Case T‑829/16

Mouvement pour une Europe des nations et des libertés

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European Parliament

(Law governing the institutions — European Parliament — Decision declaring certain expenditure by a political party ineligible for the purposes of a grant for the 2015 financial year — Right to sound administration — Legal certainty — Regulation (EC) No 2004/2003 — Prohibition on the indirect funding of a national political party)

Summary — Judgment of the General Court (Eighth Chamber) of 27 November 2018

European Parliament — Funding of political parties at European level — Prohibition on the indirect funding of a national political party — Scope — Organisation of an electoral campaign jointly with a national political party — Obligation on the national political party to contribute to the funding of the campaign

Actions for annulment — Capacity to be a defendant — Bureau of the European Parliament — Not a body, office or agency of the European Union — Decisions adopted by the Bureau — Whether attributable to the Parliament

The EU judicature has jurisdiction to hear actions brought under Article 263 TFEU only against acts of institutions, bodies, offices or agencies of the European Union. In that regard, an action for annulment of a decision adopted by the Bureau of the European Parliament is necessarily brought against the Parliament, which adopted the measure. (see paras 24, 25)

See the text of the decision. (see para. 34)

The principle of sound administration means, inter alia, the obligation on the competent institution to examine all the relevant particulars of the case concerned with care and impartiality. The requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as the institution must offer sufficient guarantees to exclude any legitimate doubt in that regard. Subjective impartiality is presumed until there is evidence to the contrary. (see paras 48, 49)

See the text of the decision. (see para. 50)

There is no requirement under EU law for a plea of illegality to be raised formally. A plea of illegality may be raised implicitly where it is relatively clear from the application that the applicant is in fact making such a plea. (see para. 66)

The principle of legal certainty, which is one of the general principles of EU law, requires that rules of law be clear, precise and foreseeable in their effects, so that interested parties can ascertain their position in situations and legal relationships governed by EU law. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in question, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. In addition, the principle of legal certainty does not preclude EU law (i) from conferring discretion on the competent authority or (ii) from using indeterminate legal concepts which must be interpreted and applied to the case concerned by that authority, without prejudice to review by the EU courts. Moreover, the requirements of that principle cannot be regarded as requiring a provision that uses an indeterminate legal concept to refer to the various specific situations in which it applies, given that all those situations cannot be determined in advance by the legislature. (see paras 68-71)

The prohibition on direct or indirect funding of national political parties, contained in Article 7 of Regulation No 2004/2003, on the regulations governing political parties at European level and the rules regarding their funding, is clear. The prohibition on indirect funding is the corollary of the prohibition on direct funding, since otherwise that prohibition could easily be circumvented. As regards the meaning of the prohibition on indirect funding, it must be noted that it is an indeterminate legal concept and that the provision in question does not contain an exhaustive definition of the concept or a list of behaviours likely to be covered by the prohibition. However, a prudent operator should be able to foresee that indirect funding exists where a national political party derives a financial advantage by avoiding expenditure which it would have had to incur, even where no funds are directly transferred. In other words, it cannot be accepted that a prudent political party at European level would not be able to foresee that granting an advantage of any kind to a national political party, without that party bearing the cost, constitutes indirect funding of the latter’s activities. Consequently, Article 7 of Regulation No 2004/2003 is not contrary to the principle of legal certainty. (see para. 72)

For the purposes of determining whether a national political party has received an indirect financial advantage contrary to the prohibition laid down in Article 7 of Regulation No 2004/2003, on the regulations governing political parties at European level and the rules regarding their funding, as a result of conducting an electoral campaign jointly with a political party at European level, it is appropriate to take into account a range of evidence concerning the content of that campaign and the public’s perception of it, together with evidence relating to geography and time. (see para. 83)