Case T-215/07 R

Beniamino Donnici

v

European Parliament

(Interim measures – Decision of the European Parliament – Verification of the credentials of elected candidates – Invalidation of a parliamentary mandate granted pursuant to national electoral law – Application for suspension of operation – Admissibility – Prima facie case – Urgency – Balancing of interests)

Summary of the Order

1. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Interest of the applicant in obtaining the suspension sought

(Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

2. European Parliament – Verification of members’ credentials – Limits

(Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 12)

3. European Parliament – Members – Meaning

(Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 6)

4. European Parliament – Legality of a decision of the Parliament on the verification of elected candidates’ credentials

(Art. 234 EC; Act concerning the election of representatives to the European Parliament by direct universal suffrage)

5. Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a measure of the European Parliament invalidating the mandate of one of its members for lack of credentials

(Art. 242 EC; Act concerning the election of representatives to the European Parliament by direct universal suffrage, Art. 8; Rules of Procedure of the Court of First Instance, Art. 104(2))

1. An application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of suspension could not have the effect of changing the applicant’s position.

However, a decision of the European Parliament carrying out a verification of an applicant’s credentials as a Member of the European Parliament and, following that verification, declaring his mandate invalid cannot be described as a negative measure. Granting suspension of operation of that decision would bring about a change in the applicant’s legal situation, since it would have the effect of maintaining the advantageous provisional situation enjoyed by him, during which he would continue to take his seat in Parliament and on its bodies, enjoying all the rights attaching thereto.

(see paras 33, 35-36)

2. It is apparent from the wording of Article 12 of the 1976 Act concerning the election of representatives to the European Parliament by direct universal suffrage (‘the 1976 Act’) that the Parliament has no fundamental jurisdiction to ensure compliance with Community law, either generally or, more particularly, in the context of elections. On the contrary, the wording of that provision shows that the Parliament’s power of verification is, at least prima facie, limited, by the introduction of a dual restriction.

First, the fact that the Parliament ‘shall take note’ of the results declared officially by the Member States seems to mean that the Parliament’s role is merely to take note of the declaration, already made by the national authorities, of the persons elected, that is, of a pre‑existing legal situation arising exclusively from a decision of those authorities, which highlights the Parliament’s total lack of discretion in the matter. It therefore appears that, in this context, the Parliament is precluded from calling in question the actual regularity of the national measure concerned and from refusing to take note of it, if it considers that there is an irregularity.

Secondly, the Parliament’s special power to rule on disputes arising at the time of the verification of credentials is also restricted ratione materiae only to disputes which may arise out of the provisions of the 1976 Act other than those arising out of the national provisions to which the Act refers.

(see paras 71-73, 75-76)

3. Article 6 of the 1976 Act relates only to the Members of the Parliament, who must be able to exercise their rights and powers independently, not to elected candidates whose credentials have not yet been verified by the Parliament, in accordance with Article 12 of the 1976 Act. The Parliament’s validation of the mandate of such a person, in the procedure to verify his credentials, is an essential prerequisite for Article 6 of the 1976 Act to become applicable to him. The situation of an elected candidate cannot be assimilated to that of a Member of the Parliament for the purposes of applying Article 6.

(see paras 77, 79, 81)

4. Any irregularity that might affect the official proclamation of the election results by the national authority with competence in the matter cannot in any way affect the legality of the Parliament’s decision concerning the verification of the credentials of the elected candidates. Where a national measure forms part of a Community decision-making procedure and, by virtue of the division of powers in the field in question, is binding on the Community decision-taking authority and therefore determines the terms of the Community decision to be adopted, any irregularity that might affect the national measure cannot affect the validity of the decision of the Community authority.

It is for the national courts, where appropriate after obtaining a preliminary ruling from the Court of Justice pursuant to Article 234 EC, to rule on the lawfulness of the national electoral provisions and procedures.

(see paras 91-93)

5. Serious and irreparable harm, one of the criteria for establishing urgency, constitutes the first element in the comparison carried out in assessing the balance of interests. More particularly, that comparison must lead the judge hearing the application for interim measures to examine whether the possible annulment of the act in question by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that act would be such as to prevent its being fully effective in the event of the action being dismissed on the merits.

Where the specific interests involved are evenly matched, the more general interests, which argue for the grant or refusal of suspension of operation, take on a special significance.

In that regard, the Member State concerned by a decision of the European Parliament invalidating the mandate of one of its members for lack of credentials undeniably has an interest in having its electoral legislation respected by the Parliament, since, pursuant to Article 8 of the 1976 Act, electoral procedure is governed by national provisions in each Member State. It is true that the Parliament’s general interest in the maintenance in force of its decisions may be weighed against that interest. However, that latter interest cannot prevail over the balance of the interests involved. Also, even though the Parliament may invoke its power to disregard the electoral results communicated by the Member State concerned where it considers those results to be contrary to the 1976 Act, the fact remains that it may exercise that power only in rare and therefore exceptional cases, since it is reasonable to assume that, as a general rule, the Member States will fulfil their obligation under Article 10 EC to adapt their electoral law to the requirements of the 1976 Act.

(see paras 106, 109-110, 113)

ORDER OF THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES

15 November 2007 ( )

(Interim measures – Decision of the European Parliament – Verification of the credentials of elected candidates – Invalidation of a parliamentary mandate granted pursuant to national electoral law – Application for suspension of operation – Admissibility – Prima facie case – Urgency – Balancing of interests)

In Case T‑215/07 R,

Beniamino Donnici, residing in Castrolibero (Italy), represented by M. Sanino, G.M. Roberti, I. Perego and P. Salvatore, lawyers,

applicant,

supported by

Italian Republic, represented by I. Braguglia, acting as Agent, and P. Gentili, avvocato dello Stato,

intervener,

v

European Parliament, represented by H. Krück, N. Lorenz and A. Caiola, acting as Agents,

defendant,

supported by

Achille Occhetto, residing in Rome (Italy), represented by P. De Caterini and F. Paola, lawyers,

intervener,

APPLICATION for suspension of the operation of the decision of the European Parliament of 24 May 2007 on the verification of the credentials of Beniamino Donnici (2007/2121(REG)) until the Court of First Instance has given judgment in the main action,

THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES,

replacing the President of the Court of First Instance in accordance with Article 106 of the Rules of Procedure and the decisions of 5 July 2006, 6 June 2007 and 19 September 2007 of the Court of First Instance sitting in plenary session,

makes the following

Order

Legal context

1 Articles 6 to 8, Article 12 and Article 13(3) of the Act concerning the election of the representatives of the European Parliament by direct universal suffrage (OJ 1976 L 278, p. 5), as amended and renumbered most recently by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1; ‘the 1976 Act’), provide:

‘Article 6

1. Members of the European Parliament shall vote on an individual and personal basis. They shall not be bound by any instructions and shall not receive a binding mandate.

2. Members of the European Parliament shall enjoy the privileges and immunities applicable to them by virtue of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities.

Article 7

1. The office of member of the European Parliament shall be incompatible with that of:

– member of the Government of a Member State,

– member of the Commission of the European Communities,

– Judge, Advocate General or Registrar of the Court of Justice of the European Communities or of the Court of First Instance,

– member of the Board of Directors of the European Central Bank,

– member of the Court of Auditors of the European Communities,

– Ombudsman of the European Communities,

– member of the Economic and Social Committee of the European Economic Community and of the European Atomic Energy Community,

– member of committees or other bodies set up pursuant to the Treaties establishing the European Economic Community and the European Atomic Energy Community for the purpose of managing the Communities’ funds or carrying out a permanent direct administrative task,

– member of the Board of Directors, Management Committee or staff of the European Investment Bank,

– active official or servant of the institutions of the European Communities or of the specialised bodies attached to them or of the European Central Bank.

2. From the European Parliament elections in 2004, the office of member of the European Parliament shall be incompatible with that of member of a National Parliament.

By way of derogation from that rule and without prejudice to paragraph 3:

– members of the Irish National Parliament who are elected to the European Parliament at a subsequent poll may have a dual mandate until the next election to the Irish National Parliament, at which juncture the first subparagraph of this paragraph shall apply;

– members of the United Kingdom Parliament who are also members of the European Parliament during the five-year term preceding election to the European Parliament in 2004 may have a dual mandate until the 2009 European Parliament elections, when the first subparagraph of this paragraph shall apply.

…

Article 8

Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.

These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.

…

Article 12

The European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national provisions to which the Act refers.

Article 13

…

3. Where the law of a Member State makes explicit provision for the withdrawal of the mandate of a member of the European Parliament, that mandate shall end pursuant to those legal provisions. The competent national authorities shall inform the European Parliament thereof.’

2 Rules 3 and 4(3) and (4) of the Rules of Procedure of the European Parliament read as follows:

‘Rule 3

Verification of credentials

1. Following elections to the European Parliament, the President shall invite the competent authorities of the Member States to notify Parliament without delay of the names of the elected Members so that all Members may take their seats in Parliament with effect from the opening of the first sitting following the elections.

At the same time, the President shall draw the attention of those authorities to the relevant provisions of the [1976 Act] and invite them to take the necessary measures to avoid any incompatibility with the office of Member of the European Parliament.

2. Every Member whose election has been notified to Parliament shall make a written declaration, before taking his seat in Parliament, that he does not hold any office incompatible with that of Member of the European Parliament within the meaning of Article 7(1) or (2) of the [1976 Act]. Following general elections, this declaration shall be made, where possible, no later than six days prior to Parliament’s constitutive sitting. Until such time as a Member’s credentials have been verified or a ruling has been given on any dispute, and provided that he has previously signed the abovementioned written declaration, the Member shall take his seat in Parliament and on its bodies and shall enjoy all the rights attaching thereto.

Where it is established from facts verifiable from sources available to the public that a Member holds an office incompatible with that of Member of the European Parliament, within the meaning of Article 7(1) and (2) of the [1976 Act], Parliament, upon information provided by its President, shall establish that there is a vacancy.

3. On the basis of a report by the committee responsible, Parliament shall verify the credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any dispute referred to it pursuant to the provisions of the [1976 Act], except those based on national electoral laws.

4. The committee’s report shall be based on the official notification by each Member State of the full results of the election specifying the names of the candidates elected and those of any substitutes together with their ranking in accordance with the results of the vote.

It shall not be possible to confirm the validity of the mandate of a Member unless the written declarations required under this Rule and Annex I to these Rules have been made.

On the basis of a report by the committee, Parliament may at any time rule on any dispute as to the validity of the mandate of any of its Members.

5. Where the appointment of a Member is due to the withdrawal of candidates from the same list, the committee responsible for the verification of credentials shall ensure that such withdrawals have taken place in accordance with the spirit and the letter of the [1976 Act] and Rule 4(3).

6. The committee shall ensure that any information which may affect the performance of the duties of a Member of the European Parliament or the ranking of the substitutes is forwarded without delay to Parliament by the authorities of the Member States or of the Union, with an indication of the date of effect where an appointment is concerned.

Should the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member from holding office, the President shall ask them to keep him regularly informed of the stage reached in the procedure. He shall refer the matter to the committee responsible. On a proposal from that committee, Parliament may adopt a position on the matter.

Rule 4

Term of office of Members

…

3. A Member who resigns shall notify the President of his resignation and of the date on which that resignation shall take effect, which shall be not more than three months after notification. This notification shall take the form of an official record drawn up in the presence of the Secretary-General or his representative, signed by the latter and by the Member concerned and immediately submitted to the committee responsible, which shall enter it on the agenda of its first meeting following receipt of the document.

If the committee responsible considers that the resignation is not in accordance with the spirit or the letter of the [1976 Act] it shall inform Parliament to this effect so that Parliament can decide whether or not to establish the vacancy.

Otherwise, the vacancy shall be established with effect from the date indicated by the resigning Member in the official record. There shall be no vote in Parliament on the subject.

…

4. Where the competent authority of a Member State notifies the President of the end of the term of office of a Member of the European Parliament pursuant to the provisions of the law of that Member State, as a result either of incompatibilities within the meaning of Article 7(3) of the [1976 Act] or withdrawal of the mandate pursuant to Article 13(3) of that Act, the President shall inform Parliament that the mandate ended on the date communicated by the Member State and invite the Member State to fill the vacant seat without delay.

Where the competent authorities of the Member States or of the Union or the Member concerned notify the President of an appointment or election to an office incompatible with the office of Member of the European Parliament within the meaning of Article 7(1) or (2) of the [1976 Act], the President shall inform Parliament, which shall establish that there is a vacancy.’

3 Furthermore, under Rule 9 of the Rules of Procedure of the Parliament and Annex I thereto, Members of the Parliament are obliged to make a declaration clearly specifying their professional activities and any other paid position or activity.

4 Articles 2 and 30 of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262 , p. 1; ‘the Statute for Members’) provide:

‘Article 2

1. Members shall be free and independent.

2. Agreements concerning the resignation from office of a Member before or at the end of a parliamentary term shall be null and void.

…

Article 30

This Statute shall enter into force on the first day of the European Parliament parliamentary term beginning in 2009.’

5 Moreover, recital 4 of the Statute for Members reads as follows:

‘The freedom and independence of Members, which are enshrined in Article 2 and which are not mentioned in any provision of primary law, should receive statutory protection. Undertakings made by Members to relinquish their office at a given time, or declarations of their intent to relinquish office on an unspecified date, which political parties can make use of at their discretion, should be considered as incompatible with Members’ freedom and independence and should therefore not be binding in law.’

Facts

6 At the elections to the European Parliament, held on 12 and 13 June 2004, Beniamino Donnici, the applicant, was a candidate on the ‘Società Civile – Di Pietro Occhetto’ list, in the Italy South constituency. That list won two seats, the first in that constituency and the second in the Italy North-West constituency. Mr A. Di Pietro was elected in both constituencies and opted for the Italy South constituency.

7 Mr A. 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 G. 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, signed before a notary on 6 July 2004 and received 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 Appeal; ‘the National Electoral Office’) on 7 July 2004, Mr Occhetto, who at the time was a member of the Italian Senate, ‘irrevocably’ withdrew as a candidate for election to the European Parliament in both constituencies.

8 Following that withdrawal, on 12 November 2004 the National Electoral Office notified the Parliament of the official results of the European elections with the list of the candidates elected and their substitutes. The National Electoral Office declared Mr Chiesa elected in the Italy North-West constituency and Mr Di Pietro elected in the Italy South constituency, the applicant becoming the first on the list of the candidates who had not been elected in the latter constituency.

9 In the parliamentary elections held in Italy on 9 and 10 April 2006, Mr Di Pietro was elected as a Member of the Italian Parliament and opted to take his seat in the National Parliament, with effect from 28 April 2006. Since, pursuant to Article 7(2) of the 1976 Act, that office was incompatible with the office of Member of the European Parliament, on 27 April 2006 the Parliament established that the seat in question was vacant, with effect from the following day, and informed the Italian Republic.

10 By declaration of 27 April 2006, addressed to the National Electoral Office, Mr Occhetto revoked his withdrawal of 7 July 2004, expressing ‘his intention, as the first of the candidates who had not been elected in the [Italy South] constituency, of succeeding Mr [Di] Pietro, so that any previous declaration of a different intent … should be regarded as invalid and without effect and, in any event, revoked, and that in any event it [was] necessary in that regard to take account of the intent expressed on the date of the proclamation of the names of the candidates elected’.

11 Following that declaration, on 8 May 2006 the National Electoral Office declared Mr Occhetto elected as Member of the European Parliament.

12 By judgment of 21 July 2006, the Tribunale amministrativo regionale del Lazio (Lazio Regional Administrative Court, Italy) dismissed as unfounded the applicant’s action for annulment of that proclamation. In essence, the Tribunale amministrativo regionale del Lazio considered that Mr Occhetto’s withdrawal of 7 July 2004 in respect of the proclamation of elected representatives did not constitute a withdrawal from his position on the post-electoral list. The grounds for its decision were that respect for the will of the people requires that electoral results be regarded as inalienable and unalterable, that such a withdrawal has no effect when any acts of substitution are being adopted in the event of incompatibility, loss of civil rights, ineligibility or resignation from an appointment or position on the part of those officially entitled to them, and that a candidate who has withdrawn from an election is entitled, where the prerequisites for substitution are verified, to withdraw his act of withdrawal in order to take over a seat to be recovered by means of substitution.

13 The applicant also appealed before Parliament against the declaration of Mr Occhetto as 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 held on 21 June 2006. After establishing that, under Article 12 of the 1976 Act, the objection was inadmissible because it was founded on Italian electoral law, the Committee on Legal Affairs passed a unanimous resolution proposing that the Parliament validate Mr Occhetto’s mandate with effect from 8 May 2006. On 3 July 2006, the Parliament confirmed Mr Occhetto’s mandate.

14 By final judgment of 6 December 2006, having the force of res judicata, the Consiglio di Stato (Council of State), allowed the applicant’s appeal against the aforementioned ruling of the Tribunale amministrativo regionale del Lazio, amended that ruling and annulled the proclamation of Mr Occhetto as a Member of the European Parliament made by the National Electoral Office on 8 May 2006. The Consiglio di Stato held, first, that the distinction between withdrawing from an election and withdrawing from a position on a list was illogical, since election is an effect of a position on a list, and withdrawal from an election entails the removal of the individual concerned from the list and whatever effects may follow. It held, secondly, that it was contradictory to assert that withdrawal from election as a Member of the European Parliament has no bearing on substitution and that the withdrawing candidate is entitled to withdraw the withdrawal in cases where substitution is called for. Thirdly and finally, the Consiglio di Stato considered that withdrawal from an election constituted an irrevocable declaration, once the competent body or office to which the announcement of withdrawal is sent has taken note thereof, which has the effect of amending the original list drawn up by the electoral office.

15 On 29 March 2007, the National Electoral Office took note of the aforementioned judgment of the Consiglio di Stato and declared the applicant as Member of the European Parliament for the Italy South constituency, and accordingly revoked Mr Occhetto’s mandate.

16 That declaration was notified to the European Parliament, which took note of it in the minutes of the plenary session of 23 April 2007 in the following terms:

‘The Italian authorities had notified Parliament that the announcement of the election of [Mr Occhetto] had been annulled and that the resulting vacancy would be filled by [the applicant]. Parliament noted these decisions with effect from 29 March 2007.

…

Under Rule 3(2) [of the Rules of Procedure of the Parliament], until such time as [his] credentials had been verified or a ruling had been given on any dispute, and provided that [he] had previously made [a] written [declaration] stating that [he] did not hold any office incompatible with that of Member of the European Parliament, … [the applicant] … would take [his] seat in Parliament and on its bodies and would enjoy all the rights attaching thereto.’

17 Meanwhile, by letter of 5 April 2007, which was supplemented by a note of 14 April 2007, Mr Occhetto raised an objection and requested the Parliament to ratify his mandate and not to validate that of the applicant. By decision of 24 May 2007 (‘the contested decision’), adopted on the basis of a report of the Committee on Legal Affairs of 22 May 2007 (A6‑0198/2007), the Parliament declared that the mandate as Member of the European Parliament of the applicant, whose election had been notified by the competent national authorities, was invalid, and ratified Mr Occhetto’s mandate. The Parliament also instructed its President to forward that decision to the competent national authorities, to the applicant and to Mr Occhetto.

Procedure and forms of order sought by the parties

18 By application lodged at the Court Registry on 22 June 2007, the applicant brought an action, pursuant to the fourth paragraph of Article 230 EC, for the annulment of the contested decision.

19 By separate document lodged at the Court Registry on the same day, the applicant brought this application for interim measures, pursuant to Article 104 of the Rules of Procedure of the Court of First Instance and Article 242 EC, claiming that the Court should suspend the operation of the contested decision and order the Parliament to pay the costs of these proceedings or reserve the costs.

20 In its written observations, lodged at the Court Registry on 8 July 2007, the Parliament contends, primarily, that the Court should dismiss the application for interim measures as inadmissible, alternatively dismiss the application as unfounded and, finally, order the applicant to pay the costs of these proceedings.

21 By document lodged at the Court Registry on 5 July 2007, Mr Occhetto applied for leave to intervene in these proceedings in support of the form of order sought by the Parliament.

22 The main parties submitted their observations on the application to intervene within the prescribed period.

23 By order of 13 July 2007, the judge hearing the application for interim measures granted Mr Occhetto leave to intervene and invited him to lodge a statement in intervention.

24 In his statement in intervention, lodged at the Court Registry on 29 July 2007, Mr Occhetto claimed that the Court should dismiss the application for interim measures and order the applicant to pay the costs or reserve the costs.

25 By document lodged at the Court Registry on 2 August 2007, the Italian Republic applied for leave to intervene in these proceedings in support of the form of order sought by the applicant. The Italian Republic was invited to present its observations at the hearing, the decision as to whether to grant it leave to intervene having been reserved.

26 The parties presented oral argument at a hearing held on 12 September 2007.

27 At the hearing, the parties were invited to present their oral observations on the application to intervene lodged by the Italian Republic. The parties raised no objections in that regard. In those circumstances, and in accordance with the first paragraph of Article 40 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 thereof, the judge hearing the application for interim measures granted the Italian Republic leave to intervene; this was noted in the record of the hearing.

28 In its oral observations presented at the hearing, the Italian Republic claimed that the Court should grant the application for interim measures.

29 At the hearing, the judge hearing the application for interim measures decided to add to the documents in the case an extract from the minutes of the plenary sitting of the Parliament of 23 April 2007, reproducing point 10 thereof, and a copy of the second report of the Parliament’s Committee on Verification of Credentials of 7 January 1983. The parties raised no objection in that regard.

Law

30 Under the combined provisions of Articles 242 EC and 243 EC, on the one hand, and Article 225(1) EC, on the other, the Court may, if it considers that the circumstances so require, order that application of a contested act be suspended or prescribe any necessary interim measures. For that purpose, it takes account of the conditions laid down in Article 104(2) of the Rules of Procedure, as defined by the case-law.

31 Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the interests involved (orders in Case C‑377/98 R Netherlands v Parliament and Council [2000] ECR I‑6229, paragraph 41; Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73; and order of 16 February 2007 in Case T‑310/06 R Hungary v Commission (not published in the ECR), paragraph 19).

Admissibility

Arguments of the parties

32 The Parliament maintains that this application is inadmissible. It claims that the contested decision contains only one point which can be implemented, namely the instruction to the President of the Parliament to forward the decision to the bodies and persons concerned. In so far as the applicant is concerned, the operative part of the contested decision has an unenforceable negative content, since it merely declares that the applicant’s mandate is invalid. The suspension of operation of the contested decision cannot become a positive measure, that is, a decision validating the applicant’s mandate. According to the case-law, an application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of suspension could not have the effect of changing the applicant’s position (order in Joined Cases C‑486/01 P‑R and C‑488/01 P‑R Front national and Martinez v Parliament [2002] ECR I‑1843, paragraph 73, and order of 12 May 2006 in Case T‑42/06 R Gollnisch v Parliament (not published in the ECR), paragraph 30), and therefore could not be of any practical use to him (orders in Case T‑76/04 R Bactria v Commission [2004] ECR II‑2025, paragraph 52, and Gollnisch v Parliament, paragraphs 36 and 37).

Findings of the judge hearing the application for interim measures

33 It has repeatedly been held that an application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of suspension could not have the effect of changing the applicant’s position (orders in Case C‑89/97 P(R) Moccia Irme v Commission [1997] ECR I‑2327, paragraph 45; Front national and Martinez v Parliament, paragraph 32 above, paragraph 73; Joined Cases T‑107/01 R and T‑175/01 R Lormines v Commission [2002] ECR II‑3193, paragraph 48; Case T‑369/03 R Arizona Chemical and Others v Commission [2004] ECR II‑205, paragraph 62; and Gollnisch v Parliament, paragraph 32 above, paragraph 30).

34 In that context, a decision refusing to adopt the measure requested constitutes a negative decision (see, to this effect, Lormines v Commission, paragraph 33 above, paragraph 48).

35 In the present case, the Parliament’s description of the contested decision as a negative measure is incorrect. That decision carries out a verification of the applicant’s credentials as a Member of the European Parliament and, following that verification, declares that his mandate is invalid. At the same time, the contested decision validates Mr Occhetto’s mandate, thus bringing to an end the advantageous provisional situation enjoyed by the applicant, pursuant to Rule 3(2) of the Parliament’s Rules of Procedure, since 29 March 2007.

36 As the Parliament itself concedes (see paragraph 99 below), the granting of suspension of operation of the contested decision will bring about a change in the applicant’s legal situation, since it will have the effect of maintaining the aforementioned advantageous provisional situation, during which he will continue to take his seat in Parliament and on its bodies, enjoying all the rights attaching thereto. In those circumstances, and contrary to what the Parliament claims, the contested decision cannot be described, in so far as concerns the applicant, as a negative measure within the meaning of the case-law cited in paragraph 33 above.

37 It follows that the applicant proves to the required legal standard that he has an interest in the suspension of operation requested and that therefore this application must be declared admissible.

Prima facie case

38 The applicant points out that, in the main action, he raises two pleas supporting his claim for annulment of the contested decision. By the first plea, he maintains, in essence, that, by adopting the contested decision, the Parliament infringed the rules and principles which govern its competence to verify the credentials of its Members. By the second plea, the applicant calls in question the adequacy of the statement of reasons for the contested decision.

39 In order to determine whether the condition for establishing a prima facie case is satisfied in this case, it is necessary, first, to carry out a prima facie examination of the substance of the pleas in law advanced by the applicant in support of the main action and therefore to ascertain whether at least one of them is so weighty that it cannot be discounted in these proceedings for interim measures (see, to this effect, the orders in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 26; Case T‑13/99 R Pfizer Animal Health v Council [1999] ECR II‑1961, paragraph 132; and Case T-257/07 R France v Commission [2007] ECR II‑0000, paragraph 59).

40 The judge hearing the application for interim measures considers that it is necessary, first, to carry out a prima facie examination of the arguments presented by the applicant in support of his first plea in law.

Arguments of the parties

41 The applicant, supported by the Italian Republic, submits that, under Article 190(4) EC and Article 8 of the 1976 Act, national measures relating to the mandates of Members of the Parliament fall within the jurisdiction of the Member States and are adopted in accordance with the rules, procedures and guarantees laid down by the legal systems of those States. As far as concerns the verification of credentials, the Parliament, under Article 12 of the 1976 Act, should merely take note of national decisions and must not call in question the proclamation of electoral results and the allocation of the mandate to an elected candidate, in so far as they are the manifestation of the exercise by the national authorities of the powers conferred on them by the Community provisions. The verification of compliance with the procedure laid down by national law, the validity of national regulations, inter alia those governing withdrawals from election, and compliance with the fundamental rights of the interested parties fall within the exclusive jurisdiction of the competent national courts or, if those matters are brought before it, of the European Court of Human Rights, not of Parliament.

42 The foregoing considerations are corroborated by the case-law (Case T‑353/00 Le Pen v Parliament [2003] ECR II‑1729, paragraphs 92 and 93, and Case C‑208/03 P Le Pen v Parliament [2005] ECR I‑6051, paragraph 51), which confirmed ‘the complete lack of competence on the part of the Parliament where a seat falls vacant pursuant to national provisions’, and by the practice of Parliament itself, as is apparent from the Parliament’s decision of 3 July 2006 rejecting the applicant’s dispute as inadmissible, and from the report of the Parliament’s Committee on Legal Affairs of 26 November 2004 (A6-0043/2004) on the verification of credentials. That report drew a distinction between disputes relating to specific provisions of the 1976 Act and those relating to the national legislation, which were dismissed as inadmissible.

43 Furthermore, the applicant considers that the other provisions referred to by the Parliament’s Committee on Legal Affairs in its report of 22 May 2007 (A6‑0198/2007) on the verification of the applicant’s credentials and, in particular, the reference to Rule 3(5) of the Parliament’s Rules of Procedure, which refers to Rule 4(3) thereof, are irrelevant.

44 First, in the present case, it is the verification of the credentials, within the meaning of Article 12 of the 1976 Act, of a newly elected candidate which is at issue, not a vacancy, to which Rule 4(3) of the Parliament’s Rules of Procedure applies. In any event, the 1976 Act draws a clear distinction between vacancies arising from resignation, the only vacancies covered by that provision, and the causes of vacancies governed by national law, of which the Parliament merely takes note, in accordance with Article 13 of the Act. In the present case, the vacancy of the seat occupied by Mr Occhetto and his replacement by the applicant are the direct consequence of the communication from the National Electoral Office of 29 March 2007 informing the Parliament of the annulment, now final, of the proclamation of Mr Occhetto as Mr Di Pietro’s replacement and of the proclamation of the applicant as Member for the Italy South constituency. The Parliament should therefore have deferred to the decisions taken at national level without verifying whether Mr Occhetto’s withdrawal was in accordance with the 1976 Act or with the procedural conditions of Rule 4(3) of the Parliament’s Rules of Procedure.

45 Secondly, the reference, in Rule 3(5) of the Parliament’s Rules of Procedure, to ‘the spirit and the letter’ of the 1976 Act cannot be interpreted as meaning that it allows the Parliament to review decisions taken by the national authorities, since Article 12 of the 1976 Act clearly states that the Parliament is to ‘take note’ of the election results declared officially by the national authorities. A contrary interpretation of Rule 3(5) of the Parliament’s Rules of Procedure would inevitably mean that it is invalid, since it introduces a derogation incompatible with the provisions of the 1976 Act.

46 Moreover, Rule 3(5) of the Parliament’s Rules of Procedure, even if read in conjunction with Article 6 of the 1976 Act, cannot be invoked by Parliament to call in question the proclamation of the competent national authorities. First, Article 6 of the 1976 Act concerns only the exercise by the properly elected Members of the Parliament of their mandates and does not apply to the election of a Member of the Parliament, which is a prior matter. Secondly, that provision does not, in any event, make it possible to declare the invalidity of measures or decisions taken by the candidates, including in connection with political agreements, such as the irrevocable withdrawal of a candidate, involving the waiver of a parliamentary mandate. That is confirmed by the wording of the Parliament’s resolution on disputes concerning the validity of appointments in connection with the ‘tourniquet‑system’ (OJ 1983 C 68, p. 31) and by that of the second report of the Committee on Verification of Credentials of 7 January 1983, mentioned in that resolution. As regards Article 2 of the Statute for Members, it is apparent from recital 4 of the Statute that it is a completely new provision, contrary to what is stated in the contested decision, and in any event it does not apply to the present case.

47 Finally, the applicant considers that the contested decision infringes the principle of res judicata, since it negates the effect of the judgment of the Consiglio di Stato, which had that status. The applicant refers, in that regard, to the judgment in Case C‑224/01 Köbler [2003] ECR I‑10239, paragraphs 38 and 39, which, the applicant submits, precludes any possibility of disregarding the principle of res judicata, even in the event of infringement of Community law; the only possible solution is to bring an action before the national courts, under certain conditions, for reparation by the State for any damage caused.

48 The Parliament points out, first, that the power conferred on it by the first sentence of Article 12 of the 1976 Act constitutes the main part of that provision. The Parliament’s power to verify the credentials of its Members consists in verifying whether the instrument of appointment forwarded by the national authorities in implementation of national electoral law complies with the rules laid down in the 1976 Act. That is the meaning of that procedure, as is apparent from the report of the Committee on the Rules of Procedure, the Verification of Credentials and Immunities on amendment of Rules 7 and 8 of the Parliament’s Rules of Procedure, concerning the verification of powers and the term of the parliamentary mandate and corresponding, respectively, to Rules 3 and 4 of the Parliament’s Rules of Procedure currently in force.

49 Consequently, where, as in the present case, the Parliament finds that the appointment, by the competent national authority, of a Member of the Parliament, is contrary to Community law, it cannot validate that mandate, even if the national measure in question has been adopted by final judgment of a supreme court of the Member State concerned. In short, in such a case, the Parliament has jurisdiction to verify compliance with the aforementioned Community principles and rules, in order to ensure the primacy of Community law by rendering inapplicable national measures which conflict with it. The Parliament cannot, in such a case, merely draw the Commission’s attention to a possible infringement of the 1976 Act, because that would put the Parliament under a duty to adopt a decision relating to the verification of credentials which would be incompatible with the 1976 Act, namely, in the present case, the confirmation of the applicant’s mandate, in infringement of Article 6 of the Act.

50 Secondly, the Parliament maintains that the contested decision complies with Article 6 of the 1976 Act. It submits that the Italian system for electing Members of the European Parliament allows for the presentation of candidacies in several electoral constituencies. That opportunity may encourage candidates to reach agreements concerning the future parliamentary mandate which may be obtained after the elections. However, such agreements do not only disregard the popular will expressed at elections, but also restrict the exercise by the elected candidates of their parliamentary mandate. It is therefore for the Parliament to ensure compliance with Community law and to prevent possible illegalities affecting the measures adopted by it.

51 In the present case, the Parliament found that the Italian authorities had infringed Article 6 of the 1976 Act. The principle, enshrined in that provision, that the parliamentary mandate is to be exercised freely, is incompatible with the ascription of any legal force to agreements regarding performance of the parliamentary mandate. The Tribunale amministrativo regionale del Lazio was therefore right to hold in its judgment that Mr Occhetto’s withdrawal could never affect his candidacy. On the other hand, the contrary judg ment given by the Consiglio di Stato disregarded the scope of the free mandate principle.

52 Thirdly, the Parliament considers that Rule 3(5) of the Parliament’s Rules of Procedure is a relevant provision for verifying the applicant’s credentials, since his appointment as Member of the Parliament arose because the competent Italian authorities took into account the validity of Mr Occhetto’s withdrawal declared on 7 July 2004. From the moment that the Parliament has validated a parliamentary mandate, such as that of Mr Occhetto in July 2006, it has the task, in the event that that nomination is withdrawn by the national authorities, of verifying whether that withdrawal complies with the rules laid down in the 1976 Act. Contrary to the applicant’s claim, this is not a case of termination of a parliamentary mandate, arising pursuant to national law, of which the Parliament need only take note. If it were, the Parliament’s decision of 3 July 2006 on the validity of Mr Occhetto’s mandate would have no legal force. Such a restriction of the Parliament’s powers, in that situation, would completely negate the effectiveness of the power of scrutiny which it is expressly granted by Article 12 of the 1976 Act and would be manifestly incompatible with the rules of interpretation of Community law. Therefore, the plea of illegality raised by the applicant against Rule 3(5) of the Parliament’s Rules of Procedure must be rejected, since that rule is consistent with Articles 6 and 12 of the 1976 Act.

53 The Parliament’s resolution on disputes concerning the validity of appointments in connection with the ‘tourniquet-system’ (see paragraph 46 above) cannot affect the foregoing considerations, since the Parliament also adopted, in that resolution, a position confirming observance of the free mandate principle, enshrined in Article 6 of the 1976 Act. Likewise, in the contested decision, the Parliament did not infringe the principle of res judicata since, in recital O, it stated that the judgment of the Consiglio di Stato had that status.

54 Lastly, the Parliament considers that it was entitled to use the Statute for Members as a basis for the contested decision. That statute is a measure which has been adopted by the Community legislature since 2005, even though it will not come into force until 2009. The interpretation of Article 6 of the 1976 Act should therefore take account of the opinion already expressed by the Community legislature. Moreover, the Member States have the duty not to adopt national provisions which conflict with a provision of Community law which has already been adopted even though it has not yet entered into force.

55 Mr Occhetto states that his withdrawal from the election, lodged at the National Electoral Office on 7 July 2004 (see paragraph 7 above), was effected pursuant to an electoral agreement, relating to the distribution of the seats won in the European elections by the ‘Società Civile – Di Pietro Occhetto’ list, entered into by the heads of the two components of that list, that is, by Mr Di Pietro and himself. That is also clear from the statements made by the applicant and Mr Di Pietro in an action for compensation brought before the Tribunale civile di Roma (Rome Civil District Court) against Mr Occhetto seeking damages for the harm they allegedly suffered as a consequence of Mr Occhetto’s revocation of his withdrawal from appointment as Member of the Parliament. In the same proceedings, Mr Occhetto brought a counterclaim, pleading the absolute nullity of his withdrawal which stemmed from an agreement which, he maintained, was unlawful and therefore void.

56 Mr Occhetto states that, in fulfilment of that agreement, on 6 July 2004 he signed before a notary four declarations of withdrawal from appointment as Member of the Parliament, one of which was lodged with the competent Italian authorities on the following day. Those documents enabled Mr Di Pietro, the candidate elected in the two constituencies concerned, to become ‘master’ and ‘arbiter’ of the consequences of the exercise of his option, since he controlled the allocation of the second seat attributed to the list in question.

57 According to Mr Occhetto, the agreement in question, which was designed to alter the order of the candidates on the list concerned, as it resulted from the votes of the electors, is unlawful and void. Therefore, any withdrawal declared pursuant to such an agreement is also void. Furthermore, such a withdrawal infringes Article 3 of the additional protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, under which the contracting parties are required to hold free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’, and also Article 4 of the 1976 Act. Such a withdrawal also infringes not only Mr Occhetto’s ‘passive electoral rights’ but also the ‘active electoral rights’ of the electors who voted for him.

58 Mr Occhetto states that the argument that his withdrawal, since it was effected pursuant to an unlawful agreement, was absolutely null and void was not raised before the Italian administrative courts because it could not be examined by those courts. The Italian legal system provides for a division of powers between the administrative courts and the ordinary courts, and since the Consiglio di Stato is an administrative court, it cannot hear and decide the matter of the nullity of Mr Occhetto’s withdrawal from election, which falls within the jurisdiction of the Italian civil courts.

59 The Parliament was therefore entitled to adopt the contested decision, in the exercise of its own powers, recognised by the 1976 Act and by the Parliament’s Rules of Procedure. Indeed, it is the Parliament’s task to ensure that national procedures comply with the fundamental principles of a constitutional democracy.

60 In that regard, it is apparent from the provisions of the 1976 Act and from the ECHR that the listing of candidates for election according to number of votes is inviolable and cannot be altered by private statements of intent. Therefore, the only time at which the competent electoral authorities may take account of a possible withdrawal of the candidate placed in top position is when the procedure for proclaiming the elected candidates is commenced, since the candidate concerned is entitled to revoke any withdrawal effected previously or, if appropriate, to confirm it, even tacitly. To deny that power to the candidate, as the Consiglio di Stato did in its judgment (see paragraph 14 above), would mean that the withdrawal is not revocable even if it is the consequence of lack of consent or political or electoral haggling and fraud.

61 The aforementioned judgment of the Consiglio di Stato therefore infringed the ECHR and, following that judgment, Mr Occhetto brought an action before the European Court of Human Rights.

62 Finally, Mr Occhetto considers that the Parliament’s resolution on disputes concerning the validity of appointments in connection with the ‘tourniquet‑system’, referred to by the applicant (see paragraph 46 above), is irrelevant, since that particular case relates to events occurring within one political party and not, as in the present case, to an electoral list combining several political groups. Moreover, it is not a matter of a contractual agreement or of any pressure exerted on a candidate, but of a simple choice designed to ensure that the different components of the party concerned were represented broadly and evenly, without precluding the right of representation of any candidate, on the assumption that it was the same political programme which had been set out.

63 Mr Occhetto therefore considers that the condition for establishing a prima facie case is not satisfied in this case.

Findings of the judge hearing the application for interim measures

64 It should be noted at the outset that, under the second subparagraph of Article 7(1) EC and the first paragraph of Article 189 EC, the Parliament exercises the powers conferred upon it by the Treaties and acts within the limits of those powers.

65 Article 190(4) EC provides that the Parliament is to draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States, and that the Council acting unanimously after obtaining the assent of the Parliament, which is to act by a majority of its component Members, is to lay down the appropriate provisions, which it is to recommend to Member States for adoption in accordance with their respective constitutional requirements.

66 Those provisions were adopted by the 1976 Act, the first paragraph of Article 8 of which states that, subject to the provisions of that act, the electoral procedure is to be governed in each Member State by its national provisions. Therefore, in accordance with that article, the electoral procedure for electing Members of the Parliament which took place on 12 and 13 June 2004 was still governed, in each Member State, by the relevant national provisions, in the present case Italian Law No 18 of 24 January 1979 concerning the election of Italian representatives to the European Parliament (GURI No 29 of 30 January 1979, p. 947).

67 In order to define the context of this dispute, it should be pointed out that Italian Law No 18 offers the opportunity to present a candidacy simultaneously in several electoral constituencies. That is how Mr Di Pietro was able to be a candidate on the ‘Società Civile – Di Pietro Occhetto’ list, in both the Italy South and Italy North-West constituencies. As has already been pointed out, the list in question won two seats, one in each of those two constituencies. Mr Di Pietro, who came out top in both constituencies, opted, on 6 July 2004, for the Italy South constituency seat and, on the same day, Mr Occhetto – who at the time also had a seat in the National Parliament – ‘irrevocably’ withdrew, before a notary, from appointment as Member of the European Parliament in both constituencies.

68 Following this development, on 12 November 2004 the National Electoral Office forwarded to the Parliament the official results of the European elections with the list of the elected candidates and their substitutes. The National Electoral Office declared Mr Chiesa the elected candidate in the Italy North-West constituency and Mr Di Pietro in the Italy South constituency; the applicant became the first of the unelected candidates in the latter constituency. Mr Occhetto did not appear on the list in question.

69 However, Mr Di Pietro, having been elected to the Italian Parliament in the elections held on 9 and 10 April 2006 and having opted in favour of a seat in the National Parliament, left vacant his seat in the European Parliament. After Mr Occhetto had revoked his withdrawal, the National Electoral Office declared him the elected candidate for the Italy South constituency. That declaration was contested before the competent Italian courts; during those proceedings, the matter of Mr Occhetto’s withdrawal was raised and discussed and the proceedings culminated in the official proclamation of the election of the applicant, of which the Parliament was notified by the National Electoral Office on 29 March 2007.

70 This present dispute is in connection with a verification of the applicant’s credentials carried out pursuant to Article 12 of the 1976 Act and in response to the contestation lodged by Mr Occhetto, pursuant to the same article, which constitutes the legal basis of the Parliament’s jurisdiction in the matter.

71 It is apparent from the wording of Article 12 of the 1976 Act that the Parliament has no fundamental jurisdiction to ensure compliance with Community law, either generally or, more particularly, in the context of elections. On the contrary, the wording of that provision shows that the Parliament’s power of verification is, at least prima facie, limited.

72 Although the Parliament correctly states, in recital P of the contested decision, that it is for the European Parliament, and the European Parliament alone, to verify the credentials of its Members, it omits to mention the second sentence of Article 12 of the 1976 Act, which is inseparable from the first, inasmuch as it clarifies it, by introducing a dual restriction on the Parliament’s power of verification.

73 First, the Parliament, for that purpose, ‘shall take note of the results declared officially by the Member States’.

74 In that regard, it should be pointed out that, under Article 8 of the 1976 Act, ‘the electoral procedure shall be governed in each Member State by its national provisions’, subject to the provisions of the 1976 Act. Therefore, although the Member States are required to comply with the provisions of the 1976 Act in so far as they lay down certain electoral procedures, the fact none the less remains that, in the end, they have the task of organising the elections, in accordance with the procedure laid down by their national provisions, and also, in that connection, of counting the votes and making the official declaration of the electoral results.

75 ‘Taking note’ of those results seems to mean that the Parliament’s role is merely to take note of the declaration, already made by the national authorities, of the persons elected, that is, of a pre‑existing legal situation arising exclusively from a decision of those authorities, which highlights the Parliament’s total lack of discretion in the matter. It therefore appears that, in this context, the Parliament is precluded from calling in question the actual regularity of the national measure concerned and from refusing to take note of it, if it considers that there is an irregularity (see, regarding a case in which the Parliament took note of a disqualification declared by the competent national authority, Case C-208/03 P Le Pen v Parliament, paragraph 42 above, paragraphs 49 and 56, and Case T-353/00 Le Pen v Parliament, paragraph 42 above, paragraphs 90 to 92).

76 Secondly, the Parliament’s special power to rule on disputes arising at the time of the verification of credentials is also restricted ratione materiae only to disputes ‘which may arise out of the provisions [of the 1976 Act] other than those arising out of the national provisions to which the Act refers’.

77 It appears, at least prima facie, that the Parliament failed to have regard to the scope of Article 6 of the 1976 Act, by applying it in a situation which it does not cover. That article relates only to the Members of the Parliament, who must be able to exercise their rights and powers independently, not to elected candidates whose credentials have not yet been verified by the Parliament, in accordance with Article 12 of the 1976 Act. The Parliament’s validation of the mandate of such a person, in the procedure to verify his credentials, is an essential prerequisite for Article 6 of the 1976 Act to become applicable to him.

78 The final sentence of the first subparagraph of Rule 3(2) of the Parliament’s Rules of Procedure does not affect that conclusion. That provision allows a candidate who has been elected but whose credentials have not yet been verified to sit as a Member of the Parliament enjoying full rights, including those under Article 6 of the 1976 Act, but only provisionally and subject to the Parliament’s subsequent decision regarding the verification of his credentials.

79 It should be pointed out, however, that the statement of reasons of the contested decision reveals that the Parliament intended to assimilate the situation of an elected candidate to that of a Member of the Parliament, based on an interpretation of Article 6 of the 1976 Act carried out in the light of Article 2 of the Statute for Members, which does not enter into force until 2009 and which provides that Members are to be free and independent (paragraph 1) and that agreements concerning the resignation from office of a Member before or at the end of a parliamentary term are to be null and void (paragraph 2) (see recital F of the contested decision).

80 The Parliament accordingly considers, in recital K of the contested decision, that ‘the legal scope of Article 6 of the [1976 Act] includes candidates who are officially on a post-electoral list, this being in Parliament’s interest since such candidates are potential Members of the European Parliament’.

81 Apart from the fact that Mr Occhetto was not actually included in the post-electoral list of candidates drawn up by the Italian authorities after the June 2004 elections, it may be considered, prima facie, that the Parliament’s aforementioned assertion is based on an interpretation contra legem of Article 6 of the 1976 Act which cannot be upheld.

82 The issues raised by Mr Occhetto’s contestation have nothing to do, a priori, with the actual exercise of a Member’s mandate but relate to a situation at an earlier stage, concerning the regularity of the official proclamation of the election of a candidate by the competent national authorities. That situation and the disputes relating thereto fall within the scope of the national electoral legislation and of the competent national administrative and legal authorities.

83 It is important to point out that it was specifically to that effect that the Parliament adopted its decision of 3 July 2006, to which it did not refer in the contested decision and in which it held, pursuant to Article 12 of the 1976 Act, that the applicant’s contestation, following the official proclamation of the election of Mr Occhetto, who had previously been restored to his position as the first on the list of candidates who had not been elected in the Italy South constituency, was inadmissible because it was based on Italian electoral law.

84 Therefore, the applicant’s claim that, by adopting the contested decision, the Parliament infringed Article 12 of the 1976 Act is not without substance.

85 That conclusion is unaffected by the wording of Rule 3(5) of the Parliament’s Rules of Procedure, expressly referred to in recital C of the contested decision. The reference to that provision does not prima facie allow the Parliament to alter the sphere of competence in respect of the powers of its Members conferred on it by Article 12 of the 1976 Act.

86 Indeed, pursuant to the principle of the hierarchy of norms, a provision of the Rules of Procedure cannot allow derogation from the provisions of the 1976 Act and confer on the Parliament wider powers than it holds under that act (Case T‑353/00 Le Pen v Parliament, paragraph 42 above, paragraph 93). Therefore, if that is the way Rule 3(5) of the Parliament’s Rules of Procedure is to be construed, it is, as the applicant rightly points out, unlawful.

87 The Parliament suggests another interpretation of Rule 3(5) of the Rules of Procedure, according to which, ‘from the moment that the European Parliament validated a parliamentary mandate, such as that of Mr Occhetto in July 2006, it [would have] the task – in the event that that nomination is withdrawn by the national authorities on the basis of a withdrawal declared by the European Parliament Member in question, as was the case in the communication [from the National Electoral Office] of 29 March 2007 – of verifying whether that withdrawal complie[d] with the rules laid down in the 1976 Act’.

88 In that regard, it need only be said that the applicant was not appointed a Member following the withdrawal of the ‘Member’ Mr Occhetto.

89 The Parliament’s argument that, in essence, an interpretation of the power of verification laid down in Article 12 of the 1976 Act other than that contained in the contested decision would wholly negate the effectiveness of that provision is unfounded. It is not disputed that the Parliament has full power to rule, pursuant to Article 12 of the 1976 Act, on the position of an elected candidate possessing one of the qualities incompatible with being a Member of the Parliament, as listed in Article 7 of the 1976 Act.

90 So far as concerns the Parliament’s argument that its decision on the verification of credentials would itself be unlawful if it were based on an unlawful national measure, in the present case the national measure officially proclaiming the election results, this argument is also unfounded.

91 Indeed, according to the case-law, where, as in the present case, a national measure forms part of a Community decision-making procedure and, by virtue of the division of powers in the field in question, is binding on the Community decision-taking authority and therefore determines the terms of the Community decision to be adopted, any irregularity that might affect the national measure cannot affect the validity of the decision of the Community authority (see, to this effect, Case C‑97/91 Oleificio Borelli v Commission [1992] ECR I‑6313, paragraphs 10 to 12, and the order of 21 May 2007 in Case T‑18/07 R Kronberger v Parliament (not published in the ECR), paragraphs 38 to 40).

92 Therefore, any irregularity that might affect the official proclamation of the election results by the national authority with competence in the matter cannot in any way affect the legality of the Parliament’s decision concerning the verification of the credentials of the elected candidates.

93 In that regard, it is important to point out that it is for the national courts, where appropriate after obtaining a preliminary ruling from the Court of Justice, pursuant to Article 234 EC, to rule on the lawfulness of the national electoral provisions and procedures (see, to this effect, Kronberger v Parliament, paragraph 91 above, paragraph 41).

94 In the present case, such a judicial review actually took place before the competent Italian courts, under Italian Law No 18. First the Tribunale amministrativo regionale del Lazio and, subsequently, the Consiglio di Stato ruled on the lawfulness of the Italian electoral procedure, which led to the proclamation of the applicant as the representative elected to the Parliament. Although the Italian courts did not refer to the Court of Justice for a preliminary ruling in connection with those proceedings, that appears to be due to the fact that the issues raised before them related not to the interpretation of Community law but to national law and, more particularly, to the validity of Mr Occhetto’s initial withdrawal from the election and the subsequent revocation of that withdrawal.

95 It is apparent from all the foregoing considerations that the applicant’s argument that the Parliament does not have competence to adopt the contested decision is weighty and cannot be discounted without a more in_depth examination, which is a matter only for the Court giving judgment in the main action. Therefore, it must be held that the condition for establishing a prima facie case is satisfied in this instance without it being necessary to examine the other arguments put forward by the applicant.

Urgency and balancing of interests

Arguments of the parties

96 The applicant claims that the dismissal of this application will cause him serious and irreparable harm, since the contested decision deprived him of his mandate to the European Parliament and, therefore, prevented him from carrying out the tasks entrusted to him by the voters. That harm has already begun to be suffered, since the applicant’s name and profile have disappeared from the Parliament’s Internet site. The Court of First Instance has already admitted that such harm was irreparable and that, in such a case, the condition of urgency was satisfied (order in Case T‑353/00 R Le Pen v Parliament [2001] ECR II‑125, paragraphs 96 to 98).

97 As regards the balancing of the interests involved, the applicant maintains that the judge hearing the application for interim measures should take the same approach as taken by the President of the Court in the orders in Case T‑222/99 R Martinez and de Gaulle v Parliament [1999] ECR II‑3397, paragraph 80, and Case T-353/00 R Le Pen v Parliament, paragraph 96 above, paragraphs 101 and 103, and give priority to the specific interest of the applicant, who has been deprived by the contested decision of exercising the mandate lawfully entrusted to him. Furthermore, that interest coincides with the general interest of the Parliament in its composition being in compliance with the law and in accordance with the rules and procedures of the applicable national law, and with the interests of the Member State concerned in having its powers in electoral matters and the final judgments delivered by its courts respected (see, in respect of the latter interest, the order in Case C‑208/03 P-R Le Pen v Parliament [2003] I‑7939, paragraph 108).

98 The Parliament considers that the applicant has not established urgency. The argument that the contested decision deprived the applicant of the mandate conferred on him by his voters cannot be upheld, since Mr Occhetto had been above the applicant on the electoral list. According to the Parliament, in the case of a parliamentary mandate, urgency cannot be evaluated only in relation to the rights of the elected candidates, but must also be assessed in relation to the rights of the electors. Moreover, Mr Occhetto has already exercised his mandate for more than a year.

99 The Parliament also considers that a balancing of the interests of the parties in the dispute does not lean in favour of the applicant. In the present case, it is not a question of the provisional continuation of the mandate of a Member of the Parliament, as in Case T-353/00 R Le Pen v Parliament, paragraph 96 above. The applicant seeks rather to obtain the continuation of the provisional situation he had enjoyed pursuant to Rule 3(2) of the Parliament’s Rules of Procedure since 29 March 2007 and which was terminated by the contested decision. The applicant’s position is weaker than that of the applicant in Case T-353/00 R Le Pen v Parliament, paragraph 96 above, who sought to keep a mandate definitively validated by the Parliament.

100 Moreover, the suspension of the operation of the contested decision would have legal consequences not only for the Parliament but also for Mr Occhetto, since it would interfere with the exercise of his mandate, which was definitively validated by the Parliament in its decision of 3 July 2006. In those circumstances, the Parliament considers that granting the suspension of operation requested would create very serious harm for the public interest. Since this is a matter relating to the fundamental rules governing the mandate of a Member of the Parliament, only the judgment in the main action can alter the present situation and the applicant’s interests cannot be allowed to prevail, since he has, at most, only a prima facie case.

101 Mr Occhetto submits that only an assessment of the substance of the case can bring about another alteration in the parliamentary duties, a first change having already taken place owing to the proclamation of the applicant on 29 March 2007. Since Mr Occhetto has been exercising his parliamentary duties since 8 May 2006 and is also Chairman of the Parliament’s Delegation for Relations with the North Atlantic Treaty Organisation (NATO), any interruption in the exercise of his parliamentary duties would cause him irreparable harm and would even have an adverse effect on the workings of the Parliament. Therefore, the applicant’s arguments relating to urgency are unfounded.

102 In any event, in view of the fact that Mr Occhetto obtained a higher number of votes than the applicant, it appears wholly inappropriate, when balancing the interests involved, to grant this application for interim measures on the basis of an assessment which, through force of circumstance, is only cursory.

Findings of the judge hearing the application for interim measures

103 According to settled case-law, the purpose of proceedings for interim relief is to ensure that the judgment on the substance has full effect. In order to attain that objective, the measures sought must be urgent in the sense that it is necessary, in order to avoid serious and irreparable damage to the interests of the applicant, that the measures should be ordered and should take effect before the judgment in the main proceedings (orders in Case C‑65/99 P Willeme v Commission [1999] ECR I‑1857, paragraph 62; Case T‑167/99 R Giulietti v Commission [1999] ECR-SC I‑A‑139 and II‑751, paragraph 29; and Martinez and de Gaulle v Parliament, paragraph 97 above, paragraph 79).

104 In this case, since the term of office of Members of the Parliament is limited to five years and the declaration in the contested decision that the applicant’s mandate is invalid renders it impossible to perform the duties of Member of the European Parliament, it is clear that, if the contested decision is annulled by the Court giving judgment in the main action, the damage suffered by the applicant if the operation of the act in question is not suspended will be of an irreparable nature (see, to this effect, Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 102, and Case T-353/00 R Le Pen v Parliament, paragraph 96 above, paragraph 96).

105 That harm has begun to be suffered, since it is apparent from the documents before the Court and the Parliament’s pleadings that, following the adoption of the contested decision, the Parliament regarded Mr Occhetto, not the applicant, as the Member occupying the seat in question for the Italy South constituency.

106 At this stage of the assessment, the judge hearing the application for interim measures still has the task of balancing the interests involved. It is settled case-law that serious and irreparable harm, one of the criteria for establishing urgency, also constitutes the first element in the comparison carried out in assessing the balance of interests. More particularly, that comparison must lead the judge hearing the application for interim measures to examine whether the possible annulment of the act in question by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that act would be such as to prevent its being fully effective in the event of the action being dismissed on the merits (Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 106, and the case-law cited therein).

107 In the present case, the declaration that the applicant’s parliamentary mandate is invalid has been effective from 24 May 2007, with all the ensuing unfavourable consequences for him. Furthermore, the longer the applicant is prevented from carrying out the mandate, of which there remains less than two years, the greater will be the harm, by its nature irreparable, sustained by him (see, to this effect, Case T-353/00 R Le Pen v Parliament, paragraph 96 above, paragraph 102). It is conceivable that a judgment on the merits might be delivered in favour of the applicant at a date after the legislature has been dissolved, at a time when the damage alleged by the applicant – namely his being deprived of his status as Member of the Parliament – would have materialised in an irreversible way (see, to this effect, Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 107).

108 However, unlike in the situation to which the order in Case T-353/00 R Le Pen v Parliament, paragraph 96 above, paragraph 105, relates, in the present case account must also be taken of Mr Occhetto’s interest in the contested decision being implemented, which means the continuation of his mandate. Although there is the risk that irreversible harm will be caused to the applicant if the contested decision is implemented, conversely there is the same risk for Mr Occhetto if this application is granted, since any judgment dismissing the action would probably be delivered only after most if not all of the remainder of his mandate has elapsed. Furthermore, since Mr Occhetto, before his withdrawal of 7 July 2004, preceded the applicant on the list of elected candidates, the applicant’s interest cannot, in any event, be described as prior or pre-eminent.

109 Since the immediate and specific interests of the applicant and Mr Occhetto respectively are evenly matched, the more general interests, which argue for the grant or refusal of suspension of operation, take on a special significance.

110 The Member State in question, in this case the Italian Republic, undeniably has an interest in having its electoral legislation respected by the Parliament (see, to this effect, Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 108, and Case T-353/00 R Le Pen v Parliament, paragraph 96 above, paragraph 104). It is true that the Parliament’s general interest in the maintenance in force of its decisions may be weighed against that interest (see, to this effect, Case T-353/00 R Le Pen v Parliament, paragraph 96, above, paragraph 99). However, this latter interest cannot prevail over the balance of the interests involved.

111 In that regard, it must be pointed out that the strength or weakness of the pleas relied on to show a prima facie case may be taken into consideration by the judge in his assessment of urgency and, if appropriate, of the balance of interests (Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 110, and the case-law cited therein).

112 In the present case, it is apparent from the considerations expressed in paragraphs 64 to 95 above that the arguments put forward by the applicant to show a prima facie case appear, in the light of the information available to the judge hearing the application for interim measures, to be sound and weighty.

113 Also, even though the Parliament may invoke its power to disregard the electoral results communicated by the Member State concerned where it considers those results to be contrary to the 1976 Act, the fact remains that it may exercise that power only in rare and therefore exceptional cases, since it is reasonable to assume that, as a general rule, the Member States will fulfil their obligation under Article 10 EC to adapt their electoral law to the requirements of the 1976 Act.

114 It would therefore be disproportionate to allow the contested decision to produce irreversible effects when the existence of such an exceptional case justifying its adoption is subject to a serious challenge before the Community judicature.

115 Finally, the fact that Mr Occhetto has been able to exercise his mandate from 28 April 2006 until the proclamation of the National Electoral Office of 29 March 2007, and, again, since the adoption of the contested decision, that is, from 24 May 2007, a period of more than a year, must also be taken into consideration for the purposes of balancing the interests (see, by analogy, Case C-208/03 P-R Le Pen v Parliament, paragraph 97 above, paragraph 109).

116 It is apparent from all the foregoing that, since the conditions necessary for the grant of a suspension of operation of the contested decision are satisfied, the applicant’s claim must be allowed.

On those grounds,

THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES

hereby orders:

1. Operation of the decision of the European Parliament of 24 May 2007 on the verification of the credentials of Beniamino Donnici (2007/2121(REG)) is suspended.

2. Costs are reserved.

Luxembourg, 15 November 2007.

E. Coulon M. Vilaras