C-18/74

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 18/74

Syndicat General du Personnel des Organismes européens , (Official English title: General Union of Personnel of European Organizations) of Luxembourg, represented by its President M. Metge, assisted by R. Badinter, Advocate before the Cour d'Appel of Paris, with an address for service in Luxembourg at the Chambers of J. Welter, 11 B, avenue de la Porte-Neuve,

applicant, v

Commission of the European Communities, represented by its Legal Adviser,

1 — Language of the Case: French.

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and arguments developed by These strikes arose from the fact that the the parties in the course of the written Council had adopted a Regulation procedure may be summarised as concerning an increase of remuneration follows: to compensate for the rise in the cost of living which, being based on considerations set out in the Council's decision of 20 and 21 March 1972, was I — Facts and procedure not in accordance with the proposal of the Commission.

1. A so-called 'warning' strike of the On 28 March 1973 the following staff of the institutions of the European announcement from Mr Borschette, the Communities took place during the member of the Commission responsible afternoon of 30 November and on 1 for staff matters, was published by December 1972. This strike was informaphone: followed by a so-called 'proper' strike on 'I wish to inform staff of the 11 to 15 December 1972. Commission that, at its meeting on

In the light of the outcome of these made from salary for the month of discussions, the Commission decided at October 1973 in the case of staff

its meeting on 28 February 1973 to working at Brussels and, at latest from arrange for a deduction to be made from salary for November in the case of staff the salaries of officials who had gone on working at Luxembourg. strike, making an 'exception' in respect The deduction will consist of 1/30 of of three days of the strike, regardless of remuneration for each day on strike and date. will be itemized as follows on pay On 1 March 1973, I met the trade slips: ...' unions and staff associations to inform 2. On 19 October 1973 the applicant them of the Commission's discussions on lodged a complaint pursuant to Article the subject. On 7 March, after informing 91 (2) of the Staff Regulations of the Commission of the outcome of our officials in which he sought annulment meeting with the CLOSP, the President, of 'the decision of the officials in which Mr Ortoli, and I had a second meeting he sought annulment of 'the decision of with the staff representatives. the Commission to deduct three and a After this meeting and receiving a report half days' pay from salaries for October on it, the Commission confirmed its 1973 ...'. The complaint was signed by previous decision and instructed the the President and the General Secretary Directorate-General of Personnel and of the applicant union. Administration to arrange for deduction 3. As there was no answer to the from the salaries of officials and other complaint, the present appeal was servants who had taken part in the lodged on 5 March 1972 and registered strike. at the Court on 6 March 1974. This decision was communicated to the Expressing the view that the representatives of the trade unions and admissibility of its action is beyond staff associations.' challenge, the applicant asked the Court

'to annul the decision of 21 September contends that the applicant has no such 1973 in which the Commission of the capacity and claims that the application Europeen Communities ordered a must, therefore, be dismissed. deduction from the salary for October or (a) The Commission states that under November 1973 of officials and other Luxembourg law, to which the rules of servants of the Commission who took the union are subject, the union does not part in the strikes of November and possess that legal personality which the

has established that neither before nor referred only to officials of the after publication of the union's latest Commission although the strike also rules in the Gazette of 26 November involved the staff of the Council, the Parliament and the Court. 1973, has the applicant fulfilled the conditions laid down under Luxembourg 4. By written submission of 5 April legislation which would entitle it to be 1974, the Commission put in a plea of granted legal personality. The Commis inadmissibility and requested the Court, sion draws special attention to failure to under Article 91 of the Rules of comply with the requirements of Articles Procedure, to rule on this plea without 2, 3, 9, 10 and 11 of the law of 1928 on going into the merits. the subject of notices and formalities. The applicant claimed that the plea The Commission contends that the should be dismissed. applicant union has no right of action in the courts of Luxembourg.

In no document preparatory inquiry. which forms part of Community law has the Commission found even an indirect reference to any other point of view. And nowhere in the decisions of the II — Submissions and ar Court has it discovered any suggestion guments of the parties that the Court would be willing, in on the admissibility defiance of the national law applicable at of the application the place where the entity is based, to grant it a legal personality which its own A — 1. The Commission goes first national law ould deny it. into the question whether the applicant (b) The Commission goes on to state has the capacity to bring an action, that the practice in administrative courts

from the latter, provided that they have which that person belongs may intervene been notified and have raised no in the dispute if the general interest of objection'. The Commission maintains staff so requires'. that this validly given power to act is (c) The Commission asks whether, on conservatively interpreted. As these the basis of the reality theory of legal groups lack legal personality, they personality, the applicant could claim would, in any other context, be refused that the Court's discretion should be any general right of action under any exercised so as to treat it as having a circumstances. legal personality recognized in law. In The Commission maintains that, under the Commission's view a comparison of Community law, the applicant union is Belgian and French law is not without not legally recognized as having a power value in helping to define the scope of to act which would enable it to bring previous decisions of the Court on this proceedings in its own name. It subject. emphasizes that while, under Article 179 In the Commission's opinion, the of the EEC Treaty, the Court 'shall have applicant union, would certainly not be jurisdiction in any dispute between the recognized as having a right of action in Community and its servants within the a Belgian court. The applicant union limits and under the conditions laid would be no more likely to have a right down in the Staff Regulations', Article of action in a French court than under 91 of the Staff Regulations circumscribes Belgian law because its lack of legal the scope of this jurisdiction: the Court personality under relevant French law has no jurisdiction in this context if the would defeat its claim. The Commission applicant is not a 'person' covered by the draws particular attention to the Regulations and if the act reported to judgments of the Cour de Cassation of the Court is not an 'act adversely 28 January 1954 (D. 1954 J. 217) and of affecting him'. 25 January 1965 (Droit social 1965, p. Though, as a trade union to which the 508). In the first case, the Court refused defendant's servants may belong, the to recognize a union which had not union is referred to by the Staff registered its rules as having personality Regulations (Article 24a), there is and the corresponding capacity to move nothing specific in the Regulations about for annulment of staff committee

elections; the earlier judgment does not Secondly, it is a fortiori out of time as it have the absolute significance which has was directed against an act whose been attributed to it. In recognizing substance is to confirm a previous works committees as having a decision, publicized on 28 March 1973, personality, in reality the Court based its and stating that the strike of decision on the fact that the law itself November-December 1972 was to be required the committee to look after followed by a deduction from pay. As collective interests, that it endowed it the 'new things' in the Communication with the same qualities as the central of 21 September 1973 represented committee (though to a lesser extent), nothing more than a general description and that it had therefore implicitly of the way in which a previous decision recognized it as having a personality. which could not be challenged would be The Commission refers to decisions of implemented, and merely gave advance this Court and particularly its orders of details of the way in which it would be 24 October 1962 in Case 16 and 17/72 applied, they could not be made the (Rec. 1962, p. 939), of 14 November subject of an appeal. 1964 in Case 15/63 (Rec. 1964, p. 100) The third ground on which the and of 11 December 1973 in Case 41/73 Commission contends that the appli­ et seq. (not yet published). The cation is inadmissible is that, contrary to Commission maintains that it would be the requirements of Article 173, the one thing to prove that the intervener decision under challenge is not addressed had, in the words of Article 37 of the to the applicant nor is the decision 'of Statute of the EEC Court, established an direct and individual concern' to it. 'interest in the result of the case' but Fourthly, the Commission questions quite another to prove that the act whether the President of the Union is the contested in the main action is really 'of correct authority under its rules to direct and individual concern' to the represent it. The possibility that he may applicant in the main action or 'directly not be so arises from the fact that, under affects' his own legal rights. Article 9 II of the union's rules, it is its Moreover, in the Commission's view, it executive committee which 'shall alone must be remembered that in those few speak and act on behalf of the union in cases where the Court has allowed its relations with its members, outside applicants without legal personality to persons and bodies, and in all legal intervene, these were entities created by matters'. The effect of this is that the the law and about whose possession or authority granted by the President of the otherwise of a personality recognized by Union on his own account empowering the law the silence of the relevant his lawyer to represent the union in the legislation did not in any case permit the action may be regarded as having been conclusion to be drawn that a conferred by a component part of the personality had been formally denied to union other than that with the authority them by the law. to do so.

the applicant as required by Article 90 an act adversely affecting the applicant (2) of the Regulations. No complaint and has defined it as an act which had been lodged by the executive directly affects identified legal rights. committee, the body competent to do so under the union's rules. B — The General Union contends that the Commission's arguments represent a 3. The Commission concludes by retrogressive statement of Community analyzing 'the status of the applicant in an action of collective interest and the law. It is retrogressive not only when compared with the principles of conditions necessary to establish the international law but also when viewed requisite interest to bring an action'. in terms of national law in countries The Commission pays particular which more and more widely recognize attention to French case law, the only the unions' right to bring proceedings, if one to which the applicant referred. The for no other reason than to enable them Commission recalls that French case law to carry out their essential task and has been developed over several decades protect their members' interests as on the basis of conditions laid down and

(Article. 173 EEC). The Commission tion. In Article 24 a of the Regulations refers to the Plaumann judgment (Case the responsible authority recognized the 25/62, Rec. 1963, p. 197) in which existence of the unions and therefore the the concept of applicant 'individually legality of their activities. And an concerned' was specifically defined and essential condition of these activities is contends that the applicant does not the right to bring proceedings in defence possess the qualification which under of their members' conditions of Article 173 of the Treaty would entitle it employment. to bring an action for annulment.

rights or responsibilities. The Court has against the unions' right to intervene but laid down that an action will lie against against the fact that the right might be

left to the discretion of an authority developed by international courts, the which was not the Court. Court must recognize the union as having a 'Community personality' and (b) After referring to the fact that the present action was brought under therefore the right to bring an action Articles 90 and 91 of the Staff under the aegis of the Community. Regulations of officials, the union states The union contends that in any case that Article 91 requires that an action Luxembourg law recognizes its legal brought before the Court must be personality. It refers to a letter of 22 July brought against the Community by a 1971 from the Luxembourg Minister of person to whom the Regulations apply. Justice from which it is clear that the This means that the Community must be Syndicat Général fulfils all the a party to the action and that the other requirements of Luxembourg law.

action. that this term should be given the widest possible interpretation. It recalls the (d) The union then considers the first precedents established by the Court as of the two alternatives suggested for the regards the meaning of the expression interpretation of the word 'person' in 'any person' in Article 37 of the Statute Article 91, viz. that the right to bring an of the Court. action is subject to the possession of (c) Before going into the various personality or the basic elements thereof. interpretations suggested for these It refers to the requirements of ILO words, the union denies that any Convention No 87, to which the Court reference should be made to must have regard; in its view, to hold Luxembourg law in deciding whether it that legal personality depends on should have the right to bring an action. whether Luxembourg law recognizes it If Community law accepts the principle or that legal personality can exist only of such a reference, the Court will find on the basis of recognition under an itself called upon to interpret a national enactment is virtually to prevent legal

SYNDICAT GÉNÉRAL DU PERSONNEL v COMMISSION

It would be quite recognizing the unions' legal personality, incongruous for the Court to refuse to the Court can recognize it. But this does recognize, de jure, a trade union not mean that legal personality can be situation which is recognized de facto. accorded to anybody. Three qualifica tions are necessary and sufficient: 2. The union then goes into the legitimate interests, worthy of protection question of the admissibility of the by society and of recognition by the law; application, having regard to the scope a definite connection between these of the act in dispute, and points out that, interests, bringing them together on under Article 91 of the Staff Regulations, common ground and enabling them to the appeal must be concerned with the share the same objectives and to adopt legality of an act adversely affecting the the same methods to achieve them; and applicant. The union rejects the ability to do or say whatever is necessary Commission's interpretations of this for the furtherance of those interests. requirement and with the help of a reference to the Advocate-General's

applications and important of the European officials' unions in Luxembourg. 3. represents no more than a preliminary examination of the (e) The union then deals with the applicant's interest in bringing the possibility that the right to bring action on the assumption that, in proceedings is subject to no particular order to make the application condition based on the status of the admissible, the interest must be applicant. The union lays particular worthy of judicial protection. stress on the fact that Article 91 of the Thus, even if it were necessary for the Regulations does not specify that the disputed decision to be 'one which 'person' to which it refers must of directly affects the legal situation' of the necessity possess legal personality, and union, this requirement does not in the on the fact that unions without legal present case represent any obstacle to personality have the right to initiate the admissibility of the application.

unions, whose essential purpose is to The admissibility or otherwise of the safeguard their members' conditions of application should not, however, depend

JUDGMENT OF 8. 10. 1974 — CASE 18/74

•on the existence of a threat to a that it represents nothing more than .subjective right. The union reviews the confirmation of a previous decision law in various Member States and claims publicized on 28 March 1973. The that, in most of the countries of the purpose of the earlier decision was to Community, the trade unions can bring inform staff that the Commission had an action in cases where a collective approved the principle of a deduction. interest is involved. The present case is The operative decision was taken only concerned with the effects of a concerted six months later. How, therefore, could .stoppage of work on calculation of the the staff of the Commission have read officials' remuneration and, therefore, into the announcement of 28 March with the extent and significance of a anything more than a 'threat of some •collective right of fundamental impor­ kind'? The union recalls that similar tance. measures have been announced on

SYNDICAT GÉNÉRAL DU PERSONNEL v COMMISSION

application before the Court of Justice Finally, the union points out that, in its of the European Communities, the explicit decision rejecting the complaint, executive committee of our union the Commission did not plead that the unanimously approved the steps taken application was inadmissible. by its President'. At the hearing on 2 July 1974, the The preliminary complaint signed by the parties expanded on their written submissions. President and by the General Secretary of the union was also unanimously The Advocate-General delivered his approved by the executive committee. opinion at the hearing on 10 July 1974.

Law

1 By application submitted on 6 March 1974, the General Union of Personnel of European Organizations (official English title) asked the Court to annul a decision of the Commission of the European Communities on 21 September 1973 arranging for a deduction to be made from the salary of officials and other servants of the Commission who took part in the strikes in November and December 1972.

2 The application was submitted under Article 91 of the Staff Regulations and Article 173 of the EEC Treaty but during the course of proceedings the applicant withdrew the plea based on the Treaty.

3 By written submission of 5 April 1974, the defendant Commission raised a plea of inadmissibility and asked the Court to rule on it without entering into the merits.

9 It is, therefore, impossible to deny the applicant union's capacity to institute proceedings.

10 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.

11 The right of action is one of the means available for use by these associations.

12 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.

13 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.

14 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 the EAEC Treaties.

Costs

20 By Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

21 In view, however, of the general interest of the issue which has been raised, each party should bear its own costs.

On those grounds,

THE COURT

hereby:

Registrar President