context, are not to be seen as showing that the decision to suspend the payment of the applicant's pension, notified by the letter of 26 January 2001, was the subject of a fresh examination. They are to be understood as meaning that the reasons which led the Parliament to suspend the applicant's pension are the same. The Parliament merely noted the ratio legis of the provision which had been applied by the decision of 26 January 2001 and indicated to the applicant that that decision was in line with Italian practice, without making any changes to the reasoning already supplied.

32 In addition, the fact that the applicant was informed by the letter of 26 March 2001 that his pension had been in fact suspended in the meantime cannot constitute a new factor lending to that letter the character of a new decision adversely affecting him. That information is only the implementation phase of the act adversely affecting him, namely the decision of 26 January 2001.

33 Therefore, since the letter of 26 March 2001 did not contain any new factor as compared with the letter of 26 January 2001 and there was no reexamination of the applicant's situation, the letter of 26 March 2001 is a decision which merely confirms the decision of 26 January 2001.

34 Consequently, since the decision of 26 January 2001 was not challenged, in accordance with the fifth paragraph of Article 230 EC, within the two-month time-limit running from its notification to the applicant, as extended, on account of distance, by the period laid down in the combined provisions of Article 102(2) of the Rules of Procedure and the third indent of Article 1 of Annex II to the Rules of Procedure of the Court of Justice, the action must be dismissed as inadmissible.

Decision on costs

Costs

35 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleadings. Since the applicant has been unsuccessful and the defendant has asked for costs, he is ordered to pay the costs incurred by the defendant.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby orders:

1. The action is dismissed as inadmissible.

2. The applicant shall pay the costs.