Action brought on 9 August 2007 — Italian Republic v European Parliament

(Case C-393/07)

(2007/C 247/23)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: I.M. Braguglia, agent, and P. Gentili, Avvocato dello Stato)

Defendant: European Parliament

Form of order sought

Pleas in law and main arguments

The action is based on five grounds.

By the first ground, the Italian Government alleges infringement of rules of law by reference to Articles 6 (formerly 4), 8 (formerly 7), 12 (formerly 11) and 13 (formerly 12) of Decision 76/787/ECSC, EEC, Euratom, relating to the Act concerning the election of Members of the European Parliament by direct universal suffrage of 20 September 1976 (‘the 1976 Act’), as amended most recently by Decision No 2002/772/EC/Euratom of 25 June 2002 (1), and by reference to Article 6 EU. In verifying the credentials of Members, the European Parliament cannot as a matter of fact examine the lawfulness of national electoral procedures and must simply take cognisance of the results lawfully declared under those procedures. The prohibition on Members who are bound by binding instructions or under a binding mandate laid down in Article 6 of the 1976 Act has no bearing on the express decision of an unelected candidate not to replace an elected candidate who has ceased to hold office.

By its second ground, the Italian Government alleges infringement of rules of law by reference to Article 2 of the Statute for Members of the European Parliament adopted by Decision 2005/684/EC, Euratom of 28 September 2005 (2). Those provisions will in fact enter into force with effect from the 2009 legislative period and in any event concern only sitting Members and are therefore irrelevant for the purposes of assessing the decision of an unelected candidate not to replace an elected candidate who has ceased to hold office.

By its third ground, the Italian Government alleges infringement of rules of law by reference to Article 199 EC and Rules 3 and 4 of the Rules of Procedure of the European Parliament. Those provisions govern only the internal procedures of the Parliament, inter alia, when verifying credentials and the power cannot therefore be inferred from those provisions to examine the lawfulness of national electoral procedures, not even with regard to the replacement of elected candidates who have ceased to hold office with unelected candidates.

By its fourth ground, the Italian Government alleges infringement of rules of law by reference to Article 6 EU and Articles 10 and 230 EC. The European Parliament did not have the power to disapply the judgment of the Italian Consiglio di Stato, which is final and conclusive and which established that the election of Mr Donnici was lawful. The European Parliament should, if necessary, have challenged that judgment by initiating third-party proceedings. In any event, the decision of the European Parliament is contrary to the general principle of res judicata, which is common to all the Member States.

By its fifth ground, the Italian Government claims that the contested decision failed to give adequate reasons. Indeed, that decision does not state the relevant facts on the basis of which the Parliament concluded that Mr Occhetto's decision not to replace Mr Di Pietro was not freely made.

(1)  OJ 2002 L 283, p. 1.

(2)  OJ 2005 L 262, p. 1.