Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

20 November 2017 (*)

(Member of the European Parliament — Refusal of access to the buildings of the Parliament — Third-country national — Article 21 of the Charter of Fundamental Rights — Discrimination on grounds of ethnic origin — Discrimination on grounds of nationality — Admissibility of a plea — Discrimination on grounds of political opinions — Equal treatment — Misuse of powers)

In Case T‑452/15,

Andrei Petrov, residing in Saint Petersburg (Russia),

Fedor Biryukov, residing in Moscow (Russia),

Alexander Sotnichenko, residing in Saint Petersburg,

represented by P. Richter, lawyer,

applicants,

v

European Parliament, represented by N. Görlitz and M. Windisch, acting as Agents,

defendant,

ACTION under Article 263 TFEU seeking annulment of the Parliament’s decision of 16 June 2015 refusing the applicants access to its premises,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 24 January 2017,

gives the following

Judgment

 Background to the dispute

1        In the elections of 25 May 2014, Mr Udo Voigt, applicant in the case registered with the Registry of the General Court under number T‑618/15, was elected as a Member of the European Parliament (MEP) on the list of a German party, the Nationaldemokratische Partei Deutschlands (NPD). Since then, he has held a seat in the Parliament as a non-attached Member.

2        On 22 March 2015, a political forum, entitled ‘International Russian Conservative Forum’ was held in Saint Petersburg (Russia), to which Mr Voigt was invited by the Russian party Rodina and which was attended by the three applicants, Messrs Andrei Petrov, Fedor Biryukov and Alexander Sotnichenko.

3        As part of that forum, an assistant of Mr Voigt, by email of 3 June 2015, informed the Parliament’s press service of Mr Voigt’s intention to organise a press conference entitled ‘Our actions to avoid a cold and hot war in Europe’ (‘the press conference’) on 16 June 2015. That press conference was to take place in the presence of six participants, being Mr Voigt, a Greek Member, two former Italian and UK Members and Messrs Petrov and Biryukov, both Russian nationals and members of the Russian political party Rodina. Mr Voigt’s assistant requested that one of the Parliament’s rooms and interpretation infrastructure be made available to him for that purpose.

4        As a further part of the forum entitled ‘International Russian Conservative Forum’, on 9 June 2015 Mr Voigt’s assistant requested the Parliament’s Directorate-General for Security (DG Security), the service responsible for accreditation, to issue access passes for 21 persons including five Russian nationals, being the three applicants, Ms E.N. and Ms P.E., for the purposes of a second event, being a working meeting entitled ‘Meeting on European cooperation’, also scheduled for 16 June 2015 (‘the working meeting’).

5        Also on 9 June 2015, DG Security, by email, acknowledged receipt of the request for accreditation. That acknowledgement of receipt bore a reference number allowing for the access passes to be picked up on 16 June 2015 and included an attachment confirming that the event complied with security requirements, but specifying that the organiser was not exempt from the usual authorisation procedure.

6        On 9 June 2015 as well, the press service informed Mr Voigt’s assistant by email that its political authorities had instructed it not to make the equipment requested for the press conference available to him (‘the press service’s email’). That email referred to the restrictions on access imposed by the Parliament on Russian politicians and diplomats and to the risk of disturbance of the Parliament’s activities caused by the presence of Messrs Petrov and Biryukov.

7        On 10 June 2015, the Parliament adopted European Parliament resolution of 10 June 2015 on the state of EU-Russia relations (2015/2001(INI)) (OJ 2016 C 407, p. 35) (‘the resolution of 10 June 2015’), which had been in discussion since 15 January of that year.

8        On 16 June 2015, Mr Voigt’s assistant picked up his guests’ access passes for the working meeting. In the course of the morning, however, the Accreditation Unit of DG Security informed him by email that, in the light of the list of participants at that meeting and in view of instructions received from the Cabinet of the President of the Parliament, access to the Parliament’s premises was refused to the five Russian nationals, including the applicants (‘the contested decision’).

 Procedure and forms of order sought

9        By application lodged at the Registry of the General Court on 10 August 2015, the applicants brought the present action against the Parliament and its President.

10      By order of 18 September 2015, Petrov and Others v Parliament (T‑452/15, not published, EU:T:2015:709), the Court dismissed the action in so far as it was brought against the President of the Parliament.

11      On 12 January 2016, the applicants lodged a reply and, on 25 February following, the Parliament lodged a rejoinder.

12      The applicants claim that the Court should:

–        annul the contested decision;

–        order the Parliament to pay the costs.

13      The Parliament that the Court should:

–        dismiss the action as unfounded;

–        order the applicants to pay the costs.

14      By letter of 7 December 2016, the Court notified the Parliament of measures of organisation of procedure, to which it replied on 21 December following.

 Law

 The admissibility of the reply

15      In the rejoinder, the Parliament expressed doubts as to the admissibility of the reply on the ground that it set out inconsistent views and allegations, of which the link with the pleas set out in the application was uncertain.

16      In that regard, under Article 83 of the Rules of Procedure of the General Court, the application may be supplemented by a reply. Moreover, paragraph 142 of the Practice rules for the implementation of those Rules of Procedure states that, ‘[t]he framework and the pleas in law or complaints at the heart of the dispute having been set out … in depth in the application …, the purpose of the reply … [is] to allow the applicant … to make clear [its] position or to refine [its] arguments on an important issue, and to respond to new matters raised in the defence …’.

17      In the present case, although the reply contains some ambiguities, it does on the whole meet the criteria set out above. Moreover, even if it does contain some elements of complaint which might arguably be held to be new pleas, that does not warrant the reply in its entirety being excluded from the pleadings. That fact is merely liable to cast doubt on the admissibility of those specific arguments, which it will be appropriate to consider as part of the examination of each relevant plea individually.

18      The reply must accordingly be held to be admissible.

 Substance

 Preliminary observations

19      In the application, the applicants put forward two pleas in law, the first alleging ‘infringement of the Treaties’ and the second misuse of powers.

20      Under the second paragraph of Article 263 TFEU, read in the light of the first subparagraph of Article 256(1) TFEU, the General Court has jurisdiction to rule on actions involving infringement of the Treaties.

21      Article 76(d) of the Rules of Procedure nevertheless provides that the application initiating proceedings must contain a summary of the pleas in law on which the application is based. According to settled case-law, in order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself (judgment of 29 September 2016, Bach Flower Remedies v EUIPO — Durapharma (RESCUE), T‑337/15, not published, EU:T:2016:578, paragraphs 50 and 51). Also, although an applicant is not obliged expressly to state on which particular rule of law his complaint is based, his line of argument must nevertheless be sufficiently clear for the opposing party and the EU judicature to be able to identify the rule without difficulty (see, to that effect, judgments of 10 May 2006, Galileo International Technology and Others v Commission, T‑279/03, EU:T:2006:121, paragraph 47, and of 13 November 2008, SPM v Council and Commission, T‑128/05, not published, EU:T:2008:494, paragraph 65).

22      It follows from the foregoing provisions that ‘infringement of the Treaties’ is merely a general assertion serving to bring the action for annulment which the Court has jurisdiction to hear, but cannot serve to identify the legal basis of a plea (see, to that effect, judgment of 27 November 1997, Tremblay and Others v Commission, T‑224/95, EU:T:1997:187, paragraphs 80 and 81).

23      It is therefore appropriate to consider whether the first plea is grounded in a more specific legal basis than merely ‘infringement of the Treaties’.

24      In the present case, it is apparent from the content of the application and the attached summary, which may be taken into account for interpretative purposes (judgments of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraphs 25 and 26, and of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 16), that the applicants in fact base their first plea on infringement of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). More specifically, they allege discrimination on grounds of their ethnic origin and a disregard of the prohibition on discrimination on grounds of nationality.

25      In the reply, the applicants further allege that they have been the victims of discrimination on grounds of their political opinions. They also allege infringement of the general principle of equal treatment in that they were treated differently from other Parliament visitors and hosts.

26      Lastly, both the application and the reply allude to the disproportionality of the contested decision, for which the determination should be made at the outset as to whether or not it is a separate plea.

27      In that regard, contrary to what the Parliament suggests, although the principle of proportionality has an independent existence, it may also form an integral part of the principles of equal treatment and non-discrimination. Thus it has been held that the principles of equal treatment and non-discrimination required that a difference in treatment had to be justified on the basis of an objective and reasonable criterion, that is, the difference had to relate to a legally permitted aim pursued by the legislation in question, and that was proportionate to the aim pursued by the treatment (judgments of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 77; of 23 March 1994, Huet v Court of Auditors, T‑8/93, EU:T:1994:35, paragraph 45; and of 30 January 2003, C v Commission, T‑307/00, EU:T:2003:21, paragraph 49). When asked about this point at the hearing, the applicants confirmed that, in the present case, the allegation of disproportionality of the contested decision was not a separate plea.

28      In the light of the foregoing, it is appropriate to consider the following:

–        firstly: the plea alleging infringement of Article 21 of the Charter, in that the contested decision is vitiated by discrimination on grounds of the applicants’ ethnic origin or nationality;

–        secondly: the plea alleging infringement of Article 21(1) of the Charter, in that the contested decision is vitiated by discrimination on grounds of the applicants’ political opinions and infringement of the general principle of equal treatment;

–        thirdly: misuse of powers.

29      Moreover, in response to a question from the Court, the applicants stated that they were aware of the prevailing political climate at the time of their visit to the Parliament and that Mr Voigt had explained the contested decision to them. The applicants also lodged a copy of that decision as an annex to the application, along with the press service’s email informing Mr Voigt’s assistant that the equipment requested for the press conference would not be made available to him due to the restrictions on access imposed by the Parliament on Russian politicians and diplomats and the risk of disturbance of the Parliament’s activities caused by the presence of Messrs Petrov and Biryukov.

30      It is in the light of all the foregoing that the action should be examined.

 The plea alleging infringement of Article 21 of the Charter in that the contested decision is vitiated by discrimination on grounds of the applicants’ ethnic origin or nationality

31      The applicants state that they posed no risk for the proper functioning of the Parliament’s work or its security. In the absence of any objective grounds, the contested decision is vitiated by discrimination based on their nationality or ethnic origin and therefore infringes Article 21 of the Charter. Nor is the fact that certain Russian nationals may have presented a risk for the proper functioning of the Parliament relevant, as it would have been sufficient to limit the prohibition on access to them.

32      The Parliament contends that the plea is unfounded.

33      Under Article 21(1) of the Charter, any discrimination on grounds of inter alia ethnic origin is prohibited. Article 21(2) provides that, within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality is also prohibited.

34      As the applicants do not distinguish clearly the two types of discrimination they are alleging, it should be borne in mind that, where the legislature and the administrative authority use two different terms in the same text having general application, reasons of consistency and legal certainty preclude those terms being given the same scope. This is a fortiori the case where, as in the present case, those terms mean different things in everyday usage (judgments of 25 September 2013, Marques v Commission, F‑158/12, EU:F:2013:135, paragraph 28, and of 14 May 2014, Cocco v Commission, F‑17/13, EU:F:2014:92, paragraph 33).

35      Thus, although nationality is a legal and political link between an individual and a sovereign State, the concept of ethnicity has its origin in the idea that societal groups share the sense of belonging to a common nation, religious faith, language, cultural and traditional origins and backgrounds (see, to that effect, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 46).

36      As regards the prohibition on discrimination on grounds of ethnic origin, the Parliament has argued that Russia comprised over 185 different ethnic groups. Yet the applicants, relying solely on their Russian nationality, do not state that they belong to any particular ethnic group and even less have they established that the contested decision was adopted because of their belonging to a specific ethnic group.

37      It follows that the applicants have failed to demonstrate that the conditions of application of Article 21(1) of the Charter are met and therefore cannot allege that they are the victims of discrimination on grounds of a particular ethnic origin.

38      As regards the prohibition on discrimination on grounds of nationality, it must be borne in mind that, under the third paragraph of Article 6(1) TEU and Article 52(7) of the Charter, the explanations relating to the Charter (OJ 2007 C 303, p. 17) are to be given due regard in its interpretation.

39      According to the explanations on the Charter, Article 21(2) of the Charter ‘corresponds to the first paragraph of Article 18 [TFEU] and must be applied in compliance with that [a]rticle’. Moreover, under Article 52(2) of the Charter, rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. It follows that Article 21(2) of the Charter must be construed as having the same scope as the first paragraph of Article 18 TFEU.

40      The first paragraph of Article 18 TFEU provides that, ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. That provision is under Part Two of the Treaty, entitled ‘Non‑discrimination and citizenship of the Union’. It concerns situations coming within the scope of EU law in which a national of one Member State is treated in a discriminatory manner as compared with nationals of another Member State solely on the basis of their nationality. Accordingly, that article is not applicable in cases of potential discrimination of nationals of a non-member country as compared with nationals of Member States (see, to that effect, judgments of 4 June 2009, Vatsouras and Koupatantze, C‑22/08 and C‑23/08, EU:C:2009:344, paragraphs 51 and 52, and of 7 April 2011, Francesco Guarnieri & Cie, C‑291/09, EU:C:2011:217, paragraph 20).

41      Accordingly, the applicants, who are Russian nationals, may not rely on Article 21(2) of the Charter.

42      In the light of the foregoing, the plea alleging infringement of Article 21 of the Charter in that the contested decision is vitiated by discrimination on grounds of the applicants’ ethnic origin or nationality must be rejected. In any event, as regards the alleged disproportionality of the contested decision, which did not differentiate between Russian nationals according to the risks they presented, reference is made to paragraphs 75 to 78 below.

 The plea alleging infringement of Article 21(1) of the Charter in that the contested decision is vitiated by discrimination on grounds of the applicants’ political opinions and infringement of the general principle of equal treatment

43      In the reply, the applicants argue that they have been the victims of discrimination on grounds of their political opinions. They add that, ‘ultimately, [the contested decision] must in any event be appraised in the light of the general principle of equal treatment’. That decision caused them to be treated differently as compared to other Parliament visitors and hosts. The applicants argue, in essence, that the contested decision had the effect of preventing them from expressing within the Parliament a political opinion of which the President of the Parliament disapproved and which was contrary to the resolution of 10 June 2015.

44      The Parliament disputes the admissibility of those complaints on the ground that they are being put forward for the first time in the reply and are therefore out of time.

45      The applicants argue, however, that they only learned of the political basis for the discrimination against them when they read the statement in defence.

46      Article 84(1) of the Rules of Procedure provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. To be regarded as an amplification of a plea or a head of claim previously advanced, a new line of argumentation must, in relation to the pleas or heads of claim initially set out in the application, present a sufficiently close connection with the pleas or heads of claim initially put forward in order to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgment of 16 November 2011, Groupe Gascogne v Commission, T‑72/06, not published, EU:T:2011:671, paragraphs 23 and 27).

47      Firstly, the prohibition on any discrimination on grounds of political opinions, on which the applicants relied as part of their plea set out in the application alleging ‘infringement of the Treaties’, is laid down in Article 21(1) of the Charter. However, in their application the applicants limited their line of argument based on that provision to alleging infringement of the prohibition on any discrimination on grounds of their ethnic origin. They also alleged discrimination on grounds of nationality based on Article 21(2) of the Charter. At no point in their application initiating proceedings did they allege infringement of the prohibition on discrimination on grounds of their political opinions.

48      The applicants’ failure to allege such discrimination in the application is of particular significance in the present case. The contested decision cannot be read in isolation from its context. In particular, it is apparent from the case file that, when the action was brought, the applicants had in their possession the press service’s email in which the Parliament refused to provide Mr Voigt with the equipment needed for the press conference, also scheduled for 16 June 2015. That refusal is based on two grounds. Firstly, the press service’s email reiterates the restrictions on access imposed by the Parliament on Russian diplomats and on Russian politicians, being more specifically members of the Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (State Duma of the Federal Assembly of the Russian Federation) and of the Soviet Federatsii Federal’nogo Sobrania Rossiskoï Federatsii (Council of the Federation of the Federal Assembly of the Russian Federation), as evidenced by the Parliament’s responses to the measures of organisation of procedure referred to in paragraph 14 above. Secondly, that same email mentions the risk of disturbance of the Parliament’s activities caused by the presence of Messrs Petrov and Biryukov. Moreover, the objective of the contested decision was to prohibit the applicants from entering buildings of the Parliament, a political institution, in order to attend, at the invitation of a Member, a meeting having a political topic, being ‘European cooperation’. Furthermore, the first two applicants hold high positions within the Russian political party Rodina and the third applicant is presented as a university professor of international relations. The meeting in question also purported to be part of a political forum, the ‘International Russian Conservative Forum’, which had been attended by the three applicants and which the Parliament had just criticised in the resolution of 10 June 2015. Lastly, at the hearing the applicants confirmed that the events of 16 June 2015, to which they had been invited, were intended to allow them to express their political opinion on ‘European cooperation’ in order to provide the forum entitled ‘International Russian Conservative Forum’ with the opposite viewpoint to that expressed in the resolution of 10 June 2015, and also to pursue the work commenced there. In those circumstances, an applicant who is familiar with politics and reasonably diligent had to be sensitive to the political climate surrounding the contested decision.

49      The conclusion, therefore, with respect to the allegation, put forward in the reply, of an infringement of the prohibition on discrimination on grounds of the applicants’ political opinions is not the amplification of a plea set out in the application resulting from the normal development of the debate on that plea in the course of the proceedings, but rather a new plea. Consequently, this plea must be held to be inadmissible, as it is not based on matters of law or of fact which came to light in the course of the procedure.

50      Secondly, as regards the argument, also set out in the reply, alleging infringement of the general principle of equal treatment, it should be observed that, under the plea alleging misuse of powers, in their application the applicants submit inter alia that the contested decision was ‘completely arbitrary and diametrically opposed to the prohibition on discrimination found in primary law’. However, that argument referred to the ‘reasons set out above’, that is to say, to the argument put forward regarding the alleged discrimination on grounds of nationality or ethnic origin. At no time in bringing their action did the applicants allege as such infringement of the general principle of equal treatment in the light of the treatment granted to all the other Parliament visitors and hosts.

51      Therefore, as the applicants have sought, in their reply, to expand the scope of their first plea beyond the scope of the complaints that were limited to infringement of the prohibition of any discrimination on grounds of nationality or their ethnic origin, by relying generally on the general principle of equal treatment in the light of the treatment granted to the other Parliament visitors and hosts, the plea alleging infringement of that principle must be held to be a new plea not resulting from the normal development of the debate in the course of the proceedings. To that extent and since it is not based on matters of law or of fact which have come to light in the course of the procedure, that complaint must therefore be rejected as inadmissible.

52      It is true that, in order to safeguard its rights of defence, in its statement in defence the Parliament contemplated by way of alternative submission the eventuality that the Court might recategorise the plea alleging infringement of the prohibition of any discrimination on grounds of nationality or ethnic origin as a plea alleging infringement of the general principle of equal treatment. That does not suffice by itself, however, to substantiate a finding that the evidence establishing infringement of that principle as raised in the reply came to light in the course of the proceedings. In view of the context referred to in paragraph 48 above, that argument put forward by the Parliament in its statement in defence did not reveal to the applicants grounds for the contested decision of which they had hitherto been unaware.

53      Furthermore, Article 21 of the Charter, serving as the basis of the plea relating to the prohibition of discrimination on grounds of nationality or ethnic origin, is a particular expression of the principle of equal treatment (see, to that effect, judgment of 29 April 2015, Léger, C‑528/13, EU:C:2015:288, paragraph 48) and both that principle and the prohibition of any discrimination are simply two labels for a single general principle of law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (judgment of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‑422/02 P, EU:C:2005:56, paragraph 33).

54      Also, given that, in the light of that case-law, reliance in the reply on the general principle of equal treatment should be regarded as a differently worded expression of the plea set out in the application based on the prohibition of any discrimination on grounds of nationality or ethnic origin, that complaint must be rejected as unfounded, for the reasons set out above in paragraph 33 et seq.

55      In any event, the plea alleging, on the one hand, infringement of Article 21(1) of the Charter on the ground that the contested decision is vitiated by discrimination on grounds of the applicants’ political opinions and, on the other, infringement of the general principle of equal treatment, is completely unfounded, as it is clear from paragraphs 63 to 78 below that the contested decision is based on objective and reasonable grounds, relates to a legally permitted aim and is proportionate to the objective pursued.

 The plea alleging misuse of powers

56      The applicants submit that the contested decision is vitiated by a misuse of powers, which the Parliament disputes.

57      According to settled case-law, the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient for the interested party to refer to certain facts in support of his claims; that party must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of a party’s statements cannot be challenged. Thus, the overall assessment of evidence of misuse of powers cannot be based on mere assertions or on evidence that is insufficiently clear or is neither objective nor relevant (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraphs 31 to 33 and case-law cited).

58      The applicants begin by arguing that, ‘for the reasons set out above’, the contested decision is vitiated by a misuse of powers in that it is ‘completely arbitrary and diametrically opposed to the prohibition on discrimination’.

59      However, as the applicants are basing themselves on the alleged irregularities impugned in the pleas based on ‘infringement of the Treaties’, it must be remembered that, as those pleas have been rejected, that reference may not be relied on successfully.

60      Secondly, whilst the applicants acknowledge that the security and proper functioning of the Parliament are legally permitted aims liable to justify refusing third parties access to the Parliament’s premises, they nevertheless dispute that those were the objectives actually pursued thereby.

61      The applicants contend that they posed no danger for the security and proper functioning of the Parliament. Although it is a place for political exchange, in reality the contested decision was aimed at keeping them away on grounds of their political convictions and their political allegiances, which the majority of the Parliament found distasteful.

62      By that argument, the applicants intend to prove misuse of powers using inaccuracy in the statement of reasons given for the contested decision.

63      In that regard, as is apparent from paragraph 48 above, although the applicants have not been members of the State Duma of the Federal Assembly of the Russian Federation or of the Council of the Federation of the Federal Assembly of the Russian Federation, the reasons given for the contested decision included the fact that their presence in the Parliament could be detrimental to the good order and security of the Parliament as well as its proper functioning, given the overall context and events giving rise to the restrictions on access.

64      More specifically, in the light of the resolution of 10 June 2015, the Parliament highlighted the unparalleled context of the political relations between the Russian Federation and the Union at the time of the facts, referring to the situation in Ukraine and to the publication by the Russian Federation of a ‘black list’ comprising the names of current and former EU MEPs and officials, which led it to restrict access for Russian politicians and diplomats to its infrastructures.

65      Given the unparalleled context of the political relations between the Russian Federation and the Union at the time of the facts, on the one hand, and, according to the Parliament, mounting tension in the relations between European political parties that could be referred to as populist and Russian forces described as nationalist, on the other, the Parliament observed that the applicants had attended the forum entitled ‘International Russian Conservative Forum’, which had just been condemned in the strongest possible terms by the European Parliament. The Parliament added that the first two applicants were active members of a Russian party considered to be nationalist. It added that the three applicants were definitely protagonists invited to present, within the walls of the institution, a point of view different from that of the resolution of 10 June 2015 on the forum entitled ‘International Russian Conservative Forum’ and to pursue the work begun under the auspices of that forum, a point confirmed by the applicants at the hearing (see paragraph 48 above).

66      The applicants nevertheless observe that the prerogative of the President of the Parliament, relied on by the Parliament, may not be used to prevent meetings with which the majority may not agree, given that parliaments are precisely places of exchange of political views.

67      However, Rule 22 of the Rules of Procedure of the Parliament confers on the President of the Parliament the powers necessary to ensure general security in the premises of the Parliament, to prevent and put a stop to any disturbance to the proper functioning of parliamentary activities and to safeguard the dignity of the institution. The Parliament is, moreover, correct in stating that it is not required to privilege in its infrastructures the political activities of a party from a non-member country. The applicants concur in this point in their written pleadings. Accordingly, the Parliament is not obliged to receive members or sympathisers of such a party in order to allow them to express their views in its premises. More generally, under Article 14 TEU the right to take part in legislative, budgetary, political review and consultative roles within the walls of the Parliament is reserved for representatives of citizens of the Union elected by universal, direct, free and secret suffrage, whereas specific provisions, such as Article 15(6)(d) TEU and the first paragraph of Article 230 TFEU, in their own specific manner, guarantee the right to be heard for the President of the European Council and the European Commission. Moreover, whilst Rule 115 of the Parliament’s Rules of Procedure provides that debates are public and that committee meetings are also public, Rule 157 of those same Rules of Procedure adds the proviso that members of the public admitted to the galleries are to remain seated and keep silent. Thus, the overall scheme of the Treaties and implementing texts, and also the need to safeguard the unfettered exercise of the powers conferred on the Parliament entail that the Parliament is not the place where any and all members of the public may express themselves entirely as they wish.

68      The applicants add that the Parliament is under an obligation not to impede the work of the Members, including Mr Voigt. That argument is entirely irrelevant in the present case, however, given that the applicants have no personal, direct interest on which they may rely. In response to a question from the Court at the hearing, moreover, they acknowledged that this allegation did not constitute an argument per se.

69      The applicants add that access passes had been issued in their names, thereby leading Mr Voigt to believe that, even without the press conference, the working meeting could go ahead in the Parliament premises with them in attendance. The issuance of those passes showed that they posed no particular risk, whereas the Parliament’s about-face reveals the belligerent thinking underlying the contested decision.

70      However, although it is true that the Parliament acknowledged receipt of the request for accreditation for the working meeting by email from DG Security of 9 June 2015 and that that email bore a reference number allowing the access passes intended for the applicants to be picked up, it should be borne in mind that that email originated from DG Security, whilst the decision refusing the applicants access to the buildings was based on an assessment of the political context that went beyond the remit of the administrative services of the Parliament and was solely for the political bodies of the institution to make. Furthermore, the email of 9 June 2015 from DG Security contained an annex explaining that the organiser of the event was not exempt from the usual procedures in place within the institution. Thus, the apparent contradiction arising from the issuance of a reference number allowing the access passes to be picked up and the refusal ultimately to allow the applicants to enter the Parliament’s premises can be explained by the different roles assigned to the administrative services and the political bodies. Consequently, it cannot be argued that the Parliament gave the impression that the disputed meeting could go ahead on its premises and using its infrastructures, simply to be belligerent.

71      In the light of the foregoing, given that the adoption of measures such as a refusal to allow persons to enter the premises of the Parliament in order to prevent any disturbance of its work, presupposes a prospective assessment of the risks in the light of the data available and necessarily implying a margin of uncertainty, it does not seem that the objective of ensuring the security and proper functioning of the Parliament was not in reasonable proportion to the grounds relied on by it.

72      Lastly, the applicants claim to have found an indication of a misuse of powers in the fact that the contested decision in any event went beyond what was necessary. They observe that the President of the Parliament has a security service capable of curbing all forms of provocation. Moreover, the fact that the contested decision concerned all Russian nationals invited, whereas, according to the press service’s email, only the first two applicants posed a risk for the security and proper functioning of the Parliament, shows that the contested decision was a kind of ‘collective punishment’.

73      It should be borne in mind, however, that the applicants have neither established nor even alleged that all persons have an unconditional right of access to the Parliament’s premises for political propaganda purposes or to discuss there the Parliament’s political leanings. On the contrary, as set out in paragraph 67 above, the Parliament stated, without being contradicted on the point, that EU law does not give the public an unfettered right of access to its buildings in order to use them to express its opinions there.

74      In those circumstances, the fact that the President of the Parliament prevented the applicants from entering its premises in order to express themselves in a political meeting, rather than count on the ability of the security services to intervene, in the international context referred to in paragraphs 64 and 65 above, cannot be held to be a misuse of powers, a fortiori in the light of the fact that at the hearing the Parliament confirmed that, as the contested decision was linked to that context, it was merely temporary in nature.

75      Nor can the applicants successfully argue that the contested decision was taken against ‘the entire group of Russian visitors’, that is to say, also against E.N. and P.E., in order to establish that it was in reality a collective and disproportionate punishment. In fact, the refusal to allow those two persons to enter the Parliament can be explained by the fact that they were accompanying persons, one in her capacity as spouse of the second applicant, and the other as an interpreter, as emerged in the discussion at the hearing.

76      Lastly and equally unsuccessfully, the applicants complain about the collective nature of the contested decision, arguing that it is apparent, on an a contrario reading of the press service’s email that, for the Parliament itself, the third applicant, Mr Sotnichenko, did not pose any particular risk.

77      However, no argument may be drawn from the fact that, in the press service’s email refusing to make a room available to Mr Voigt in order to hold his press conference, the Parliament considered that the presence of the first two applicants gave rise to a risk for the proper functioning of the Parliament, without referring specifically to Mr Sotnichenko. It is apparent from the email sent on 3 June 2015 by Mr Voigt’s assistant to the Parliament’s press service concerning the organisation of that press conference that he was not supposed to attend.

78      Furthermore, the Parliament stated that, like the first two applicants, Mr Sotnichenko had attended the forum entitled ‘International Russian Conservative Forum’, which is not disputed, and it was that attendance that had justified the refusal to allow him access as well to the Parliament buildings to attend the working meeting in the context described in paragraphs 64 and 65 above.

79      It follows from all the foregoing that the applicants have not provided sufficiently precise, objective and consistent evidence to establish that the security and proper functioning of the Parliament was not the objective actually pursued by its President when he adopted the contested decision. Consequently, the plea of misuse of powers must be rejected.

80      As none of the pleas have been successful, the action must be dismissed in its entirety.

 Costs

81      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

82      Since the applicants have been unsuccessful and the Parliament has applied for costs, the applicants must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Messrs Andrei Petrov, Fedor Biryukovand and Alexander Sotnichenko to bear their own costs and to pay those incurred by the European Parliament.

Delivered in open court in Luxembourg on 20 November 2017.

[Signatures]

*      Language of the case: German.

© European Union
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