Cases T-219/09 and T-326/09

Gabriele Albertini and Others and

Brendan Donnelly

v

European Parliament

(Actions for annulment – Additional pension scheme for Members of the European Parliament – Amendment of the additional pension scheme – Measure of general scope – No individual concern – Inadmissibility)

Summary of the Order

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Not possible to base an action brought before the entry into force of the Lisbon Treaty on the fourth paragraph of Article 263 TFEU

(Art. 230, fourth and fifth paras EC; Art. 263, fourth para., TFEU)

2.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision of the European Parliament amending the rules on the additional pension scheme for Members – Action brought by a Member – Not individually affected – Inadmissibility

(Art. 230, fourth para., EC)

3.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Interpretation, contrary to law, of the requirement of being individually concerned – Not permissible

(Art. 230, fourth para., EC)

1.      The question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted, and that the conditions for admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application. Accordingly, the admissibility of an action brought before the date of entry into force of the Treaty on the Functioning of the European Union, 1 December 2009, must be assessed on the basis of Article 230 EC and not on the basis of Article 263 TFEU.

(see para. 39)

2.      For it to be possible for a measure of general application to be of individual concern to a natural or legal person, the latter must be affected by the measure at issue by virtue of certain attributes which are peculiar to that person or circumstances must exist in which that person is differentiated from all other persons.

In that connection, the fact that the decision of the Bureau of the European Parliament of 1 April 2009 amending the Rules governing the additional (voluntary) pension scheme contained in Annex VIII to the Rules governing the payment of expenses and allowances to Members of the European Parliament affects the rights which the applicants will, in future, be able to assert by virtue of their membership of the additional pension fund is not sufficient to differentiate them, for the purposes of the fourth paragraph of Article 230 EC, from any other operator, since they are in an objectively determined situation comparable with that of any other Member of the European Parliament who belongs to that pension fund.

It is true that the fact that a Community institution is required, by specific provisions, to take account of the consequences for the situation of certain individuals of the act they are intending to adopt may be such as to distinguish them individually. However, at the time when the decision in question was adopted, the Bureau was not required by any provision of Community law to take account of the applicants’ particular situation.

(see paras 45-46, 48-49)

3.      According to the system of judicial review of legality established by the Treaty, a natural or legal person can bring an action challenging a regulation only if that person is concerned both directly and individually. Although this last condition must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts.

Similarly, application of the principles of the sound administration of justice and of procedural economy cannot justify a declaration as to the admissibility of an action which does not satisfy the conditions of admissibility laid down in the fourth paragraph of Article 230 EC, since that would go beyond the jurisdiction conferred by the Treaty on the EU courts. Indeed, none of those principles may serve as the basis for a derogation from the jurisdiction conferred on those courts by the Treaty.

(see paras 52, 54)

ORDER OF THE GENERAL COURT (Fourth Chamber)

15 December 2010 (*)

(Actions for annulment – Additional pension scheme for Members of the European Parliament – Amendment of the additional pension scheme – Measure of general scope – No individual concern – Inadmissibility)

In Cases T‑219/09 and T‑326/09,

Gabriele Albertini, residing in Milan (Italy), and the other 62 Members or former Members of the European Parliament whose names appear in the annex, represented by S. Orlandi, A. Coolen, J.‑N. Louis and E. Marchal, lawyers,

applicants in Case T‑219/09,

and

Brendan Donnelly, residing in London (United Kingdom), represented by S. Orlandi, A. Coolen, J.‑N. Louis and E. Marchal, lawyers,

applicant in Case T‑326/09,

v

European Parliament, represented initially by H. Krück, A. Pospíšilová Padowska and G. Corstens, and subsequently by N. Lorenz, A. Pospíšilová Padowska and G. Corstens, acting as Agents,

defendant,

APPLICATION for annulment of the decisions of the European Parliament of 9 March and 1 April 2009 amending the Rules governing the additional (voluntary) pension scheme contained in Annex VIII to the Rules governing the payment of expenses and allowances to Members of the European Parliament,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,

Registrar: E. Coulon,

makes the following

Order

 Legal context

1        The Bureau of the European Parliament (‘the Bureau’) is a body of the European Parliament. Under Rule 22(2) of the Rules of Procedure of the European Parliament, entitled ‘Duties of the Bureau’, in the version applicable to the facts of this case, the Bureau is to take, inter alia, financial, organisational and administrative decisions on matters concerning Members.

2        On that basis, the Bureau adopted the Rules governing the payment of expenses and allowances to Members of the European Parliament (‘the PEAM Rules’).

3        On 12 June 1990, the Bureau adopted the Rules governing the additional (voluntary) pension scheme for Members of the European Parliament (‘the Rules of 12 June 1990’), which are contained in Annex VII to the PEAM Rules.

4        The Rules of 12 June 1990, in the version applicable in March 2009, provided, inter alia:

‘Article 1

1.      Pending the adoption of a single Statute for Members, and irrespective of the pension rights referred to in Annexes I and II, after ceasing to hold office, Members of the European Parliament who have paid voluntary contributions to the pension scheme for at least two years shall be entitled to a pension for life payable from the first day of the calendar month following the date when they reach the age of 60 years.

…

Article 2

1.      The amount of the pension shall be 3.5% of 40% of the basic salary of a Judge at the Court of Justice of the European Communities for each full year in office plus one-twelfth of that sum for each complete month.

2.      The maximum pension shall be 70% (and the minimum pension 10.5%) of 40% of the basic salary of a Judge at the Court of Justice of the European Communities.

3.      The pension shall be calculated and paid in euros.

Article 3

Former Members or Members leaving office before reaching the age of 60 years may request that their pension be paid immediately, or at any time between leaving office and the age of 60, provided that they are not less than 50 years of age. In that case, the pension shall be the amount calculated on the basis of Article 2(1) multiplied by a coefficient determined by reference to the Member’s age when they start to draw their pension, as shown in the following table: …

Article 4 (payment of part of the pension as a lump sum)

1.      A maximum of 25% of the pension rights calculated on the basis of Article 2(1) may be paid as a lump sum to members or former members of the voluntary pension scheme.

2.      This option must be exercised prior to the date on which the payments begin and shall be irreversible.

3.      Subject to the ceiling referred to in paragraph 1 above, a lump sum payment shall not affect or reduce the pension rights of a Member’s surviving spouse or dependent children.

4.      The lump sum shall be calculated on the basis of the age of the Member when the pension takes effect, using the following table: …

5.      The lump sum shall be calculated and paid in euros. Payment shall be made prior to the first pension payment.

…’

5        The additional pension fund was set up through the formation, by the Quaestors of the European Parliament, of the ‘Fonds de pension – députés au Parlement européen’ ASBL (non-profit-making association) (‘the ASBL’), which in turn set up a société d’investissement à capital variable (open-ended investment company) (SICAV), under Luxembourg law, entitled the ‘Fonds de pension – Députés au Parlement européen, Société d’Investissement à Capital Variable’, which was made responsible for the technical management of the investments.

6        The Statute for Members was adopted by Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1) and entered into force on 14 July 2009, the first day of the seventh parliamentary term.

7        The Statute for Members established a final pension scheme for Members of the European Parliament under which Members are entitled, on a non-contributory basis, to an old-age pension at the age of 63.

8        The Statute for Members lays down transitional measures applicable to the additional pension scheme. In that connection, Article 27 provides:

‘1.      The voluntary pension fund set up by Parliament shall be maintained after the entry into force of this Statute for Members or former Members who have already acquired rights or future entitlements in that fund.

2.      Acquired rights and future entitlements shall be maintained in full. Parliament may lay down criteria and conditions governing the acquisition of new rights or entitlements.

3.      Members who receive the salary [established by the Statute] may not acquire any new rights or future entitlements in the voluntary pension fund.

4.      The fund shall not be open to Members who are first elected to Parliament after this Statute becomes applicable.

…’

9        By decisions of 19 May and 9 July 2008, the Bureau adopted the implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1) (‘the implementing measures’). Pursuant to Article 73 thereof, the implementing measures entered into force on the date of entry into force of the Statute for Members, that is to say on 14 July 2009.

10      Article 74 of the implementing measures provides that, subject to the transitional provisions laid down in Title IV, the PEAM Rules are to cease to be valid on the date on which the Statute for Members enters into force.

11      Article 76 of the implementing measures, entitled ‘Additional pension’, provides:

‘1.      The (voluntary) additional old-age pension paid pursuant to Annex VII to the PEAM Rules shall continue to be paid pursuant to that annex to those persons who were in receipt of that pension prior to the date of entry into force of the Statute.

2.      The pension rights acquired prior to the date of entry into force of the Statute pursuant to the aforementioned Annex VII shall be maintained. They shall be honoured in accordance with the conditions laid down by that annex.

3.      Members elected in 2009:

(a)      who were Members during a previous parliamentary term, and

(b)      who have already acquired or were in the process of acquiring rights in the additional pension fund, and

(c)      in respect of whom the Member State of election has adopted a derogation pursuant to Article 29 of the Statute, or who, pursuant to Article 25 of the Statute, have themselves opted for a national scheme, and

(d)      who are not entitled to a national or European pension deriving from the exercise of their mandate as Members of the European Parliament

may continue to acquire new rights after the date of entry into force of the Statute, pursuant to the aforementioned Annex VII.

4.      Members must pay their contributions to the additional pension fund from their own income.’

 Facts

12      On 9 March 2009, following a finding that the financial position of the additional pension fund had deteriorated, the Bureau decided (‘the Decision of 9 March 2009’):

–        ‘to set up a working group … to meet representatives of the board of management of the pension fund in order to assess the situation;

–        … with immediate effect, that, as a protective and precautionary measure, the possibility of applying Articles 3 and 4 of Annex VII to the PEAM Rules [was] suspended;

–        … that those precautionary measures will be reviewed by the Bureau at a subsequent meeting in the light of the facts established and the results of the working group’s contacts and findings’.

13      On 1 April 2009, the Bureau decided to amend the Rules of 12 June 1990 (‘the Decision of 1 April 2009’). The amendments include, inter alia, the following measures:

–        increasing the retirement age from 60 to 63 years with effect from the first day of the seventh parliamentary term – that is to say, from 14 July 2009 (Article 1 of the Rules of 12 June 1990);

–        repealing the option of paying part of the pension rights as a lump sum with immediate effect (Article 3 of the Rules of 12 June 1990);

–        repealing the option of taking early retirement from the age of 50 years with immediate effect (Article 4 of the Rules of 12 June 1990).

 Procedure and forms of order sought

14      By application lodged at the Court Registry on 19 May 2009, the action in Case T‑219/09 was brought by 65 Members of the European Parliament who belong to the additional pension scheme, and by the ASBL.

15      The action in Case T‑326/09 was brought by application lodged at the Court Registry on 10 August 2009.

16      By separate documents lodged at the Court Registry on 11 September and 16 November 2009 respectively, the Parliament raised pleas of inadmissibility in both cases, pursuant to Article 114(1) of the Rules of Procedure.

17      The applicants in Case T‑219/09 submitted their observations on the plea of inadmissibility on 30 October 2009. On that occasion, the applicants Balfe and Colom I Naval and the ASBL requested that formal note be taken of their withdrawal from the proceedings. Furthermore, the applicants in Case T‑219/09 requested that that case be joined to Case T‑326/09 and to Case T‑439/09 John Robert Purvis v Parliament.

18      The Parliament submitted its observations on the partial withdrawal from the proceedings in Case T‑219/09, and on the application for joinder, on 19 November 2009. The applicants in Cases T‑326/09 and T‑439/09 did not submit observations on the application for joinder.

19      By order of the President of the Second Chamber of the General Court of 18 December 2009 in Case T‑219/09 Balfe and Others v Parliament [2009] ECR II‑00000, Richard Balfe, Joan Colom I Naval and the ASBL were removed from the list of applicants in that case.

20      The applicant in Case T‑326/09 submitted observations on the plea of inadmissibility on 7 January 2010.

21      By orders of 18 March 2010, the President of the Second Chamber of the General Court, having heard the parties, ordered that the proceedings in the present cases be stayed pending the decision on admissibility in Case T‑532/08 Norilsk Nickel Harjavalta and Umicore v Commission and Case T‑539/08 Etimine and Etiproducts v Commission.

22      That decision having been made by orders of 7 September 2010 in Case T‑532/08 Norilsk Nickel Harjavalta and Umicore v Commission [2010] ECR II‑3959 and Case T‑539/08 Etimine and Etiproducts v Commission [2010] ECR II‑4017, the parties were invited to comment on what inferences were to be drawn from it for the purposes of the present cases. The Parliament and the applicants submitted their observations on 8 and 10 November 2010 respectively.

23      The applicants claim that the Court should:

–        annul the decisions of the Parliament’s Bureau of 9 March and 1 April 2009;

–        order the Parliament to pay the costs.

24      In the plea of inadmissibility, the Parliament claims that the Court should:

–        dismiss the action as inadmissible;

–        order the applicants to pay the costs.

25      In their observations on the plea of inadmissibility, the applicants claim that the Court should:

–        in Case T‑219/09, take formal note of the withdrawal from the proceedings of Richard Balfe and Joan Colom I Naval and of the ASBL;

–        in both cases, uphold the claims set out in the applications initiating the proceedings.

 Law

26      With regard to the application for joinder made by the applicants in Case T‑219/09, the Court considers it appropriate to join that case to Case T‑326/09 for the purposes of this order, since the two cases raise the same questions of admissibility.

27      Under Article 114(1) of the Rules of Procedure, the Court may, on the application of a party, rule on admissibility without considering the substance of the case. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that it has sufficient information from the documents in the case, and therefore takes the view that it is not necessary to hear oral argument from the parties.

 The subject-matter of the actions

28      With regard to the application made by the applicants in Case T‑219/09 that formal note be taken of the withdrawal from the proceedings of Richard Balfe and Joan Colom I Naval and of the ASBL, the Court considers that that application was granted by the adoption of the order in Balfe and Others v Parliament (cited above in paragraph 19), with the result that it is now redundant.

29      Furthermore, with regard to the subject-matter of the applications for annulment, as the Parliament has submitted without contradiction by the applicants, the Decision of 9 March 2009 was merely provisional, in that it suspended the possibility of applying Articles 3 and 4 of the Rules of 12 June 1990 but did not amend them as to their substance. The Court therefore considers that, since the Decision of 1 April 2009 subsequently repealed those articles with immediate effect, the Decision of 9 March 2009 has become inoperative because it is now redundant, with the result that it cannot form the subject-matter of an application for annulment.

30      The applications must therefore be dismissed as inadmissible in so far as they are directed against the Decision of 9 March 2009. Consequently, the phrase ‘contested measure’ will henceforth refer only to the Decision of 1 April 2009.

 The plea of inadmissibility

31      The Parliament has raised three pleas of inadmissibility. In Case T‑219/09, it claimed that the ASBL has no interest in bringing proceedings and that the applicants Richard Balfe and Joan Colom I Naval are not concerned by the Decisions of 9 March and 1 April 2009. Furthermore, in both cases, it argues that the actions are inadmissible because the applicants are not individually concerned.

32      Following the withdrawal from the proceedings of the applicants Richard Balfe, Joan Colom I Naval and the ASBL, it is necessary to examine only the third plea of inadmissibility, alleging that the applicants are not individually concerned.

 Arguments of the parties

33      In essence, the Parliament submits that the Decision of 1 April 2009 is legislative in nature and that the applicants are not individually concerned by it.

34      The Parliament contends that the applicants are not addressees of the Decision of 1 April 2009. Consequently, in order for their actions to be capable of being declared admissible, they must of necessity show that that measure is of direct and individual concern to them, those two conditions being cumulative. However, the Parliament considers that the applicants cannot be regarded as being individually concerned by the Decision of 1 April 2009.

35      The applicants submit that, notwithstanding the legislative nature of the Decisions of 9 March and 1 April 2009, the latter are of direct and individual concern to them because they were sufficiently identifiable once the decisions were adopted. In addition, the applicants point out that it is clear from the Secretary-General’s note to the members of the Bureau of 1 April 2009 that the Bureau adopted those decisions taking into account their particular situation. It did therefore have in mind specific addressees distinguished individually by reference to their particular situation in terms of acquired rights and future entitlements to the additional pension.

36      The applicants take the view that it is no defence to argue that they will have the opportunity to challenge the future measures implementing the Rules of 12 June 1990, as amended by the Decision of 1 April 2009, that will be addressed to them.

37      In this connection, they rely, first, on the principle of effective access to the Community Courts. In their view, any future implementing measures adopted by the Parliament for the purpose of rejecting applications to receive the additional pension, for example because an applicant has not yet reached the age of 63 years should be regarded as being merely confirmatory of the Decisions of 9 March and 1 April 2009. On the one hand, it is settled case-law that an action for annulment may not be brought against a confirmatory measure which merely reproduces the provisions of an earlier measure that has become final, or which simply states the logical consequence of such a measure without introducing any new elements. On the other hand, if the decisions implementing the Decisions of 9 March and 1 April 2009 were not to be regarded as confirmatory, the case-law would indicate that, in the absence of a right of action against those decisions, a plea as to their inadmissibility raised in the course of an action for the annulment of the implementing decisions would also be inadmissible. Consequently, if the plea of inadmissibility were upheld, the applicants might have no practical and effective means of asserting their rights before the Community Courts.

38      Secondly, the applicants rely on the principles of the sound administration of justice and of procedural economy and fairness. In their view, it would be contrary to the principles of the sound administration of justice and of procedural economy to require all Members to bring annulment proceedings, each for his own purpose, against each individual decision adopted by the Parliament pursuant to the Decisions of 9 March and 1 April 2009. Furthermore, imposing such a burden on the applicants would also constitute an infringement of the principle of legal certainty and the principle that proceedings must be disposed of within a reasonable time. Finally, declaring the present actions inadmissible would be contrary to the principle of procedural fairness inasmuch as the Parliament would thus be allowed not to have to fulfil the Bureau’s undertaking of 17 June 2009 to the effect that the future judgment in these cases will be applied to all members of the additional pension fund.

 Findings of the Court

39      As a preliminary point, with regard to the question whether the admissibility of the present action should be examined in the light of Article 230 EC or in the light of Article 263 TFEU, it must be pointed out that the question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted, and that the conditions for admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application. Accordingly, the admissibility of an action brought before the date of entry into force of the FEU Treaty, 1 December 2009, must be assessed on the basis of Article 230 EC (Norilsk Nickel Harjavalta and Umicore v Commission and Etimine and Etiproducts v Commission, paragraphs 70 and 72 and the case-law cited).

40      In the present case, since the actions were brought on 19 May and 10 August 2009 respectively, their admissibility must therefore be examined on the basis of Article 230 EC.

41      Under the fourth paragraph of Article 230 EC, any natural or legal person may institute proceedings against a decision addressed to that person 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 the former.

42      In the present case, it is not disputed between the parties that, although the contested measure is called a ‘decision’, it is of general application and, therefore, legislative in nature, since it applies to all Members of the European Parliament who are or may become members of the voluntary pension fund. The Court concurs with that view and points out in this connection that the fact that it is possible to determine, more or less precisely, the number or even identity of the individuals to whom a measure applies, at a given moment, is not sufficient to call into question the legislative nature of the act, as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose (see, by analogy, Case C‑309/89 Codorniu v Council [1994] ECR I‑1853, paragraph 18). Accordingly, even if it is accepted that it is possible to determine the number and identity of the Members affected by the contested measure once that measure is adopted, that does not prevent that measure from being classified as a general measure. As the Parliament rightly points out, the contested measure affects the applicants only by virtue of their membership of the additional pension fund, an objective legal situation defined by the purpose of the measure, which is to amend the Rules of 12 June 1990.

43      However, the fact that the contested measure is of general application does not prevent it from being of direct and individual concern to certain natural or legal persons within the meaning of the fourth paragraph of Article 230 EC (see, inter alia, Case C‑358/89 Extramet Industrie v Council [1991] ECR I‑2501, paragraph 13; Codorniu v Council, cited above in paragraph 42, paragraph 19; Case C‑451/98 Antillean Rice Mills v Council [2001] ECR I‑8949, paragraph 46; Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 58; and Case T‑43/98 Emesa Sugar v Council [2001] ECR II‑3519, paragraph 47).

44      In the present case, it must be held that the contested measure is of direct concern to the applicants since it leaves no discretion to the administrative body within the Parliament responsible for its application (see, by analogy, Emesa Sugar v Council, cited above in paragraph 43, paragraph 48).

45      As regards the question whether the contested measure is of individual concern to the applicants, it must be borne in mind that, for it to be possible for a measure of general application to be of individual concern to a natural or legal person, the latter must be affected by the measure at issue by virtue of certain attributes which are peculiar to that person or circumstances must exist in which that person is differentiated from all other persons (Case 25/62 Plaumann v Commission [1963] ECR 107; Case T‑122/96 Federolio v Commission [1997] ECR II‑1559, paragraph 59; and Case T‑120/98 Alce v Commission [1999] ECR II‑1395, paragraph 19).

46      In that connection, the fact that the contested measure affects the rights which the applicants will, in future, be able to assert by virtue of their membership of the additional pension fund is not sufficient to differentiate them, for the purposes of the fourth paragraph of Article 230 EC, from any other operator, since they are in an objectively determined situation comparable with that of any other Member of the European Parliament who belongs to that pension fund (see, by analogy, Federolio v Commission, cited above in paragraph 45, paragraph 67, and Emesa Sugar v Council, cited above in paragraph 43, paragraph 50). That being so, the applicants have not adduced evidence to show that they suffered exceptional damage such as to differentiate them from any other Member of the European Parliament who belongs to the additional pension fund.

47      The applicants none the less submit that the Bureau took account of their particular situation before adopting the contested measure.

48      It should be borne in mind in this regard that the fact that a Community institution is required, by specific provisions, to take account of the consequences for the situation of certain individuals of the act they are intending to adopt may be such as to distinguish them individually (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 28 to 31, and Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477, paragraphs 11 to 13).

49      The fact remains, however, that, at the time when the contested measure was adopted, the Bureau was not required by any provision of Community law to take account of the applicants’ particular situation. Indeed, the passages from the contested measure which the applicants cite in support of that argument specifically do not show that the Bureau took account of the particular situation of even one of the applicants, but rather refer to the Members affected by the decision only in very general terms such as ‘the small number of Members [who] will be able … to continue to contribute to the fund in order to acquire new rights’, ‘the Members who have contributed to the voluntary pension fund’ or even ‘the Members concerned’.

50      This argument advanced by the applicants must therefore be rejected.

51      It follows from the foregoing that the contested measure is not of individual concern to the applicants within the meaning of the fourth paragraph of Article 230 EC.

52      That finding cannot be called into question by the other arguments put forward by the applicants. First, with regard to the principle of effective access to the Community Courts, it is sufficient to point out, as the Parliament has rightly indicated, that, according to the system of judicial review of legality established by the Treaty, a natural or legal person can bring an action challenging a regulation only if that person is concerned both directly and individually. Although this last condition must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually (see, for example, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraph 14; Extramet Industrie v Council, cited above in paragraph 43, paragraph 13; and Codorniu v Council, cited above in paragraph 42, paragraph 19), such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 44).

53      In the present case, therefore, even if any future actions brought by the applicants against individual decisions rejecting applications to receive the additional pension from the age of 60 years on the basis of the contested measure are to be regarded as inadmissible, this cannot result in the present actions being declared admissible, contrary to the fourth paragraph of Article 230 EC.

54      Secondly, by the same token, in accordance with the principles established in the settled case-law referred to in paragraph 52 above, application of the principles of the sound administration of justice and of procedural economy relied upon by the applicants cannot justify a declaration as to the admissibility of an action which does not satisfy the conditions of admissibility laid down in the fourth paragraph of Article 230 EC, since that would go beyond the jurisdiction conferred by the Treaty on the EU courts. Indeed, none of those principles may serve as the basis for a derogation from the jurisdiction conferred on those courts by the Treaty.

55      Thirdly, with regard to the principle of legal certainty and the principle that proceedings must be disposed of within a reasonable time, the applicants confine themselves to the submission that the fact that they must each bring, for their own purposes, annulment proceedings against future measures implementing the Decision of 1 April 2009 would be a source of uncertainty for them. It is sufficient to point out in this connection that uncertainty as to the outcome of a legal action cannot automatically be treated as an infringement of the principle of legal certainty. Similarly, the arguments advanced by the applicants do not show how the principle that proceedings must be disposed of within a reasonable time could be adversely affected by the fact that they will have to challenge the measures implementing the Decision of 1 April 2009 rather than that decision directly. It is only logical that the reasonableness of the length of proceedings cannot be assessed until those proceedings have been concluded.

56      Fourthly and finally, with regard to the ‘principle of procedural fairness’ relied on by the applicants, assuming, as the applicants do, that the Decision of the Bureau of 17 June 2009, to the effect that the future judgment in Case T‑219/09 will be applied to all members of the optional pension fund, demonstrates that it is the Parliament’s wish that the questions of substance be decided in the course of these proceedings, such a wish on the part of the defendant is not binding on the Court in its assessment of the admissibility of these actions. It must be borne in mind in this regard that the conditions governing the admissibility of actions as laid down in Article 230 EC are a matter of public policy (Case C‑313/90 CIFRS and Others v Commission [1993] ECR I‑1125, paragraphs 19 to 23; Case T‑239/94 EISA v Commission [1997] ECR II‑1839, paragraphs 26 and 27; and order in Case T‑263/97 GAL Penisola Sorrentina v Commission [2000] ECR II‑2041, paragraph 37) and are not therefore at the discretion of the parties.

57      The actions must therefore be dismissed as inadmissible.

 Costs

58      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, and the Parliament has applied for costs, they must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      Cases T‑219/09 and T‑326/09 are joined for the purposes of the order.

2.      The actions are dismissed as inadmissible.

3.      Ms Gabriele Albertini, the other 62 applicants listed in the annex and Mr Brendan Donnelly shall bear their own costs and pay those incurred by the European Parliament.

Luxembourg, 15 December 2010.

E. Coulon

I. Pelikánová

Registrar

President

ANNEX

Javier Areitio Toledo, residing in Madrid (Spain),

Robert Atkins, residing in Garstang (United Kingdom),

Angelika Beer, residing in Großkummerfeld (Germany),

Georges Berthu, residing in Longré (France),

Guy Bono, residing in Saint-Martin-de-Crau (France),

Herbert Bosch, residing in Bregence (Austria),

David Bowe, residing in Leeds (United Kingdom),

Marie-Arlette Carlotti, residing in Marseilles (France),

Ozan Ceyhun, residing in Rüsselsheim (Germany),

Giles Bryan Chichester, residing in Ottery St Mary (United Kingdom),

Brigitte Douay, residing in Paris (France),

Avril Doyle, residing in Wexford (Ireland),

Michl Ebner, residing in Bozen (Italy),

Juan Manuel Fabra Valles, residing in Madrid (Spain),

Elisa Maria Ferreira, residing in Oporto (Portugal),

James Glyn Ford, residing in Newnham on Severn (United Kingdom),

Riccardo Garosci, residing in Milan (Italy),

Bruno Gollnisch, residing in Limonest (France),

Ana Maria Rosa Martins Gomes, residing in Colares-Sintra (Portugal),

Vasco Graça Moura, residing in Benfica do Ribatejo (Portugal),

Françoise Grossetête, residing in Saint-Étienne (France),

Catherine Guy-Quint, residing in Cournon d’Auvergne (France),

Roger Helmer, residing in Lutterworth (United Kingdom),

William Richard Inglewood, residing in Penrith (United Kingdom),

Caroline Jackson, residing in Abingdon (United Kingdom),

Milos Koterec, residing in Bratislava (Slovakia),

Urszula Krupa, residing in Lodz (Poland),

Stefan Kuc, residing in Warsaw (Poland),

Zbigniew Kuźmiuk, residing in Radom (Poland),

Carl Lang, residing in Boulogne-Billancourt (France),

Henrik Lax, residing in Helsinki (Finland),

Patrick Louis, residing in Lyon (France),

Minerva-Welpomen Malliori, residing in Athens (Greece),

Sergio Marques, residing in Funchal (Portugal),

Graham Christopher Spencer Mather, residing in London (United Kingdom),

Véronique Mathieu, residing in Val d’Ajol (France),

Marianne Mikko, residing in Tallinn (Estonia),

William Miller, residing in Glasgow (United Kingdom),

Elizabeth Montfort, residing in Riom (France),

Ashley Mote, residing in Binsted (United Kingdom),

Christine Margaret Oddy, residing in Coventry (United Kingdom),

Reino Paasilinna, residing in Helsinki (Finland),

Bogdan Pęk, residing in Krakow (Poland),

José Javier Pomés Ruiz, residing in Pamplona (Spain),

John Robert Purvis, residing in Fife (United Kingdom),

Luis Queiro, residing in Lisbon (Portugal),

José Ribeiro E. Castro, residing in Lisbon (Portugal),

Pierre Schapira, residing in Paris (France),

Pál Schmitt, residing in Budapest (Hungary),

José Albino Silva Peneda, residing in Maia (Portugal),

Grażyna Staniszewska, residing in Bielsko-Biala (Poland),

Robert Sturdy, residing in Wetherby (United Kingdom),

Margie Sudre, residing in La Possession (France),

Robin Teverson, residing in Tregony (United Kingdom),

Nicole Thomas-Mauro, residing in Épernay (France),

Gary Titley, residing in Bolton (United Kingdom),

Witold Tomczak, residing in Kepno (Poland),

Maartje van Putten, residing in Amsterdam (Netherlands),

Vincenzo Viola, residing in Palermo (Italy),

Mark Watts, residing in Ashford (United Kingdom),

Thomas Wise, residing in Linslade (United Kingdom),

Bernard Wojciechowski, residing in Warsaw (Poland).

---

* Language of the case: French.