C-175/73
ECLI:EU:C:1974:95
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JUDGMENT OF THE COURT (FIRST CHAMBER) OF 8 OCTOBER. 1974 1
Union Syndicale—Amalgamated European Public Service Union— Brussels, Denise Massa and Roswitha Kortner v Council of the European Communities
Case 175/73
Summary
Officials — Staff associations — Capacity and entitlement to institute proceedings — Limits
(EEC Treaty, Article 173 and 179; Statute of the Court, Article 37; Staff Regulations, Article 24a, 90 and 91)
The freedom of trade union activity of the second paragraph of Article 173 recognized under Article 24a of the Staff of the EEC Treaty, to institute Regulations means not only that officials proceedings for annulment against a and servants have the right without decision addressed to it and, under the hindrance to form associations of their conditions set out in Article 37 of the own choosing, but also that these Statute of the Court, to intervene in associations are free to do anything disputes submitted to the Court. lawful, especially by using the right of On the other hand a direct action by a action, to protect the interests of their staff association cannot be entertained members as employees. under the procedure of complaint and Thus a staff association which fulfils the appeal established by Articles 90 and 91 required conditions is entitled, by virtue of the Staff Regulations.
In Case 175/73
Union Syndicale — Amalgamated European Public Service Union —
Brussels, MISS Denise Massa,
Mrs Roswitha Schots, Née Kortner,
1 — Language of the Case: French.
JUDGMENT OF 8. 10. 1974 — CASE 175/73
officials of the Council of the European Communities, represented and assisted by M. Grégoire, lawyer at the Brussels Cour d'Appel, rue Camille Lemonnier, 68, 1060 Brussels, with an address for service in Luxembourg at the Chambers of T. Biever, lawyer at the Court, 83, boulevard Grande- Duchesse Charlotte,
applicants,
v
Council of the European Communities at Brussels , represented by G. Lesort, Legal Adviser to the Secretariat-General of the Council at Brussels, assisted by A. Sacchettini, with an address for service in Luxembourg at the office of P. Lamoureux, Legal Adviser to the Commission of the European Communities, 4, boulevard Royal,
defendant,
Application for the annulment of the Decisions of the Council of 22 December 1972, published on 3 January 1973, concerning the appointment of Roger Brisaer and Charles Goetz to administrative posts at Grade A 6 and of all other related decisions and of the implied decision rejecting the applicants' complaints,
THE COURT
composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars (Rapporteur), P. Pescatore, H. Kutscher, C. Ó Dálaigh and Lord Mackenzie Stuart, Judges
Advocate-General: G. Reischl
Registrar: A. Van Houtte
gives the following
UNION SYNDICALE, MASSA AND KORTNER v COUNCIL
JUDGMENT
Facts
The facts and the arguments developed 22 October 1973 and registered at the by the parties in the course of the Court on 24 October 1973. The written procedure may be summarized as application is essentially based upon the follows: infringement, by the acts in issue, of Articles 29 (1), 29 (2) and 45 (2) of the Staff Regulations of officials of the European Communities, in that the I — Facts and procedure relevant appointments were made without any prior competition, although The Union Syndicale is a union of such a competition is alleged to be officials and agents of the European obligatory (infringement of Article institutions and other European organi 29 (1) ) and although this rule may be zations located in Brussels, the Rules of waived only in exceptional cases and which, adopted on 25 January 1973, under conditions which did not obtain in came into force on that date. this case, in particular because the recruitment was internal to the The applicants Massa and Schots are officials of the Secretariat-General of the institution and concerned posts which do not require special qualifications Council. Miss Massa, who took up (infringement of Article 29 (2) ), and employment on 1 May 1971, was more especially because it involved the appointed to Grade A 7 on 1 January promotion of an official from Category 1972; Mrs Schots, who took up B to Category A (infringement of Article employment on 1 September 1958, was 45 (2) ). Further, there was an alleged promoted to Grade B 3 on 1 August 1972. infringement of Article 29 (2) in that provision could be invoked, if indeed it On 8 August 1972, the defendant posted was admissible in the present case, only two notifications of vacancies, Nos if the notification of vacancy or a 84/72 and 86/72, dated 7 August 1972, subsequent act had given notice of that relating respectively to three and two possibility and if the reasons for the administrative posts at Grade A 6, in adoption of a recruitment procedure career bracket A 7/A 6. without competition had been given. By Decisions of 22 December 1972, By a statement of 27 November 1973, published on 3 January 1973, the the Council raised a plea of defendant appointed to two of those inadmissibility and requested that, posts, the one mentioned in the notice of pursuant to Article 91 (4) of the Rules vacancy No 86/72, the other in the of Procedure, the Court of Justice should notice of vacancy No 84/72, respectively give a ruling to that effect without Roger Brisaer and Charles Goetz, considering the merits of the application. officials of Grade B 1, who were thereby The applicants claimed that the Court promoted from Category B to Category should reject the said plea. A. By Order of 13 February 1974, the The complaints lodged by the applicants Court, First Chamber, decided to refer pursuant to Article 90 (2) of the Staff the case to a plenary session of the Regulations received no reply and the Court pursuant to Article 95 (2) of the present application was made on Rules of Procedure.
JUDGMENT OF 8. 10. 1974 — CASE. 175/73
The Court, in plenary session, decided to III — Submissions and argu give a ruling on the plea of ments of the parties inadmissibility without considering the in relation to the merits of the case. plea of inadmissibil After hearing the report of the ity Judge-Rapporteur and the opinion of the 1. The Council notes, firstly, that Advocate-General the Court further Article 179 of the EEC Treaty gives the decided not to order any preparatory Court jurisdiction 'in any dispute inquiry. between the Community and its servants' whereas Article 91 of the Staff Regulations lays down that it shall have II — Submissions of the jurisdiction in any dispute 'between the parties with regard to Communities and any person to whom the plea of inadmissi these Staff Regulations apply regarding bility the legality of an act adversely affecting such person within the meaning of The Council submits that the Court Article 90 (2)'. The Union Syndicale is should: neither a servant within the meaning of — declare the application inadmissible Article 179 nor a 'person to whom these insofar as it has been brought by the Staff Regulations apply', since this last Union Syndicale — Amalgamated expression is merely a slightly wider European Public Service Union, and interpretation of the concept of a by the other applicants, to the extent servant, which is intended to cover that the latter intend to take part in persons who, although not yet servants, the application in this case in their take part in the procedures laid down by capacities as officers or members of the Staff Regulations to obtain that the said Union Syndicale. status.
In reply to the preliminary objection of 2. Although Article 24 a of the Staff the Council the following claims are Regulations entitles officials to exercise made to the Court: the right of association, it does not permit unions to be considered as 1. By the applicants Massa and Schots persons to whom the Staff Regulations (a) that notice be taken by the Court apply. It affirms the right of officials to that they have brought and are form unions, but not that of the unions pursuing their applications on a to intervene on behalf of officials. personal basis and for the defence The unequivocal desire on the part of of their own interests, the Council, in its role as a legislative (b) that the Court should find, as a body, to refuse union organizations the consequence, that no plea of right to appear before the Court in inadmissibility has been or can be matters relating to the Staff Regulations raised against their applications. is demonstrated by its refusal to adopt an amendment, proposed by the 2. By the applicant Union Syndicale Assembly, to Article 24 a of the Staff — that the Court should reject the Regulations, to the following effect: 'in plea of inadmissibility. disputes before the Court of Justice between the Community and any person 3. By all the applicants to whom these Staff Regulations apply, — that the applications should be the union or professional organization of declared admissible, which that person is a member may — that the Court should order the intervene in the dispute if such continuation of the procedure intervention is justified by the general with regard to the merits. interest of the staff.
UNION SYNDICALE, MASSA AND KORTNER v COUNCIL
The Council further states that, with regard to unions. In that they according to Article 91 of the Staff represent only a section of the staff, Regulations, the act in issue must unions cannot appear before the Court adversely affect the applicant, but that to contest an individual act, which this is not the case here. The act must be cannot as such affect them adversely, one which directly affects the legal and which they cannot raise in issue if it situation of the person concerned. An is such as to affect all the staff of the act which affects the interest, shared by Communities. all officials, in a general adherence to the rules contained in the Staff Regulations, 5. The applicants, defendants in the cannot be regarded as an act having an matter of the plea of inadmissibility, adverse effect. reply to the above as follows.
3. Although it is indeed true that, in 6. They state, firstly, that the plea can certain Member States, professional apply only to the application made by organizations may be recognized as the Union Syndicale, since Miss Massa being qualified to represent the general and Mrs Schots made their applications interests of their members, such under their own names, on their own recognition is subject to conditions of a names, on their own behalf and in their restrictive nature and is only conferred own personal interest. in a limited degree. Furthermore, the 7. Considering next the right of action disparities between the legislations and before the Court of Justice enjoyed by case laws of the Member States preclude union organizations, and the interest in any finding as to a general legal such action which they must display, the principle, recognized in all the Member applicants remark, as to the first point, States, and which would thereby acquire the status of a Community rule which it that this right derives from general legal principles, and thus can be restricted would be incumbent upon the only by legislation which is institutions, and in particular upon the unambiguous on this issue. Court, in its role as judicial body, to implement. Legal personality necessarily involves the Moreover, even if the right of right to be a party to legal proceedings, professional organizations to intervene and the Council does not contest the fact
before the courts to contest the legality that the Union Syndicale has legal of an administrative act was recognized personality. Furthermore, union organi uniformly in all the Member States, its zations possess the attributes of legal applicability within the legal order of the personality, as distinguished in the . case Community would depend upon its law of the Court of Justice, namely: being demonstrated that the Community independence and responsibility for their legislature had not — as here — decided own actions (Order of 14 November the question in the negative. 1963, Case 15/63, Lassalle v European Parliament, Rec. 1964, p. 100). It is 4. Finally, the Council claims that the precisely these qualities which distin representation of the interests of the staff guish unions from committees, and the is the exclusive responsibility, under argument a fortiori drawn by the Article 9 (3) of the Staff Regulations, of Council from the Order of 14 November the Staff Committee, or, in certain cases, 1963 cited above is therefore groundless. of representatives of the latter on the Joint Committee. The Order of the 8. The recognition of the ability of Court of 14 November 1963 (Case unions to be parties to legal proceedings, 15/63, Lassalle v European Parliament, taken in conjunction with the facts that Rec. 1964, p. 97) did not recognize the the Court of Justice is alone competent Staff Committee's right of intervention; to hear cases between the staff and the the position must be the same, a fortiori, institutions, and that the specific task of
JUDGMENT OF 8. 10. 1974 — CASE 175/73
the unions is to undertake the defence of task. The Council's Decision of 21 the professional interests of 'the staff, March 1972, on the system of lead to the conclusion that, in principle, adjustments to remunerations, adopted union organizations have and indeed pursuant to Article 65 of the Staff must have a right of action before the Regulations, gave unions the right to Court of Justice. This right of action, receive certain information, which also particularly in matters relating to the refutes the Council's statement 'that Staff Regulations, also derives from the mention is made of the unions in the laws of the Member States and therefore Staff Regulations not so that they may constitutes a general legal principle acquire rights or be made subject to applicable within the legal order of the obligations'.
Community. Finally, it is to no avail that the Council 9. It is the combined effect of the pleads its refusal to consider the amendment to Article 24 a of the Staff foregoing considerations that, in the absence of legislation to the contrary, Regulations, as proposed by the the right of action of union European Parliament, relating to the organizations before the Court must be right of trade unions to intervene before admitted. Such legislation does not in the Court of Justice. The reason for this
fact exist. silence, as appears from an introductory note by the Council working party on Neither Article 179 of the Treaty nor Staff Regulations (Annex II to the Article 91 of the Staff Regulations could applicants' Observations), was the wish be interpreted as embodying such a not to adopt 'by means of an prohibition. The expression 'servants' in Article 179 should not be understood as amendment to the Staff Regulations, provisions which belong within the having a restrictive meaning, as appears Rules of Procedure before the Court of from Article 91 of the Staff Regulations,
Justice'. where it is replaced by the expression 'any person to whom these Staff 11. Regarding the interest which a Regulations apply', for the precise trade union must justify, the applicants purpose of including in the concept of claim that, once the right to be a party 'servants' persons who are not servants to legal proceedings and the right of in the strict sense of the word (Judgment action of trade unions in matters relating of 31 March 1965, Case 23/64, to the Staff Regulations are admitted, a Vandevyvere v Parliament, Rec. 1965, p. collective interest must be sufficient to
206). It is therefore equally admissible qualify a trade union to bring an to consider as 'any person to whom application for annulment of an these Staff Regulations apply' unions administrative act. The question here is recognized by the institutions, whose that of knowing whether and to what task is to defend, within the framework extent an organization can take action, of the Staff Regulations, the professional on the ground of a collective interest, in interests of the staff. Moreover, when respect of a detriment suffered by some the unions act they do so in exercise of of its members as individuals. the right of action enjoyed by servants of 12. The collective interest could be the Community themselves. threatened by individual acts if they
10. The mention made at Article 24 a threaten the objective pursued by the of the Staff Regulations of 'trade unions union in a way which the latter feels to or staff associations' cannot, as the be detrimental to the value which it is its Council maintains, be devoid of all legal objective to defend or promote. In this effect. It necessarily implies that the case the objective is to ensure that the unions exist, that they are permissible exceptional nature of the procedure laid under the Staff Regulations and that down at Article 29 (2) of the Staff they can undertake their own specific Regulations is respected.
The exceptional
UNION SYNDICALE, MASSA AND KORTNER v COUNCIL
nature of that provision is a fundamental 14. As a subsidiary point, the principle, the disregard of which would applicants observe that, even if the union have effects of a general nature, not were not permitted to bring the merely individual repercussions. The application itself, it would nevertheless union cannot remain inactive while a be able to undertake a joint application situation is created which, if approved by with those of its members who had been the Court, would throw into question, by adversely affected by the acts in issue. its effect as a precedent, all the normal rules governing recruitment and promo Finally, the applicants do not believe tion. that, in order to decide the admissibility of the application, it is necessary to 13. The collective interest could also be examine the degree of representation threatened by an individual act which is displayed by the Union Syndicale. The certain to have repercussions with regard latter could not be required to establish, to several non-identifiable persons in concreto/, that certain of its members forming part of the organization which were in fact adversely affected by the is bringing the application for individual acts. At all events, the annulment, even where such repercus applicants, Miss Massa and Mrs Schots, sions will only be felt at some time in are members of the Union Syndicale and the future. With regard to this point the were in fact adversely affected. applicants refer to the case law of the Belgian Conseil d'État (Judgment of 12 Furthermore, the right of action of the July 1967, No 12521/67, Verbond van first applicant could not be made het Vlaams Overheidspersoneel, RACE dependent upon the condition that the 1967, p. 752), which corresponds act caused detriment only to members of moreover to the view taken by a the Union Syndicale nor, clearly, upon the condition that all officials of the substantial body of academic lawyers, especially in France. The promotions at European institutions should belong to issue in this case are likely to damage the that organization. material and moral interests of an During the course of the oral procedure, indeterminate number of members of the on 21 March 1974, the parties expanded Union Syndicale, as well as those of the arguments put forward during the other officials who, at some future time, written procedure. will be faced with the way in which, in the acts in issue here, Article 29 (2) of The Advocate-General presented his the Staff Regulations has been employed. opinion at the hearing on 8 May 1974.
Law
1 The application submitted on 22 October 1973, on the basis of Articles 90 and 91 of the Staff Regulations of Officials of the European Communities, jointly by the 'Union Syndicale — Amalgamated European Public Service Union — Brussels', Miss Denise Massa, and Mrs Roswitha Schots, officials of the Council of the European Communities, seeks to annul both the appointments of Roger Brisaer and Charles Goetz to administrative posts at Grade A 6 which had been the subject of the Notices of Vacancies Nos 84/72
JUDGMENT OF 8. 10. 1974 — CASE 175/73
and 86/72, and the earlier decisions, taken prior to the said appointments, as well as the implied rejection of the complaints made by the said applicants on 26 and 27 March 1973, seeking the reversal of the decisions in issue.
2 By written submission of 27 November 1973 the Council raised a plea of inadmissibility and asked the Court to rule thereon without entering into the merits.
3 The First Chamber of the Court, before which the case was brought pursuant to Article 95 (1) of the Rules of Procedure, referred the case to the Court sitting in plenary session, by Order of 13 February 1974.
4 The Court decided, pursuant to Article 91 of the Rules of Procedure, to rule on the plea without entering into the merits.
5 As regards the admissibility of the application, the request submitted by the Union Syndicate should be distinguished from that of the other applicants.
6 In effect, the latter assert that they are acting in their own names and in defence of their own interests, not as members or officers of the first applicant.
As regards the Union Syndicale
7 The Council claims, firstly, that the applicant union is neither an 'agent' within the meaning of Article 179 of the Treaty nor a 'person to whom these Staff Regulations apply' within the meaning of Article 91 of the Staff Regulations and that its application must accordingly be held inadmissible.
8 It claims, secondly, that the right of union organizations to institute proceedings for the purpose of representing the collective interests of the staff and to contest, on that authority, the legality of an administrative act cannot be held to be a general principle of law recognized in the Member States and which must be incorporated into the Community legal order.
UNION SYNDICALE, MASSA AND KORTNER v COUNCIL
9 Under Article 24 a of the Staff Regulations, officials enjoy the right of association and, in particular, may be members of trade unions or staff associations of European officials.
10 The applicant union is an association organizing a substantial number of officials and servants of the Community institutions and component bodies established in Brussels and there is no reason to doubt its representative character.
11 Under its rules, its constitutional structure is such as to endow it with the necessary independence to act as a responsible body in legal matters.
12 The Community institutions officially recognize it as a negotiating body on questions involving the collective interests of the staff.
13 It is therefore impossible to deny the applicant union's capacity to institute proceedings.
14 Under the general principles of labour law, the freedom of trade union activity recognized under Article 24 a of the Staff Regulations means not only that officials and servants have the right without hindrance to form associations of their own choosing, but also that these associations are free to do anything lawful to protect the interests of their members as employees.
15 The right of action is one of the means available for use by these associations.
16 Under the Community legal system, however, the exercise of this right is subject to the conditions determined by the system of forms of action provided for under the Treaties establishing the Communities.
17 Thus a staff association which fulfils these conditions is entitled, by virtue of the second paragraph of Article 173 of the EEC Treaty, to institute proceedings for annulment against a decision addressed to it within the meaning of that provision.
JUDGMENT OF 8. 10. 1974 — CASE 175/73
18 On the other hand, the bringing of a direct action is inadmissible under the arrangements provided under Articles 90 and 91 of the Staff Regulations for proceedings to be brought before the Court, insofar as these provisions give effect to Article 179 of the EEC Treaty and the corresponding Articles of the ECSC and EAEC Treaties.
19 Though Article 179 is available as a basis on which arrangements may be made for settlement by the Court of collective as well as individual disputes between the Community and its servants, this does not alter the fact that the procedure for complaint and appeal established by Articles 90 and 91 of the Staff Regulations is designed to deal exclusively with individual disputes.
20 This means that the channel of appeal provided for under Article 91 is available only to officials or servants.
21 Under the second paragraph of Article 37 of the Statute of the Court the right to intervene is, on the other hand, open to any person establishing a legitimate interest in the result of any case submitted to the Court, including those coming under Article 91 of the Staff Regulations.
22 In the circumstances of this case, therefore, as to the facts and to the law, the Court has no jurisdiction to entertain a direct action brought by a staff association under Article 91 of the Staff Regulations.
23 The application must therefore be held inadmissible insofar as it has been made by the first applicant.
As regards the applicants Massa and Schots
24 The action must be referred to the First Chamber of the Court insofar as it has been instituted by the second and third applicants.
UNION SYNDICALE, MASSA AND KORTNER v COUNCIL
Costs
25 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
26 In view, however, of the general interest of the issue which has been raised the first applicant should be ordered to bear its own costs and the remaining costs should be reserved.
On those grounds,
THE COURT
hereby:
1. Dismisses the application as inadmissible insofar as it has been brought by the first applicant;
2. Orders the first applicant to bear its own costs;
3. Orders the case to be transferred before the First Chamber of the Court insofar as regards the other applicants.
Lecourt Donner Sørensen Monaco Mertens de Wilmars
Pescatore Kutscher Ó Dálaigh Mackenzie Stuart
Delivered in open court in Luxembourg on 8 October 1974.
A. Van Houtte R. Lecourt
Registrar President