OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 27 January 1988 *

Transcription

1 LES VERTS v PARLIAMENT OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 27 January 1988 * Mr President, Members of the Court, 1. This Opinion concerns the application lodged on 18 July 1984 by les Verts parti écologiste against the European Parliament for the annulment of 'all the decisions implementing item 3708 of the 1984 general budget of the European Communities'. However, in its judgment of 23 April 1986 in Case 294/83 [1986] ECR 1339, the Court upheld the application made on 28 December The decision of the Bureau of the Parliament of 12 October 1982 and the decision of the enlarged Bureau of 29 October 1983 concerning the allocation and use of appropriations entered in item 3708 were annulled on the ground that they were ultra vires. As the Court is aware, appropriations under that item were used to finance the information campaign prior to the second direct elections to the European Parliament, and have been the subject-matter of five other applications made by les Verts. Four of them, those concerning measures preparatory to the approval of the 1984 budget (Cases 216/83, 295/83, 296/83 and 297/83), were ruled inadmissible by the Court, acting on its own motion, on the ground that they did not meet the requirement laid down in the second paragraph of Article 173 of the EEC Treaty. In its Orders of 26 September 1984 in those cases the Court held that inasmuch as the budget is defined in the financial regulation as the instrument which sets out forecasts of, and authorizes in advance, the Communities' revenue and expenditure, the procedure for its approval amounts only to the authorization of the commitment of expenditure. Steps in that procedure cannot therefore directly concern a natural or legal person; a person may, however, be affected by decisions implementing the budget ([1984] ECR 3325, 3331, 3335 and 3339 respectively). 2. The present case follows directly from the one which gave rise to the judgment to which I have just referred. In that case les Verts challenged the decisions of the organs of the Parliament laying down the basic rules for the application of item 3708; in this case, they challenge the decisions taken by the administration of the Parliament implementing those rules. In support of their application les Verts rely on the same submissions as they put forward in the five cases to which I have referred: (a) ultra vires acts ; (b) infringement of the Treaties, in particular Article 138 of the EEC Treaty, and of Article 7 (2) and (13) of the Act concerning the election of the representatives of the European Parliament by direct universal suffrage; * Translated from the Italian. 1025

2 OPINION OF MR MANCINI CASE 190/84 (c) breach of the principle of electoral equality; (d) infringement of Articles 85 et seq. of the EEC Treaty; (e) breach of the principle of equality before the law under the French constitution; (f) illegality, inasmuch as the vote of the French Minister in the Council of the European Communities in the deliberations on the budget was ultra vires, and the Council's decision and all subsequent measures founded on it were thus unlawful; (g) misuse of powers, inasmuch as the Bureau of the European Parliament used the appropriations entered under item 3708 to ensure the re-election of members elected in Of those submissions the judgment of 23 April 1986 upheld the first two, in particular that referring to an infringement of Article 7 (2) of the Act of 20 September 1976 on direct elections. The Court held that 'the reimbursement of election campaign expenses is not one of the matters covered by the Act of Consequently, as Community law stands at present, the setting up of a scheme for the reimbursement of election campaign expenses and the introduction of detailed arrangements for its implementation remain within the competence of the Member States' (paragraph 54). April 1986 quashed or left intact the measures implementing item 3708 which were taken between the adoption and the annulment of the decisions establishing and laying down the rules for that item. There is no solution to that problem in Community legislation or in the Court's case-law. The national systems of administrative law, however, do not seem to favour the automatic lapsing of consequential measures taken before the annulment of the act on which they are based; on the contrary, in so far as they may be challenged and provided that application is made within the appropriate time-limit, they are annulled by separate decisions. 1 I am therefore inclined to conclude that the dispute now before us retains its raison d'être. On the substance of the case, however, I do not think there can be any discussion: the legal basis of the measures implementing the decisions regarding item 3708 was removed by the judgment of 23 April 1986, and in so far as they may be challenged they must be annulled. Having said that, I do not propose that the Court annul them. In my view, the application is inadmissible. 3. It should be recalled that by an interlocutory application lodged on 2 October 1984 the European Parliament raised an objection of inadmissibility. The Parliament requested that the Court rule on the objection without examining the substance of the case; by an order of 28 November 1984, however, the Court reserved its decision on the objection until final judgment. Inasmuch as this case, as I have already pointed out, follows directly upon the previous one, it is necessary first of all to determine whether it still has an object: in other words, whether the judgment of 23 1 Kopp, Verwaltungsverfahrensgesetz, third edition, Munich, 1983, paragraphs 25 to 44; Vander Stichele, 'De l'exécution des decisions juridictionnelles' in Recueil de jurisprudence du droit administratif et du Conseil d'état, 1975, p. 10 et seq.; Weil, Des conséquences de l'annulation d'un acte administratif par excès de pouvoir, Paris, 1952, p. 198 et seq.; Sandulli, Manuale di Diritto Amministrativo, Naples, 1984, p et seq. 1026

3 LES VERTS v PARLIAMENT The Parliament puts forward two main arguments: it asserts that les Verts lacked legal capacity at the time when the action was brought and that the conditions governing the bringing of proceedings under Article 173 by private parties have not been met. The facts on which it bases its first argument are not contested. The association 'les Verts parti écologiste' decided to wind itself up on 29 March 1984, and informed the préfecture de police, Paris, of that decision on 19 June On the same day the association 'les Verts' also decided to wind itself up. On their dissolution, however, the two groups merged, forming a new political association to be called 'les Verts, confédération écologiste parti écologiste'; the new association declared its existence to the préfecture de police on 20 June 1984 (Journal officiel, 25 July 1984, pp and 6608; corrigendum, 9 November 1984, p ). On the basis of those circumstances the defendant puts forward a quite straightforward argument. As the Court has held, says the Parliament, the legal capacity of an applicant is determined in accordance with the national law applicable to it (see, most recently the judgment of 27 November 1984 in Case 50/84 Bensiderv Commission [1984] ECR 3991) in this case, therefore, in accordance with the French Law of 1 July 1901 on associations. Since that law contains no express provision governing the matter, it must be concluded that associations are dissolved by a simple expression of intent on the part of their members; in this case such an expression of intent is to be found in the signature of the merger instrument on 29 March 1984 and the declaration made on 19 June The application of 18 July 1984 was thus submitted by an association which on 19 June 1984 at the latest had lost legal capacity. Moreover, since the application was not made by a person with capacity to act, it cannot be continued by the new association. In reply, 'les Verts' put forward an argument on two levels. First of all, they refer to the judgment of 18 March 1981 of the Tribunal de grande instance, Troyes, according to which 'it follows from Article 5 of the Law of 1 July 1901, as amended by Law No of 20 July 1971, that... an association acquires (and thus loses) legal personality only upon publication in the Journal officiel' (my emphasis); they conclude from that that under the French system the acquisition and loss of legal personality are governed by a principle of formal parallelism. If it is true, therefore, that legal personality is lost only upon the publication of an association's dissolution in the Journal officiel and that in this case such publication took place on 25 July 1984, it follows that on 18 July 1984, the day on which the application was registered at the Court, the association had the capacity to bring legal proceedings. Secondly, les Verts argue that even supposing that the argument to the effect that the dissolution and thus loss of legal personality of an association take place by the simple intention of its members is correct, the application was made by a person which had legal capacity. Pursuant to paragraph III of the instrument of 29 March 1984, the dissolution of the applicant association was to take place subject to its merger with the association 'les Verts'. Under Article 5 of the Law of 1 July 1901, the association resulting from that merger acquired legal personality upon the publication in the Journal officiel of its formation. It follows that the applicant association's intent to dissolve itself took effect only on that date (25 July 1984) and that seven days earlier the association had the capacity to bring legal proceedings. 1027

4 OPINION OF MR MANCINI CASE 190/84 Of these arguments it is the last that seems to me to be more persuasive. In France the approach taken by the Tribunal de grande instance, Troyes, gave rise to some criticism or at least doubt (see Sousi, Les associations, Paris, 1985, at p. 446, and, even previously, Brichet, Associations et syndicats, Paris, 19 72, p ), a nd th e p re vail ing vi e w is that in the French system there are no provisions making the loss of legal personality subject to any particular formal requirements. In the absence of any specific ru l e leaving aside, of course, cases in which associations are dissolved by the courts or by the authorities it seems clear to me that the matter is entirely one of individual freedom. In other words, only the intent of the members can determine the time and manner of dissolution. But how was such an intention expressed in this case? As les Verts have correctly pointed out, the instrument of merger clearly shows that the members intended the agreement dissolving the association to take effect only on the formation of a new association and to avoid any gap between the dissolution of the first and the formation of the second. Moreover, under Article 5 of the Law of 1 July 1901, 'every association which wishes to obtain legal capacity as provided for in Article 6 must be made public', and 'an association is made public only by publication in the Journal officiel'. If the intention of the members of the association 'les Verts parti écologiste' is to be observed, therefore, it must be accepted that that association ceased to exist at the instant at which the association 'les Verts, confédération écologiste parti ecologiste' obtained legal personality, that is to say, in the words of Sousi, op. cit. at p. 447, 'upon the event whose automatic effect was the dissolution of the association'; inasmuch as that 'event' took place on 25 July 1984, there can be no doubt that on 18 July the 1028 association 'les Verts parti écologiste' still existed and had capacity to institute legal proceedings. The Court came to the same conclusion, moreover, with regard to a similar objection of inadmissibility raised by the Parliament in Case 294/83. The Parliament had argued that by winding itself up after bringing the application on 28 December 1983, the association 'les Verts parti écologiste' had lost legal capacity. The Court held, however, that 'it can be seen from the agreement of 29 March 1984 that the dissolution of the two associations, including the applicant association, took place subject to their being merged to form a new association. The dissolution and and merger of the original associations and the formation of the new association were thus brought about by means of a single act; consequently there is both legal and temporal continuity between the applicant association and the new association (judgment of 23 April 1986, at paragraph 15). As for the Parliament's argument concerning the continuation of the proceedings by the new association, I need merely point out that according to a declaration of the association's Conseil interrégional (16 and 17 February 1985) the body competent under its articles of association to take legal proceedings expressly decided to continue the case brought by the association 'les Verts parti écologiste'. 4. Let me turn, then, to the second group of arguments, leaving aside those (such as the impossibility of challenging acts of the

5 LES VERTS v PARLIAMENT Parliament under the first paragraph of Article 173) which have been superseded by cases decided since the proceedings were brought. In support of its objection of inadmissibility the Parliament makes the following arguments: (a) the decisions contested were not specified; (b) the application was premature inasmuch as it concerns decisions which had not yet been made when the application was registered at the Court; This objection cannot be upheld. It is true that the application refers to all the decisions implementing item 3708 and identifies them only by indicating the stages in the expenditure procedure (commitment, authorization, validation, approval by the financial controller, payment). It is equally indisputable, however, that there was no publication of those decisions, and their particulars (person responsible, recipient, date) could not therefore be known to the applicant. Consequently, the applicant cannot be penalized for having identified them only by reference to their common subject-matter. I should add that this rather summary identification of the contested measures in no way interfered with the parties' ability to present argument. (c) the applicant cannot challenge measures taken in implementation of item 3708; (d) the applicant's successor association has no interest in challenging measures implementing that budget item which concern other political groups; (e) the association failed to challenge the sole measure addressed to it; (f) the association has no legal interest in the proceedings as a whole. Let me deal with those objections one by one. In argument (a) the Parliament complains that les Verts did not specify in their application the decisions which they seek to have annulled, and that the Court is therefore unable to determine with regard to each of them whether the conditions laid down in the second paragraph of Article 173 are fulfilled. Les Verts reply that their failure to specify the decisions concerned is due to the fact that those decisions were not published. The second argument is that the application is premature. Here too it is common ground that when the application was lodged at the Court measures implementing item 3708 and addressed to les Verts had not yet been taken. That issue, however, is not substantially different from those raised by the Parliament in its arguments (c) and (d), where it complains that les Verts have challenged measures which were not addressed to them, and in argument (f), where it submits with regard to the decision addressed to les Verts that they have no legal interest in bringing the proceedings. 5. The following four objections are based on the assertion that the conditions under which applications may be made by private parties pursuant to Article 173 have not been met. According to the second paragraph of Article 173, a natural or legal person may bring proceedings for annulment only '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'. 1029

6 OPINION OF MR MANCINI CASE 190/84 In its defence and its rejoinder the Parliament argued that the applicant association did not take part in the campaign for the second direct election and that the decisions in issue cannot therefore be considered to be of 'direct and individual concern' to it. Moreover, even assuming that it was entitled to continue the proceedings, the new association 'les Verts, confédération écologiste parti écologiste' has not contested the only measure addressed to it, that is to say the decision of 4 October 1984 by which the Secretary-General of the Parliament granted it a refund in the amount of ECU The fact that the association provided the documents necessary for that payment and accepted the sum concerned amounts to implied consent to the decision of the enlarged Bureau of 29 October 1983, and consequently it cannot now challenge the measures implementing that decision. In developing this argument at the hearing the Parliament divided the contested measures into two categories: those addressed to the applicant association and those addressed to other political groups. Within the latter category it made a further distinction between measures concerning the allocation of 69% of the appropriations entered under item 3708 among the groups represented in the Parliament before 1984 and the measures concerning the distribution of the remaining sum (31%) among the parties which took part in the elections. The decisions in the second category, it says, concern les Verts neither directly nor individually. That follows implicitly from paragraph 36 of the judgment of 23 April 1986, where the Court held that if they could not challenge the decisions of the bureau regarding item 3708, groups not represented before 1984 would be 'unable to plead the illegality of the basic decision except in support of an action against the individual decisions refusing to reimburse sums greater than those provided for'. In short, only the decisions addressed to les Verts can be contested, and even they can be challenged only in so far as the association has a legal interest in obtaining their annulment. However, such an interest which, according to the passage which I have just cited, can lie only in the possibility of obtaining a refund in excess of that received no longer exists once the basic decision has been annulled. For les Verts, therefore, success in this case could mean only that they would have to repay the sums received. In reply to that argument les Verts, who were not represented at the hearing, referred to the Orders of the Court of 26 September As I stated at the outset, the Court held in those orders that a natural or legal person may be directly concerned by measures taken to implement the budget. The association 'les Verts, confédération écolologiste parti écologiste', which has continued these proceedings, took part in the electoral campaign; it follows that the contested decisions concern it directly and, in so far as they provided funds for competing groups, individually as well. 6. Let me make a preliminary observation before examining the views which I have just summarized. Along with a number of individual measures les Verts have challenged various accounting measures implementing the budget, and I think it must be determined whether an action will lie in respect of the latter measures. In this case the Parliament takes the view that those measures were taken in implementation of the decision of the Secretary- 1030

7 LES VERTS v PARLIAMENT General of 4 October 1984 and that that decision is now final and irrevocable; it therefore submits that the claim is inadmissible in respect of them. As a matter of general principle, however, it states that inasmuch as an administrative decision may be breached by the manner in which it is carried out from the acccounting point of view it would be illogical if the Court could not examine the latter stage. I find that view very puzzling. It is true that in the orders referred to the Court held that 'measures taken to implement the budget' may directly affect individuals. I think, however, that that phrase refers to the individual decisions granting sums of money and not to simple financial measures implementing them. Indeed, some of the latter for instance, in this case, those taken between the decisions which have been annulled and the decision concerning les Verts must be considered preparatory in nature (for the proposition that acts of that kind cannot be contested, see the judgment of 11 November 1981 in Case 60/81 IBM v Commission [1981] ECR 2639, at paragraph 10). Others, such as the actual payment of the sums concerned, are purely factual in nature. Moreover, both categories of measures are internal to the institution and thus have no legal effect with regard to third parties. If it is concluded that accounting measures implementing the budget cannot be challenged (as is the prevailing rule in the systems of the Member States), only the individual decisions remain to be dealt with: that of 4 October 1984, concerning les Verts, and those concerning the other political groups. With regard to the latter I am firmly of the opinion that les Verts do not meet the conditions laid down in Community law under which individuals may bring actions for annulment, in particular that they must be individually concerned by the contested measure. Les Verts cannot rely on the judgment of 23 April 1986 in that regard. The solution adopted by the Court in that case to allow general decisions to be challenged by persons who were not identifiable at the time when the decision in issue was adopted was dictated by the need to ensure equal access to the courts, or, more specifically, to avoid a denial of justice. As has been said, quite correctly (Kovar, 'Note on the judgment of 23 April 1986', in Cahiers de droit européen, 1987, p. 328), that solution was arrived at in response to a novel and exceptional situation, and does not imply a departure from the Court's previous case-law. In this case, there is no such exceptional situation. First of all, les Verts are not challenging a measure of general application; moreover, as follows from paragraph 36 of the judgment referred to, they are entitled to bring proceedings against the decision granting them a refund in the amount of ECU , seeking its annulment on the ground that that amount is less than 'that provided for'. In a situation of that kind it seems clear to me that the inadmissibility of their application for the annulment of decisions addressed to other political groups does not result in any denial of justice; to follow Kovar again, it does not offend one's 'sense of fairness' ('sentiment naturel d'équité', op. cit., p. 327). Les Verts can therefore challenge only those individual measures implementing the basic decisions which are directed to them; in this case the only such measure is the decision 1031

8 OPINION OF MR MANCINI CASE 190/84 already mentioned, by which the Secretary-General of the Parliament determined the amount intended for information expenses for the 1984 election campaign. That decision has two aspects which are crucial for this case: it was made after the action was brought and is addressed not to the applicant association but to its legal successor. In so far as 'les Verts, parti écologiste' are concerned, therefore, the application was clearly premature; it is well known that proceedings cannot be brought to protect legal positions which have not yet come into existence. I therefore conclude that the action is inadmissible. That conclusion is not altered, moreover, if it is accepted that the individual decision concerning les Verts is to be included in the indeterminate number of contested measures. The fact that the decision is clearly ascertainable creates considerable difficulties for that hypothesis; in any event, it cannot surmount the last argument put forward by the Parliament. As I have already stated, pursuant to the decisions annulled by the Court the association 'les Verts, confédération écologiste parti écologiste' received a certain amount of money and now, rather than seeking to obtain a larger sum, it seeks the annulment of the decision granting it that benefit. The judgment sought by the applicant association can have only one effect for it: to oblige it to repay the sum already received. That shows that it has no legal interest in bringing the proceedings. 7. I therefore propose that the Court declare inadmissible the action brought on 18 July 1984 by the Association 'les Verts parti écologiste' against the European Parliament; costs should be awarded to the successful party. If, however, the Court should decide not to follow my recommendation, I suggest that it uphold the alternative submission made by the Parliament at the hearing; that is to say, to apply the second paragraph of Article 174 by analogy and allow those legal relations to stand which, by the time judgment is delivered, will have become irreversible. As has been correctly observed, some four years after the second European elections by universal suffrage an action for repayment against political groups which received funds under item 3708 of the 1984 budget would be 'uncertain from the legal point of view and politically inexpedient' ('juridiquement aléatoire et politiquement peu opportune'; Constantinesco and Simon, Note in Recueil Dalloz-Sirey, 1987, Jurisprudence, p. 82). If the contested decisions are annulled, the parties should bear their own costs, since the applicant did not ask for costs. 1032