1 By his appeal, Mr Danilo Poggiolini seeks to have set aside the order of the General Court of the European Union of 3 July 2020, Falqui and Poggiolini v Parliament (T‑347/19 and T‑348/19, not published, ‘the order under appeal’, EU:T:2020:303), by which the General Court dismissed as manifestly inadmissible his action for annulment of the note of 11 April 2019 drawn up by the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s Directorate-General for Finance and concerning the adjustment of the amount of the pension he receives following the entry into force, on 1 January 2019, of Decision No 14/2018 of the Ufficio di Presidenza della Camera dei deputati (Office of the President of the Chamber of Deputies, Italy) (‘the note at issue’).
2 Mr Poggiolini is a former Member of the European Parliament, elected in Italy. On that basis he receives a retirement pension.
3 On 12 July 2018, the Office of the President of the Italian Chamber of Deputies decided to recalculate, in accordance with the contribution system, the amount of the pensions of former members of that Chamber relating to the years of service completed until 31 December 2011 (‘Decision No 14/2018’).
4 By adding a comment on the appellant’s pension statement for January 2019, the Parliament warned him that the amount of his pension could be revised, in accordance with Decision No 14/2018, and that that recalculation might lead to recovery of sums unduly paid.
5 By an undated note from the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s Directorate-General for Finance, annexed to the appellant’s pension statement for February 2019, the Parliament informed him, first of all, that its Legal Service had confirmed that Decision No 14/2018 was automatically applicable to his situation. That note stated, next, that once the Parliament had received the necessary information from the Camera dei deputati (Chamber of Deputies, Italy), it would notify the appellant of the redetermination of his pension entitlement and would recover any overpayment over the following 12 months. Lastly, that note informed the appellant that the definitive determination of his pension entitlement would be adopted by a formal act against which it would be possible to lodge a complaint or an action for annulment on the basis of Article 263 TFEU.
6 Subsequently, by the note at issue, the Head of Unit informed the appellant that the amount of his pension would be adjusted in line with the reduction of the amount of similar pensions paid in Italy to former members of the Chamber of Deputies pursuant to Decision No 14/2018. The note also stated that the amount of the appellant’s pension would be adjusted from April 2019 in accordance with the draft determination of his new pension entitlement sent in annex to that note. Furthermore, that note gave the appellant a period of 30 days from the date of receipt of the note to submit his observations. If no such observations were submitted within the prescribed period, the note at issue would be regarded as producing definitive effects which would entail, inter alia, the recovery of the amounts unduly paid for the months of January to March 2019.
7 By email of 22 May 2019, the appellant submitted his observations to the relevant department of the Parliament. By an email of the same date, the Parliament acknowledged receipt of those observations and informed the appellant that he would receive a reply after examination of his arguments.
8 After the action had been brought before the General Court, by letter of 8 July 2019, the Head of the ‘Members’ Salaries and Social Entitlements’ Unit of the Parliament’s Directorate-General for Finance replied to the observations submitted by the appellant, stating that those observations did not contain anything capable of justifying a revision of the Parliament’s position, as expressed in the note at issue, and that, consequently, the pension entitlement as recalculated and the recovery plan for undue payments communicated in annex to that note had become final from the date of notification of that letter.
9 By application lodged at the Registry of the General Court on 10 June 2019, the appellant brought an action for annulment of the note at issue.
10 On 29 August 2019, the Parliament, by a separate document, raised a plea of inadmissibility in respect of that action.
11 On 6 September 2019, the appellant lodged a statement of modification of his application.
12 On 20 January 2020, the General Court decided to join the examination of the action for annulment brought by Mr Poggiolini, registered as Case T‑348/19, with that of the action, registered as Case T‑347/19, brought by another applicant who was also a former member of the Parliament.
13 By the order under appeal, adopted pursuant to Article 126 of the Rules of Procedure of the General Court, the latter dismissed both actions as manifestly inadmissible.
14 The General Court held, first of all, in paragraph 53 of the order under appeal, that the note at issue did not constitute an act adversely affecting the appellant and, therefore, could not be the subject of an action for annulment within the meaning of Article 263 TFEU. Consequently, in paragraph 59 of the order under appeal, it dismissed as manifestly inadmissible the appellant’s first head of claim, seeking annulment of that note.
15 In order to justify that assessment, it stated, in the first place, in paragraphs 47 to 49 of the order under appeal, that the fact that the new method of calculating pensions was applicable from April 2019 was not sufficient to establish that the Parliament had adopted a definitive position on the matter. First, the note at issue expressly stated that it was a draft. Second, it stated that it would become final only in the absence of observations made by its addressee within 30 days of its receipt. Yet the appellant had submitted observations within that period.
16 In the second place, the General Court held, in paragraphs 52 and 56 of the order under appeal, that the Parliament’s letter of 8 July 2019 constituted the adoption of a definitive position by the Parliament with regard to the appellant and could not be regarded as a measure which was purely confirmatory of the note at issue.
17 In the third place, it held, in paragraph 57 of the order under appeal, that the inadmissibility of the action brought against the note at issue did not undermine the right to effective judicial protection, since, first, reliance on that right cannot have the effect of setting aside the requirements for the admissibility of actions expressly provided for by the FEU Treaty and, second, the appellant was entitled to bring an action for annulment against the letter of 8 July 2019.
18 In the fourth place, the General Court rejected, in paragraph 58 of the order under appeal, the appellant’s argument that the Parliament could avoid review by the General Court by failing to respond to the observations submitted on the note at issue, noting that, in the present case, the Parliament had responded to the observations submitted. Furthermore, the General Court stated that, in any event, even if the Parliament had unlawfully failed to act on that point, the persons concerned would still have had the right to bring an action for failure to act in order to compel the Parliament to adopt its position definitively.
19 Next, in paragraphs 62 and 63 of the order under appeal, the General Court rejected the appellant’s second head of claim, seeking annulment of the decision set out in the letter of 8 July 2019. In that regard, it considered that the statement of modification lodged by the appellant was manifestly inadmissible on the ground that a party can amend the form of order sought and the pleas in law of his or her initial action only where that action was itself admissible on the date on which it was brought.
20 Lastly, in paragraph 67 of the order under appeal, the General Court rejected the appellant’s third head of claim, seeking an order that the Parliament pay the sums unduly withheld, in so far as that head of claim was manifestly inadmissible.
21 By his appeal, the appellant claims that the Court of Justice should: - set aside the order under appeal; - consequently, annul the note at issue and the note sent by the letter of 8 July 2019; - failing that, refer the case back to the General Court; and - order the Parliament to pay the costs of both sets of proceedings.
22 The Parliament contends that the Court of Justice should: - dismiss the appeal; and - order the appellant to pay the costs of the appeal.
23 The appellant relies on three grounds in support of his appeal, alleging that the General Court committed errors of law as regards the assessment of (i) whether the plea of inadmissibility raised before it by the Parliament was out of time, (ii) the actionable nature of the note at issue and (iii) the admissibility of the application for annulment made in the statement of modification, respectively.
24 In view of the arguments which he puts forward in support of his grounds of appeal, the appellant must be regarded as seeking to have the order under appeal set aside in so far as, by that order, the General Court dismissed his claim for annulment of the note at issue and of the decision set out in the letter of 8 July 2019.
25 By his second ground of appeal, which it is appropriate to examine first, the appellant submits that the note at issue constitutes a challengeable act and that the General Court infringed Article 47 of the Charter of Fundamental Rights of the European Union and the right to effective judicial protection by declaring the action for annulment brought against it to be inadmissible.
26 The appellant submits, in that regard, that that note is not a mere preparatory act, since it produced immediate legal effects by bringing about, from April 2019, a reduction in the amount of the pension paid to him.
27 In addition, the appellant claims that the submission of observations was merely an option and that, if that option had not been exercised, once the period of 30 days indicated in the note at issue had expired, the reduction in the amount of the pension would have continued to apply without any subsequent intervention by the administration. He submits that in the present case he had not received any response to his observations when he brought his action and that he was obliged to act in order to avoid being time barred.
28 According to the appellant, the approach taken by the General Court also undermines the right to effective judicial protection. First, it deprives the appellant of protection against a measure having a direct impact on his position. Second, it enables the Parliament to avoid any judicial review by failing to respond to the observations submitted by the interested parties.
29 The Parliament submits, in the first place, that the reduction in the amount of the appellant’s pension was provisional and that that reduction could have been revised on the basis of the observations submitted by the appellant. That provisional nature is clear from the wording of the note at issue and from the appellant’s right to submit observations before it became final, a right which he did in fact exercise. The Parliament’s final position was not adopted until later.
30 In the second place, the appellant’s right to judicial protection would have been ensured by the possibility of bringing an action against the final decision, expressed in the letter of 8 July 2019, the examination of which would have allowed, where appropriate, the note at issue to be annulled and the effects of that note to be remedied. In that connection, the risk that the Parliament would fail to respond to the observations could be excluded on the ground stated in paragraph 58 of the order under appeal.
31 As the General Court noted in paragraph 45 of the order under appeal, it is clear from the settled case-law of the Court of Justice that any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as acts open to challenge, within the meaning of Article 263 TFEU (judgments of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 46 and the case-law cited).
32 In order to determine whether the contested act produces such effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgments of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47 and the case-law cited).
33 It should also be noted that, as the General Court stated, in essence, in paragraph 46 of the order under appeal, intermediate measures the aim of which is to prepare, in a procedure comprising several stages, the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment (see, to that effect, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 43 and the case-law cited).
34 Such intermediate acts are, first and foremost, acts which express a provisional opinion of the institution concerned (judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 44 and the case-law cited).
35 The General Court held, in paragraphs 47 to 51 of the order under appeal, that the note at issue did not set out the Parliament’s definitive position, since the position adopted in that note could be altered in order to take account of the information contained in the appellant’s observations.
36 In that regard, the argument put forward by the appellant that the note at issue was not provisional on the ground that its effects would have become definitive if he had not submitted observations within the period stated in that note cannot succeed.
37 As the General Court held in paragraph 49 of the order under appeal, the appellant lodged observations before the expiry of that period, thereby preventing the effects of the note at issue from becoming definitive.
38 However, the finding that an act of an institution constitutes an intermediate measure which does not express the final position of an institution is not sufficient to establish, systematically, that that act is not a ‘challengeable act’ for the purposes of Article 263 TFEU.
39 It is thus apparent from the case-law of the Court that an intermediate measure which has independent legal effects may form the subject matter of an action for annulment in so far as the illegality attaching to that measure cannot be remedied in an action brought against the final decision for which it represents a preparatory step (judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 46 and the case-law cited).
40 Accordingly, where a challenge to the legality of an intermediate measure in such an action is not capable of ensuring effective judicial protection for the applicant against the effects of that act, it must be capable of forming the subject matter of an action for annulment, on the basis of Article 263 TFEU (see, to that effect, judgments of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 63; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 56; and of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 48).
41 In the present case, it is important to point out that, as the General Court stated in paragraph 47 of the order under appeal and as the appellant submits in his appeal, the note at issue led to an immediate reduction in the amount of the appellant’s pension, with effect from April 2019, since the application of that reduction was not suspended pending the outcome of the proceedings conducted by the Parliament.
42 It follows that the note at issue produced, as such, independent legal effects on the appellant’s financial situation.
43 Such effects cannot be treated in the same way as the procedural effects of acts expressing a provisional position of the European Commission or the effects of such acts which have been recognised as not adversely affecting the interests of the persons concerned, which, the Court has held, cannot result in actions for annulment brought against such acts being admissible (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraphs 17 to 18).
44 The fact, stated by the General Court in paragraph 50 of the order under appeal, that it is apparent from the note at issue that the Parliament would have recovered sums received for the months of January to March 2019 only in the absence of observations lodged by the appellant within 30 days of receipt of that note is not capable of calling into question the immediate nature of the legal effects produced by that note.
45 In addition, although the note at issue provided that the Parliament was to adopt a final position after receipt of the appellant’s observations, it is common ground that the adoption of such a position did not have a time limit.
46 The independent legal effects of the note at issue could therefore have continued for a potentially long period, the end of which was not a priori defined.
47 In those circumstances, since the lasting reduction in the amount of a pension is liable to have potentially irreversible consequences for the situation of the person concerned, the appellant had to have the right to effective recourse against the note at issue and thus to prevent the reduction of his pension (see, by analogy, judgments of 30 June 1992, Italy v Commission, C‑47/91, EU:C:1992:284, paragraph 28, and of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 63).
48 It follows that, contrary to what the General Court held in paragraph 57 of the order under appeal, the bringing of an action for annulment of the final decision which the Parliament was required to adopt after receipt of the appellant’s observations was not capable of ensuring him effective judicial protection.
49 Nor is the right of the person concerned, in the absence of a reply from the Parliament to the observations which he has submitted, to bring an action against the Parliament for failure to act, to which the General Court referred in paragraph 58 of the order under appeal, capable of guaranteeing him effective judicial protection.
50 It is true that the Parliament is required to reply to such observations within a reasonable period of time (see, to that effect, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX‑II, EU:C:2013:134, paragraph 28) and the person concerned therefore has the right to bring an action for failure to act if that institution does not comply with that obligation.
51 Furthermore, the Court has previously held that the possibility of bringing such an action for failure to act may be sufficient to prevent the Commission from perpetuating a state of inaction following the adoption of an intermediate measure adopted by that institution (see, to that effect, judgment of 18 March 1997, Guérin automobiles v Commission, C‑282/95 P, EU:C:1997:159, paragraph 38).
52 However, those considerations cannot be decisive in the present case since, first, an action for failure to act brought against the Parliament would not be capable of calling into question the autonomous legal effects of the note at issue and, second, the time needed to enable such an action to be examined and then, as the case may be, an action for annulment to be examined would be excessive in a context in which that note immediately entails a reduction in the amount of the pension paid to a natural person.
53 In that respect, the fact, noted by the General Court in paragraph 58 of the order under appeal, that the Parliament had, in the present case, responded to the appellant’s observations has, in any event, no bearing on the assessment of the admissibility of the action for annulment brought against the note at issue, since that reply came after that action had been brought.
54 In the light of the foregoing, the General Court erred in law in holding, in paragraph 53 of the order under appeal, that the provisional nature of the note at issue permitted the inference that it did not constitute an act adversely affecting the appellant and, therefore, that it could not be the subject of an action for annulment on the basis of Article 263 TFEU.
55 Consequently, the second ground of appeal must be upheld and the order under appeal must be set aside in so far as it rejected the first head of claim submitted by the appellant in Case T‑348/19, seeking annulment of the note at issue.
56 It also follows that the order under appeal must be set aside in so far as it rejected the second head of claim submitted by the appellant in Case T‑348/19, seeking annulment of the decision set out in the letter of 8 July 2019, since the rejection of that head of claim was based exclusively on the inadmissibility of the appellant’s first head of claim, seeking annulment of the note at issue.
57 In those circumstances, it is not necessary to examine the first and third grounds of appeal, in so far as they are not, in any event, of a nature to result in a more extensive setting aside of the order under appeal.
58 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, where it has quashed the decision of the General Court, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
59 In the first place, since the Parliament maintained, by its plea of inadmissibility raised before the General Court, only that the action for annulment brought by the appellant was inadmissible on the ground that the note at issue was a preparatory act, it is appropriate, for the reasons set out in paragraphs 38 to 54 above, to reject that plea of inadmissibility.
60 In the second place, since the General Court’s assessments related exclusively to the admissibility of the action and the General Court dismissed the action for annulment brought by the appellant as manifestly inadmissible without opening the oral procedure, the Court of Justice does not have the information necessary to give final judgment in the action.
61 Consequently, the case must be referred back to the General Court for it to rule on the appellant’s claim seeking annulment of the note at issue and of the decision set out in the letter of 8 July 2019.
62 Since the case is being referred back to the General Court, it is appropriate to reserve the costs.