6 October 2021 (*1)

(Appeal – Institutional law – Single statute for Members of the European Parliament – Members of the European Parliament elected in Italian constituencies – Modification of pension entitlements – Act adversely affecting an official – Provisional position – Independent legal effects)

In Case C‑408/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 September 2020,

Danilo Poggiolini, residing in Rome (Italy), represented by F. Sorrentino, A. Sandulli and B. Cimino, avvocati,

appellant,

the other party to the proceedings being:

European Parliament, represented by S. Alves and S. Seyr, acting as Agents,

defendant at first instance,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, L. Bay Larsen (Rapporteur), C. Toader, M. Safjan and N. Jääskinen, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,

gives the following

Background to the dispute

The action before the General Court and the order under appeal

19Next, in paragraphs 62 and 63 of the order under appeal, the General Court rejected the appellant’s second head of claim, seeking annulment of the decision set out in the letter of 8 July 2019. In that regard, it considered that the statement of modification lodged by the appellant was manifestly inadmissible on the ground that a party can amend the form of order sought and the pleas in law of his or her initial action only where that action was itself admissible on the date on which it was brought.

Forms of order sought

–set aside the order under appeal;

–consequently, annul the note at issue and the note sent by the letter of 8 July 2019;

–failing that, refer the case back to the General Court; and

–order the Parliament to pay the costs of both sets of proceedings.

–dismiss the appeal; and

–order the appellant to pay the costs of the appeal.

The appeal

Arguments of the parties

29The Parliament submits, in the first place, that the reduction in the amount of the appellant’s pension was provisional and that that reduction could have been revised on the basis of the observations submitted by the appellant. That provisional nature is clear from the wording of the note at issue and from the appellant’s right to submit observations before it became final, a right which he did in fact exercise. The Parliament’s final position was not adopted until later.

30In the second place, the appellant’s right to judicial protection would have been ensured by the possibility of bringing an action against the final decision, expressed in the letter of 8 July 2019, the examination of which would have allowed, where appropriate, the note at issue to be annulled and the effects of that note to be remedied. In that connection, the risk that the Parliament would fail to respond to the observations could be excluded on the ground stated in paragraph 58 of the order under appeal.

Findings of the Court

31As the General Court noted in paragraph 45 of the order under appeal, it is clear from the settled case-law of the Court of Justice that any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as acts open to challenge, within the meaning of Article 263 TFEU (judgments of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 46 and the case-law cited).

32In order to determine whether the contested act produces such effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgments of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47 and the case-law cited).

33It should also be noted that, as the General Court stated, in essence, in paragraph 46 of the order under appeal, intermediate measures the aim of which is to prepare, in a procedure comprising several stages, the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment (see, to that effect, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 43 and the case-law cited).

34Such intermediate acts are, first and foremost, acts which express a provisional opinion of the institution concerned (judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 44 and the case-law cited).

35The General Court held, in paragraphs 47 to 51 of the order under appeal, that the note at issue did not set out the Parliament’s definitive position, since the position adopted in that note could be altered in order to take account of the information contained in the appellant’s observations.

36In that regard, the argument put forward by the appellant that the note at issue was not provisional on the ground that its effects would have become definitive if he had not submitted observations within the period stated in that note cannot succeed.

37As the General Court held in paragraph 49 of the order under appeal, the appellant lodged observations before the expiry of that period, thereby preventing the effects of the note at issue from becoming definitive.

38However, the finding that an act of an institution constitutes an intermediate measure which does not express the final position of an institution is not sufficient to establish, systematically, that that act is not a ‘challengeable act’ for the purposes of Article 263 TFEU.

39It is thus apparent from the case-law of the Court that an intermediate measure which has independent legal effects may form the subject matter of an action for annulment in so far as the illegality attaching to that measure cannot be remedied in an action brought against the final decision for which it represents a preparatory step (judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 46 and the case-law cited).

40Accordingly, where a challenge to the legality of an intermediate measure in such an action is not capable of ensuring effective judicial protection for the applicant against the effects of that act, it must be capable of forming the subject matter of an action for annulment, on the basis of Article 263 TFEU (see, to that effect, judgments of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 63; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 56; and of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 48).

41In the present case, it is important to point out that, as the General Court stated in paragraph 47 of the order under appeal and as the appellant submits in his appeal, the note at issue led to an immediate reduction in the amount of the appellant’s pension, with effect from April 2019, since the application of that reduction was not suspended pending the outcome of the proceedings conducted by the Parliament.

42It follows that the note at issue produced, as such, independent legal effects on the appellant’s financial situation.

43Such effects cannot be treated in the same way as the procedural effects of acts expressing a provisional position of the European Commission or the effects of such acts which have been recognised as not adversely affecting the interests of the persons concerned, which, the Court has held, cannot result in actions for annulment brought against such acts being admissible (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraphs 17 to 18).

44The fact, stated by the General Court in paragraph 50 of the order under appeal, that it is apparent from the note at issue that the Parliament would have recovered sums received for the months of January to March 2019 only in the absence of observations lodged by the appellant within 30 days of receipt of that note is not capable of calling into question the immediate nature of the legal effects produced by that note.

45In addition, although the note at issue provided that the Parliament was to adopt a final position after receipt of the appellant’s observations, it is common ground that the adoption of such a position did not have a time limit.

46The independent legal effects of the note at issue could therefore have continued for a potentially long period, the end of which was not a priori defined.

47In those circumstances, since the lasting reduction in the amount of a pension is liable to have potentially irreversible consequences for the situation of the person concerned, the appellant had to have the right to effective recourse against the note at issue and thus to prevent the reduction of his pension (see, by analogy, judgments of 30 June 1992, Italy v Commission, C‑47/91, EU:C:1992:284, paragraph 28, and of 9 October 2001, Italy v Commission, C‑400/99, EU:C:2001:528, paragraph 63).

48It follows that, contrary to what the General Court held in paragraph 57 of the order under appeal, the bringing of an action for annulment of the final decision which the Parliament was required to adopt after receipt of the appellant’s observations was not capable of ensuring him effective judicial protection.

49Nor is the right of the person concerned, in the absence of a reply from the Parliament to the observations which he has submitted, to bring an action against the Parliament for failure to act, to which the General Court referred in paragraph 58 of the order under appeal, capable of guaranteeing him effective judicial protection.

50It is true that the Parliament is required to reply to such observations within a reasonable period of time (see, to that effect, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX‑II, EU:C:2013:134, paragraph 28) and the person concerned therefore has the right to bring an action for failure to act if that institution does not comply with that obligation.

51Furthermore, the Court has previously held that the possibility of bringing such an action for failure to act may be sufficient to prevent the Commission from perpetuating a state of inaction following the adoption of an intermediate measure adopted by that institution (see, to that effect, judgment of 18 March 1997, Guérin automobiles v Commission, C‑282/95 P, EU:C:1997:159, paragraph 38).

52However, those considerations cannot be decisive in the present case since, first, an action for failure to act brought against the Parliament would not be capable of calling into question the autonomous legal effects of the note at issue and, second, the time needed to enable such an action to be examined and then, as the case may be, an action for annulment to be examined would be excessive in a context in which that note immediately entails a reduction in the amount of the pension paid to a natural person.

53In that respect, the fact, noted by the General Court in paragraph 58 of the order under appeal, that the Parliament had, in the present case, responded to the appellant’s observations has, in any event, no bearing on the assessment of the admissibility of the action for annulment brought against the note at issue, since that reply came after that action had been brought.

54In the light of the foregoing, the General Court erred in law in holding, in paragraph 53 of the order under appeal, that the provisional nature of the note at issue permitted the inference that it did not constitute an act adversely affecting the appellant and, therefore, that it could not be the subject of an action for annulment on the basis of Article 263 TFEU.

55Consequently, the second ground of appeal must be upheld and the order under appeal must be set aside in so far as it rejected the first head of claim submitted by the appellant in Case T‑348/19, seeking annulment of the note at issue.

56It also follows that the order under appeal must be set aside in so far as it rejected the second head of claim submitted by the appellant in Case T‑348/19, seeking annulment of the decision set out in the letter of 8 July 2019, since the rejection of that head of claim was based exclusively on the inadmissibility of the appellant’s first head of claim, seeking annulment of the note at issue.

57In those circumstances, it is not necessary to examine the first and third grounds of appeal, in so far as they are not, in any event, of a nature to result in a more extensive setting aside of the order under appeal.

The action before the General Court

58In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, where it has quashed the decision of the General Court, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

59In the first place, since the Parliament maintained, by its plea of inadmissibility raised before the General Court, only that the action for annulment brought by the appellant was inadmissible on the ground that the note at issue was a preparatory act, it is appropriate, for the reasons set out in paragraphs 38 to 54 above, to reject that plea of inadmissibility.

60In the second place, since the General Court’s assessments related exclusively to the admissibility of the action and the General Court dismissed the action for annulment brought by the appellant as manifestly inadmissible without opening the oral procedure, the Court of Justice does not have the information necessary to give final judgment in the action.

61Consequently, the case must be referred back to the General Court for it to rule on the appellant’s claim seeking annulment of the note at issue and of the decision set out in the letter of 8 July 2019.

Costs

62Since the case is being referred back to the General Court, it is appropriate to reserve the costs.

On those grounds, the Court (First Chamber) hereby:

3. Refers Case T‑348/19 back to the General Court for a ruling on the claims made by Mr Danilo Poggiolini in Case T‑348/19 for annulment of that note and that decision;

[Signatures]

*1 Language of the case: Italian.