Contents
Judgment of the General Court (Sixth Chamber, Extended Composition)31 May 2018note(Law governing the institutions — European Parliament — Rules of Procedure of the Parliament — Conduct adversely affecting the dignity of the Parliament and the smooth conduct of parliamentary business — Disciplinary sanctions of forfeiture of entitlement to the subsistence allowance and temporary suspension from participation in all activities of the Parliament — Freedom of expression — Obligation to state reasons — Error of law)In Case T‑770/16,Janusz Korwin-Mikke, residing in Józefów (Poland), represented by M. Cherchi and A. Daoût, lawyers,vEuropean Parliament, represented by S. Alonso de León and S. Seyr, acting as Agents,THE GENERAL COURT (Sixth Chamber, Extended Composition),composed of G. Berardis, President, S. Papasavvas (Rapporteur), D. Spielmann, Z. Csehi and O. Spineanu-Matei, Judges,Registrar: G. Predonzani, Administrator,having regard to the written part of the procedure and further to the hearing on 29 November 2017,gives the following
Judgment
Background to the dispute
1The applicant, Mr Janusz Korwin-Mikke, is a Member of the European Parliament.
2At the plenary session of the Parliament of 7 June 2016 (‘the plenary session of 7 June 2016’) on the ‘State of play of the external aspects of the European migration agenda: towards a new “Migration Compact”’, the applicant stated in Polish:‘The problem is not about the flood of immigrants, but rather the wrong type of immigrants. They do not want at all to work in Bayerische Motorwerke or in Audi. They were promised big allowances and they do want big allowances. I have already described them, which cost me 3000 euros, but a Congolese diplomat said that Europe is flooded by African cesspool [“szambo”]. So we can be proud that we relieved a part of Africa of that cesspool, but our duty is to teach those people how to be reasonable. Actually, nothing teaches you better how to be reasonable than hunger. One has to stop paying them allowances and simply force them to work. And, as an example is the best teacher, we have to set a good example and stop paying allowances to ourselves, too, because in this way we deprave our own people, too.’
3Following those comments, the Vice-President of the Parliament, who was conducting the debate, invited the applicant to ‘address the House with respect’. Immediately afterwards, a Member of the European Parliament raised a blue card and asked the applicant to provide evidence in support of his claims.
4In response to that question, the applicant stated:‘... America was also exploited, and its development is excellent. However, I am just referring to the opinion of a diplomat from the Congo — a country which knows something about emigration from Africa. I do know one thing: when people are paid to do nothing, it demoralises them. All benefits must be abolished. People have to make a living from work, not from benefits.’
5Subsequently, the applicant again took to the floor, to clarify the English translation of a word used in his speech.
6On 8 June 2016, the applicant was invited by the President of the Parliament to attend a hearing held on 14 June 2016.
7By email of 9 June 2016, the applicant sent to the Vice-President of the Parliament who had conducted the debate at issue a film disseminated on the YouTube website, in which it is possible to hear the comments made by the Congolese diplomat to whom he alluded in his speech of 7 June 2016.
8By decision of 5 July 2016 (‘the decision of the President’), the President of the Parliament imposed on the applicant the penalty of forfeiture of entitlement to the subsistence allowance for a period of 10 days and temporary suspension from participation in all activities of the Parliament for a period of five consecutive days, without prejudice to the right to vote in plenary session.
9On 18 July 2016, the applicant lodged an internal appeal before the Bureau of the Parliament against the decision of the President, seeking annulment of the penalties imposed on him and a public apology from the President of Parliament before the Parliament for using insulting words against him.
10By decision of 1 August 2016 (‘the decision of the Bureau’), notified to the applicant on 2 September 2016, the Bureau of the Parliament maintained the penalties imposed on the applicant by the decision of the President.
Procedure
11By application lodged at the Registry of the General Court on 2 November 2016, the applicant brought the present action.
12On a proposal from the Sixth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to assign the case to a Chamber sitting in extended composition.
13On a proposal from the Judge-Rapporteur, the Court (Sixth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, requested that the Parliament lodge certain documents and that the parties reply to certain questions. The parties complied with those requests within the prescribed periods.
14The parties presented oral argument and replied to oral questions put by the Court at the hearing on 29 November 2017.
Forms of order sought
15The applicant claims that the Court should:– annul the decision of the President;– annul the decision of the Bureau;– order compensation of the pecuniary and non-pecuniary harm caused by the decisions of the President and of the Bureau, quantified in the amount of EUR 13060;– order the Parliament to pay the costs.
16The Parliament contends that the Court should:– dismiss the claim for annulment of the decision of the President as inadmissible;– dismiss the claim for annulment of the decision of the Bureau as unfounded;– dismiss the claim for damages as partly inadmissible and partly unfounded;– order the applicant to pay the costs.
17At the hearing, the applicant informed the Court that he was withdrawing the first head of claim, taking the view that the decision of the President had been replaced by the decision of the Bureau, which constitutes Parliament’s final position, of which formal notice was taken in the minutes of the hearing.
Law
The claim for annulment
18In support of his claim for annulment, the applicant puts forward four pleas. The first plea alleges infringement of Rule 166 of the Rules of Procedure of the Parliament (‘the Rules of Procedure’), the freedom of speech and of expression and the obligation to state reasons. The second plea alleges infringement of Article 6 of the European Convention for the protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), the general principle of impartial treatment and the obligation to state reasons. The third plea alleges infringement of Article 6 of the ECHR, the rights of the defence and Rule 166(1) of the Rules of Procedure. The fourth plea alleges infringement of the principles of proportionality and ne bis in idem, as well as infringement of the obligation to state reasons.
The first plea, alleging infringement of Rule 166 of the Rules of Procedure, the freedom of speech and of expression and the obligation to state reasons
19It must be noted, as a preliminary point, that, by the present plea, divided into three parts, the applicant alleges, in essence, in addition to the infringement of his freedom of expression, infringement of Rule 166 of the Rules of Procedure, in that, first, the Parliament did not establish that the conditions required for the application of that provision were fulfilled and, secondly, that that decision does not contain an adequate statement of reasons. Moreover, this was confirmed at the hearing and formal notice of it taken.
20It is necessary to examine, first of all, the third part and then, jointly, the first and second parts.
–The third part, alleging infringement of the obligation to state reasons
21The applicant submits that the decision of the Bureau does not satisfy the obligation to state reasons, inasmuch as, first, it does not refer to possible repercussions in the press or to reactions at a political level, secondly, it does not state that his comments constituted an incitement to hatred and, thirdly, it does not take into account the fact that those comments were initially made by a Congolese diplomat. Moreover, the statement of reasons for the decision at issue does not allow him to ascertain whether he created any exceptionally serious disorder in the plenary session of 7 June 2016 or which principles set out in Rule 11 of the Rules of Procedure were infringed.
22Parliament disputes that line of argument.
23It must be borne in mind that the obligation to provide a statement of reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 180 and the case-law cited). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. The grounds may be adequate even though they set out reasons which are incorrect (see order of 12 July 2012, Dover v Parliament, C‑278/11 P, not published, EU:C:2012:457, paragraph 36 and the case-law cited.
24Moreover, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 181 and the case-law cited).
25In this case, the decision of the Bureau consists of three sections. The first (paragraphs 1 to 27 of the decision) sets out the facts which led to the imposition of the penalties at issue, the previous statements of the applicant for which penalties had already been imposed and the internal appeal procedure initiated by him against the decision of the President. The second (paragraphs 28 to 37 of the decision) seeks to establish that the applicant’s conduct constitutes an infringement of Rule 11 of the Rules of Procedure. Finally, the third (paragraphs 38 to 45 of the decision) contains a legal assessment of Rule 166 of the Rules of Procedure.
26In particular, in paragraphs 28 to 31 of its decision, after having recalled, first, the wording of Rule 11(2) and (3) of the Rules of Procedure and, secondly, the scope of the right to freedom of speech and expression, the Bureau of the Parliament noted that that right could be limited if it infringed other rights, ‘in particular when it cause[d] harm or offence to others’ or ‘for the protection of the rights or reputation of others’. Accordingly, in paragraph 32 of that decision, the Bureau of the Parliament stated that the principle of freedom of speech, guaranteed to all MEPs, was not applicable to ‘insulting, offensive or disrespectful language’ or to ‘behaviour to the detriment of the dignity of the … Parliament and in breach of the fundamental values and principles upon which the Union is founded’.
27As regards the applicant’s alleged conduct, the criticisms made by the Parliament in the decision of the Bureau concerned ‘the deliberately offensive and provocative language, not only against persons of African origin but also towards the Parliament as a whole’ (paragraph 33); ‘the method of quoting other persons … deliberately used … with the aim of expressing his own opinion’ (paragraph 34); the ‘undoubtedly insulting’ nature ‘to the persons addressed’ of the ‘idea of forcing people to work through hunger’, to the ‘detriment of the dignity of the Parliament … and in breach of the fundamental values and principles of the European Union’ (paragraph 36); and, lastly, the applicant’s ‘conduct which constitute[d] a breach of Rule 11(2) of [the] Rules [of Procedure], because it lacked mutual respect, undermined the values and principles set out in the fundamental acts of the European Union and, in particular, the dignity of Parliament’ (paragraph 37).
28It follows that, without prejudice to the examination of its merits, which will be carried out in the context of the first and second parts of the present plea, the decision of the Bureau contains a statement of reasons complying with the requirements of Article 296 TFEU.
29Consequently, the third part of the first plea must be rejected.
–The first and second parts, alleging, respectively, a violation of freedom of expression and an infringement of Rule 166 of the Rules of Procedure
30The applicant submits, in essence, that the Parliament has not established that the conditions required for the application of Rule 166 of the Rules of Procedure were fulfilled and that it thus imposed on him a disciplinary sanction in violation of the enhanced freedom of expression which he enjoys as a member of parliament, in accordance with the settled case-law of the European Court of Human Rights (‘the ECtHR’).
31In that regard, he submits, in the first place, that the decision of the Bureau is vitiated by an error of law, in that it does not take sufficient account of the fact that his comments, made in the course of the exercise of his parliamentary functions within the Parliament, were an element of his political expression.
32In the second place, the applicant submits that the decision of the Bureau fails to show that his comments actually caused exceptionally serious disorder in the plenary session of 7 June 2016 or that they disrupted the business of Parliament in breach of Rule 11 of the Rules of Procedure, so that it might be considered that the substantive conditions referred to in Rule 166 of the Rules of Procedure were actually fulfilled.
33In the third place, the applicant submits that it is apparent from the reasons for the decision of the Bureau that he was also penalised for comments made on the margins of the plenary session of 7 June 2016 or in the context of exercising his rights of defence, which did not fall within the scope of Rule 166 of the Rules of Procedure.
34The Parliament argues, first of all, that an examination of the validity of the decision of the Bureau must be undertaken solely in the light of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, in the light of Article 11 thereof, which enshrines freedom of expression, and its interpretation by the EU judicature. The case-law of the ECtHR relied on by the applicant is therefore not applicable to the present case, but could, at most, serve as a source of inspiration. Even if it were applicable, it does not follow that his freedom of speech is unlimited.
35The Parliament points out, next, that in exercising the powers provided for in Rules 166 and 167 of the Rules of Procedure, its President and, where appropriate, the Bureau of the Parliament have a certain margin of discretion. The Court’s review should therefore be limited to examining whether the exercise of such powers is vitiated by a manifest error of assessment or misuse of powers and whether the procedural guarantees were respected.
36Lastly, the Parliament claims that, contrary to the applicant’s line of argument, the Decision of the Bureau was not adopted in breach of his freedom of expression and is consistent with Rule 11(2) and (3) and Rule 166 of the Rules of Procedure. Moreover, it takes the view that the applicant’s line of argument is factually incorrect, since that decision did indeed take into account the fact that his comments had been made in the exercise of his parliamentary functions.
37It is important to note, from the outset, that the Parliament cannot dispute the relevance, in the present case, of the ECHR and the case-law of the ECtHR, for the purposes of examining the infringement of Rule 166 of the Rules of Procedure.
38While it is true that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45) and that, consequently, an examination of the validity of an act of EU secondary legislation must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 46), it should be recalled, on the one hand, that, under Article 6(3) TEU, fundamental rights recognised by the ECHR constitute general principles of EU law and, on the other hand, that it follows from Article 52(3) of the Charter that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. According to the explanations relating to that provision, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it, the meaning and scope of the guaranteed rights are determined not only by the text of the ECHR, but also, in particular, by the case-law of the ECtHR (see judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41 and the case-law cited). It is also apparent from those explanations that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (judgment of 28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraph 50). Moreover, it must be pointed out that that equivalence between the freedoms guaranteed by the Charter and those guaranteed by the ECHR has been formally expressed in relation to freedom of expression (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 147).
39As regards, in particular, freedom of expression, it is important to recall that it occupies an essential place in democratic societies and, as such, constitutes a fundamental right guaranteed in particular by Article 11 of the Charter, Article 10 of the ECHR and Article 19 of the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on 16 December 1966 (see, to that effect, the judgment of 6 September 2011, Patriciello, C‑163/10, EU:C:2011:543, paragraph 31).
40In that regard, it should be recalled that it is clear from the case-law of the ECtHR that, subject to Article 10(2) of the ECHR, freedom of expression is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society (ECtHR, 7 December 1976, Handyside v. United Kingdom, CE:ECHR:1976:1207JUD000549372, § 49).
41The right to freedom of expression does not, however, constitute an unfettered prerogative and its exercise may, under certain circumstances, be subject to restrictions.
42However, in the light of the fundamental importance of freedom of expression, restrictions on it must be interpreted strictly and, as is clear from both Article 10(2) of the ECHR and Article 52(1) of the Charter, interferences with the freedom of expression are permitted only if they satisfy three conditions. First, the limitation must be ‘provided for by law’. In other words, the EU institution adopting measures liable to restrict a person’s freedom of expression must have a legal basis for its actions. Secondly, the limitation in question must be intended to achieve an objective of general interest, recognised as such by the European Union. Thirdly, the limitation in question must not be excessive, which means, on the one hand, that it must be necessary and proportionate to the aim sought, and, on the other hand, that the essence of the freedom in question must not be impaired (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraphs 69 and 84 and the case-law cited).
43It is also important to state that an interference with or restriction on the freedom of expression can be regarded as being ‘provided for by law’ only if the provision is formulated with sufficient precision to be predictable in its effects and to enable the persons addressed to adjust their conduct accordingly (see, to that effect, ECtHR, 17 February 2004, Maestri v. Italy, CE:ECHR:2004:0217JUD003974898, § 30).
44It should also be noted that, in a democracy, Parliament or such comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein (ECtHR, 17 December 2002, A. v. United Kingdom, CE:ECHR:2002:1217JUD003537397, § 79).
45Moreover, as the ECtHR has consistently held in its case-law, the freedom of expression of members of parliament is of particular importance. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the courts (ECtHR, 23 April 1992, Castells v. Spain, CE:ECHR:1992:0423JUD001179885, § 42).
46It is therefore appropriate to conclude that the freedom of expression of members of parliament must be greater enhanced protection in the light of the fundamental importance which Parliament plays in a democratic society.
47However, while emphasising that speech in Parliament enjoys an elevated level of protection, the ECtHR has recently acknowledged, in view of the close nexus between an effective political democracy and the operation of Parliament, that the exercise of free speech in Parliament may have to yield on occasions to the legitimate interests of protecting the orderly conduct of parliamentary business as well as the protection of the rights of other members of parliament (ECtHR, 17 May 2016, Karácsony and Others v. Hungary, CE:ECHR:2016:0517JUD004246113, §§ 138 to 141).
48It is important to point out that the ECtHR, on the one hand, linked the possibility of a parliament’s penalising one of its members for his conduct to the need to ensure that parliamentary business is conducted in an orderly fashion and, on the other hand, recognised that parliaments have considerable autonomy to regulate the time, place and manner of speeches by members of parliament (the ECtHR’s scrutiny being correspondingly limited) but, by contrast, very limited latitude in regulating the content of parliamentary speech (the ECtHR’s scrutiny being correspondingly stricter). In its case-law, the ECtHR refers, in that regard, only to ‘some regulation … necessary in order to prevent forms of expression such as direct or indirect calls for violence’ (ECtHR, 17 May 2016, Karácsony and Others v. Hungary, CE:ECHR:2016:0517JUD004246113, § 140).
49It follows that, first, the rules of procedure of a parliament can provide for the possibility of penalising members for their comments only in the event that those comments undermine the proper functioning of the parliament or pose a serious threat to society, such as incitement to violence or racial hatred.
50Secondly, the power, granted to parliaments, to impose disciplinary sanctions in order to ensure the proper conduct of their business or the protection of certain fundamental rights, principles or freedoms should be reconciled with the need to ensure respect for the freedom of expression of members of parliament.
51Accordingly, it is necessary to ascertain, taking into account the particular importance of the freedom of expression of members of parliament and the strict limits within which restrictions may be imposed on that freedom, in accordance with the principles established by the case-law of the ECtHR in that context, whether, by imposing the disciplinary sanction in question, the Parliament fulfilled the requirements provided for in Rule 166(1) of its Rules of Procedure.
52In the present case, the Rules of Procedure, in the version in force at the material time as applied by the Bureau of the Parliament, lay down, in Chapter 4 of Title VII entitled ‘Measures to be taken in the event of non-compliance with the standards of conduct of Members’, measures for immediate application which may be taken by the President of the session to restore order (Rule 165 of the Rules of Procedure) and disciplinary sanctions which may be imposed by the President of Parliament on an MEP (Rule 166 of the Rules of Procedure).
53Under Rule 166(1) of the Rules of Procedure which were applied in the present case, the President of the Parliament is to adopt a reasoned decision imposing the appropriate penalty ‘in exceptionally serious cases of disorder or disruption of Parliament in violation of the principles laid down in Rule 11 ...’.
54It should be pointed out that the wording of Rule 166(1) of the Rules of Procedure differs among the language versions of the Rules of Procedure. Thus, unlike the French version of that provision, produced by the Parliament at the request of the Court and cited in paragraph 53 above and in paragraph 38 of the decision of the Bureau, as well as, in particular, the versions in the German, Italian, Spanish, Dutch and Greek languages, the English language version does not refer to the disruption ‘of the business’ (‘des travaux’) or ‘of the activities’ (‘de l’activité’) of Parliament, but uses the expression ‘disruption of Parliament’. According to the Parliament, that expression relates not only to parliamentary business within the Chamber, but covers a wider context than the proceedings, including also the impact on its reputation or dignity as an institution.
55In that regard, it is important to recall that, according to the settled case-law, the need for a uniform interpretation of a provision means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part (see, to that effect, judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraph 84 and the case-law cited).
56It follows that the Parliament’s approach at the hearing, according to which the English version of Rule 166 of the Rules of Procedure should be relied upon to interpret the legislature’s intention and all the language versions, cannot succeed.
57In the light of its context and purpose, Rule 166 of the Rules of Procedure provides for cases where there is a disruption of the proper functioning of the Parliament or the orderly conduct of parliamentary business and therefore seeks to penalise an MEP for behaviour which may seriously disrupt the conduct of a parliamentary session or parliamentary business in which he is participating. Moreover, such an interpretation, as was pointed out in paragraphs 48 to 50 above, is consistent with the objective generally pursued by a parliament’s disciplinary rules, which the ECtHR has recognised as legitimate (see, to that effect, ECtHR, 17 May 2016, Karácsony and Others v. Hungary, CE:ECHR:2016:0517JUD004246113, §§ 138 to 140).
58Furthermore, it should be pointed out that the wording of Rule 166 of the Rules of Procedure suggests that penalties may be imposed in two situations, namely ‘exceptionally serious cases of disorder’ or cases of ‘disruption of Parliament in violation of the principles laid down in Rule 11’.
59It is important to note, in that regard, that neither the decision of the Bureau nor the parties’ pleadings show that the comments made by the applicant before the Parliament at the plenary session of 7 June 2016 caused any disorder during that session, for the purposes of the first alternative referred to in Rule 166(1) of the Rules of Procedure. That decision, at most, merely states that, following the applicant’s speech, the Vice-President of the Parliament conducting the debate called him to order and then that an MEP used the ‘blue card’ procedure (which is entirely normal and does not indicate any disorder during the session) to ask the applicant to provide evidence in support of his assertions.
60Furthermore, the Parliament confirmed, in the context of its written responses to the Court’s questions and at the hearing, that no exceptionally serious disorder or disruption of business occurred within Parliament at the plenary session of 7 June 2016 or in the context of the related debates, following the applicant’s speech. However, the Parliament maintained that the applicant’s case nonetheless fell within the second alternative referred to in Rule 166(1) of the Rules of Procedure, that is to say ‘the disruption of business’, which was the direct consequence of infringement of the principles referred to in Rule 11 of the Rules of Procedure, establishing standards of conduct for MEPs. In that regard, the Parliament claimed that the ‘disruption’ justifying the imposition of disciplinary sanctions on the applicant had arisen outside Parliament, through harm to its reputation and its dignity as an institution. The Parliament further stated that the disruption of business referred to in Rule 166(1) of the Rules of Procedure was not limited to debates or business within the Parliament, but should be given a broader meaning, encompassing the Parliament in its entirety, its dignity, its reputation and therefore its functioning.
61That line of argument cannot succeed.
62First, it must be stated that the Parliament’s assertion at the hearing that the applicant’s situation fell within the second alternative referred to in Rule 166(1) of the Rules of Procedure, that is to say the disruption of the business of Parliament, is not apparent from the decision of the Bureau, which does not provide details of which specific infringement, of those referred to in that provision, was committed in the present case. Furthermore, in paragraph 40 of that decision it is found that there has been an infringement of the principles set out in Rule 11 of the Rules of Procedure and, hence, any exceptionally serious disorder during the session or business of Parliament. It is sufficient to point out in that regard that it is actually Rule 166 of the Rules of Procedure, and not Rule 11 thereof, which specifies the conditions under which a penalty may be imposed on an MEP. Rule 11 of the Rules of Procedure contains standards of conduct setting out the principles and values to be observed by MEPs in their conduct, while merely stating that failure to comply with those standards may lead to the application of measures in accordance with Rules 165, 166 and 167 of the Rules of Procedure. Consequently, the conclusion drawn in paragraph 40 of the decision of the Bureau that an infringement of the principles set out in Rule 11 of the Rules of Procedure would ipso facto lead to a finding that there was ‘exceptionally serious disorder of the session or of the business of Parliament’ by no means follows from that provision.
63Secondly, as regards the condition relating to the disruption of the business of Parliament, it is important to note that, although Rule 166(1) of the Rules of Procedure refers to the principles set out in Rule 11 thereof, on a literal interpretation of the first of those provisions that infringement of those principles constitutes not an independent ground for imposing a penalty, but an additional condition, necessary in order to penalise the disruption of the business of Parliament, as the Parliament indeed confirmed at the hearing. It follows that an infringement of the principles set out in Rule 11 of the Rules of Procedure, if it were established, can, of itself, be penalised not as such but only where it is accompanied by a disruption of the business of Parliament, as the Parliament also confirmed at the hearing.
64Thirdly, contrary to the Parliament’s assertions at the hearing, the disruption of the business of Parliament referred to in Rule 166(1) of the Rules of Procedure, which occurred outside Parliament, as a result of the repercussions which the applicant’s comments had beyond the Parliament, cannot be understood as being harm to the reputation or the dignity of the Parliament as an institution. Moreover, the decision of the Bureau provides no information to that effect and does not contain any assessment relating to the criteria which might have led the Bureau of the Parliament to find that harm had been caused to the dignity of the Parliament. Furthermore, since no objective criteria for assessing the existence of such harm have been defined and in view of the, to say the least, vague nature of the concept of ‘dignity of Parliament’ and of harm to it, as well as the Parliament’s considerable margin of discretion in that matter, such an interpretation would have the effect of arbitrarily restricting the freedom of expression of MEPs.
65In addition, it must be pointed out that the first subparagraph of Rule 11(2) of the Rules of Procedure covers the ‘conduct’ of MEPs and provides that it must respect certain obligations, namely be characterised by mutual respect, be based on the values and principles of the European Union, respect the dignity of Parliament and not compromise the smooth conduct of parliamentary business or disturb the peace and quiet of Parliament’s premises. Similarly, Rule 166(2) of the Rules of Procedure also covers the conduct of MEPs and provides that, for the purpose of its assessment, account must be taken of its exceptional, recurrent or permanent nature and of its seriousness, on the basis of Annex XV to the guidelines annexed to the Rules of Procedure. On the other hand, comments, remarks and speeches are not referred to and are therefore not likely to be subject, as such, to penalties.
66That reading is supported by the first subparagraph of Rule 11(3) of the Rules of Procedure, according to which ‘the application of this Rule shall in no way detract from the liveliness of parliamentary debates nor undermine Members’ freedom of speech’. Moreover, such an interpretation of Rule 11(2) of the Rules of Procedure is reinforced by the recent amendment of the Rules of Procedure of the Parliament, which entered into force on 16 January 2017, seeking to broaden the scope of disciplinary sanctions. Indeed, the express prohibition of any defamatory, racist or xenophobic language or behaviour was added to the new second subparagraph of Rule 11(3) of the Rules of Procedure. In addition, the first subparagraph of Rule 11(3) of the Rules of Procedure, which has become the first subparagraph of Rule 11(4) of the Rules of Procedure, has also been amended to provide that ‘the application of this Rule shall not otherwise detract from the liveliness of parliamentary debates, nor shall it undermine Members’ freedom of speech’. It follows that, in the present case, even if comments made in the course of parliamentary functions could be treated in the same way as conduct and that those comments could, on that basis, constitute an infringement of the principles set out in Rule 11(2) of the Rules of Procedure, as applicable at the time of the facts, they could not be subject to a penalty in the absence of exceptionally serious disorder or disruption of the business of Parliament.
67Moreover, the distinction drawn in point 1 of Annex XV to the guidelines to which Rule 166(2) of the Rules of Procedure refers (see paragraph 65 above) between, on the one hand, actions of a visual nature which may be tolerated in certain circumstances and, on the other hand, ‘those which actively disrupt any parliamentary activity whatsoever’ does not support the view that comments made in parliamentary session may be included in that latter category of conduct and, on that basis, penalised, in the absence of a finding that there has been exceptionally serious disorder or a disruption of the business of Parliament.
68In view of all the foregoing, as well as the particular importance of the freedom of expression of members of parliament and the strict limits on which restrictions may be imposed on that freedom, recalled in paragraphs 37 to 50 above, Rules 11 and 166 of the Rules of Procedure, in the version applicable to the present case, must be interpreted as preventing an MEP from being penalised for comments made in the course of his parliamentary functions. Even if such comments could be treated in the same way as the MEP’s conduct, they could not, in any event, be penalised, in view of the absence of any exceptionally serious disorder during the session or disruption of the business of Parliament, in breach of Rule 11 of the Rules of Procedure.
69In those circumstances, and in spite of the particularly shocking nature of the words used by the applicant in his speech during the plenary session of 7 June 2016, the Parliament could not, in the present case, impose on him a disciplinary sanction under Rule 166(1) of its Rules of Procedure. Moreover, it cannot reasonably argue, as it did at the hearing, that what it penalised in reality was the language used by the applicant in his speech and not its content, particularly in view of the wording of points 34 and 36 of the decision of the Bureau, which refers to ‘[the applicant’s] intention to express his own opinion’ or to the ‘idea’ expressed by the applicant.
70Furthermore, even if it were to be held that the disruption of business need not be strictly limited to the Chamber, since the reference to ‘séance’ (‘session’) in Rule 166(1) of the French version of the Rules of Procedure relates only to the first alternative set out, that is to say exceptionally serious disorder, a meaning as broad as that advocated by the Parliament cannot be upheld for the reasons set out in paragraph 64 above.
71It follows from the foregoing that the first plea must be upheld, without there being any need to rule on the applicant’s argument that he was also penalised for comments made outside the plenary session of 7 June 2016 or in the context of the exercise of his rights of defence.
72In view of all the foregoing, it is necessary to uphold the second head of claim and to annul the decision of the Bureau without there being any need to consider the other pleas raised in support of the claim for annulment. In those circumstances, it is not necessary to rule on the adoption of the measure of organisation of procedure sought by the applicant, which related to the second plea.
The claim for damages
73In support of his claim for damages, the applicant submits that annulment of the decision of the Bureau will not permit him to obtain compensation for all the damage suffered. Accordingly, he seeks, on the one hand, compensation of EUR 3060 for the pecuniary damage resulting from forfeiture of entitlement to the subsistence allowance. On the other hand, he asks that the Parliament be ordered to pay a sum of EUR 10000 in compensation for the non-material damage resulting from the suspension of his participation in the activities of the Parliament and the damage to his reputation and to his good name.
74The Parliament maintains that the claim for compensation for pecuniary damage is inadmissible. Moreover, it considers that annulment of the decision of the Bureau would constitute adequate compensation for the non-material damage suffered by the applicant. In the alternative, it takes the view that a maximum of EUR 1000 would be appropriate.
75In the present case, as regards, first, the claim for compensation for the pecuniary damage resulting from forfeiture of entitlement to the subsistence allowance, it is sufficient to point out that the applicant fails to explain how, even if the decision of the Bureau is annulled, the fact that he has already been subject to the penalty at issue will prevent him from obtaining compensation for all of his loss, all the more so since he confines himself to requesting payment of the amount corresponding to the allowance he would have received in the absence of the penalty imposed, that is to say EUR 3060. However, given the annulment of the decision of the Bureau and in accordance with Article 266 TFEU, it will be for the Parliament to take the necessary measures to comply with this judgment, which will entail reimbursing the amounts corresponding to the suspended subsistence allowance.
76It follows that the claim for compensation for pecuniary damage must be rejected.
77As regards, secondly, the claim for compensation for the non-material damage allegedly suffered by the applicant, it must be borne in mind that, according to settled case-law, the annulment of an unlawful act may in itself adequately and, in principle, sufficiently compensate for any non-material damage which that act may have caused (judgments of 9 July 1987, Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22, and of 9 November 2004, Montalto v Council, T‑116/03, EU:T:2004:325, paragraph 127), unless the applicant demonstrates that he has suffered non-material damage which is separable from the unlawfulness giving rise to the annulment and which cannot be fully compensated for by the annulment (see judgment of 25 June 2015, EE v Commission, F‑55/14, EU:F:2015:66, paragraph 46 and the case-law cited).
78In the present case, there is nothing in the case file to suggest that the decision of the President and the decision of the Bureau were adopted in circumstances which could have caused non-material damage to the applicant independently of the annulled measure. Accordingly, the claim for compensation for non-material damage must be rejected.
Costs
79Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. In the present case, in so far as only the claim for annulment has been upheld, it is appropriate to order each party to bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Sixth Chamber, Extended Composition)hereby:
1.Annuls the decision of the Bureau of the European Parliament of 1 August 2016;
2.Dismisses the claim for damages;
3.Orders Mr Janusz Korwin-Mikke and the Parliament each to bear their own respective costs.
Delivered in open court in Luxembourg on 31 May 2018.
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