CELEX: 62002CC0167
Language: en
Date: 2003-11-20 00:00:00
Title: Opinion of Mr Advocate General Jacobs delivered on 20 November 2003. # Willi Rothley and Others v European Parliament. # Appeal - Measure of the Parliament concerning the terms and conditions for internal investigations in relation to the prevention of fraud - Action for annulment - Admissibility - Independence and immunity of Members of the Parliament - Confidentiality connected with the work of Parliamentary committees of inquiry - European Anti-Fraud Office (OLAF) - Investigative powers. # Case C-167/02 P.

OPINION OF ADVOCATE GENERAL
      JACOBS
      delivered on 20 November 2003 (1)
      
      Case C-167/02 P
      Willy Rothley and Others
      v
      European Parliament
      ()
      1.        In this case, Willy Rothley and 70 other Members of the European Parliament (to whom I shall refer for convenience as ‘the
         applicants’) appeal against a judgment of the Court of First Instance (2) holding inadmissible their application under the fourth paragraph of Article 230 EC for the annulment of the Parliament’s
         decision of 18 November 1999 on the amendments to the Rules of Procedure following the Interinstitutional Agreement of 25
         May 1999 on the internal investigations conducted by the European Anti-Fraud Office (OLAF). (3)
      
      2.        That decision (hereinafter the ‘contested measure’) amended the Rules of Procedure of the European Parliament so as to include
         rules relating to internal investigations within the Parliament by the recently established European Anti-Fraud Office (also
         known, and hereafter referred to, by its French acronym, ‘OLAF’). 
      
      3.        The Court of First Instance held that the applicants were not individually concerned by the contested measure and therefore
         lacked the requisite standing to challenge it.  The applicants appeal against that judgment on the grounds that it misconstrues
         the fourth paragraph of Article 230 EC and infringes their right to effective judicial protection.  The appeal therefore requires
         the Court of Justice to revisit its case-law on the meaning of individual concern, the traditional interpretation of which,
         first established in the case of Plaumann, (4) was recently confirmed by its judgment in Unión de Pequeños Agricultores. (5)
      
        
       Legal framework 
      4.        OLAF was established by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (6) with the aim of ‘increas[ing] the effectiveness of the fight against fraud and other illegal activities detrimental to the
         financial interests of the Communities’. (7)  It is empowered by Regulation (EC) No 1073/1999 (8) to conduct internal administrative investigations within the ‘institutions, bodies, offices and agencies established by,
         or on the basis of, the Treaties’ for the purpose of: 
      
      –        ‘fighting fraud, corruption and any other illegal activity affecting the financial interests of the European Community 
      –        investigating to that end serious matters relating to the discharge of professional duties such as to constitute a dereliction
         of the obligations of officials and other servants of the Communities liable to result in disciplinary or, as the case may
         be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies,
         heads of offices and agencies or members of the staff of institutions, bodies, offices and agencies not subject to the Staff
         Regulations …’ (9)
      
      5.        Article 4 of the Regulation lays down more detailed guidance regarding the conduct of internal investigations.  By Article
         4(1), they are to be carried out ‘subject to the rules of the Treaties, in particular the Protocol on privileges and immunities
         of the European Communities … under the conditions and in accordance with the procedures provided for in this Regulation and
         in decisions adopted by each institution, body, office and agency’. 
      
      6.        Article 4(2) empowers OLAF to have immediate and unannounced access to the premises of, and any information held by, the institutions,
         bodies, offices and agencies; to inspect their accounts; to copy or obtain custody of documents or the contents of any data
         medium in their possession; and to request oral information from members of institutions and bodies, managers of offices and
         agencies, and from staff.  By Article 4(4), the institutions, bodies, offices and agencies are to be informed whenever the
         employees of OLAF conduct an investigation on their premises or consult a document or request information in their keeping. 
         Article 5 provides that internal investigations are to be opened by a decision of the director of OLAF. 
      
      7.        In order to ensure consistency in the implementing measures which Article 4 of the Regulation required them to adopt, the
         European Parliament, the Council and the Commission concluded an interinstitutional agreement on 25 May 1999. (10)  By point 2 thereof, they each undertook to adopt an internal decision in accordance with a model decision attached to the
         agreement, from which they could deviate only if their own particular requirements made such deviation a technical necessity.
         
      
      8.        The contested measure implements the interinstitutional agreement within the Parliament.  It amends the Parliament’s Rules
         of Procedure to give effect to a version of the model decision, modified to take account of the Parliament’s particular requirements,
         which it appends to those Rules. 
      
      9.        The decision thus appended to the Rules of Procedure (hereinafter the ‘model decision’) imposes various obligations on Members
         of the Parliament.  They are required by the second paragraph of Article 1 to cooperate fully with OLAF.  That obligation
         is, however, stated to be ‘without prejudice to the relevant provisions of the Treaties establishing the European Communities,
         in particular the Protocol on privileges and immunities, and of the texts implementing them’. 
      
      10.      The fourth paragraph of Article 2 requires Members to inform the President of the Parliament or, if they consider it useful,
         OLAF directly, if they acquire knowledge of ‘evidence which gives rise to a presumption of the existence of possible cases
         of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations
         relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials
         or servants of the Communities or staff not subject to the Staff Regulations, liable to result in disciplinary or, where appropriate,
         criminal proceedings’. 
      
      11.      Article 4 provides that ‘[r]ules governing Members’ parliamentary immunity and the right to refuse to testify remain unchanged’.
         
      
      12.      Article 5 provides that: 
      ‘Where the possible implication of a Member … emerges, the interested party shall be informed rapidly as long as this would
         not be harmful to the investigation.  In any event, conclusions referring by name to a Member … may not be drawn once the
         investigation has been completed without the interested party having been enabled to express his views on all the facts which
         concern him. 
      
      In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of
         investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite
         the Member … to give his views may be deferred in agreement … with the President …’. 
      
      13.      Articles 8 to 10 of the Protocol on the privileges and immunities of the European Communities of 8 April 1965 are devoted
         to the Members of the Parliament. 
      
      14.      Article 9 provides that ‘Members of the European Parliament shall not be subject to any form of inquiry, detention or legal
         proceedings in respect of opinions expressed or votes cast by them in the performance of their duties’. 
      
      15.      Article 10 states that: 
      ‘During the session of the European Parliament, its Members shall enjoy: 
      (a)      in the territory of their own State, the immunities accorded to Members of their parliament; 
      (b)      in the territory of any other MemberState, immunity from any measure of detention and from legal proceedings. 
      Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.
         
      
      Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament
         from exercising its right to waive the immunity of one of its Members.’ 
      
        
       The contested judgment 
      16.      On 21 January 2000, the applicants brought proceedings before the Court of First Instance for annulment of the contested measure. 
         They also sought interim measures pursuant to Article 242 EC.  By order of 2 May 2000, (11) the President of the Court of First Instance suspended the operation of a number of provisions of the contested measure vis-à-vis
         the applicants, pending delivery of final judgment in the main proceedings.  By its judgment of 26 February 2002 (hereinafter
         ‘the contested judgment’), the Court of First Instance held that the applicants were not individually concerned by the contested
         measure as required by the fourth paragraph of Article 230 EC. 
      
      17.      Having found that the contested measure was of general application, despite being in the form of a decision, (12) the Court noted that it might still in certain circumstances be of individual concern to the applicants. (13)
      
      18.      The Court first considered whether the applicants were affected by the contested measure by reason of certain attributes peculiar
         to them or by reason of circumstances which differentiated them from all other persons, in accordance with the test for individual
         concern laid down in Plaumann. (14)  It concluded that they were not.  The measure applied to the applicants as Members of the Parliament, a category which could
         not be regarded as closed merely because when the measure was adopted the number and identity of its members at that time
         were known.  Nor was there any reason to suppose that the applicants formed a closed sub-category within the Parliament. (15)
      
      19.      Secondly, the Court examined whether the applicants were individually concerned by reason of a superior rule of law requiring
         the Parliament to take account of their particular circumstances.  In the Court’s view, the Protocol on privileges and immunities
         did not constitute such a rule.  It referred to Members of the Parliament only in a general fashion and contained no provision
         explicitly governing internal investigations within the Parliament.  Moreover, the provisions of the contested measure showed
         that the Parliament had endeavoured to have special regard to its Members’ immunity. (16)
      
      20.      Thirdly, the Court considered the judicial protection otherwise available to the applicants.  The risk could not be excluded
         that, in conducting an investigation, OLAF might perform an act prejudicial to the immunity enjoyed by Members of the Parliament. 
         However, the Court noted that Members faced with such an act could at that stage avail themselves of the legal remedies provided
         for by the Treaty.  The existence of such a risk could, in any event, not alter the conditions for standing laid down by the
         fourth paragraph of Article 230 EC. (17)
      
      21.      Lastly, the Court noted that, by contrast with the situation in Les Verts, (18) the inadmissibility of the present action would not give rise to any inequality as regards the judicial protection afforded
         to the applicants as compared with that afforded to other Members of the Parliament. (19)
      
      22.      The Court therefore held that the applicants lacked the standing to proceed under the fourth paragraph of Article 230 EC,
         and dismissed their action as inadmissible. 
      
        
       The appeal 
      23.      The applicants ask the Court to set aside the contested judgment and either to annul the contested measure itself or to refer
         the matter back to the Court of First Instance.  The Parliament asks the Court to uphold the contested judgment.  The Council,
         the Commission and the Netherlands Government have all intervened in support of the Parliament. 
      
      24.      The applicants advance two grounds of appeal:  that the contested judgment was in breach of the fourth paragraph of Article
         230 EC;  and that it infringed their right to effective judicial protection as enshrined in the general principles of Community
         law. 
      
        
       First ground:  the fourth paragraph of Article 230 EC 
      25.      Four arguments are advanced in support of the first ground of appeal. 
      26.      First, the applicants submit that Members of the Parliament automatically have standing to challenge measures of that institution
         having legal effects which go beyond its internal organisation, and which directly affect its Members’ rights and obligations.
         
      
      27.      They rely in support of that proposition on an order made by the President of the Court of First Instance on 25 November 1999,
         in the case of Martinez and de Gaulle, granting an application for interim measures to suspend the operation of a decision of the Parliament which was being challenged
         by some of its Members. (20)
      
      28.      In the applicants’ submission, the President was prepared when making that order to accept a ‘strong case’ for considering
         that the main action would prove admissible, without considering in detail whether the requirement of individual concern was
         satisfied, once he had first concluded that the decision at issue was possibly capable of producing legal effects going beyond
         the internal organisation of the work of the Parliament. 
      
      29.      The applicants therefore assert that the Court of First Instance was mistaken to conclude that their standing to challenge
         the contested measure depended on its being of individual concern to them. 
      
      30.      In my view, the requirement of individual concern cannot be dispensed with as the applicants contend.  It is specified in
         the fourth paragraph of Article 230 EC as a condition which must be met before individuals are permitted to challenge a Community
         act other than a decision addressed to them.  Any argument which relates to its applicability, as opposed to its interpretation,
         must therefore be rejected. 
      
      31.      Nor, to my mind, can any support for the applicants’ proposition be derived from the order of the President of the Court of
         First Instance in Martinez and de Gaulle.  The President specifically referred to the requirement of individual concern.  The fact that he did not explore in detail
         whether the applicants in the proceedings before him were individually concerned can be attributed to the interim character
         of the proceedings in question. 
      
      32.      In any event, I cannot see any good reason why the requirement of individual concern should be either dispensed with, or interpreted
         as having been met, in the circumstances specified by the applicants.  The condition in the first paragraph of Article 230
         EC that only such measures of the Parliament as are intended to produce legal effects vis-à-vis third parties are reviewable
         goes to determine what measures may be challenged, not who may bring such a challenge.  The effect of the requirement in the
         present circumstances is to preserve for the Parliament a sphere of autonomy as regards in particular the organisation of
         its own internal workings, rather than to supplant the standing test laid down in the fourth paragraph of Article 230 EC.
         
      
      33.      I therefore conclude that the Court of First Instance was correct to insist upon the need for the applicants to show that
         they were individually concerned by the contested measure. 
      
      34.      A second argument is advanced by the applicants in their reply.  They seek to rely upon the judgment of the Court of First
         Instance in Martinez and de Gaulle, (21) where, in circumstances which they claim to be materially identical to those of the present case, the Court of First Instance
         found the requirement of individual concern to have been met. 
      
      35.      In my view, however, the present case is clearly distinguishable from Martinez and de Gaulle.  The latter proceedings arose out of an attempt by various independent Members of the Parliament to form themselves into
         a political group (known as the TDI group) in order to be able to enjoy the various procedural advantages conferred upon such
         groups by the Parliament’s Rules of Procedure.  However, following objections from the presidents of other political groups,
         the Parliament’s Commission on Constitutional Affairs interpreted the notion of political group as it appeared in the Rules
         of Procedure in such a way as to exclude the TDI group, an interpretation which was confirmed by the plenary session of the
         Parliament. 
      
      36.      Various Members of the Parliament and a political party forming part of the TDI group brought proceedings under Article 230
         EC against the Parliament’s decision.  The Court of First Instance found that they were individually concerned by that decision,
         which was at once a measure of general application and an individual determination of the TDI group’s status. (22)
      
      37.      In the present case, as the Parliament rightly submits, the contested measure does not disclose any equivalent individual
         determination such as would render the applicants individually concerned.  There is therefore no analogy to be drawn with
         the judgment of the Court of First Instance in Martinez and de Gaulle. 
      
      38.      Thirdly, the applicants assert that the Court of First Instance erred in finding that they were not individually concerned
         by the contested measure according to the traditional interpretation of that concept in the Community case-law. 
      
      39.      In the applicants’ view, Members of the Parliament constitute a closed circle of persons whose number and identity were fixed
         and known at the time when the contested measure was adopted.  All are therefore individually concerned by the measure, and
         any of them may bring an action for its annulment. 
      
      40.      I cannot agree with that argument. 
      41.      It is clear that ordinarily under the traditional interpretation of individual concern instituted by the case of Plaumann, (23) a person will not be individually concerned by a measure if he is affected by it only as one of a group, however small and
         easily identifiable its membership, the composition of which is not permanently fixed at the time when the measure is adopted. 
         Thus, in Plaumann, (24) the applicant was affected by the measure at issue ‘by reason of a commercial activity which may at any time be practised
         by any person’ and therefore lacked the requisite standing to proceed. 
      
      42.      Whilst the composition of the Parliament differs from that of groups engaged in many commercial activities in that it is determined
         by and changes in accordance with a specified set of rules and procedures, it still cannot be regarded as fixed.  In consequence,
         an act, such as the contested measure, which applies generally and prospectively to Members of the Parliament, is liable to
         affect future Members as well as those who currently hold office, and as such is not of individual concern to any one or more
         of them. 
      
      43.      Although the Court of First Instance did not explicitly apply the test of individual concern, re-emphasising instead the general
         application of the measure, it did refer to that test, and reached what was in my view the correct conclusion in rejecting
         the applicants’ contention that the contested measure concerned them individually as members of a closed circle of persons
         identifiable by name.  I therefore consider that the applicants’ third argument must fail. 
      
      44.      Fourthly, the applicants contend that the Court of First Instance was wrong to dismiss the possibility of applying the case-law (25) by virtue of which an action for annulment is admissible where a superior rule of law required the decision-maker to take
         account of the applicants’ peculiar circumstances. 
      
      45.      In the applicants’ view, superior norms of Community law confer various rights upon Members of the Parliament of which adequate
         account was not taken in the adoption of the contested measure.  They identify in particular Members’ rights to independence
         in the exercise of their mandate and to immunity, as well as the rights enjoyed by, and obligations imposed upon, Members
         when serving on Parliamentary Commissions of Inquiry. 
      
      46.      I am not persuaded by the applicants’ submissions in that regard. 
      47.      The case-law upon which they rely does not permit a person to challenge any measure which can be shown to violate a superior
         rule of law.  Otherwise, the test for individual concern would become indistinguishable from the substance of the case, given
         that every action challenging a Community measure asserts its incompatibility with some rule or principle of Community law. 
         Such an approach would circumvent any independent requirement of standing. 
      
      48.      It is therefore necessary also to show that the superior rule of law in question requires the decision-maker to pay particular
         regard to the applicant’s situation, in such a way as to individualise the applicant from the general class or classes of
         person concerned by the measure.  Such is not the case here.  The rights specified by the applicants apply equally to all
         Members of the Parliament as a class.  I therefore agree with the Court of First Instance that the rights to which the applicants
         refer cannot assist them in demonstrating individual concern. 
      
      49.      In any event, the Court of First Instance was to my mind also correct to hold that Parliament did show appropriate regard
         to the rights of its Members when adopting the contested measure.  Article 4 of the model decision confirms that the rules
         governing Members’ parliamentary immunity and the right to refuse to testify remain unchanged.  Moreover, the duty upon Members
         to cooperate with OLAF, laid down by Article 1 of the model decision, is specifically stated to be without prejudice to the
         relevant provisions of the Treaties establishing the European Communities, in particular the Protocol on privileges and immunities,
         and of the texts implementing them.  Similarly, the Regulation empowering OLAF to conduct internal investigations is itself
         expressly subject to the rules of the Treaties, especially the Protocol. 
      
      50.      I therefore consider that the applicants’ first ground of appeal must fail. 
        
       Second ground:  right to effective judicial protection 
      51.      By their second ground of appeal, the applicants allege that the contested judgment infringes their right to effective judicial
         protection.  In their submission, the Court of First Instance was wrong to conclude that a Member of the Parliament whose
         rights were infringed during the course of an internal investigation could at that stage avail himself of effective judicial
         protection. 
      
      52.      The applicants submit that the obligations to cooperate with and supply information to OLAF are imposed upon them directly
         by the contested measure, without the need for any implementing act which could form the object of subsequent judicial proceedings. 
         Nor, in the applicants’ view, need OLAF adopt any kind of reviewable legal act in the exercise of its investigatory powers. 
         As a consequence, there is no scope for Members of the Parliament to challenge the contested measure indirectly before the
         Community courts. 
      
      53.      The applicants consider it equally unlikely that there would be any scope to challenge an infringement of Members’ rights
         by OLAF in the context of subsequent national judicial proceedings arising out of an internal investigation.  They submit
         that national courts would lack the competence to review measures taken by OLAF. 
      
      54.      The applicants therefore contend that the only available means of securing judicial oversight of the contested measure is
         by means of a direct action.  The fourth paragraph of Article 230 EC should therefore be interpreted in the light of the principle
         of effective judicial protection in such a way as to allow them to proceed with their challenge. 
      
      55.      I am not persuaded that the applicants’ right to effective judicial protection would be infringed if they were not permitted
         to continue with their current proceedings against the contested measure. 
      
      56.      As regards those obligations which the contested measure imposes upon Members of the Parliament directly – such as their duties
         to cooperate with, and to supply information to, OLAF – it is in the first instance for Members to assess for themselves whether
         a given situation gives rise to such obligations, bearing in mind the other rights and obligations applicable to them by virtue
         of their office.  Such assessment might be subject to subsequent review, most obviously in the context of disciplinary proceedings
         by the Parliament.  However, an adverse decision taken in the context of such a review would itself be open to challenge before
         the Community Courts. 
      
      57.      As regards the measures taken by OLAF during the course of an internal investigation, whilst it is difficult to pronounce
         in the abstract on the admissibility of future proceedings, it seems probable to me that, as the Court of First Instance held
         and as the other parties have suggested, Members of the Parliament who considered their rights to have been infringed would
         have various opportunities to bring judicial proceedings. 
      
      58.      The Commission points to a number of legal acts which might be challenged in that way:  the decision of the director of OLAF
         to open an internal investigation as required by the second paragraph of Article 5 of the Regulation; various measures taken
         by OLAF in the course of an investigation, including the decision to have access to an office, to seize documents or to request
         oral information; as well as the agreement, explicit or implicit, of the institution in question. 
      
      59.      Even assuming that proceedings under Article 230 EC could not be brought against OLAF itself, they could in that case be directed
         against the Commission, which could ensure OLAF’s compliance with an ensuing judgment, if necessary by means of disciplinary
         measures including, in the last resort, the dismissal of the director. 
      
      60.      It is true that such proceedings would often be retrospective in character, as is ordinarily the case with judicial review. 
         The applicants emphasise the resulting risk that Members of the Parliament might, as a consequence of their implication in
         a flawed internal investigation, suffer damage to their reputations which would not be wholly remedied in subsequent proceedings. 
         
      
      61.      It appears to me, however, that the need for discreet and expeditious action in the detection of fraud renders some such risk
         unavoidable.  It should, moreover, be noted that the contested measure contains provisions designed to minimise the danger. 
         Thus, Article 5 of the model decision requires Members to be informed rapidly of their implication in an investigation, as
         long as that would not harm the investigation.  That article also prevents Members from being named in OLAF’s conclusions
         without their first having been heard except insofar as national investigative procedures require the maintenance of absolute
         secrecy. 
      
      62.      If any difficulties were to emerge relating to the admissibility of proceedings brought by Members of the Parliament in respect
         of OLAF’s conduct of an internal investigation, they could in my view be resolved by respecting the obligation, recently confirmed
         in Unión de Pequeños Agricultores, (26) to interpret the relevant provisions of Community law, in so far as possible, in the light of the principle of effective
         judicial protection. 
      
      63.      Given the legal avenues thus available to Members who might consider OLAF to breach their rights in the course of an internal
         investigation, the contested judgment in my view cannot itself be said to infringe the applicants’ right to effective judicial
         protection. 
      
       Conclusion 
      64.      I am therefore of the opinion that the Court should 
      (1)      dismiss the appeal; 
      (2)      order the applicants to pay the costs; 
      (3)      order the Council, the Commission and the Netherlands, as interveners, to bear their own costs. 
      1 –	 Original language: English.
      
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