Case C-167/02 P

Willi Rothley and Others

v

European Parliament

(Appeal – Measure of the Parliament concerning the terms and conditions for internal investigations in relation to the prevention of fraud – Action for annulment – Admissibility – Independence and immunity of Members of the Parliament – Confidentiality connected with the work of Parliamentary committees of inquiry – European Anti-Fraud Office (OLAF) – Investigative powers)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Interpretation contra legem of the requirement of being individually concerned – Not permissible

(Art. 230, fourth para., EC)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Measure of the Parliament affecting its current and future Members without distinction – Inadmissible

(Art. 230, fourth para., EC; Rules of Procedure of the European Parliament)

3. European Communities – Judicial review of the legality of acts of the institutions – Acts of general application – Need for natural or legal persons to have recourse to a plea of illegality or a reference for a preliminary ruling on validity

(Art. 230, fourth para., EC, Art. 234 EC and Art. 241 EC)

4. Community law – Principles – Right to effective judicial protection – Inadmissibility of an action brought by certain members of the European Parliament against a measure of the institution amending its Rules of Procedure in relation to internal investigations by the European Anti‑Fraud Office (OLAF) – Infringement of the principle concerned – None

1. A natural or legal person is entitled to bring an action for annulment of a measure which is not a decision addressed to it only if the person is not only directly concerned by the measure but also individually concerned by it, with the result that the fourth paragraph of Article 230 EC cannot be interpreted so as to have the effect of setting aside that condition, which is expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts.

(see para. 25)

2. A measure of the Parliament which applies without distinction to the Members of the Parliament in office at the time of its entry into force and to any other person subsequently coming to perform the same duties is not of individual concern, within the meaning of Article 230 EC, to certain of those members.

Such a measure applies without temporal limitation to objectively determined situations and has legal effects with respect to categories of persons envisaged generally and in the abstract and does not affect certain Members of the Parliament in a particular way.

That finding is not undermined by the fact that the Court accepts that actions for annulment of measures of general application may be brought by persons whose particular circumstances must be taken into account by the author of the measure, since it cannot be held that, in relation to a measure such as that referred to above, certain Members of the Parliament are, even when account is taken of the rights and obligations inherent in their position, in a particular situation which differentiates them from the other Members of the Parliament who are concerned and thus distinguishes them individually in the same way as the addressee.

(see paras 28-30, 33, 37)

3. The Treaty, by Articles 230 EC and 241 EC, on the one hand, and Article 234 EC, on the other, has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts. Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 241 EC or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling on validity.

(see para. 46)

4. There are no grounds for a finding that certain Members of the European Parliament could not avail themselves of effective judicial protection if they were not permitted to bring an action for annulment before the Community Courts of a measure of the Parliament concerning amendments to its Rules of Procedure following adoption of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti‑Fraud Office (OLAF).

First, the provisions of that decision relating to cooperation with OLAF or to supplying it with information are intended – whatever their exact scope may be – to impose obligations upon Members of the Parliament, so that it is in the first instance for Members, in any given case, either to act upon those obligations or not to comply with them if they are persuaded that it is open to them to do so without infringing Community law. If, in a specific case, one of the Members of the Parliament adopts that approach, any subsequent measures taken by the Parliament with regard to that Member and to his disadvantage will, in principle, be subject to judicial review.

Second, as regards the various measures which OLAF could take when exercising its investigative powers, there is nothing to suggest that, where such measures affect certain Members of the Parliament, the latter would have no effective judicial protection in respect of those measures, since the rules determining whether the Community Courts have jurisdiction, as regards either the commencement of direct actions before those Courts or where the Court is seised by way of a reference for a preliminary ruling made by a national court, must be interpreted above all in the light of the principle of effective judicial protection.

(see paras 48-50)

JUDGMENT OF THE COURT (Full Court) 30 March 2004 (1)

(Appeal – Measure of the Parliament concerning the terms and conditions for internal investigations in relation to the prevention of fraud – Action for annulment – Admissibility – Independence and immunity of Members of the Parliament – Confidentiality connected with the work of Parliamentary committees of inquiry – European Anti-Fraud Office (OLAF) – Investigative powers)

In Case C-167/02 P,

appellants,

APPEAL against the judgment of the Court of First Instance (Fifth Chamber) of 26 February 2002 in Case T-17/00

the other parties to the proceedings being:

defendant at first instance,

interveners at first instance,

THE COURT (Full Court),

composed of V. Skouris, President, P. Jann (Rapporteur), C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,

after hearing oral argument from the parties at the hearing on 23 September 2003,

after hearing the Opinion of the Advocate General at the sitting on 20 November 2003,

gives the following

‘Within the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties … , [OLAF] shall conduct administrative investigations for the purpose of:

‘1.

These internal investigations shall be carried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations under the conditions and in accordance with the procedures provided for in this Regulation and in decisions adopted by each institution, body, office and agency. The institutions shall consult each other on the rules to be laid down by such decisions.

2....

6.‘… The institutions and bodies shall ensure that their members and staff afford the necessary assistance to enable [OLAF’s] agents to fulfil their task; the offices and agencies shall ensure that their managers and staff do likewise.’

‘1.

…

4.‘2.

3.‘Without prejudice to the relevant provisions of the Treaties establishing the European Communities, in particular the Protocol on privileges and immunities, and of the texts implementing them, Members shall cooperate fully with [OLAF].’

‘Members who acquire knowledge of facts as referred to in the first paragraph [knowledge of evidence which gives rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with the obligations of officials or servants of the Communities or staff not subject to the Staff Regulations liable to result in disciplinary or, in appropriate cases, criminal proceedings] shall inform the President of the Parliament or, if they consider it useful, [OLAF] direct.

This article applies without prejudice to confidentiality requirements laid down in law or the European Parliament’s Rules of Procedure.’

‘Where the possible implication of a Member … emerges, the interested party shall be informed rapidly as long as this would not be harmful to the investigation. In any event, conclusions referring by name to a Member … may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.

In cases necessitating the maintenance of absolute secrecy for the purposes of the investigation and requiring the use of investigative procedures falling within the remit of a national judicial authority, compliance with the obligation to invite the Member … to give his views may be deferred in agreement … with the President …’

‘The general purpose of the contested measure is to lay down the conditions upon which the Parliament will cooperate with [OLAF] in order to facilitate the smooth operation of investigations within that institution. In keeping with that object, it perceives the Members as having rights and duties and it lays down special provisions for them where, in particular, they are implicated in an investigation conducted by [OLAF] or where they have acquired knowledge of facts which give rise to a presumption of the existence of possible cases of fraud, corruption or any other illegal activity detrimental to the interests of the Communities, or of serious situations relating to the discharge of professional duties which may constitute a failure to comply with obligations liable to result in disciplinary or, where appropriate, criminal proceedings. The contested measure applies without distinction to the Members of the Parliament in office at the time of its entry into force and to any other person subsequently coming to perform the same duties. Thus it applies without temporal limitation to objectively determined situations and has legal effects with respect to categories of persons envisaged generally and in the abstract.’

The appellants’ arguments

Findings of the Court

On those grounds,

THE COURT

hereby:

Skouris

Jann

Gulmann

Cunha Rodrigues

Rosas

La Pergola

Puissochet

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 30 March 2004.

R. Grass

V. Skouris

Registrar

President