delivered on 16 February 2023 (1)

Case C‑767/21 P

Jérôme Rivière,

Dominique Bilde,

Joëlle Mélin,

Aurélia Beigneux,

Thierry Mariani,

Jordan Bardella,

Jean-Paul Garraud,

Jean-François Jalkh,

Gilbert Collard,

Gilles Lebreton,

Nicolaus Fest,

Gunnar Beck,

Philippe Olivier

(Appeal – Law governing the institutions – European Parliament – Verbal decision of the President of the Parliament prohibiting national flags on the desks of Members of Parliament – Rules of Procedure of the European Parliament – Rule 10(3) – Rules of conduct – Action for annulment – Concept of a ‘reviewable act’ under Article 263 TFEU)

1.Thirteen Members of the European Parliament (‘MEPs’) brought the present appeal against the judgment of the General Court of 6 October 2021, Rivière and Others v Parliament (T‑88/20, not published, EU:T:2021:664; ‘the judgment under appeal’).

2.By that judgment, the General Court declared inadmissible the action for annulment of the measure adopted by the President of the European Parliament on 13 January 2020, which prohibited MEPs from displaying national flags on their lecterns (‘the contested measure’). The General Court considered that the contested measure is not an act reviewable under Article 263 TFEU.

3.The appellants challenge this finding. This case, therefore, raises the evergreen question of which acts are reviewable by the Court of Justice of the European Union under Article 263 TFEU.

4.There is much to be said on that issue. (2) However, in the appeal procedure, the Court of Justice is constrained by the pleas and arguments as submitted by the appellants. (3) The Court cannot construe the appeal for the appellants, but can only address the pleas as they are submitted. In the circumstances of the present appeal, and for the reasons that I will explain below, I will propose that the Court of Justice dismiss the appeal. I am of the opinion that the arguments raised by the appellants do not support the conclusion that the General Court erred in law by dismissing their action at first instance as inadmissible. However, I do not agree with the reasoning provided by the General Court in support of that finding. I, will, therefore, propose that the Court of Justice substitute the reasoning of the General Court without annulling its decision.

II. Background to the dispute and the proceedings before the General Court

5.Mr Jérôme Rivière and the other appellants are elected MEPs.

6.During the plenary sitting of 13 January 2020, the President of the European Parliament orally warned the MEPs that it is prohibited to display national flags on the lecterns and asked the MEPs to remove them. That measure was contested by the appellants by bringing an action for its annulment before the General Court.

7.In two subsequent plenary sittings, of 29 and 30 January 2020, the Vice-Presidents presiding over those sessions invoked, while maintaining the order during sessions, the prohibition on displaying national flags on the lecterns. On two occasions, the microphones of individual MEPs were turned off in that context.

8.The Parliament subsequently explained, as submitted by the appellants, (4) that the contested measure was merely the restatement of the existing Rule 10(3) of the Parliament’s Rules of Procedure. That rule provides as follows: ‘Members shall not disrupt the good order of the Chamber and shall refrain from improper behaviour. They shall not display banners.’

9.By application of 13 February 2020, the appellants brought an action seeking the annulment of the contested measure before the General Court.

10.In support of their action, the appellants raised four pleas in law. The first plea was divided into two parts, by which they argued first, that there was a distortion of law and facts in respect of Rule 10(3) of the Parliament’s Rules of Procedure and second, that there was an infringement of Article 4(2) TEU. The second plea alleged a breach of legal certainty, while the third alleged an abuse of power. Finally, in their fourth plea, the appellants argued that there was a breach of equal treatment, legality, good administration, fumus persecutionis and the freedom of expression of MEPs.

11.The Parliament, in response, raised a plea of inadmissibility, based on first, the absence of a reviewable act pursuant to Article 263 TFEU; second, the appellants’ lack of standing, and third, their lack of interest in bringing an action. As a subsidiary point, the Parliament argued that the action was unfounded.

12.In the judgment under appeal, the General Court dismissed the action as inadmissible on the ground that the contested measure was not a reviewable act for the purposes of Article 263 TFEU.

13.In paragraphs 31 and 32 of the judgment under appeal, the General Court first recalled the settled line of case-law according to which the EU Courts have jurisdiction to review the validity of acts of the Parliament. It then explained that some acts of the Parliament are, however, excluded from judicial review, namely those that do not have legal effects or have such effects only in the internal organisation of the Parliament’s work (paragraph 33 of the judgment under appeal). (5)

14.The General Court further explained (in paragraph 34 of the judgment under appeal) that all acts of the Parliament producing legal effects for third parties are subject to review by EU Courts. It then recalled that MEPs are such third parties when it comes to acts of the Parliament that have legal effects on the conditions of exercising their parliamentary mandate (in paragraph 35 of the judgment under appeal). (6) The General Court, therefore, considered that admissibility depended on whether the contested measures modified the conditions of exercising the mandate of MEP (paragraph 37 of the judgment under appeal).

15.The General Court then found (in paragraph 38 of the judgment under appeal), that the contested measure was a prohibition, addressed to MEPs on the basis of Rule 10(3) of the Parliament’s Rules of Procedure, on displaying banners on their lecterns and did not go beyond the prohibition already set out in that provision. In the remainder of the judgment under appeal, the General Court interpreted the Parliament’s Rules of Procedure in order to substantiate that finding.

16.Thus, in paragraphs 42 to 44 of the judgment under appeal, it noted that it is apparent from the Parliament’s Rules of Procedure, which are based on parliamentary traditions common to the Member States, that MEPs express themselves, in principle, by speaking in the Parliament. It also observed that this is derived from Rule 171 of those rules. Any restriction on other means of expression is therefore intended to guarantee the equality of MEPs and the proper conduct of parliamentary business.

17.Further, the General Court found in paragraph 45 of the judgment under appeal that an image or an object, through the symbol it represents or the message it communicates, can undoubtedly serve as a means of expression, thus giving the MEPs who use it the possibility of asserting and defending their political convictions outside their speaking time. The General Court also considered, in paragraph 50 of the judgment under appeal, that the national flags in question fall within the scope of the French term ‘banderoles et bannières’, corresponding to the terms used in the other language versions of the Rules of Procedure, taking into account the meaning that the appellants ascribe to the use of national flags on their lecterns.

18.Having regard to all those reasons, the General Court held, in paragraphs 51 and 52 of the judgment under appeal, that the conduct of the appellants, in so far as it was disruptive to the proper functioning of the work of Parliament, fell within the scope of Rule 10(3) of the Parliament’s Rules of Procedure. Consequently, the contested measure was one pertaining to the internal organisation of Parliament’s work and did not produce legal effects, by bringing about a significant change in their legal position, in a way that would be detrimental to the conditions under which the appellants exercised their mandate as MEPs.

III. Procedure before the Court of Justice and the pleas and arguments of the parties

19.On 8 December 2021, the appellants lodged an appeal before the Court by which they asked the Court to set aside the judgment under appeal; declare the action for annulment admissible; annul the contested measure for lack of a legal basis; and order the Parliament to pay the costs.

20.The Parliament contends that the appeal should be dismissed and the appellants should be ordered to pay the costs.

21.The appellants put forward two legal arguments, without however explaining which pleas are supported by those arguments, or how (see points 36 to 43 of this Opinion). First, they argue a distortion of facts and an error in their legal classification and second, they argue that the General Court breached and distorted Rule 10(3) of the Rules of Procedure.

22.In essence, the appellants’ first argument consists in claiming that the General Court failed to take into account the consequences of the contested measure on the right of MEPs to speak, given that on 29 and 30 January 2020, the Vice-President of the Parliament cut the microphones of Mr Nigel Farage (7) and Mr Nicolas Fest, respectively, and allowed Mr Rivière to speak only because he removed his flag.

23.The appellants therefore claim that the General Court should have concluded that the contested measure produced legal effects of such a nature as to influence the exercise of their mandate.

24.By their second argument, the appellants claim that the French version of Rule 10(3) of the Parliament’s Rules of Procedure does not apply to national flags as it refers to banners. Therefore, the situation in the parliamentary session at issue does not fall within the scope of that rule.

25.The appellants argue that the French version of the Rules of Procedure should be decisive in the present case because it is the working language of the Parliament. (8) By analysing other language versions of Rule 10(3) of the Rules of Procedure, the appellants claim that the General Court distorted facts.

26.The appellants further argue that the General Court wrongly interpreted Rule 10(3) of the Rules of Procedure because its aim is not to ensure equality among MEPs, but to maintain order during sessions. Equality among MEPs is instead the aim of Rule 171 of the Rules of Procedure, which in turn does not regulate the maintenance of order during sessions.

27.In addition, the appellants argue that the General Court distorted the facts and erred in law when it failed to establish how the use of national flags disrupted the order of the session.

28.The appellants finally contend that the General Court wrongly characterised the nature of the elections to the European Parliament as transnational, and that the existence of national lists, as well as Article 4(2) TEU, reinforce their national character.

29.Conversely, the Parliament, primarily considers that the action brought by the appellants does not meet the admissibility threshold set out in Article 168 of the Rules of Procedure of the Court of Justice, as it does not contain legal arguments supporting their pleas in law.

30.In respect of the appellants’ first argument concerning a distortion of facts, the Parliament claims that the contested measure is only the oral decision of 13 January 2020 and not the measures taken on 29 and 30 January 2020. The opposite would, in the Parliament’s view, be an extension of the subject matter of the action.

31.In addition, as regards the sessions of 29 and 30 January 2020, the Parliament argues that the Vice-Presidents who were presiding the sessions were authorised, under Rule 175 of the Rules of Procedure, to cut the microphone as a measure to maintain the order in the plenary session. In any event the microphones were cut, not because of the presence of national flags on the lectern, but rather due to either the MEPs exceeding their allotted speaking time (in the case of Mr Farage), or due to the MEPs criticising the manner in which the Vice-President conducted the session (in the case of Mr Fest). Mr Rivière, the Parliament explained, spoke twice during the session of 30 January. The first time he spoke the flag was on his lectern, whereas the second time he lowered the flag himself. Therefore, the Parliament claims that there is no connection between the contested measure and the measures that entailed cutting the microphones.

32.Accordingly, the Parliament considers that the General Court has not distorted the facts and that this argument raised by the appellants must be rejected as manifestly unfounded.

33.In respect of the second plea, the Parliament argues that Rule 10(3) of the Rules of Procedure allows the prohibition of national flags from the lecterns of MEPs without any need of demonstrating the disruption of order in the sessions. Its aim is to limit the manner in which those MEPs express their views solely to speaking.

34.Finally, the Parliament argues that the General Court did not err when it considered other language versions in interpreting Rule 10(3) of the Rules of Procedure, given that focusing on one language version would be contrary to the well-established methods of interpretation of EU law.

35.The Parliament accordingly proposes that the appellants’ second argument should also be dismissed as manifestly unfounded.

At the outset, it should be noted that the present appeal, as rightly submitted by the Parliament, fulfils the requirements of Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice only marginally. According to those rules, an appeal is to contain pleas in law clearly supported by legal arguments and indicating which parts of the judgment of the General Court are being contested. (9)

The present appeal offers two legal arguments, but it does not explain which of the pleas in law the legal arguments support or how they support those pleas. Therefore, the Court could legitimately decide to reject this appeal due to its formal deficiencies.

Nevertheless, in an effort to admit this appeal, which is the solution I advise the Court to choose, it is possible to understand the pleas and arguments in the following way.

By their first argument, in essence, the appellants claim that the General Court erred in its legal classification of certain facts, which led it to the wrong legal conclusion. By the second argument, they claim essentially that the General Court wrongly interpreted Rule 10(3) of the Rules of Procedure.

I understand the first argument as being raised in support of the first two pleas, by which the appellants ask that the Court set aside the judgment under appeal and declare the original action admissible. The second argument is raised, to my mind, in support of the third plea, requesting that the Court annul the contested measure for lack of legal basis.

The Court of Justice may indeed, if it finds the appeal well founded and if it has sufficient information, replace the judgment of the General Court by its own judgment on the substance, or decide on the substance if the General Court dismissed the action on procedural grounds and for that reason did not decide on the substance. (10)

However, in the present case, the third plea requesting that the Court decide on the substance by annulling the contested measure may be taken into consideration only if the Court accepts the first two pleas. It is my opinion, as I will explain below, that the Court should reject the first two pleas. In that case, it would not be necessary to respond to the third plea.

Nevertheless, should the Court find to the contrary and admit the action for annulment, I would propose that it refer the case back to the General Court for the decision on the substance.

Admissibility of the action

On the appellants’ argument concerning the distortion of facts

The General Court found the action brought by the applicants at first instance inadmissible because the contested measure was not, according to that court, a reviewable act within the meaning of Article 263 TFEU.

To recall, as confirmed in the case-law, in the procedure governed by Article 263 TFEU the Court can review all legally binding acts of EU institutions and other bodies. (11) The Court further understood acts that are reviewable as measures, the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his or her legal position. (12)

In the present case, it is undisputed that the appellants contest the oral measure adopted by the President of the European Parliament during the session of 13 January 2020. The dispute relates rather to the assessment of whether that measure produced the legal effects depriving, or potentially depriving, the appellants of the right to speak during parliamentary sessions.

According to the appellants, even if that measure did not produce any legal consequences at the plenary sitting on 13 January 2020, it continued its existence also in subsequent parliamentary sessions and was a direct cause of some MEPs being deprived of the right to speak during the sessions of 29 and 30 January 2020.

The appellants therefore argue that the General Court’s conclusion that the contested measure is not capable of producing legal effects, and is therefore not a reviewable act, was based on the facts that were legally classified incorrectly.

According to the appellants, the General Court’s distortion of the facts consisted in the failure to regard the events that took place at the Parliamentary sessions of 29 and 30 January 2020 as being relevant in assessing of the nature of the measure at issue. Had the General Court taken those events into consideration, it would have concluded that the contested measure produced legal effects and therefore constitutes a reviewable act.

In the light of the arguments as set out by the appellants, the Court of Justice must therefore rule as to whether or not the General Court erred in concluding that depriving some MEPs of the right to speak at the sessions of 29 and 30 January 2020 was not a consequence of the oral measure announced during the plenary sitting of 13 January 2020.

At the outset, it is necessary to recall that in the context of an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. (13) Exceptionally, the Court of Justice may review whether the General Court distorted facts or evidence before it, however, that distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence. (14) In addition, the party claiming distortion must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal that, in that party’s view, led to such distortion. (15)

In that light, it does not seem to me that the General Court manifestly distorted the facts as they appear in the case file before the Court of Justice and the judgment under appeal.

The General Court was aware, as is evident from paragraphs 3, 19, and 29 of the judgment under appeal, that the appellants referred to the sessions of 29 and 30 January 2020. However, while it is clear that the General Court accepted the explanation offered by the Parliament and concluded that the deprivation of the right to speak at those sessions and the contested measure were not connected, it unfortunately failed properly to explain this. (16)

In that regard, even if the contested measure continued its existence in subsequent sessions of the Parliament, it was different from the measure that deprived some MEPs of their right to speak. This led the General Court to assess separately whether the contested measure produced legal effects outside the internal organisation of the work of the Parliament (paragraph 37 et seq. of the judgment under appeal). It concluded that the measure was consistent with Rule 10(3) of the Parliament’s Rules of Procedure, which is why its effects were limited to the internal organisation of that institution’s work.

I am of the opinion, as I will explain below, (17) that the reasoning of the General Court was erroneous in the sense that it confused the question of substance (conformity of the contested measure with Rule 10(3) of the Parliament’s Rules of Procedure) and the procedural issue of admissibility. Nevertheless, that court committed no manifest distortion of facts, resulting from its failure to take the sessions of 29 and 30 January 2020 into consideration, as argued by the appellants. It took the events that occurred during these sessions into consideration, but qualified them based on the arguments of the defendant, rather than the applicants in the case at first instance. In other words, the General Court found the argument offered by the Parliament more convincing than the one offered by the applicants at first instance. Therefore, the General Court neither disregarded certain facts nor did it legally classify them incorrectly.

The argument that the General Court based its decision on distorted facts must thus be rejected.

As that was the only argument put forward by the appellants in support of their first and second pleas, the Court could, on that basis alone, reject the appeal.

However, in the remainder of this Opinion, I will explain why, to my mind, the General Court’s conclusion on inadmissibility was correct, but the reasoning which led it to that conclusion was not.

Why was the action for annulment introduced in the present case inadmissible?

(a)

Where has the General Court erred in its reasoning?

The main line of reasoning of the General Court was to demonstrate that the contested measure was not a reviewable act because it did not exceed the scope of Rule 10(3) of the Parliament’s Rules of Procedure. That made it an internal measure of the organisation of the work of the Parliament and, therefore, a non- reviewable act (see, in particular, paragraph 52 of the judgment under appeal). Therefore, the General Court answered the question on the merits – that the contested measure was properly based on Rule 10(3) of the Parliament’s Rules of Procedure – in order to find the action inadmissible.

In my opinion, any effort to distinguish formally between measures of internal organisation of the work of an institution, which are not reviewable, and measures that produce or are intended to produce legal effects vis-à-vis third parties, which are reviewable, is misleading.

The only relevant question, to my mind, is whether the measure is capable of affecting the rights and obligations that persons derive from EU law. Only if a measure does not have such effects can it be deemed merely an internal measure. It is therefore not necessary to inquire whether the measure is an internal one, but rather whether it is capable of affecting a person’s rights.

The case-law cited by the General Court, (18) in essence, confirms that position. The methodology used by the Court of Justice in those judgments does not demand an inquiry into whether the measure is internal, even though the Court ultimately concluded that certain measures at issue in those cases were internal in nature. In those decisions, the Court found that in the specific cases where measures were internal to the organisation of the Parliament’s work, they at the same time did not affect the rights of third parties. That is why the Court refused to review them.

Let me illustrate this by the judgment in Weber v Parliament, cited by the General Court. Here, the Court of Justice found that the measures not susceptible to judicial review are those ‘which either do not have legal effects or have legal effects only within the Parliament as regards the organisation of its work and are subject to review procedures laid down in its Rules of Procedure’. (19)

Further on, the Court found that ‘rules on an end-of-service allowance for [MEPs] and individual measures applying those rules have legal effects going beyond the internal organisation of the work of that institution in so far as they affect the financial situation of [MEPs]’. (20)

In other words, the rules in that case were most certainly measures of internal organisation of the work of the Parliament. However, they were reviewable because they affected the rights of an MEP granted by EU law.

In order to justify its position on the non-reviewability of the contested measure through the prism of its supposed internal nature, as already explained in point 59 of this Opinion, in the judgment under appeal the General Court unnecessarily entered into questions of substance, (21) only ultimately to reject the action on procedural grounds. Even though avoiding all aspects of substance is not always possible when deciding on admissibility, (22) in the present case this was not necessary.

In order to decide on admissibility in the present case, the General Court should have concentrated only on whether the contested measure was capable of producing legal effects consisting in the deprivation of the right to speak, as claimed by the appellants.

The application of the case-law defining a reviewable act (see point 45 above) would lead the General Court to the same conclusion – that the contested measure does not have legal effects that change the legal position of the applicants – without requiring any engagement with the substance of the claims. Once an action is rejected as inadmissible, the General Court does not have jurisdiction to discuss the substance of the claim, as the General Court did in the case at hand. (23)

The General Court’s error in reasoning should not, however, lead to the setting aside of the judgment under appeal. The Court of Justice established that this is not necessary when the operative part of that judgment remains well founded. (24) I consider that to be the case here.

The question remains as to what reasoning, leading to the same conclusion of inadmissibility, should substitute the reasoning of the General Court in the judgment under appeal.

(b)

How to reason about admissibility in the present case?

In my view, it is first necessary to ask what type of act the contested measure is. It follows from the undisputed facts of the case that it was an oral instruction to remove national flags from the lecterns because displaying them was contrary to Rule 10(3) of the Parliament’s Rules of Procedure. That provision is self-executing – it prohibits the display of banners during Parliament’s sessions, without any need for implementing measures. Therefore, the contested measure should, in my opinion, be qualified as the interpretation of Rule 10(3) of the Parliament’s Rules of Procedure by the President of the Parliament, according to which national flags are caught by the prohibition at issue.

The appellants, however, seem to disagree with such an interpretation. They are of the opinion that Rule 10(3) of the Parliament’s Rules of Procedure does not prevent displaying national flags on lecterns. Therefore, the appellants decided to challenge that interpretation by claiming that it affected their right to speak at Parliament’s sessions. To my mind, that claim framed the part of the case before the General Court that is now under appeal. That court was only invited to answer whether the contested measure is indeed capable of affecting MEPs’ right to speak during parliamentary sessions. If so, the measure would be reviewable (and only then should the General Court deal with questions of substance). If not, the measure would not be reviewable: case closed.

Is it possible to decide whether the contested measure is in itself capable of depriving MEPs of their right to speak, without entering into the question of whether it is a correct interpretation of Rule 10(3) of the Parliament’s Rules of Procedure? In my view, it is possible and follows from both the purpose of the action for annulment and the case-law defining the concept of a ‘reviewable act’.

The rationale of annulment actions may be derived from the judgment in Les Verts. (25) It is at the heart of the principle of the rule of law, as one of the fundamental values underpinning the EU legal order on which the Court relied in that judgment, that every person considering that his or her EU law rights are infringed by an EU institution or body must have access to a court.

At the same time, the Court, as already mentioned (point 45 of this Opinion and the case-law cited), defined the concept of a ‘reviewable act’ as an act that is capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position. (26) Though I have no intention of criticising that case-law here, (27) its application to the present case leads to the conclusion that the contested measure, alone, did not and could not, cause a change in the MEPs’ legal position in the sense of depriving them of their right to speak. For this to happen, another measure, taken by the person presiding the session, was necessary.

The appellants claim that the contested measure is capable of depriving them of their right to speak as MEPs. I am of the opinion that if that were so, that measure would need to be classified as a reviewable act. However, has the contested measure deprived the MEPs of their right to speak? The deprivation of that right took place by an act of the Vice-Presidents of the Parliament on 29 and 30 January 2020, who ordered that the microphones of two MEPs during two different sessions be turned off.

It is disputed between the parties whether the prohibition of displaying flags on lecterns was the (only) reason for those decisions of the Vice-Presidents. However, even if that was the only motive for the latter decision, those decisions depended on the discretion exercised by the presiding Vice-Presidents during the sessions of 29 and 30 January 2020. The same is true for any possible future deprivation of the right to speak, which does not arise as an automatic consequence of having national flags on lecterns.

Thus, the contested measure did not entail an automatic deprivation of the right to speak. That deprivation depended on the choice made by the person presiding the parliamentary session. It was therefore the measures of the Vice-Presidents of the Parliament of 29 and 30 January 2020 that directly affected the right to speak of certain MEPs.

Consequently, it is not possible to conclude that the contested measure brought about a distinct change in the legal position of the appellants by affecting the way in which they exercise their mandate.

At the same time, the appellants were not left without a legal remedy against the measures that did deprive them of the right to speak.

The MEPs could have brought actions for annulment of the measures taken by the Vice-Presidents during the sessions of 29 and 30 January 2020. Here, they could also have raised the invalidity of the interpretation given to Rule 10(3) of the Parliament’s Rules of Procedure by the contested measure, if that interpretation motivated the later measures they would have challenged.

This appeal could have had a different angle had the appellants relied on the freedom of expression, instead of relying on the right to speak during the Parliament’s sessions. The contested measure was not, as demonstrated, a direct cause of the alleged infringement of the latter right. However, the analysis might have led to a different conclusion had the appellants argued that the contested measure disproportionately infringed their freedom of expression, understood as the right to display a national flag on the lectern. Such a claim, however, would in fact mean that they contest the validity of Rule 10(3) of the Parliament’s Rules of Procedure as interpreted by the President of the Parliament.

However, given the arguments raised in this appeal, such an analysis would go beyond its scope.

In the light of the foregoing, I propose that the Court should:

dismiss the appeal, and

order the appellants to pay the costs.

—

(1) Original language: English.

(2) As witnessed by the abundant academic literature on the topic. See, for example, Arnull, A., ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’, Common Market Law Review, Vol. 32(1), 1995, p. 7; Albors-Llorens, A., ‘Remedies Against the EU Institutions After Lisbon: An Era of Opportunity?’, Cambridge Law Journal, Vol. 71(3), 2012, p. 507; Bergstrom, C. F., ‘Defending Restricted Standing for Individuals to Bring Direct Actions against “Legislative” Measures: Court of Justice of the European Union Decision of 3 October 2013 in Case C‑583/11 P’, European Constitutional Law Review, Vol. 10, 2014, p. 481; Gentile, G., ‘Ensuring effective judicial review of EU soft law via the action for annulment before the EU courts: a plea for a liberal-constitutional approach’, European Constitutional Law Review, Vol. 16(3), 2020, p. 466. See also Opinion of Advocate General Bobek in Belgium v Commission (C‑16/16 P, EU:C:2017:959, points 67 to 79).

(3) Except the ex officio examination of the conditions governing the admissibility of an action. See, for example, judgment of 21 January 2021, Germany v Esso Raffinage (C‑471/18 P, EU:C:2021:48, paragraph 101).

(4) The appellants refer to the following news article that reported that explanation of the Parliament: ‘Les eurodéputés ont-ils le droit de déployer un drapeau dans l’hémicycle du Parlement européen?’ (14 January 2020), published by 20 minutes. Available at <https://www.20minutes.fr/monde/2695031-20200114-eurodeputes-droit-deployer-drapeau-hemicycle-parlement-europeen>.

(5) The General Court here referred to orders of 4 June 1986, Groupe des droites européennes v Parliament (78/85, EU:C:1986:227, paragraph 11) and of 22 May 1990, Blot and Front national v Parliament (C‑68/90, EU:C:1990:222, paragraph 11), and judgment of 23 March 1993, Weber v Parliament (C‑314/91, EU:C:1993:109, paragraph 9).

(6) The General Court here cited judgment of 2 October 2001, Martinez and Others v Parliament (T‑222/99, T‑327/99 and T‑329/99, EU:T:2001:242, paragraph 61).

(7) It is worth noting that Mr Farage was not among the MEPs who initiated or intervened in the action at first instance. Accordingly, he is also not among the appellants.

(8) The appellants refer to Council Regulation (EEC) No 1/1958 of 6 October 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I 1952-1958, p. 59).

(9) Order of 17 September 1996, San Marco v Commission (C‑19/95 P, EU:C:1996:331, paragraph 37 and the case-law cited).

(10) Article 61(1) of the Statute of the Court of Justice of the European Union. See, for example, judgments of 3 May 2012, Spain v Commission (C‑24/11 P, EU:C:2012:266, paragraph 50), where the Court decided the case itself; and of 26 June 2012, Poland v Commission (C‑336/09 P, EU:C:2012:386, paragraph 43), where the Court referred the case back to the General Court.

(11) Judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32, paragraph 42).

(12) That definition is used in the case-law of the Court, beginning with the judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 9). See also, judgments of 15 January 2003, Philip Morris International v Commission (T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 77); of 12 September 2006, Reynolds Tobacco and Others v Commission (C‑131/03 P, EU:C:2006:541, paragraph 54); of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 51); of 21 January 2021, Germany v Esso Raffinage (C‑471/18 P).

EU:C:2021:48

; and of 6 May 2021, ABLV Bank and Others v ECB (C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 39).

See, to that effect, judgment of 2 September 2010, Commission v Deutsche Post (C‑399/08 P, EU:C:2010:481, paragraph 63).

See, to that effect, judgment of 29 October 2015, Commission v ANKO (C‑78/14 P, EU:C:2015:732, paragraph 54).

See judgment of 10 November 2022, Commission v Valencia Club de Fútbol (C‑211/20 P, EU:C:2022:862, paragraph 55).

See paragraph 38 of the judgment under appeal.

See Section IV.B.2(a) below.

Judgment under appeal, paragraph 33. Here the General Court cites orders of 4 June 1986, Groupe des droites européennes v Parliament (78/85, EU:C:1986:227, paragraph 11); and of 22 May 1990, Blot and Front national v Parliament (C‑68/90, EU:C:1990:222, paragraph 11); and judgment of 23 March 1993, Weber v Parliament (C‑314/91, EU:C:1993:109, paragraph 9).

Judgment of 23 March 1993, Weber v Parliament (C‑314/91, EU:C:1993:109, paragraph 10).

Ibid, paragraph 11, emphasis added. On the contrary, for example, the Court found that a decision of the Parliament to hold an urgent debate did not produce effects beyond its internal organisation in the judgment of 22 September 1988, France v Parliament (C‑358/85 and 51/86, EU:C:1988:431, paragraph 17).

Such as whether Rule 10(3) of the Parliament’s Rules of Procedure could have served as the legal basis for the measure at issue; what the purpose of that rule is, or whether the term ‘banner’ includes national flags. See, in that respect points 15 to 18 of this Opinion.

The Court has confirmed that in order to determine whether a contested measure produces binding legal effects for the purposes of determining its reviewability, it is necessary to examine its content. Judgment of 9 October 1990, France v Commission (C‑366/88, EU:C:1990:348, paragraph 11).

The General Court’s analysis of substance created additional confusion in those appellate proceedings before the Court, because the appellants, in the arguments related to their third plea, respond to certain substantive findings of the General Court. This is done, however, not to challenge the decision on admissibility, but rather to offer arguments to the Court to resolve the case on substance. See point 42 above.

Orders of 15 February 2012, Internationaler Hilfsfonds v Commission (C‑208/11 P, not published, EU:C:2012:76, paragraph 35); of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564, paragraphs 23 and 24).

Judgment of 23 April 1986 (C‑294/83, EU:C:1986:166).

That case-law started with the judgment of 11 November 1981, IBM v Commission (C‑60/81, EU:C:1981:264), in which the Court addressed the question of whether an act has legal effects from the point of view of the applicant, rather than in the abstract, as was done in earlier cases. See, in that respect, the description of the case-law in Opinion of Advocate General Sharpston in Reynolds Tobacco and Others v Commission (C‑131/03 P, EU:C:2006:228, points 101 to 103).

Arnull argues that the issue of reviewability of an act should not depend on the circumstances of the applicant, which should pertain to the issue of standing. Arnull, A., ‘When is an act not an act?’, European Law Review, Vol. 32(1), 2007, 1, at p. 2. In line with such a view, which I personally endorse, the General Court could have found the action inadmissible based on the lack of standing of the applicants, as the challenged act was not of direct concern to them.