JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

14 June 1995

Case T-61/92

Henri de Compte

v

European Parliament

‛Officials — Action for annulment — Decision of the President of the European Parliament granting, subject to a reservation, a final discharge to the accounting officers — Settlement of the accounting officer's credit balance suspended’

Full text in French II-449

Application for:

annulment of the Decision of the President of the European Parliament granting a final discharge to the accounting officers for the 1982 financial year, in so far as it is subject to a reservation and continues to suspend settlement of the credit balance of the guarantee account opened in the applicant's name, and also an order that the Parliament settle that credit balance together with default interest accrued on it.

Decision:

Dismissal of the application.

Abstract of the Judgment

When the applicant, a former official of the European Parliament, was in post as accounting officer of the Parliament he had been the subject of disciplinary proceedings, at the end of which the appointing authority downgraded him.

The applicant brought an action for the annulment of that decision, which was dismissed by judgment of the Court of First Instance of 17 October 1991 in Case T-26/89 de Compte v Parliament [1991] ECR II-781 (‘the 1991 judgment’). The applicant brought an appeal against that judgment before the Court of Justice. By judgment of 2 June 1994 the Court dismissed that appeal (Case C-326/91 P de Compte v Parliament [1994] ECR I-2091). After the 1991 judgment, the President of the Parliament decided, by decision of 19 December 1991 (‘the Decision’): (a) to grant a final discharge to the accounting officers for the 1982 financial year save as regards the sum of ECU 91263; (b) to assign to the Secretary-General the task of regularizing that amount, and (c) in the meantime to continue to suspend settlement of the credit balance of the guarantee accounts opened in the name of the applicant and the former administrator of advance funds in the members' cash office who had been in post until 30 April 1982.

I — The application for annulment

Admissibility

1. First plea of inadmissibility: the subject-matter of the application is res judicata as a result of the 1991 judgment

The Court of First Instance observes that it is a general principle of law that any matters of fact or of law decided by a judicial authority become res judicata from the moment when the decision becomes final, that is to say from the moment when it can no longer be contested by any appeal procedure. A decision which may be the subject-matter of an appeal becomes final once the period laid down for bringing an appeal has expired, if the unsuccessful party has failed to do so, or else with effect from the date of delivery of the judgment on the appeal, if that judgment dismisses the appeal and is itself final.

The Court finds that the subject-matter of the present application for annulment differs from that of its 1991 judgment. It also points out that, since the latter judgment has become final, it is necessary for it to verify whether the matters of fact and of law which are at issue were finally settled by that judgment (paragraphs 16 and 17).

2. Second plea of inadmissibility: preparatory nature of the contested act

The Court of First Instance observes that an act is considered to be preparatory where it does not have binding legal effects which are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. Preparatory acts do not constitute acts adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations and can therefore be contested only incidentally in an appeal against measures capable of being annulled (paragraph 21).

See: Case 60/81 IBM v Commission [1981] ECR 2639; Case C-346/87 Bossi v Commission [1989] ECR 303

The decision of the President of the Parliament granting a final discharge to the accounting officers for a financial year although containing a reservation and continuing to suspend settlement of the credit balance of the guarantee account opened in the name of an official constitutes an act adversely affecting that official in so far as it produces binding legal effects which, even though provisional, are capable of affecting the interests of the official (paragraphs 22 and 23).

Substance

In support of his application for annulment the applicant pleads (i) that a final discharge was obtained for the 1982 financial year, since a discharge was granted to the President of the Parliament for the same financial year and the final discharge is indivisible; (ii) that the 1991 judgment was not final; (iii) that the finding in that judgment of the existence of the cash deficit was not res judicata; and (iv) that the period laid down in Article 77 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (‘the Financial Regulation’), as amended by Council Regulation Euratom, ECSC, EEC No 610/90 of 13 March 1990, had not been observed as regards the grant of the final discharge for the transactions in question.

First part of the plea

The Court of First Instance observes that the procedure for granting a discharge to the President of the Parliament is separate from that for the final discharge to the accounting officers, and that the discharge of the President does not imply their final discharge, but merely constitutes the authority to grant it. Consequently, it would be arbitrary to conclude that the automatic effect of the discharge to the President was the delivery of a final discharge to the accounting officers. The Court finds that such an analysis is confirmed by the fact that the President of the Parliament is authorized to grant the final discharge, which implies that there is a two-stage procedure, of which the second stage, even though linked to the first, is nevertheless autonomous (paragraph 44).

Furthermore, the Court considers that the alleged indivisibility of the final discharge cannot invalidate the terms of a decision of the Parliament which explicitly and clearly refuses to authorize its President to grant a final discharge for the abovementioned amount. In any event, the Court finds that there are no grounds for stating that the President of the Parliament is always and exclusively required to grant a comprehensive final discharge, whatever the specific context in which he is called upon to exercise his supervisory function (paragraph 47).

Second part of the plea

The Court of First Instance considers that a reference in a decision to a judgment can lead to the nullity of the decision only where the judgment is subsequently set aside (paragraph 54).

In the present case, since the Court of Justice dismissed the appeal against the 1991 judgment, the reference in the decision to that judgment cannot render that decision unlawful (paragraph 55).

Third part of the plea

The Court of First Instance finds that there is no factual basis for this part of the plea (paragraphs 59 and 60).

Fourth part of the plea

The Court finds that the Parliament observed the period of two years laid down by Article 77 of the Financial Regulation, having regard to the fact that in 1983 it took into account the conditions required for the delivery of the final discharge to the accounting officer for the transactions in question, but that it was obliged to postpone any final decision in that regard, because of a current disciplinary procedure which related, in particular, to the applicant's responsibility for those transactions (paragraph 68).

II — The application for an order that the Parliament pay the credit balance on the guarantee account

The Court finds that that application is devoid of purpose, since it is linked to the application for annulment of the decision, an application which the Court has already held to be unfounded.

It follows that it is not necessary to consider it either as regards its admissibility or its substance (paragraphs 72 and 73).

Operative part:

The application is dismissed.