CELEX: C2000/102/60
Language: en
Date: 2000-04-08 00:00:00
Title: Case T-17/00: Action brought on 21 January 2000 by Willi Rothley and 70 other Members of the European Parliament against the European Parliament

C 102/30               EN                     Official Journal of the European Communities                                        8.4.2000
Decision         contested     Refusal of registration by the            In support of their application, the applicants put forward, in
before the Board of            examiner                                  essence, the following pleas:
Appeal:
Grounds of claim:              — Infringement of Article 7(1)(b)         — Breach of essential procedural requirements:
                                   of Regulation (EC) No 40/94
                               — Incorrect      application      of          The procedure conducted prior to the adoption of the
                                   Article 7(1)(c) of Regulation             contested decision was vitiated by substantive procedural
                                   (EC) No 40/94                             defects, since the Parliament’s Rules of Procedure were
                                                                             infringed in several instances.
                                                                         — Violation of the free exercise of the parliamentary mandate:
                                                                             The powers of investigation and seizure granted by
Action brought on 21 January 2000 by Willi Rothley and                       the contested decision implicitly extend to cover the
70 other Members of the European Parliament against the                      performance by Members of their duties, without any
                      European Parliament                                    criteria for such measures having been laid down with the
                                                                             requisite normative clarity and certainty. In addition, the
                          (Case T-17/00)                                     investigatory powers of the OLAF are disproportionate,
                                                                             since they may be exercised simply on the grounds of mere
                        (2000/C 102/60)                                      irregularities.
                                                                             The obligation, contained in Article 2(1) of the decision,
                   (Language of the case: German)                            to provide information in relation to any relevant miscon-
                                                                             duct, even of a non-criminal nature, means that the
An action against the European Parliament was brought before                 personnel of the Parliament and staff working for Members
the Court of First Instance of the European Communities on                   are required constantly to monitor the performance by
Willi Rothley and 70 other Members of the European Parlia-                   Members of their duties. This will encourage ‘snooping’
ment, represented by Hans-Jürgen Rabe and Georg M. Berrisch,                 and informing, thereby prejudicing the general ability of
Rechtsanwälte, of Gaedertz Rechtsanwälte, 35 Avenue de                       the Parliament to function.
Tervuren, Brussels.
The applicants claim that the Court should:                              — Infringement of parliamentary immunity:
— annul the European Parliament’s decision of 18 November
                                                                             Article 10 of the Protocol on the Privileges and Immunities
    1999 amending the Rules of Procedure pursuant to the
                                                                             of the European Communities affords Members of the
    Interinstitutional Agreement of 25 May 1999 concerning
    internal investigations conducted by the European Anti-                  Parliament comprehensive immunity from criminal pros-
                                                                             ecution of any kind. Subparagraph (b) of Article 10, which,
    Fraud Office (OLAF);
                                                                             in contrast to subparagraph (a), does not refer to national
— order the defendant to pay the costs.                                      rights of immunity, creates a status of immunity specific
                                                                             to the Communities which also affords Members of the
                                                                             Parliament protection against the investigatory activities of
Pleas in law and main arguments                                              the OLAF.
In adopting the contested decision, the European Parliament              — Infringement of the parliamentary right of inquiry:
has fulfilled its obligation under the Interinstitutional Agree-
ment. According to that agreement, each of the Community
institutions signatories thereto is required to bring into force,            The investigatory powers of the OLAF laid down in the
by means of the adoption of an internal decision, the                        contested decision and in the corresponding rules of
implementing rules necessary in order to ensure the smooth                   conduct imposed on Members infringe the parliamentary
operation of the internal investigations carried out by the                  right of inquiry provided for in the first paragraph of Article
OLAF. The action for annulment is directed, in particular,                   193 EC, which the Parliament exercises, in particular, by
against the obligations imposed on the applicants by the                     setting up temporary committees of inquiry. The work of
decision, requiring them to provide information, to offer                    those committees could be substantially hindered if it were
cooperation and to exercise tolerance in connection with the                 not possible for a committee of inquiry and its members
OLAF’s investigatory powers within the domain of the internal                to observe their duty of confidentiality when dealing
affairs of the Parliament. The applicants claim that those                   with the OLAF. In addition, this affects the institutional
obligations represent an impermissible restriction on their                  equilibrium between Community institutions. The Parlia-
status as Members of Parliament, particularly as regards the                 ment should not be subject to the supervisory power of
free exercise of their mandate and their immunity.                           the executive, of which the OLAF notionally forms part.
 ---pagebreak--- 8.4.2000               EN                    Official Journal of the European Communities                                    C 102/31
— Nullity of the decision setting up the OLAF and of                           Removal from the register of Case T-219/94 (1)
     Regulation No 1073/1999:
     The applicants raise the objection, pursuant to Article 241                                (2000/C 102/62)
     EC, that the legal acts on which the contested decision is
     based are null and void. Both the Commission Decision of
     28 April 1999 establishing the OLAF (1) and Regulation                               (Language of the case: German)
     (EC) No 1073/1999 of the European Parliament and of
     the Council of 25 May 1999 concerning investigations               By order of 27 January 2000, the President of the Fourth
     conducted by the European Anti-Fraud Office (OLAF) (2)             Chamber, Extended Composition, of the Court of First Instance
     are invalid.                                                       of the European Communities has ordered the removal from
                                                                        the register of Case T-219/94, Hans-Henrich Fürstenwerth v
The Commission based the decision establishing the OLAF on              Commission of the European Communities.
Article 162 of the EC Treaty (now Article 218 EC), hence on a
provision designed to regulate the internal organisational
power, namely the Rules of Procedure. However, it is not                (1) OJ C 218 of 6.8.1994.
possible on that basis to set up a body which is in reality legally
separate from the organisational power of the Commission.
Moreover, in adopting its decision establishing the OLAF, the
Commission unlawfully relinquished part of the supervisory
powers conferred on it by Article 211 EC. In addition, it
delegated to the OLAF powers which it does not possess.
                                                                               Removal from the register of Case T-206/95 (1)
Finally, the regulation based on the decision is likewise founded
on an insufficient legal basis, since Article 280 EC merely                                     (2000/C 102/63)
concerns the combatting of fraud within the Member States. It
does not therefore cover the Community institutions. In
addition, the OLAF’s investigatory powers go beyond any                                   (Language of the case: German)
powers that could conceivably be needed in order to investigate
criminal offences committed within the Parliament.
                                                                        By order of 27 January 2000 the President of the Fourth
                                                                        Chamber of the Court of First Instance of the European
(1) OJ 1999 L 136, p. 20.                                               Communities has ordered the removal from the register of
(2) OJ 1999 L 136, p. 1.                                                Case T-206/95: Josef Gierse v Council of the European Union
                                                                        and Commission of the European Communities.
                                                                        (1) OJ C 351 of 30.12.1995.
Partial Removal from the register in Joined Cases
                     T-530/93 and Others (1)
                         (2000/C 102/61)
                                                                               Removal from the register of Case T-15/98 (1)
                   (Language of the case: Dutch)
                                                                                                (2000/C 102/64)
By order of 24 January 2000, the President of the Fourth
Chamber, Extended Composition, of the Court of First Instance
of the European Communities has ordered the removal from
the register of M.A.M. Nijenhuis and J.I.M. and W. Spikker                                 (Language of the case: French)
from the list of applicants in Case T-533/93 — Joined Cases
T-530/93 and Others, R. Bathoorn and Others v Council                   By order of 19 January 2000, the President of the First
of the European Union and Commission of the European                    Chamber of the Court of First Instance of the European
Communities.                                                            Communities has ordered the removal from the register of
                                                                        Case T-15/98, Centre d’Action Culturelle du Sart-Tilman a.s.b.l.
                                                                        v Commission of the European Communities.
(1) OJ C 334 of 9.12.1993, C 27 of 28.1.1994, C 43 of 12.2.1994,
    C 59 of 26.2.1994, C 90 of 26.3.1994, C 103 of 11.4.1994,
    C 120 of 30.4.1994, C 132 of 14.5.1994, C 233 of 20.8.1994          (1) OJ C 94 of 28.3.1998.
    and C 370 of 24.12.1994.