62000B0236(01)

In Case T-236/00 R II,

Gabriele Stauner, residing in Wolfratshausen (Germany),

Freddy Blak, residing in Næstved (Denmark),

Heide Rühle, residing in Stuttgart (Germany),

Esko Olavi Seppänen, residing in Helsinki (Finland),

Bart Staes, residing in Anvers (Belgium),

Members of the European Parliament, represented by J. Sedemund and T. Lübbig, lawyers, with an address for service in Luxembourg,

applicants,

v

European Parliament, represented by C. Pennera and M. Berger, acting as Agents, with an address for service in Luxembourg,

and

Commission of the European Communities, represented by U. Wölker and X. Lewis, acting as Agents, with an address for service in Luxembourg,

defendants,

APPLICATION under Articles 108 and 109 of the Rules of Procedure of the Court of First Instance for suspension of the application of points 3.2, first indent, and 3.3 of Annex 3 to the Framework Agreement of 5 July 2000 on Relations between the European Parliament and the Commission (OJ 2001 C 121, p. 122), and the adoption of interim measures,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal framework

1 Since 1990, the provisions regulating institutional relations between the European Parliament and the Commission have been contained in a Code of Conduct (OJ 1995 C 89, p. 69).

2 In September 1999, a resolution of the European Parliament called for the early establishment of an Interinstitutional Agreement between the Commission and Parliament as a Framework for a new Code of Conduct.

3 On 5 July 2000, the Framework Agreement on relations between the Parliament and the Commission (OJ 2001 C 121, p. 122) was adopted by a majority of the Members of Parliament (hereinafter the Framework Agreement).

4 Point 1 of the Framework Agreement provides:

In order to update the code of conduct adopted in 1990 and amended in 1995, the two institutions agree on the following measures to strengthen the responsibility and legitimacy of the Commission, to extend constructive dialogue and political cooperation, to improve the flow of information and to consult and inform the European Parliament on Commission administrative reforms. [The two institutions] also agree on a number of specific implementing measures (i) on the legislative process, (ii) on international agreements and enlargement, and (iii) on the transmission of confidential Commission documents and information. These implementing measures are annexed to this Framework Agreement.

5 Point 17 of the Framework Agreement provides:

In connection with the annual discharge governed by Article [276 EC], the European Parliament and the Commission agree that the Commission shall forward all information necessary for supervising the implementation of the budget for the year in question, which the chairperson of the parliamentary committee responsible for the discharge procedure pursuant to Annex VI of the Rules of Procedure of the European Parliament requests from it for that purpose.

If new aspects come to light concerning previous years for which discharge has already been given, the Commission shall forward all the necessary information on the matter with a view to arriving at a solution which is acceptable to both sides.

6 Point 29 provides that [a]ll specific measures are dealt with in the Annexes.

7 Annex 3 to the Framework Agreement concerns the forwarding of confidential information to the Parliament (hereinafter Annex 3). Points 1.1 to 1.5 of Annex 3 provide:

1.1. This Annex shall govern the forwarding to the European Parliament and the handling of confidential information from the Commission in connection with the exercise of parliamentary prerogatives concerning the legislative and budgetary procedures, the procedure for giving discharge and the exercise in general terms of the European Parliament's powers of scrutiny. The two institutions shall act in accordance with their mutual duties of sincere cooperation and in a spirit of complete and mutual trust as well as in the strictest conformity with the relevant Treaty provisions, in particular Articles 6 [EU] and 46 [EU] and [276 EC].

1.2. "Information" shall mean any written or oral information, whatever the medium and whoever the author may be.

1.3. The Commission shall ensure that the European Parliament is given access to information, in accordance with the provisions of this Annex, whenever it receives from one of the parliamentary bodies set out in point 1.4 below a request relating to the forwarding of confidential information.

1.4. In the context of this Annex, the following may request confidential information from the Commission: the President of the European Parliament, the chairperson of the parliamentary committees concerned, the Bureau and the Conference of Presidents.

1.5. Information on infringement procedures and procedures relating to competition, in so far as they are not covered by a final Commission decision on the date when the request from one of the parliamentary bodies is received, shall be excluded from this Annex.

8 The general rules, and the arrangements for access to and the handling of confidential information, are contained in points 2 and 3 respectively of Annex 3.

9 According to points 2.2 and 2.3 of Annex 3:

2.2. In the event of any doubt as to the confidential nature of an item of information, or where it is necessary to lay down the appropriate arrangements for it to be forwarded in accordance with one of the options set out in point 3.2 below, the chairperson of the appropriate parliamentary committee, accompanied, where necessary, by the rapporteur, shall consult the Member of the Commission with special responsibility for that area without delay.

In the event of a disagreement, the matter shall be referred to the Presidents of the two institutions so that they may resolve the dispute.

2.3. If, at the end of the procedure referred to in point 2.2 above, no agreement has been reached, the President of the European Parliament, in response to a reasoned request from the relevant parliamentary committee, shall call on the Commission to forward, within the appropriate deadline duly indicated, the confidential information in question, selecting the arrangements from among the options laid down in point 3 below. Before the expiry of that deadline, the Commission shall inform the European Parliament in writing of its final position, in respect of which the European Parliament reserves the right, if appropriate, to exercise its right to seek redress.

10 Points 3.2 and 3.3 of that Annex provide as follows:

3.2. Without prejudice to the provisions of point 2.3 above, access and the arrangements designed to preserve the confidentiality of the information shall be laid down by common accord between the Member of the Commission with special responsibility for the area involved and the parliamentary body concerned, duly represented by its chairperson, who shall select one of the following options:

- information intended for the chairperson of and the rapporteur for the relevant parliamentary committee;

- restricted access to information for all members of the relevant parliamentary committee in accordance with the appropriate arrangements, possibly with the documents being collected after they have been studied and a ban on the making of copies;

- discussion in the relevant parliamentary committee, meeting in camera, in accordance with arrangements which may vary by virtue of the degree of confidentiality involved and in accordance with the principles set out in Annex VII to the European Parliament's Rules of Procedure [as adopted by decision of the European Parliament of 15 February 1989];

- communication of documents from which all personal details have been expunged;

- in instances justified on absolutely exceptional grounds, information intended for the President of the European Parliament alone.

The information in question may not be published or forwarded to any other addressee.

3.3. In the event of non-compliance with these arrangements, the provisions relating to sanctions set out in Annex VII to the European Parliament's Rules of Procedure shall apply.

11 Moreover, the third paragraph of Article 197 EC provides that the Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.

Procedure and background to the dispute

12 By application lodged at the Registry of the Court of First Instance on 7 September 2000, Mrs Stauner and 21 other Members of the European Parliament brought an action under the fourth paragraph of Article 230 EC for the annulment of the Framework Agreement.

13 By separate document lodged at the Registry of the Court of First Instance on 22 September 2000, they also submitted an application under Article 242 EC for the suspension of the application of points 17 and 29 of the Framework Agreement and of Annex 3.

14 By order of 15 January 2001 in Case T-236/00 R Stauner and Others v Parliament and Commission [2001] ECR II-15, the President of the Court of First Instance dismissed that application for suspension as inadmissible and reserved the costs.

15 By letter of 9 February 2001, Mr N. Kinnock and Mrs M. Schreyer, Members of the Commission, forwarded, at the request of the Chairperson of the Parliament's Committee on Budgetary Control, the external audit reports relating to administrative difficulties encountered in the course of the renovation of the Berlaymont building in Brussels and reported in the press. The transmission of those reports took place under the conditions set out in point 3.2, first indent, of Annex 3, so that only the Chairperson of the Committee on Budgetary Control and the Rapporteur concerned, Mr F. Blak, had access to those documents.

16 By written question to the Commission on 19 February 2001, Mrs Rühle and Mrs Stauner drew attention to the conflict between the conduct of that institution and Annex VII to the Parliament's Rules of Procedure (OJ 1999 L 202, p. 1), which provides that all Members of the Committee on Budgetary Control are to have access to confidential documents. By written reply of 24 April 2001 the Commission stated that it did not share that interpretation.

17 By letter of 26 February 2001 addressed to Mrs N. Fontaine, President of the Parliament, the Chairperson of the Committee on Budgetary Control requested, under Article 180 of the Rules of Procedure of the Parliament, an explanation on the apparent conflict between point 3.2, first indent, of Annex 3 on the one hand and Annex VII to the Rules of Procedure of the Parliament, on the other. However the President of the Parliament did not bring the matter before the competent committee before the summer recess.

18 By letter of 9 March 2001, Mrs M. Schreyer sent to the Chairperson of the Committee on Budgetary Control, in reply to her request, a list of suspicious cases forwarded in 1999 to the European Fraud Prevention Office (EFPO) following checks by the Commission. That letter also stated that a report on the Liaison Committee with Non-governmental Organisations in respect of Development Assistance had already been sent to the Chairperson of the Committee on Budgetary Control by Mr P. Nielson, Member of the Commission. It was stated that those documents were made available only to the Chairperson of that committee and to the Rapporteur concerned, Mrs Rühle.

19 On 4 April 2001, the Parliament adopted a resolution containing the observations which form an integral part of the decision concerning discharge in respect of the implementation of the general budget of the European Union for the 1999 financial year, paragraph 1 of which states:

[The Parliament] regrets that, even after the conclusion of the Framework Agreement, the Commission has not forwarded certain information and documents requested by the discharge authority;

...

therefore calls, in the light of this experience, for the revision of the Framework Agreement, this process to be governed by the following principles:

(a) confirmation of the right of any Member of Parliament to demand and receive confidential information, too, where necessary from the Commission pursuant to Article 197 EC,

(b) unreserved application of the provisions of Annex VII to the Rules of Procedure on the consideration of confidential documents, which includes the right of any committee member to consider the confidential documents,

(c) forwarding of complete original documents without prior alterations or obliterated text.

20 By means of a written question put to the President of the Parliament on 31 May 2001, Mrs Stauner requested clarification as to the measures being taken to amend the Framework Agreement as requested by the Parliament. No answer to that question had been given by the date on which the present application for interim measures was lodged.

21 On 2 August 2001, Mrs Stauner and four other Members of Parliament, applicants in the main proceedings, submitted an application, under Articles 108 and 109 of the Rules of Procedure of the Court of First Instance, for suspension of the application of points 3.2, first indent, and 3.3 of Annex 3 and for the information contained in the documents that the Commission had sent to the Parliament on 9 February and 9 March 2001 to be sent to all members of the Committee on Budgetary Control.

22 Those five Members of the Parliament were among the applicants who submitted the application for interim measures dismissed by the order in Stauner and Others v Parliament and Commission, cited above. They are official members of the Committee on Budgetary Control.

23 The Commission and the Parliament submitted their observations on that new application on 14 and 27 August 2001 respectively.

Law

24 By virtue of the combined provisions of Articles 242 EC and 243 EC and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any other necessary interim measures.

25 In the order in Stauner and Others v Parliament and Commission, cited above, the President of the Court of First Instance, in examining the plea of inadmissibility based on the alleged inadmissibility of the main action, considered that the aim of the agreement is not to limit the right of Members of Parliament individually to table questions, but merely to enable the Parliament to exercise wider powers of scrutiny over the Commission's activities by obtaining from that institution confidential information, the communication of which had not previously been regulated (paragraph 48).

26 He then held as follows:

49 The fact that the Framework Agreement provides that certain information may be supplied only to the parliamentary bodies referred to in point 1.4 of Annex 3 thereto - namely the President of the European Parliament, the chairperson of the parliamentary committee concerned, the Bureau and the Conference of Presidents - does not deprive Members of the Parliament, acting individually, of their right to put questions to the Commission and receive from that institution replies involving, where necessary, the forwarding of confidential information, as was the case before the adoption of the Framework Agreement. In that respect, it should be noted that the Commission's discretion in deciding whether to communicate confidential information in its reply to a question put by a Member of the Parliament acting individually, pursuant to the third paragraph of Article 197 EC and in accordance with the relevant provisions of the Parliament's Rules of Procedure, is not governed, even indirectly, by the Framework Agreement.

50 On the other hand, where a request for confidential information comes from the Parliament, that is to say from one of the parliamentary bodies referred to in point 1.4 of Annex 3 to the Framework Agreement, the forwarding of that information by the Commission is henceforth governed by the provisions of that agreement.

51 It follows that, prima facie, the Framework Agreement, which is limited to governing relations between the Commission and the Parliament, has not altered the legal position of Members of Parliament, acting individually, as regards their right under the third paragraph of Article 197 EC, does not impair that right, which is guaranteed by that provision, and therefore has no legal effect vis-à-vis Members of the Parliament acting individually.

27 He concluded at paragraph 53 that in the absence of any reasonable grounds for considering that the application in the main proceedings might be admissible, the present application for interim measures must be declared inadmissible.

28 The present application is made under Articles 108 and 109 of the Rules of Procedure.

29 Under Article 108 of the Rules of Procedure:

On application by a party, the order may at any time be varied or cancelled on account of a change in circumstances.

30 Article 109 of the same Rules states:

Rejection of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts.

31 Having regard to the documents in the case, the President of the Court considers that he has all the information necessary in order to rule on the admissibility of this application for interim relief, without there being any need to hear oral argument from the parties.

Arguments of the parties

32 Referring to the order in Stauner and Others v Parliament and Commission, cited above, the Parliament submits that the application for suspension should be dismissed as the action on which it is founded is manifestly inadmissible.

33 The finding by the President of the Court of First Instance that, prima facie, the measure the annulment of which is sought has no legal effect vis-à-vis the applicants, has not changed in the slightest respect. The alleged changes in circumstances and new facts, within the meaning of Articles 108 and 109 of the Rules of Procedure, do not affect that finding in any way. Those new facts are merely the application of point 3.2, first indent, of Annex 3. In application of that point, the Members Stauner, Seppänen and Staes were not sent the confidential documents since they were neither chairperson of a committee nor a rapporteur.

34 According to the Parliament, the alleged new facts, which are merely the result of the straightforward application of the Framework Agreement and Annex 3 thereto, do not mean that the measure contested in the main proceedings produces more legal effects than it did on 15 January 2001.

35 As regards the other interim relief sought, namely an order for the documents sent to the Parliament on 9 February and 9 March 2001 to be communicated to all the members of the Committee on Budgetary Control - that is, not only the five applicants, but also the seven applicants in the main proceedings who were not involved in that new application and the 30 other members of that committee who brought no action before the Court of First Instance - pursuant to point 3.2, first indent, of Annex 3, the Parliament submits that Article 104 of the Rules of Procedure is not applicable. It points out, furthermore, that a long period had elapsed between the forwarding of those documents and the lodging of the present application.

36 The Commission submits, first, that the applications are manifestly inadmissible on the ground that the conditions for the application of Articles 108 and 109 of the Rules of Procedure have not been fulfilled. The alleged change in circumstances or new facts that arose after 15 January 2001 consisted in the forwarding of documents by the Commission, in two cases, in accordance with point 3.2, first indent, of Annex 3, to the Chairperson of the Committee on Budgetary Control and to its Rapporteur alone. However, the Commission fails to understand how those events constitute new facts within the meaning of Article 109 of the Rules of Procedure, since they merely constitute an application of the Framework Agreement, the operation of which has not been suspended. As regards the arrangement for implementing the Framework Agreement, it points out that points 2.2 and 2.3 of Annex 3 lay down a special mechanism for the regulation of disputes.

37 Secondly, it concludes, on the basis of the order in Stauner and Others v Parliament, cited above, that the present application must be dismissed as the action on which it is founded is manifestly inadmissible.

38 Thirdly, the Commission submits that the claim for certain documents to be forwarded to all members of the Committee on Budgetary Control conflicts with the Framework Agreement. Provisional inapplicability of point 3.2, first indent, of Annex 3 would not result in unlimited access to documents for all members of the committee concerned, since the other indents of point 3.2 remain applicable. Moreover, according to the Commission, access cannot be ordered for the benefit of the members of that committee who are parties neither to the interlocutory nor to the main proceedings.

39 The applicants submit that changes in circumstances and/or new facts, within the meaning of Articles 108 and 109 of the Rules of Procedure, have arisen since the order in Stauner and Others v Parliament and Commission, cited above. Those changes in circumstances and/or new facts, listed in paragraphs 15 to 21 above, require a new decision to be given by the Court of First Instance ruling in interlocutory proceedings.

40 According to the applicants, the application for interim measures is admissible inasmuch as the action in the main proceedings on which it is based is admissible.

41 The rules of conduct agreed between the institutions of the Union constitute, according to the applicants, acts adopted by the defendants within the meaning of Article 230 EC. The Framework Agreement is of direct and individual concern to the applicants in their capacity as Members of the Parliament, in particular because it affects their right to put questions and exercise a monitoring activity pursuant to the third paragraph of Article 197 EC.

42 Pursuant to Rule 186(c) of the Parliament's Rules of Procedure, the provisions of the Framework Agreement are applicable within the Parliament and consequently are binding on the applicants. By virtue of those provisions, the applicants are subject to specific obligations governing their conduct and liable to sanctions in the event of non-compliance with those obligations (point 3.3 of Annex 3).

43 Since the Framework Agreement is intended to have legal effect vis-à-vis third parties the conditions governing admissibility set out in Article 230 EC are satisfied. In that regard, the implementation of point 3.2, first indent, of Annex 3 directly and individually affects the applicants in their rights as Members of the Parliament and of the Committee on Budgetary Control, since Annex VII to the Parliament's Rules of Procedure guarantees access to confidential documents to all members of such a committee. However, according to the applicants, as a result of the Commission's practice such access is denied to the applicants, who do not hold the office of rapporteur.

44 The Commission's conduct also infringes the right to equal treatment between Members of the Parliament sitting on the same committee, where some but not others of those Members have access to sensitive documents.

45 Furthermore, the way in which the Commission is acting undermines the original right of every Member of the Parliament of access to confidential documents in accordance with Article 197(3) EC, a right which, according to the Opinion of Advocate General Léger in Case C-353/99 P Council v Hautala [2001] ECR I-0000, point 52 et seq.; also point 92), has the status of a fundamental right. The applicants are therefore individually and directly affected in their fundamental right of access to the documents.

Findings of the President of the Court

46 It must be borne in mind that by the order in Stauner and Others v Parliament and Commission, cited above, the application for suspension of the application of the Framework Agreement lodged by the applicants was dismissed on the ground that the latter failed to put forward reasonable grounds for considering that the application in the main proceedings might be admissible. No appeal was brought before the Court of Justice under Article 50(2) of the EC Statute of the Court of Justice against that order. As a result, save in the situations provided for by Articles 108 and 109 of the Rules of Procedure, the abovementioned orders can no longer be challenged.

47 The five applicants submit in substance that the changes in circumstance within the meaning of Article 108 of the Rules of Procedure and/or new facts within the meaning of Article 109 of those Rules, arose after the order in Stauner and Others v Parliament and Commission, cited above. It is apparent from the application that those alleged changes in circumstance and/or new facts consist primarily in the application of the Framework Agreement by the Commission. The way in which the Commission implemented the Framework Agreement is claimed to be detrimental to the five applicants in their capacity of official members of the Committee on Budgetary Control and to justify the adoption of the interim measures sought.

48 In that regard, it must be observed that the Commission's decisions to forward documents containing confidential information only to some Members of the Parliament, in the present case the Chairperson of the Committee on Budgetary Control and the Rapporteur concerned within that Committee, were made in accordance with the Framework Agreement after the signature, on 15 January 2001, of the order in Stauner and Others v Parliament and Commission, cited above. The implementation of the Framework Agreement therefore constitutes a new element as compared with the situation described in the first application for interim measures.

49 However, the application of the Framework Agreement cannot constitute a change in circumstances or new fact within the meaning of Articles 108 and 109 of the Rules of Procedure, since it does not constitute an event capable of changing the conclusion reached by President of the Court of First Instance in the order in Stauner and Others v Parliament and Commission, cited above, namely that, prima facie, the application in the main proceedings is inadmissible. The admissibility of an action must be judged by reference to the situation prevailing when the application is lodged. If at that time the conditions which must be satisfied to enable an action to be brought are not fulfilled, the action is inadmissible, unless the defect is remedied within the period prescribed for the institution of proceedings (Case 50/84 Bensider and Others v Commission [1984] ECR 3991, paragraph 8).

50 Moreover, it must be noted, first, that, as was held in the order in Stauner and Others v Parliament and Commission, cited above, the Framework Agreement is limited to governing relations between the Commission and the Parliament and does not alter the legal position of Members of the Parliament, acting individually, as regards their right under the third paragraph of Article 197 EC, does not impair that right, which is guaranteed by that provision, and therefore has no legal effect vis-à-vis Members of the Parliament acting individually. The mere fact that the Commission has, since 15 January 2001, decided to forward confidential information in compliance with provisions of the Framework Agreement does not in any way affect that finding. The mere implementation of the Framework Agreement cannot lead to the conclusion that it produces more legal effects vis-à-vis Members of the Parliament acting individually than it had when the first application for interim measures was lodged. In that context, it must be noted that the Framework Agreement provides, on the one hand, that only the parliamentary bodies mentioned in point 1.4 of Annex 3 may request confidential information from the Commission and, on the other hand, that access and the arrangements designed to preserve the confidentiality of the information may be determined by selection from a number of options specified in point 3.2 of that same annex.

51 Secondly, in so far as the Framework Agreement aims solely to govern relations between the Commission and the Parliament, it is for the latter institution to resolve the alleged conflict between point 3.2, first indent, of Annex 3 and Annex VII to the Rules of Procedure of the Parliament. Assuming that there is an actual conflict between the provisions cited above, as the applicants submit, it must be noted, first, that the legal effects of the Framework Agreement do not go beyond the internal organisation of the Parliament's work and, second, that the alleged conflict may be subject to review procedures laid down in its Rules of Procedure (orders of the Court of Justice in Case 78/85 Group of the European Right v Parliament [1986] ECR 1753, paragraph 11 and Case C-68/90 Blot and Front national v Parliament [1990] ECR I-2101, paragraph 12; judgment of the Court of Justice in Case C-314/91 Weber v Parliament [1993] ECR I-1093, paragraph 10).

52 It follows that the conclusion by the President of the Court of First Instance in the order in Stauner and Others v Parliament, cited above, that the applicants had failed to put forward reasonable grounds for considering that the application in the main proceedings might be admissible must be upheld.

53 The present findings are sufficient to justify the prima facia conclusion that the application for annulment is inadmissible and, as a result, that the present application for interim measures is also inadmissible in its entirety (order of the President of the Court of Justice in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraphs 2 and 26; order of the President of the Court of First Instance in Case T-202/00 R Costacurta v Commission [2000] ECR-SC I-A-205 and II-931, paragraphs 9, 29 and 30).

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.