Case T-465/23: Action brought on 7 August 2023 — Rivellini v Parliament
Date: 2023-08-07
Institutions: General Court
Subjects: Member of the European Parliament, Statute for Members of the Parliament, administrative procedure, conflict of interest, limitation of legal proceedings, parliamentary allowance, pension scheme, principle of legal certainty, proof, servant (EU)








C_202300343EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/343


30.10.2023





Action brought on 7 August 2023 — Rivellini v Parliament
(Case T-465/23)
(C/2023/343)
Language of the case: Italian

Parties


Applicant: Crescenzio Rivellini (Naples, Italy) (represented by: G. Oliviero, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:






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annul in full the decision of the Bureau of the Parliament communicated on 26 May 2023, since the accusations made against the applicant are unfounded;










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as a result of the above, annul every measure that has been taken after the measure challenged in the present action and has legal effects on the applicant;










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in the alternative, declare that every claim brought against the applicant in respect of reimbursements paid before 19 December 2012 is time-barred, since the first measure that is to be regarded as interrupting the limitation period is the note received by the applicant only on 19 December 2017, by which OLAF communicated to the applicant that the investigation into him with Case No OC/2017/0506/A1 had been opened;










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in the further alternative, declare that every claim relating to reimbursements made in respect of MP Congressi e Comunicazione s.r.l. for all services provided to the applicant from 16 June 2010 until the end of his parliamentary mandate is unfounded, since, throughout that period, the Accredited Parliamentary Assistant (APA) [confidential] (1) was not a director of that company and, therefore, did not have a conflict of interest;










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in the still further alternative, and if all the heads of claim above are rejected, declare the deduction made by the Directorate-General for Finance of any amounts of the pension allocated to the applicant (EUR 1 615,22) exceeding EUR 1 000,00 is unlawful, since, as is set out in Article 545 of the Italian Code of Civil Procedure (as referred to a number of times in the correspondence with the Directorate-General for Finance), only EUR 123,04 (equal to one fifth, or 20 % of EUR 615,22) from the applicant’s current old-age pension (as mentioned above, EUR 1 615,22 per month) should be deducted while the remaining sum of EUR 1 492,18 should be paid out in full to the applicant;










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order the defendant to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.






1.


First plea in law, alleging that the statement of reasons is illogical and unfounded as regards the reimbursement for the APA [confidential], (2) that there is no evidence for the claims made against the applicant, that the defendant failed to assess the indicia provided by the applicant, that there had been an unlawful implicit refusal to legitimate requests for documents submitted by the applicant, and that the claims brought against the APA [confidential] (3) were time-barred.






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In that plea, the applicant assesses and criticises the penalties imposed on him by OLAF, the Secretary General and the Bureau of the Parliament involving the repayment of reimbursements concerning the APA [confidential], (4) her activities and her residence.










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First, he criticises the notion of the APA’s residence as the place where the Parliament is located, since this cannot automatically be regarded as being the same as the residence of established officials of that Community body.










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He goes on to complain that every claim levelled against the applicant concerning the APA is unproven and that, in any event, he was denied access to the data from the badge providing the APA access to the Parliament; he also argues that it was impossible to produce the evidence referred to by the Bureau of the Parliament (paragraph 109) after so many years.










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He then takes issue with the limitation period for the request relating to the APA, since it was received after the relevant deadline with respect to an activity carried out up to 31 December 2009.














2.


Second plea in law, alleging that the statement of reasons for the reimbursement concerning the service contracts with MP Congressi e Comunicazione s.r.l. is illogical and is based on an error in law, that the conduct was lawful, proper and in line with Community law, and that the claims are time-barred either in full or in part.






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First of all, the applicant claims and substantiates the claim that there is no conflict of interest, since [confidential] (5) had resigned from her position as a director of MP Congressi e Comunicazione s.r.l. between 16 June 2010 and 16 December 2015;










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He criticises the other basis for the conflict of interests, namely that [confidential] is the applicant’s ‘stable non-marital partner’, denies the relationship and sets out the rules relating to such potential conflicts of interest.










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He reasserts that the services were provided legitimately under Article 41 of the Decision of the Bureau of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (2009/C 159/01) (IMSM), since they were always confirmed annually, refers to Article 132(1) of Regulation (EU, Euratom) 2018/1046 (6) of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, headed ‘Record-keeping’, and argues, lastly, that any claim predating 19 December 2012 is time-barred under the five-year limitation period.














3.


Third plea in law, alleging that the statement of reasons is illogical and that there has been a failure to observe the principle of legal certainty in legal relations and to meet legitimate expectations vis-à-vis the contracts between the applicant and MP Congressi e Comunicazione s.r.l. He also argues that the claims concerning the alleged conduct are time-barred.






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The applicant begins by reiterating the date of the OLAF communication (19 December 2017) and refers to Article 73a of Regulation No 1605/2002, Article 85b of Commission Regulation No 2342/2002 (7) of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 (8) on the Financial Regulation applicable to the general budget of the European Communities, Article 41 of the IMSM and the judgment of the European Union Civil Service Tribunal of 12 March 2014 in Case F-128/12 to establish that the five-year limitation period starts to run from the payment of the sums subsequently contested.










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The applicant claims that Article 85b of Regulation No 2342/2002 is unlawful.














4.


Fourth plea in law, alleging that the general principle of the allocation of the burden of proof has not been observed and that that burden has been inversed unlawfully.






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The applicant criticises the alleged inversion of the principle of the burden of proof, since the institution makes accusations against the applicant without substantiating its accusations with any evidence and claims that it is for the applicant to adduce evidence, thereby failing to observe the so-called principle of the proximity of evidence.














5.


Fifth plea in law, in the alternative to the pleas above, alleging that the withdrawals from the applicant’s pension were unlawful and that there had been a manifest infringement of Article 545(7) of the Italian Code of Civil Procedure, despite that provision being expressly referred to by the Directorate-General for Finance.






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The applicant complains that the Directorate-General for Finance’s deductions from his pension are unlawful under Article 545(7) of the Italian Code of Civil Procedure, a provision which is referred to a number of times by that Directorate-General but has been misapplied, with the result that the applicant has incurred a loss.










(1)  Confidential information redacted.

(2)  Confidential information redacted.

(3)  Confidential information redacted.

(4)  Confidential information redacted.

(5)  Confidential information redacted.

(6)  
            OJ 2018 L 193, p. 1.

(7)  
            OJ 2002 L 357, p. 1.

(8)  
            OJ 2002 L 248, p. 1.


ELI: http://data.europa.eu/eli/C/2023/343/oj
ISSN 1977-091X (electronic edition)