Puigdemont i Casamajo and Others v Parliament (Interim relief - Institutional law - Privileges and immunities - Order) [2021] EUECJ T-272/21

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(Interim relief – Institutional law – Member of Parliament – Privileges and immunities – Waiver of the parliamentary immunity of a Member of the Parliament – Application for suspension of operation of a measure – No urgency)

represented by P. Bekaert, G. Boye, J. Costa i Rosselló and S. Bekaert, lawyers,

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

APPLICATION under Articles 278 and 279 TFEU for the suspension of operation of decisions P9_TA(2021)0059, P9_TA(2021)0060 and P9_TA(2021)0061 of the Parliament of 9 March 2021 on the request for waiver of the applicants’ immunity,

replacing the President of the General Court, in accordance with Article 157(4) of the Rules of Procedure of the General Court,

1 The applicants in the main proceedings, Mr Carles Puigdemont i Casamajó, Mr Antoni Comín i Oliveres and Ms Clara Ponsatí i Obiols, were respectively President of the Generalitat de Cataluña (Generalitat of Catalonia, Spain) and Members of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) at the time of the adoption of Ley 19/2017 del Parlamento de Cataluña, reguladora del referéndum de autodeterminación (Law 19/2017 of the Catalan Parliament regulating the referendum on self-determination) of 6 September 2017 (DOGC No 7449A of 6 September 2017, p. 1), and of Ley 20/2017 del Parlamento de Cataluña, de transitoriedad jurídica y fundacional de la República (Law 20/2017 of the Catalan Parliament on legal transition and founding the Republic) of 8 September 2017 (DOGC No 7451A of 8 September 2017, p. 1), and the holding, on 1 October 2017, of the referendum on self-determination provided for by the first of those two laws, the provisions of which had, in the interim, been suspended by a decision of the Tribunal Constitucional (Constitutional Court, Spain).

2 Following the adoption of those laws and the holding of that referendum, the Ministerio Fiscal (Public Prosecutor’s Office, Spain), the Abogado del Estado (Counsel for the State, Spain) and the Partido político VOX (VOX political party) brought criminal proceedings against several persons, including the applicants, alleging that they had committed acts relating, inter alia, to offences of ‘sedition’ (‘the criminal proceedings at issue’).

3 During the trial stage of the criminal proceedings at issue, the applicants submitted their applications to stand as candidates in the elections for Members of the European Parliament, called by Real Decreto 206/2019, por el que se convocan elecciones de Diputados al Parlamento Europeo (Royal Decree 206/2019 calling elections to the European Parliament) of 1 April 2019 (BOE No 79 of 2 April 2019, p. 33948), and held on 26 May 2019.

4 On 13 June 2019, the Junta Electoral Central (Central Electoral Commission, Spain) adopted the decision declaring the candidates elected to the Parliament at the elections of 26 May 2019, including Mr Puigdemont i Casamajó and Mr Comín i Oliveres.

5 On 17 June 2019, the Central Electoral Commission refused to allow the applicants to swear the oath or to pledge to abide by the Spanish Constitution required by Article 224(2) of Ley orgánica 5/1985 de regimen electoral general (Organic Law 5/1985 on the General Electoral System) of 19 June 1985 (BOE No 147 of 20 June 1985, p. 19110).

6 On the same day, that electoral committee notified the Parliament of the list of candidates elected in Spain, which did not include Mr Puigdemont i Casamajó or Mr Comín i Oliveres.

7 On 27 June 2019, the President of the Parliament informed Mr Puigdemont i Casamajó and Mr Comín i Oliveres that it was not in a position to treat them as future Members of the Parliament.

8 European arrest warrants, within the meaning of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), were issued by the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court, Spain) against Mr Puigdemont i Casamajó on 14 October 2019, and against Mr Comín i Oliveres and Ms Ponsatí i Obiols on 4 November 2019.

9 On 10 January 2020, the President of the Second Chamber of the Tribunal Supremo (Supreme Court) sent to the Parliament a request, arising from an order of the same day made by the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court), seeking to waive the immunity of Mr Puigdemont i Casamajó and Mr Comín i Oliveres on the basis of point (b) of the first paragraph of Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union, annexed to the TEU and TFEU (‘Protocol No 7’).

10 At the plenary session of 13 January 2020, the Parliament took note, following the judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115), of the election as Members of Mr Puigdemont i Casamajó and Mr Comín i Oliveres with effect from 2 July 2019.

11 On 16 January 2020, the Vice-President of the Parliament sent in plenary session the requests for waiver of the immunity of Mr Puigdemont i Casamajó and Mr Comín i Oliveres, and referred them to the relevant committee, namely the Parliament’s Committee on Legal Affairs (‘the JURI Committee’).

12 On 4 February 2020, the President of the Second Chamber of the Tribunal Supremo (Supreme Court) sent to the Parliament a request, arising from an order of the same day made by the investigating judge of the Criminal Chamber of the Tribunal Supremo (Supreme Court), requesting waiver of the immunity of Ms Ponsatí i Obiols on the basis of point (b) of the first paragraph of Article 9 of Protocol No 7.

13 On 10 February 2020, the Parliament, in accordance with Council Decision (EU) 2018/937 of 28 June 2018 establishing the composition of the European Parliament (OJ 2018 L 165, p. 1) and following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union on 31 January 2020, took note of the election of Ms Ponsatí i Obiols as a Member with effect from 1 February 2020.

14 On 13 February 2020, the Vice-President of the Parliament communicated in plenary session the request for waiver of the immunity of Ms Ponsatí i Obiols and referred it to the JURI Committee.

15 By order of 23 October 2020, the Appeal Chamber of the Tribunal Supremo (Supreme Court) dismissed the action brought by Mr Puigdemont i Casamajó and Mr Comín i Oliveres against the request of 10 January 2020 for waiver of immunity.

16 On 12, 16, 20, 23 and 24 November 2020, the applicants submitted observations to the Parliament.

18 On 15 and 20 February 2021, the applicants submitted observations to the Parliament.

19 On 23 February 2021, the JURI Committee adopted reports A 9‑0020/2021, A 9‑0021/2021 and A 9‑0022/2021 concerning the requests for waiver of the applicants’ immunity.

20 By decisions P9_TA(2021)0059, P9_TA(2021)0060 and P9_TA(2021)0061 of 9 March 2021 on the request for waiver of the applicants’ immunity (‘the contested decisions’), the Parliament granted the requests referred to in paragraphs 9 and 12 above.

21 By document lodged at the Court Registry on 19 May 2021, the applicants brought an action for annulment of the contested decisions.

22 By separate document lodged at the Court Registry on 26 May 2021, the applicants made an application for interim measures.

23 By order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure of the General Court, the Vice-President of the General Court ordered the suspension of operation of the contested decisions until the date of the order terminating the present interim proceedings.

24 By document lodged at the Court Registry on 15 June 2021, the Kingdom of Spain sought leave to intervene in the present proceedings in support of the form of order sought by the Parliament. The applicants and the Parliament submitted their observations in that regard within the prescribed period. The applicants’ observations also contained a request for measures of organisation of procedure.

25 On 16 June 2021, the Parliament submitted its observations on the application for interim measures.

26 On 22 June 2021, the Vice-President of the General Court put two written questions to the applicants, to which they replied within the prescribed period.

27 By decision of 24 June 2021, the Vice-President of the General Court granted the request referred to in paragraph 24 above. The Kingdom of Spain lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed periods.

28 In their application for interim measures, the applicants claim that the Court should:

29 In its observations on the application for interim measures, the Parliament, supported by the Kingdom of Spain, contends that the Vice-President of the General Court should:

– revoke the order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published);

30 In its observations on the application for interim measures, the Parliament raises serious doubts as to the admissibility of the main action. First, each of the three applicants is entitled to seek annulment only of the decision which concerns him or her and not of those concerning the other applicants. Second, the applicants do not specify to what extent each of the pleas raised applies to each of the contested decisions.

31 In that regard, it should be borne in mind that the admissibility of the main action should not, in principle, be examined in proceedings for interim measures. It is only if the manifest inadmissibility of the main action is pleaded that the party seeking interim measures must prove the existence of matters permitting the conclusion prima facie that that action, to which the application for interim relief relates, is admissible, so as to prevent that party from obtaining, by way of proceedings for interim relief, the suspension of operation of a measure the annulment of which may subsequently be refused, the action having been ruled inadmissible when examined on its merits (see, to that effect, order of 18 November 1999, Pfizer Animal Health v Council, C‑329/99 P(R), EU:C:1999:572, paragraph 89). Such an examination, by the judge hearing the application for interim measures, of the admissibility of the main action is necessarily summary because the proceedings for interim relief are by nature urgent (see, to that effect, order of 12 October 2000, Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council, C‑300/00 P(R), EU:C:2000:567, paragraph 35).

32 In the present case, far from alleging that the action for annulment to which the application for interim measures relates is manifestly inadmissible, the Parliament merely expressed ‘serious doubts’ in that regard, while leaving it ‘to the discretion’ of the judge hearing the application for interim measures to ‘draw the appropriate … conclusions’ from alleged procedural defects in the main application on which it relies. In those circumstances, there is no need for the judge hearing the application for interim measures to examine in the present interim proceedings the doubts raised by the Parliament as to the admissibility of the main action (see, to that effect, order of 17 March 1986, United Kingdom v Parliament, 23/86 R, EU:C:1986:125, paragraph 21).

33 It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only in exceptional cases that the judge hearing the application for interim measures can order the suspension of operation of an act challenged before the Court or prescribe interim measures (see order of 3 March 2020, Junqueras i Vies v Parliament, T‑24/20 R, not published, EU:T:2020:78, paragraph 40 and the case-law cited).

34 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’.

35 Thus, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. Where appropriate, the judge hearing an application for interim relief must also weigh up the interests involved (see order of 3 March 2020, Junqueras i Vies v Parliament, T‑24/20 R, not published, EU:T:2020:78, paragraph 42 and the case-law cited).

36 In the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 3 March 2020, Junqueras i Vies v Parliament, T‑24/20 R, not published, EU:T:2020:78, paragraph 43 and the case-law cited).

37 Having regard to the material in the case file, the Vice-President of the General Court considers that he has all the information necessary to rule on the present application for interim measures, without there being any need first to hear oral argument from the parties.

38 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

39 In that regard, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim protection. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 16 March 2007, V v Parliament, T‑345/05 R, not published, EU:T:2007:89, paragraph 82 and the case-law cited).

40 Although imminent harm need not be established with absolute certainty, it is sufficient, especially where the occurrence of the damage depends on the concurrence of a series of factors, to show that the damage is foreseeable with a sufficient degree of probability. However, the applicant is still required to prove the facts forming the basis of the claim that serious and irreparable damage is likely (see order of 16 March 2007, V v Parliament, T‑345/05 R, not published, EU:T:2007:89, paragraph 83 and the case-law cited).

41 In the present case, the applicants claim, first of all, that the lack of clarity of the contested decisions and the alleged breach of the principle of legal certainty by those decisions have an impact on the analysis of the urgency of the application. Thus, since no interpretation of those decisions can be ruled out until the Court decides on the substance of the case, for the purposes of analysing the condition of urgency, the appellants will take the interpretation that harms their rights the most. Next, on the basis of the principle that the contested decisions, in particular, allow any Member State and the United Kingdom to arrest them, or to restrict their movements and surrender them to the Spanish authorities, and that they do not prevent them from being placed, following their surrender, in pre-trial detention, the applicants claim that those decisions may cause them serious and irreparable harm. In particular, that would impair their right to exercise their office as Members of the European Parliament. In the applicants’ submission, any annulment of the contested decisions would be unenforceable if, at the time it takes effect, they had already been the subject of such a surrender and detention.

42 In that regard, in the first place, it must be stated that, in so far as the applicants’ argument seeks to adopt the interpretation of the contested decisions which impedes their rights most, that line of argument must be rejected. For the purposes of assessing the urgency of the present application, it is necessary for the judge hearing the application for interim measures to refer only to the objective effects of those decisions, determined in the light of their content. It should be added that, by that line of argument, in so far as the applicants seek, in order to establish that urgency, to rely on an alleged lack of clarity of the contested decisions and an infringement of the principle of legal certainty by those decisions, their arguments must also be rejected. According to established case-law, the alleged breach of a rule of law by an act cannot, in principle, be sufficient on its own to establish that any damage caused by that breach is serious and irreparable (see, to that effect, order of 29 July 2011, Cemex and Others v Commission, T‑292/11 R, not published, EU:T:2011:402, paragraph 29 and the case-law cited).

43 In the second place, it must be pointed out that the contested decisions waive the immunity enjoyed by the applicants under point (b) of the first paragraph of Article 9 of Protocol No 7, which provides that Members are to be exempt, in the territory of any Member State other than their national territory, from any measure of detention and from any legal proceedings. On the other hand, as regards the immunity conferred by the second paragraph of Article 9 of Protocol No 7 which covers Members when they are travelling to and from the place of meeting of the Parliament, it should be noted, first of all, that the contested decisions do not state that the requests for waiver of the applicants’ immunity were made by the competent Spanish authority pursuant to that provision. It is apparent from paragraph A of each of those decisions that the requests were made pursuant to point (b) of the first paragraph of Article 9 of Protocol No 7, and the second paragraph of that article is not mentioned in paragraph A. Next, it should be noted that the operative part of each of the contested decisions does not waive the immunity conferred by the second paragraph of Article 9 of Protocol No 7. Lastly, the Parliament expressly acknowledges, in its observations, that that immunity remains legally intact, confirming the interpretation put forward by the applicants that they retain that immunity. In those circumstances, and in the light of the silence of the contested decisions in that respect, it must be held that the immunity conferred by the second paragraph of Article 9 of Protocol No 7 was not waived by those decisions. The applicants are still free to travel in order to attend meetings of the Parliament. Thus, in order to establish the existence of serious and irreparable damage, the applicants cannot validly rely on an alleged risk of being arrested, in particular in France, when travelling to or from a parliamentary session in Strasbourg (France).

44 In the third place, it should be noted that, as is apparent from paragraph P of each of the contested decisions, the requests for waiver of immunity were made so that the execution of the European arrest warrants issued against the applicants could continue. However, according to the applicants, it cannot be ruled out that they may be subject to imminent arrest as a result of the combined effect of the contested decisions and the European arrest warrants, and the alerts to which they are subject.

45 In that regard, first of all, it should be noted that the waiver of the immunity of a Member of the European Parliament does not ipso facto imply the execution of a European arrest warrant issued against that person. The judicial authorities of the executing Member State have the possibility of refusing to execute such an arrest warrant, in particular under the conditions laid down in Articles 3 and 4 of Framework Decision 2002/584. Moreover, the person concerned may refuse to consent to surrender, so that it is for the executing judicial authority to make a final decision on the execution of the European arrest warrant, in accordance with Article 17 of that framework decision. The occurrence of the damage alleged by the applicants therefore depends on the concurrence of multiple factors.

46 Next, it must be stated that the applicants have not shown either that their arrest or the restriction of their movements or, a fortiori, that their surrender to the Spanish authorities and their subsequent remand in custody are foreseeable with a sufficient degree of probability.

47 Thus, they have adduced no evidence to support the conclusion that national executing authorities, for the purposes of Framework Decision 2002/584, and in particular those of the Member State in which they reside, namely Belgium, intend to process and execute the European arrest warrants issued in relation to them in such a way that the risk of the alleged harm occurring is sufficiently probable.

48 In that context, it should also be noted that, in response to a written question from the Vice-President of the General Court, the applicants have failed to demonstrate that, between the adoption of the contested decisions and the order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published), steps that could have led to that harm occurring were undertaken, even though under Article 17 of Framework Decision 2002/584 a European arrest warrant must be dealt with and executed as a matter of urgency.

49 More specifically, the applicants stated that, as regards the Belgian judicial authorities, the examination of the requests for the extradition of Mr Puigdemont i Casamajó and Mr Comín i Oliveres was postponed sine die on 14 February 2020, pending the Parliament’s decision on the request to waive parliamentary immunity. They made no mention of any step undertaken by those authorities following the adoption of the contested decisions and, at least, until the adoption of the order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published).

50 On the contrary, it is apparent from the information provided by the applicants that, on 7 January 2021, the Belgian judicial authorities refused to execute a European arrest warrant against Mr Lluís Puig i Gordi, who is also subject to the criminal proceedings at issue and a European arrest warrant, but who, unlike the applicants, does not enjoy immunity under Protocol No 7, stating that the execution of that warrant would jeopardise the fundamental rights of the person concerned.

51 That situation led the Tribunal Supremo (Supreme Court), in the context of the criminal proceedings at issue, to submit, on 9 March 2021, a request for a preliminary ruling to the Court of Justice under Article 267 TFEU, in order to ascertain inter alia whether Framework Decision 2002/584 authorises the executing judicial authority to refuse to surrender the requested person through a European arrest warrant on the basis of grounds for refusal laid down in its national law, but which are not specified, as such, in that framework decision (Case C‑158/21 Puig Gordi and Others).

52 As is apparent from the request for a preliminary ruling and as the Spanish authorities confirm, the criminal proceedings at issue were stayed by that request. Moreover, such a stay is provided for in the Recommendations of the Court of Justice to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), which state, in paragraph 25, that the lodging of a request for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling.

53 Since the request for a preliminary ruling concerns the execution of the European arrest warrants issued in the criminal proceedings at issue, it may be considered that the suspension of those proceedings calls for the suspension of the execution of those warrants.

54 The Spanish authorities also expressly stated that that request called for the suspension of the national arrest warrants issued against the applicants and entailed the suspension of any procedure for the execution of a European arrest warrant that may have been initiated. They also stated that no court of the European Union could execute the European arrest warrants at issue until the Court of Justice had given a ruling.

55 The applicants adduce no evidence to call into question the assertions of the Kingdom of Spain or to suggest that the suspension of the criminal proceedings at issue would not entail the suspension of the execution of the European arrest warrants. In particular, the argument put forward by the applicants that the Kingdom of Spain did not remove the alerts for arrest for surrender purposes of the Schengen Information System II has no bearing on the finding that the criminal proceedings at issue are suspended. As regards the fact that the investigating judge made several other orders and conducted various hearings after the request for a preliminary ruling, it has not been demonstrated that they concerned the European arrest warrants at issue or their execution.

56 In those circumstances, it must be concluded that, as long as the Court of Justice has not ruled in Case C‑158/21 Puig Gordi and Others, there is nothing to suggest that the Belgian judicial authorities or the authorities of another Member State could execute the European arrest warrants issued against the applicants and could surrender them to the Spanish authorities.

57 It must be added that, as regards the United Kingdom authorities, the applicants state that those authorities decided to continue the surrender procedure against Ms Ponsatí i Obiols after it was suspended. According to the applicants, a hearing took place on 4 May 2021 and a Scottish judge decided to continue the surrender procedure in respect of Ms Ponsatí i Obiols, a new hearing being set for August 2021. However, as the applicants stated, Ms Ponsatí i Obiols has not resided in the United Kingdom since January 2020, and the Scottish court hearing the matter will have to decide whether it retains jurisdiction to continue the procedure for the surrender of a person who no longer resides in the United Kingdom, with the result that an arrest and surrender of Ms Ponsatí i Obiols by the British authorities, as matters stand, appears to be hypothetical. Moreover, as the Parliament states, since the immunity waived by the contested decisions is that referred to in point (b) of the first paragraph of Article 9 of Protocol No 7, applicable in the territory of any Member State other than the national territory of the Member concerned and since, under the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7), the United Kingdom was no longer a Member State on the date those decisions were adopted, they have no effect on that State.

58 It follows from all of the foregoing that, as matters stand, the serious and irreparable damage pleaded by the applicants cannot be classified as damage which is certain or established with a sufficient degree of probability. The applicants have therefore failed to show that the condition relating to urgency was satisfied.

59 Accordingly, the application for interim measures must be dismissed, without it being necessary to examine whether the condition relating to the existence of a prima facie case is satisfied, or to balance the interests involved, or to grant the applicants’ request for measures of organisation of procedure.

60 However, it should be added that if, after the present order has been made, it appears with a sufficient degree of probability that the alleged damage may arise, in particular in the event of an arrest of the applicants by an executing authority of a Member State or the implementation of a procedure for their surrender to the Spanish authorities, it would be open to them to make a fresh application for interim measures under the conditions laid down in Article 160 of the Rules of Procedure.

61 Since the present order closes the proceedings for interim relief, it is appropriate to set aside the order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the operation of the contested decisions was suspended until the date of the order bringing the present proceedings for interim measures to an end.

62 Under Article 158(5) of the Rules of Procedure, the costs of the main parties are to be reserved. Furthermore, since the Kingdom of Spain is not an intervener in the main proceedings at the date of the present order, it should be ordered to bear its own costs relating to the present proceedings, in accordance with Article 138(1) of the Rules of Procedure.

2. The order of 2 June 2021, Puigdemont i Casamajó and Others v Parliament (T‑272/21 R) is set aside.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Puigdemont i Casamajo and Others v Parliament (Interim relief - Institutional law - Privileges and immunities - Order) [2021] EUECJ T-272/21_CO (30 July 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T27221_CO.html Cite as: EU:T:2021:497, [2021] EUECJ T-272/21_CO, ECLI:EU:T:2021:497

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