Judgment_paragraph 35 · Jean-Marie Le Pen v European Parliament (C-208/03 P)

35In arriving at that finding, supported both by the Parliament and by the French Republic, which was granted leave to intervene in support of the form of order sought by the Parliament, the Court of First Instance based its decision primarily on the fact that the contested act, by reason of its particular nature, cannot be the subject of an action for annulment under Article 230 EC. In that regard, the Court of First Instance found more particularly as follows:77 According to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case T-87/96 Assicurazioni Generali and Unicredito v Commission [1999] ECR II-203, paragraph 37). Thus, an action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (Case 22/70 Commission v Council [1971] ECR 263, paragraph 42).78 In the present case, the contested act is the declaration of the President of the Parliament in the plenary session of 23 October 2000 by which, “in accordance with Article 12(2) of the [1976 Act], the ... Parliament takes note of the notification of the French Government declaring the disqualification of [the applicant] from holding office”.79 It is, therefore, necessary to examine whether that declaration produced binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position.80 It is necessary, in that respect, to note the legal context in which that declaration was made.81 It is not in dispute that, at the material time in the present case, no uniform electoral procedure for the election of Members of the European Parliament had been adopted.82 Accordingly, pursuant to Article 7(2) of the 1976 Act, the electoral procedure for that election continued to be governed by the national provisions in each Member State.83 Thus, in particular, it follows from the first subparagraph of Article 12(2) of the 1976 Act, that the “application of national provisions in force in a Member State” could bring about a vacancy for a seat of a Member of the European Parliament.84 In application of the 1976 Act, the French Republic adopted, in particular, the 1977 Law. Article 2 of that law provides that the election of Members of the European Parliament is governed by “Title I of Book I of the Electoral Code and the provisions of the following chapters”. Article 5 of the same law, placed in Chapter III on “Conditions of eligibility, ineligibility and incompatibility”, provides in particular that “Articles LO 127 to LO 130-1 of the Electoral Code shall apply to the election of [Members of the European Parliament]”, that “ineligibility arising during the term of office shall bring that term to an end” and that “ineligibility will be declared by decree”.85 Article 12(2) of the 1976 Act draws a distinction between two situations in which seats of Members of the European Parliament become vacant.86 The first situation, referred to in the first subparagraph of that provision, covers cases where the vacancy arises from the “application of national provisions”. The second situation, referred to in the second subparagraph of the same provision, covers “all other cases”.87 Contrary to the applicant's contention in that regard, the first situation is not at all confined to the cases of incompatibility referred to in Article 6 of the 1976 Act, but also includes cases of ineligibility. Whilst it is true that Article 6(3) of the 1976 Act states that Members of the European Parliament to whom “paragraphs 1 and 2” become applicable are to be replaced “in accordance with Article 12”, it cannot be inferred from that reference that that article concerns solely cases of incompatibility covered by Article 6(1) and (2). It is to be observed, furthermore, that nowhere does Article 12 refer to the concept of “incompatibility”, but uses the much wider concept of “vacancy [of the seat]”.88 In the first situation covered by Article 12(2) of the 1976 Act the role of the Parliament is confined to “taking note” that the seat of the person concerned is vacant. In the second situation, which covers, for example, the resignation of one of its Members, the Parliament “shall establish that there is a vacancy and inform the Member State thereof”.89 In the present case, since the contested act was adopted pursuant to the first subparagraph of Article 12(2) of the 1976 Act, it is necessary to determine the scope of the process of “taking note” prescribed by that provision.90 It should be pointed out, in that regard, that the process of “taking note” refers not to the disqualification from office of the person concerned but to the simple fact that his seat has become vacant as a result of the application of national provisions. In other words, the role of the Parliament is not to “bring about” the disqualification from office, as the applicant claims, but merely to take note of the declaration, already made by the national authorities, that the seat is vacant, that is to say, of a preexisting legal situation resulting exclusively from a decision of those authorities.91 The Parliament's power of verification in that context is particularly limited. It is essentially confined to verifying whether the seat of the person concerned is in fact vacant. In particular, contrary to the applicant's contention, it is not for the Parliament to verify that the procedure laid down by the applicable national law or the fundamental rights of the person concerned have been respected. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights. It should be noted, moreover, in that regard that, in the present case, the applicant has specifically asserted his rights before both the French Conseil d'État and the European Court of Human Rights. It should also be noted that the Parliament itself never claimed, either in its written pleadings or at the hearing, to have a power of verification as wide as that alleged by the applicant.92 It should be added that such a wide concept of the Parliament's power of verification under the first subparagraph of Article 12(2) of the 1976 Act would imply that it would be open to that institution to challenge the very lawfulness of the disqualification declared by the national authorities and to refuse to take note that a seat was vacant if it considered that it was faced with an irregularity. Rule 8(9) of the Rules of Procedure alone contemplates the possibility for the Parliament to refuse the vacancy of a seat and then only where it is called upon to “establish” such a vacancy and where there is “material inaccuracy” or “vitiated consent”. It would be paradoxical if the Parliament were to have a greater discretion in cases where it is required simply to take note of the vacancy of a seat established by the national authorities than in cases where it itself establishes the vacancy of a seat.93 Those findings are in no way contradicted by the wording of the second subparagraph of [Rule] 7(4) of the [Parliament's] Rules of Procedure. As the Parliament and the French Republic rightly point out, that provision applies “upstream of the disqualification” and therefore of the vacancy of the seat. It provides for the President of the Parliament to refer the matter to the competent committee “where the competent authorities of the Member States initiate a procedure which might lead to the disqualification of a [Member of the European Parliament] from holding office”. Once that procedure is completed and the vacancy of the seat of the person concerned has been established by the competent national authorities, it remains only for the Parliament to take note of that vacancy, pursuant to the first subparagraph of Article 12(2) of the 1976 Act. In any event, pursuant to the principle of the hierarchy of norms, a provision of the Rules of Procedure cannot allow derogation from the provisions of the 1976 Act and confer on the Parliament wider powers than it holds under that act.94 Nor are those findings undermined by the fact that, until 23 October 2000, the applicant continued to sit in the Parliament and to receive the allowances from that institution and that, until 24 October 2000, the French authorities paid him his salary. It is not in dispute between the parties that the decree of 31 March 2000 was enforceable. The fact that the Parliament did not take note of that decree as soon as it was notified by the French authorities, but at a later date, and the fact that certain practical consequences for the applicant flowed from it cannot alter the legal consequences which attach to that notification pursuant to Article 12(2) of the 1976 Act.95 The applicant's arguments, first, that Article 5 of the 1977 Law compromises parliamentary independence and constitutes an intolerable interference in its functions and, second, that there is a general principle that “the disqualification must be declared by the parliamentary assembly concerned”, are unfounded. As has already been pointed out in paragraph 83 above, it is plain from the express wording of the first subparagraph of Article 12(2) of the 1976 Act that a seat of a Member of the European Parliament may become vacant pursuant to the “national provisions in force in a Member State”. Since no uniform electoral procedure had been adopted at the material time, that provision, and therefore the 1977 Law, were fully applicable. Whatever the development of the Parliaments powers, new powers cannot render inapplicable provisions of primary law, such as the 1976 Act, in the absence of express repeal by a text of equal rank.96 For the same reasons, the applicant's argument founded on the primacy of Community law is wholly irrelevant. In the present case, there is neither contradiction nor conflict between national law and Community law.97 It follows from all the foregoing considerations that, in the present case, the decree of 31 March 2000 is the measure which produced binding legal effects such as to prejudice the interests of the applicant. The contested act was not intended to produce legal effects of its own, distinct from those of that decree.98 It must, therefore, be found that the contested act is not capable of being the subject of an action for annulment under Article 230 EC. Accordingly, the present application must be dismissed as inadmissible without there being any need to address the other pleas in law and arguments on admissibility.’