Rivière and Others v Parliament (Members of the European Parliament - Prohibition on displaying banners during the sittings of Parliament - Judgment) [2023] EUECJ C-767/21P (14 December 2023)

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(Appeal – Law governing the institutions – Members of the European Parliament – Rules of Procedure of the European Parliament – Standards of conduct – Rule 10(3) – Prohibition on displaying banners during the sittings of Parliament – Oral measure of the President of the Parliament prohibiting MEPs from displaying national flags on their lecterns – Action for annulment – Article 263 TFEU – Concept of ‘challengeable act’)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 December 2021,

European Parliament, represented by N. Lorenz and T. Lukácsi, acting as Agents,

composed of K. Jürimäe, President of the Chamber, N. Piçarra (Rapporteur), M. Safjan, N. Jääskinen and M. Gavalec, Judges,

after hearing the Opinion of the Advocate General at the sitting on 16 February 2023,

1 By their appeal, Mr Jérôme Rivière, Ms Dominique Bilde, Ms Joëlle Mélin, Ms Aurélia Beigneux, Mr Thierry Mariani, Mr Jordan Bardella, Mr Jean‑Paul Garraud, Mr Jean-François Jalkh, Mr Gilbert Collard, Mr Gilles Lebreton, Mr Nicolaus Fest, Mr Gunnar Beck and Mr Philippe Olivier, Members of the European Parliament, seek to have set aside the judgment of the General Court of the European Union of 6 October 2021, Rivière and Others v Parliament (T‑88/20, ‘the judgment under appeal’, EU:T:2021:664), by which that Court dismissed as inadmissible their action for annulment of the oral measure of the President of the Parliament of 13 January 2020, prohibiting Members of the European Parliament (‘MEPs’) from displaying national flags on their lecterns (‘the disputed measure’).

2 Rule 10 of the Rules of Procedure of the European Parliament (9th parliamentary term – 2019-2024) (‘the Rules of Procedure’), entitled ‘Standards of Conduct’, provides:

‘1. The conduct of Members shall be characterised by mutual respect and shall be based on the values and principles laid down in the Treaties, and particularly in the Charter of Fundamental Rights. …

2. Members shall not compromise the smooth conduct of parliamentary business and shall not compromise the maintenance of security and order on Parliament’s premises or the functioning of its equipment.

3. Members shall not disrupt the good order of the Chamber and shall refrain from improper behaviour. They shall not display banners.

3 Rule 171 of those rules, entitled ‘Allocation of speaking time and list of speakers’ provides, in paragraph 5, that:

‘Speaking time for [the first] part of a debate shall be allocated in accordance with the following criteria:

(a) a first fraction of speaking time shall be divided equally among all the political groups;

(b) a second fraction shall be divided among the political groups in proportion to the total number of their members;

(c) the non-attached Members shall be allocated an overall speaking time based on the fractions allocated to each political group under points (a) and (b);

(d) the allocation of speaking time in the plenary shall take into consideration the fact that Members with disabilities will need more time.’

4 Rule 175 of the Rules of Procedure, entitled ‘Immediate measures’, provides, in paragraphs 1 to 3:

‘1. The President shall call to order any Member who breaches the standards of conduct defined in Rule 10(3) or (4).

2. If the breach is repeated, the President shall call the Member to order a second time, and the fact shall be recorded in the minutes.

3. If the breach continues, or if a further breach is committed, the Member shall be denied the right to speak and may be excluded from the Chamber by the President for the remainder of the sitting. …’

5 The background to the dispute, which is set out in paragraphs 1 to 3 of the judgment under appeal, may be summarised as set out below.

6 During the plenary sitting of 13 January 2020, the President of the Parliament orally adopted, in accordance with Rule 10(3) of the Rules of Procedure, measures seeking to ensure order in the Chamber, including the disputed measure.

7 During the plenary sittings of 29 and 30 January 2020, the Vice-Presidents who presided over those sittings reiterated the disputed measure.

8 By application lodged at the Registry of the General Court on 13 February 2020, the appellants brought an action seeking the annulment of the disputed measure.

9 In support of their action, the appellants raised four pleas in law. The first comprised two parts, alleging, first, the infringement and distortion of Rule 10 of the Rules of Procedure and, second, an infringement of Article 4(2) TEU. The second plea in law alleged the infringement of the principle of legal certainty, the third, the abuse of power, and the fourth, the infringement of the principles of equal treatment, legality, good administration and fumus persecutionis and the infringement of the freedom of expression of MEPs.

10 The Parliament raised, as its principal argument, a plea of inadmissibility as regards the action, alleging the absence, first, of a challengeable act for the purposes of Article 263 TFEU, second, of the appellants’ standing to bring proceedings and, third, of their interest in bringing proceedings. In the alternative, the Parliament argued that the action was unfounded.

11 The General Court upheld the principal ground of inadmissibility based on the absence of a challengeable act for the purposes of Article 263 TFEU.

12 The General Court took the view, in paragraph 38 of the judgment under appeal, that it was apparent from the parties’ submissions that the disputed measure was a prohibition, addressed to MEPs on the basis of Rule 10(3) of the Rules of Procedure, on displaying national flags on their lecterns. In that regard, the General Court stated that although the appellants had also invoked a ban on the right to speak applied to the MEPs who did not comply with the disputed measure, there was no evidence that the measure went beyond the prohibition on displaying national flags.

13 In paragraphs 42 to 44 of that judgment, the General Court noted that, under the Rules of Procedure, based on the parliamentary traditions common to the Member States, MEPs ‘express themselves by speaking’. It stated that, apart from the option granted to them by those rules to submit a written declaration of 200 words once per session, those rules ‘do not provide for any other means of expression available to participants in the debate’. According to the General Court, the restriction on the MEPs’ means of expression thus established is intended to ensure the equality of MEPs and, consequently, the smooth conduct of parliamentary business. That twofold objective is also pursued by Rule 171(4) of the Rules of Procedure, which lays down precise criteria for the allocation of speaking time between MEPs.

14 The General Court found, in paragraphs 45 and 48 of the judgment under appeal, that ‘an image or an object, through the symbol it represents or the message it communicates, can undoubtedly serve as a means of expression, thus giving the MEPs who use it the possibility of asserting and defending their political convictions outside of their speaking time’ during Parliamentary plenary sittings. It held that, in the present case, the flag displayed by the appellants on their lecterns had become ‘a sort of banner for a political group and a symbol of the cause which it defends’. In addition, in paragraph 49 of that judgment, it held that ‘the display of the flag of a Member State in particular on the lectern of a Member elected to the Parliament conflicts with [that] Member’s representative function’, as defined, inter alia, in Article 14(2) TEU and Article 22(2) TFEU.

15 In paragraph 50 of the judgment under appeal, the General Court held that, because of the role given to it by the appellants, the national flag thus displayed on their lectern was ‘reduced to a mere means of expression or communication of opinions’ which could not be distinguished from the objects covered by the term ‘banners’ used in Rule 10(3) of the Rules of Procedure or the equivalent in the various language versions of that rule.

16 In the light of all those reasons, the General Court found, in paragraphs 51 and 52 of the judgment under appeal that since the appellants’ conduct was such as to disrupt the proper functioning of parliamentary business, it fell within the scope of Rule 10(3) of the Rules of Procedure, and that the disputed measure formed part of ‘the internal organisation of the work of the Parliament’ and did not produce legal effects such as to affect the conditions under which the appellants exercised their mandates as MEPs by bringing about a distinct change in their legal position. Consequently, that measure did not constitute a challengeable act for the purposes of Article 263 TFEU.

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

20 The Parliament contends that the appeal does not satisfy the conditions for admissibility laid down in Article 168 of the Rules of Procedure of the Court of Justice, on the ground that it does not state precisely the legal arguments advanced in support of the grounds of appeal, which do not contain any legal arguments.

21 In that regard, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must state precisely the contested paragraphs of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).

22 However, the appeal makes it possible to identify unequivocally two grounds of appeal by which the appellants complain, first, that the General Court distorted the facts and erred in their legal characterisation in paragraph 38 of the judgment under appeal and, second, that paragraphs 41 to 50 of that judgment are vitiated by errors of law as regards the interpretation of Rule 10(3) of the Rules of Procedure of the Parliament. It is also apparent from the Parliament’s response that it was able to understand the essence of those grounds and to respond to them in substance.

23 In those circumstances, it must be held that the appeal identifies with sufficient precision, in each of its grounds of appeal, the contested paragraphs of the judgment under appeal and sets out the grounds on which those paragraphs are, according to the appellants, vitiated by errors of law, thus enabling the Court to carry out its review of legality.

25 By their first ground of appeal, the appellants submit that the General Court, in paragraph 38 of the judgment under appeal, distorted the facts and erred in the legal characterisation of those facts by failing to find that the disputed measure had the practical effect of depriving MEPs of their right to speak and, therefore, of significantly altering the conditions for the exercise of the mandate of those who refused to remove the national flags from their lecterns at the plenary sittings of 29 and 30 January 2020.

26 The Parliament contends that the first ground of appeal is manifestly unfounded.

27 It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. That assessment does not, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 10 July 2019, VG v Commission, C‑19/18 P, EU:C:2019:578, paragraph 47 and the case-law cited).

28 There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his or her view, led to that distortion (judgment of 3 December 2015, Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 52 and the case-law cited).

29 It is, however, clearly apparent from the application at first instance that the appellants sought, before the General Court, the annulment only of the disputed measure, which consists exclusively in the oral prohibition on displaying national flags on their lecterns. They did not challenge, before the General Court, subsequent measures of deprivation of the right to speech at the plenary sittings of 29 and 30 January 2020. In those circumstances, they cannot complain that the General Court vitiated the judgment under appeal by a distortion and an error in the legal characterisation of the facts.

30 In any event, it must be added that, in paragraph 38 of the judgment under appeal, the General Court was fully entitled to hold that, although the appellants had also relied on a prohibition on the right to speak applied to MEPs who did not comply with the disputed measure, there was nothing to establish that that measure went ‘beyond a prohibition, addressed to Members of the Parliament under Rule 10(3) of the Rules of Procedure, on displaying national flags on their lecterns’.

31 The General Court therefore did not distort the facts or err in their legal characterisation in holding that the disputed measure was intended only to put an end to the display of national flags on the MEPs’ lecterns, without that measure actually having the effect, during the plenary sittings of 29 and 30 January 2020, of preventing the MEPs’ concerned from speaking.

32 It follows that the first ground of appeal is unfounded and must therefore be rejected.

33 By their second ground of appeal, the appellants submit that the General Court, in paragraphs 41 to 50 of the judgment under appeal, ‘erred in and distorted the law and the facts’ in respect of Rule 10(3) of the Rules of Procedure and made a ‘manifest error of assessment’, which led it to find, in paragraph 52 of that judgment, that the disputed measure formed part of the internal organisation of the work of the Parliament, did not produce legal effects such as to affect the conditions under which the appellants’ exercised their mandates as MEPs and, therefore, did not constitute a challengeable act for the purposes of Article 263 TFEU.

34 In that regard, the appellants submit, first, that national ‘flags’ do not fall within the scope of Rule 10(3) of the Rules of Procedure, which refers only to ‘banners’. The General Court should have established that a national flag is a ‘banner’, within the meaning of that provision, before determining whether the use of such a flag by MEPs disrupted the good order of the Chamber or constituted improper behaviour on their part likely to compromise the smooth conduct of parliamentary business.

35 In that context, the appellants submit that the term ‘banners’ must be defined in accordance with the usual meaning of that term in French, as made clear in the position adopted by the Service du Dictionnaire de l’Académie française (dictionary department of the French Academy), by letter of 20 February 2020, in response to a request sent to it by two of the appellants.

36 They also claim that the General Court should not have taken account, in paragraph 50 of the judgment under appeal, of the different language versions of Rule 10(3) of the Rules of Procedure in order to determine whether the ‘national flags’ at issue could be classified as ‘banners’ within the meaning of that rule. In doing so, the General Court infringed Article 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p. 1), which provides that French is an official language and a working language of the institutions of the European Union. The term at issue should therefore have been interpreted, with regard to French MEPs, only in accordance with the scope given to it by the French language.

37 Second, the appellants submit that the General Court misinterpreted the second sentence of Rule 10(3) of the Rules of Procedure, which prohibits the display only of ‘banners’ but not of ‘flags’. Consequently, the General Court wrongly equated a ‘small flag’ on the lectern of MEPs with the display of ‘banners’, while the appellants did not, in any case, display the national flags ‘all the time’.

38 Third, the General Court did not examine, in the course of a contextual analysis of Rule 10(2) and (3) of the Rules of Procedure, whether the disputed measure was intended to remedy a possible disruption, caused by the presence of those flags, in the conduct of parliamentary business or in the order and security of sittings. It therefore did not set out the grounds on which the display of a national flag on a MEP’s lectern constituted improper behaviour.

39 Fourth, the appellants submit that the General Court erred in law in holding, in paragraphs 43 to 45 of the judgment under appeal, that the disputed measure was intended to ensure equality between MEPs and could be based on Rule 10 of the Rules of Procedure, whereas such an objective is pursued by Rule 171 of those rules.

40 Fifth, according to the appellants, ‘Members [of the Parliament] are elected first by the citizens of their country, on the basis of national lists within a framework set by each [Member] State’. The fact that citizens of other Member States may be included in those lists and vote in that Member State does not remove ‘that national character of the vote’. Moreover, the assertion of ‘national membership’ follows from Article 4(2) TEU. Consequently, contrary to what the General Court held in paragraph 49 of the judgment under appeal, the presence of the national flag on the lectern of a Member of the Parliament is neither inconsistent with that Member’s representative function, as defined by the Treaties, nor such as to disrupt the smooth conduct of parliamentary business.

41 The Parliament contends that the second ground of appeal is manifestly unfounded.

42 By their second ground of appeal, the appellants submit, in essence, that the General Court, in paragraphs 41 to 50 of the judgment under appeal, misinterpreted Rule 10(3) of the Rules of Procedure. In their view, that provision cannot form the basis of the disputed measure, since national flags do not fall within its scope. In those circumstances, such a measure would be liable to affect the conditions under which they exercise their mandate as an MEP by bringing about a distinct change in their legal position and would therefore constitute a challengeable act for the purposes of Article 263 TFEU.

43 It should be borne in mind that any provisions adopted by EU institutions, bodies and agencies, whatever their form, which are intended to have binding legal effects are regarded as ‘challengeable acts’ for the purposes of Article 263 TFEU (judgments of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31, and of 9 July 2020 Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 46 and the case-law cited).

44 In order to determine whether the disputed measure produces binding legal effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see, to that effect, judgments of 20 February 2018 Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32, and of 9 July 2020 Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47).

45 It is important to bear in mind that the disputed measure consists in an oral prohibition on displaying national flags on the lecterns of MEPs and that it was adopted on the basis of the second sentence of Rule 10(3) of the Rules of Procedure, which provides that ‘[Members] shall not display banners’ during parliamentary sittings. As the Advocate General observed in point 71 of her Opinion, that provision is self-executing without any need for implementing measures.

46 In order to determine whether, as the appellants submit, the General Court erred in law in its interpretation of the second sentence of Rule 10(3) of the Rules of Procedure, it is necessary to consider, as recalled in paragraph 40 of the judgment under appeal, not only the wording of that rule but also its context and the objectives pursued by the rules of which it forms part (judgment of 28 September 2023, Gargždų geležinkelis, C‑671/21, EU:C:2023:709, paragraph 50 and the case-law cited).

47 The wording of a provision of EU law used in one language version cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. The need for uniform interpretation and application of each provision of EU law precludes one linguistic version of the text being considered in isolation, but requires that the measure be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, to that effect, judgments of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 14, and of 15 September 2022, Minister for Justice and Equality (Third-country national cousin of a Union citizen), C‑22/21, EU:C:2022:683, paragraph 20).

48 The General Court was therefore right to take into account, in paragraph 50 of the judgment under appeal, language versions other than the French version of the second sentence of Rule 10(3) of the Rules of Procedure for the purposes of determining whether the national flags constituted ‘banners’ within the meaning of that provision. Moreover, contrary to the appellants’ claims, the General Court did not, in so doing, in any way infringe Article 1 of Council Regulation No 1, as amended by Regulation No 517/2013, which merely lists the official languages and working languages of the institutions of the Union.

49 As to whether the prohibition on the display of ‘banners’, laid down in the second sentence of Rule 10(3) of the Rules of Procedure, also covers national flags, the General Court pointed out, in paragraph 50 of the judgment under appeal, that the terms used in other language versions of that rule corresponding to the French terms for ‘banner’ generally refer to objects often made of fabric, sometimes fixed to wooden sticks and on which are included, inter alia, political slogans, mottos or the statement of a petition or a political objective. It was therefore entitled to hold, correctly, in that paragraph 50, that because of the role attributed in the present case to the national flag by the appellants that flag could be regarded as a means of expression or communication identical to that of banners.

50 Such an interpretation is supported by the contextual and teleological elements of the second sentence of Rule 10(3) of the Rules of Procedure.

51 As the General Court pointed out in paragraphs 42 to 44 of the judgment under appeal, the tradition of the oral debate, which characterises parliamentary activity, is reflected in the Rules of Procedure. It is apparent from the general scheme of those rules that MEPs express themselves by speaking and do not, in principle, have any other means of expression. In that context, the second sentence of Rule 10(3) of the Rules of Procedure, read in conjunction with Rule 175 thereof, limits MEPs’ means of expression outside of their speaking time, in order to ensure both their equality and good order in the Chamber.

52 Consequently, contrary to what the appellants claim, the General Court was right to find that they had displayed a banner, within the meaning of the second sentence of Rule 10(3) of the Rules of Procedure, when they placed a national flag on their lecterns. It is in the light of the political function thus attributed to such a flag that the act of the MEPs in question must be understood as the demonstration of a political opinion in the same way as the display of the ‘banners’ referred to in the second sentence of Rule 10(3) of the Rules of Procedure.

53 As regards the appellants’ argument that the General Court failed, incorrectly, to set out the reasons why it considered that the display of those national flags disrupted the good order of the Chamber and constituted improper behaviour on the part of MEPs, it is sufficient to point out that the prohibition laid down in the second sentence of Rule 10(3) of the Rules of Procedure does not depend on specific proof that such a display disrupts the smooth conduct of parliamentary business.

54 As regards the appellants’ argument that the General Court misinterpreted the second sentence of Rule 10(3) of the Rules of Procedure as meaning that the aim of that rule is to maintain equality between MEPs as regards their speaking time, it is sufficient to point out that the General Court was right to find, in paragraph 44 of the judgment under appeal, that the objective of that rule, read in conjunction with Rule 175 of those rules, is to ensure equality between MEPs as regards their means of expression and, therefore, in view of the fact that, in principle, MEPs express themselves orally, as regards their speaking time.

55 Lastly, regarding the appellants’ argument that they have the right to place a small national flag on their lectern, on the basis of the right to respect for national identity guaranteed by Article 4(2) TEU, it should be recalled at the outset that that provision, contrary to what the appellants claim, does not refer to ‘national membership’. By contrast, that provision requires the European Union to respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, and their essential State functions.

56 Furthermore, the Members of the Parliament represent citizens of the Union, as is expressly stated in Article 10(2) and Article 14(2) TEU and again in Article 22(2) TFEU, even if they are elected from lists drawn up at Member State level. In accordance with the principle of representative democracy, on which, under Article 10(1) TEU, the functioning of the European Union is founded, the composition of the Parliament must reflect faithfully and completely the free expression of the choices made by the citizens of the European Union, by direct universal suffrage, as regards the persons by whom they wish to be represented during a given term (see, to that effect, judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 83).

57 It follows that, as the General Court correctly held in paragraph 49 of the judgment under appeal, the display of the flags of the Member States on the lecterns of MEPs elected to the Parliament conflicts with the representative function of those MEPs, as defined by the Treaties, to which Rule 10(1) of the Rules of Procedure expressly refers.

58 In those circumstances, it must be held that the disputed measure does not produce legal effects of such a kind as to affect the conditions under which the appellants’ exercise their mandate as MEPs by bringing about a distinct change in their legal position, since its effects do not go beyond those produced by the prohibition laid down in the second sentence of Rule 10(3) of the Rules of Procedure.

59 The General Court therefore did not err in law in holding, in paragraph 52 of the judgment under appeal, that the disputed measure does not constitute a challengeable act.

61 In the light of all the foregoing reasons, the appeal must be dismissed in its entirety.

62 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

63 Since the Parliament has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Parliament.

2. Orders Mr Jérôme Rivière, Ms Dominique Bilde, Ms Joëlle Mélin, Ms Aurélia Beigneux, Mr Thierry Mariani, Mr Jordan Bardella, Mr Jean-Paul Garraud, Mr Jean-François Jalkh, Mr Gilbert Collard, Mr Gilles Lebreton, Mr Nicolaus Fest, Mr Gunnar Beck and Mr Philippe Olivier to bear their own costs and to pay those incurred by the European Parliament.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rivière and Others v Parliament (Members of the European Parliament - Prohibition on displaying banners during the sittings of Parliament - Judgment) [2023] EUECJ C-767/21P (14 December 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C76721P.html Cite as: EU:C:2023:987, [2023] EUECJ C-767/21P, ECLI:EU:C:2023:987

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