Joined Cases C-512/07 P(R) and C-15/08 P(R)

Achille Occhetto

and

European Parliament

v

Beniamino Donnici

‛Appeal — Application for interim measures — Suspension of operation of a measure — Members of the European Parliament — Verification of credentials — Declaration of election of a member as a result of the withdrawal of candidates on the same list — Verification of the validity of the withdrawal — Decision of the European Parliament declaring invalid the mandate of a candidate declared to be a member’

Order of the President of the Court, 13 January 2009   I ‐ 6

Summary of the Order

1. Appeals — Grounds — Error of law committed by the Judge hearing applications for interim measures — Act concerning the election of members of the European Parliament

   (Art. 225 EC; Act concerning the election of the representatives of the Assembly by direct universal suffrage, Art. 12; Statute of the Court of Justice, Art. 57, second para.; Rules of Procedure of the European Parliament, Art. 3(3))

2. Appeals — Grounds — Error of law committed by the Judge hearing applications for interim measures — Act concerning the election of members of the European Parliament

   (Art. 225 EC; Act concerning the election of the representatives of the Assembly by direct universal suffrage, Art. 6; Statute of the Court of Justice, Art. 57, para 2; Rules of Procedure of the European Parliament, Arts 3(5) and 4(3) and (9))

3. Appeals — Grounds — Error of law committed by the Judge hearing applications for interim measures — Act concerning the election of members of the European Parliament

   (Art. 225 EC; Act concerning the election of the representatives of the Assembly by direct universal suffrage, Art. 12; Statute of the Court of Justice, Art. 57, second para.)

4. Applications for interim measures — Suspension of operation of a measure — Suspension of operation of a measure of the European Parliament invalidating the mandate of one of its members for lack of credentials

   (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

5. Applications for interim measures — Suspension of operation of a measure — Suspension of operation of a measure of the European Parliament invalidating the mandate of one of its members for lack of credentials

   (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

1.  The Judge hearing applications for interim measures does not commit a manifest error of law as regards the scope of the powers available to the European Parliament under Article 12 of the Act of 1976 concerning the election of the representatives of the Assembly by direct universal suffrage, as amended and renumbered by Decision 2002/772, by interpreting the expression ‘take note’ which appears in that article as indicating the complete lack of discretion on the part of the Parliament in relation to results declared officially by the Member States.

   That article expressly provides that the Parliament must, first, ‘take note’ of the results declared officially by the Member States and, secondly, may rule on any disputes which may arise only ‘on the basis of the provisions of this Act’, and that is to be done ‘to the exclusion of the national provisions to which the Act refers’. It follows that the text of Article 12 appears at first sight to support a restrictive interpretation. In addition, with regard to verification of the credentials of members of the Parliament, Article 12 of the 1976 Act and Rule 3(3) of the Rules of Procedure of the European Parliament confer upon the Parliament power to rule on the validity of the mandate of each of its newly elected Members together with any dispute which may arise on the basis of the provisions of the 1976 Act, but ‘other than those arising out of the national provisions to which this Act refers’ (in the former case) and ‘except those [disputes] based on national electoral laws’ (in the latter case). Those exceptions are also clear indications of the fact that the Parliament is not generally competent to rule on the legality of national electoral procedures from the viewpoint of Community law.

   (see paras 30-32, 35)

2.  An interim order is not vitiated by a manifest error of law as regards the interpretation of Article 6 of the Act of 1976 concerning the election of the representatives of the Assembly by direct universal suffrage, as amended and renumbered by Decision 2002/772, when it concludes that that article covers only members of the European Parliament.

   In that regard, the wording of Article 6 expressly refers to ‘members of the European Parliament’ and to their right to vote which cannot, by nature, be associated with the candidate status officially declared in the post-electoral list. While it is true that, as a general rule, the interpretation of a provision of Community law cannot consist in strict respect for its wording with no regard to its context and purpose, it none the less remains the case that that article cannot on its own constitute a general power of the Parliament to assess the legality of the electoral procedures of the Member States in the light of all of the principles on which that article is allegedly founded and, in particular, those referred to in Article 3 of the First Additional Protocol to the European Convention on Human Rights.

   In addition, pursuant to the principle of the hierarchy of norms, a provision of the Rules of Procedure of the European Parliament such as those provisions set out in Articles 3(5) and 4(3) and (9) cannot permit the provisions of the 1976 Act to be derogated from. The Rules of Procedure are rules of internal organisation and cannot grant powers to the Parliament which are not expressly afforded by a legislative measure, in this case by the 1976 Act. It follows that, at least in the context of an examination relating to the establishment of a prima facie case, it is rather the provisions of the Rules of Procedure that should be interpreted in the light of the letter and the spirit of the provisions of the 1976 Act, and not the converse.

   (see paras 40-43, 45, 46)

3.  To interpret Article 12 of the Act of 1976 concerning the election of the representatives of the Assembly by direct universal suffrage, as amended and renumbered by Decision 2002/772, as providing, not for a division of powers between the national authorities and the Parliament and for those powers to be exercised in the framework of different procedures, but for a single decision-making procedure in which both the Parliament and the national authorities play a part is not, prima facie, correct. Where a national measure forms part of a Community decision-making procedure and, by virtue of the division of powers in the field in question, is binding on the Community decision-making authority and therefore determines the terms of the Community decision to be adopted, any irregularity that might affect the national measure cannot affect the validity of the decision of the Community authority. Those observations are relevant to the distribution of powers resulting from Article 12 of the 1976 Act.

   Consequently, an interim order which finds that any irregularities which may vitiate the decision of a national electoral office declaring a candidate to be a member of the Parliament have no effect on the decision of the Parliament relating to the verification of the credentials of the member concerned is not vitiated by a manifest error of law or of reasoning.

   (see paras 50, 51, 53, 54)

4.  The purpose of interim proceedings is to guarantee the full effectiveness of the judgment on the substance. In order that the latter objective may be attained, the measures sought must be urgent in the sense that, in order to avoid serious and irreparable damage to the applicant’s interests, they must be ordered and become effective even before the decision in the main proceedings. It follows that, in order to assess the urgency of the suspension of the operation of a measure of the European Parliament declaring invalid the mandate of one of its members on the ground of lack of credentials, the Judge hearing the application for interim measures is required to take into consideration the applicant’s interests only, in particular the existence of a risk of serious and irreparable damage to those interests, without regard to other factors of a general nature such as, in the present case, the continuity of political representation, those being factors which could, if necessary, be taken into account only when striking a balance between the interests involved.

   (see paras 57, 58)

5.  In proceedings for interim measures seeking the suspension of the operation of a measure of the European Parliament declaring invalid the mandate of one of its members on the ground of lack of credentials, where the Judge hearing the application for interim measures finds that the immediate and specific interests of that member and of the person replacing him are evenly matched, he must take into consideration the more general interests which, in such circumstances, take on a special significance, such as those of the Member State concerned in having its electoral legislation respected by the Parliament and in seeing those candidates receive a seat in the Parliament who have been elected in accordance with its electoral procedures and declared to be elected by one of its highest courts, and that of the Parliament in having its decisions upheld, in its political legitimacy and its interest in the candidate who received the most votes receiving a seat. It is only after having found that the specific and the general interests involved are evenly matched that the Judge hearing the application for interim measures should take into consideration the strength of the pleas relied on in order to find that there is a prima facie case.

   (see paras 66, 67, 70)