OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 20 January 2004 ( )

Case C-486/01 P

Front National

v

European Parliament

(Appeal – Statement of formation of a political group under Rule 29(1) of the Rules of Procedure of the European Parliament – Lack of political affinities between its members – Retroactive dissolution of the Group – Cross-appeal – Admissibility of the action for annulment brought at first instance by a national political party – Interpretation of the fourth paragraph of Article 230 EC – Concept of direct concern)

1. The Front National, a French political party, has brought an appeal against the judgment of the Court of First Instance of 2 October 2001 in case T-327/99 which dismissed as unfounded its action for the annulment of the decision of the European Parliament adopted on 14 September 1999 dissolving with retroactive effect the ‘Groupe technique des députés indépendants (TDI) – Groupe Mixte’.

2. In its defence, the European Parliament, by way of cross-appeal, contends that the Court of Justice should set aside that part of the contested judgment which held the action for annulment to be admissible. If the Parliament succeeds, the action by the Front National would be rendered inadmissible.

I – The action for annulment

A – Legal background

3. Rule 29 of the Rules of Procedure of the European Parliament, entitled Formation of political groups, in the version in force as from 1 May 1999, ( ) reads:

‘1. Members may form themselves into groups according to their political affinities.

2. A political group must comprise Members from more than one Member State. The minimum number of Members required to form a political group shall be twenty-three if they come from two Member States, eighteen if they come from three Member States and fourteen if they come from four or more Member States.

3. A Member may not belong to more than one group.

4. The President shall be notified in a statement when a political group is set up. This statement shall specify the name of the group, its members and its bureau.

5. The statement shall be published in the Official Journal of the European Communities.’

4. According to Rule 30, concerning non-attached members,

‘1. Members who do not belong to a political group shall be provided with a secretariat. The detailed arrangements shall be laid down by the Bureau on a proposal from the Secretary-General.

2. The Bureau shall also determine the status and parliamentary rights of such Members.’

5. Under Rule 23, the Conference of Presidents is to consist of the President of the Parliament and the chairmen of the political groups who have a right to vote therein, and of two persons delegated from amongst the non-attached Members to attend meetings, without having the right to vote. Moreover, the possibility of tabling a motion for a resolution in order to wind up the debate on the election of the Commission is reserved to the political groups (Article 33), as is participation in the Parliament’s delegation to the Conciliation Committee (Article 82). In addition, under Rule 137 any political group may give an explanation of vote lasting not more than two minutes.

6. The Rules of Procedure also provide that certain initiatives may only be taken by a political group or by at least 32 Members, in particular as regards

– nominations for the positions of President, Vice-Presidents and Quaestors (Rule 13);

– putting questions to the Council or the Commission and requesting that they be placed on the agenda of Parliament (Rule 42);

– tabling recommendations to the Council concerning subjects under Titles V and VI of the Treaty on European Union, or where Parliament has not been consulted on an international agreement within the scope of Rule 97 or Rule 98 (Rule 49);

– tabling amendments to the Council’s common position (Rule 80);

– proposals for urgent debate (Rule 112).

7. Under Rule 180:

‘1. Should doubt arise over the application or interpretation of these Rules of Procedure, the President may, without prejudice to any previous decisions in this field, refer the matter to the committee responsible for examination.

...

4. Should a political group or at least 32 Members contest the committee’s interpretation, the matter shall be put to the vote in Parliament. Adoption of the text shall be by simple majority provided that at least one third of Parliament’s component Members are present. In the event of rejection, the matter shall be referred back to the committee.

5. Uncontested interpretations and interpretations adopted by Parliament shall be appended in italic print as explanatory notes to the appropriate Rule or Rules, together with decisions on the application of the Rules of Procedure.

6. These explanatory notes shall constitute precedents for the future application and interpretation of the Rules concerned.

...’

B – Factual background to the dispute

8. By letter of 19 July 1999, a number of Members of the Parliament from various political factions notified the President of the Parliament, pursuant to Rule 29(4), of the formation of the Groupe technique des députés indépendants (TDI) – Groupe mixte (Technical Group of Independent Members – Mixed Group), the declared purpose of which was to ensure that all Members are able to exercise their parliamentary mandates in full.

9. The Rules of Constitution of the TDI Group stated that:

‘The individual signatory members affirm their total political independence of one another. And hence:

– freedom to vote independently both in committee and in plenary session,

– each member shall refrain from speaking on behalf of the Members of the group as a whole,

– the purpose of meetings of the group shall be to allocate speaking time and to settle any administrative and financial matters concerning the group,

– the Bureau of the group shall be made up of representatives of the individual members.’

10. The minutes of the plenary session of the Parliament on 20 July 1999 ( ) record that the President of the Parliament announced that she had received from 29 Members notification of the formation of a new political group entitled Groupe technique des députés indépendants (TDI).

The presidents of the other political groups, taking the view that the condition relating to political affinities laid down in Rule 29(1) was not satisfied in this case, requested that the question be referred to the Parliament’s Committee on Constitutional Affairs for an interpretation of that provision and that the Members concerned be deemed to be non-attached pending a ruling from that Committee.

11. By a letter of 28 July 1999 the President of the Committee on Constitutional Affairs informed the President of the Parliament as follows:

‘During its meeting on 27 and 28 July 1999 the Committee on Constitutional Affairs examined the request for an interpretation of Rule 29(1) of the Rules of Procedure referred to it by the Conference of Presidents at its meeting of 21 July 1999.

Following a detailed exchange of views and by 15 votes in favour and two against, with one abstention, the Committee on Constitutional Affairs interpreted Rule 29(1) of the Rules of Procedure as follows:

The constitution of the [TDI Group] is not in conformity with Rule 29(1) of the Rules of Procedure.

In fact, the constitution of this group, specifically Annex 2 to the letter of constitution addressed to the President of the European Parliament, excludes any political affiliation. It permits the various signatory members total political [independence] within the group.

I propose that the following wording be inserted by way of an interpretative note to Rule 29(1):

“The formation of a group which openly rejects any political character and all political affiliation between its Members is not acceptable within the meaning of this Rule.”

...’

12. Under Rule 180(4) of the Rules of Procedure the TDI Group contested the interpretative note proposed by the Committee on Constitutional Affairs; nevertheless, that note was approved by the Parliament by majority vote at the plenary session of 14 September 1999. ( )

C – The pleas in law and the grounds of the action for annulment

13. On 19 November 1999, the Front National commenced proceedings before the Court of First Instance in which it sought annulment of the decision of the European Parliament dissolving the TDI Group and an order that the defendant pay the costs (Case T-327/99).

The grounds relied on were:

(1) misinterpretation of Rule 29(1); (2) infringement of the principle of equal treatment and of the Rules of Procedure and lack of a legal basis, inasmuch as the Parliament was wrong to review conformity of the TDI Group with Rule 29(1) and to take the view that the Members belonging to that group did not share political affinities; (3) breach of the principle of equal treatment in regard to the members of the TDI Group; (4) disregard of the parliamentary traditions common to the Member States; (5) infringement of essential procedural requirements; and (6) presumption of misuse of procedure.

14. On 5 October 1999, Mr Martinez and Mr de Gaulle had brought proceedings against the European Parliament decision of 14 September 1999 approving the position of the Committee on Constitutional Affairs as to the conformity of the statement of formation of the TDI Group with Article 29 of the Rules of Procedure (Case T-222/99); on 22 November, the Members Bonino, Pannella, Cappato, Dell’Alba, Della Vedova, Dupuis, Turco and the Emma Bonino List attacked that decision (Case T-329/99). The Court of First Instance ordered that the three cases be joined for the purposes of judgment, in accordance with Article 50 of its Rules of Procedure.

II – The judgment at first instance

15. In Case T-327/99 the Parliament did not formally raise an objection of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance. It contended, however, that the action for annulment should not be admitted since the measure of 14 September 1999 was not of direct concern to the applicant within the meaning of the fourth paragraph of Article 230 EC, since it was a declaratory interpretation of a provision of general application.

16. Paragraphs 66 and 67 of the judgment examine that plea:

‘66 As regards Case T-327/99, it should be noted that the French political party known as the Front National is a legal person whose stipulated object is to promote via its members political ideas and projects in the context of national and European institutions. It presented a list of candidates at the election in June 1999 of representatives to the Parliament. The persons on that list who were elected to the Parliament all form part of the body of members declaring the formation of the TDI Group. Owing to the act of 14 September 1999, they are all in the situation described at paragraph 59 above, which directly impinges on the promotion of the ideas and projects of the party which they represent in the European Parliament and, hence, also on the attainment of that political party’s stipulated object at European level.

67 The act of 14 September 1999 must therefore be regarded as directly affecting the Front national.’

According to the said paragraph 59:

‘59 The act of 14 September 1999 deprives the Members who declared the formation of the TDI Group of the opportunity of organising themselves by means of that group in a political group within the meaning of Rule 29, with the result that those Members are deemed to be non-attached under Rule 30. ... [T]hose Members are placed, in carrying out their mandate, in a different situation to that linked to membership of a political group from which they would have benefited had the act of 14 September 1999 not been adopted.’

17. In paragraph 75, the Court of First Instance declared the three actions for annulment admissible. It then considered the substance and dismissed them as unfounded.

III – The appeal from the judgment of the Court of First Instance

18. The judgment was appealed against by Mr Martinez (Case C-488/01 P) and by the Front National (Case C-486/01 P). Both appellants also requested that enforcement of the judgment be suspended. The cases were joined for the purposes of the order made by the President of the Court of Justice on 21 February 2002, dismissing the application for interim measures and reserving the costs.

19. Mr Martinez’s appeal was disposed of by order of the full Court of Justice of 11 November 2003, which dismissed the action, under Article 119 of the Rules of Procedure, on the ground that it was manifestly inadmissible in part and manifestly unfounded in part.

20. In its application lodged on 17 December 2001, the Front National claims that the Court of Justice ( ) should:

– declare the appeal admissible,

– find that there has been an infringement of Community law by the Court of First Instance,

– set aside the contested judgment,

– give final judgment in the case after setting aside the contested judgment, or, in the alternative, remit the case to the Court of First Instance, and

– order the European Parliament to pay the costs.

21. The European Parliament did not appeal against the judgment of the Court of First Instance within the period of two months allowed by the first paragraph of Article 56 of the Statute of the Court of Justice. ( ) Nevertheless, in its defence, lodged on 14 February 2002, it cross-appealed in the proceedings brought by the Front National, contending that the Court of Justice should:

– dismiss the appeal;

– set aside the judgment under appeal in part, to the extent to which it admits the Front National’s action for annulment;

– declare that the Front National’s action in Case T-327/99 is inadmissible or, if necessary, declare it unfounded; and

– order the Front National to pay the costs.

22. The President of the Court of Justice refused leave to submit a reply and rejoinder in the main appeal proceedings. However, he allowed the Front National to explain, in a reply, its position concerning the arguments put forward by the Parliament in support of its cross-appeal in paragraphs 15 to 29 of its defence, and this was done on 15 April 2002.

Since the Parliament waived right to lodge additional submissions, those presented by the Front National on 27 May 2002 were returned to it by the Registry of the Court of Justice.

23. On 9 December 2003, the hearing was held in Case C-486/01 P, at which the parties presented oral argument.

IV – Analysis of the appeal

24. In view of the fact that the European Parliament claims that the Front National’s action for annulment was inadmissible through lack of locus standi, the dilemma arises of the order in which matters should be dealt with in this case: either the main appeal will be considered first and thereafter the cross-appeal, or vice versa. ( ) Aware of the very different repercussions of choosing one approach or the other, I consider that the Court of Justice should take the second option and examine the cross-appeal first.

25. The grounds for following that course are diverse. First, if the main appeal were examined first, then, even if it were considered inadmissible, the Court of Justice would perhaps not be freed from the obligation of going on to give a decision on the cross-appeal. ( ) The same would happen if it were declared unfounded. ( ) Moreover, if it were decided that the Court of First Instance had correctly applied the fourth paragraph of Article 230 EC, the sequence followed would not be important. But if it were considered that it was wrong in law for the applicant seeking annulment to have been recognised as enjoying locus standi, the main appeal would prove to be inadmissible, so that it would have been inappropriate to consider the substance and thereby fail to observe the principle of economy of legal proceedings.

Second, as I have already stated in my opinion in Council v Boehringer, ( ) the locus standi of the applicant to bring an action is a requirement which must be satisfied if the case is to proceed: where it is not, the Court has no jurisdiction to deal with the substance of the case. ( )

A – The European Parliament's cross-appeal

1. Submissions of the parties

26. For the Parliament, the action for annulment brought by the Front National (Case T-327/99) was inadmissible because of the applicant’s lack of locus standi, in that it was not directly concerned. In declaring the action admissible, the Court of First Instance misinterpreted the fourth paragraph of Article 230 EC and infringed Community law within the meaning of Article 58 of the Statute of the Court of Justice.

27. First, the Parliament alleges a contradiction between paragraph 67 and other passages of the contested judgment, which give the impression that the assessment made by the Court of First Instance is contrary to that which it had previously adopted, without any reason being given for this change of direction. The Parliament relies on the fact that the judgment states that the members making up the TDI Group could be directly affected by the contested decision because they are deprived of the possibility of forming a political group under Rule 29(1) of the Rules of Procedure. It considers it inconceivable that Members, who enjoy a special status, and national political parties, which do not, should be affected to the same extent by acts of the Parliament. It adds that, if the provisions of the statutes of legal persons could affect the admissibility of an application, their locus standi as applicants would depend ultimately on their own will, in which case proceedings by some such persons would be viable and those by others would not.

28. Second, in its view, although the situation of certain members may have been adversely affected by the contested decision, so that the conditions for promoting the ideas and projects of their party may perhaps have deteriorated, what is certain is that only those of the Front National have any possibility of demonstrating that they are directly affected, since any effect on the Front National is merely indirect.

29. Third, according to the Parliament, a measure adopted for the purposes of its internal organisation, which governs the position of members of Parliament, is not capable of producing legal effects vis-à-vis other persons. Even though the Front National took part in the June 1999 elections, the legal relationships between the parties involved in the campaign and the resulting assembly ceased after the ballot, as is clear from Article 4(1) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage and Rule 2 of the Rules of Procedure, ( ) by virtue of which Members of Parliament are to exercise their mandate independently, are not to be bound by any instructions and are not to receive a binding mandate. In such circumstances, to accept that the contested decision affects the Front National would be tantamount to reducing the role of Members to that of mere intermediaries between their parties and the Parliament, without any autonomy or responsibility of their own, in disregard of their true status. It adds that Article 191 EC, which highlights the importance of parties in the international sphere as a factor for integration within the Union and as a factor which contributes to forming European awareness and to expressing the will of citizens, ( ) is of no importance in that regard, because, first, European political parties do not yet have a constitutional status defining their rights and obligations in the Community context ( ) and, second, by their very nature, they should include components of several Member States, which is not the case as far as the Front National is concerned, being an organisation established only in France.

30. Fourth, it refers to the negative consequences of a finding that the application was admissible. If the interpretation adopted by the Court of First Instance were to prevail, there would be a risk of increasing the flow of actions by people who were affected only indirectly by the Parliament’s measures of internal organisation. By way of example, it refers to foundations of political parties, in the event of their ceasing to receive grants appertaining to the groups, and to other parties which, under their own statutes, would consider themselves involved by virtue of specific provisions of the Rules of Procedure, in particular Rule 152, which regulates the composition of parliamentary committees, or by Rule 168, on the constitution and attributions of interparliamentary delegations, in which account is taken of fair representation of Member States and of political views.

31. The Front National considers that the Community judicial authorities should be empowered to exercise effective review of acts of the European Parliament, in view of the considerable broadening of the latter’s powers, its decision-making authority and its means of action.

It complains that it was directly affected by the contested decision, since the dissolution of the TDI Group had repercussions not only on its members, who were deprived of the opportunity to exercise a whole series of political rights reserved to members of groups, but also on the parties to which they belong. It stresses its interest in ensuring that the representatives elected to its lists, following the campaign which it had organised and for which it incurred considerable expense, enjoy exactly the same facilities as the other members of Parliament, pointing out that all the members of French nationality within the dissolved group were active in its party. As regards the financial losses suffered, it refers to the credits entered under budget heading 3707, specifically those relating to expenses of an administrative and secretarial nature (3707/1), and those connected with the political activities of groups (3707/2): whilst the annual appropriation to a member of a group amounts to EUR 36 698.28, the appropriation to a non-attached member amounts to only EUR 9 909.19.

32. It adds, finally, that if the Court of Justice declared admissible an action by a political grouping against a decision of the European Parliament which was in breach of the principle of equal treatment for parties in an electoral campaign, ( ) it should not deny locus standi to another party calling for equal treatment once the elections are over. Front National electors are entitled to be represented under the same conditions as those enjoyed by the members of the other groups within Parliament.

2. The effect of the contested decision on the Front National

33. Under the fourth paragraph of Article 230 EC, any natural or legal person may ‘institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’. ( )

According to the analysis made by the Court of First Instance in paragraphs 28 to 34 of its judgment, with which I agree, the contested decision of the European Parliament consists of a declaration, with retroactive effect, that the TDI Group is non-existent, since it does not conform with Rule 29 (1) of the Rules of Procedure. It is not disputed that that measure has direct and immediate effects on the members who, until that time, had believed that they formed part of a political group. As stated in paragraph 65 of the judgment, the contested act, without the need for any supplementary measure, prevented them from doing so, under Rule 29 of the Rules of Procedure, thereby directly impinging on the performance by them of their functions, for which reason it must be regarded as directly affecting them.

34. It is necessary now to consider whether the Front National, to which several members of the TDI Group ( ) belonged, is in a position to allege that it too was directly affected by the contested decision.

35. From the case-law of the Court of Justice, it can be inferred that the contested Community act must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community provisions without the application of other intermediate rules. ( )

36. On the basis of that case-law, it does not at first sight seem that the Front National fulfils the conditions laid down in the fourth paragraph of Article 230 EC.

37. The reasoning of the Court of First Instance leading to the conclusion in paragraph 67 of the judgment that the contested decision directly affected the Front National is very succinct and is linked to the repercussions of the declaration of non-existence of the group for each member in particular and not for the party.

According to paragraph 59 of the judgment, the elected candidates of that French party were deprived of the opportunity of organising themselves into a political group through the TDI group, they being treated as non-attached members, and they therefore enjoy fewer advantages in the performance of their duties. From that finding, it is inferred in paragraph 66 that the resultant situation directly affects the conditions for the promotion of the ideas and projects of the group which they represent in the European Parliament and, consequently, the conditions for attainment of the object laid down in its statutes in the context of the Union.

38. I coincide with the Parliament in considering that any repercussions of the contested decision for the Front National proved to be only indirect, since the persons directly affected were the Members of Parliament, who, finding themselves deprived of any opportunity to advance the projects and ideas of their party in the form of a political group, were obliged to do so, from that time forward, on an individual basis.

39. Having analysed the arguments put forward by the Front National in these proceedings, I likewise am unconvinced.

40. In the first place, although a political party which presents itself in the European elections wants its candidates, once elected, to exercise their mandate under the same conditions as the other members of Parliament, ( ) that desire does not confer on it any right for its representatives to form their own group or to become members of one of the groups being set up. This is confirmed by the Rules of Procedure themselves, since, under Rule 29(2), each political group must be made up of members belonging to more than one Member State (the Front National is a party of an exclusively French dimension); in the second place, paragraph 1 of that rule allows members to organise themselves into groups in accordance with their political affinities (during the election campaign, the composition of the new parliament is unknown and therefore it is also unknown whether the number of representatives of other Member States who share their ideology with a party of a national character is sufficient).

41. Second, the decision of 14 September 1999 does not infringe the principle of equal treatment for Members of Parliament in the exercise of their mandate. As the Court of Justice has consistently held, ‘discrimination arises through the application of different rules to comparable situations or the application of the same rule to different situations’. ( ) The European Court of Human Rights, following guidelines derived from judicial practice in a large number of democratic States, takes the view that there is a breach of equal treatment if a difference of treatment regarding the exercise of any right upheld by the Human Rights Convention has no objective and reasonable justification. ( )

42. In its Rules of Procedure, the European Parliament decided, in regulating the way it operated, to favour the organisation of members into political groups, requiring that they belong to more than one Member State. The facilities for their formation increase in step with the number of States from which the Members originate, to the point where, if they come from four or more, a membership of 14 is sufficient. The only condition imposed is that they should form groups based on ideological orientation.

It is clear that members from a Member State who have no political affinities with the other members of the chamber are not in the same situation as those who, sharing those affinities, form part of a parliamentary group, for which reason it is inappropriate to claim that the former and the latter should be treated in the same way.

43. Third, the financial losses alleged by the Front National in fact affect the Members, since the credits entered under the relevant budgetary headings are not intended for the parties in which they are active.

44. Finally, the Rules of Procedure of the European Parliament do not allow any participation whatsoever by national political parties in its organisation or operation. Once elected, the representatives perform their duties independently and are not subject to any instructions or any binding mandate. Their vote is individual and personal. They may join a political group, move from one group to another or remain non-attached. I coincide with the Parliament’s view that, under those conditions, the contested decision affected the Front National only indirectly, by reason of the repercussions which it incontestably had for its elected candidates.

45. From the foregoing, it is to be inferred that the Front National did not fulfil the requirements for locus standi laid down in the fourth paragraph of Article 230 EC, since it was not directly affected by the contested decision.

For that reason, the Court of First Instance erred in law in considering, in paragraph 67 of the judgment of 2 October 2001, that the said decision directly affected the applicant.

46. It is therefore appropriate to uphold the European Parliament’s cross-appeal and to set aside the judgment at first instance to the extent to which it found to be admissible the application for annulment brought by the Front National against the decision of 14 September 1999.

47. The second sentence of Article 61 of the Statute enables the Court of Justice, when setting aside a judgment of the Court of First Instance, to give final judgment in the matter itself, where the state of the proceedings so permits, or to refer the case back to the Court of First Instance for judgment. One of the cases in which the first of those options can be taken up is that of an errorin judicando, provided that the account of the facts is complete and sufficient for judgment to be given and it is not necessary to take any measures regarding evidence. That appears to be the custom followed by the Court of Justice, although it does not usually state precisely why it considers that the state of the case is such as to allow it to give final judgment itself. ( )

It seems appropriate for the Court of Justice to give a decision on the substance when it appears from the proceedings that the case is at a stage at which judgment can be given, ( ) by virtue of the fact that the Community legislature set it up as a modern court of cassation, vested with wide-ranging authority to deliver a rescissory judgment when it considers that course to be fitting. ( )

48. In the present case, there is no doubt that the issue which the Court of Justice has to consider in this appeal is of a strictly legal nature. It is therefore necessary to apply that provision and declare the action for annulment brought by the Front National inadmissible since that applicant lacks locus standi.

B – The main appeal

49. Given that the Front National had no standing to bring an action at first instance, it likewise has no standing to appeal against the judgment. Consequently, it must be held that the appeal brought by that party at last instance is inadmissible.

V – Costs

50. Under Article 122 of the Rules of Procedure, the Court of Justice is to make a decision as to costs where the appeal is well founded and the Court itself gives final judgment in the case.

51. According to Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118, 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 action by the Front National is inadmissible and the Parliament has asked for costs, the Front National should pay the costs. In the proceedings on the application for interim measures, in which an order was made by the President of the Court of Justice on 21 February 2002 reserving the costs pending conclusion of the main proceedings, the Front National should bear its own costs and pay one half of those incurred by the European Parliament.

VI – Conclusion

In view of the foregoing considerations, I propose that the Court of Justice should:

1) on the basis of the Parliament’s cross-appeal, set aside the judgment of the Court of First Instance of 2 October 2001 in Joined Cases T-222/99, T-327/99 and T-329/99 Martinez and Others v European Parliament in view of the fact that the action for annulment brought by the Front National against the Decision of 14 September 1999 dissolving with retroactive effect the Groupe technique des députés indépendants (TDI) has been declared inadmissible;

2) declare inadmissible the action for annulment brought by the Front National;

3) declare inadmissible the main appeal brought by Front National;

4) order the Front National to pay the costs, including one half of those incurred by the European Parliament in relation to the proceedings for interim measures.