Case C-167/02 P: Appeal brought on 3 May 2002 by Willy Rothley and 70 other Members of the European Parliament against the judgment delivered on 26 February 2002 by the Court of First Instance of the European Communities (Fifth Chamber) in Case T-17/00 Willy Rothley and 70 other Members of the European Parliament v The European Parliament, supported by the Council of the European Union, the Commission of the European Communities, the Kingdom of the Netherlands and the French Republic
Date: 2002-06-29
Institutions: Court of Justice
Subjects: EU office or agency, European Parliament, General Court (EU), Member of the European Parliament, action for annulment (EU), fraud, rules of procedure

C 156/10

EN

Official Journal of the European Communities

29.6.2002

Appeal brought on 3 May 2002 by Willy Rothley and
70 other Members of the European Parliament against the
judgment delivered on 26 February 2002 by the Court
of First Instance of the European Communities (Fifth
Chamber) in Case T-17/00 Willy Rothley and 70 other
Members of the European Parliament v The European
Parliament, supported by the Council of the European
Union, the Commission of the European Communities,
the Kingdom of the Netherlands and the French Republic

(Case C-167/02 P)

(2002/C 156/18)

An appeal against the judgment delivered on 26 February
2002 by the Fifth Chamber of the Court of First Instance of
the European Communities in Case T-17/00 Willy Rothley
and 70 other Members of the European Parliament v The
European Parliament, supported by the Council of the Euro-
pean Union, the Commission of the European Communities,
the Kingdom of the Netherlands and the French Republic
was brought before the Court of Justice of the European
Communities on 26 February 2002 by Willy Rothley and 70
other Members of the European Parliament, represented by
Dr Hans-Jürgen Rabe, Rechtsanwalt, Nörr Stiefenhofer Lutz,
Charlottenstrasse 57, D-10117 Berlin.

The appellants claim that the Court should:

1.

2.

set aside the judgment of the Court of First Instance of the
European Communities (Fifth Chamber) of 26 February
2002 (1);

annul the decision of the European Parliament of 18 Nov-
ember 1999 on the amendments to the Rules of Pro-
cedure following the Interinstitutional Agreement of
25 May 1999 on the internal investigations conducted
by the European Anti-Fraud Office (OLAF) (2) in so far as
it concerns the Members of the European Parliament,

in the alternative,

refer the case back to the Court of First Instance for a
new judgment;

3.

order the European Parliament (respondent) to pay the
costs.

Pleas in law and main arguments

— Infringement of the fourth paragraph of Article 230 EC:
in the contested judgment, the Court of First Instance
incorrectly found that the appellants were not, according
to any conceivable criterion established in the case-law of
the Court, individually concerned by the contested legal
measure. Both the content and the effects of the contested

decision of the Parliament extend beyond the purely
internal organisation of the work of the Parliament, and
the decision therefore has direct effects for the Members
of the Parliament. That decision is thus a measure which
can be the subject of an action under the first paragraph
of Article 230 EC, a view also subscribed to by the Court
of First Instance in the contested judgment. Those effects
are grounds enough for the action to be admissible, and
it is not necessary in such a case to decide whether the
appellants are individually concerned. In the alternative:
contrary to the view of the Court of First Instance, the
appellants are already individually concerned by virtue of
the fact that they form a closed circle of persons, the
identity and number of whom is both fixed and known.

The Court of First Instance also incorrectly found that the
case-law establishing that an action for annulment of a
measure of general application is admissible where the
author of that measure was under an obligation, imposed
by a higher-ranking legal provision, to take account of
the special situation of the applicants, was not applicable
to the case at issue.

Both the investigative powers of the OLAF on the one
hand, and the obligations to provide information and to
permit, and cooperate with, the activities of the OLAF
imposed on the Members of Parliament, their employees
and the staff of the Parliament by the contested decision
on the other, significantly encroach upon the right to
independent and free exercise of their mandate. The
OLAF’s powers of intervention and action, considered as
a whole, infringe or circumvent the immunities accorded
to Members of the Parliament under Article 10 of the
Protocol on the Privileges and Immunities of the Euro-
pean Communities. The contested decision and the
powers which that decision confers on the OLAF to carry
out investigations in the Parliament also significantly
encroach upon the right of committees of inquiry to
conduct investigations, thereby adversely affecting the
rights of the members of such committees, in particular,
those of the appellants.

— Breach of the principle of effective judicial protection: the
Court failed to consider whether its interpretation of the
fourth paragraph of Article 230 EC ensured effective
judicial protection for the appellants or whether,
in
particular in respect of the condition requiring that an
applicant be individually concerned, the Court should
have applied an interpretation which afforded the appel-
lants adequate judicial protection against the contested
decision.

(1) Not yet published in the European Court Reports.
(2) OJ 1999 L 2002, p. 1.