Op-Ed: “The Legal Standing of a Member of the European Parliament in an Action for Annulment” by René Repasi

On 10 October 2022, the deadline for raising an action for annulment against the Commission Delegated Regulation 2022/1214 (the so-called ‘Taxonomy Delegated Regulation’) expired. By that day, Austria has raised an action for annulment under Article 263(2) TFEU against the Delegated Regulation. A group of environmental NGOs has filed an internal review request under Article 10 of the revised Aarhus Regulation (EU) 1367/2007, which will ultimately also open up access to the Court at a later moment in time. The author of this contribution has also launched an action for annulment against the Delegated Regulation in his capacity as a Member of the European Parliament (MEP) under Article 263(4) TFEU. The main argument on substance was developed in an earlier Op-Ed on EU Law Live. The most innovative part of this action for annulment is the legal standing for raising this action. In essence, the main legal question is whether a single MEP can claim the wrong choice of a legal basis by the European Commission in case this choice leads to a different decision-making procedure than the ordinary legislative procedure and, by that, to a denial of the individual participation rights of single MEPs in an ordinary rule-making procedure.

Legal Standing of a Member of the European Parliament under Article 263(4) TFEU

In order to have legal standing, according to Article 263(4) TFEU, the contested act must be of direct and individual concern to a natural person. In the present case, it is argued that the adoption of the Delegated Regulation concerns the legal position of a Member of the European Parliament in a direct and individual manner because the content of the Delegated Regulation should have been adopted by a legislative act in accordance with the ordinary legislative procedure. A single Member of the European Parliament has an individual right to participate in an ordinary rule-making procedure. This is the core argument on which the claim is built. It derives from the legal status of the MEP as it is defined by the Treaties. According to Article 10(1) TEU, the functioning of the Union is founded on representative democracy, which manifests itself by the fact that, pursuant to Article 10(2) TEU, citizens are directly represented at Union level in the European Parliament. Article 14(2) TEU specifies that the European Parliament is composed of representatives of the Union’s citizens, who are elected by direct universal suffrage in a free and secret ballot (Article 14(3) TEU). The democratic representation is not with the European Parliament as an institution but with the Members of the European Parliament. It is the sum of all members that defines the democratic legitimacy employed by the European Parliament in order to justify its claim to act as a co-legislator.

Single MEPs have an individual right to participate in an ordinary rule-making procedure

The democratic participation of the elected MEPs manifests itself by the right to vote, which is a personal right (Rule 186(1) of the Rules of Procedure of the European Parliament). This personal right to vote is an emanation of the principle of democracy, on which the Union is founded (Article 2 TEU). Moreover, elected MEPs participate in their individual capacity in the legislative work of the European Parliament by their individual right to table amendments in the committee, in which they are a full or substitute member (Rule 218(1) of the Rules of Procedure of the European Parliament). Depending on the applicable legislative procedure, the relevance of the democratic participation of single MEPs differs. Under the ordinary legislative procedure pursuant to Article 289 and 294 TFEU, in order to conclude the first reading a simple majority vote in the plenary session of the Parliament is sufficient. At the committee stage during the first reading, a simple majority is equally sufficient during the votes on legislative reports and when voting on amendments tabled by single MEPs. In contrast to that, under the special legislative procedure, when Parliament is only consulted, the content of amendments and the result of the votes within Parliament can ultimately be disregarded by the Council when adopting the final act. When dealing with delegated acts, in return, an objection to a delegated act requires an absolute majority (‘majority of its component members’) according to Article 290(2)(b) TFEU. This shows that the quality of the democratic participation of single MEPs differs in accordance with applicable decision-making procedure.

The applicable decision-making procedure is determined by the European Commission when choosing the legal base for an act. This is part of the monopoly of the European Commission to initiate decision-making procedures (Article 17(2) TEU). By that, the European Commission determines the quality of the democratic participation of single MEPs in a decision-making procedure. Provided that the Commission has chosen the accurate legal base, this is a consequence that derives directly from the Treaties as they have defined the applicable decision-making procedure for acts falling within the scope of the respective Union competence. Yet, the Commission could also choose a wrong legal base, which is a ground of illegality under Article 263(2) TFEU. This ground can obviously be put forward by the European Parliament as a privileged claimant under Article 263(2) TFEU. The question whether a single MEP can do the same under Article 263(4) TFEU is not yet answered by the case-law of the Court of Justice of the EU (CJEU).

The Legal Status of an MEP is detached from the Legal Status of the European Parliament as an Institution

The answer to this question depends on whether the legal status of a single MEP is detached from the legal status of the European Parliament as an institution. As explained earlier, the European Parliament as an institution derives its democratic legitimacy from its members. The legal status of the European Parliament is the sum of the legal status of all its members. The Treaties recognise the status of the European Parliament in Article 13(1) TEU. The European Parliament does not, however, absorb the legal status of single MEPs. Both rather co-exist next to each other and their respective rights can, hence, be violated by the same action. The legal status of an MEP is therefore detached from the legal status of the European Parliament as an institution. The legal manifestation of this legal status of single MEPs is their individual right to participate in an ordinary rule-making procedure. The application of a special legislative procedure or the adoption of a delegated act deprives a single MEP from his or her right to vote and from his or her right to table amendments in the responsible committee. Consequently, a single MEP must also have the right to claim a violation of his or her individual right to participate in an ordinary rule-making procedure under Article 263(4) TFEU. It should be noted in that context that the Court of Justice in a recent case (Joined Cases C-106/19 and C-232/19) has accepted that an alleged lack of competence can be claimed by both a privileged claimant under Article 263(2) TFEU and a third party under Article 263(4) TFEU provided the latter meets the requirements of legal standing under that rule.

Applied to the case of a delegated act, which is the subject-matter of the action raised by the author, a single MEP is concerned directly by the adoption of a delegated act as a single MEP in terms of Article 263(4) TFEU since his or her individual right to participate in an ordinary legislative procedure is affected because he or she cannot table any amendments to text of the delegated act. He or she may only object to the ‘package’ presented by the Commission. A single MEP is also concerned individually as the legal status of an elected MEP differentiates the MEP from all other persons by reason of certain attributes which are peculiar to him or her, namely being directly elected by the Union citizens to the European Parliament. The same can be argued for an act which was adopted in accordance with a special legislative procedure.

Limitations to an Action for Annulment of Single MEPs

This shows that, in principle, a single MEP has legal standing for an action for annulment under Article 263(4) TFEU in two constellations: first, when a delegated act was adopted instead of a legislative act – which is the subject-matter of the action raised by the author – and, second, when a legislative act was adopted in accordance with the special legislative procedure instead of the ordinary one. Whilst the danger of an inundation of the EU Courts by actions of single MEPs is rather remote given the vast amount of delegated acts that actually deal with non-essential, technical elements of a legislative act, an action for annulment initiated by single MEPs, I would argue, is subject to meaningful limitations, which are linked to the need to prove a legal interest in raising such an action and which derive from the fact that the action may not be launched in an abusive manner. The review of legality is limited to the grounds of lack of competence, an infringement of an essential procedural requirement or the misuse of powers directly linked to the democratic participation of a single MEP in an ordinary rule-making procedure. The ground of an infringement of the Treaties or of any rule of law relating to their application is excluded from this action as this ground does not relate to the democratic participation of a single MEP in an ordinary rule-making procedure. When claiming the review of the legality of a delegated act, the claimant has to argue the possibility that the content of the delegated act concerns essential elements of an area as required under Article 290(1) TFEU. The mere existence of a delegated act does not in itself lead to the admissibility of an action for annulment of a single MEP. When claiming the review of the legality of a legislative act adopted in accordance with the special legislative procedure, the claimant must argue the possibility that the area covered by this act falls within the scope of a competence that requires the ordinary legislative procedure.

Conclusion

The present action raises a fundamental constitutional question of EU law, which is still unanswered. It is the question whether a single MEP has an individual right to defend Parliament’s prerogatives and to claim a review of legality of a legal act, which was not adopted in accordance with the ordinary legislative procedure. It is about instituting a minority right to defend democratic participation rights introduced by the Treaties in front of the EU Courts. This is particularly relevant against the fact that the European Parliament, under its current Rules of Procedure, can only raise an action for annulment if such action is approved by a majority vote (Rule 149(3) of the Rules of Procedure of the European Parliament). Whilst the majority rule is inherent to democratic decision-making and legitimises its outcome, it cannot determine whether a violation of EU constitutional rules on democratic participation can be reviewed by the Court of Justice. This action goes to the heart of the meaning of the principle of democracy in EU law.

René Repasi is Professor of law at Erasmus School of Law, Erasmus University Rotterdam, and Member of the European Parliament (MEP) for the S&D group. He voted in favour of the motion for resolution objecting to the Commission Delegated Regulation and raised an action for annulment against the Commission Delegated Regulation. The author is grateful to the meaningful contributions by Amelie Albrecht, Dörte Fouquet, Friedemann Kainer, Hans-Georg Kamann and Martin Nettesheim to building the argument. All mistakes are the author’s own.