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 to make Parliament premises available — Third-country nationals — Refusal of access to Parliament buildings — 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)

In Case T‑618/15,

Udo Voigt, residing in Brussels (Belgium), represented by P. Richter, lawyer,

applicant,

v

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

defendant,

ACTION under Article 263 TFEU seeking annulment of, firstly, the Parliament’s decision of 9 June 2015 refusing to make a room available to the applicant for the purpose of holding a press conference on 16 June 2015 and, secondly, of the Parliament’s decision of 16 June 2015 refusing Russian nationals 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

I.      Background to the dispute

1        In the elections on 25 May 2014, the applicant, Mr Udo Voigt, was elected as a member of the European Parliament 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 Messrs Andrei Petrov, Fedor Biryukov and Alexander Sotnichenko, applicants in the case registered with the Registry of the General Court under number T‑452/15.

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 (‘the Russian guests’), being Messrs Petrov, Biryukov and Sotnichenko, 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 the applicant’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, the applicant’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 guests.

II.    Procedure and forms of order sought

9        By application lodged at the Registry of the General Court on 31 July 2015, the applicant brought the present action against the Parliament and its President.

10      By order of 29 October 2015, Voigt v President of Parliament and Parliament (C‑425/15, not published, EU:C:2015:741), the Court held that it manifestly lacked jurisdiction to hear the case and referred it back to the General Court pursuant to the second paragraph of Article 54, of the Statute of the Court of Justice of the European Union, whilst reserving costs.

11      By order of 4 February 2016, Voigt v Parliament and President of Parliament (T‑618/15, not published, EU:T:2016:72), the General Court dismissed the action in so far as it was directed at the President of the Parliament.

12      On 23 May 2016, the applicant lodged a reply and, on 4 July following, the Parliament lodged a rejoinder.

13      Lastly, by letter of 6 December 2016, the Court notified the Parliament of measures of organisation of procedure, to which it responded on 21 December following.

14      The applicant claims that the Court should:

–        annul: (i) the Parliament’s decision of 9 June 2015 refusing to make a room available to the applicant for the purpose of holding a press conference on 16 June 2015 (see paragraph 6 above), and (ii) the Parliament’s decision of 16 June 2015 refusing the Russian guests access to its premises (see paragraph 8 above) (‘the contested decisions’);

–        order the Parliament to pay the costs.

15      In his application, the applicant further requests the Court to indicate to him whether it deems it necessary that he submit further argument or evidence in support of his action.

16      The Parliament contends that the Court should:

–        dismiss the action as clearly inadmissible;

–        in the alternative, dismiss the action as in part manifestly inadmissible and in part manifestly unfounded;

–        in the further alternative, dismiss it as clearly unfounded;

–        order the applicant to pay the costs.

III. Law

A.      Admissibility

 1.      The applicant’s standing to bring proceedings

17      In his application initiating proceedings, the applicant argues that this action must be regarded as having been brought primarily on the basis of the third paragraph of Article 263 TFEU and, in the alternative, on the basis of the fourth paragraph of Article 263 TFEU. The objective of the third paragraph of Article 263 TFEU is to enable the Court of Auditors of the European Union, the European Central Bank (ECB) and the Committee of the Regions to defend their rights against acts of the other institutions, which opportunity must a fortiori be recognised for Members, who enjoy a higher democratic legitimacy.

18      When asked at the hearing about whether he maintained his claim to have the case judged on the basis of the third paragraph of Article 263 TFEU, the applicant replied that the Court of Justice had ruled on the question by its order of 29 October 2015, Voigt v President of the Parliament and Parliament (C‑425/15, not published, EU:C:2015:741), and that he accepted that decision. It may therefore be considered that the applicant has waived his claim under that provision.

19      In any event, the applicant has standing to bring proceedings on the basis of the fourth paragraph of Article 263 TFEU, as acknowledged by the Parliament.

 2.      Admissibility of the application

20      The Parliament takes the view that the application does not comply with Article 76(d) of the Rules of Procedure of the General Court. The applicant puts forward two grounds in support of his action: (i) the refusal to make a room available to him for the purpose of holding a press conference and the ban placed on his Russian guests, preventing them from entering Parliament buildings. However, the argument developed in the application is ambiguous in that the link to either of those two decisions is uncertain.

21      It is apparent from the application that the forms of order sought therein are aimed at obtaining annulment of two decisions, viz, the contested decisions.

22      Moreover, under Title I ‘Infringement of the Treaties’ in the application, the applicant drew a distinction between an initial part addressing the ‘refusal to make a room available’ and a second part covering the ‘prohibition on access issued against the Russian [guests]’.

23      As observed by the Parliament, the arguments developed in the first part allude to both the press conference and the working meeting, whereas it is clear from both contested decisions that the refusal to make a room in the Parliament available to the applicant concerned solely the press conference; use of the Parliament’s premises for the working meeting was not refused.

24      It should be borne in mind, however, that a plea may be construed in the light of its substance and be admissible if it is sufficiently clear from the application itself (see, to that effect, order of 20 September 2011, Land Wien v Commission, T‑267/10, not published, EU:T:2011:499, paragraph 18).

25      The reference in the first part of Title I to the ‘refusal to make a [conference] room available’ to the working meeting is understandable given that in the second part, concerning the ‘prohibition on access issued against the Russian [guests]’ in relation to that meeting, the applicant refers precisely to the ‘observations put forward under [the first part]’, so that the complaints in that first part are in fact common to both contested decisions.

26      The Parliament further observes that under Title II of the application concerning ‘Misuse of powers’, the applicant did not draw any distinction between the contested decisions. The Parliament considers that that title is ambiguous in that therein the applicant complains of the belligerent attitude inherent in the refusal of access and refers to the press service’s email, which refers only to the refusal to make a room available to him in which to hold his press conference.

27      It is apparent, however, from the arguments developed under Title II ‘Misuse of powers’ that the applicant’s intent is to criticise both contested decisions, which justifies his drawing no distinction therein.

28      In the light of the foregoing, the application cannot be held to be confused and, therefore, inadmissible as a whole.

29      Lastly, the Parliament submits in the alternative that, should the Court rule that the action is admissible as such, certain of the complaints put forward by the applicant under those pleas should be ruled inadmissible. The admissibility of those arguments will be determined as part of the examination of those pleas.

 3.      The admissibility of the reply

30      In the rejoinder, the Parliament expressed doubts as to the admissibility of the reply. It argues that usually the purpose of the reply is to allow an applicant to make clear its position or to refine its arguments on an important issue and respond to new matters that have emerged in the statement in defence. Yet in the reply here, the applicant merely reiterates points set out previously in his application and puts forward new arguments unrelated thereto or to the arguments set out in the statement in defence.

31      In that regard, under Article 83 of the Rules of Procedure, 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 …’.

32      Contrary to the Parliament’s assertions, the reply here clarifies arguments set out in the application, in the light of the statement in defence. Moreover, any new complaints that may be present in the reply that are unrelated to previous procedural documents do not make the reply inadmissible as a whole but, at the most, will lead to those complaints being rejected, which is a point that must be determined as part of the examination of the pleas.

33      The reply must accordingly be held to be admissible.

B.      The applicant’s request that the Court invite him to submit supplementary arguments or evidence, if necessary

34      It must be borne in mind that, under Article 76(d) and (f) of the Rules of Procedure, it is for the applicant to set out the subject matter of the proceedings and a summary of the facts and pleas relied on and to produce and offer to produce any necessary evidence at the time of lodging the application. Moreover, under Article 85(2) and(3) of those same Rules of Procedure, the main parties may produce or offer further evidence in support of their argument after the first exchange of pleadings only if the delay in the submission of that evidence is justified.

35      Article 89(3) of the Rules of Procedure allows the General Court, by way of measures of organisation of procedure, to ask the parties to elaborate on certain aspects or produce any evidence relating to the case. However, the Court remains free in its absolute discretion in deciding whether to adopt such measures (see, to that effect, order of 29 October 2004, Ripa di Meana v Parliament, C‑360/02 P, EU:C:2004:690, paragraph 28).

36      It follows from those provisions that the applicant may not make a general request to the Court to ask him to submit arguments or evidence in support of his action.

37      In any event, it should be noted that, by way of measure of organisation of procedure, the applicant was informed, by letter of 6 December 2016, that he would be asked at the hearing to respond to the arguments put forward there by the Parliament in response to the complaints alleging infringement of the principle of proportionality, infringement of the principle of non-discrimination on grounds of political opinions and infringement of the general principle of equal treatment.

C.      Substance

1.      Preliminary observations

(a)    The complaint concerning an infringement of the applicant’s rights

38      In the introduction to the part of the application addressing the ‘merits of the action’, the applicant sits that the contested decisions ‘infringe [his] rights’ as a Member.

39      In so far as that assertion constitutes a separate plea, it must, as argued by the Parliament, be held to be inadmissible. The applicant did not substantiate such a plea in the application, whereas under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, the application must contain, inter alia, a summary of the pleas relied on and therefore must refer, at least in summary form but with a sufficient degree of clarity, to the legal principles which, in the applicant’s submission, were infringed and the principal facts on which those complaints are based (see, by analogy, judgment of 15 December 1999, Latino v Commission, T‑300/97, EU:T:1999:328, paragraph 35). A mere abstract statement of the grounds does not satisfy the requirements of the Statute of the Court of Justice of the European Union and or of the Rules of Procedure (see, by analogy, judgments of 11 March 1999, Herold v Commission, T‑257/97, EU:T:1999:55, paragraph 68, and of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑443/11, EU:T:2014:774, paragraph 66).

40      In any event, in so far as that assertion does not constitute a separate plea but rather a preliminary observation introducing the plea alleging ‘infringement of the Treaties’, it must be regarded as being conflated with it and reference is made to the examination thereof.

(b)    The pleas alleging ‘infringement of the Treaties’ and misuse of powers

41      In the application, the applicant puts forward two pleas alleging: (i) ‘infringement of the Treaties’, and (ii) misuse of powers.

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

43      Article 76(d) of the Rules of Procedure nevertheless provides that the application initiating proceedings must state 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 proper administration of justice, for an action to be admissible, inter alia the essential facts and law on which it is based must be apparent, at the very least summarily but clearly and comprehensibly, 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 to state expressly the specific legal rule on which his complaint is based, his line of argument must 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).

44      It follows from the abovementioned provisions that the ‘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).

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

46      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 applicant in fact bases his first plea in law on Article 4 of the rules governing meetings of the political groups, adopted by the Bureau of the Parliament on 4 July 2005 (‘the rules governing meetings of the political groups’), and on infringement of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). As regards the infringement of Article 21 of the Charter, he alleges more specifically discrimination on grounds of the ethnic origin of his Russian guests and disregard of the prohibition of discrimination on grounds of their nationality.

47      In the reply, the applicant further alleges that the refusal to allow his Russian guests access to the Parliament amounted to discrimination on grounds of their political opinions. He adds that that same refusal is vitiated by an infringement of the general principle of equal treatment inasmuch as the parties concerned were treated differently from other Parliament visitors and hosts.

48      Lastly, both the application and the reply allude to the disproportionality of the contested decisions, about which it should be determined at the outset whether or not this constitutes a separate plea in law.

49      In that regard and contrary to what the Parliament suggests, although the principle of proportionality has an autonomous 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 be justified on the basis of an objective and reasonable criterion, that is, that the difference must relate to a legally permitted aim pursued by the legislation in question and be 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).

50      In the application in the present case, the applicant formulated his argument asserting the disproportionality of the decision refusing to make a room available to him for his press conference as being the consequence of the complaint alleging infringement of Article 4 of the rules governing meetings of the political groups. At the hearing, the applicant confirmed that the two complaints were linked. Also in the application, the applicant referred to the disproportionality of the decision refusing to allow his Russian guests access to the Parliament as an extension of his complaint alleging infringement of the prohibition of all discrimination on grounds of their ethnic origin or nationality. Lastly, in the reply, the applicant referred to the principle of proportionality as part of his line of argument relating to infringement of the prohibition of discrimination on grounds of political opinions and infringement of the general principle of equal treatment. It must accordingly be held that the allegation of the disproportionality of the contested decisions is not a separate plea.

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

–        first, regarding the refusal to make a room available to the applicant for the purpose of holding a press conference, the plea alleging infringement of Article 4 of the rules governing meetings of the political groups;

–        second, regarding the refusal to allow the Russian guests access to the Parliament:

–        the reference to the plea alleging infringement of Article 4 of the rules governing meetings of the political groups;

–        the plea alleging infringement of Article 21 of the Charter, inasmuch as that refusal is vitiated by discrimination on grounds of the ethnic origin or nationality of the persons concerned;

–        the plea based on Article 21(1) of the Charter inasmuch as the refusal is vitiated by discrimination on grounds of the Russian guests’ political opinions and alleging infringement of the general principle of equal treatment;

–        third, regarding both contested decisions, the plea alleging ‘misuse of powers’.

2.      The plea directed solely against the refusal to make a room available to the applicant for the purpose of holding a press conference

52      The applicant submits that, under Article 4(1) of the rules governing meetings of the political groups, non-attached Members are entitled to use Parliament premises for holding press conferences, subject to availability and provided that making those premises available does not carry a risk for the normal conduct of the Parliament’s work. Moreover, Article 8 of the same rules expressly allows Members to invite third parties, such as journalists, to their meetings. The Parliament has not alleged that hosting capacity was exhausted on 16 June 2015. Nor can it be alleged that a press conference by nature will be liable to disturb the work of the Parliament, especially since the applicant had organised similar events on previous occasions, without any problems arising as a result. Lastly, it does not seem that the presence of Messrs Petrov and Biryukov was able to affect the functioning of the Parliament, as it maintained in the press service’s email.

53      The applicant accordingly submits that, in the absence of any ground liable to justify the refusal to make a room available to him, that refusal is disproportionate and infringes his rights as a Member, as he was prevented from communicating about his parliamentary work and, in particular, explaining to European citizens how the resolution of 10 June 2015 gave an inaccurate portrayal of the forum entitled ‘International Russian Conservative Forum’, organised in Saint Petersburg on 22 March of that year.

54      The Parliament disputes those arguments and submits that the plea is unfounded.

55      It is apparent from the overall scheme of the rules governing meetings of the political groups, as evidenced by the title and Article 1(1) thereof that those rules govern the manner in which ‘the Secretariat [of the Parliament] shall assist with the organisation of political group meetings and shall contribute to the smooth running thereof’. Thus, those rules lay down inter alia the detailed rules for the use of Parliament rooms by political groups and their bodies.

56      Article 8 of the rules governing meetings of the political groups provides in essence that political groups may invite third parties to their meetings.

57      Under Article 4(1) of the rules governing meetings of the political groups, ‘[f]or the purpose of conducting their parliamentary business, non-attached Members may [also] have the use of’ Parliament rooms. In the light of that provision and the possibility for non-attached Members to assemble even though they do not constitute a Parliamentary group, those rules also govern the manner in which the Secretariat of the Parliament participates in the organisation of meetings bringing them together. Under Article 4(2) of those rules, requests from non-attached Members for the use of a conference room ‘must be submitted by the coordination unit for the non-attached Members’. This is an administrative measure through which those Members may have access to certain facilities which are, as a rule, reserved for groups.

58      It is apparent from the response of the Parliament to the measures of organisation of procedure ordered by the Court that press conferences organised by Members are the subject of a separate set of rules, namely the ‘Rules governing the proper use of the European Parliament’s press room’, adopted by the Bureau of the Parliament on 22 October 2007.

59      It follows from the foregoing that, although the rules governing meetings of the political groups allow those groups to invite third parties to their meetings, they are not intended to regulate how rooms are made available for holding press conferences, even less so at the individual initiative of a Member.

60      This interpretation is confirmed by the fact that the applicant himself did not make an application for a room to hold his press conference under Article 4(2) of the rules governing meetings of the political groups, having made his request directly to the ‘Press’ Unit of the Parliament, without going through the intermediary of the coordination unit for the non-attached Members.

61      The complaint concerning Article 4 of the rules governing meetings of the political groups must therefore be rejected, without its being necessary to examine, in the application of that provision, whether the Parliament’s refusal could be justified on grounds of unavailability or a risk of disturbance of the work of the Parliament, or even whether that refusal was disproportionate.

62      In any event, even if, contrary to what has been held in paragraph 50 above, the complaint alleging the disproportionality of the refusal to make a room available to the applicant for the purpose of holding a press conference had to be read as being distinct from the plea based on Article 4 of the rules governing meetings of the political groups, it is nevertheless destined to fail.

63      In the press service’s email, the Parliament justified the refusal to make a room available to the applicant for the purpose of holding his press conference on the grounds of inter alia the risk of the activities of the Parliament being disturbed by the presence of Messrs Petrov and Biryukov. The applicant merely disputes the existence of such a risk, without providing any convincing argument to support his position. The fact that he has organised press conferences and working meetings in the past is irrelevant, as he does not allege that those events took place with the authorisation of the Parliament, in the presence of the Russian guests and in circumstances comparable to those of the present case. As shall become apparent from paragraphs 119 to 122 below, moreover, the Parliament did not disregard the principle of proportionality in the present case.

3.      The pleas directed solely at the refusal to allow the Russian guests access to the Parliament

(a)    The plea based on the reference to the plea alleging infringement of Article 4 of the rules governing meetings of the political groups

64      The applicant submits that the refusal to allow the Russian guests access to the Parliament ‘is incompatible with primary law’ on the grounds set out previously and directed against the refusal to make a press room available to him.

65      The Parliament disputes the admissibility of this complaint on the ground that the applicant does not explain how this constitutes an infringement.

66      It can be gleaned from a reading of the application that the applicant’s assertion can be construed as meaning that the arguments directed against the refusal to make a press room available to him and alleging infringement of Article 4 of the rules governing meetings of the political groups and, as the case may be, the disproportionality of that measure, are also relevant when directed against the refusal to allow the Russian guests access to the Parliament.

67      Even if that complaint were admissible, it must nevertheless be rejected on the grounds set out in paragraphs 55 to 63 above.

68      The rejection of the complaint based on Article 4 of the rules governing meetings of the political groups is all the more compelling in the present case since, even if that provision were applicable, the use of Parliament rooms for holding the working meeting was not refused as such to the applicant, as only the Russian guests’ access to Parliament buildings is at issue here.

(b)    The plea alleging infringement of Article 21 of the Charter, in that the refusal to allow the Russian guests access to the Parliament is vitiated by discrimination on grounds of their ethnic origin or nationality

69      The applicant states that the Russian guests posed no risk for the proper functioning of the Parliament’s work or its security. In the absence of any objective grounds, the refusal to allow them access 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.

70      The Parliament disagrees that the applicant may allege infringement of the prohibition of discrimination on grounds of ethnic origin or nationality of which third parties, his Russian guests, were victim and considers that the plea is in any event completely unfounded.

(1)    Admissibility of the plea

71      It follows from the case-law that an applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him personally (judgment of 30 June 1983, Schloh v Council, 85/82, EU:C:1983:179, paragraph 14). However, that requirement cannot be understood as meaning that an action will be admissible before the Union Courts only if it is linked to the personal situation of the applicant alone. The applicant’s claims are admissible only if they are susceptible of justifying an annulment which would be of advantage to the applicant, that is to say, one in which he has a personal interest (see judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 38 and the case-law cited).

72      In the present case, the alleged discrimination against the Russian guests on grounds of their nationality or ethnic origin may have also, hypothetically, adversely affected the applicant inasmuch as he had been the instigator of their invitation and was prevented from holding, with them at the Parliament, the working meeting he had organised.

73      In the circumstances of the present case, moreover, the applicant, in his capacity as organiser of a meeting in the premises of the Parliament which the Russian guests were unable to attend, has an interest in putting forward the complaint alleging that they were the victims of discrimination on grounds of nationality or ethnic origin.

(2)    Substance of the plea

74      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.

75      As the applicant does not distinguish clearly the two types of discrimination he is 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).

76      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).

77      As regards the prohibition on discrimination on grounds of ethnic origin, the applicant merely highlights the Russian nationality of his guests, without indicating whether they are part of any particular group. Nor has he in any way established that the decision to refuse his Russian guests access to the Parliament was adopted on grounds of any specific ethnic affiliation.

78      It follows that the applicant has failed to demonstrate that the conditions of application of Article 21(1) of the Charter are met and therefore cannot allege that his Russian guests are the victims of discrimination on grounds of a particular ethnic origin.

79      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.

80      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.

81      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).

82      Accordingly, the applicant cannot argue that there has been infringement of Article 21(2) of the Charter in respect of his Russian guests.

83      In the light of the foregoing, the plea alleging infringement of Article 21 of the Charter in that the refusal to allow the Russian guests access to the Parliament is vitiated by discrimination on grounds of their ethnic origin or nationality must be rejected. In any event, as regards the alleged disproportionality of that refusal, which did not differentiate between the Russian guests according to the risks they presented, reference is made to paragraphs 119 to 122 below.

(c)    The plea alleging infringement of Article 21(1) of the Charter in that the refusal to allow the Russian guests access to the Parliament is vitiated by discrimination on grounds of their political opinions and infringement of the general principle of equal treatment

84      In the reply, the applicant argues that the refusal to allow the Russian guests access to the Parliament constituted discriminatory treatment on grounds of their political opinions. He further argues that, ‘ultimately … the prohibition on access must in any event be appraised in the light of the general principle of equal treatment’. Because of that refusal, the Russian guests were treated differently from other Parliament visitors and hosts.

85      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 that they are out of time. Furthermore, the complaint alleging infringement of the general principle of equal treatment is ambiguous and difficult to understand.

86      The applicant argues, however, that it was only at the stage of reading the statement in defence lodged in Petrov and Others v Parliament (T‑452/15) that he became aware of the political basis of the discrimination of which his Russian guests were victim.

87      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, Group Gascogne v Commission, T‑72/06, not published, EU:T:2011:671, paragraphs 23 and 27).

88      Firstly, as regards the prohibition of any discrimination on grounds of political opinions, that prohibition is laid down in Article 21(1) of the Charter, to which the applicant refers in his plea in the application alleging ‘infringement of the Treaties’. However, in the application the applicant limited his line of argument based on that provision to alleging infringement of the prohibition of any discrimination on grounds of ethnic origin. He also alleged discrimination on grounds of nationality based on Article 21(2) of the Charter. At no point in his application initiating proceedings did he allege infringement of the prohibition of discrimination on grounds of his Russian guests’ political opinions.

89      The applicant’s failure to refer to such discrimination in the application is of particular significance in the present case. The refusal to allow the Russian guests access to the Parliament cannot be read in isolation from its context. In particular, it is apparent from the case file that, when the action was brought, the applicant had in his possession the press service’s email in which the Parliament refused to provide him 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 13 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 refusal was to prohibit the Russian guests 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, Messrs Petrov and Biryukov hold high positions within the Russian political party Rodina and Mr Sotnichenko 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 aforementioned persons and which the Parliament had just criticised in the resolution of 10 June 2015. Lastly, at the hearing the applicant confirmed that the events of 16 June 2015, to which he had invited those persons, 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 refusal of access.

90      Moreover, as a matter of procedure, the applicant cannot argue that he became aware of the political basis of the discrimination of which his Russian guests were victims only upon reading the statement in defence lodged in Petrov and Others v Parliament (T‑452/15).

91      In that regard, it should be remembered that each case brought before the Court has its own file, containing inter alia the procedural documents produced by the parties to that case, and that each of those files is entirely autonomous. This is illustrated by the fact that paragraph 25 of the Practice rules for the implementation of the Rules of Procedure provide that ‘[a] procedural document and annexes thereto which are produced in a case and placed on the file of that case may not be taken into account for the purpose of preparing another case for hearing’ (see, by analogy, order of 15 October 2009, Hangzhou Duralamp Electronics v Council, T‑459/07, EU:T:2009:403, paragraph 12, and judgment of 18 November 2015, Einhell Germany and Others v Commission, T‑73/12, EU:T:2015:865, paragraph 36).

92      It is true that, according to settled case-law, apart from exceptional cases in which disclosure of a document might adversely affect the proper administration of justice, parties to proceedings are free to disclose their own written submissions to parties not involved in those proceedings. Likewise, a party to proceedings may, subject to the same proviso, consent to a pleading which it presented in the context of those proceedings being used by another party thereto in the context of separate proceedings (order of 15 October 2009, Hangzhou Duralamp Electronics v Council, T‑459/07, EU:T:2009:403, paragraph 14, and judgment of 18 November 2015, Einhell Germany and Others v Commission, T‑73/12, EU:T:2015:865, paragraph 38).

93      In the present case, however, it has not been established that the applicant requested permission from the Parliament to use the statement in defence lodged by the latter in Case T‑452/15 for the purposes of the present proceedings.

94      Also, the allegation in the reply of an infringement of the prohibition of discrimination on grounds of the Russian guests’ political opinions is not an amplification of a plea in the application resulting from the normal evolution of debate in proceedings before the Court, but rather a new plea. Consequently, it must be held to be inadmissible, as it is not based on matters of law or fact which have come to light in the course of the procedure.

95      Secondly, the Parliament considers that the argument, also set out in the reply, alleging infringement of the general principle of equal treatment, is difficult to understand given that it questions the treatment of ‘the applicants’ in comparison with the treatment of other Parliament visitors and guests, whereas, as a Member, the applicant is not in a comparable situation to them. However, that reference to ‘the applicants’ is clearly a drafting error. The Parliament does not make any other incorrect references elsewhere in its written pleadings.

96      As regards the point that the argument alleging infringement of the general principle of equal treatment was submitted out of time, suffice it to observe that, as part of the plea addressing the misuse of powers, the applicant submitted inter alia in the application that the contested decisions were ‘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 arguments put forward regarding the alleged discrimination on grounds of the Russian guests’ nationality or ethnic origin. At no time in bringing his action did the applicant 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.

97      Therefore, although in the reply the applicant seeks to extend the scope of the plea alleging infringement of the prohibition of any discrimination on grounds of his Russian guests’ nationality or ethnic origin by means of a broad reference to the general principle of equal treatment in the light of the treatment granted to 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 evolution of debate in proceedings before the Court. Therefore and since it is not based on matters of law or of fact which came to light in the course of the procedure, this plea must also be rejected as inadmissible.

98      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).

99      Furthermore, 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 74 et seq.

100    In any event, the plea alleging, on the one hand, infringement of Article 21(1) of the Charter on the ground that the refusal to allow the applicant’s Russian guests access to the Parliament’s premises is vitiated by discrimination on grounds of their political opinions and, on the other, infringement of the general principle of equal treatment, is completely unfounded, as it is clear from paragraphs 108 to 122 below that both contested decisions are based on objective and reasonable grounds, relate to a legally permitted aim and are proportionate to the objective pursued.

4.      The plea directed against both contested decisions and alleging misuse of powers

101    The applicant submits that the contested decisions are vitiated by a misuse of powers, which the Parliament disputes.

102    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).

103    The applicant begins by arguing that, for the ‘reasons set out above’, the contested decisions are vitiated by a misuse of powers because they are ‘completely arbitrary and diametrically opposed to the prohibition on discrimination’.

104    However, as the applicant is basing himself 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.

105    Next, whilst the applicant acknowledges that the security and proper functioning of the Parliament are legally permitted aims liable to justify the contested decisions, he nevertheless disputes the contention that those were the objectives actually pursued thereby.

106    The applicant contends that his Russian guests 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.

107    By that argument, the applicant intends to prove misuse of powers using inaccuracy in the statement of reasons given for the contested decisions.

108    In that regard, as is apparent from paragraph 89 above, although the Russian guests 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.

109    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.

110    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 Messrs Petrov, Biruykov and Sotnichenko 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 Messrs Petrov and Biruykov were active members of a Russian party considered to be nationalist. It added that Messrs Petrov, Biruykov and Sotnichenko 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 applicant at the hearing (see paragraph 89 above).

111    The applicant nevertheless observes 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.

112    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. 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.

113    The applicant adds that access passes had been issued in the names of his Russian guests, thereby leading him 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 decisions and the unnecessary ensuing complication of his work as a Member.

114    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 applicant’s Russian guests to be picked up, it should be borne in mind that that email originated from DG Security, whilst the decision refusing the Russian guests 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 Russian guests 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.

115    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.

116    Lastly, the applicant claims to have found an indication of a misuse of powers in the fact that the Parliament’s refusal of access in any event went beyond what was necessary. He observes that the President of the Parliament has a security service capable of curbing all forms of provocation. Moreover, the fact that the refusal to allow access to the Parliament concerned all Russian nationals invited, whereas, according to the press service’s email, only Messrs Petrov and Biruykov posed a risk for the security and proper functioning of the Parliament, shows that the contested decision was a kind of ‘collective punishment’.

117    It should be borne in mind, however, that the applicant has 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 112 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.

118    In those circumstances, the fact that the President of the Parliament prevented the Russian guests 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 109 and 110 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 disputed refusal of access was linked to that context, it was merely temporary in nature.

119    Nor can the applicant successfully argue that the decision refusing access 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 Mr Biruykov, and the other as an interpreter, as emerged in the discussion at the hearing.

120    Lastly and equally unsuccessfully, the applicant complains about the collective nature of the refusal to allow the Russian guests access to the Parliament, arguing that it is apparent, on an a contrario reading of the press service’s email that, for the Parliament itself, Mr Sotnichenko, did not pose any particular risk.

121    No argument may be drawn from the fact that, in the press service’s email refusing to make a room available to the applicant in order to hold his press conference, the Parliament considered that the presence of Messrs Petrov and Biryukov 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 the applicant’s assistant to the Parliament’s press service concerning the organisation of that press conference that he was not supposed to attend.

122    Furthermore, the Parliament stated that, like Messrs Petrov and Biryukov, 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 109 and 110 above.

123    It follows from all the foregoing that the applicant has 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.

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

IV.    Costs

125    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.

126    Since the applicant has been unsuccessful and the Parliament has applied for costs, the applicant must be ordered to pay the costs, including those incurred in the proceedings before the Court of Justice.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Udo Voigt to bear his own costs and to pay those incurred by the European Parliament, including those incurred in the proceedings before the Court of Justice.

Delivered in open court in Luxembourg on 20 November 2017.

[Signatures]

* Language of the case: German.

© European Union
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