1. By application lodged at the Court Registry on 12 December 2001, the Front National appealed under Article 225 EC and Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 2 October 2001 in Joined Cases T-222/99, T-327/99 and T-329/99 Martinez and Others v Parliament [2001] ECR. II-2823 (‘the judgment under appeal’), by which the Court of First Instance had dismissed its action for annulment of the decision of the European Parliament of 14 September 1999 concerning the interpretation of Article 29(1) of the Parliament’s Rules of Procedure and dissolving with retroactive effect the ‘Groupe technique des députés indépendants (TDI) - Groupe mixte’ (‘the contested act’).
2. By a separate document lodged at the Court Registry on 11 December 2001, the Front National also applied, pursuant to Article 242 EC, for an order suspending application of the judgment under appeal. That application was, however, dismissed by order of the President of the Court of 21 February 2002 in Joined Cases C‑486/01 P-R and C-488/01 P-R Front National and Martinez v Parliament [2002] ECR. I-1843, on the ground, inter alia, that the grant of suspension was not capable of preventing the serious and irreparable damage pleaded by the appellant. Legal framework
3. Rule 29 (Formation of Political Groups) of the Rules of Procedure of the European Parliament, in the version in force at the material time (OJ 1999 L 202, p. 1, hereinafter ‘the Rules of Procedure’), provided: ‘1. Members may form themselves into groups according to their political affinities. 2. A political group must comprise Members from more than one Member State. The minimum number of Members required to form a political group shall be twenty-three if they come from two Member States, eighteen if they come from three Member States and fourteen if they come from four or more Member States. 3. A Member may not belong to more than one group.
4. The President shall be notified in a statement when a political group is set up. This statement shall specify the name of the group, its members and its bureau. ...’ 4. Rule 30 of the Rules of Procedure, concerning non-attached Members, provided: ‘1. Members who do not belong to a political group shall be provided with a secretariat. The detailed arrangements shall be laid down by the Bureau on a proposal from the Secretary-General. 2. The Bureau shall also determine the status and parliamentary rights of such Members.’
5. Rule 180, concerning application of the Rules of Procedure, provided: ‘1. Should doubt arise over the application or interpretation of these Rules of Procedure, the President may, without prejudice to any previous decisions in this field, refer the matter to the committee responsible for examination. Where a point of order is raised under Rule 142, the President may also refer the matter to the committee responsible. 2. The committee shall decide whether it is necessary to propose an amendment to the Rules of Procedure. In this case it shall proceed in accordance with Rule 181. 3. Should the committee decide that an interpretation of the existing Rules is sufficient, it shall forward its interpretation to the President who shall inform Parliament. 4. Should a political group or at least 32 Members contest the committee’s interpretation, the matter shall be put to the vote in Parliament. Adoption of the text shall be by simple majority provided that at least one third of Parliament’s component Members are present. In the event of rejection, the matter shall be referred back to the committee. 5. Uncontested interpretations and interpretations adopted by Parliament shall be appended in italic print as explanatory notes to the appropriate Rule or Rules, together with decisions on the application of the Rules of Procedure.
6. These explanatory notes shall constitute precedents for the future application and interpretation of the Rules concerned. ...’ Facts 6. According to the judgment under appeal, following the notification of 19 July 1999 to the President of the Parliament of the formation of a new political group, the ‘Groupe technique des députés indépendants (TDI) - Groupe mixte’ (Technical Group of Independent Members - Mixed Group) (hereinafter ‘the TDI Group’), the declared purpose of which was to ensure that all Members were able to exercise their parliamentary mandates in full, the Presidents of the other political groups raised objections concerning the formation of that group by reason of the lack of political affinities between the persons of which it was composed. Consequently, the Parliament’s Committee on Constitutional Affairs (the ‘Committee on Constitutional Affairs’) was called on, pursuant to Rule 180(1), to give an interpretation of Rule 29(1).
7. The President of that committee sent the interpretation requested to the President of the Parliament by letter of 28 July 1999. That letter stated in particular as follows: ‘During its meeting on 27 and 28 July 1999 the Committee on Constitutional Affairs examined the request for an interpretation of Rule 29(1) of the Rules of Procedure referred to it by the Conference of Presidents at its meeting of 21 July 1999. Following a detailed exchange of views and by 15 votes in favour and two against, with one abstention, the Committee on Constitutional Affairs interpreted Rule 29(1) of the Rules of Procedure as follows: The constitution of the [TDI Group] is not in conformity with Rule 29(1) of the Rules of Procedure. In fact, the constitution of this group, specifically Annex 2 to the letter of constitution addressed to the President of the European Parliament, excludes any political affiliation. It permits the various signatory members total political [independence] within the group. I propose that the following wording be inserted by way of an interpretative note to Rule 29(1): “The formation of a group which openly rejects any political character and all political affiliation between its Members is not acceptable within the meaning of this Rule.” ...’
8. The content of that letter was communicated to the Parliament by its President at the Plenary Session on 13 September 1999. Since the TDI group had contested, on the basis of Rule 180(4) of the Rules of Procedure, the interpretative note put forward by the Committee on Constitutional Affairs, the note was put to a vote of the Parliament, which adopted it by a majority of its members at the Plenary Session on 14 September 1999.
9. Taking the view that in those circumstances the vote adversely affected it, the Front National brought an action for annulment of the contested act by application lodged at the Registry of the Court of First Instance on 19 November 1999 (Case T-327/99). By applications lodged at the Court Registry on 5 October and 22 November 1999, Messrs Martinez and de Gaulle (Case T-222/99) and Mrs Bonino, Messrs Pannella, Cappato, Dell’Alba, Della Vedova, Dupuis, Turco and La Lista Emma Bonino (Case T-329/99) also brought actions having the same purpose. The judgment under appeal
10. In the judgment under appeal, the Court of First Instance declared the Front National’s action admissible but dismissed it as unfounded. Admissibility
11. As to whether the action was admissible, the Court of First Instance rejected the pleas of inadmissibility put forward by the Parliament, which alleged (i) non-existence of the contested act, (ii) that the act was not amenable to judicial review by the Community judicature and (iii) that the act was not of direct and individual concern to the Front National within the meaning of the fourth paragraph of Article 230 EC.
12. First, addressing the plea of inadmissibility alleging non-existence of the contested act in so far as it dissolved the TDI Group, the Court of First Instance held, in paragraph 26 of the judgment under appeal, that in order to determine whether an act may be the subject of a challenge in an action under Article 230 EC it is necessary to look at the substance of the act rather than its form. Following examination of the contents of the act and of the circumstances leading to its adoption, the Court of First Instance found, in paragraph 46 of the judgment, that by such an act the Parliament had not only decided to adopt the general interpretation of Rule 29(1) proposed by the Committee on Constitutional Affairs and the view expressed by that committee on the conformity with Rule 29 of the statement of formation of the TDI Group, but had also established the non-existence ex tunc of that group for non-observance of the condition referred to in that rule.
13. As regards the second plea of inadmissibility put forward by the Parliament concerning the non-actionable nature of the contested act, the Court of First Instance held, in paragraphs 59 to 62 of the judgment under appeal, that an act of that kind, in depriving the Members who declared the formation of the TDI Group of the opportunity of organising themselves by means of that group in a political group within the meaning of Rule 29, with the result that those Members were deemed to be non-attached under Rule 30, affected the conditions under which the parliamentary functions of the Members concerned were exercised, and thus produced legal effects in their regard. Such an act cannot, therefore, be deemed merely to be an act confined to the internal organisation of the work of the Parliament but must be open to review by the Community judicature under the first paragraph of Article 230 EC.
14. Third, in response to the plea of inadmissibility by which the Parliament had questioned whether the conditions of admissibility laid down in the fourth paragraph of Article 230 EC were met, the Court of First Instance held, in paragraph 65 of the judgment under appeal, that the contested act had to be regarded as directly affecting Messrs Martinez and de Gaulle and the Members who had brought the action in Case T-329/99, since the act, without the need for any supplementary measure, prevented those Members from forming themselves by means of the TDI Group into a political group within the meaning of Rule 29, something which directly impinged on the performance by them of their functions. Consequently, the Court held that the contested act had also to be regarded as being of direct and individual concern to the Front National.
15. So far as the first of those conditions is concerned, the Court of Instance held more specifically as follows: ‘66 As regards Case T-327/99, it should be noted that the French political party known as the Front National is a legal person whose stipulated object is to promote via its members political ideas and projects in the context of national and European institutions. It presented a list of candidates at the election in June 1999 of representatives to the Parliament. The persons on that list who were elected to the Parliament all form part of the body of Members declaring the formation of the TDI Group. Owing to the act of 14 September 1999, they are all in the situation described at paragraph 59 above, which directly impinges on the promotion of the ideas and projects of the party which they represent in the European Parliament and, hence, also on the attainment of that political party’s stipulated object at European level. 67 The act of 14 September 1999 must therefore be regarded as directly affecting the Front National.’
16. As to the second of the conditions laid down in the fourth paragraph of Article 230 EC, the Court of First Instance, having described the case-law on the interpretation of that condition and the circumstances which had led to the dissolution of the TDI Group, held, in paragraph 72 of the judgment under appeal, that the contested act concerned the Front National individually by virtue of circumstances differentiating it from all other persons.
17. Consequently, the Court of First Instance rejected the third plea of inadmissibility put forward by the Parliament and held, in paragraph 75 of the judgment under appeal, that the Front National’s action for annulment therefore had to be declared admissible. Substance
18. So far as the substance of the action was concerned, however, the Court of First Instance dismissed all the pleas put forward by the Front National, which alleged (i) a misreading of Rule 29(1) (first plea), (ii) infringement of the principle of equal treatment and of the Rules of Procedure, as well as the lack of a legal basis (second plea), (iii) infringement of the principle of equal treatment with regard to members of the TDI Group (third plea), (iv) disregard of the parliamentary traditions common to the Member States (fourth plea), (v) infringement of essential procedural requirements (fifth plea) and (vi) a presumption of misuse of procedure (sixth plea).
19. Consequently, the Court of First Instance dismissed the actions for annulment before it and ordered the Front National to bear its own costs and to pay those incurred by the Parliament in Case T-327/99. The appeal
20. By its appeal, the Front National claims that the Court should: - declare the appeal admissible; - find that there has been an infringement of Community law by the Court of First Instance; - quash the limbs and grounds of the judgment under appeal in whole or in part; - rule on the case as appropriate or, failing that, refer the case back to the Court of First Instance; and - order the Parliament to pay all the costs.
21. The Parliament contends that the Court should: - dismiss the appeal; - set aside the judgment under appeal to the extent to which it admits the Front National’s action for annulment; - dismiss the action as inadmissible or, in the alternative, as unfounded; and - order the Front National to pay the costs. The cross-appeal Arguments of the parties
22. By its cross-appeal, which it is appropriate to examine first, the Parliament disputes, in essence, the Front National’s standing to bring proceedings for annulment of the contested act. It argues in that regard that, although the Court of First Instance, in paragraph 66 of the judgment under appeal, correctly assessed the impact of that act on the legal position of the Members who had declared the formation of the TDI Group (some of whom were also members of the Front National), it nevertheless made an error of law in holding, in paragraph 67 of the judgment, that the contested act had to be regarded as ‘directly’ affecting the Front National. The party did not meet that condition, laid down in the fourth paragraph of Article 230 EC, precisely because it was concerned only indirectly by the contested act. The Parliament puts forward the following arguments on this point.
23. First, the conclusion reached by the Court of First Instance in paragraph 67 of the judgment under appeal is not consistent with the finding in other passages of the judgment, in particular in paragraphs 59 and 65 thereof, in which the Court found that the contested act had to be regarded as of direct concern to the Members who had declared the formation of the TDI Group, since they were deprived of ‘the opportunity of organising themselves by means of that group in a political group within the meaning of Rule 29’. In the Parliament’s submission, it is inconceivable that national political parties, which are not afforded a special status under the Rules of Procedure, should be affected by acts of the Parliament in the same way as Members, who do enjoy a special status by virtue of those rules.
24. Second, the finding that the Front National is directly affected by the contested act is also at variance with the case-law of the Court and, in particular, with the judgment in Case 69/69 Alcan and Others v Commission [1970] ECR 385, by virtue of which an applicant can be directly concerned by an act only if the latter has per se the immediate effect of depriving the applicant of a right or imposing on it a duty, so that such an applicant is placed in the same position as the one it would be in if the act concerned were addressed to it. In the Parliament’s submission, that is not the case here, since the Front National, unlike its candidates who are elected Members of the Parliament, is affected only indirectly by the act concerned.
25. The Parliament argues, third, that, although it admittedly follows from the Court’s case-law that the acts which it adopts may form the subject-matter of an action for annulment where they produce legal effects vis-à-vis third parties or where such effects go beyond the internal organisation of the work of the Parliament, an act such as the contested act, which regulates the situation of certain Members, produces no legal effects with regard to third parties such as a national political party. The Front National cannot pray in aid the fact that it took part in the elections in June 1999 or the fact that some of its members were actually elected Members of the Parliament, since, after the election, there ceased to be any legal relationship between the political parties which had taken part in the electoral campaign and the assembly elected. It follows both from Article 4(1) of the Act of 20 September 1976 concerning the election of the representatives of the Assembly by direct universal suffrage and from Rule 2 of the Rules of Procedure that elected representatives of the Parliament must exercise their mandate independently and cannot be bound by any instruction or receive a binding mandate. If, in such circumstances, the proposition that the contested act also produces legal effects with regard to a national political party such as the Front National were accepted, the Members of the Parliament would amount to no more than ‘intermediaries’ between the Parliament and their party, with no independence or responsibility of their own, something which would run counter to both the letter and the spirit of the abovementioned provisions.
26. Fourth and finally, the Parliament mentions the negative consequences which might ensue if the Front National’s action were held admissible. If the Court of First Instance’s interpretation were accepted by the Court of Justice, both Courts would be exposed to the risk of being deluged with actions brought not only by other persons or groups of persons who are concerned only indirectly by the Parliament’s internal measures of organisation - such as the foundations of political parties, which could be affected, for example, if the payment of grants from appropriations paid to the political groups were no longer possible - but also by other political parties which, under their own statutes, might consider themselves the particular target of specific provisions of the Rules of Procedure, such as Rule 152 concerning the composition of parliamentary committees, or Rule 168(2), as a result of which, when interparliamentary delegations are set up, account must be taken of ‘as far as possible fair representation of Member States and of political views’.
27. In the observations which it has submitted on the cross-appeal under Article 117(2) of the Court’s Rules of Procedure, the Front National challenges the Parliament’s argument that it has no locus standi under the fourth paragraph of Article 230 EC. In its submission, the admissibility of its action is established not only as regards the legal nature of the contested act but also as regards the Front National itself.
28. As concerns, first, the legal nature of the contested act, the Front National submits that the decision by which the Parliament, on 14 September 1999, endorsed the interpretation of Rule 29(1) put forward by the Committee on Constitutional Affairs is an actionable act, since, by virtue of the case-law of the Court of Justice, such an act is definitive in nature and produces legal effects which go beyond the internal organisation of the work of the Parliament as it deprives the political parties and Members seeking to adhere to the TDI Group of the opportunity of organising themselves into a political group. In those circumstances, the members of the Front National which the party put up as candidates in the elections and whose election it worked to secure are placed in a less favourable position than that of Members of the Parliament who belong to a political group: that affects directly promotion of the party’s ideas and projects and distorts the election results after the ballot.
29. As regards, second, the person who actually brought the action, the appellant submits that the admissibility of the action is also established in that the contested act is of both direct and individual concern to the Front National.
30. As regards, in the first place, the condition that the decision forming the subject-matter of the action must be of ‘direct’ concern to the natural or legal person, the Front National concurs with the Court of First Instance’s finding that the contested act was of direct concern to it, since, although the act had significant repercussions on the scope of the political rights and material advantages afforded to the members of the TDI Group, it also had a direct impact on the parties to which those Members belonged, particularly on the Front National, since the latter had actively campaigned for its members to be elected to the Parliament and had thereby incurred considerable expense. The party thus had an obvious interest in the Members for whose election it had worked having the same advantages as the other Members of the Parliament. Relying in particular in this regard on Case 294/83 Les Verts v Parliament [1986] ECR 1339, the Front National rebuts the Parliament’s argument that the legal relationship between the parties involved in the campaign and the resulting assembly ceased after the ballot. The principle of equal treatment for parties in an electoral campaign, endorsed by the Court in that judgment, remains effective once the ballot is over, with the result that the Court must censure any breach of that principle if persons who have voted for the Front National are not represented in the Parliament under equivalent, if not identical, conditions to those applicable to Members of the Parliament from the other groups.
31. As to the condition that the decision at issue in the proceedings must be of ‘individual’ concern to the natural or legal person, the Front National maintains that it fulfils the conditions established by the case-law and, in particular, by the judgment in Case C-309/89 Codorniu v Council [1994] ECR I-1853, since it is affected by the contested act by reason of attributes which are peculiar to it and circumstances which differentiate it from all other persons. The Front National concurs in this regard with the Court of First Instance’s assessment in paragraphs 69 to 71 of the judgment under appeal. Findings of the Court
32. As a preliminary point, it should be borne in mind that under the fourth paragraph of Article 230 EC any natural or legal person may institute proceedings against a decision addressed to it or against a decision which, although in the form of a regulation or a decision addressed to another person, is of ‘direct and individual’ concern to it.
33. Although the Parliament, by its cross-appeal, does not challenge the Court of First Instance’s finding that the contested act is in the nature of a decision and concerns the Front National individually, it does, however, dispute the conclusion, in paragraph 67 of the judgment under appeal, that the act is of direct concern to the party.
34. In that regard, it is appropriate to bear in mind that, by virtue of settled case-law, the condition that the decision forming the subject-matter of the proceedings must be of ‘direct concern’ to a natural or legal person, as it is stated in the fourth paragraph of Article 230 EC, requires the Community measure complained of to affect directly the legal situation of the individual and leave no discretion to the addressees of that measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see, inter alia, Case C‑404/96 P Glencore Grain v Commission [1998] ECR I‑2435, paragraph 41, and the case-law cited).
35. In this instance there is no question that the contested act - to the extent to which it deprived the Members having declared the formation of the TDI Group, and in particular the Members from the Front National’s list, of the opportunity of forming by means of the TDI Group a political group within the meaning of Rule 29 - affected those Members directly. As the Court of First Instance rightly pointed out in paragraphs 59 and 65 of the judgment under appeal, those Members were in fact prevented, solely because of the contested act, from forming themselves into a political group and were henceforth deemed to be non-attached Members for the purposes of Rule 30; as a result, they were afforded more limited parliamentary rights and lesser material and financial advantages than those they would have enjoyed had they been members of a political group within the meaning of Rule 29.
36. Such a conclusion cannot be drawn, however, in relation to a national political party such as the Front National. As the Advocate General has noted in point 40 of his Opinion, although it is natural for a national political party which puts up candidates in the European elections to want its candidates, once elected, to exercise their mandate under the same conditions as the other Members of the Parliament, that aspiration does not confer on it any right for its elected representatives to form their own group or to become members of one of the groups being formed within the Parliament.
37. It must be observed that under Rule 29(2) the formation of a political group within the Parliament requires a minimum number of Members from various Member States and that, in any event, Rule 29(1) mentions only the possibility of Members forming themselves into groups according to their political affinities. The rule assigns no specific function in the process of forming political groups to the national political parties to which those Members belong.
38. In those circumstances, it cannot be maintained that a national political party is directly affected by the contested act, which applies, and which in fact, by virtue of the actual wording of Rule 29, could apply, only to the Members of the Parliament who had declared the formation of the TDI Group.
39. In paragraph 66 of the judgment under appeal, the Court of First Instance admittedly found that, since the contested act deprived the Members concerned, particularly those elected from the Front National’s list, of the opportunity to organise themselves into a political group, it directly impinged on the promotion of the ideas and projects of the party which they represented in the European Parliament and, hence, on the attainment of that political party’s stipulated object at European level, the reason why the Front National was directly affected by the act.
40. Such effects, however, cannot be regarded as directly caused by the contested act. Even on the assumption that such consequences ensue, they result from the fact that Members who do not belong to a political group are deemed to be non-attached Members under Rule 30 and from the fact that non-attached Members are afforded a less favourable status by Rule 30. The Front National is liable to be affected only indirectly by the contested act, by virtue of the consequences which the act entails for the status of the Members who adhere to that party.
41. The Court must also reject the argument which the Front National derives from the Court’s recognition, in its judgment in Les Verts v Parliament , of the principle of equal treatment for parties in an electoral campaign, which remains effective once the ballot is over. That judgment concerned a quite different situation from the one at issue in this instance.
42. Thus, the decisions of the Parliament at issue in Les Verts v Parliament were of direct concern to the applicant in that case, since they provided, in the period preceding the European elections in 1984, for the allocation of appropriations between the political groupings - which included that party - without any further measure being necessary, given that the calculation of the proportion of the appropriations to be awarded to each of the political groupings concerned was automatic and left no room for any discretion, as the Court stated in paragraph 31 of its judgment.
43. In the present case, however, the Front National is not directly concerned by the contested act. Although it cannot be denied that no implementing measure is necessary for the act to produce effects, there is also no question that, pursuant to the actual wording of Rule 29, the act can produce effects only on the legal situation of Members of the Parliament and not on that of national political parties from whose lists those Members were elected and which, in some cases, have played a part in securing the election of those Members. Contrary to the requirements laid down by the case-law referred to in paragraph 34 of this judgment, such an act therefore does not directly produce effects on the legal situation of the Front National.
44. In view of all the foregoing considerations, it must therefore be concluded that the Court of First Instance erred in law in holding, in paragraph 67 of the judgment under appeal, that the contested act directly affected the Front National, and the judgment must be set aside in so far as it declared the Front National’s action admissible. Admissibility of the Front National’s action
45. Under the first paragraph of Article 61 of the Statute of the Court of Justice, the Court, where it quashes a decision of the Court of First Instance, may either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for final judgment.
46. In this case, the Court considers that it has all the elements necessary for it to adjudicate itself on the admissibility of the action brought by the Front National before the Court of First Instance. The arguments put forward by the party in support of its case are identical to those which it developed in its observations on the Parliament’s cross-appeal and are based, in essence, on the proposition, already referred to, that the contested act was of direct concern to it inasmuch as it appreciably affected the promotion of the ideas and projects of the party within the European Parliament.
47. For the reasons set out in paragraphs 36 to 43 of this judgment, the Front National cannot be regarded as directly affected by the contested act.
48. In those circumstances, the action which the Front National brought before the Court of First Instance must be dismissed as inadmissible. Consequently, there is no longer any need to adjudicate on the main appeal.