CELEX: 62000TJ0353
Language: en
Date: 2003-04-10
Title: Judgment of the Court of First Instance (Fifth Chamber) of 10 April 2003. # Jean-Marie Le Pen v European Parliament. # Act of the Parliament - Disqualification of a Member of the European Parliament from holding office - Application of national law - Action for annulment - Challengeable act - Inadmissibility. # Case T-353/00.

Case T-353/00 Jean-Marie Le PenvEuropean Parliament
            «(Act of the Parliament – Disqualification of a Member of the European Parliament from holding office – Application of national law – Action for annulment – Challengeable act – Inadmissibility)»
            
               
                  Judgment of the Court of First Instance (Fifth Chamber), 10 April 2003  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Declaration of the President of the European Parliament taking note of the vacancy of a seat following the application of
                     national rules by the national authorities – Not covered
                  (Art. 230 EC; Act concerning the election of the representatives of the Assembly by direct universal suffrage, Art. 12(2)) Only measures which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct
         change in his legal position may be the subject of an action for annulment under Article 230 EC. Thus, an action for annulment
         is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to
         have legal effects.The declaration of the President of the Parliament in the plenary session of 23 October 2000 by which,  
         in accordance with Article 12(2) of the [1976 Act], the ... Parliament takes note of the notification of the French Government
         declaring the disqualification of [the applicant] from holding office is not capable of being the subject of an action for annulment under Article 230 EC.The process of  
         taking note of a vacancy of a seat of a Member of the European Parliament under Article 12(2) of the 1976 Act concerning the election
         of the representatives of the Assembly by direct universal suffrage refers not to the disqualification from office of the
         person concerned but to the simple fact that his seat has become vacant as a result of the application of national provisions.
         In other words, the role of the Parliament is not to  
         bring about the disqualification from office, but merely to take note of the declaration, already made by the national authorities, that
         the seat is vacant, that is to say, of a pre-existing legal situation resulting exclusively from a decision of those authorities.see paras 77-78, 90, 98
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)10 April 2003  (1)
         
         
               ((Act of the Parliament – Disqualification of a Member of the European Parliament from holding office – Application of national law – Action for annulment – Challengeable act – Inadmissibility))
               
             In Case T-353/00, 
            
            
            Jean-Marie Le Pen, residing at Saint-Cloud (France), represented by F. Wagner, lawyer,
            
            
            applicant, 
            
            v
            European Parliament, represented by H. Krück and C. Karamarcos, acting as Agents, with an address for service in Luxembourg,
            
            defendant,  supported byFrench Republic, represented by R. Abraham, G. de Bergues, D. Colas and L. Bernheim, acting as Agents, with an address for service in Luxembourg,
            
            intervener, 
            
             APPLICATION for annulment of the decision in the form of a declaration of the President of the European Parliament of 23 October
            2000 on the disqualification of the applicant from holding office as a Member of the European Parliament,
            
            
            THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
            
             composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges, 
            
             Registrar: J. Palacio González, Principal Administrator, 
            
            
            having regard to the written procedure and further to the hearing on 25 June 2002
         gives the following
         
         
         Judgment
            
                The law
             Community law
         
         
         1
            
          Article 5 EU provides: The European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their
         powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing
         the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand,
         by the other provisions of this Treaty.
         
         
         2
            
          The first subparagraph of Article 189 EC, Article 20 CS and Article 107 EA provide that the European Parliament is to  
         consist of representatives of the peoples of the States brought together in the Community.  
         
         
         3
            
          Article 190(4) EC, Article 21(3) CS and Article 108(3) EA provide that the European Parliament is to draw up a proposal for
         elections by direct universal suffrage in accordance with a uniform procedure in all the Member States, or in accordance with
         principles common to all the Member States, and that the Council, acting unanimously, is to lay down provisions, which it
         is to recommend to the Member States for adoption. 
         
         
         4
            
          Article 7(1) of the Act concerning the election of representatives to the European Parliament by direct universal suffrage,
         annexed to the Council Decision of 20 September 1976 (OJ 1976 L 278, p. 5; in its original version,  
         the 1976 Act), states that it is to be the responsibility of the Parliament to draw up a uniform electoral procedure. At the time of the
         facts in the present case, notwithstanding drafts prepared by the Parliament, no uniform system had been adopted. 
         
         
         5
            
          Under Article 3(1) of the 1976 Act, the Members of the European Parliament  
         shall be elected for a term of five years.  
         
         
         6
            
          Article 6(1) of the 1976 Act sets out the functions with which the office of Member of the European Parliament is to be incompatible,
         and provides, in paragraph 2, that each Member State  
         may, in the circumstances provided for in Article 7(2), lay down rules at national level relating to incompatibility.  
         
         
         7
            
          Article 6(3) provides: [Members of the European Parliament] to whom paragraphs 1 and 2 become applicable in the course of the five-year period referred
         to in Article 3 shall be replaced in accordance with Article 12.
         
         
         8
            
          Article 7(2) of the 1976 Act provides: Pending the entry into force of a uniform electoral procedure and subject to the other provisions of this Act, the electoral
         procedure shall be governed in each Member State by its national provisions.
         
         
         9
            
          Article 11 of the 1976 Act provides: Pending the entry into force of the uniform electoral procedure referred to in Article 7(1), [the Parliament] shall verify
         the credentials of representatives. For this purpose it shall take note of the results declared officially by the Member States
         and shall rule on any disputes which may arise out of the provisions of this Act other than those arising out of the national
         provisions to which the Act refers.
         
         
         10
            
          Article 12 of the 1976 Act provides: 
         
         (1)
          Pending the entry into force of the uniform electoral procedure referred to in Article 7(1) and subject to the other provisions
         of this Act, each Member State shall lay down appropriate procedures for filling any seat which falls vacant during the five-year
         term of office referred to in Article 3 for the remainder of that period. 
         
         
         (2)
          Where a seat falls vacant pursuant to national provisions in force in a Member State, the latter shall inform [the Parliament],
         which shall take note of that fact.
          In all other cases, [the Parliament] shall establish that there is a vacancy and inform the Member State thereof.
         
         
         11
            
          Rule 7 of the Rules of Procedure of the European Parliament (OJ 1999 L 202, p. 1,  
         the Rules of Procedure) is headed  
         Verification of credentials. Point 4 provides: The committee shall ensure that any information which may affect the performance of the duties of a Member of the European
         Parliament or the ranking of the substitutes is forwarded without delay to Parliament by the authorities of the Member States
         or of the Union, with an indication of the date of effect where an appointment is concerned.Should the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a Member
         from holding office, the President shall ask them to keep him regularly informed of the stage reached in the procedure. He
         shall refer the matter to the committee responsible. On a proposal from that committee, Parliament may adopt a position on
         the matter.
         
         
         12
            
          Rule 8(6) of the Rules of Procedure provides: The following shall be considered as the date of the end of the term of office and the effective date of a vacancy:
         
         
         ─
             in the event of resignation: the date on which the vacancy is established by Parliament, in accordance with the notification
            of resignation; 
          in the event of resignation: the date on which the vacancy is established by Parliament, in accordance with the notification
         of resignation; 
         
         
         
         ─
             in the event of appointment to an office incompatible with the office of a Member of the European Parliament, either in respect
            of national electoral law, or in respect of Article 6 of the [1976 Act]: the date notified by the competent authorities of
            the Member States or of the Union.
          in the event of appointment to an office incompatible with the office of a Member of the European Parliament, either in respect
         of national electoral law, or in respect of Article 6 of the [1976 Act]: the date notified by the competent authorities of
         the Member States or of the Union.
         
         
         
         13
            
          Article 8(9) of the Rules of Procedure provides: Parliament shall reserve the right, where acceptance or termination of office appears to be based on material inaccuracy or
         vitiated consent, to declare the appointment under consideration to be invalid or refuse to establish the vacancy.
          French law
         
         
         14
            
          Under Article 5 of Law 77-729 of 7 July 1977 on the election of representatives to the Assembly of the European Communities,
         as amended (JORF of 8 July 1977, p. 3579,  
         the 1977 Law): Articles LO 127 to LO 130-1 of the Electoral Code shall apply to the election of [Members of the European Parliament]. ...Ineligibility arising during the term of office shall bring that term to an end. Ineligibility will be declared by decree.
         
         
         15
            
          Article 25 of the 1977 Law provides: The election of [Members of the European Parliament] may, within 10 days of the declaration of the results of the voting and
         in respect of any matter concerning the application of this law, be challenged by any elector before the Conseil d'État. The
         decision shall be given in plenary session.The application will not have suspensory effect.
         Facts giving rise to the dispute and procedure
         
         16
            
          The applicant was elected as a Member of the European Parliament on 13 June 1999.  
         
         
         17
            
          By judgment of 23 November 1999, the French Cour de cassation (Criminal Chamber) dismissed the applicant's appeal against
         the decision of the Cour d'appel de Versailles of 17 November 1998, finding him guilty,  
         inter alia, of assault on a public officer acting in the course of his duties and when the victim's status was apparent or known to
         the perpetrator of the assault, an offence contrary to Article 222-13, first subparagraph, point 4, of the French Criminal
         Code. For that offence the applicant received a suspended sentence of three months' imprisonment and a fine of FRF 5 000.
         By way of further sentence, he was declared ineligible for a period of one year under Article 131-26, point 2, of the Criminal
         Code.  
         
         
         18
            
          In the light of that conviction and pursuant to the second subparagraph of Article 5 of the 1977 Law, the French Prime Minister
         declared, by decree dated 31 March 2000, that  
         [the applicant's] ineligibility brought to an end his term of office as a representative in the European Parliament.  
         
         
         19
            
          The Secretary General of the French Ministry of Foreign Affairs notified the applicant of that decree by letter dated 5 April
         2000. In that letter, it was stated that the applicant could bring proceedings challenging that decree before the French Conseil
         d'État within a period of two months from the date of notification.  
         
         
         20
            
          In an undated letter, the President of the Parliament, Ms Fontaine, informed the applicant that the French authorities had
         officially brought before her the matter of the applicant's disqualification from holding office as a Member of the European
         Parliament. She stated that she would  
         [make a statement on the matter] in the plenary sitting on 3 May [2000], and that, in accordance with the second subparagraph of Rule 7(4) of the Rules of Procedure,  
         the matter [would] be referred to the committee responsible.  
         
         
         21
            
          The report of the plenary session of 3 May 2000, under the heading  
         Withdrawal of [the applicant's] parliamentary mandate, states as follows: The President announced that she had received from the French authorities on 26 April 2000 a letter from Mr Védrine, French
         Foreign Minister, and Mr Moscovici, Minister in Charge of European Affairs, dated 20 April 2000, enclosing a dossier concerning
         the withdrawal of [the applicant's] parliamentary mandate. She announced that she would refer this dossier to the Legal Affairs
         Committee pursuant to Rule 7(4), second subparagraph ...
         
         
         22
            
          The Legal Affairs and Internal Market Committee (
         the Legal Affairs Committee) verified the applicant's credentials in closed sessions on 4, 15 and 16 May 2000.  
         
         
         23
            
          The minutes of the meeting of 4 May 2000 record that the Legal Affairs Committee postponed to a further meeting consideration
         of those aspects of the matter which might enable it to take a decision. It appears from the minutes of the meeting of 15
         May 2000 that the President of that committee, Ms Palacio, proposed that the decision of the Parliament be confined to the
          
         formality of whether to take note or not. However, that  
         proposal for a recommendation to the President of the Parliament was  
         rejected by 15 votes to 13. The discussion was resumed the next day, and the minutes of the meeting of 16 May 2000 record only that the Committee  
         upheld the decision of the day before.  
         
         
         24
            
          In the plenary session of 18 May 2000, the President of the Parliament, after stating that she had asked for the opinion of
         the Legal Affairs Committee on the French authorities' communication on the disqualification of the applicant from holding
         office, read out a letter of 17 May 2000 from Ms Palacio which was worded as follows: Madam President,The [Legal Affairs Committee] resumed the examination of the position of [the applicant] at its meeting on 16 May 2000. The
         Committee is aware that the French Prime Minister's decree, notified to [the applicant] on 5 April 2000 and published in the
          
         Journal officiel de la République française on 22 April 2000, is now enforceable. However, the Committee notes that, as mentioned in the letter notifying the party concerned
         of the decree, the latter is entitled to bring proceedings before the Conseil d'État accompanied by a request for suspension
         of operation of the decree.In the light of the decision yesterday not to recommend for the time being that the Parliament take formal note of the decree
         concerning [the applicant], the Committee considered the possible ways forward. In support of this decision, the case of Mr
         Tapie was raised as a precedent to be followed, with the effect that the European Parliament should take formal note of the
         decree of disqualification from holding office only after expiry of the period prescribed for bringing proceedings before
         the Conseil d'État, or after the decision of that court, as the case may be.
         
         
         25
            
          The President of the Parliament then stated that it was her intention to follow the  
         opinion of the Legal Affairs Committee. 
         
         
         26
            
          In the course of the debate between several Members of the Parliament that followed that statement, the President of the Parliament
         stated, in particular,  
         that it [was] Parliament which [would] take note and not its President.  
         
         
         27
            
          According to the minutes of that plenary session, the President of the Parliament considered, at the conclusion of the debate,
         that Mr Barón Crespo, who had asked that the Parliament should adopt a position on the opinion of the Legal Affairs Committee,
         was finally won over to the position taken by Mr Hänsch, namely that no vote should take place, on the ground, in particular,
         that there was no formal proposal from that committee. The President of the Parliament concluded that, in the absence of a
          
         concrete proposal from the Legal Affairs Committee, this course represented the  
         best solution all round.  
         
         
         28
            
          By application to the French Conseil d'État dated 5 June 2000, the applicant sought the annulment of the decree of 31 March
         2000.  
         
         
         29
            
          By letter dated 9 June 2000 to Mr Védrine and Mr Moscovici, the President of the Parliament stated: Following the opinion of our [Legal Affairs Committee], it seems to me to be right, having regard to the irreversible nature
         of disqualification from holding office, that the European Parliament should take formal notice of the decree [of 31 March
         2000] only after expiry of the period prescribed for bringing proceedings [before the] Conseil d'État or after the decision
         of the latter, as the case may be.
         
         
         30
            
          In a letter dated 13 June 2000, Mr Moscovici informed the President of the Parliament that the French Government formally
         challenged the position taken by that institution in its session of 18 May 2000, in refusing to take note of the applicant's
         disqualification, by the decree of 31 March 2000, from holding office. It stated that, in doing so, the Parliament was in
         breach of Article 12(2) of the 1976 Act, and that the reason given did not justify such a breach. The Parliament was therefore
         invited to take note of the disqualification  
         forthwith.  
         
         
         31
            
          The President of the Parliament replied by letter dated 16 June 2000 stating that the Parliament  
         would take note of [the applicant's] disqualification from holding office once [the decree of 31 March 2000] was no longer
         open to challenge, which was not yet the case since annulment proceedings had been instituted before the French Conseil d'État. The President
         justified this position by reference to the precedent set in the case of Mr Tapie, and the requirement of legal certainty.
          
         
         
         32
            
          On 6 October 2000, the French Conseil d'État dismissed the applicant's application.  
         
         
         33
            
          On 17 October 2000, the French Permanent Representation to the European Union forwarded to the President of the Parliament
         a letter dated 12 October 2000 from Mr Védrine and Mr Moscovici. The two ministers stressed that the French Government had
         at all times  
         strongly disputed the European Parliament's decision to await the outcome of the applicant's proceedings before the French Conseil d'État challenging
         the decree of 31 March 2000, which it regarded as a breach of the  
         letter and spirit of the 1976 Act. After stating that the French Conseil d'État had dismissed the applicant's action, they added: We expect the European Parliament to act in compliance with Community law and take note, by means of a vote, of [the applicant's]
         disqualification from holding office as soon as possible, failing which we reserve the right to take legal action.
         
         
         34
            
          By letter of 20 October 2000, the President of the Parliament informed the applicant of the receipt, the day before, of the
          
         official communication from the competent French authorities confirming the judgment of the Conseil d'État of 6 October 2000 and that, in accordance with the Rules of Procedure and the
         1976 Act,  
         it would take note of the decree [of 31 March 2000] in the next plenary session on 23 October 2000.  
         
         
         35
            
          The applicant replied by letter dated 23 October 2000 to the President of the Parliament, stating that that judgment of the
         French Conseil d'État had only been given by two combined sub-divisions whereas, where such a decision concerned the term
         of office of a Member of the European Parliament, Article 25 of the 1977 Law required that it be given in plenary session
         and that he would again be bringing the matter before the French Conseil d'État. He also informed the President of the Parliament
         that a request for clemency to the President of the French Republic and an application to the European Court of Human Rights
         had been made. Consequently, he requested that there be a further meeting of the Legal Affairs Committee and that he and his
         lawyers be given a hearing by that committee.  
         
         
         36
            
          At the plenary session of the Parliament on 23 October 2000, the applicant and other representatives of his political party
         again raised alleged irregularities on the part of the French authorities in the course of the procedure culminating in the
         judgment of the French Conseil d'État of 6 October 2000. They requested that the Parliament should not take note of the disqualification
         in question, at least until the matter had been referred back to the Legal Affairs Committee.  
         
         
         37
            
          According to the minutes of the debates of the session of 23 October 2000, in the context of the agenda heading  
         Announcement of the President, the President of the Parliament announced as follows: I must inform you that on 19 October 2000, I received official notification from the relevant authorities of the French Republic
         of a ruling by the Council of State on 6 October 2000 rejecting the appeal lodged by [the applicant] against the decree of
         the French Prime Minister on 31 March 2000 terminating his mandate as Member of the European Parliament.I must also inform you that I have received a copy of a request for clemency for [the applicant] presented to Mr Jacques Chirac,
         President of the Republic, by Mr Charles de Gaulle, Mr Carl Lang, Mr Jean-Claude Martinez and Mr Bruno Gollnisch.
         
         
         38
            
          The President then handed over to the President of the Legal Affairs Committee, who said: Madam President, the [Legal Affairs Committee], following its deliberations of 15 and 16 May last, recommended the suspension
         of the communication in plenary session of the Parliament's declaration of the disqualification of [the applicant] from holding
         office. I stress that the Legal Affairs Committee recommended that this communication be suspended until the expiry of the
         period available to [the applicant] for bringing proceedings before the French Conseil d'État or the resolution of those proceedings.
         I quote here the letter of 17 May that you yourself, Madam President, read out to the Parliament.The Conseil d'État ─ as you have stated ─ has dismissed those proceedings and has duly informed us of this fact. Consequently,
         there are no further grounds for postponing this announcement to the Parliament, which is mandatory as a matter of primary
         law, specifically under Article 12(2) of the [1976 Act].The request for clemency that you have mentioned, Madam President, does not alter the situation, because it is not a legal
         proceeding. As its name suggests, it is the act of a public authority that does not concern the decree of the French Government
         which, in accordance with the recommendation of the Legal Affairs Committee, must be notified in plenary session.
         
         
         39
            
          Then the President of the Parliament declared: Pursuant to Article 12(2) of the [1976 Act], the European Parliament takes note of the notification from the French government
         confirming [the applicant's] removal from office.
         
         
         40
            
          She therefore invited the applicant to leave the auditorium and suspended the session in order to enable him to do so.  
         
         
         41
            
          In a note dated 23 October 2000, the Director General of the Administration of the Parliament requested Ms Ratti, Secretary
         General of the Technical Group of Independent Representatives, to take the necessary steps to ensure that the applicant's
         offices in Strasbourg and Brussels were cleared of his personal possessions by 27 October and 31 November 2000 respectively.
          
         
         
         42
            
          In a letter of 27 October 2000, the President of the Parliament wrote to Mr Védrine informing him that the Parliament had
         taken note of the decree of 31 March 2000 and requested that he  
         inform [me], in accordance with Article 12(1) of the [1976 Act], of the name of the person called upon to fill the seat left
         vacant by [the applicant].  
         
         
         43
            
          Mr Védrine replied in a letter dated 13 November 2000 that  
         Ms Marie-France Stirbois [should] succeed [the applicant] on behalf of the list of the Front National for the European elections. 
         
         
         44
            
          By application lodged at the Registry of the Court of First Instance on 21 November 2000, the applicant brought the present
         action for the annulment of the decision taken in the form of the declaration of the President of the Parliament of 23 October
         2000 (
         the contested act).  
         
         
         45
            
          By separate document, lodged at the Registry on the same day, the applicant instituted an application for interim relief seeking
         suspension of operation of the contested act.  
         
         
         46
            
          In response to a request by the President of the Court of First Instance to the Parliament at the hearing on 15 December 2000,
         the Director General of Finances and Financial Control of the Parliament confirmed,  
         inter alia, in a statement of 18 December 2000, that [the applicant] had  
         received travel and accommodation allowances, and all the other allowances provided for ... up to the end of his term of office. 
         
         
         47
            
          The French authorities, by letter dated 5 January 2001, confirmed, also in response to a request from the President of the
         Court of First Instance at the hearing, that they had continued to pay the applicant's salary until 24 October 2000. 
         
         
         48
            
          By order of the President of the Court of First Instance of 26 January 2001 in Case T-353/00 R  
         Le Pen v  
         Parliament [2001] ECR II-125, the operation of  
         the decision in the form of a declaration of the President of the European Parliament of 23 October 2000, in so far as it
         constitutes a decision of the European Parliament taking note of the applicant's disqualification from holding office as a
         Member of the European Parliament, was suspended and the costs were reserved. 
         
         
         49
            
          By separate document, lodged at the Registry on 12 December 2000, the Parliament raised a plea of inadmissibility under Article
         114(1) of the Rules of Procedure of the Court of First Instance. The applicant lodged his observations on that plea on 29
         January 2001. By order of the Court of First Instance (Fifth Chamber) of 12 February 2001, the plea was joined to the main
         proceedings and costs were reserved. 
         
         
         50
            
          By document lodged at the Registry of the Court of First Instance on 3 April 2001, the French Republic applied for leave to
         intervene in support of the form of order sought by the Parliament. By order of the President of the Fifth Chamber of the
         Court of First Instance of 14 May 2001, that application was granted. 
         
         
         51
            
          The French Republic lodged its statement in intervention on 27 June 2001, and the applicant presented his observations on
         that statement on 21 September 2001. The Parliament elected not to lodge any observations on that pleading. 
         
         
         52
            
          Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure.
         By way of measures of organisation of procedure, it requested the Parliament to reply to written questions and to produce
         certain documents. The Parliament complied with those requests.  
         
         
         53
            
          The parties presented oral argument and replied to the Court's questions at the hearing on 25 June 2002. 
         Forms of order sought by the parties
         
         54
            
          The applicant claims that the Court should: 
         
         
         ─
             declare the application admissible; 
          declare the application admissible; 
         
         
         
         ─
             annul the contested act; 
          annul the contested act; 
         
         
         
         ─
             order the Parliament to pay FRF 50 000 as  
            compensation for irrecoverable costs; 
          order the Parliament to pay FRF 50 000 as  
         compensation for irrecoverable costs; 
         
         
         
         ─
             order the Parliament to pay the costs. 
          order the Parliament to pay the costs. 
         
         
         
         
         55
            
          The Parliament contends that the Court should: 
         
         
         ─
             dismiss the application as inadmissible or, in any event, unfounded; 
          dismiss the application as inadmissible or, in any event, unfounded; 
         
         
         
         ─
             order the applicant to pay the costs. 
          order the applicant to pay the costs. 
         
         
         
         
         56
            
          The French Republic supports the form of order sought by the Parliament. 
         Admissibility Arguments of the parties
         
         
         57
            
          The Parliament advances two pleas in law in support of its plea that the present application is inadmissible. The first alleges
         lack of  
         Community competence where the incompatibility or ineligibility of its Members results from national law and the second alleges that there is no measure open to challenge under Article 230 EC. 
         
         
         58
            
          First, the Parliament claims that the application is inadmissible because there can be no Community competence where the disqualification
         from office of one of its Members results from national law. 
         
         
         59
            
          Referring to Article 5 EU, it states that, in common with the other Community institutions, it can exercise its powers only
         under the conditions and for the purposes laid down by the Treaties. It states that, contrary to Article 190(4) and (5) EC,
         the Council has not yet given its final approval to the draft uniform electoral procedure drawn up by the Parliament nor has
         it approved the regulations and general conditions applicable to the members of that institution. In those circumstances,
         the  
         1976 Act constitutes the sole Community instrument currently in force concerning Parliamentary law applicable to the facts of the present case. That measure refers largely to the national provisions, particularly with regard
         to seats falling vacant. The Parliament points out that Article 12(2) of that act draws a distinction between cases where
         a seat falls vacant as a result of the application of national provisions and those when this is so due to other circumstances,
         such as resignation. In the former case, its role is confined to taking note of the measure adopted at national level. 
         
         
         60
            
          Thus, in the present case, the French authorities alone were competent to determine the applicant's disqualification from
         office and the Parliament should merely have taken note of the application, by those authorities, of Article 5 of the 1977
         Law. The contested act is therefore devoid of any legal effect. 
         
         
         61
            
          The Parliament challenges the validity of the finding of the President of the Court of First Instance in the proceedings for
         interim relief in the present case that  
         it cannot be excluded that Parliament has, at least, a power to verify whether the procedure laid down by the national law
         applicable in the case has been observed, and also, where appropriate, whether the fundamental rights of the Member of Parliament
         in question have been respected (order of 26 January 2001, cited above, paragraph 63). It states that the Rules of Procedure must be read in the light of
         the Treaties and the 1976 Act and asserts that it has no discretion or power to verify laws, regulations and other acts adopted
         by the national authorities. That situation results not merely from the principle of conferred powers but also from  
         a fundamental principle of public international law. It points out, in particular in that regard, that it is settled case-law in relation to references for a preliminary ruling
         that it is not for the Court of Justice to verify whether the decision whereby a matter is brought before it was taken in
         accordance with the rules of national law governing the organisation of the courts and their procedure, and that it must therefore
         adhere to the decision ordering a reference (Case C-10/92  
         Balocchi [1993] ECR I-5105, paragraph 16). The International Court of Justice and the Permanent Court of International Justice have
         exercised the same restraint in relation to national law.  
         
         
         62
            
          The Parliament also disputes the applicant's argument that the first subparagraph of Article 12(2) of the 1976 Act refers
         only to cases of incompatibility arising during the term of office and not to cases of ineligibility. According to the Parliament,
         that argument fails to have regard to the fact that the 1977 Law was adopted in the light of the 1976 Act ─ and therefore
         only concerns  
         representatives to the European Parliament ─ and that it  
         brings together in the same Chapter III the conditions of ineligibility and incompatibility. Furthermore, that argument  
         subordinates Article 12 of the 1976 Act to the cases referred to in Article 6 (incompatibilities) alone, thereby denying it
         any independent role in the scheme of the 1976 Act.  
         
         
         63
            
          Second, the Parliament submits that the contested act is purely declaratory in nature and that the applicant's legal position
         was not altered by that act, but by the decree of 31 March 2000. It asserts that it acted  
         in strict compliance with the national provisions, as required by the 1976 Act. 
         
         
         64
            
          In addition, the Parliament contends that the claim that it be ordered to pay FRF 50 000 as  
         compensation for irrecoverable costs is inadmissible.  
         
         
         65
            
          The French Republic essentially supports the position of the Parliament. It states that, by the contested act, the Parliament
         did no more than declare a pre-existing legal situation, arising from an enforceable decision of the French authorities, namely
         the decree of 31 March 2000. That act did not therefore alter in the least the  
         system of legal rules applicable in the present case.  
         
         
         66
            
          The French Republic adds that the fact that the French authorities paid the applicant's salary until 24 October 2000 is irrelevant
         in the present case.  
         
         
         67
            
          The applicant contends that his application is admissible. 
         
         
         68
            
          First, he argues that the contested act produces binding legal effects. Reproducing almost verbatim the findings of the President
         of the Court of First Instance in the proceedings for interim relief set out in paragraphs 63 and 64 of the order of 26 January
         2001, cited above, he submits, first, that it cannot be excluded that the Parliament has, at least, a power to verify whether
         the procedure laid down by the applicable national law has been observed and also, where appropriate, whether the fundamental
         rights of the person concerned have been respected and, second, even if the Parliament's competence must be regarded as circumscribed,
         that institution remains under an obligation to adopt a decision, in accordance with the requirements of the Rules of Procedure.
         
         
         
         69
            
          The applicant further asserts that the contested act is final and produces effects beyond the purely internal sphere of the
         Parliament since that act is clearly intended to bring about his disqualification from office and so infringes his civil and
         political rights,  
         thereby affecting the electoral representation and negating  
         a posteriori the outcome of the elections. In his reply, setting out the findings of the President of the Court of First Instance in the proceedings for interim relief
         in paragraphs 66 and 67 of the order of 26 January 2001, cited above, he argues that the contested act produced particular
         legal effects for the applicant, both in terms of the performance of his parliamentary duties and of his personal position.
         First, the disqualification of the applicant from holding office became effective, at the earliest, only as from the adoption
         of the contested act. Second, until 23 October 2000, he received all the allowances from the European Parliament normally
         received by members of that institution and the French authorities paid him his salary until 24 October 2000. 
         
         
         70
            
          Second, the applicant contests the merits of the plea in law alleging  
         lack of Community competence in the matter. 
         
         
         71
            
          First, he submits that the Member States have no power, unilaterally and anticipatively, to bring to an end the term of office
         of a Member of the European Parliament  
         on purely national grounds, particularly following  
         a disqualifying measure adopted strictly within the national legal system. In his submission, Article 5 of the 1977 Law is therefore unlawful for two reasons. 
         
         
         72
            
          First, that article is contrary to the 1976 Act and Article 8 of the Rules of Procedure, which contemplate only death, resignation
         and appointment to an office incompatible with the office of Member of the European Parliament as circumstances bringing such
         a term of office to an early end. More particularly, it is apparent from Article 6(3) when read together with the first subparagraph
         of Article 12(2) of the 1976 Act that the latter provision does not refer to ineligibility but solely to incompatibility arising
         in the course of the term of office.  
         
         
         73
            
          Second, in so far as Article 5 of the 1977 Law interprets the role of the Parliament in the context of proceedings for the
         disqualification of one of its members as a case of purely circumscribed competence, it compromises the independence of that
         institution and constitutes an intolerable interference in its functions. 
         
         
         74
            
          According to the applicant, it follows from those considerations that the application of Article 5 of the 1977 Law must be
         set aside and that the Parliament could not confine itself to taking note of the decree of 31 March 2000. In support of that
         last conclusion, he also refers to the wording of the second subparagraph of Rule 7(4) and of Rule 8(9) of the Rules of Procedure.
         
         
         
         75
            
          Second, the applicant submits that there is  
         a general principle of law deriving from the ordinary law of the Member States to the effect that the disqualification must
         be declared by the parliamentary assembly concerned. 
         
         
         76
            
          Third, he pleads the fundamental principle of the primacy of Community law. 
          Findings of the Court
         
         
         77
            
          According to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant,
         by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230
         EC (Case 60/81  
         IBM   v  
         Commission [1981] ECR 2639, paragraph 9, and Case T-87/96  
         Assicurazioni Generali and Unicredito v  
         Commission  [1999] ECR II-203, paragraph 37). Thus, an action for annulment is available in the case of all measures adopted by the institutions,
         whatever their nature or form, which are intended to have legal effects (Case 22/70  
         Commission v  
         Council [1971] ECR 263, paragraph 42).  
         
         
         78
            
          In the present case, the contested act is the declaration of the President of the Parliament in the plenary session of 23
         October 2000 by which,  
         in accordance with Article 12(2) of the [1976 Act], the ... Parliament takes note of the notification of the French Government
         declaring the disqualification of [the applicant] from holding office.  
         
         
         79
            
          It is, therefore, necessary to examine whether that declaration produced binding legal effects such as to affect the interests
         of the applicant by bringing about a distinct change in his legal position. 
         
         
         80
            
          It is necessary, in that respect, to note the legal context in which that declaration was made. 
         
         
         81
            
          It is not in dispute that, at the material time in the present case, no uniform electoral procedure for the election of Members
         of the European Parliament had been adopted.  
         
         
         82
            
          Accordingly, pursuant to Article 7(2) of the 1976 Act, the electoral procedure for that election continued to be governed
         by the national provisions in each Member State. 
         
         
         83
            
          Thus, in particular, it follows from the first subparagraph of Article 12(2) of the 1976 Act, that the application of  
         national provisions in force in a Member State could bring about a vacancy for a seat of a Member of the European Parliament. 
         
         
         84
            
          In application of the 1976 Act, the French Republic adopted, in particular, the 1977 Law. Article 2 of that law provides that
         the election of Members of the European Parliament is governed by  
         Title I of Book I of the Electoral Code and the provisions of the following chapters. Article 5 of the same law, placed in Chapter III on  
         Conditions of eligibility, ineligibility and incompatibility, provides in particular that  
         Articles LO 127 to LO 130-1 of the Electoral Code shall apply to the election of [Members of the European Parliament], that  
         ineligibility arising during the term of office shall bring that term to an end and that  
         ineligibility will be declared by decree. 
         
         
         85
            
          Article 12(2) of the 1976 Act draws a distinction between two situations in which seats of Members of the European Parliament
         become vacant. 
         
         
         86
            
          The first situation, referred to in the first subparagraph of that provision, covers cases where the vacancy arises from the
         application of  
         national provisions. The second situation, referred to in the second subparagraph of the same provision, covers  
         all other cases.  
         
         
         87
            
          Contrary to the applicant's contention in that regard, the first situation is not at all confined to the cases of incompatibility
         referred to in Article 6 of the 1976 Act, but also includes cases of ineligibility. Whilst it is true that Article 6(3) of
         the 1976 Act states that Members of the European Parliament to whom  
         paragraphs 1 and 2 become applicable are to be replaced  
         in accordance with Article 12, it cannot be inferred from that reference that that article concerns solely cases of incompatibility covered by Article
         6(1) and (2). It is to be observed, furthermore, that nowhere does Article 12 refer to the concept of  
         incompatibility, but uses the much wider concept of  
         vacancy [of the seat]. 
         
         
         88
            
          In the first situation covered by Article 12(2) of the 1976 Act the role of the Parliament is confined to  
         taking note that the seat of the person concerned is vacant. In the second situation, which covers, for example, the resignation of one
         of its Members, the Parliament  
         shall establish that there is a vacancy and inform the Member State thereof. 
         
         
         89
            
          In the present case, since the contested act was adopted pursuant to the first subparagraph of Article 12(2) of the 1976 Act,
         it is necessary to determine the scope of the process of  
         taking note prescribed by that provision. 
         
         
         90
            
          It should be pointed out, in that regard, that the process of  
         taking note refers not to the disqualification from office of the person concerned but to the simple fact that his seat has become vacant
         as a result of the application of national provisions. In other words, the role of the Parliament is not to  
         bring about the disqualification from office, as the applicant claims, but merely to take note of the declaration, already made by the
         national authorities, that the seat is vacant, that is to say, of a pre-existing legal situation resulting exclusively from
         a decision of those authorities. 
         
         
         91
            
          The Parliament's power of verification in that context is particularly limited. It is essentially confined to verifying whether
         the seat of the person concerned is in fact vacant. In particular, contrary to the applicant's contention, it is not for the
         Parliament to verify that the procedure laid down by the applicable national law or the fundamental rights of the person concerned
         have been respected. That power belongs exclusively to the competent national courts or, as the case may be, to the European
         Court of Human Rights. It should be noted, moreover, in that regard that, in the present case, the applicant has specifically
         asserted his rights before both the French Conseil d'État and the European Court of Human Rights. It should also be noted
         that the Parliament itself never claimed, either in its written pleadings or at the hearing, to have a power of verification
         as wide as that alleged by the applicant.  
         
         
         92
            
          It should be added that such a wide concept of the Parliament's power of verification under the first subparagraph of Article
         12(2) of the 1976 Act would imply that it would be open to that institution to challenge the very lawfulness of the disqualification
         declared by the national authorities and to refuse to take note that a seat was vacant if it considered that it was faced
         with an irregularity. Rule 8(9) of the Rules of Procedure alone contemplates the possibility for the Parliament to refuse
         the vacancy of a seat and then only where it is called upon to  
         establish such a vacancy and where there is  
         material inaccuracy or  
         vitiated consent. It would be paradoxical if the Parliament were to have a greater discretion in cases where it is required simply to take
         note of the vacancy of a seat established by the national authorities than in cases where it itself establishes the vacancy
         of a seat. 
         
         
         93
            
          Those findings are in no way contradicted by the wording of the second subparagraph of Article 7(4) of the Rules of Procedure.
         As the Parliament and the French Republic rightly point out, that provision applies  
         upstream of the disqualification and therefore of the vacancy of the seat. It provides for the President of the Parliament to refer the matter to the competent
         committee where  
         the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a [Member
         of the European Parliament] from holding office. Once that procedure is completed and the vacancy of the seat of the person concerned has been established by the competent
         national authorities, it remains only for the Parliament to take note of that vacancy, pursuant to the first subparagraph
         of Article 12(2) of the 1976 Act. In any event, pursuant to the principle of the hierarchy of norms, a provision of the Rules
         of Procedure cannot allow derogation from the provisions of the 1976 Act and confer on the Parliament wider powers than it
         holds under that act. 
         
         
         94
            
          Nor are those findings undermined by the fact that, until 23 October 2000, the applicant continued to sit in the Parliament
         and to receive the allowances from that institution and that, until 24 October 2000, the French authorities paid him his salary.
         It is not in dispute between the parties that the decree of 31 March 2000 was enforceable. The fact that the Parliament did
         not take note of that decree as soon as it was notified by the French authorities, but at a later date, and the fact that
         certain practical consequences for the applicant flowed from it cannot alter the legal consequences which attach to that notification
         pursuant to Article 12(2) of the 1976 Act.  
         
         
         95
            
          The applicant's arguments, first, that Article 5 of the 1977 Law compromises parliamentary independence and constitutes an
         intolerable interference in its functions and, second, that there is a general principle that  
         the disqualification must be declared by the parliamentary assembly concerned, are unfounded. As has already been pointed out in paragraph 83 above, it is plain from the express wording of the first
         subparagraph of Article 12(2) of the 1976 Act that a seat of a Member of the European Parliament may become vacant pursuant
         to the  
         national provisions in force in a Member State. Since no uniform electoral procedure had been adopted at the material time, that provision, and therefore the 1977 Law,
         were fully applicable. Whatever the development of the Parliament's powers, new powers cannot render inapplicable provisions
         of primary law, such as the 1976 Act, in the absence of express repeal by a text of equal rank. 
         
         
         96
            
          For the same reasons, the applicant's argument founded on the primacy of Community law is wholly irrelevant. In the present
         case, there is neither contradiction nor conflict between national law and Community law. 
         
         
         97
            
          It follows from all the foregoing considerations that, in the present case, the decree of 31 March 2000 is the measure which
         produced binding legal effects such as to prejudice the interests of the applicant. The contested act was not intended to
         produce legal effects of its own, distinct from those of that decree.  
         
         
         98
            
          It must, therefore, be found that the contested act is not capable of being the subject of an action for annulment under Article
         230 EC. Accordingly, the present application must be dismissed as inadmissible without there being any need to address the
         other pleas in law and arguments on admissibility.  
         
         Costs
         99
            
          Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the
         costs, including those of the application for interim relief, as applied for by the Parliament. 
         
         
         100
            
          In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the French Republic is to bear its own
         costs.  
         
         On those grounds, 
         
         
         
            
            THE COURT OF FIRST INSTANCE (Fifth Chamber),
         
         
          hereby:  
         
            
            1.
             Dismisses the application as inadmissible; 
            
            
            2.
             Orders the applicant to bear his own costs and to pay those of the Parliament in the main proceedings and in the proceedings
            on the application for interim relief; 
            
            
            3.
             Orders the French Republic bear its own costs. 
            
            
                  Cooke
               
               
                  García-Valdecasas 
               
               
                  Lindh 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 10 April 2003. 
         
         
         
         
                  H. Jung 
               
               
                  J.D. Cooke  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
         
            
         
      
          1 –
            
             Language of the case: French.