19.9.2016

Official Journal of the European Union

C 343/25

Appeal brought on 9 July 2016 by LL against the order of the General Court (Seventh Chamber) made on 19 April 2016 in Case T-615/15 LL v European Parliament

(Case C-326/16 P)

(2016/C 343/38)

Language of the case: Lithuanian

Parties

Appellant: LL (represented by: J. Petrulionis, advokatas)

Other party to the proceedings: European Parliament

Form of order sought

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set aside the order of the General Court of the European Union (Seventh Chamber) made on 19 April 2016 in Case T-615/15, by which the General Court dismissed the applicant’s action for annulment, first, of Decision D(2014) 15503 of the Secretary-General of the European Parliament of 17 April 2014, by which repayment of the parliamentary assistance allowance wrongly paid to him was required, and secondly, of Debit Note No 2014-575 of 5 May 2014;

—	refer the case back for fresh examination.

Pleas in law and main arguments

The appellant relies on five pleas in support of his appeal.

In making the order, the General Court of the European Union did not examine and assess thoroughly, correctly, comprehensively and objectively all the written evidence submitted together with the application that was of relevance in order to establish properly and correctly the time limit for instituting proceedings, and therefore conclusions contrary to the material in the file and to the legal provisions specified in the appeal were drawn in the order, inter alia that ‘[the] action was brought more than 17 months after that last date’, ‘… the applicant has not established or even referred to the existence of … circumstances which would allow a derogation from the time limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union …’ and ‘… the action must be dismissed as manifestly inadmissible on the ground that it was out of time …’.

In the order, the General Court did not apply Article 263 of the Treaty on the Functioning of the European Union properly, and also infringed Article 72 of the Implementing Measures for the Statute for Members of the European Parliament and assessed incorrectly the possibilities of applying Article 45 of the Statute of the Court of Justice of the European Union:

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since the appellant, as a former Member of the European Parliament, did not agree with the decision of the Secretary-General of the European Parliament (and the debit note adopted on its basis) and considered that it was unfounded, he exercised his right and fulfilled the requirements laid down in Article 72 of the Implementing Measures for the Statute for Members of the European Parliament, submitting a complaint concerning the decision first to the Quaestors and then to the Bureau and the President of the European Parliament;

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it was only subsequently, when on 10 September 2015 the appellant received an email from a representative of the European Parliament and with it, amongst other documents, final letter No 311354 of 26 June 2015 from the President of the European Parliament pursuant to Article 72(3) of the Implementing Measures for the Statute for Members of the European Parliament, that the appellant’s right arose to bring an action before the General Court for annulment of the decision of the Secretary-General of the European Parliament and of the debit note adopted on its basis;

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it was specifically on the day on which final letter No 311354 of 26 June 2015 from the President of the European Parliament pursuant to Article 72(3) of the Implementing Measures for the Statute for Members of the European Parliament was received, that is to say, on 10 September 2015, that, under the sixth paragraph of Article 263 TFEU, the two-month period began to run within which the appellant could institute proceedings before the General Court for annulment of the decision of the Secretary-General of the European Parliament and of the debit note adopted on its basis;

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in view of this and pursuant to the sixth paragraph of Article 263 TFEU, the period for instituting proceedings before the General Court came to an end on 10 December 2015. The application was received at the Registry of the General Court on 4 November 2015. This means that the two-month period for instituting proceedings, laid down in the sixth paragraph of Article 263 TFEU, was not breached and such an action was not lodged ‘out of time’;

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in the order, the General Court did not assess at all the documents and circumstances referred to or the provisions of Article 72 of the Implementing Measures for the Statute for Members of the European Parliament, provisions which the appellant observed and on the basis of which he lodged a complaint against the decision of the Secretary-General of the European Parliament and the debit note under a pre-litigation procedure;

—	by the order, the General Court not only infringed the appellant’s rights and interests, but also applied Article 263 TFEU incorrectly, and in addition infringed Article 72 of the Implementing Measures for the Statute for Members of the European Parliament;

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furthermore, in the order the General Court found incorrectly and without foundation that there was no possibility of applying Article 45 of the Statute of the Court of Justice. The implementation of the procedure for pre-litigation examination of the dispute, the appellant’s active, careful, attentive and conscientious conduct, the time at which documents were received and other circumstances confirm that in the case under consideration, even if it were decided that the period for instituting proceedings was exceeded, the period would have to be renewed, as it was exceeded for important, objective and justifiable reasons, namely observance of the procedure laid down in Article 72 of the Implementing Measures for the Statute for Members of the European Parliament (first paragraph of Article 45 of the Statute of the Court of Justice). The appellant could not know that observance of the compulsory procedure laid down in Article 72 of the Implementing Measures for the Statute for Members of the European Parliament may mean that he loses his right to institute proceedings before the General Court (second paragraph of Article 45 of the Statute of the Court of Justice). It is to be noted that in the application the appellant also raised later the issue whether the decisions of the Quaestors and the Bureau of the European Parliament adopted pursuant to Article 72 of the Implementing Measures for the Statute for Members of the European Parliament were well founded and lawful.

In the order, the General Court wrongly applied Article 126 of the Rules of Procedure of the General Court and on that basis decided by the order not to take further steps in the proceedings and to dismiss the action;

—	in the order, the General Court based the application of Article 126 of its Rules of Procedure on the single circumstance and ground that proceedings were instituted out of time, that is to say, after the period laid down in the sixth paragraph of Article 263 TFEU had expired;

—	it was demonstrated in the application that the period laid down in the sixth paragraph of Article 263 TFEU for instituting proceedings had not expired, and therefore by the order the General Court dismissed the action on the basis of Article 126 of its Rules of Procedure wrongly and unlawfully;

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in the case under consideration, the basis and the conditions for applying Article 126 of the Rules of Procedure of the General Court are absent. The application was lodged before the period laid down in the sixth paragraph of Article 263 TFEU had expired and therefore it cannot be considered manifestly inadmissible. In the case under consideration, the General Court infringed Article 126 of its Rules of Procedure by applying it wrongly and unlawfully.

The order of the General Court infringed the appellant’s right to an effective remedy and to a fair trial, laid down in Article 47(1) and (2) of the Charter of Fundamental Rights of the European Union, because by the order the General Court unlawfully and wrongly dismissed the action on the basis of Article 126 of its Rules of Procedure as manifestly inadmissible on the ground that it was allegedly out of time and did not examine the application, and the arguments and claims set out therein, as to the substance.

By the order, the General Court wrongly decided that the appellant had to bear his own costs before the General Court (Article 133 and Article 134(1) of the Rules of Procedure of the General Court):

by the order, the General Court wrongly dismissed the action on the basis of Article 126 of its Rules of Procedure, and therefore it also wrongly decided that the appellant had to bear his own costs before the General Court. After the order of the General Court has been set aside and the case has been referred back to the first-instance court for fresh examination, the question of the allocation of costs must be determined anew by the final decision of the General Court, and, if the action were upheld, the defendant, the European Parliament, would have to be ordered to pay the appellant all the costs incurred by him (Article 133 and Article 134(1) of the Rules of Procedure of the General Court).