1. By his appeal, Mr Le Pen seeks to have set aside the judgment of the Court of First Instance of the European Communities of 10 April 2003 in Case T-353/00 Le Pen v Parliament [2003] ECR II-1729 (‘the judgment under appeal’), by which the Court of First Instance dismissed as inadmissible his action 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 Mr Le Pen from holding office as a Member of the European Parliament (‘the contested act’).
2. By separate document, lodged at the Court Registry on 10 June 2003, Mr Le Pen also made an application pursuant to Articles 242 EC and 243 EC for suspension of the operation of the contested act. That application was dismissed by order of the President of the Court of 31 July 2003 in Case C-208/03 P-R Le Pen v Parliament [2003] ECR I-7939. Law Community law The EC Treaty
3. Article 190(4) EC provides that the European Parliament will draw up a proposal for election of its members by direct universal suffrage in accordance with a uniform procedure in all the Member States, or in accordance with principles common to those States, and that the Council of the European Union, acting unanimously after obtaining the assent of the European Parliament, which is to act by a majority of its component members, is to lay down the appropriate provisions, which it is to recommend to those States for adoption in accordance with their respective constitutional requirements. The 1976 Act
4. On 20 September 1976 the Council adopted Decision 76/787/ECSC, EEC, Euratom relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage (OJ 1976 L 278, p. 1); the Act was contained in the annex to that Decision (in its original version, ‘the 1976 Act’).
5. Under Article 3(1) of the 1976 Act, the Members of the 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 Parliament is 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’. Article 6(3) provides that Members of the Parliament to whom paragraphs 1 and 2 become applicable in the course of the term of office ‘shall be replaced in accordance with Article 12’.
7. Article 7(1) of the 1976 Act states that it is to be the responsibility of the Parliament to draw up the proposal for a uniform electoral procedure, but at the time of the facts in the present case, no such procedure had yet been adopted.
8. Under Article 7(2) of the 1976 Act: ‘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 as follows: ‘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.’ The Parliament’s Rules of Procedure
11. Rule 7 of the Rules of Procedure of the European Parliament, in the version in force at the material time (OJ 1999 L 202, p.1), entitled ‘Verification of credentials’, provided: ‘1. On the basis of a report by the committee responsible, Parliament shall verify the credentials without delay and rule on the validity of the mandate of each of its newly elected Members and also on any dispute referred to it pursuant to the provisions of the [1976 Act], except those based on national electoral laws. … 4. 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. 5. Until such time as a Member’s credentials have been verified or a ruling has been given on any dispute, the Member shall take his seat in Parliament and on its bodies and shall enjoy all the rights attaching thereto. …’
12. Rule 8 of the Parliament’s Rules of Procedure, on the ‘Term of office of Members’, further stated: ‘1. A Member’s term of office shall begin and end as laid down in the [1976 Act]. It shall also end on death or resignation. … 6. 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 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. … 8. Any dispute concerning the validity of the appointment of a Member whose credentials have already been verified shall be referred to the committee responsible, which shall report to Parliament without delay and no later than the beginning of the next part-session. 9. 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’. National law
13. Under Article 5 of Law No 77-729 of 7 July 1977 on the election of representatives to the Assembly of the European Communities (JORF of 8 July 1977, p. 3579), in the version applicable to this case (‘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.’
14. 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.’ The facts giving rise to the dispute and the proceedings before the Court of First Instance
15. It is clear from the case-file before the Court that the dispute giving rise to the action before the Court of First Instance arises from the conviction of the appellant by the French courts and from the consequences which, in French law, such a conviction entails for the holding of elective office and, in particular, that of representative in the European Parliament.
16. Mr Le Pen, who was elected as a Member of the European Parliament on 13 June 1999, had previously been found guilty of assault and public insults by the Tribunal correctionnel de Versailles (France) (Versailles Criminal Court) on 2 April 1998 then, on appeal, of assault on a person in public office acting in the course of his duties and when the victim’s status was apparent or known to the perpetrator of the assault. For that offence contrary to Article 222-13, first paragraph, point 4, of the French Criminal Code, the Cour d’appel de Versailles (Court of Appeal, Versailles) on 17 November 1998 imposed on the appellant a suspended sentence of three months’ imprisonment and a fine of FRF 5 000. By way of further sentence that court also withdrew for a period of one year his rights under Article 131-26 of the Criminal Code, but limited to eligibility.
17. The appellant’s appeal against that judgment was dismissed by judgment of 23 November 1999 of the Cour de cassation (Court of Cassation) (France). Pursuant to the second paragraph of Article 5 of the 1977 Law, the French Prime Minister accordingly declared, by decree dated 31 March 2000, that ‘Mr Jean-Marie Le Pen’s ineligibility brought to an end his term of office as a representative in the European Parliament’. The Secretary‑General of the French Ministry of Foreign Affairs notified the appellant of that decree by letter dated 5 April 2000, and the President of the European Parliament who, at the plenary session of 3 May 2000, informed the Members of that decree and announced her intention to refer the file on Mr Le Pen’s disqualification from holding office to the Legal Affairs and Internal Market Committee (‘the Legal Affairs Committee’) pursuant to the second subparagraph of Rule 7(4) of the Parliament’s Rules of Procedure.
18. The Legal Affairs Committee verified the appellant’s credentials in closed sessions on 4, 15 and 16 May 2000. After the last of those sessions, the President of the Legal Affairs Committee sent the President of the Parliament a letter in the following terms: ‘Madam President, The [Legal Affairs Committee] resumed the examination of the position of Mr Jean-Marie Le Pen at its meeting on 16 May 2000. The Committee is aware that the French Prime Minister’s decree, notified to Mr Le Pen 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 Mr Le Pen, 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.’
19. At the plenary session of the Parliament of 18 May 2000, the President read out that letter and then stated that it was her intention to ‘follow the opinion of the Legal Affairs Committee’.
20. By letter dated 9 June 2000 to the Minister for Foreign Affairs, Mr Védrine, and the Minister with responsibility for European Affairs, Mr Moscovici, the President of the Parliament stated that ‘…having regard to the irreversible nature of disqualification from holding office, … 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.’
21. The Parliament’s position was strongly challenged by the French authorities which submitted, first, that, by adopting that position, the Parliament was in breach of Article 12(2) of the 1976 Act and, second, that the reason given did not justify such a breach, but that challenge was not sustained.
22. By letter of 16 June 2000, the President of the Parliament confirmed that the Parliament ‘would take note of Mr Le Pen’s disqualification from holding office [only when the decree of 31 March 2000 was final]’, which was not yet the case since the appellant had commenced annulment proceedings before the Conseil d’État on 5 June 2000. The President justified that position by reference to the precedent set in the case of Mr Tapie and the requirement of legal certainty.
23. Mr Le Pen’s action was dismissed by a decision of the Conseil d’État of 6 October 2000. Consequently, Mr Védrine and Mr Moscovici sent a letter to the President of the Parliament on 12 October 2000 in which, whilst stressing the fact that the French Government had always ‘strongly disputed’ the Parliament’s decision to await the outcome of the proceedings instituted by the appellant against the decree of 31 March 2000 - a decision which the French Government regarded as contrary to ‘the letter and the spirit of the 1976 Act’ -, they requested the Parliament to ‘act in compliance with Community law’ and take note as soon as possible, through its President, of Mr Le Pen’s disqualification from holding office.
24. By letter of 20 October 2000, the President of the Parliament informed the appellant of the receipt, the day before, of the official communication from the French authorities of the decision of the Conseil d’État and that, in accordance with the Parliament’s Rules of Procedure and the 1976 Act, ‘[she] would take note of the decree [of 31 March 2000] in the next plenary session on 23 October’ 2000.
25. By letter dated 23 October 2000, Mr Le Pen informed the President of the Parliament, first, that he was challenging the validity of the decision of the Conseil d’État since, contrary to Article 25 of the 1977 Law, it had not been adopted in a p lenary session of that court and, second, that he had made a request for clemency to the President of the French Republic and an application to the European Court of Human Rights seeking suspension of operation of his disqualification from holding office. Consequently, Mr Le Pen requested that there be a further meeting of the Legal Affairs Committee and that he be given a hearing by that committee before the decree of 31 March 2000 was ratified by the Parliament.
26. The President of the Parliament did not accede to that application. According to the minutes of the debates of the plenary session of 23 October 2000, under the agenda item ‘Announcement of the President’, she stated as follows: ‘I must inform you that on Thursday 19 October 2000, I received official notification from the relevant authorities of the French Republic of a ruling by the Conseil d’État on 6 October 2000 rejecting the appeal lodged by Mr Jean-Marie Le Pen against the decree of the French Prime Minister of 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 Mr Le Pen 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.’
27. After that announcement, the President handed over to the Chairman 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 Mr Le Pen from holding office. I stress that the Legal Affairs Committee recommended that this communication be suspended until the expiry of the period available to Mr Le Pen 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.’
28. Then the President of the Parliament stated: ‘Pursuant to Article 12(2) of the [1976 Act], the European Parliament takes note of the notification from the French Government confirming Mr Jean-Marie Le Pen’s removal from office.’
29. She therefore invited the appellant to leave the auditorium and suspended the session to enable him to do so.
30. By letter of 27 October 2000, the President of the Parliament informed the French Minister for Foreign Affairs that the Parliament had ‘taken note’ of the disqualification of Mr Le Pen from holding office and requested the Minister to inform her, in accordance with Article 12(1) of the 1976 Act, of the name of the person called upon to fill the seat thus left vacant.
31. By letter of 13 November 2000, that Minister replied that ‘Ms Marie-France Stirbois [should] succeed Mr Le Pen on behalf of the list of the Front National for the European elections’.
32. It is in those circumstances that, by application lodged at the Registry of the Court of First Instance on 21 November 2000, Mr Le Pen brought an action for annulment of the contested act. By separate document, lodged on the same day at the Registry, Mr Le Pen made an application seeking suspension of the operation of that act.
33. By order of 26 January 2001 in Case T-353/00 R Le Pen v Parliament [2001] ECR II-125, the President of the Court of First Instance upheld that application and ordered the suspension of 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 appellant’s disqualification from holding office as a Member of the European Parliament’. As a result, Mr Le Pen was reinstated as a Member of the Parliament and he resumed his seat in the auditorium which he had vacated on 23 October 2000.
34. However, by the judgment under appeal, the Court of First Instance dismissed as inadmissible Mr Le Pen’s application and ordered him to bear his own costs and to pay those of the Parliament, both in the main proceedings and in the proceedings on the application for interim relief. The judgment under appeal
35. In arriving at that finding, supported both by the Parliament and by the French Republic, which was granted leave to intervene in support of the form of order sought by the Parliament, the Court of First Instance based its decision primarily on the fact that the contested act, by reason of its particular nature, cannot be the subject of an action for annulment under Article 230 EC. In that regard, the Court of First Instance found more particularly as follows: ‘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 [Rule] 7(4) of the [Parliament’s] 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.’ The appeal
36. By his appeal, Mr Le Pen essentially asks the Court to set aside the judgment under appeal on the ground that that judgment dismissed the action as inadmissible, to declare the action admissible and well founded and to annul the contested act or, in the alternative, to refer the case back to the Court of First Instance for it to reach a decision on the merits, to award him the sum of EUR 7 622.45 as irrecoverable expenses and to order the Parliament to pay the costs of the appeal in full.
37. The Parliament contends primarily that the Court should dismiss the appeal as being in part inadmissible and in part unfounded and order the appellant to pay the costs of the appeal and at first instance, including those of the proceedings for interim measures and, in the alternative, to refer the case back to the Court of First Instance.
38. Like the Parliament, the French Republic contends that the Court should dismiss the appeal and order the applicant to pay the costs. The admissibility of the appeal
39. Since the Parliament and the French Government submit in their respective pleadings that a large part of the appeal is inadmissible on the ground that the appellant merely reproduces his pleas in law to the Court of First Instance without indicating precisely the contested passages of the judgment under appeal or the legal arguments specifically advanced in support of the appeal, it should be noted that under Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first subparagraph, (c) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35, and Case C-76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47).
40. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, inter alia, Case C-41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 17, and the order of 11 November 2003 in Case C-488/01 P Martinez v Parliament [2003] ECR I-13355, paragraph 39).
41. The present appeal, taken as a whole, seeks specifically to challenge the Court of First Instance’s findings in respect of various questions of law which were submitted to it and, in particular, on the precise scope of the 1976 Act and of the words ‘take note of that fact’ in the first subparagraph of Article 12(2) of that act.
42. In those circumstances the present appeal is admissible. The merits of the appeal
43. By his appeal the appellant essentially challenges the Court of First Instance’s interpretation of Article 12(2) of the 1976 Act and more particularly its finding, in paragraph 97 of the judgment under appeal, that the contested act was not intended to produce legal effects of its own, distinct from those of the decree of 31 March 2000. According to the appellant, such a finding, in addition to contradicting the finding in paragraphs 90 and 91 of that judgment that the Parliament ‘nevertheless’ has a limited power of verification in a situation in which it is required to take note of a declaration, already made by the national authorities, that a seat is vacant, also distorts the very scope of Article 12 of the 1976 Act.
44. In this respect, recalling the Court’s case-law according to which it is necessary to have regard to the substance of an act more than to its form and to take account of the express intention of its author, the appellant submits in the present case that the act which brought about a change in his legal position by depriving him of his elective mandate is indeed the contested act and not the decree of 31 March 2000. That interpretation is moreover confirmed both by the very wording of the first subparagraph of Article 12(2) of the 1976 Act - which refers to the duty of the Parliament to ‘take note’ where a seat falls vacant pursuant to national provisions - and the position of the Legal Affairs Committee and of the President of the Parliament, as well as by the fact that, until 23 October 2000, the appellant continued to sit in the Parliament and to receive the allowances from that institution and the salary paid by the French authorities.
45. Before examining the scope of Article 12(2) of the 1976 Act it is necessary at the outset to reject the appellant’s argument alleging a contradiction in the grounds of the judgment under appeal and, more particularly, between paragraphs 91 and 97. As the French Government pointed out in its written observations, in addition to the fact that the term ‘nevertheless’ does not appear anywhere in those paragraphs, paragraph 91, taken out of context and quoted only in part by the appellant, necessarily leads to the conclusion which appears in paragraph 97 of that judgment. Thus, it is precisely because it found in paragraph 91 that the Parliament’s power of verification is particularly limited and essentially confined to verifying whether the seat of the person concerned is in fact vacant - in particular, 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 the Court of First Instance could find, in paragraph 97 of that judgment, that the contested act did not produce legal effects of its own, distinct from those of the decree of 31 March 2000.
46. As regards the appellant’s main argument alleging a distortion of the scope of Article 12(2) of the 1976 Act and a mistaken assessment by the Court of First Instance of the true legal nature of the contested act which alone brings about a change in his legal position, the contention that, in order to determine whether an act may be the subject of a challenge in an action under Article 230 EC, it is the substance of the act in question and the intention of its author which should be taken into account, is well founded. According to settled case-law, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an application for annulment (see, in particular, Commission v Council , cited above, paragraph 42, and IBM v Commission , paragraph 9).
47. Whilst, from that perspective, it cannot therefore be excluded that a written communication, or even a mere oral statement, are subject to review by the Court under Article 230 EC, that possibility cannot extend to an infringement of the rules and procedures governing the election of members of Parliament.
48. As the Court of First Instance rightly pointed out in paragraphs 81 and 82 of the judgment under appeal, at the material time, no uniform electoral procedure for the election of Members of the Parliament had been adopted and that procedure consequently continued to be governed by the provisions in force in each Member State pursuant to Article 7(2) of the 1976 Act.
49. In those circumstances, since under Article 5 of the 1977 Law ineligibility, declared by decree, brings to an end the term of office as a Member of Parliament, that institution had no choice but to take note without delay of the declaration, already made by the national authorities, that the appellant’s seat was vacant, since, as the Court of First Instance rightly pointed out in paragraph 90 of the judgment under appeal, that declaration concerned a pre-existing legal situation resulting exclusively from a decision of those authorities. None of the appellant’s arguments in the present appeal undermine that finding.
50. Thus, as regards first of all the appellant’s argument based on the very wording of Article 12(2) of the 1976 Act which refers to an obligation for the Parliament to ‘take note’ that a seat has fallen vacant pursuant to national provisions in force in a Member State, that provision, far from supporting the appellant’s argument, clearly highlights the complete lack of discretion on the part of the Parliament in the matter. In that particular case, the role of the Parliament is not to declare that the seat is vacant but, as the Court of First Instance rightly held in paragraph 88 of the judgment under appeal, merely to take note that the seat is vacant as already established by the national authorities, whereas in the other cases concerning, inter alia, the resignation or death of one of its members, that institution has a more active role to play since Parliament itself establishes that there is a vacancy and informs the Member State in question thereof.
51. That interpretation is, moreover, supported by the wording of other provisions of the 1976 Act, such as Article 11, and of Rule 7(1) of the Parliament’s Rules of Procedure. Those two provisions, which concern the verification of the credentials of Members of the Parliament, confer on that institution the power to rule on the validity of the mandate of each of its newly elected Members and also on any dispute referred to it pursuant to provisions of the 1976 Act, ‘other than those arising out of the national provisions to which the Act refers’ (Article 11 of the 1976 Act), and ‘except those [disputes] based on national electoral laws’ (Rule 7(1) of the Rules of Procedure). Those specific points, which were taken up without amendment in the current Article 12 of the 1976 Act as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p. 1), and in Rule 3(1) of the Rules of Procedure of the Parliament currently in force (OJ 2005 L 44, p. 1), therefore indeed confirm, as Community law now stands, the complete lack of competence on the part of the Parliament where a seat falls vacant pursuant to national provisions.
52. In challenging that interpretation, the appellant goes on to highlight the importance of the intention of the author of the contested act in adopting it and submits, more particularly, that the Legal Affairs Committee and the President of the Parliament have ‘consistently considered to be beyond doubt’ the principle that the fact of taking note of the appellant’s disqualification from holding office changed only his status. That argument cannot be upheld. In addition to the point that such an argument concerns findings of fact which in principle do not fall within the Court’s review on an appeal, it is in any event clear from a number of documents annexed to the appeal that the Legal Affairs Committee and the President of the Parliament considered that they were bound by the French authorities’ declaration of disqualification.
53. That is true, in particular, of the minutes of the extraordinary meeting of the Legal Affairs Committee of 15 May 2000, from which it is clear that the President of that committee brought to the attention of its members the fact that the decision of the Parliament should be confined to the ‘formality of whether or not to take note’, and of the letter sent two days later to the President of the Parliament in which the President of that committee clearly highlighted the ‘enforceable’ nature of the decree of 31 March 2000. Those two facts, to which should be added the letter of 9 June 2000 sent by the President of the Parliament to the French authorities in which she notes the ‘irreversible’ nature of the disqualification from holding office pursuant to that decree, were all taken into consideration in paragraphs 23, 24 and 29 respectively of the judgment under appeal. However, none of the Court of First Instance’s findings in those three paragraphs has been challenged in the present appeal.
54. Lastly, as regards the fact, referred to by the appellant, that until 23 October 2000 he continued to sit in the Parliament and to receive both the allowances from that institution and the salary paid by the French authorities - which in his view proves that the contested act alone was able to bring about a change in his legal position and, therefore, to be the subject of an action under Article 230 EC - it should be noted, as the Court of First Instance rightly held, that those were practical consequences of the delay with which the Parliament took note of the French authorities’ notification of the decree of 31 March 2000. It is that decree alone which brought about a change in the appellant’s legal position by establishing his disqualification from holding office.
55. The appellant advances two further arguments in support of his contention that the contested act is reviewable. The first is based on the fact that, in paragraph 91 of the judgment under appeal, the Court of First Instance expressly referred to the fact that the appellant had asserted his rights before the Conseil d’État and the European Court of Human Rights, which demonstrates the existence of a reviewable act since the Parliament thus carried out an assessment of matters of fact and law. The second argument concerns the irrelevance of the concept of a confirmatory act, which underpins paragraph 97 of that judgment, since the proceedings referred to in paragraph 91 specifically constitute new matters of law arising between the date of adoption of the decree of 31 March 2000 and the date on which the Parliament took note of the disqualification of the appellant from holding office.
56. It suffices to note in this connection that the argument that the Parliament carried out an assessment of elements of facts and law is founded on a manifestly erroneous reading of the judgment under appeal since, as has been noted in paragraph 45 of the present judgment, the Court of First Instance specifically held in paragraph 91 of the judgment under appeal that it was not for the Parliament - but for the competent national courts or the European Court of Human Rights as the case may be - to verify that the procedure laid down by the applicable national law or the fundamental rights of the person concerned have been respected. Far from confirming that the Parliament has any discretion, the reference to the proceedings instituted by the appellant before the Conseil d’État and the European Court of Human Rights is therefore further evidence of the lack of any such discretion on the part of the Parliament and the fact that, contrary to his assertion, the appellant was in fact able to assert his rights by legal proceedings.
57. As for the appellant’s argument that, in paragraph 97 of the judgment under appeal, the Court of First Instance implicitly applied the concept of a confirmatory act, the Court finds that to be unfounded. As Advocate General Jacobs noted in paragraph 63 of his Opinion, in addition to the fact that there is nothing in paragraph 97 to suggest that the Court of First Instance had in mind such a concept, the grounds of the judgment under appeal taken as a whole demonstrate on the contrary that the decree of 31 March 2000 and the contested act are distinct both in terms of their nature and their purpose.
58. In the light of all the foregoing considerations, the Court finds that the Court of First Instance did not err in law in dismissing as inadmissible the action of Mr Le Pen.
59. Consequently, the present appeal must be dismissed without examining the other pleas in law put forward by the appellant alleging both the formal and substantive unlawfulness of the contested act. Costs
60. Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118, 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 Parliament applied for costs and the appellant has been unsuccessful, he must be ordered to pay the costs of these proceedings, including those of the proceedings for interim measures referred to in paragraph 2 of the present judgment. Under the first subparagraph of Article 69(4) of the Rules of Procedure, the French Republic, as intervener, is to bear its own costs.