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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> LL v Parliament (Appeal - Action for annulment - Former Member of the European Parliament - Opinion) [2017] EUECJ C-326/16P_O (26 July 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/C32616P_O.html Cite as: EU:C:2017:605, ECLI:EU:C:2017:605, [2017] EUECJ C-326/16P_O |
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OPINION OF ADVOCATE GENERAL
SZPUNARdelivered on 26 July 2017 (2) Case C‑326/16 PLLvEuropean Parliament(Appeal — Action for annulment — Former Member of the European Parliament — Decision to recover allowances relating to the performance of parliamentary duties — Action for annulment — Admissibility — Procedure for complaining to the bodies of the European Parliament — Article 72 of the Implementing Measures for the Statute for Members of the European Parliament — Notification of the decision adversely affecting a Member of the European Parliament — Registered letter not collected by its addressee — Time limit for instituting proceedings — Sixth paragraph of Article 263 TFEU) Introduction 1. By his appeal, the appellant, Mr LL, a former Member of the European Parliament (MEP), seeks to have set aside the order of the General Court of the European Union in LL v Parliament, (3) by which that court dismissed as manifestly inadmissible because brought out of time his action for the annulment of the Parliament’s decision to recover an allowance paid to the appellant during his parliamentary term of office. 2. This appeal raises two issues of EU procedural law not previously addressed by the Court namely, on the one hand, the relationship between the — administrative and judicial — remedies available against Parliament decisions adversely affecting MEPs and, on the other hand, the rules governing the notification of individual decisions in cases where it has not been possible to deliver the letter of notification to the addressee. Legal framework 3. Article 68(1), entitled ‘Recovery of undue payments’, of the Decision of the Bureau of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (4) provides: ‘Any sum unduly paid pursuant to these implementing measures shall be recovered. The Secretary-General shall issue instructions with a view to recovery of the sums in question from the Member concerned.’ 4. Article 72 of the implementing measures, entitled ‘Complaints’, states:‘1. A Member who takes the view that these implementing measures have not been correctly applied to him or her by the competent service may address a written complaint to the Secretary-General.The decision of the Secretary-General on the complaint shall state the reasons on which it is based.2. A Member who does not agree with the decision of the Secretary-General may, within two months after notification of the Secretary-General’s decision, request that the matter be referred to the Quaestors, who shall take a decision after consulting the Secretary-General.3. If a party to the complaint procedure does not agree with the decision adopted by the Quaestors, he or she may, within two months after notification of that decision, request that the matter be referred to the Bureau, which shall take the final decision.4. This Article shall also apply to a Member’s legal successor as well as to former Members and their legal successors.’ Background to the dispute 5. The appellant was an MEP during the 1999-2004 legislative period. 6. Following an investigation by the European Anti-Fraud Office (OLAF), which found that a parliamentary assistance allowance in the amount of EUR 37 728 had been wrongly paid to the appellant, the Secretary-General of the Parliament, on 17 April 2014, adopted a decision to recover that sum. That decision was notified to the appellant on 22 May 2014 (‘the contested decision’), together with the debit note of 5 May 2014 setting out the recovery arrangements. 7. The appellant lodged a complaint against that decision and asked for the matter to be referred to the Quaestors pursuant to Article 72(2) of the implementing measures. 8. That complaint was rejected by the Quaestors by letter of 3 December 2014, of which the appellant claims to have had first knowledge the following day. 9. On 2 February 2015, the appellant asked for the matter to be referred to the Bureau of the Parliament, in accordance with Article 72(3) of the implementing measures. 10. The Bureau of the Parliament rejected the appellant’s complaint by decision of 26 June 2015 (‘the Bureau’s decision’). 11. The Parliament states that the Bureau’s decision was sent by registered letter on 30 June 2015 to the address provided by the appellant in his letter of complaint. That letter was returned by the Belgian postal service without having been collected by the appellant. 12. On 10 September 2015, the appellant received from a Parliament official an email attached to which were the Bureau’s decision and the debit note for the amount in question. The procedure before the General Court and the order under appeal 13. By an application lodged at the Registry of the General Court on 4 November 2015, the appellant brought an action for the annulment of both the contested decision and the debit note of 5 May 2014. 14. In support of that action, the appellant relied on two pleas in law, alleging, first, that the contested decision was unlawful and unfounded and, second, that there had been an infringement of the principles of limitation, a reasonable period, legal certainty and the protection of legitimate expectations. 15. By the order under appeal, the General Court dismissed the action as manifestly inadmissible on the ground that it had not been brought within the time limit for instituting proceedings laid down in the sixth paragraph of Article 263 TFEU. The General Court stated that the contested decision and the debit note had been notified to the appellant on 22 May 2014 but the action had not been brought until 4 November 2015, that is to say more than 17 months after the date of notification, no plea having been raised by the appellant as to the existence of unforeseeable circumstances or force majeure. Forms of order sought by the parties before the Court of Justice 16. The appellant claims that the Court should set aside the order under appeal and refer the case back to the General Court. The Parliament contends that the Court should dismiss the appeal and order the appellant to pay the costs. Analysis of the appeal 17. In support of the appeal, the appellant relies on four grounds of appeal, alleging, first, failure by the General Court to carry out a full examination of the documents before it and an error of law in the application of the sixth paragraph of Article 263 TFEU and Article 72 of the implementing measures; second, infringement of Article 126 of the Rules of Procedure of the General Court; third, infringement of Article 47 of the Charter of Fundamental Rights of the European Union; and fourth, infringement of Article 133 and Article 134(1) of the Rules of Procedure of the General Court, so far as concerns the order awarding costs against the appellant. 18. In my view, the first ground of appeal should be examined first. Introduction 19. By his first ground of appeal, the appellant claims that, in his application at first instance, he stated that he had lodged a complaint against the contested decision before the Quaestors and, subsequently, before the Bureau. He accuses the General Court of not having taken that fact into account when calculating the time limit for instituting proceedings and, furthermore, of having committed an error of law in the application of the sixth paragraph of Article 263 TFEU and Article 72 of the implementing measures. 20. The Parliament disputes the appellant’s arguments. 21. It is to be noted that this ground of appeal actually comprises two separate heads of claim, alleging, first, failure to provide a sufficient statement of reasons for the order under appeal and, second, an error of law. The statement of reasons for the order under appeal 22. The appellant claims that the General Court failed to take account of the fact that he had initiated the complaint procedure provided for in Article 72 of the implementing measures. 23. I consider that head of claim to be well founded. 24. After all, it is clear from the application at first instance that, having been notified of the contested decision, the appellant had lodged a complaint against it, in accordance with Article 72 of the implementing measures, first before the Quaestors and then before the Bureau. In his application, the appellant further stated that he had lodged that complaint in good time and had been informed of its rejection by the email from the Parliament of 10 September 2015. 25. In finding that the action is out of time because it was brought more than 17 months after the date on which the contested decision was notified (paragraphs 7 and 9 of the order under appeal), the General Court failed to rule on the consequences of that complaint procedure vis-à-vis the calculation of the time limit for instituting proceedings. 26. It follows that the order under appeal is vitiated by a failure to state reasons in that regard. The alleged error of law in the application of the sixth paragraph of Article 263 TFEU and Article 72 of the implementing measures 27. In so far as it is implicit in the order under appeal that the lodging of a complaint under Article 72 of the implementing measures does not in any event have a bearing on the calculation of the time limit for instituting proceedings laid down in the sixth paragraph of Article 263 TFEU, the appellant submits that the General Court misapplied those provisions. 28. It is to be noted that this head of claim will enable the Court to interpret Article 72 of the implementing measures for the first time. 29. That interpretation will be of not inconsiderable practical importance, given the growing number of proceedings relating to the application of that provision. 30. The General Court commented on the relationship between a complaint under Article 72 of the implementing measures and the taking of legal action when it ruled on a plea of inadmissibility, in a case that is currently pending, in its order in Le Pen v Parliament. (5) 31. According to the General Court, the two remedies — one administrative, one judicial — are not mutually exclusive, an applicant being at liberty to lodge a complaint against a Parliament decision under Article 72 of the implementing measures while at the same time bringing an action before the General Court. That ruling is based on the rationale that Article 72 establishes an optional complaint procedure that does not have suspensory effect and is not a precondition for bringing legal proceedings. (6) 32. In making that ruling, the General Court rejected the position taken by the Parliament, which had submitted in that case that, when an MEP lodges a complaint against a decision, he or she cannot at the same time take legal action against the same decision, since such action would be premature. (7) The Parliament puts forward the same argument in the present case, inasmuch as it submits that, although Article 72 of the implementing measures does not provide for a mandatory pre-litigation procedure, the fact remains that, if an MEP chooses to lodge a complaint, he or she may no longer take legal action, but must await the outcome of the complaint procedure and, if appropriate, contest the decision rejecting the complaint. 33. It is common ground that Article 72 of the implementing measures makes available to MEPs an optional procedure for lodging complaints against decisions adopted by the Parliament. 34. What is more, that provision must, in my view, be interpreted as meaning that it is a complaint procedure preliminary to the taking of legal action. 35. It follows from the very logic of administrative proceedings that an administrative remedy — whether mandatory or optional — must be preliminary to legal action. The complaint procedure provides an opportunity for the individual and the administration to engage in conciliation (8) aimed at avoiding litigation. The administrative procedure ceases to serve any purpose once the person concerned brings legal proceedings against the same measure. 36. Article 72 of the implementing measures thus provides for a procedure which is by definition preliminary to litigation, even though it is optional for the person concerned. 37. With regard to the effects of that procedure on the time limit for instituting proceedings laid down in the sixth paragraph of Article 263 TFEU, I take the view that a pre-litigation procedure must necessarily defer the time limit for bringing legal proceedings. Any other interpretation would run counter to the practical effect sought by a pre-litigation procedure. The same view follows from the principle, adopted in the administrative law of a number of Member States, whereby any administrative decision may be the subject of an administrative appeal which — provided that it was brought within the time limit for instituting legal proceedings — interrupts the running of that time limit. (9) 38. That view also informs the approach explicitly taken by the legislature in relation to the preliminary complaint procedure provided for, as a mandatory step, in Articles 90 and 91 of the Staff Regulations of Officials of the European Union, (10) whereby the time limit for bringing proceedings runs from the day on which the decision rejecting the complaint was notified. 39. Furthermore, in accordance with settled case-law, the administrative complaint and its rejection constitute an integral part of a complex procedure preliminary to the taking of legal action. Consequently, the action for annulment, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the person concerned against which the complaint was submitted. (11) The action is admissible whether it is directed against the decision forming the subject of the complaint or against the decision rejecting the complaint, in so far as the complaint and the action were brought within the prescribed time limits. (12) 40. To my mind, those considerations are equally applicable to the complaint procedure provided for in Article 72 of the implementing measures. 41. The Parliament nevertheless submits that, unlike the complaint [procedure] under Articles 90 and 91 of the Staff Regulations of Officials of the European Union, which is mandatory, the complaint [procedure] provided for in Article 72 of the implementing measures is optional and is not subject to a reply deadline limiting the action of the administration. 42. I do not consider that difference to be relevant in the present case. Preliminary administrative appeals have the same purpose — to provide a pre-litigation remedy — whether they are mandatory or optional. Moreover, so far as concerns the absence of a reply deadline incumbent on the administration, I would submit that such a deadline constitutes a necessary guarantee in the case of a mandatory administrative appeal, since any failure to act on the part of the administration may delay the taking of legal action. Where the administrative procedure is optional, on the other hand, there is no risk that the absence of a reply deadline will limit access to the courts, given that the appellant is at liberty to withdraw from the administrative procedure and bring legal proceedings at any time. 43. In the light of the foregoing, I take the view that Article 72 of the implementing measures must be interpreted as meaning that the time limit for bringing an action for annulment provided for in the sixth paragraph of Article 263 TFEU is interrupted by the lodging of a complaint against the measure adversely affecting the person in question, provided that that complaint was lodged within the prescribed time limit or, in the absence of a time limit for lodging a complaint, (13) within the time limit for bringing legal proceedings. The time limit starts to run again from the day on which the decision rejecting the complaint was notified. 44. The action for annulment further to that complaint procedure has the effect of bringing before the judicature the act adversely affecting the person concerned against which the complaint was submitted. As the Court held in connection with the complaint procedure provided for in Articles 90 and 91 of the Staff Regulations, (14) this is the case even where the action is formally directed against the rejection of the complaint. 45. Moreover, if an MEP brings an action for annulment before the General Court rather than lodging a complaint or before the complaint procedure is concluded, he or she must be regarded as having withdrawn from that preliminary procedure. This follows from the optional nature of the procedure at issue, the decision to pursue (or not to pursue) which is a matter for the person concerned. I am not therefore convinced by the approach taken by the General Court in Le Pen v Parliament. (15) 46. In so far as the order under appeal rests implicitly on the position that the time limit for instituting proceedings against the contested decision was not interrupted by the lodging of the complaint under Article 72 of the implementing measures, that order is vitiated by an error of law. 47. Consequently, it is my view that the two heads of claim comprising this ground of appeal should be upheld and the order under appeal set aside, there being no need to consider the other grounds of appeal. The consequences of setting aside the order under appeal General observations 48. In accordance with Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice sets aside the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court. 49. In the present case, I consider that the Court of Justice is in possession of the information necessary to enable it to give final judgment on the admissibility of the action. It is not, however, in a position to rule on the merits of the action, given that, in the order under appeal, the General Court confined itself to dismissing the action as manifestly inadmissible without having considered the substance of the case. 50. It is common ground that, as the addressee of the contested decision, the appellant has standing to bring proceedings under the fourth paragraph of Article 263 TFEU. 51. The only plea of inadmissibility relied on by the Parliament concerns compliance with the time limit for instituting proceedings. 52. The Parliament raises two arguments in this regard, the first relating to the running of that time limit and the second relating to the date of notification of the decision rejecting the complaint. The running of the time limit 53. First, the Parliament submits that, in so far as the action is directed against the contested decision and not against the Bureau’s decision rejecting the complaint, the time limit for instituting proceedings must be calculated from the day on which that first decision was notified. Consequently, the Parliament contends, that time limit has been exceeded by several months. 54. In the light of the foregoing considerations, (16) that argument is untenable. After all, the time limit for bringing an action against the contested decision, although having started to run, was interrupted by the lodging of the complaint, and started to run again, in full, on the day on which the Bureau’s decision rejecting the complaint was notified. The date on which that decision was notified therefore constitutes the starting point for calculating the time limit for bringing proceedings. The date of notification of the decision rejecting the complaint 55. Secondly, the Parliament submits that the action brought is out of time, even assuming that time starts to run from the day on which the decision rejecting the complaint was notified. For, according to the Parliament, that decision was notified by registered letter with acknowledgement of receipt, a notice of the attempted delivery of which was left by the postal service on 30 June 2015. The Parliament submits that, since the appellant did not collect the letter within the standard 15-day period during which the Belgian postal service holds such items, the decision must be regarded as having been duly notified on 15 July 2015, that is to say the date on which that holding period expired. The Parliament further contends that the fact that, on the date on which the notice of attempted delivery was left, the appellant had already moved abroad and no longer lived at the address provided, is irrelevant, given that the appellant did not inform the Parliament of his change of address. 56. The appellant disputes that argument on the ground that his first knowledge of the Bureau’s decision came from an email from the Parliament of 10 September 2015, this therefore being the date to be taken as the date of notification. 57. In order to dispose of the plea of inadmissibility raised by the Parliament, it is important to determine the rules for calculating the time limit for bringing proceedings in cases where the decision adversely affecting the person concerned is notified by registered letter with acknowledgment of receipt. 58. This is an important point of procedure, given the frequency with which the institutions use this method of notification. 59. I would recall that the third subparagraph of Article 297(2) TFEU clearly states that decisions which specify to whom they are addressed must be notified to those to whom they are addressed and take effect upon such notification. That provision enshrines a principle of legal certainty from which it follows that the rights and obligations arising from an individual administrative act cannot be relied on against the addressee of that act until the latter has been duly made known to him. (17) 60. The sixth paragraph of Article 263 TFEU provides that, in the case of a measure requiring notification, an action for annulment must be instituted within two months of its notification to the applicant. 61. It is settled case-law that a decision is properly notified within the meaning of the sixth paragraph of Article 263 and the third subparagraph of Article 297(2) TFEU if it reaches the addressee and puts the latter in a position to take cognisance of it. (18) 62. The rules of notification applied in order to satisfy those requirements must not be excessively formalistic but must respect the general principles of law, in particular the principle of sound administration. (19) 63. So far as concerns notification by registered letter with acknowledgment of receipt, I would submit that, where the letter is returned to its sender because its addressee has not collected it, it clearly has not been possible to deliver it to its addressee. 64. The Parliament nonetheless submits that a registered letter with acknowledgement of receipt must be regarded as having been properly notified where the addressee, alerted to its existence by a notice of attempted delivery left at his residential address, does not collect the letter within the period during which it is held by the postal service. 65. The Parliament refers in this regard to the order in AG v Parliament, (20) in which the Civil Service Tribunal held that notification by registered letter is lawful if it complies with the ‘national rules governing the delivery of mail’. The Civil Service Tribunal further held, albeit without specifying which national rules it was applying, that, where the addressee does not collect the registered letter within the period during which it is held by the postal services, that letter must be regarded as having been properly notified on the date on which that period expired. (21) 66. It is to be noted that the presumption that notification is deemed to have been properly effected, subject to certain conditions, even where the addressee does not collect the registered letter, exists in the national legal systems of some Member States. In civil proceedings in particular, the ability to establish that the procedural document is deemed to have been notified serves to safeguard the applicant’s right to effective judicial protection, the impossibility of obtaining a judicial decision on account of difficulties connected with notifying the defendant being capable of leading to a denial of justice. (22) Even where such a presumption is provided for in national law, the circumstances in which that presumption may be relied upon vary from one Member State to another. (23) 67. I take the view that any introduction of such a presumption into EU procedural law would fall exclusively to the legislature. 68. For, given the requirement of legal certainty that attaches to the application of statutory time limits, the right to introduce a new rule on the notification of individual decisions which would have legal consequences vis-à-vis the date on which such decisions take effect and the calculation of the time limit for instituting proceedings, must be reserved for the legislature. This is particularly true where the application of the presumption in question must be accompanied by specific rules drawn up in advance, not least a uniform period at the end of which the letter is deemed to have been notified, given that the [holding] periods observed by postal services vary according to the country, service and nature of the postal item concerned. 69. I would also make the point that a broad interpretation of the rules governing the notification of individual decisions, as proposed by the Parliament, would be at odds with the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights, as well as with the principle in dubio pro actione, whereby, in cases of doubt, preference should be given to an interpretation of procedural provisions which does not deprive the interested parties of their right to resort to legal proceedings. (24) 70. It follows, in my view, that, in the absence of any explicit provisions to that effect, (25) an EU institution cannot rely on a presumption that notification has been properly effected where the addressee does not collect the registered letter within the period during which it is held by the postal services. 71. What is more, the absence of a rule of EU law to that effect cannot be offset by reference to national law. 72. It is to be noted that neither the sixth paragraph of Article 263 TFEU nor Article 297(2) TFEU refers to national law for the purposes of determining the meaning or scope of the concept of ‘notification’. 73. The Court has consistently held that the terms of a provision of EU law which makes no express reference to the law of the Member States must normally be given an autonomous and uniform interpretation throughout the European Union. (26) In the case of time limits for instituting proceedings, such an interpretation must also serve to avoid any discrimination in the administration of justice. (27) 74. That requirement of an autonomous and uniform interpretation is particularly imperative in the present case, inasmuch as this is concerned with a concept of EU primary law that serves to determine the date on which the decisions of the institutions begin to produce their legal effects. 75. A reference to national law would undermine that requirement, given the significant variation in national provisions with respect both to whether it is even possible to presume that notification has been effected despite the fact the letter has not reached its addressee, and, if so, to the conditions under which such a presumption may be made. 76. Furthermore, in so far as the Parliament submits that it was legitimately able to rely on the Belgian address provided by the appellant in his complaint, I would make the point, first, that, to my knowledge, there is no explicit rule that requires a party to the complaint procedure at issue to inform the institution of any change of address. (28) Nor does the Parliament say that it informed the appellant of any such obligation. Secondly, even assuming that such an obligation exists, the Parliament does not cite any rule of law specifying the consequences of failing to provide such information. In those circumstances, a reference to national law strikes me as being inadequate because the rules vary from one Member State to another. Furthermore, consideration would then have to be given to whether the national rules to be applied are those of Belgian law or of the law of the country in which the appellant was habitually resident at the time of the notification. In any event, even though the appellant failed to inform the Parliament that his address changed after he had lodged the complaint, it should be noted that, in his complaint, he had also provided his email address and telephone number, which, according to the appellant, have remained unchanged. 77. It follows that, contrary to the Parliament’s submission, the Bureau’s decision rejecting the complaint lodged by the appellant cannot be regarded as having been notified on 15 July 2015. 78. With regard to the date of notification of that decision, I would submit that it is for the party claiming that an action is out of time to prove the date on which the decision was communicated to its addressee. (29) 79. Consequently, in the absence of any proof to the contrary from the Parliament, it must be concluded that the Bureau’s decision was communicated to the appellant by email of 10 September 2015. 80. It is to be noted that the appellant gave the email address in question to the Parliament, inter alia, in his letter of complaint of 2 February 2015, that method of communication having therefore been implicitly accepted by the parties. In its response, the Parliament itself states that it sent the email in question in order to comply with the principle of sound administration. Furthermore, since the appellant acknowledged receipt of the email without delay, he cannot be said to have attempted to circumvent the notification rules. 81. Given that the decision rejecting the complaint was notified on 10 September 2015, the time limit for instituting proceedings against the contested decision forming the subject of that complaint expired on 20 November 2015. The present action, which was brought on 4 November 2015, is not therefore out of time. 82. In the light of all those observations, I am of the view that the order under appeal should be set aside, the plea of inadmissibility raised by the Parliament dismissed and the case referred back to the General Court for a ruling on the merits. Conclusion 83. In the light of the foregoing, I propose that the Court should uphold the appeal, set aside the order of 19 April 2016, LL v Parliament (T‑615/15, not published, EU:T:2016:432) and refer the case back to the General Court, reserving the costs.© European Union
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