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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

28 July 2021 (*)

(Interim measures – Member of the European Parliament – Recovery of allowances paid by way of reimbursement of parliamentary assistance expenses – Application for suspension of operation of a measure – Failure to comply with procedural requirements – Inadmissibility – No urgency)

In Case T‑249/21 R,

SN, represented by P. Eleftheriadis, Barrister,

applicant,

v

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

defendant,

APPLICATION under Articles 278 and 279 TFEU for suspension of operation of the decision of the Parliament of 21 December 2020 concerning the recovery of the sum of EUR 196 199.84 unduly paid and debit note No 7010000021 of 15 January 2021 issued pursuant to that decision,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Facts, procedure and forms of order sought

1        The applicant, SN, was a Member of the European Parliament between 2014 and 2019.

2        On 17 May 2016, the Parliament recruited, at the applicant’s request, a parliamentary assistant.

3        On 30 November 2018, the contract with the assistant was terminated.

4        On 26 March 2019, the European Anti-Fraud Office (OLAF) issued a report which highlighted the existence of possible irregularities concerning the reimbursement of parliamentary assistance expenses unduly paid to that assistant.

5        On 16 April 2020, the Parliament informed the applicant that a recovery procedure had been initiated under Article 68 of the Decision of the Bureau of the Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1), with a view to recovering the sum of EUR 196 199.84 in respect of the parliamentary assistance expenses unduly paid, and invited her to submit her observations.

6        By decision of 21 December 2020, the Secretary-General of the Parliament found that, during the period from 17 May 2016 to 30 November 2018, the amount of EUR 196 199.84 had been unduly paid to the applicant’s assistant and should be recovered from him (‘the contested decision’). It also instructed the responsible authorising officer to recover the sum in question.

7        On 15 January 2021, the Parliament’s authorising officer issued debit note No 7010000021 (‘the debit note’) ordering recovery of the sum of EUR 196 199.84 before 11 March 2021.

8        On 19 January 2021, the Director-General of the Parliament’s Directorate-General (DG) for Finance notified the applicant of the contested decision and the debit note.

9        On 3 March 2021, the contested decision and the debit note were issued to the applicant.

10      By application lodged at the Court Registry on 7 May 2021, the applicant brought an action for annulment of the contested decision and the debit note.

11      By separate document lodged at the Court Registry on 25 May 2021, the applicant brought the present application for interim measures, claiming, in essence, that the President of the General Court should suspend the operation of the contested decision and the debit note.

12      In its observations on the application for interim measures, lodged at the Court Registry on 9 June 2021, the Parliament contends that the President of the General Court should:

–        dismiss the application;

–        reserve the costs or, in the alternative, order the applicant to pay the costs.

 Law

13      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court (order of 6 April 2016, GABO:mi v Commission, T‑10/16 R, not published, EU:T:2016:197, paragraph 13).

14      Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to consider at the outset of the proceedings, if necessary of his own motion, whether the applicable provisions of those rules have been complied with (see order of 4 December 2015, E-Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 5 and the case-law cited).

15      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

16      Furthermore, under Article 156(5), and Article 76(d) of the Rules of Procedure, an application for interim measures must, inter alia, be made by a separate document and contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law.

17      It follows from a combined reading of the first sentence of Article 156(4) and Article 156(5) of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order of 4 December 2015, E-Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).

18      In addition, point 223 of the Practice Rules for the Implementation of the Rules of Procedure expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

19      In the present case, it should be noted that, in her application for interim measures, the applicant puts forward no arguments in respect of the condition relating to the existence of a prima facie case or the weighing up of competing interests.

20      As regards the condition relating to the establishment of a prima facie case, it should be noted that the extremely laconic line of argument put forward by the applicant in her application for interim measures does not allow the President of the Court to make a legal assessment of whether the pleas for annulment put forward in the main action are prima facie well founded.

21      The application for interim measures does not specify any provision of EU law which the Parliament is alleged to have infringed and fails, a fortiori, to specify the causal link between that alleged infringement and the damage pleaded. It follows that the application for interim measures cannot be understood by itself without reference being made to the application in the main proceedings.

22      That lack of an adequate explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be remedied by the reference made to the application in the main proceedings.

23      In that regard, it is sufficient to bear in mind that it is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires that the application for interim measures be made by a separate document (see order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).

24      It follows from the lack of any line of argument concerning the condition relating to the establishment of a prima facie case that it is impossible to understand, on reading the application for interim measures, the nature of the interim measures sought (see order of 30 June 2010, Victoria Sánchez v Parliament and Commission, T‑61/10 R, not published, EU:T:2010:265, paragraph 18 and the case-law cited).

25      It follows from the foregoing that the present application for interim measures must be declared inadmissible in so far as the statement of reasons that it contains does not comply with the requirements of Article 156(4) of the Rules of Procedure and does not enable the President of the Court to rule on the condition relating to the establishment of a prima facie case.

26      In the circumstances of the present case, however, it is also necessary to examine whether the condition relating to urgency has been satisfied.

27      In that respect, it should be recalled that, according to settled case-law, urgency must be assessed in the light of the necessity for an interim order to prevent serious and irreparable damage being caused to the party seeking those measures. It is not necessary for imminent harm to be demonstrated with absolute certainty. It is sufficient to show that it is foreseeable with a sufficient degree of probability. Nevertheless, the party so pleading must prove the facts forming the basis of its claim that serious and irreparable harm is likely and submit to the judge hearing the application for interim relief specific and precise particulars, substantiated by detailed documents illustrating its situation and enabling the judge to examine the precise effects which would probably follow if the measures sought were not granted. The party seeking the interim measures is thus required to provide, with supporting documents, information that establishes a true overall picture of the situation, which, in its view, justifies the grant of those measures (see order of 16 July 2015, National Iranian Tanker Company v Council, T‑207/15 R, EU:T:2015:535, paragraph 62 (not published) and the case-law cited).

28      In the present case, the applicant merely asserts that the amount of EUR 196 199.84 represents several times her current annual remuneration as a teacher of secondary education. According to the applicant, she is not able to pay that sum out of her earnings or savings and if she was required to pay that sum now, she would suffer irreparable harm to her future prospects, which would have a destructive effect on her life.

29      Those allegations, which are not supported by any evidence, do not enable the President of the Court to have a true overall picture of the applicant’s financial situation. Consequently, the President of the Court is unable to assess whether the harm alleged is serious and irreparable.

30      Furthermore, it should be borne in mind that the damage alleged by the applicant, namely the payment of the amount claimed of EUR 196 199.84, is purely financial in nature.

31      In that regard, it should be noted that damage of a financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, since, as a general rule, it can be the subject of subsequent financial compensation (see order of 2 October 2019, FV v Council, T‑542/19 R, not published, EU:T:2019:718, paragraph 42 and the case-law cited).

32      It is true that, even where the damage is purely financial, an interim measure is justified if it is apparent that, without that measure, the party requesting it would be in a position likely to jeopardise his or her financial viability, since he or she would not have an amount of money which under normal circumstances should enable him to meet all the essential expenditure necessary to cater for his basic needs until a ruling is given in the main action (see order of 2 October 2019, FV v Council, T‑542/19 R, not published, EU:T:2019:718, paragraph 43 and the case-law cited).

33      However, in order to assess whether the alleged damage is of a serious and irreparable nature justifying the suspension, exceptionally, of the operation of the contested decision, the judge hearing the application for interim measures must, in all cases, have specific and precise information, supported by detailed documentation, showing the financial situation of the party requesting the interim measure and enabling an assessment to be made of the likely consequences if the measures sought are not granted (see order of 27 April 2010, Parliament v U, T‑103/10 P(R), EU:T:2010:164, paragraph 37 and the case-law cited).

34      As stated in paragraph 29 above, in the present case the applicant has failed to produce specific and precise information, supported by detailed certified documents.

35      Lastly, it should be added that the applicant has not, in any event, established that suspension of the operation of the debit note issued to her by the Parliament is urgent, since it has not been established that that note is enforceable, within the meaning of the first paragraph of Article 299 TFEU. It is only where a debit note is enforceable that it definitively establishes the institution’s intention to pursue the recovery of its claim and is capable of being enforced by an order for its enforcement being appended to it, as provided for in the second paragraph of Article 299 TFEU (see, to that effect, order of 19 May 2015, Costa v Parliament, T‑197/15 R, not published, EU:T:2015:294, paragraph 23 and the case-law cited).

36      In the present case, the debit note merely specifies the amount to be reimbursed, the deadline for reimbursement and the payment conditions (bank charges, default interest and procedures for possible recovery by offsetting or by enforcement of any prior guarantee). In addition, the debit note expressly states that, if the amount has not been recovered in full, the Parliament will effect recovery by enforcement of a decision secured either in accordance with Article 100(2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), or by legal action.

37      It is clear that the debit note – having regard to its wording, which merely refers to the possibility of the Parliament securing a future decision – cannot be regarded as constituting, in itself, an enforceable document, without it being necessary to rule on whether, in view of its preparatory and confirmatory nature, it may be challenged before the Court (see, to that effect, order of 19 May 2015, Costa v Parliament, T‑197/15 R, not published, EU:T:2015:294, paragraph 25).

38      Moreover, unlike the Council of the European Union, the European Commission and the European Central Bank (ECB), the Parliament has no power under Article 299 TFEU to adopt enforceable decisions which impose a pecuniary obligation on the persons to whom they are addressed. The Parliament therefore has no choice but to initiate separate legal proceedings in order to obtain an enforceable decision from the competent national courts, which it could subsequently use to recover the sum claimed. It is not apparent from the file that the Parliament has already initiated, at national level, proceedings for the recovery of the sum claimed under the debit note. Considered from this perspective, it is apparent that the application for interim measures is premature (see, to that effect, order of 19 May 2015, Costa v Parliament, T‑197/15 R, not published, EU:T:2015:294, paragraph 26).

39      Consequently, the application for interim measures must also be dismissed for lack of urgency.

40      It follows from all of the foregoing that the application for interim measures must be dismissed.

41      Pursuant to 158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 28 July 2021.

*      Language of the case: English.

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